{"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["On December 17, 2012, a majority of the shareholders and directors of each of the companies authorized the company to be merged into a corresponding Florida company *785(LLC) pursuant to Business Corporation Law \u00a7 904-a and section 608.438 of the Florida Limited Liability Company Act (Fla Stat \u00a7 608.401 et seq.). Those LLCs are 610 Smith St., LLC, 627 Smith St., LLC, Bayway Building, LLC, and 37 Bridge St. Realty, LLC. Each of the mergers was consummated not later than January 3, 2013. On December 27, 2012, Rand received official notice of the proposed mergers, by letter dated December 19, 2012."], "id": "dc2b0637-8196-4873-8d82-a03d3ac537bc", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Finally, we address relators' contention that the trial court exceeded its jurisdiction in limiting recovery against the bus driver to $100,000. We do not interpret the order as having that effect, but to avoid confusion we direct that it be modified so that the damage award limitation clearly applies only to Bi-State. The bus driver here is not protected by \"official immunity,\" which precludes tort claims arising from discretionary acts or functions of the public officials engaged in the performance of their official duties. This driver, ... was not a public official performing a discretionary act, but rather was engaged in the ministerial matter of navigating a left turn.\" Id. at 675. More recent caselaw has similarly found that the immunity provision does not apply to the agent-employee of the government entity. See Cottey v. Schmitter, 24 S.W.3d 126, 128 (Mo. App. W.D. 2000) (Provisions of sovereign immunity statute that of Missouri Highway and Transportation Commission (MHTC) in negligence suit brought against MHTC and operator of snow plow by passenger of vehicle for injuries sustained when vehicle collided with snow plow did not apply to limit operator's liability); see also Cole ex rel. Cole v. Warren Cty. R-III Sch. Dist., 23 S.W.3d 756, 761 (Mo. App. E.D. 2000) (Bus driver employed by school district was not entitled to have verdict against him in personal injury action arising from bus accident reduced to maximum liability under statute limiting liability of public entities, as school district's sovereign immunity was not transferrable to its employee.)"], "id": "26a1be83-f1c6-4d79-bf0b-91fe3c77543e", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["In the first Supreme Court decision applying the limitation of liability (Hart v. Pennsylvania R. R. Co., 112 N. S. 331), the bill of lading was captioned \u2018 \u2018 Live-Stock Contract \u201d (p. 332). The first paragraph thereof was that plaintiff was to pay the rate expressed \u201c on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: \u201d (ibid.)."], "id": "2ea05faf-3c4e-4189-a40a-da6d49df8880", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Appellants' arguments stretch the meaning of a private corporation to the breaking point. While it is true, as appellants and amici fear, that limiting the definition of a corporation to just those specialized corporate forms contained in the first part *548of the corporate code would exclude a wide range of potentially problematic organizations, such as the more recently created company (LLC) corporate form,5 this concern cannot be used to expand the concept to capture something like the Agency. Nor is it simply sufficient to argue the Agency is not a \"public corporation\" as that phrase is used in California law. Despite the inference in its analysis that the meaning of a private corporation should be understood broadly, nothing in our Supreme Court's analysis in Calfarm limited the notion of that phrase's antithesis to the strictly defined local governmental organizations historically imbued with the name public corporation. We further find no guidance in the law that would draw an arbitrary line between state and federal or federal and international governmental entity control when determining the public/private *549issue. Thus, while it is true that many of the statutes defining public entities focus on government at the state level, it is notable that Evidence Code section 200 takes a much broader view of the meaning of a public entity by expressly enveloping foreign entities.6 And while Calfarm does suggest that substantial governmental oversight at the state level is sufficient to classify an organization, such as the State Bar, as public and akin to a government agency, we see nothing in the court's analysis that limits the type of relevant oversight to the state level. As such, we reject appellants' claim that the phrase private corporation covers any legally formed and perpetual organization created and jointly operated by domestic and foreign governments."], "id": "c1abbf98-9b7e-4d13-8d20-8fe79d519ff4", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\" ' \"Hearsay evidence\" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' [Citation.] ' \"Statement\" means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.' [Citation.] ' \"Person\" includes a natural person, firm, association, organization, partnership, business trust, corporation, company, or public entity.' [Citation.] The Evidence Code does not contemplate that a machine can make a statement. \" ( Id . at p. 1449, 121 Cal.Rptr.2d 627, italics added.) Hawkins agreed with cases from other jurisdictions that held automatically generated computer evidence was not hearsay:"], "id": "6dd29a5b-9506-4af6-a857-e47f4668f8fd", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Richard's counsel filed a response to the motion to compel that claimed: (1) Lori's *272counsel had failed to meaningfully confer on the disputes before filing the motion to compel, and some issues were raised for the first time in the motion; (2) upon receiving the motion with its explanation of Lori's complaints, Richard supplemented his document production; and (3) the Business Entities discovery was overbroad as seeking irrelevant information because the entities were companies whose assets are not subject to execution for an owner's debts. Lori's counsel filed a reply addressing these arguments. On April 25, 2015, the trial court signed an order overruling all the objections and set a specific date by which discovery to those requests, and RFP 27, must be produced."], "id": "aa14e429-60f7-41ad-ab5b-4866207e776f", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["There the plaintiff delivered goods to the warehouse which were not returned, the defendant offering no explanation other than speculation that they were stolen. The defense offered was that the warehouse receipt to $50 unless a higher value was placed on the merchandise, which the plaintiff had failed to do. The court found that the limitation of liability provision was unenforceable in light of its conclusion that (p 660): \u201cproof of *925delivery of the stored property to the warehouse and its failure to return that property upon proper demand suffices to establish a prima facie case of conversion and thereby renders inapplicable the liability-limiting provision, unless the warehouse comes forward with evidence sufficient to prove that its failure to return the property is not the result of its conversion of that property to its own use.\u201d With respect to defendant\u2019s evidence on this point it was indicated that (p 664, n 3): \u201cthe warehouse is required to show not merely what might conceivably have happened to the goods, but rather what actually happened to the goods. Defendant proved only that theft was possible, and presented no proof of an actual theft. Hence, the proffered explanation was inadequate as a matter of law.\u201d"], "id": "bd0e122a-911d-4c7e-91c1-a249e35cd298", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The check-the-box regulations found in secs. 301.7701-1 through 301.7701-3, Proced. & Admin. Regs., provide the rules for the classification of business entities for Federal tax purposes. Comensoli v. Commissioner, T.C. Memo. 2009-242, 98 T.C.M. (CCH) 362, 363 (2009), aff\u2019d, 422 F. App\u2019x 412 (6th Cir. 2011). Under the check-the-box regulations, a business entity, such as a company, with two or more members can be classified as either a partnership or a corporation. Id. A new domestic unincorporated entity, other than a single-owner entity, is a partnership for tax purposes unless the entity makes an affirmative election to be an association taxed as a corporation. Sec. 301.7701-3(a) and (b)(1)(i), Proced. & Admin. Regs. Because no election was made, Enterprises\u2019 default classification was partnership."], "id": "ef939cfc-9507-4a03-bce8-2df948f403df", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Under the facts and circumstances presented, this court exercises its discretion and decrees judicial dissolution of Lighthouse Solutions, LLC as it is not reasonably practicable for Lighthouse to carry on its business in conformity with an operating agreement that explicitly requires the dissolution and winding up of Lighthouse prior to withdrawal of one of its members, Timothy Spires (see Company Law \u00a7 702)."], "id": "33c728fa-5793-411c-b575-f3de66c46939", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["In 2008 Tang Energy, Aviation Industry of China (AVIC HQ) through its subsidiary AVIC USA, and others formed Soaring Wind Energy LLC (Soaring Wind) to develop wind farms and promote wind power equipment sales.1 The parties executed a contract titled \" Company Agreement of Soaring Wind Energy, LLC\" (the Soaring Wind agreement). As part of the contract, the parties agreed that Soaring Wind's \"Business\" would be \"to provide worldwide marketing of wind energy equipment, services, and *803materials related to wind energy including, but not limited to, marketing wind turbine generator blades and wind turbine generators and developing wind farms.\" The agreement included an exclusivity provision stating that, \"during the term of this Agreement, each [party] shall only conduct activities constituting the Business in and through the Company and its Controlled subsidiaries.\""], "id": "6a1a3c21-64b9-4d75-82c3-eeb6bfe73fde", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["At the time of the accident, the defendant, William P. Cassidy, was insured under a contract of automobile liability insurance with the Allstate Insurance Company (hereinafter Allstate) with limits of liability for bodily injury of $50,000/$100,000. Helen Buxbaum was insured through her husband Jeffrey\u2019s policy with the Metropolitan Property and Liability Insurance Company (hereinafter Metro), which policy contained an indorsement for Supplementary Uninsured Motorist Insurance with a of $100,000 pursuant tio Insurance Law \u00a7 167 (2-a). Such additional coverage is commonly known as underinsurance and, indeed, the policy issued by Metro to Mr. Buxbaum included as an amendment (subdivision 2b) the following definition: \u201cThe term \u2018underinsured motor vehicle\u2019 means a motor vehicle with respect to the ownership, maintenance or use of which the sum of the limits of the liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under this insurance.\u201d"], "id": "8b1804ad-339a-4b10-8eb3-29e9296853e0", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["*210This action is brought as a class action on behalf of the named, plaintiff and all other similarly situated business entities (e.g., partnerships and companies) that are required by the County Clerks in the City of New York to publish legal notices of their formation or qualification to do business in the New York Law Journal which is published by the named defendants. It is claimed that the mandatory use of the Law Journal has created a de facto monopoly, allowing defendants to inflate the publication rates for business entities doing business within the City of New York (hereinafter the City). More particularly, it is alleged that the Law Journal charges $8.55 per line (with a 14 line minimum) to publish such notices for non-corporate businesses located within the counties constituting the City, as compared to a rate of $2.25 per line (with a 14 line minimum) for similar business entities located outside the City limits."], "id": "6ef88590-7d4e-4920-b4c3-418da4eaecc8", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["So too here. The fraudulent misrepresentations of Harbour and Wells Fargo alleged in the complaint were not designed to induce Hilliard to create a corporate entity, but to induce conduct on the part of the James Crystal Companies-a company he controlled that already existed, whose assets consisted of corporations and limited liability companies that also already existed-to act in a manner inimical to its corporate interests. Sutter does not show that, as Hilliard claims, \"the fraud committed by Harbour and Wells Fargo was directed only to him and affected him directly.\""], "id": "6f0f8258-0bc2-4d57-a962-8f840f3f70f6", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["In the instant case, the evidence is that Alston carried on the business of Clifton until the day he died. The Company Law provides that, unless provided otherwise in the operating agreement, management of the company is vested in its members. (Limited Liability Company Law \u00a7 401.) In such cases, \u201cany such member exercising such management powers or responsibilities shall be deemed to be a manager\u201d and \u201cshall have and be subject to all of the duties and liabilities of a manager.\u201d (Limited Liability Company Law \u00a7 401 [b].) Therefore, Sealy had no cause of action to seek the dissolution of Clifton prior to Alston\u2019s death in 2006. Based on the above, Sealy\u2019s cause of action for dissolution is not barred by the statute of limitations."], "id": "568d7776-8dce-4689-93d3-584c684db26b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to: .... (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; .... (b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for *213the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate. TEX. BUS. ORGS. CODE ANN. \u00a7 21.223 (West 2012). The principles applicable to piercing the corporate veil apply equally to companies. McCarthy v. Wani Venture, A.S. , 251 S.W.3d 573, 590-91 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) ; see TEX. BUS. ORGS. CODE ANN. \u00a7 101.002(a) (West 2012) (providing that section 21.223 applies to limited liability companies and their members). Although \"actual fraud\" is not statutorily defined, courts have construed that term, for purposes of piercing the corporate veil, as \"involv[ing] dishonesty of purpose or intent to deceive.\" Tryco Enters., Inc. v. Robinson , 390 S.W.3d 497, 508 (Tex. App.-Houston [1st Dist.] 2012, pet. dism'd) ; see TecLogistics, Inc. v. Dresser-Rand Grp., Inc. , 527 S.W.3d 589, 598 (Tex. App.-Houston [14th Dist.] 2017, no pet.)."], "id": "aa4e3bc2-a9d8-42c4-b25f-04e44279096d", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Under the UPA, a partnership is \"an association of two or more persons,\" and the term \"person\" is defined to include a \"trust.\" ( Corp. Code, \u00a7 16101, subds. (9) & (13).) Specifically, the UPA defines a person as \"an individual, corporation, business trust, estate, trust, partnership, limited partnership, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.\" (Id. , subd. (13).) Thus, the statute on its face includes both a \"business trust\" and a *534\"trust\" among the \"person[s]\" that may associate in a partnership.9"], "id": "9fbd4a11-17d4-4676-b77e-cf821c19edff", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Nowhere in the agreement other than the \u201cchallenge\u201d in paragraph 11 is there any description of the process to be followed should a customer want to file a claim against E-Z Pass or commence a civil action. The only reference is that cited above requiring sending a letter to the E-Z Pass Service Center. Nowhere in the agreement is E-Z Pass as an entity described. Does it have its own existence as a corporation, partnership, company or other legal entity? Nowhere in the agreement is there an explanation as to why the TBTA is defending this action and not E-Z Pass."], "id": "d10e1f53-8e56-49c5-8060-5edb3c48085e", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The action was commenced after the suspension of Dr. Braver, but before the expiration of the six-month period to take action on the disqualification. ( Company Law \u00a7 1210.) Therefore, while the action was timely and properly commenced, the maintenance of the action without a qualified member in ownership of the entity must be considered a nullity. Even though the defendant failed to couch the application to dismiss on other than alleged fraudulent grounds, the plaintiff has not shown legal basis to maintain this action. Clearly, the plaintiff must satisfy the legal requirements in order to maintain its case and pursue causes of actions available."], "id": "576cb639-e57e-48b6-894e-2e60987ac763", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Defendant also proved that plaintiffs ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist, and no other, continued to be listed as a member and manager of plaintiff. Not only was the foregoing sufficient to defeat plaintiffs motion for summary judgment, it also satisfied defendant\u2019s burden of proof on its cross motion for summary judgment by demonstrating that plaintiff performed psychological services in violation of Company Law \u00a7\u00a7 1203 and 1207."], "id": "882e0b50-b84d-4628-b9fa-d051582efe85", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Shortly after the creation of the LLCs, Virani sought to open a bank account for each of the LLCs with Chase Bank. Several days after Virani initially made this inquiry, he, Sohani, and Sunesara all went to a branch of Chase Bank, and each of them signed a signature card for each of the three LLCs. Virani and Sohani were present when Sunesara signed the signature cards. Each signature card listed Virani, Sohani, and Sunesara as a \"Member.\" The \"Business Depository Resolution\" for each of the three accounts included a certification by the signatories that the business is \"a company organized under the laws of the state/country of USA and the individuals signing this Resolution constitute all of the members or managers, as appropriate[,] of the company.\" This document, like the signature cards, listed Virani, Sunesara, and Sohani as a \"Member.\" Each of the three men signed this document under a heading stating, \"For Limited Liability Company (all members/managers must sign)[.]\" Sunesara testified that the bank required a copy of the Certificate of Formation for the LLCs before it would open the accounts and that Virani provided the certificates to the bank."], "id": "aa9c6557-5678-44ba-9642-fa039a74b216", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["As we alluded to earlier, the history of the different entities and their relationship with each other is more than convoluted. For example, in Walton's motion to dismiss, he brought to the trial court's attention the existence of another company, also called \"Miami Legal Resources, LLC,\" which had filed its articles of organization with the state of Florida in September 2015. Walton appears to have been anticipating that Miami Legal would argue that all of its assets were transferred to this new entity and so could continue the lawsuit as before. In its opposition, however, Miami Legal conceded that this new entity was \"irrelevant\" to Walton's motion. Why there is or was a second entity using the same name as the first (or even whether it is or was indeed a truly separate entity) has never been explained by Miami Legal and has only added to the convoluted background of this case. The record does show that the first Miami Legal was dissolved in September 2014. And the current status report available from Florida's Division of Corporations, which we take judicial notice of on our own motion, shows the second Miami Legal appears to be operating under the same taxpayer identification number as the first Miami Legal. (See Florida Division of Corporations, < http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName& directionType=Initial& searchNameOrder=MIAMILEGALRESOURCESL\u00a8150001509300& aggregateId=flal-l15000150930-fc58a47e-9a4f-4a34-ba92-46fbed3e9c8c& searchTerm=MiamiL\u00a8egal& listNameOrder=MIAMILEGALASSISTP\u00a8160000012750>, as of Jun. 6, 2017.) Because Walton's motion did not cite any state statute regarding Miami Legal's status and relied only on standing and jurisdictional arguments, we need not discuss this topic in detail."], "id": "c45ee781-7ffa-4be8-a5b5-100b063bcf62", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["14 Movie Grill also contends that paragraph 17 of the second amended complaint says Panterra Development was registered as a partnership \u201cto avoid liability.\u201d While we are not certain we concur in Movie Grill\u2019s reading of that paragraph, the more important point is that it would not be dispositive even if true. That Panterra Development may have been organized as a limited liability partnership in order to limit liability is not inconsistent with the allegation that Panterra GP was the contractor for the Movie Grill project. 16. III. Panterra GP Alleged Facts Sufficient to Support a Claim for Reformation \u201cWhen, through \u2026 mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, \u2026\u201d15 (Civ. Code, \u00a7 3399.) Although \u201creformation\u201d is sometimes casually referred to as a cause of action, it is actually a remedy. Reformation is not the court creating a new agreement but rather enforcing the actual agreement already made by the parties.16 (Ramseier v. Oakley Sanitary Dist. (1961) 197 Cal.App.2d 722, 725.) The operative complaint alleged a prima facie case for reformation. The complaint alleged that Rosedale and Movie Grill intended for Panterra GP to perform the work and that, despite this mutual intent, defendants drafted a contract that mistakenly listed Panterra Development as the contractor for the project. Movie Grill contends that Panterra GP\u2019s pursuit of reformation is improper because reformation is an equitable remedy and equitable remedies are foreclosed by subdivision (a). It is true that subdivision (a) precludes equitable remedies. But it only does so with respect to equitable remedies sought by an unlicensed entity. Panterra GP is not an unlicensed entity. Movie Grill also argues that the reformation sought by Panterra GP is not permitted under a Supreme Court case from 1900: Mabb v. Merriam, supra, 129 Cal. 663. That decision prohibited a court of equity from making a \u201cnew contract\u201d \u2013"], "id": "a6b18516-69e6-4f46-a25e-aeafeb09fc42", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["indemnify him could only be asserted once the Jordans established that his potential liability implicated a covered loss. The court reasoned that because \u201cthe jury [in the Jordans\u2019 underlying action] has now determined that the plaintiffs should not recover anything on their bodily injury claims [t]his factual finding should control . . . . On this record, Evanston is not required to indemnify Zucker for the $20 million pre-trial consent judgment.\u201d However, the district court nonetheless required \u201cEvanston to continue to defend its insureds against the Jordans\u2019 product liability claims.\u201d Both parties appealed. The Jordans challenge the district court\u2019s determination that Evanston was not obligated to fund their settlement with Zucker, and Evanston cross-appeals the court\u2019s earlier conclusion that Evanston had timely received notice of a claim made by the Jordans. II. A. We review summary judgments de novo. RealPage, Inc. v. Nat\u2019l Union Fire Ins. Co., --- F.4th ----, ----, No. 21-10299, 2021 WL 6060972, at *2 (5th Cir. 2021) (quoting Luminant Mining Co. v. PakeyBey, 14 F.4th 375, 379 (5th Cir. 2021)). Likewise, \u201c[a] district court\u2019s interpretation of an insurance contract is a question of law reviewed de novo.\u201d Columbia Cas. Co. v. Ga. & Fla. RailNet, Inc., 542 F.3d 106, 110 (5th Cir. 2008) (citing Am. States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir. 1998)). Before analyzing Evanston\u2019s policy, we must determine what law applies to its interpretation. This case involves Mississippians suing insurance companies in federal district court in Mississippi over a policy issued to a New York company in New York. When a federal court hears a diversity case, \u201cthe choice of law rules of the forum state . . . determine which state\u2019s substantive law applies.\u201d Hartford Underwriters Ins. Co. v. Found. Health Servs., Inc., 524 F.3d 588, 593 (5th Cir. 2008) (citing In"], "id": "c3902708-c913-425d-8f2e-f18fe64f9b64", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Irving Rosen, J. This is an action by the plaintiff to recover monies from the defendants for goods sold and delivered in the nature of fuel oil delivered to the premises known as 202 East 13th Street, New York, New York. The individual defendants, Steve Croman and Harriet Croman (hereinafter the Cromans), now move to dismiss this action against them pursuant to CPLR 3211 (a) (7) and Company Law \u00a7 609. The Limited Liability Company defendant, 99-105 3rd Avenue Realty LLC, also known as 99-105 Third Avenue Realty LLC (hereinafter the LLC), moves to dismiss this action against it pursuant to CPLR 3211 (a) (8) on the grounds that the court lacks personal jurisdiction over it."], "id": "6a3a6012-ca46-43dd-890a-884a12771c56", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In this action brought pursuant to the Telephone Consumer Protection Act of 1991 (TCPA) (47 USC \u00a7 227), plaintiff alleged in a verified complaint that defendants had made at least 30 telephone calls using an artificial or prerecorded voice delivering a message that advertised the commercial availability or quality of property, goods or services of Green Bullion Financial Services, LLC (Green Bullion), in violation of 47 USC \u00a7 227 (b) (1) (B) and 47 CFR 64.1200 (a) (2). The complaint further alleged that Green Bullion is, and at all relevant times was, a corporation existing under the laws of Florida. Defendants Jeff Aronson and Howard Mofshin are, and at all relevant times were, the chief executive officer and president, respectively, of Green Bullion."], "id": "469af946-29e7-4c94-bc3c-6f7248a915d5", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Moreover, it is undisputed that Benevento is the transferee of one half of the interest held by Julia, and, thus, the holder of a \u201cbeneficial interest\u201d in 2784 LLC. Such a beneficial interest has been recognized as conferring standing upon a party to bring a derivative action on behalf of a corporation pursuant to Business Corporation Law \u00a7 626 (a) (see Bernfeld v Kurilenko, 91 AD3d 893, 894 [2d Dept 2012]; Shui Kam Chan v Louis, 303 AD2d 151, 152 [1st Dept 2003]), which has been held applicable to companies (see Tzolis v Wolff, 10 NY3d 100, 121 [2008]). While this is not a derivative action, this beneficial interest likewise furnishes a basis for Benevento\u2019s individual claims against 2784 LLC and Burns, and the fact that *292Benevento obtained his interest through the estate of Julia does not deprive him of standing in this action (see Bernfeld, 91 AD3d at 894)."], "id": "e4a4add4-b063-4cc0-b88d-90c51732739c", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The definition of \"person\" was \"an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.\" The Conference also stated in its 1992 comments that \"[a] company is another legal entity within the definition of 'person,' \" and in its 1994 comments that the definition \"includes other legal or commercial entities such as limited liability companies.\""], "id": "64a7f2ec-b838-4387-bf42-8cda4c428e6c", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The relationship among the Watson entities is alleged as: \"Actavis PLC is a public limited company incorporated in Ireland with its principal place of business in Dublin, Ireland. Watson Pharmaceuticals, Inc. acquired Actavis, Inc. in October 2012 and the combined company name was changed to Actavis, Inc. as of January 2013. The combined company then became a wholly[-]owned subsidiary [of] Actavis PLC in October 2013. Watson Laboratories, Inc. is a Nevada corporation with its principal place of business in ... California, and is a wholly[-]owned subsidiary of Actavis, Inc. ... a Nevada Corporation with its principal place of business in ... New Jersey. Actavis Pharma, Inc. is a Delaware corporation with its principal place of business in New Jersey, and was formerly known as Watson Pharma, Inc. Actavis LLC is a Delaware company with its principal place of business in ... New Jersey. Each of these defendants is owned by Actavis [PLC], which uses them to market and sell its drugs in the United States.\" (Some capitalization omitted.)"], "id": "2872f5b6-1fb7-418f-9746-043e2dcb9d1d", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff attacks the validity of the limitation of liability clause largely along the ground of the defendant\u2019s non-compliance with section 217, subdivision a, section 217, subdivision d, and section 219 of the Motor Carrier Act, 1935 (U. S. Code, tit. 49, \u00a7 317, subds. a, d, and \u00a7 319), an amendment to the Interstate Commerce Act regulating transportation generally by motor vehicles. These sections in substance require: The filing of a complete schedule of all rates, fares and charges by motor carriers;' *660forbid their engagement in interstate commerce until they comply therewith; permit limitation of liability only on proper filing of alternative rates which give the shipper a choice between a at a low rate and a full valuation at a higher rate. The court finds from the evidence that the Interstate Commerce Commission, by a series of orders issued by it, expressly postponed the date on which these sections were to become law to March 31, 1936. This they did pursuant to section 227 of the act (U. S. Code, tit. 49, \u00a7 327) which vested in the Commission the power to postpone any provision of the act whenever they deemed such action necessary, up to April 1, 1936."], "id": "6838078d-e10c-43b6-9948-8dd27e746d2a", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Thus, in section 101 of the Social Welfare Law, the word \u201c cMld \u201d is linked with \u201c husband,\u201d \u201c wife,\u201d \u201c father,\u201d \u201c mother,\u201d \u201c grandparent \u201d and \u201c grandchild,\u201d all of them familial terms. Likewise subdivision 4 of section 101 of the Domestic Relations Court Act of the City of New York is part of a statute creating and defining the powers of a Family Court; and the word \u201c cMldren \u201d is there too grouped with familial terms, together with a direction *766for apportioning the burden of support of the dependent \u201c poor relative \u201d according to the respective means of the constituents of the entire group of \u201c parents,\u201d \u201c grandparents,\u201d \u201c children \u201d and \u201c grandchildren \u201d before the court. Yet in New York State a child born out of wedlock is not on a parity with legitimate offspring; he is without any rights of inheritance from or thru his father; the latter is not under obligation for his support save a imposed by statute (People ex rel. Lawton v. Snell, 216 N. Y. 527) and within the city of New York solely enforcible in a criminal court (Inferior Criminal Courts Act, \u00a7 60); his statutory right of inheritance from his mother is restricted to inheritance from the mother herself (Matter of Cady, 257 App. Div. 129; affd., 281 N. Y. 688; Matter of Lauer, supra,)] and, even as to the mother, such statutory right exists only if she die without leaving legitimate issue: (Dec. Est. Law, \u00a7 83, subd. 13; Matter of Battalico v. Knickerbocker Fireproof Co., 250 App. Div. 258, at p. 262.) To impute to a Legislature which still withholds from a child born out of wedlock normal rights of inheritance and support an inconsistent intent nevertheless to cast upon such disparaged individual the burden of supporting his parents apportionably with favored lawful offspring would be unreasonable and also violate a general rule of statutory interpretation firmly established in this State, namely: \u201c It is a rule of construction that, prima facie, the word ' child \u2019 or \u2018 children,\u2019 when used in a statute, will or deed means legitimate child or children. In other words, bastards are not within the term \u2018 child \u2019 or ' children.\u2019 * * * And the rule is well settled that words having precise and well-settled meaning in the jurisprudence of a country have the same sense in its statutes unless a different meaning is plainly intended.\u201d (Bell v. Terry & Tench Co., 177 App. Div. 123, at p. 124, 125.)"], "id": "efe7691c-75ba-49a5-b512-04960c588657", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The return to defendant of $300,000 of his invested capital was a distribution pursuant to Company Law \u00a7 102 (i) and the DLLCA, and consequently is subject to the three-year limitation period set forth in both section 508 (c) of the Limited Liability Company Law and section 18-607 (c) of the Delaware Limited Liability Company Act. Hence, plaintiffs causes of action are time-barred as the distribution occurred more than three years prior to the institution of this action. Accordingly, defendant\u2019s motion is granted, and the clerk shall enter judgment dismissing the complaint."], "id": "3d39742a-fafd-45a4-b974-64abc5fafdb1", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["I do not agree with this contention. Though the Legislature. *811might have used less involved phraseology, I believe that the meaning of the section is quite clear. It abolishes the un of a restaurant keeper in all cases of bailment which, whether actual or constructive, is based upon the contractual obligation to return property intrusted to his care. In those cases the liability is limited to seventy-five dollars when no value is stated and to one hundred dollars when it is stated and receipt is given, but the limitation of liability is applicable in neither event when the claim is based upon the negligence of the restaurant keeper. Such a radical and startling change of the law as contended for by the defendant should not be accepted unless the unmistakable language of the statute compels it. Bearing in mind the ever-increasing habit of a large part of our urban population to visit restaurants, it is well nigh impossible to conceive, even if it were at all practicable, that in every instance the value of the property deposited in the cloak room be stated and a written receipt be exacted. Upon the defendant\u2019s contention a failure to do so would relieve the restaurant keeper from all liability in excess of seventy-five dollars. This would be nothing short of putting a premium upon the dishonesty of unscrupulous restaurant keepers."], "id": "26c39008-f72c-448b-b9b6-f692a52c4c4f", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Sohani and Virani also moved for judgment notwithstanding the verdict (JNOV). Sohani and Virani argued that Sunesara presented only his self-serving testimony that he was a member of the LLCs and had made contributions to the LLCs, but he did not present any evidence of a written or oral agreement entitling him to membership and one-third of the profits of the LLCs. As support, Sohani and Virani cited Business Organizations Code section 101.201, which provides that profits and *402losses of a company \"shall be allocated to each member of the company on the basis of the agreed value of the contributions made by each member, as stated in the company's records.\" Sohani and Virani argued that, even if Sunesara made contributions to the LLCs, he failed to present any evidence that his contributions entitled him to one-third of the profits of the LLCs."], "id": "c941a952-fa6e-45eb-8459-397e08ceb02d", "sub_label": "US_Terminology"} {"obj_label": "LIMITED LIABILITY", "legal_topic": "Business Law", "masked_sentences": ["LTD, LLC; LAUREN SMITH, A MEMBER ON BEHALF OF HERSELF AND DERIVIATIVELY ON BEHALF OF NOMINAL DEFENDANTS JOSHCO GROUP, LLC, D/B/A VETERAN BENEFITS GUIDE, JOSHCO GROUP TECH, LLC, VETERAN BENEFITS GUIDE NV, LLC, VETERAN BENEFITS GUIDE CA, LLC, AND KPC HOLDINGS LTD, LLC; VETERAN BENEFITS ADVANTAGE, A CALIFORNIA COMPANY; JOSHUA SMITH, AN INDIVIDUAL; LAUREN SMITH, AN INDIVIDUAL; AND MICHAEL LICARI, AN INDIWDUAL, Respondents."], "id": "beb1c905-f6c9-4164-99e3-2c4cfe42dcdd", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The note purchase agreement is null and void, ab initio, because Spivak apparently had no authority to bind TIC to the terms of that agreement. TIC\u2019s transfer of the Tripoint assets would have constituted a transfer of all, or substantially all, of TIC\u2019s assets. Company Law \u00a7 402 (d) (2) states that \u201c[e]xcept as provided in the operating agreement, * * * the vote of at least a majority in interest of the members entitled to vote * * * shall be required to * * * approve the sale, exchange, lease, mortgage, pledge or other transfer of all or substantially all of the assets of [a] limited liability company.\u201d"], "id": "d5ced24a-cfa0-4b1a-9bde-19f9086bdb44", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Lisa M. Fisher, J. Petitioners, comprised of both a not-for-profit, nonpartisan public policy and law institute, and several former, current, and aspiring politicians who are New York residents and registered voters representing multiple party lines, commenced this hybrid CPLR article 78 proceeding/declaratory judgment action to challenge the action taken at respondent\u2019s Commissioners\u2019 meeting held on April 16, 2015. The pertinent part of such meeting involved campaign finance laws and companies (hereinafter LLCs)."], "id": "98048f76-035f-4066-bc99-f6203c947d71", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Borden Dairy Kentucky, LLC (\u201cPlaintiff\u201d) is a producer of dairy products. In January 2014, Mike Tamarit (\u201cDefendant\u201d) signed a credit application and terms agreement with Plaintiff on behalf of Borden Southern Distribution, LLC (\u201cBSD\u201d), pursuant to which BSD was authorized to distribute Plaintiff\u2019s dairy products within a specified region. At the same time, Defendant signed a personal guaranty that obligated him to pay any amounts not paid by BSD. Defendant was the original owner of all membership interests in BSD, a company, and was the sole member\u2014sole owner\u2014of BSD when the agreements were signed."], "id": "6158f533-0893-4313-8542-2aecb1c59ae3", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["*438This court must now assess the ability to carry on the business of Lighthouse in conformity with the statutory operating agreement. Based, on the terms of the default statutory operating agreement applicable to Lighthouse, it is \u201cnot reasonably practicable\u201d for Lighthouse to carry on its business in conformity with the operating agreement. The terms of the operating agreement require the dissolution and winding up of Lighthouse prior to the withdrawal of its member, Timothy Spires ( Company Law \u00a7 606 [a]). Spires\u2019 withdrawal as a member of the LLC, or his removal by the remaining members of the LLC, triggers the dissolution and winding up of Lighthouse (Limited Liability Company Law \u00a7 606).4 There is no other provision or mechanism in the statutory operating agreement for Timothy Spires, as a member of Lighthouse, to withdraw or be removed from the business."], "id": "d5e9f523-988e-483b-b5da-112e5b6be3b1", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\"There is an important limitation on the creditor's liability, however. The wording of the Notice includes the sentence 'Recovery hereunder by the debtor shall be limited to amounts paid by the debtor hereunder.' This limits the consumer to a refund of monies paid under the contract, in the event that an affirmative money recovery is sought. In other words the consumer may assert, by way of claim or defense, a right not to pay all or part of the outstanding balance *423owed the creditor under contract; but the consumer will not be entitled to receive from the creditor an affirmative recovery which exceeds the amount of money the consumer has paid in.\" ( 41 Fed. Reg. 20023.) Thus, \"the purpose of this language is clearly to 'not permit a consumer to recover more than he [or she] has paid. ...' M. Smith, Preserving Consumers' Claims and Defenses, 63 A.B.A.J. 1400, 1402 (1977). See also 40 Fed. Reg. 53506, 53527 ; Eachen v. Scott Housing Systems, Inc., 630 F.Supp. 162, 164-65 (M.D.Ala.1986). A rule of un would place the creditor in the position of an insurer or guarantor of the seller's performance.\" ( Riggs , supra , 32 F.Supp.2d at p. 417.)"], "id": "cd9f89c9-d14e-4c2b-a64b-ff7d387f0b12", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In Stevens v. Peoples Bank of Hamburg (157 Misc. 77) the question was raised as to whether the words \u201c for * * * life\u201d to the life of the husband should he be the first to die. The court said (p. 79): \u201c It is perfectly obvious that the words \u2018 for her suitable care and maintenance during life \u2019 apply to and mean the life of the wife and that it would be a distortion of the language of the statute to hold that the meaning of said phrase was during the joint lives of the husband and wife. In construing the language. of this statute it must be remembered that the remedy afforded to the husband is rather a drastic one when it is considered that a wife who, had she remained sane, had certain statutory rights given her in' the event that she survived her husband. The statute, while giving-relief to the husband under such unfortunate circumstances, clearly, from the language thereof, did not intend that the security required to be given should continue only during the life of the husband. It would seem under all of the circumstances that it was the intention of the statute to provide for the care and maintenance of the wife during her life in lieu of her right to inherit as a surviving spouse, and to hold otherwise, particularly in this case where the bond states \u2018 her life, \u2019 would be a miscarriage of justice. \u2019 \u2019"], "id": "950849e0-ce6f-41be-b3af-4a7f377b6724", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": [". For the provision as to the minimum charges to have any rational meaning, the specification of 120 pounds must be an absolute. The court so finds and holds that, regardless of the weight of the package, the minimum charge under the tariff shall be 120 times the appropriate rate. Since here the released value charge came to $4.89, it was proper for the defendant to determine whether the minimum charge was more or less than $4.89. According to the tariff, 120 times the class rate resulted in a minimum charge of $5.75. Since the released value charge was less than the permitted minimum, the defendant could impose the minimum charge of $5.75 subject only to one limitation, i.e., the minimum charge so imposed could not vitiate the plaintiff\u2019s right to obtain a reduced rate in consideration of defendant\u2019s to 50 cents per pound."], "id": "00454886-7dcc-4340-8960-831f41e24382", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": [". These statutes do not preclude the agency from promulgating the regulations governing the administrative costs and executive compensation that are reimbursed by taxpayer funds. All three statutes contain language making corporate powers \u201csubject to any limitations provided in . . . any other statute of this state\u201d (N-PCL 202 [a]; Business Corporation Law \u00a7 202 [a]; Company Law \u00a7 202). In the court\u2019s view, this language subjects the corporations\u2019 general powers to more specific limitations imposed not only by other statutes, but also by regulations duly promulgated under other statutes. Because the court has concluded that the legislature authorized the Department of Health to establish limits on health care expenses paid for by state funds or state-authorized funds, the regulations pertaining to administrative costs and the \u201chard cap\u201d on executive compensation are not in conflict with the statutes generally governing corporate powers."], "id": "11cf23f9-2fe0-45c2-b5b4-f73e6f156c69", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["For the Ferguson holding to serve as a bar to Blackground\u2019s negligence cause of action, the question that the court must answer, and which neither party has briefed, is whether or not Aaliyah was an employee of Blackground at the time of her death in August 2001. New York Labor Law article 6, which governs an employer\u2019s payment of wages and benefits to an employee, defines an employee as \u201cany person employed for hire by an employer in any employment\u201d (Labor Law \u00a7 190 [2]). In a similarly broad fashion the section defines an employer as \u201cany person, corporation, company, or association *184employing any individual in any occupation, industry, trade, business or service\u201d (Labor Law \u00a7 190 [3]). When determining whether an employer-employee relationship exists for the purposes of article 6 of the Labor Law, the critical inquiry is the degree of control exercised by the purported employer over the results produced or the means used to achieve those results (Bynog v Cipriani Group, 1 NY3d 193 [2003]). The factors relevant to assessing such control include whether the worker (1) worked at her own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer\u2019s payroll, and (5) was on a fixed schedule (id.)."], "id": "c2b85806-9733-4812-b28c-ffa596ef2ae2", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["As discussed above (part II [A]), petitioner has established that it is a Delaware company authorized to do business in this state. Moreover, a party asserting a defense based on Business Corporation Law \u00a7 1312 bears the burden of proof on the issue. (Great White Whale Adv. v First Festival Prods., 81 AD2d 704 [3d Dept 1981].) Here, respondent submitted no evidence that petitioner lacked authority to maintain the instant proceeding."], "id": "ddf585f0-02fa-4ede-9ac0-fd373dd5fc83", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["In Matter of Horning v Horning Constr., LLC (12 Misc 3d 402 [Sup Ct, Monroe County 2006]), the court held that the requirements for a judicial dissolution pursuant to Company Law \u00a7 702 were more stringent than those under the Business Corporation Law or Partnership Law. \u201cDissolution in the absence of an operating agreement can only be had upon satisfaction of the standard of section 702, i.e., \u2018whenever it is not reasonably practicable to carry on the business.\u2019 \u201d (Id. at 408.)"], "id": "963c19b6-6093-47c3-85e6-4dc53179dcc3", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Rodriguez argues that this reasoning is inconsistent with Castro v. Cammerino , 186 S.W.3d 671 (Tex. App.-Dallas 2006, pet. denied). In Castro , a pedestrian brought a personal-injury action against a bus driver employed by an independent contractor pursuant to a contract with Dallas Area Rapid Transit (DART), for injuries she suffered when she was struck by a bus. Id. at 673. The court of appeals held that although the bus driver wore a DART uniform and drove a DART bus, he was an employee of an independent contractor, and therefore was not entitled to protection under the election-of-remedies provision. Id. at 678-79. The court of appeals' construction of the relevant provisions of the TTCA opens a loophole that creates un for the employee of a contractor who is performing an essential governmental function. This does not comport with the TTCA or the intent behind it. Therefore, we disapprove Castro to the extent that it is contrary to our opinion here."], "id": "4f36bb98-aba9-4cea-bcd6-3bdb025dc946", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Because the court has concluded that the second and fourth through seventh causes of action are all derivative in nature, and are all subject to a contemporaneous ownership requirement, and because plaintiff indisputably tendered his membership interest in exchange for the right of payment under the terms of the operating agreement, the court grants the motion to dismiss and need not reach the issue of whether a demand is required. However, given the conclusion with respect to the contemporaneous ownership requirement, this court can see no basis upon which to conclude that a demand limitation should not be imposed in the context similar to what is imposed in the business corporation and limited partnership contexts."], "id": "284fdfdf-860c-46ad-98ab-85f37bc2b01c", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The regulations use the term \u201celigible entity\u201d to refer to a \u201cbusiness entity\u201d other than a state law corporation or other entity that is required to be classified as a corporation for Federal tax purposes. Treas. Reg. \u00a7 301.7701-3(a). An entity is a business entity if it is recognized for Federal tax purposes and not classified as a trust \u201cor otherwise subject to special treatment under the Internal Revenue Code.\u201d Treas. Reg. \u00a7 301.7701-2(a). Thus, companies like International Properties are generally eligible entities. - 12 -"], "id": "a9e81378-d589-4425-a9da-8449ee424adf", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["At the time that White Lion was formed, the creation of companies was governed by the Texas Limited Liability Company Act. See Act of May 25, 1991, 72d Leg., R.S., ch. 901, \u00a7 46, 1991 Tex. Gen. Laws 3161, 3192-216 (amended 2003, 2007, 2009, 2011, 2013) (current version at Tex. Bus. Orgs. Code \u00a7\u00a7 101.001 -.622). Prior to trial in this case, the legislature promulgated the Business Organizations Code, which became effective in January 2006 before the State filed its suit and governs, among other things, the creation of limited liability companies. See Act of May 13, 2003, 78th Leg., R.S., ch. 182, \u00a7 1, 2003 Tex. Gen. Laws 267, 267-595 (adopting prior version of Business Organizations Code); see also Tex. Bus. Orgs.Code \u00a7\u00a7 402.001, .003, .005 (setting out transitional period by which entities formed prior to passage of Code were governed by prior law, procedure by which previously existing entity may elect to be governed by Code, and deadline by which Code provisions begin to apply to previously existing entities). Both the Act and the Code mandate that \"a member or manager is not liable for the debts, obligations or liabilities of a limited liability company including under a judgment, decree, or order of a court\" \"[e]xcept as and to the extent the\" agreement of the company specifically provides \"otherwise.\" Tex. Bus. Orgs.Code \u00a7 101.114 ; Act of May 25, 1991, 72d Leg., R.S., ch. 901, \u00a7 46, art. 4.03, 1991 Tex. Gen. Laws 3161, 3203. Further, the Act and the Code explain that a \"member of a limited liability company\" may only be named as a party in an action \"by or against\" the company if the suit is brought \"to enforce a member's right against or liability to the\" company. Tex. Bus. Orgs.Code \u00a7 101.113 ; Act of May 25, 1991, 72d Leg., R.S., ch. 901, \u00a7 46, art. 4.03, 1991 Tex. Gen. Laws 3161, 3203. Neither the Act nor the version of the Code in effect at the time of the lawsuit mentioned \"veil-piercing principles as an exception to limited liability or whether or how such remedies might be applied against\" limited liability companies. See Shook v. Walden, 368 S.W.3d 604, 613 (Tex.App.-Austin 2012, pet. denied) (discussing absence of veil-piercing provisions from Act); Act of May 13, 2003, 78th Leg., R.S., ch. 182, \u00a7 1, 2003 Tex. Gen. Laws 267, 267-595.1"], "id": "10ea8708-5bf5-4117-bdc9-bf0cf8437219", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Before the parties finalized the acquisition of Burn II, Sohani and Virani asked Sunesara to file paperwork with the Texas Secretary of State to form three companies to own and run the three smoke shops. Sunesara completed and filed Certificates of Formation for the LLCs: ZZSS, LLC, which managed Zig Zag Smoke Shop; BRNSS, LLC, which managed Burn I; and EZSS, LLC, which managed Burn II. Each of the Certificates of Formation listed Virani, Sohani, and Sunesara as governing persons of the LLCs. Sunesara testified that he showed each of the certificates to Virani prior to filing, and Virani authorized the filing of the documents. He stated that he did not show the certificates to Sohani but that Sohani had given him authorization to file the certificates. Sunesara's signature is on each of the three certificates, but neither Virani nor Sohani signed the certificates."], "id": "29abcada-29ca-40f9-8754-4e0f1e8d11e0", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Kenneth R. Fisher, J. Two disaffected members of a company (LLC), plaintiffs Conrad R. Hoffman and George B. Fazekas, move by *180order to show cause for a preliminary injunction enjoining the LLC from making payments of money or other assets owned by it to any LLC member until final determination of this action seeking dissolution. Defendant cross-moves to compel arbitration in accordance with the broad arbitration provision in the LLC\u2019s operating agreement."], "id": "d22f2d72-c5f4-44bc-a47b-276c1f2fadde", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["7At oral argument, both counsel appeared to agree the provision does not address or limit equitable remedies. In any event, because we only address OpenTV\u2019s liability for damages, we have no occasion to express an opinion regarding the availability of other remedies, such as equitable relief, under the facts of this case. In any event, the Agreement permits prospective relief for OpenTV\u2019s potential wrongful acts. Section 3.4 mandates OpenTV\u2019s maintenance of complete and accurate records, subject to audit, for determining revenue shares payable to Broadband. There is also nothing precluding Broadband from seeking a declaration of its rights to establish an entitlement to future revenue payments. (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59 [declaratory relief used to \u201cset controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed\u201d].) Indeed, Broadband\u2019s complaint seeks such a declaration regarding OpenTV\u2019s rights and duties to pay Broadband based on revenue OpenTV\u2019s affiliates received from using its software. Hence, construing the limitation of liability provision as capping liability at payments OpenTV actually made does not result in an absurdity. The cases Broadband cites do not alter that conclusion. We similarly reject Broadband\u2019s contention that enforcing the Agreement\u2019s plain language would result in an illusory contract. A contract is \u201cillusory when one of the parties . . . assumes no obligations thereunder . . . [or] provides no legal consideration.\u201d (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 385.) Consideration is \u201c[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person . . . or any prejudice suffered, or agreed to be suffered, by such person . . . as an inducement to the promisor.\u201d (\u00a7 1605; see San Diego City Firefighters, Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 619.) Broadband insists the Agreement lacks consideration because OpenTV has no binding obligation to make any requisite revenue payments. Not so."], "id": "271a5efd-e5e0-47d5-ac13-c513eea81a68", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cWhen assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . \u2018the benefit of every possible favorable inference\u2019 (Leon v Martinez, 84 NY2d 83, 87 [1994] . . . ). \u2018Whether a . . . plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss\u2019 (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Further, any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).\u201d (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005].) The initial issue is whether the causes of action assailed by the motion to dismiss are derivative in nature. The Court of Appeals has repeatedly stated that claims are derivative in nature where: \u201c[t]he remedy sought is for wrong done to the corporation; the primary cause of action belongs to the corporation; recovery must enure to the benefit of the corporation\u201d (Isaac v *539Marcus, 258 NY 257, 264 [1932]; Marx v Akers, 88 NY2d 189, 193 [1996]). The parties acknowledge that the determination of whether a claim is direct or derivative turns on who was harmed first, the member or the entity (see generally Kleinberger, Direct Versus Derivative and the Law of Companies, 58 Baylor L Rev 63 [2006]). Where a member is harmed independent of the entity or is the only member harmed, the claim is direct (id.)."], "id": "dc2a05da-a77f-47dd-8d81-25641db8a240", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The statute clearly allows the members to enter into an operating agreement wherein the members can agree to certain *436terms, conduct, and provisions for operating the business. However, when there is no operating agreement, or such agreement does not address certain subjects, then the entity is bound by the minimum requirements set forth in the Company Law. In this situation, the entity is required to operate according to the statutory provisions. These statutory default provisions of the Limited Liability Company Law become the \u201cOperating Agreement\u201d of the limited liability company."], "id": "f25dee3d-6666-4820-af7a-d9588ea4c047", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["In the petition, petitioners argue that the Board\u2019s decision is arbitrary and capricious and \u201creflects grave legal errors under both the Election and LLC Laws\u201d (petition \u00b6 3). Specifically, petitioners assert that the determination \u201cseverely undercuts and undermines the central purpose of the campaign finance scheme by facilitating massive circumvention of the Election Law\u2019s framework of contribution limits and disclosure requirements\u201d (petition 1 100). Petitioners also argue that the Board\u2019s decision ignores and renders null the statutory definition of an LLC set forth in Company Law \u00a7 102 (m) and \u201cfails to consider the fundamental nature of LLCs and how they are treated by other agencies,\u201d namely, as corporations or partnerships (petition f 102). Petitioners seek an order invalidating the Board\u2019s April 2016 decision, rescinding the 1996 Opinion and ordering the Board to issue a new opinion consistent with the text and purpose of the Election Law and Limited Liability Company Law. They also seek a declaration that \u201cthe Board\u2019s policy is unlawful, invalid, and unenforceable and null and void ab initio as an ultra vires and illegal action\u201d *380(petition \u00b6 111). In opposition, respondent argues, among other things, that petitioners are collaterally estopped from relitigat-ing the issues raised in this proceeding, that petitioners lack standing, that the petition presents a political question which is not justiciable and that the proceeding is barred by the statute of limitations."], "id": "d24a5415-b852-43ad-9d4f-6974dc52a082", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff alleges that: defendant inappropriately withdrew $300,000 of his capital investment (complaint 1i 17); defendant did so without concern for Fulcrum\u2019s creditors (id. 1\u00cd19) and for no consideration (id. If 20); defendant\u2019s withdrawal rendered Fulcrum insolvent and without assets to satisfy the judgment against it (id. If 21); the three-year limitation periods set forth in New York Company Law \u00a7 508 (c) and the Delaware Limited Liability Company Act (DLLCA) (Del Code Ann tit 6) \u00a7 18-607 (c) are inapplicable because defendant did not receive a distribution, but rather, inappropriately withdrew company funds (plaintiffs mem of law at 2); such a withdrawal is a misappropriation of funds rather than a distribution because defendant was not acting in his official capacity as a member of Fulcrum as he did not have authorization for the withdrawal and the monies withdrawn were for personal use (id. at 5-6); and such withdrawal constitutes a fraudulent conveyance subject to a six-year statute of limitations."], "id": "8bb77a46-da0e-464b-8a83-5aa8514ec5df", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Respondents argue that section 407 (a) applies to Company Law \u00a7 1002 (c) no differently than it applies to every other section of the Limited Liability Company Law that contains a meeting requirement. Slayton disagrees, and maintains that mergers are extraordinary and require a meeting before a member can be frozen out. Slayton argues that members should be entitled to face the other members in person to persuade them not to agree to the merger. She, however, cites no case 4 or legal principle in support of this policy-based argument. Respondents, in reply, simply argue that sections 407 (a) and 1002 (c) are unambiguous on their face and should be interpreted as such. (See People v Barden, 117 AD3d 216, 224 [1st Dept 2014]; accord People v Finnegan, 85 NY2d 53, 58 [1995] [\u201cThe governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory \u2018language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of (the) words\u2019 \u201d (quoting People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989])]; see Finnegan, 85 NY2d at 58 [\u201ccourts are not to legislate under the guise of interpretation\u201d]). No appellate court has addressed this issue."], "id": "5936629a-373c-4dc7-9b26-5d03bc0ce303", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In view of the plain, clear and unambiguous language of the statute, which creates only a to protect the rights of the assignee of a life insurance policy to receive the cash surrender value in the event of a lapse of the policy due to nonpayment of premium, it would be an unwarranted extension of legislative action to hold that this same language creates a general duty to give notice of premium default, breach of which would carry with it liability for damages such as plaintiff claims, which by their nature exceed the liability created by the statute."], "id": "88ea441f-49d1-45e2-9430-070892cde749", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In re Seneca Investments LLC, 970 A.2d 259 (Del. Ch. 2008). The decision involved a company, but Section 226(a)(3) applied \u201cbecause the parties contractually agreed that the LLC would be governed as a corporation and that Delaware General Corporation Law would apply.\u201d Id. at 260 n.1. See Apple Comput., Inc. v. Exponential Tech., 1999 WL 39547, at *1 (Del. Ch. Jan. 21, 1999) (describing the plaintiff\u2019s litigation goals as including an order appointing a custodian \u201cto wind up [the company\u2019s] affairs\u201d); Rosan v. Chi. Milwaukee Corp., 1990 WL 13482, at *5 (Del. Ch. Feb. 6, 1990) (\u201c[Plaintiff] next asks that a custodian be appointed pursuant to 8 Del. C. \u00a7 226(a)(3) to effectuate a forced liquidation of [the company].\u201d); Giancarlo v. OG Corp., 1989 WL 72022, at *1 (Del. Ch. June 23, 1989) (\u201cThe complaint seeks the appointment of a liquidating custodian for [the corporation] . . . .\u201d). Several orders issued by this court are also consistent with the view that a Section 226(a)(3) custodian can only dissolve, liquidate, or distribute an abandoned corporation\u2019s assets. See Wahl v. Centerville Swimming Club, Inc., 2021 WL 1549805, at *1 (Del. Ch. Apr. 19, 2021) (ORDER) (appointing a custodian \u201cpursuant to 8 Del. C. \u00a7 226(a)(3) to wind down, administer claims, and dissolve [the company]\u201d); Camac Fund, LP v. Surety Hldgs. Co., C.A. No. 2019-0541-JTL, Dkt. 19 (Feb. 7, 2020) (ORDER), (appointing receiver under Section 226(a)(3) to \u201ctake all actions necessary to wind up the [c]ompany\u2019s operations and dissolve the [c]ompany.\u201d), vacated by Camac Fund, LP v. Sur Hldgs. Corp., 2020 WL 883465 (Del. Ch. Feb. 21, 2020) (ORDER); B.E. Cap. Mgmt. Fund LP v. Fund.com Inc., 2016 WL 6967899, at *1 (Del. Ch. Nov. 29, 2016) (ORDER) (appointing a receiver under Section 226(a)(3); receiver then began liquidating the company before moving to only exception is Klamka, where the petitioner sought to achieve what Synergy wants in"], "id": "1cd2649d-7470-4858-8a29-75db63de0d0a", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Petitioner, Kimberly Slayton, was (and allegedly still is) a 13.33% member of Old Highline, a New York company (LLC). On August 7, 2013, Slayton was provided written notice that, pursuant to written consents executed that same day, the holders of 86.67% of Old Highline\u2019s equity (i.e., every other member) adopted a resolution approving a freeze-out merger whereby Old Highline would be merged into a new LLC, New Highline. By virtue of this freeze-out merger, Slayton would be tendered fair value for her equity in Old Highline and would not own any equity in New Highline."], "id": "a7a6964f-2771-45a6-a47f-af397bf43a72", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["When AON made its investment in Madison, instead of paying defendant, plaintiff caused defendant to execute the July and August 2009 notes under the same conditions noted above and with the understanding that Madison would repay the notes once the investment was finalized. At the time of the AON investment, plaintiff caused a agreement to be drafted which limited access to the company\u2019s financial records to plaintiff, and gave defendant \u201cnon-executive officer\u201d responsibility only for meetings with investors. Notwithstanding his title as \u201cco-chair\u201d of Madison, defendant had no access to Madison\u2019s bank records."], "id": "3cb44313-6f7d-40da-bc9f-26074e9b7e1f", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201c\u00a7 1505. Professional relationships and liabilities \u201c(a) Each shareholder, employee or agent of a professional service corporation shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation.\u201d (Emphasis added.) State Senator Gioffre, who sponsored this legislation, addressed the issue by stating: \u201cAs applied to professional service corporations, the bill would modify the general rule that shareholders of a corporation do not have personal liability as such for corporate acts and indebtedness; a shareholder of a professional service corporation would be personally responsible for any negligent or wrongful act or misconduct committed by any person under his direct supervision and control, as well as for his own action, while rendering professional services on behalf of such corporation. To ensure that the identity of the persons performing the professional services is disclosed, the bill requires that each plan, report, diagnosis, prescription, record or other document made or issued by a professional service corporation bear the signature of one or more of the *196individual professionals who are in responsible charge of such document.\u201d (NY Legis Ann, 1970, p 130; emphasis added.)"], "id": "6ee12de8-a627-4cc6-8eb4-8ceab6cffd37", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["However, we need not decide whether a California court has jurisdiction to dissolve the foreign entities because we conclude that, even assuming it does, the internal affairs doctrine would require it to apply to a dissolution claim the law of the state under which the entity was organized. \" 'The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs-matters peculiar to the relationships among or *1067between the corporation and its current officers, directors, and shareholders-because otherwise a corporation could be faced with conflicting demands.' [Citations.] 'States normally look to the State of a business' incorporation for the law that provides the relevant corporate governance general standard of care.' \" ( State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 442, 8 Cal.Rptr.3d 56.) As stated in the Restatement Second of Conflict of Laws: \"The local law of the state of incorporation will be applied to determine the right of a shareholder to participate in the administration of the affairs of the corporation, in the division of profits and in the distribution of assets on dissolution and his rights on the issuance of new shares, except in the unusual case where, with respect to the particular issue, some other state has a more significant relationship under the principles stated in \u00a7 6 to the shareholder and the corporation, in which event the local law of the other state will be applied.\" (Rest. 2d of Conflict of Laws, \u00a7 304, italics added.) The internal affairs doctrine applies to foreign limited partnerships (\u00a7 15909.01) and foreign companies (\u00a7 17708.01; see former \u00a7 17450, subd. (a) )."], "id": "fb44f36d-8a3e-43a9-9deb-dd193c22b3e8", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cUnless otherwise agreed, a member who receives a distribution from a company shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution unless an action to recover the distribution from such member is commenced prior to the expiration of the said 3-year period and an adjudication of liability against such member is made in the said action.\u201d The three-year time limitation imposed by section 508 (c) overrides the limitation period applicable to any claim brought under the Debtor and Creditor Law with regard to distributions made by a limited liability company to a member. (In re Die Fliedermaus LLC, 323 BR 101, 108 [SD NY 2005] [\u201c(I)t was the intent of the New York Legislature that claims under the DCL and contractual claims for the recovery of distributions be preserved, but only as limited by \u00a7 508 (c)\u201d]; Williamson v Culbro Corp. Pension Fund, 41 AD3d 229 [1st Dept 2007], lv denied 10 NY3d 702 [2008] [holding the nearly identical statute of limitations governing limited partnerships (Partnership Law \u00a7 121-607) was intended to override the limitations statutes of all other applicable law, including that applicable to a claim of unjust enrichment].)*"], "id": "57ae0b45-7a0d-482a-9cc0-9c59329dab22", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cA Manager shall not be personally liable to the Company or its Members for damages for any breach of duty as a Manager, except for any matter in respect to which such Manager shall be liable by reason that, in addition to any and all other requirements for such liability, there shall have been a judgment or other final adjudication adverse to such Manager that establishes that such Manager\u2019s acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that such Manager personally gained in fact a financial profit or other advantage to which such Manager was not legally entitled or that with respect to a distribution the subject of Section 508 of the [ Company Law], such Manager\u2019s acts were not performed in accordance with Section 409 of the [Limited Liability Company Law].\u201d Limited Liability Company Law \u00a7 508 refers to limitations on distributions to members. Limited Liability Company Law \u00a7 409 (a) provides that \u201c[a] manager shall perform his or her duties as a manager, including his or her duties as a member of any class of managers, in good faith and with that degree of care that an ordinarily prudent person in a like position would use under similar circumstances.\u201d"], "id": "6dff5c37-be79-4740-b364-524a800a188d", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Instead, the State attempted to rely on the common-law principle allowing for a corporate officer to be held individually liable when he \"knowingly participates in tortious or fraudulent acts ... even though he performed the act as an agent of the corporation.\"3 See Nwokedi v. Unlimited Restoration Specialists, Inc., 428 S.W.3d 191, 201, 210 (Tex.App.-Houston [1st Dist.] 2014, pet. denied) (upholding individual liability for person who owned controlling interest in company where evidence showed that he participated in company's fraud by engaging in contract negotiations, informing representative which contract terms to modify, telling other company that it would be receiving checks from Travelers, and instructing Travelers to not issue check to other company); see also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984) (rejecting argument that employee cannot be held liable for tort committed in scope of employment and explaining that \"[a] corporation's employee is personally liable for tortious acts which he directs or participates in during his employment\"); Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 889 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (providing that \"[t]he purpose of individual liability in the corporate setting is to prevent an individual from using the corporate structure or agency law as a blanket to insulate himself from liability for his otherwise tortious conduct\"); Sanchez, 274 S.W.3d at 712 (explaining that \"the corporate veil is not required to be pierced\" \"to hold an agent individually liable for his tortious or fraudulent acts,\" distinguishing issue of individual liability from that of *338liability under alter ego, and stating that trial court erred by rendering summary judgment in favor of employee on non-contract claims on ground that plaintiffs were required to pierce corporate veil); Dixon v. State, 808 S.W.2d 721, 723-24 (Tex.App.-Austin 1991, writ dism'd w.o.j.) (affirming individual liability where corporate officer committed tort of conversion). Specifically, the State acknowledged that the structure of a company \"is intended to shield its members from the liabilities and obligations of the company,\"see Tex. Bus. Orgs.Code \u00a7 101.114, but the State urged that the \"statutory shield does not deflect the liability\" for the conduct at issue and was \"not required to be pierced.\""], "id": "45d0ab4f-007f-40c5-a7e2-f567a462a895", "sub_label": "US_Terminology"} {"obj_label": "LIMITED LIABILITY", "legal_topic": "Business Law", "masked_sentences": ["CHARLES LAM, INDIVIDUALLY AND No. 83908 DERIVATIVELY ON BEHALF OF TRAN ENTERPRISES, LLC, A NEVADA COMPANY, AND AS TRUSTEE OF THE NT FILE REVOCABLE LIVING TRUST DATED THE 15TH OF OCTOBER 2009, Appellant, vs. P. STERLING KERR, INDIVIDUALLY AND AS TRUSTEE OF THE NT LEGACY TRUST, DATED THE 15TH DAY OF OCTOBER 2009; NHU TRAN FOUNDATION, INC., A NEVADA NON- PROFIT CORPORATION; AND COURT APPOINTED RECEIVER, ROBERT ANSARA OF DUNHAM TRUST COMPANY, Respondents."], "id": "d89d553e-7b30-4cb3-95a0-a415f1694d3b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Lighthouse, as a company, is governed by the Limited Liability Company Law for its operation, conduct, duties, powers, and rights of its members. Throughout this statute the sections state: \u201cexcept as provided in the operating agreement\u201d or \u201cif the operating agreement does not so provide\u201d or \u201cunless otherwise provided in an operating agreement\u201d (see Limited Liability Company Law \u00a7\u00a7 401-704). These specific sections set forth default provisions governing limited liability companies. These default provisions establish the statutory terms imposed on a limited liability company for the operation of the business, the conduct of its affairs, and the rights, powers, and responsibilities of it members (id,.)."], "id": "728bcf42-77c1-48ba-93a5-9ca05efeaa0f", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201c(a) Subject to the provisions of this chapter, the members of a company shall adopt a written operating agreement that contains any provisions not inconsistent with law or its articles of organization relating to [i] the business of the limited liability company, [ii] the conduct of its affairs and [iii] the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents, as the case may be.\u201d (Limited Liability Company Law \u00a7 417 [a].) In the event that there is not a formal written \u201cOperating Agreement\u201d of the company, or such agreement does not address certain business matters, then there are numerous sections in the statute that set forth default provisions applicable to the limited liability company (see Limited Liability Company Law \u00a7\u00a7 401-704)."], "id": "cbd9f4a8-f021-43fe-83b8-bb2e82d634f1", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cThe LLC was designed as a hybrid of the corporate and limited partnership forms, offering the tax benefits and operating flexibility of a limited partnership with the protection of a corporation. See Weber v. King, 110 F. Supp. 2d 124, 131 (E.D.N.Y. 2000); see also N.Y. Practice \u00a7 1:2 (explaining that the NYLLCL drew upon the N.Y. Revised Limited Partnership Act and N.Y. Business Corporation Law)\u201d (Bischoff v Boar\u2019s Head Provisions Co., Inc., 436 F Supp 2d 626, 630 [SD NY 2006]). Significantly, a limited liability company is \u201can unincorporated organization of one or more persons having limited liability for the contractual obligations and other liabilities of the business\u201d *160(Limited Liability Company Law \u00a7 102 [m] [emphasis added]). A limited liability company is more akin to a partnership (see Partnership Law \u00a7\u00a7 2, 10) since both entities are \u201ccombination[s] of individuals, who can suffer injuries and do have spouses, households and relatives\u201d (Buckner v Motor Veh. Acc. Indem. Corp. at 214). Notably, in Matter of Aetna Cas. & Sur. Co. v Mantovani (240 AD2d 566 [1997], lv denied 90 NY2d 810 [1997]), an arbitration award in favor of a partner for underinsured motorist benefits under a business automobile policy issued to the partnership was upheld."], "id": "571ca4eb-548e-4771-8137-8976f31ae9d8", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In July 2008, Erik Ortega purchased assets from the bankruptcy estates of his parents, Jose Ortega (Case No. 06-03848-LA11) and Martha Elba Ortega (Case No. 06-03849-LA11). He bought 11 vehicles with a red color scheme labeled Border Cab, and 14 vehicles with a white color scheme labeled Calexico Taxi. From the mid-1980's to 2008, Jose Ortega was the sole proprietor and owner of Border Cab, and Martha Ortega was the sole proprietor and owner of Calexico Taxi. On January 1, 2009, Erik formed BTG as a corporation and employed Martha.4"], "id": "bfe0fd00-484b-40cb-814f-c32571e23bf3", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["It should be construed in the spirit with which it was framed. To invite capital, it offers the inducement of a on the part of the investor. And while its provisions should be rigorously invoked and applied in behalf of one who suffers by their violation, a wise discrimination should be exercised in their application to one who seeks to obtain an undue advantage thereby."], "id": "8645da22-9f4b-4304-ab7a-98549c8ed65a", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["BACKGROUND The Parties, the Participants, and the General Setting This appeal is by Matthew Sirott, M.D. and Robert Robles, M.D., derivatively on behalf of California Radiation Treatment Center, LLC (CRTC), (when referred to collectively, appellants). CRTC is a company that was founded in 2008 for the purpose of acquiring and operating radiation therapy equipment for lease to medical groups practicing medical and radiation oncology. It has an operating agreement that expires in 2028. CRTC has three members: Sirott, who owns 25 percent; Robles, who owns 25 percent;1 and East Bay Medical Oncology-Hematology Medical Associates, Inc. (usually Epic), which owns 50 percent. Sirott and Robles are also associated with a medical group known as Diablo Valley Oncology and Hematology Medical Group, Inc. (DVO). The managers of CRTC are Sirott and Bimal Patel, M.D., the latter of whom is President and CEO of Epic. CRTC leases a portion of the building at 400 Taylor Boulevard, Pleasant Hill. The building is owned by 400 Taylor Holdings, LLC, which in turn is owned by Sirott (25 percent), Robles (25 percent), and EBO Properties North, LLC (50 percent). The managers of 400 Taylor Holdings, LLC are Patel and Sirott. Patel is also the manager of EBO Properties North, LLC. CRTC owns radiation therapy equipment, specifically two Elekta Synergy linear accelerators (Linacs) that are installed in concrete vaults in the building at 400 Taylor Boulevard. The Epic physicians and the DVO physicians both use the CRTC facilities in treating their respective patients, subleasing the facilities for such use. Epic and DVO doctors bill and collect"], "id": "351c6578-e78c-49e0-88bc-b8036a88d198", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["In Chiu , the Supreme Court held that a defendant cannot be found guilty of first degree murder under the natural and probable consequences theory of accomplice liability. ( Chiu , supra , 59 Cal.4th p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.) However, the Supreme Court did not hold that an aider or abettor could never be convicted of murder; it simply for first degree premeditated murder to offenders whose convictions were based on direct aiding and abetting principles. ( Ibid. ) As for aiders and abettors convicted under the natural and probable consequences theory, the Court held that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder. ( Ibid. )"], "id": "b36cfaa4-a560-42a9-90ca-e5b99053e489", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Merchants relies on case law holding that a business automobile policy issued to a corporation does not provide uninsured motorist coverage to a family member of the sole shareholders of the corporation (Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211 [1985]; Gallaher v Republic Franklin Ins. Co., 70 AD3d 1359 [2010]; Siragusa v Granite State Ins. Co., 65 AD3d 1216 [2009]). This rule does not apply to companies to the extent that its members are \u201cnatural persons.\u201d"], "id": "a9330ed7-e016-46e2-96fb-4c702dc17a5a", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["*696CPLR 1603, entitled \"Burdens of proof\u2019, is also relevant to the issues here. It requires any person wishing to avoid the application of CPLR article 16, usually the plaintiff, to establish one or more of the exemptions enumerated in CPLR 1602 by a preponderance of the evidence. More importantly, a party seeking pursuant to CPLR article 16 has the burden of proving, also by a preponderance of the evidence, \"its equitable share of the total liability\u201d. In light of this burden of proof, the Appellate Division, Fourth Department, in the only appellate decision to address the questions at issue here, held that a party asserting CPLR article 16 as an affirmative defense must provide a responsive bill of particulars when served with a proper demand (see, Ryan v Beavers, 170 AD2d 1045, 1046). For the reasons that follow, I agree with the holding of the Fourth Department in Ryan."], "id": "852bd157-d380-4fb3-a648-4e632df14a34", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["*789\u201cformed for the purpose of engaging in any lawful act or activity for which companies may be formed under the [Limited Liability Company Law] and engaging in any and all activities necessary or incidental to the foregoing, including the ownership, management, leasing, [and] renting ... of [the] 363-367 Neptune Avenue [property].\u201d 363-367 Neptune Avenue, LLC also contends it is entitled to sell and vacate the premises pursuant to the Operating Agreement. 363-367 Neptune Avenue, LLC relies upon article XI, paragraph 11.2 of the Operating Agreement, entitled \u201cWinding Up,\u201d which provides that \u201cupon the dissolution of the Company the Manager(s) may, in the name of and for and on behalf of the Company . . . dispose of and convey the Company\u2019s property, discharge the Company\u2019s liabilities and distribute to the Members any remaining assets of the Company.\u201d 363-367 Neptune Avenue, LLC further points to article III, paragraph 3.4 of the Operating Agreement, which provides that \u201c[t]he Manager, with the prior written approval of a Majority Vote of all Members, shall have the right, to approve the leasing, renting, sale, change of use, ... or other disposition of all or part of the Real Property.\u201d"], "id": "67fd0c5a-7649-41d2-80d6-6d59c25c7012", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["According to section 702 of the Company Law, judicial dissolution of a limited liability company is only warranted when \u201cit is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.\u201d While this standard has never been construed in the case law, the court interprets it to mean that judicial dissolution will be ordered only where the complaining member can show that the business sought to be dissolved is unable to function as intended, or else that it is failing financially. Schindler has nowhere so much as alleged that Niche is unable to carry on its business in accordance with its articles of organization or operating agreement, or that there is any internal \u201cdeadlock\u201d impeding its smooth operation. In addition, the court has examined Niche\u2019s financial statement in camera, and it shows \u2014 as even Schindler admits \u2014 that Niche publishes *717three very successful magazines and is quite profitable.2 Niche and Hamptons, which Niche owns, are therefore flourishing, and both are being conducted in conformity with their articles of organization.3"], "id": "345e7c6a-46bc-40e2-ad8e-b3f1f171d6b0", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Since Tzolis, the Appellate Division has not addressed whether limitations on suing a company derivatively include a contemporaneous ownership requirement and/or the requirement for a demand upon the company. The court has discovered two trial court decisions of note on these issues. In Davis v Cornerstone Tel. Co., LLC (19 Misc 3d 1142[A], 2008 NY Slip Op 51141[U] [2008]), Justice Richard M. Platkin, the Presiding Justice of the Commercial Division in Albany County, concluded as follows: \u201cIn any event, standing to pursue a derivative claim on behalf of a corporation requires status as a shareholder, and standing to pursue a derivative claim on behalf of a limited liability company requires status as *541a member (Tzolis v Wolff, 10 NY3d 100 [2008]).\u201d (2008 NY Slip Op 51141[U], *11)."], "id": "bdaae9f7-9dff-4e82-994d-92b6919d8ee4", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["This case involves conflicting claims concerning a right of first refusal set forth in various deeds. Despite the fact that the plaintiffs agreed to the restriction in two deeds that granted a right of first refusal to each of the defendants, and thereafter expressly reaffirmed' that right by placing same in a quitclaim deed when transferring the property to a corporation, and after participating in a celebrity-studded publicity campaign to induce the defendants into waiving that right of first refusal, plaintiffs now assert that the right of first refusal held by the three answering defendants is contrary to the \u201cstranger to the deed\u201d rule and should be declared void and unenforceable. That single assertion, which is before the court, is apparently one of first impression."], "id": "5e3929fa-0c2b-40cf-afc6-4e28abd61f52", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["A corporate shareholder or member in a company may bring a derivative lawsuit on the company's behalf when the insiders who control the company refuse to do so. The shareholder or member bringing the derivative lawsuit is the plaintiff in name only because the lawsuit seeks redress for injury the company suffered and any recovery belongs to the company. Hence, although the company is named as a nominal defendant based on the insiders' refusal to bring the lawsuit on the company's behalf, the company is the true plaintiff. ( Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1003-1004, 84 Cal.Rptr.3d 642 ; see Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 489, 122 Cal.Rptr.3d 641 ( Blue Water ) [applying corporate derivative action principles to limited liability company].)"], "id": "7a1a1828-0621-4879-a96f-48b0e0661904", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Five years after Reynolds , in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, our Supreme Court revisited the issue of how to determine the responsible party for unpaid wages under section 1194. ( Martinez , at p. 42, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court again for section 1194 wage claims to the actual employer (not the employer's agent)-this time basing the decision on court deference to the IWC's interpretation of one of its own wage orders, No. 14-2001: Because \"an employee who sues to recover unpaid ... wages under section 1194 actually sues to enforce the applicable [IWC] wage order[,]\" courts should defer *476to the commission's wage orders' definition of \"employer.\" ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259.) In Martinez , the court first acknowledged that, in Reynolds it had \"looked to the common law rather than the applicable wage order to define employment in an action under section 1194 seeking to hold a corporation's directors and officers personally liable for its employees' unpaid overtime compensation.\" ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court then disapproved of its prior ruling, concluding that the applicable wage order, not the common law, \"properly defines the employment relationship ... under section 1194.\" ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; see id . at p. 50, fn. 12, 109 Cal.Rptr.3d 514, 231 P.3d 259 [ Reynolds \"spoke too broadly in concluding that the common law defines the employment relationship in actions under section 1194\"].)"], "id": "78080970-5fd9-4699-8acf-9cce3ff88a6b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["We construe these sections as requiring a company to include a statement of the amount of cash contributions made by each member and a statement of the agreed value of any other contribution made by each member in the written records of the company and that these records establish the allocation of a member's share of the profits and losses of the company. Because Sunesara did not introduce any records of the LLCs reflecting the contributions that he made to the LLCs, we conclude that he has presented no evidence that he is entitled to one-third of the profits of the LLCs under section 101.201."], "id": "68ffacba-50fa-46f1-a4da-fc757ff8fded", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["It must be conceded by all concerned that in effect, the Pivot Punch and Die Corporation is a close corporation and, being a close corporation, it is simply a partnership consisting of Mr. Kopczynski and Mr. King, clothed with the benefits peculiar *716to a corporation, , perpetuity and the like. It would be mere prolixity to substantiate such a conclusion by quoting decisions in this and other States. The United States Government, in its Technical Amendment Act of 1958 has acknowledged the kinship of a close corporation vis-\u00e1-vis a partnership by permitting, in a situation such as before this court, the stockholders to file and pay income taxes as though they were in fact partners. Obviously, the United States has concluded that a close corporation is in effect a partnership."], "id": "89d52234-681b-4ee4-b618-932f4fefd383", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["Burns requests that his motion \u201cserve as a cross claim\u201d against 2784 LLC for his legal fees and indemnification *296pursuant to article 4.7 of the operating agreement. Such a request is procedurally improper. Burns has not yet interposed an answer to plaintiffs\u2019 second amended complaint nor did he include a cross claim against 2784 LLC for indemnification in his answer to plaintiffs\u2019 first amended complaint. Moreover, there has been no final adjudication on the issue of whether Burns breached his duties under the operating agreement, and such a finding would defeat his claim for indemnification pursuant to Company Law \u00a7 420, which provides as follows:"], "id": "cb2d8bfb-4d0a-4942-9f57-7fe27a2a6037", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Inferentially however, the court did criticize the un imposed on the municipality in that case, and it would seem to be preferable to treat the town on a par with a private litigant in a like situation, by fixing an upper limit of liability so that the exemption created by section 162 of the Civil Practice Act does not become an intolerable burden."], "id": "5911ac39-a923-471a-8580-10d916d8dfd3", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cIn view of the provisions of the ATC Sales Agency Agreement, the court distinctly feels that defendant [airline] was most willing to accept all of the benefits under the agreement, including the promotion and sale of its transportation facilities, but was unwilling to accept any possible disadvantages which might arise. It called the travel agent under the agreement its agent; it clothed the agent with authority to issue tickets on its behalf, and made the agent its depository for the proceeds of ticket sales. It held itself out, for all intents and purposes, as the principal with whom the unwary customer was actually dealing. It cannot now retire behind a curtain of on the theory that one, such as Dallys [travel agency], was its own independent contractor and *888broker serving the interests only of itself and its customers when, in fact, such agent was serving the primary interests of the carrier involved.\u201d (Rappa, 87 Misc 2d at 763.) The court denied the airline\u2019s motion to dismiss the passenger\u2019s complaint and, on its own motion pursuant to CPLR 3212, entered summary judgment in favor of the passenger."], "id": "1ea9aa9e-6bb4-48b8-b878-04c7a7dd9a0c", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The basis for the claim that the policies are void is that \u201cthe New York LLCs do not engage in the practice of medicine\u201d and that pursuant to New York law \u201c companies are prohibited from engaging in the practice of medicine\u201d (complaint KK 7, 8). The complaint alleges that although Sagemark submitted applications which state that the Long Island and Queens LLCs provide \u201cmanagement and administrative\u201d services, Arch purported to issue \u201ca medical malpractice insurance policy.\u201d"], "id": "08ae5a92-ae78-450f-8a49-831f95f1e0e3", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The summons and complaint lists the plaintiffs residence as 8875 Aero Drive, Suite 200, San Diego, California and the complaint alleges that the plaintiff is a \u201cforeign entity.\u201d These facts would permit the complaint to be verified by an attorney as was done here (CPLR 3020 [d] [3]). Interestingly a search of the Department of State, Division of Corporations\u2019 records lists seven entities registered in New York containing the name \u201cMidland Funding\u201d including both Midland Funding LLC and Midland Funding of Delaware LLC, the two entities mentioned in this summons and complaint. The Division of Corporations\u2019 records shows both of these entities as an \u201cActive,\u201d \u201cForeign Company\u201d formed in \u201cDelaware.\u201d Both names were filed with the Department of State on the same date, January 22, 2008. The Web site maintained by the California Secretary of State discloses only \u201cMidland Funding LLC\u201d as an active entity. Its address is the one recited in the pleadings for the plaintiff."], "id": "616ede24-a537-4414-89c4-8705fcc51bad", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The clause that the company shall not be liable for any' loss or damage of any box, package, or thing, for over fifty dollars, unless the just and true value thereof is stated in the receipt, cannot, by any just construction of the whole instrument, be made to work by the mere neglect of the shipper to declare the value a On the part of the company when no liability outside of it exists. Until a liability is actually incurred the limitation clause remains a mere dormant stipulation."], "id": "b2b1f672-acf9-41e5-b78e-531f62a27901", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The facts established in this case do not support the defendant\u2019s allegation that the entity is fraudulently formed as outlined in Mallela {supra). However, neither the plaintiff nor Dr. Braver offer any rationale for failing to adhere to the requirements of the Company Law. Dr. Braver raises, through an affidavit in opposition, that he is being persecuted by the insurance companies, but fails to offer any other defense to the defendant\u2019s allegation of fraudulent formation. Dr. Braver had the opportunity to avail himself voluntarily of options to continue the entity through a valid transfer but failed to do so. Therefore, the plaintiff, while properly formed, in light of the suspension of its sole member is now required to dissolve and wind up its affairs. As such, it does not have standing to the continued maintenance of this action."], "id": "6cce636e-4ded-4121-90ed-29cf3ee12c09", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["A member may not institute or maintain a derivative proceeding unless: (1) the member: (A) was a member of the company at the time of the act or omission complained of; or (B) became a member by operation of law from a person that was a member at the time of the act or omission complained of; and (2) the member fairly and adequately represents the interests of the limited liability company in enforcing the right of the limited liability company.20 The Texas Supreme Court has described the analogous provision governing shareholder-derivative suits as \"statutory standing.\"21 Subsection (1) of the provision codifies or incorporates the so-called \"contemporaneous ownership\" requirement,22 which seeks to prevent subsequent *349purchasers of interests in an entity from speculating in litigation and purchasing grievances in order to sue the entity's governing body or officers.23"], "id": "610abe42-1c8a-4a70-bc12-9bcd32ca237b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Section 101 of the Domestic Relations Court Act, subdivision 4 of which is above quoted in full, consists of five subdivisions, together defining the support obligations of the several classes of legally chargeable respondents. Subdivision 1 deals with the *996liability of a husband for support of his wife and children; subdivision 2 deals with the liability of a mother for the support of her child if the father is dead or incapable of supporting it or cannot be found within the State; subdivision 3 defines the secondary liability of the grandparents of a grandchild under the age of seventeen years; subdivision 4, above quoted, deals with the liability of children, among other relatives, of a dependent adult who is a resident of the city of New York, unable to maintain himself and likely to become a public charge; and subdivision 5 deals with the of a stepparent."], "id": "fcf63c64-f419-459e-8304-ad8f27d94946", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["There is complete diversity because SDM and Drexel are not citizens of the same state. As a corporation, SDM takes on the citizenship of its members and submembers. See Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) (explaining that determining an LLC\u2019s citizenship requires drilling down \u201cthrough however many layers of partners or members there may be\u201d to evaluate the citizenship of each (internal quotation marks omitted)); cf. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 111 (Ambro, J., concurring) (\u201cThere is no good reason to treat LLCs differently from corporations for diversity-of-citizenship purposes.\u201d). Accounting for those members and submembers, SDM is a citizen of Delaware, Maryland, and California for purposes of the diversity statute.1 As a non-profit corporation, Drexel has citizenship for purposes of the diversity statute in the state of its incorporation and in the state of its principal place of business \u2013 Pennsylvania in both instances. See 28 U.S.C. \u00a7 1332(c)(1); see also Zambelli, 592 F.3d at 419. Without any overlap in the citizenship of SDM and Drexel, the complete diversity requirement is satisfied."], "id": "b262c351-0d83-41ae-a795-a5aaf26bc7f7", "sub_label": "US_Terminology"} {"obj_label": "Limited Liability", "legal_topic": "Business Law", "masked_sentences": ["The court believes that respondents are correct. Section 1002 (c) does not contain any language providing that the required meeting comes with greater attendant rights than any other meeting required by the Company Law. Therefore, section 407 (a) necessarily applies to meetings under section 1002 (c). Ergo, an LLC may enter into a merger agreement without a meeting if the requisite written consents are procured, as they were in this case."], "id": "e857f9b2-a6f0-48d2-9fa3-b46aef89fc7b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["The Workmen\u2019s Compensation Law imposes an absolute and upon an employer to make compensation payments to an injured employee, or in case of death, to dependents. It is no longer necessary to say, as a conciliatory phrase toward the acceptance of the principle of industrial compensation, that absolute liability is in lieu of liability, unlimited in amount under common-law principles of negligence. (Arizona Employers\u2019 Liability Cases, 250 U. S. 400; New York Central R. R. Co. v. White, 243 U. S. 188.) The statute fixes the amount of compensation to be paid, and neither employer nor employee-can deviate from the statutory provisions. No agreement to vary those provisions as between the two is valid; and the employer cannot in any way relieve himself from his obligation to make full payments. (Workmen\u2019s Compensation Law, \u00a7\u00a7 31, 32; Matter of Cretella v. New York Dock Co., 289 N. Y. 254; Matter of Renzo v. Reid Ice Cream Corp., 279 N. Y. 83; Surace v. Danna, 248 N. Y. 18.) The employer may, to be sure, find that he is not called upon to make these payments, either wholly or partially, by the fortuitous circumstance that injury to or death of an employee resulted from the negligence of a third person. In such a case he is not automatically relieved of his liability; that persists, and he merely benefits by the amount recovered against the third person by judgment or settlement, paying only the difference between that amount and the amount that would otherwise be payable by way of compensa*766tion; nothing, if there is no difference. Other than this the employer has no concern with the third party action and no interest in it except, of course, that where that action is settled by voluntary arrangement between employee and third party, he cannot be held to any deficiency unless he has consented to the settlement. (O\u2019Brien v. Lodi, supra; cf. Matter of Gallagher v. Carol Constr. Co., 272 N. Y. 127.) This requirement is to prevent imprudent settlements to the prejudice of the employer, to assure satisfactory settlement agreements and thereby minimize the amount of the deficiency. \u201c This provision of section 29 [requiring the employer\u2019s consent] is to protect the insurer as to the amount of the deficiency; it has no other purpose.\u201d (O\u2019Brien v. Lodi, 246 N. Y. 46, 51, supra.)"], "id": "ccfea95a-55af-4874-afe0-cb78440c4d3b", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Although the parties essentially concede that there is no authority directly addressing the appealability issue before us here, Ontiveros urges this court to follow Dickson v. Rehmke (2008) 164 Cal.App.4th 469, 78 Cal.Rptr.3d 874 ( Dickson ). Dickson involved a motion under the former section 17351 for *269buyout of another member's interest in a company.6 ( Dickson, supra, at p. 473, 78 Cal.Rptr.3d 874.) The trial court issued an alternative decree and the purchasing member made prompt payment per the decree, and the court entered judgment accordingly. The moving member appealed from the judgment, contending the trial court erred in valuing his interest in the company. ( Id . at p. 473, 78 Cal.Rptr.3d 874.) The purchasing member moved to dismiss the appeal on the ground that the notice of appeal was not timely filed after entry of the alternative decree. The appellate court agreed, holding that the appeal should have been taken from the alternative decree and dismissed the appeal. ( Ibid . )"], "id": "47581e27-f1f9-420f-b441-9dfa321c9a3e", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["Section 101.201 provides, \"The profits and losses of a company shall be allocated to each member of the company on the basis of the agreed value of the contributions made by each member, as stated in the company's records required under Section 101.501. \" Id. \u00a7 101.201 (West 2012) (emphasis added); id. \u00a7 101.203 (West 2012) (\"Distributions of cash and other assets of a limited liability company shall be made to each member of the company according to the agreed value of the member's contribution to the company as stated in the company's records required under Sections 3.151 and 101.501.\") (emphasis added). Section 3.151(a) provides that each filing entity, including limited liability companies, shall keep \"books and records of accounts,\" \"minutes of the proceedings of the owners or members,\" \"a current record of the name and mailing address of each owner or member of the filing entity,\" and \"other books and records as required by the title of [the Business Organizations Code] governing the entity.\" Id. \u00a7 3.151(a) (West 2012)."], "id": "a03aeb19-c2fa-4cb3-aee8-f97203168057", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["A company may serve as trustee in a deed of trust. See \u00a7 443.350.7 The role of the trustee is to attend the foreclosure sale and supervise its completion. See Citizens Bank of Edina v. W. Quincy Auto Auction, Inc. , 742 S.W.2d 161, 162-63 (Mo. banc 1987) (citing Bogert, The Law of Trusts and Trustees \u00a7 556 (rev. 1980) ); see also Petring v. Kuhs , 350 Mo. 1197, 171 S.W.2d 635, 637 (1943) (\"While the trustee need not actually cry the sale the rule in this state is that the trustee must be present during the crying of the sale, to observe the progress thereof, protect the interests of the parties concerned, to reject fraudulent bids made to frustrate the sale, and, if necessary, to adjourn the sale.\"). Because a limited liability company must act through agents, Sutherland , 348 S.W.3d at 92, when such an entity acts as trustee, an authorized individual of the limited liability company must attend the foreclosure sale and supervise its completion."], "id": "c8adf80b-9db0-489d-865f-0b7fb77225b6", "sub_label": "US_Terminology"} {"obj_label": "limited liability", "legal_topic": "Business Law", "masked_sentences": ["\u201cII OVERVIEW OF CPLR ARTICLE 16 \u201cCPLR article 16 was enacted in 1986 as part of a legislative package commonly known as the \u2018Toxic Torts\u2019 bill. The law significantly, albeit only partially, amends the rule of joint and several liability applied in New York for centuries. Under the joint and several rule, an injured claimant can obtain full compensation from any culpable tortfeasor named in the lawsuit with a sufficient \u2018deep *1001pocket\u2019. The deep pocket defendant, even if only slightly culpable, remains fully responsible for the shares attributable to all other joint tortfeasors, named or unnamed in the lawsuit. At common law, the defendant did not even have recourse against his joint tortfeasors, an inequity that has been addressed to some degree under the doctrine of contribution (see, Sommer v Federal Signal Corp., 79 NY2d 540, 555-557). The rules of contribution, codified under CPLR article 14, distribute the loss more equitably between the culpable parties, according to their relative degree of fault (CPLR 1402). However, the claimant\u2019s right to obtain full payment of a judgment against the solvent deep pocket defendant essentially remains unaffected under CPLR article 14 (see, CPLR 1404 [a]). In practice, even under CPLR article 14, defendants with marginal responsibility, such as a municipality, still must pay large judgments with no hope of obtaining reimbursement from more culpable, but less solvent, defendants. \u201cPublic calls for reform of the joint and several liability rule, and concerns about other issues affecting the liability insurance industry, were addressed by an Advisory Commission formed by the Governor. CPLR article 16 emerged as a modified version of the Advisory Commission\u2019s recommendation to make defendants severally liable for noneconomic loss (see, Governor\u2019s Mem approving L 1986, ch 682, 1986 NY Legis Ann, at 288-289). \u201cUnder CPLR 1601 (1), a defendant found 50% or less culpable is entitled to several liability status, and cannot be compelled to pay more than its equitable share of any judgment awarded to the claimant for noneconomic loss. Critically, the law now effectively puts the plaintiff in peril and makes it incumbent upon the plaintiff to join all culpable parties subject to the court\u2019s personal jurisdiction. This enhanced responsibility arises because the relative culpability of nonparties must now be considered by the trier of the facts in apportioning liability under CPLR 1601, unless the plaintiff is able to prove that he or she was unable, despite the exercise of due diligence, to obtain personal jurisdiction over the nonparty (see, Zakshevsky v City of New York, 149 Misc 2d 52). *1002\u201cThe consideration of a nonparty\u2019s culpability and the prospect that the most culpable tortfeasor is insolvent, could prevent a claimant from obtaining full compensation. This highlights the need for requiring the defendants to provide adequate notice of their claims pursuant to CPLR article 16. The due diligence issue itself may be complex, and should, if possible, be decided by the court in advance of trial (see, PJI 2:275 [1993 Supp]). \u201cCPLR 1603, entitled \u2018Burdens of proof, is also relevant to the issues here. It requires any person wishing to avoid the application of CPLR article 16, usually the plaintiff, to establish one or more of the exemptions enumerated in CPLR 1602 by a preponderance of the evidence. More importantly, a party seeking pursuant to CPLR article 16 has the burden of proving, also by a preponderance of the evidence, \u2018its equitable share of the total liability\u2019. In light of this burden of proof, the Appellate Division, Fourth Department, in the only appellate decision to address the questions at issue here, held that a party asserting CPLR article 16 as an affirmative defense must provide a responsive bill of particulars when served with a proper demand (see, Ryan v Beavers, 170 AD2d 1045, 1046). For the reasons that follow, I agree with the holding of the Fourth Department in Ryan. \u201cHI CPLR ARTICLE 16 SHOULD BE PLEADED AS AN AFFIRMATIVE DEFENSE \u201cAssertion of apportionment pursuant to CPLR article 16 is a defense similar to the comparative negligence defense that must be asserted under CPLR article 14-A. Under CPLR 1412, \u2018culpable conduct claimed in diminution of damages\u2019 attributable to the claimant must be pleaded as an affirmative defense and proved by the party asserting the defense. The pleading burden specified by CPLR 1412 is expressly incorporated into the noninclusive list of affirmative defenses that must be pleaded under CPLR 3018 (b). CPLR article 16 likewise imposes the burden of proof on the party seeking several liability status; as noted by one well-known commentator, it amounts to a defense that should be pleaded as such in the answer (see, Siegel, New York Practice, \u00a7 168 [D] [2d ed]). *1003\u201cThe enumerated list of affirmative defenses that must be pleaded under CPLR 3018 does not specify CPLR article 16 apportionment, but the list is not exhaustive. Imposing such a burden is consistent with the direction of CPLR 3018 (b) requiring a party to \u2018plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading\u2019. \u201cNew matter, even partial defenses such as evidence offered in mitigation of damages, should be pleaded in order to eliminate surprise and to permit the plaintiff to know what contentions will be inteijected at trial (see, 3 Weinstein-Korn-Miller, NY Civ Prac, 1111 3018.13, 3018.17). The assertion of a defense pursuant to CPLR article 16, particularly in a case such as this, where the respondents have sought to reserve the right to limit liability, in whole or in part, by proving the culpability of an unnamed joint tortfeasor, interjects new matter into the proceedings. Additionally, one or more of the named respondents may attempt to minimize their relative culpability by offering evidence based on a different theory or theories of liability than those presented by the plaintiff. The plaintiff should be alerted to such new matter by appropriate notice provided in the responsive pleadings, and if necessary, amplification by way of a bill of particulars.\u201d It is clear from Justice Ritter\u2019s excellent discussion of CPLR article 16 that the purpose it was enacted for was to remedy the problem of marginally liable defendants being fully liable to a plaintiff for all damages caused by the actions of codefendants or nonparties. CPLR article 16, therefore, addresses the apportioning of liability among codefendant and nonparties."], "id": "d66a9cf4-080c-4837-8088-51e85d2f70ea", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["*145In Wouk v Harewood the relevant standard form lease clause provides: \"it is expressly agreed by and between the parties hereto that in the event of a dispute * * * whether concerning the lease or otherwise, which * * * shall result in action at law * * * or a proceeding by one party against the other and whether the form of the claim advanced is either in the nature of a complaint or a counterclaim in the action or proceeding * * * Tenant agrees to and hereby does waive any rights he may have to a trial by jury.\u201d Other clauses provide for a unilateral tenant waiver of rights to \"notice\u201d, \"proceedings,\u201d of the landlord\u2019s right to re-enter and to possession; and barring interposing any setoff and counterclaims in nonpayment cases. The unilateral nature of the tenant\u2019s waiver of rights, clearly proscribed under law, marks the of the provisions on their face. In fact, according to the terms of this lease, the landlord has granted to itself a \"self-help\u201d right of eviction without any process of law whatsoever within the same provision as the tenant\u2019s jury trial waiver. By commencing this proceeding, it could be argued, the landlord has waived the right to assert the entire clause including tenant\u2019s jury trial waiver."], "id": "2cda24a6-4e8e-4c7f-a658-527ec5df7037", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff induced the defendant to sign the installment note by promising that he would be accepted into BNI\u2019s Eastchester Chapter. That promise was false and the transaction which induced defendant to sign the installment note was unconscionable (see, e.g., Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420, 424 [1987] [unconscionable bargain defined: \u201cThe concept has been employed primarily in the area of consumer protection, in an attempt to deal with the \u2018 \u201cnever-ending stream of consumer gypsters and fraudulent operators\u201d\u2019\u201d]; People v Two Wheel Corp., 71 NY2d 693 [1988] [doctrine of unconscionability]; Kugler v Romain, 58 NJ 522, 544, 279 A2d 640, 652 [1971] [\u201c must be equated with the concepts of deception, fraud, false pretense, misrepresentation * * * and the like\u201d])."], "id": "981e5cfb-bd1e-4f6f-b339-4e863a29d8f6", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["An unconscionable arbitration provision will not be enforced. Manfredi v. Blue Cross & Blue Shield of Kansas City , 340 S.W.3d 126, 132 (Mo. App. W.D. 2011). Procedural deals with the formalities of making a contract, while substantive unconscionability deals with the terms of the contract itself. State ex rel. Hewitt v. Kerr , 461 S.W.3d 798, 807 n.7 (Mo. banc 2015). Procedural unconscionability encompasses high pressure sales tactics, unreadable fine print, and misrepresentations among other unfair issues in the contract formation process. Id. Substantive unconscionability means an undue harshness in the contract terms. Id."], "id": "f799afca-6810-4a7a-90a9-fed26be75c93", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["A claim of procedural is judged by whether the party seeking to enforce the contract used high pressure tactics or deceptive language, and whether there was inequality of bargaining power between the parties. (Gillman v Chase Manhattan Bank, 73 NY2d 1 [1988].) Whether or not the plaintiff used high pressure tactics to force the defendant into this agreement is not at issue. Neither party found it necessary to describe the setting in which the agreement was consummated. Defendant\u2019s affidavit also does not support a claim that the contract used deceptive language or that there was inequality of bargaining power. Defendant merely states that he did not understand certain terms of the contract. He does not explain why these terms are deceptive, and he offers the court no explanation as to how the true meaning of these terms contributed to his default. Nor does the defendant argue that there was inequality of bargaining power between the parties. Unsolicited offers of credit are numerous in our society. It is unlikely that the defendant had no other choice but to enter into a credit agreement with the plaintiff."], "id": "671a267a-09ec-47df-92fa-573ce1638367", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["As support for her claim that Resolve gives Genworth an unfair preview of her evidence, Baxter relies upon Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 16 Cal.Rptr.3d 296, and Pokorny v. Quixtar, Inc. (9th Cir. 2010) 601 F.3d 987. In those cases, the arbitration agreement did not provide for a mediation conducted by a neutral third party mediator as a condition precedent to arbitration but, instead, required mediation to be conducted through the employer's internal processes. ( Nyulassy v. Lockheed Martin Corp. , at p. 1282, 16 Cal.Rptr.3d 296 ; Pokorny v. Quixtar, Inc. , at p. 999.) In addition, in both cases the obligation to pursue informal dispute procedures was not mutual but applied to the employee only. (Ibid. ) Here, by contrast, the requirement to pursue informal dispute resolution procedures is mutual and applies to Genworth as well as its employees. Further, the Resolve guidelines expressly provide for a neutral third party mediator who is mutually selected by both parties. Consequently, the cases relied upon by Baxter do not support her claim."], "id": "181e22ff-32a4-4873-92c9-a0ec6c1086eb", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["*7With respect to this court\u2019s subject matter jurisdiction, the law is clear that if a matter relates to the affairs of a decedent or the administration of an estate, the Surrogate\u2019s Court has jurisdiction (NY Const, art VI, \u00a7 12 [d]; Matter of Piccione, 57 NY2d 278). Furthermore, the proceedings enumerated in the SCPA are not exclusive, and a proceeding not specifically provided for in the SCPA can be commenced where the court has subject matter jurisdiction (SCPA 202). The Surrogate\u2019s Court can exercise the same powers the Supreme Court has with respect to matters within its subject matter jurisdiction (SCPA 209 [10]). It is also well settled that the question of interpretation and enforcement of a marital agreement as it affects a decedent\u2019s estate is clearly within the subject matter of the Surrogate\u2019s Court (Matter of Garofalo, 141 AD2d 899). In the instant matter, the surviving spouse seeks merely a legal determination that the marital agreements are unenforceable because of the abatement of the divorce action. This is not a request to vacate a prior order of the Supreme Court (CPLR 5015 [a]). Nor is this an action to vacate the separation agreements or stipulations on the grounds of fraud, duress, overreaching, or . No such factual allegations are made in this proceeding. Neither can this proceeding be classified as an impermissible appeal of the orders of the Supreme Court. Can there be any doubt that if the executor had commenced a discovery proceeding against the spouse for the enforcement of these agreements and return of these assets if she had received them as a joint tenant or tenant by the entirety, that this court would have subject matter jurisdiction over such a matter as relating to the affairs of the decedent? In a case cited by the estate, in its surreply affirmation, the First Department upheld the enforcement of a separation agreement and directed a surviving ex-wife to turn over pension plan benefits to the estate in a discovery proceeding brought under SCPA 2103 in the Surrogate\u2019s Court (Matter of Hayman--Chaffey, 267 AD2d 142, lv denied 94 NY2d 932). This proceeding by the spouse asking the court to declare the agreements void and ineffective as abated and to direct that all the funds held in United States Treasury bills be released to her as a joint tenant with right of survivorship is simply in the nature of a reverse discovery proceeding authorized by SCPA 2105 (Matter of Mittleman, 35 Misc 2d 848). Consequently, this court has subject matter jurisdiction of these issues that clearly relate to the decedent\u2019s affairs (SCPA 202)."], "id": "b2a84f13-3d68-4c6c-9624-49482bb0723a", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Third, the arbitration clause referred to the American Arbitration Association, but did not clearly state what rules would govern arbitration, nor was respondent provided with a copy of the governing rules. (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 245, 199 Cal.Rptr.3d 332 [level of oppression is increased when \"the employer not only fails to provide a copy of the governing rules, but also fails to clearly identify which rules will govern so the employee could locate and review them\"]; compare Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246, 200 Cal.Rptr.3d 7, 367 P.3d 6 [no increased showing of procedural where arbitration agreement set forth rules that would govern arbitration, but copy of rules was not provided].)"], "id": "3d8ef721-457f-4f45-8b92-ebca302d6f87", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The wife\u2019s thirteenth counterclaim, seeking declaratory judgment for recision of the entire separation agreement due to , is equally lacking in merit. A separation agreement \u201cwhich is fair on its face will be enforced according to its terms unless there is proof of . . . unconscionability.\u201d (Doukas v Doukas, 47 AD3d 753, 753-754 [2d Dept 2008].) An unconscionable agreement is one which"], "id": "b32cda03-d7c8-42a3-bf8b-215c8e8a2ab2", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The dominant belief of the laissez-faire system of late 18th and 19th century America was that parties were free to contract as they chose without interference by the courts, regardless of resulting harsh or oppressive terms. This almost sacred adherence to the concept of freedom of contract found its justification in the basic principle of contract law that one is bound by the writing one signs. Only recently has it been recognized that there can be no genuine assent where bargaining power is unequal and where often the only choice presented is \"take-it-or-leave-it.\u201d Today, the use of the form contract has become a necessary and economically advantageous component of the mass transaction. The code does not alter axiomatic contract principles but rather strengthens and transforms the outmoded concept of unrestrained freedom of contract to that of freedom of intended bargain. The doctrine *125of deals with the pathology of nonbargaining. \"There is no freedom of contract in the equal treatment of unequals.\u201d (Murray, p 28.) Underlying all contracts in such a system are the code\u2019s basic obligations of good faith and fair dealing. (Uniform Commercial Code, \u00a7\u00a7 1-203, 2-103.)"], "id": "b348c69b-89f3-4648-85a0-f38a50b75503", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["While no standards of are provided in section 235-c of the Real Property Law, it is basically a statutory codification of the common-law doctrine of unconscionability, which had previously been applied to contracts of sale by section 2-302 of the Uniform Commercial Code. (See Governor\u2019s Memorandum on approving L 1976, ch 828, NY Legis Ann, 1976, p 406; see, also, Tai On Luck Corp. v Cirota, 35 AD2d 380, app dsmd 29 NY2d 747; Seabrook v Commuter Housing Co., 72 Misc 2d 6, affd 79 Misc 2d 168.)"], "id": "df3d3937-9ed2-4aec-a4c9-3268922ebe2d", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Here, plaintiff did not argue or otherwise challenge the enforceability *164of the arbitration provisions. She acknowledged the court properly granted defendants' motion to compel arbitration and had issued a corresponding nonappealable order. And, her summary judgment opposition papers clearly stated: \"[Plaintiff] is not trying to claim that the arbitration clause was unconscionable when signed nor is she seeking to deprive [defendants] of their right to arbitration. Plaintiff is fine with either forum so long as she can proceed in one of them.\" The court, therefore, erred in focusing on unconscionability as the primary issue to be decided."], "id": "c8d4e8b2-b323-4a05-9606-10335b085b72", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["On this basis alone rescission of the contract between plaintiffs and defendant is justified. However, rescission may also be granted upon a showing of (see, James v SCS Bus. & Tech. Inst., NYLJ, Jan. 15, 1993, at 28, col 4, supra; Albert Merrill School v Godoy, 78 Misc 2d 647, supra; Educational Beneficial v Reynolds, 67 Misc 2d 739, supra) and/or misrepresentations which are deceptive or fraudulent in nature (see, James v SCS Bus. & Tech. Inst., supra; Albert Merrill School v Godoy, supra; Joyner v Albert Merrill School, 97 Misc 2d 568, supra; Paladino v Adelphi Univ., 89 AD2d 85, supra)."], "id": "51478cb3-8a77-44c9-84da-d0bfb264fdf4", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["\"There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or .\" ( Tiri, supra, 226 Cal.App.4th at p. 242, 171 Cal.Rptr.3d 621 ; see also Rent-A-Center, supra, 561 U.S. at pp. 68, 69, fn. 1, 130 S.Ct. 2772.) The \"clear and unmistakable\" test reflects a \"heightened standard of proof\" that reverses the typical presumption in favor of the arbitration of disputes. ( Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 787, 137 Cal.Rptr.3d 773 ( Ajamian ).)"], "id": "02d169a7-dc9a-4173-aa9d-e2910ac43163", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Winston cites no applicable authority holding that Armendariz has been invalidated on any ground other than that stated in Concepcion . Winston recently filed a supplemental brief regarding the United States Supreme Court decision in Epic Systems Corp. v. Lewis (2018) --- U.S. ----, 138 S.Ct. 1612, 200 L.Ed.2d 889, but that case concerned whether class and collective action waivers in arbitration agreements violated the National Labor Relations Act, and it did not mention Armendariz . Indeed, Epic Systems explicitly reaffirmed, like Concepcion before it, that the FAA does not preempt the invalidation of arbitration agreements by \" ' \"generally applicable contract defenses, such as fraud, duress, or .\" ' \" ( Epic Systems, at p. 1622 ; Concepcion , supra , 563 U.S. at p. 339, 131 S.Ct. 1740 ; see Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1150, 140 Cal.Rptr.3d 492 [concluding unconscionability analysis remains applicable to arbitration clauses in employment contracts post- Concepcion ].) Because Armendariz remains controlling law, we are bound by it. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)"], "id": "a93a5f8d-d66f-4c17-bad8-07ef27ed4ad9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Procedural arises in the making of the agreement, focusing on \"the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice.\" ( Ajamian , supra , 203 Cal.App.4th at p. 795, 137 Cal.Rptr.3d 773.) There is no question here that the delegation clause is part of a contract of adhesion, as it was drafted by Vivint Solar and presented to the Aanderuds on a take-it-or-leave-it basis. ( Armendariz, supra, 24 Cal.4th at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Moreover, Margaret was an unsophisticated party who was given little time to review the SPPA which, coupled with the \"arcane nature\" of the delegation clause, added to its oppression and surprise. ( Tiri , supra , 226 Cal.App.4th at p. 246, 171 Cal.Rptr.3d 621.)"], "id": "099cb3cf-831e-40de-88d2-813eb64d41ec", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In the instant action the court finds that plaintiffs have asserted the following cognizable causes of action against the defendant: (1) breach of contract; (2) rescission based upon (a) want of consideration, (b) failure of consideration, (c) , and (d) misrepresentations; (3) breach of fiduciary duty; (4) educational malpractice; and (5) violation of General *619Business Law \u00a7 349 (unfair and deceptive business practices). The defendant has asserted the defense of its Cancellation Policy and asserted a breach of contract against the plaintiffs."], "id": "b263a8e8-6cb7-4588-9296-938306bd0817", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["*934However, the courts have recognized exceptions to the general rule. For instance, legal fees have been granted as necessaries where the defendant takes affirmative action to change the matrimonial judgment (Gyory v Schaffer, 80 AD2d 871; Friou v Gentes, supra; Fox v Fox, 263 NY 68), or fails to obey the judgment (Goldberg v Keller, 236 App Div 541), or otherwise disregards the judgment (Cohen v Kosch, supra), or where a separation agreement itself is challenged due to fraud or (Goldman v Goldman, 132 Misc 2d 870, affd 124 AD2d 1079), or where the plaintiff takes affirmative action against the defendant to obtain relief not barred by a foreign judgment (Gutterman v Langerman, 2 AD2d 63, supra)."], "id": "796745b1-90ac-44f0-ab0e-71563be995d1", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["While the parties bleed their discussions of substantive and procedural together, it is helpful to distinguish the two types of unconscionability. Texas recognizes both procedural and substantively unconscionability as defense against contract enforcement. Delfingen US-Tex., L.P. v. Valenzuela , 407 S.W.3d 791, 797 (Tex.App.-El Paso 2013, no pet.). Substantive unconscionability refers to the inherent unfairness of a particular contract or provision; procedural unconscionability deals with the circumstances surrounding a contract's adoption. Id. \" 'Unconscionability' has no precise legal definition because it is not a concept but a determination to be made in light of a variety of factors.\" Id. at 798. In assessing whether a contract is unconscionable under the totality of the circumstances, we consider: (1) the \"entire atmosphere\" in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the \"non-bargaining ability\" of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable. Id. \"The grounds for substantive abuse must be sufficiently shocking or gross to compel the court to intercede, and the same is true for procedural abuse-the circumstances surrounding the negotiations must be shocking.\" Id."], "id": "ab698629-097d-4c51-96d9-fce4fad22463", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The application of the doctrine of has not been limited to sales contracts. \u201cAt first blush one might assume that the Uniform Commercial Code does not reach franchise or distributorship agreements * * * However, the courts have not been reluctant to enlarge the type of commercial transactions clearly encompassed within the spirit and intendment of the statute\u201d (Division of Triple T Serv. v Mobil Oil Corp., 60 Misc 2d 720, 727). Thus, the broad mantle of the Uniform Commercial Code has been to cover many and varied business transactions. See Industrialease & Automated Scientific Equip, v R.M.E. Enterprises (58 AD2d 482); Nu Dimensions Figure Salons v Becerra (73 Misc 2d 140); Albert Merrill School v Godoy (78 Misc 2d 647); Miner v Walden (101 Misc 2d 814), and Joyner v Albert Merrill School (97 Misc 2d 568, 574) wherein the court stated that \u201cThe doctrine of caveat emptor has given way, at least in part, to the doctrine of caveat venditor in recognition of the fact that many consumers, by reason of their lack of education, lack of experience, and limited bargaining power, are not in equal bargaining positions with the vendors with whom they deal\u201d."], "id": "c979c593-bcbe-4502-ae9c-7fedafbe61cb", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Defendant has previously moved pursuant to order to show cause for an order (1) staying the entry of the judgment of divorce in the above-captioned matter, (2) permitting defendant to withdraw her affidavit of consent consenting to the divorce complaint of plaintiff, (3) permitting defendant to interpose an answer and counterclaim in the above-captioned action, and (4) awarding child support to defendant in the sum of $500 per week. The balance of those motions was held in abeyance until the rendering of a decision on the vacatur of the separation agreement. That issue was referred on consent to the Honorable Louise Gans, Judicial Hearing Officer (JHO), which resulted in a memorandum decision of JHO Gans, dated January 14, 2006, wherein it was determined that the separation agreement executed November 24, 2003 by plaintiff and November 27, 2003 by defendant is invalid and should be set aside as \u201cpermeated by overreaching, unfairness or .\u201d*"], "id": "029727f0-bef8-4c66-9950-5c8d4f26bb82", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Moreover, this case confirms my view, as set forth in Sonic II , that the unique analysis a majority of this court applies to compulsory arbitration of Berman claims is incompatible with, and therefore preempted by, the FAA for another reason: it \" ' \"stand[s] as an obstacle to the accomplishment and execution of [Congress's] full purposes and objectives \" ' in passing the FAA.\" ( Sonic II , supra , 57 Cal.4th at p. 1187, 163 Cal.Rptr.3d 269, 311 P.3d 184 (conc. & dis. opn. of Chin, J.).) In Italian Colors , supra , 570 U.S. at pages 237, 238 [133 S.Ct. 2304, 2311-2312], the high court rejected an approach that would \" 'require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means' \" and \" 'the size of their claims.' \" \"Such a preliminary litigating hurdle,\" the court explained, \"would undoubtedly destroy the prospect of speedy resolution that arbitration in general and bilateral arbitration in particular was meant to secure. The FAA does not *172sanction such a judicially created superstructure.\" ( Id. at p. 239 [133 S.Ct. at p. 2312 ].) As I explained in Sonic II , the *766unconscionability inquiry the Sonic II majority set forth - by requiring a \"minitrial\" in superior court \"on the comparative costs and benefits of arbitration and the Berman procedure for a particular employee\" and possible \"appellate review of the trial court's decision\" - creates \"the very type of 'superstructure' \" that, according to the high court, \"the FAA prohibits.\" ( Sonic II , at p. 1188, 163 Cal.Rptr.3d 269, 311 P.3d 184 (conc. & dis. opn. of Chin, J.).)"], "id": "56c4824e-6a0d-4060-bcf0-6fa0a3725b1d", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Where, as here, the judgment was entered on consent of the parties based upon their own voluntary agreement, with no indication of overreaching, unfairness or (cf. Christian v Christian, 42 NY2d 63, 71-72), and the remedy sought for its violation would not produce a windfall but rather would put the parties roughly in the same position they would be in had the judgment been *88obeyed, it should be immune from collateral attack on a motion for civil contempt."], "id": "b6337d7e-cf03-4a81-beb3-a6cde9bda374", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["At trial only the plaintiff testified as to the representations made by Mr. Kieffer during his 21/i-hour sales presentation. Predicated upon the above findings of fact, this court finds that plaintiff has asserted the following cognizable causes of action against the defendant: (1) rescission based upon a violation of Personal Property Law \u00a7 428 (Door-To-Door Sales Protection Act); (2) rescission based upon (a) want of consideration, (b) failure of consideration, (c) , and (d) misrepresentations; and (3) violation of General Business Law \u00a7 349 (deceptive and unfair business practices)."], "id": "e932b452-df16-48b8-9656-c5fba9791e0e", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": [". The court notes the recent decision, West 14th St. Commercial Corp. v 5 W. 14th Owners (\u2014 F Supp \u2014 [SDNY, Jan. 13, 1986, 85 Civ 5138 (WK)]). In that case, the court found the provision permitting termination inapplicable since the unit owners had an extensive history of negotiations involving the leasing rights retained by the developer. While, therefore, distinguishable from the case at bar, this court considers the precise purpose of this provision of the Condominium Act to eliminate the necessity for the unit owners to demonstrate the of the retained leasing right."], "id": "e7740df9-0220-420b-ac57-bdd015bb0eca", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The defendant now seeks an order in the nature of partial summary judgment \u201cdeclaring the Equitable Distribution Agreement dated February 21, 1992 void, ab initio, as a matter of law for: (a) lack of consideration and/or (b) .\u201d There has been no discovery in this case. Defendant asks this court to decide as a matter of law that the postnuptial agreement should be rescinded simply by reading the agreement itself. In fact, defendant\u2019s motion is supported only by her attorney\u2019s affirmation which is of no evidentiary value (Zucker-man v City of New York, 49 NY2d 557 [1980]). Defendant urges this court that the issue can be decided solely by examining the contract itself without having to consider the circumstances which existed at the time the agreement was entered into."], "id": "b09b4952-f19e-49f7-ad8b-f7960aa78771", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Brinkley argues that the trial court erred in admitting the declarations of Lisa Pruitt, a senior manager of client and support services at Monterey, and Chris Hughes, Monterey's president, proffered by Monterey in response to Brinkley's declarations regarding procedural . Brinkley also contends that the trial court erred in admitting the RIC, itself, in evidence, arguing that Monterey failed to properly authenticate it.7 Finally, she contends that even if the trial court properly admitted this evidence, the court erred in failing to hold an evidentiary hearing on these matters."], "id": "bb11002f-a086-426c-a432-f27e29ccaa6b", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Nevertheless \u2014 Goodie argues \u2014 recent decisions in Avenue Assoc. v Buxbaum, (83 Misc 2d 719) and Shapiro v Marstone Distrs. (40 AD2d 878) have stricken such jury lease waivers. However, neither decision is controlling in these circum*480stances. The court, itself, in the Avenue Assoc, case, expressly distinguishes its determination from commercial cases. Additionally, that decision is based upon findings in a residential lease of and compulsion not present here. Shapiro is also distinguishable from the case here, primarily, because it does not involve the carry-over of a jury lease into a month-to-month tenancy. Furthermore, in Shapiro, the Appellate Division allowed a guarantor\u2019s jury demand to stand despite a jury waiver in a lease because the guarantor (p 878) \"was neither the lessor nor lessee\u201d. Here, Goodie was the lessee in the agreement which contained the jury lease waiver."], "id": "7af32589-2cd2-425d-815b-5d225023c754", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["An arbitration agreement is unconscionable \"when the party opposing arbitration reasonably shows in law or equity that prohibitive costs are likely to render the arbitral forum inaccessible.\" (Mendez v. Palm Harbor Homes, Inc. (2002) 111 Wash.App. 446, 465, 45 P.3d 594.) Washington has \"adopted a burden-shifting analysis\" for considering challenges that an *344arbitration clause \"effectively denies [a plaintiff] the ability to vindicate her rights\" because of prohibitive costs. (Gandee v. LDL Freedom Enters. (2013) 176 Wash.2d 598, 604, 293 P.3d 1197 (Gandee).) The party opposing arbitration on substantive grounds must present evidence that arbitration would impose prohibitive costs. (Ibid.) \" '[A]n affidavit describing [the party's] personal finances as well as fee information obtained from the American Arbitration Association[ ]' can be sufficient to meet this burden. [Citation.] The party seeking arbitration can then present offsetting evidence as to the likelihood of bearing those costs.\" (Ibid., quoting and citing Adler, supra, 153 Wash.2d at p. 353, 103 P.3d 773.)"], "id": "a7d83a3c-3249-4255-a7ff-85176f66432a", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["That said, this is also not a case where Ramos did not understand the agreement, was unaware of the arbitration *700provision, or was tricked into signing the contract. As our Supreme Court explained in Baltazar , supra , 62 Cal.4th 1237, 200 Cal.Rptr.3d 7, 367 P.3d 6, though the \"adhesive nature of the employment contract requires us to be 'particularly attuned' to [a party's] claim of ,\" we do not subject employment contracts \"to the same degree of scrutiny as '[c]ontracts of adhesion that involve surprise or other sharp practices.' \" ( Id. at p. 1246, 200 Cal.Rptr.3d 7, 367 P.3d 6 ; see Farrar, supra, 9 Cal.App.5th at pp. 1268-1269, 215 Cal.Rptr.3d 785 [heightened scrutiny of arbitration provision not merited in absence of evidence of \" 'oppression' \" or \" 'sharp practices' \" on the part of the company]; Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 980-981, 104 Cal.Rptr.3d 341 [low level of procedural unconscionability existed where licensed attorney knowingly entered employment contract with arbitration clause in exchange for generous compensation package].) In sum, while we agree the contract was adhesive, we conclude the degree of procedural unconscionability is relatively minimal under the circumstances of this case."], "id": "ad60928e-24aa-43e4-9d13-2609874057d1", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["An unconscionable sales contract contains procedural ele*951merits involving \"the contract formation process, which in turn includes the use of high-pressure sales tactics, failure to disclose the terms of a contract, misrepresentation and fraud on the part of the seller, a refusal to bargain on certain critical terms, clauses hidden in fine print, and unequal bargaining power aggravated by the fact that the consumer in many cases cannot speak English * * * The term caveat emptor has been oroded by the code. No longer can a seller hide behind it when acting in an unconscionable manner.\u201d (Nu Dimensions Figure Salons v Becerra, 73 Misc 2d 140, 143-144; Frostifresh Corp. v Reynoso, 54 Misc 2d 119.) The contract must have mutuality of agreement and obligation; if lacking the contract is unenforceable. In making an agreement, the contracting parties create obligations as between themselves \u2014 the law of contracts generally contemplates that the parties will meet each other on a footing of social and approximate economic equality. The basic test of of a contract is whether under the circumstances existing at the time of the creation of the contract the parties were in equality to each other on all levels. The court can look into the contract to make its determination and ascertain how the contract was printed, whether both parties to the contract spoke English, how the contract was made and if the contract was one-sided. (Triple D & E v Van Buren, 72 Misc 2d 569, affd 42 AD2d 841; Division of Triple T Serv. v Mobil Oil Corp., 60 Misc 2d 720, affd 34 AD2d 618.)"], "id": "01102dfa-1735-4718-87b2-ede9fe74ee71", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Although we find a high degree of procedural , we conclude the Agreement is not substantively unconscionable under the standard of Sonic II , which requires enforcement of a Berman hearing waiver if the arbitration clause provides an \"accessible and affordable arbitral forum.\"8 ( Sonic II , supra , 57 Cal.4th at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.)"], "id": "3c5f8e09-8bcf-4d62-9ef5-520c0b2174d9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["We observe that the arbitrator has authority under Resolve to extend deadlines for good cause. However, Genworth cannot rely on that provision to excuse an otherwise substantively unconscionable limitations provision in the Resolve guidelines. A provision delegating authority to the arbitrator to resolve question of is itself unconscionable. ( Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 254, 190 Cal.Rptr.3d 159.) This principle extends to situations in which an arbitrator is purportedly given authority to enforce a longer limitations period when the period specified in the arbitration agreement is illegal or unconscionable. ( Ibid. )"], "id": "9ae9feae-ad8d-4082-b8ee-c23e5ea47bf9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["A party may assert, general contract defenses such as fraud to avoid enforcement of an arbitration agreement. (Southland Corp. v Keating, 465 US 1.) Under the FAA, reference is made to State law to determine whether generally applicable contract defenses such as fraud, duress, or are avail*417able to invalidate arbitration agreements. (See, Doctor\u2019s Assocs. v Casarotto, 517 US 681; Lozada v Baker Oldsmobile, 91 F Supp 2d 1087.) \u201cIt is well established under both CPLR 7503 and 9 USC \u00a7 4 that a party may resist enforcement of an agreement to arbitrate on any basis that could provide a defense to or grounds for the revocation of any contract, including fraud, unconscionability, duress, overreaching conduct, violation of public policy, or lack of contractual capacity.\u201d (Matter of Teleserve Sys. [MCI Telecommunications Corp.], 230 AD2d 585, 592.)"], "id": "cdc10601-29a6-4079-894a-6e91edfbd0b8", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The defense of is an affirmative one (CPLR 3018, subd [b]; see Rzepko v GIA Gem Trade Lab., 115 Misc 2d 755). Although defendant has failed to plead it, in light of the circumstances, the court deems the answer amended pursuant to CPLR 3025 (subd [b]). (See Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C3018:22, p 154; C3212:10, p 431.)"], "id": "953d823c-4519-4fc0-b961-6768b4b1fe38", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Even if this court were to hold that article 2 of the Uniform Commercial Code does not apply to the transaction herein, the validity of the warranty disclaimer would be still in issue since the common law of this jurisdiction has recognized both the implied warranties of quality (Laudisio v Amoco Oil Co., supra, p 248), and the doctrine of (Matter of Friedman, 64 AD2d 70, 84; Industralease Automated & Scientific Equip. Corp. v R.M.E. Enterprises, supra, p 488; Triple D & E v Van Buren, 72 Misc 2d 569, 577, affd sub nom. D & E Ind. Catering v Antinozzi, 42 AD2d 840; Tai On Luck Corp. v Cirota, 35 AD2d 380, app dsmd 29 NY2d 747; cf. Farnsworth, op. cit., \u00a7 4.27)."], "id": "615baa72-ba17-435b-bc47-a674272f1b9a", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["A lease is a contract, and unless fraud, collusion, mistake, accident or is shown, the lease provisions should be enforced as agreed to. Nevertheless, some courts have searched for a standard in exercising discretion to deny a prevailing party attorneys\u2019 fees without advancing a rationale consistent with contract law. The two relevant cases cited in Wells (supra) are examples of this."], "id": "b0593881-5710-49de-b4c5-a9cf2697b719", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The notion that an unconscionable bargain should not be given full enforcement is by no means novel. In Scott v. United States (79 U. S. [12 Wall] 443, 445), the Supreme Court stated: \u2018 \u2018 If a contract be unreasonable * * * but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to.\u201d When applying a statute, the courts should consider its objects and purposes and the evils sought to be remedied, and should construe it so as to effectuate the general purposes and suppress the mischief (Casey Development Corp. v. Montgomery County, 212 Md. 138). A statute may be extended by analogy, beyond its apparent boundaries, to include situations which would reasonably have been contemplated by the Legislature in light of the purposes giving impetus to the legislation. (3 Southerland Statutory Construction [3d ed., Horack], \u00a7 6005.) Thus, principles of the Uniform Negotiable Instruments Act have been extended beyond the letter of the statute to nonnegotiable instruments (Sheldon v. Blackman, 188 Wis. 4)'. The court reasoned that the Negotiable Instruments Law represented codification of the law on all instruments of debt. Similarly, an Illinois statute authorizing county election contests was held applicable to municipal elections (Harding v. Albert, 373 Ill. 94). A bankruptcy statute, giving a debt \u2018 due to the United States \u2019 \u2019 priority, was held to apply to a debt due on governmental corporations (Matter of Wilson, 23 F. Supp. 236). A Louisiana statute, imposing on public utilities \u201c corporations \u201d the burden of paying expenses, incurred in their investigation by the State\u2019s Public Service Commission, was extended by analogy to natural persons operating a public utility (Gremillion v. Louisiana Pub. Serv. Comm., 186 La. 295). Before the code was enacted, the court in the case of Campbell Soup Co. v. Wentz (172 F. 2d 80) refused to grant specific performance due to the of a provision in the contract. Extending the rules embodied in the code, the court in Vitex Mfg. Corp. v. Caribtex Corp. (377 F. 2d 795, 799) which was an action for damages resulting from a breach of contract to supply wool for processing said: \u2018 \u2018 While this contract is not controlled by the Code, the Code is persuasive here because it embodies the foremost modem legal thought concerning commercial transactions.\u201d In Hirtz Commercial Leasing Corp. v. Transportation Credit Clearing House (59 Misc 2d 226, 229, *10revd. on other grounds, 64 Mise 2d 910) where section 2-302 was applied to an equipment lease it was said by the court that \u2018\u2018 In view of the great volume of commercial transactions which are entered into by the device of a lease, rather than a sale, it would be anomalous if this large body of commercial transactions were subject to different rules of law than other commercial transactions which tend to the identical economic result. \u2019 \u2019 That provisions of uniform acts have been extended to transactions which are within their intent, although perhaps not within their words, is clear (Agar v. Orda, 264 N. Y. 248)."], "id": "fd4a0cec-25b6-4717-8d10-cedfcca1aefc", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The policy is one of adhesion. (See Star Credit Corp. v. Molina, 59 Misc 2d 290, Judge Younger ; Uniform Commercial Code, \u00a7 2-302 regarding .) Ambiguities should be resolved in favor of the insured as he is not in a position to bargain as to terms and must for his reasonable protection take the policy \u201c as is \u201d with its apparent coverage of the items of baggage. (See Bobrow v. United States Cas. Co., 231 App. Div. 91; Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574.) The insurer here had an insurable interest. (Friscia v. Safeguard Ins. Co., 57 Misc 2d 759.)"], "id": "d7a5225c-a8e4-4101-b118-0c12672c81eb", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of self-dealing fraud, or , a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith."], "id": "89b22b8e-18ef-4917-9e74-7f0c7992606b", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Kendall seeks to have a legal ruling issued on reasonableness or grounds, to tie the charges billed to those self-pay patients who lack any coverage, to reimbursement rates received from patients who do have coverage. However, to make a showing that the price term of the Agreement for Services is substantively unconscionable, Kendall must provide a context about the basis and justification for the price, which may include similar prices for similarly situated patients. (See Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1148, 208 Cal.Rptr.3d 303 ( Moran ).) \"In addition, 'courts consider not only the market price, but also the cost of the goods or services to the seller [citations], the inconvenience imposed on the seller [citation], and the true value of the product or service.' \" ( Ibid. )"], "id": "9a5e4450-878d-4c50-a3f7-88ac7d71e919", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In Morris v Capitol Furniture & Appliance Co. (280 A2d 775 [DC Ct App 1971]), it was explicitly held that price alone, absent one of the aggravating factors which indicates lack of meaningful choice, is an insufficient basis for a finding of . (Accord, Lundstrom v Radio Corp., 17 Utah 2d 114, 405 P2d 339 [1965]; see also, Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398.)"], "id": "59bcc3bb-cc40-4e17-a3d2-8e3e7abd80b9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Nevertheless, we tend to agree with the trial court's assessment that the Resolve arbitration timelines would prove to be unreasonably short in a more complex employment dispute such as this one. But we part ways with the *736trial court on the question of whether the Resolve guidelines provide a sufficient safety valve to permit the arbitrator to extend the timelines as necessary. In addressing whether the arbitrator has sufficient discretion to extend timelines, both Baxter and the trial court rely upon Fitz , supra , 118 Cal.App.4th at page 717, 13 Cal.Rptr.3d 88, in which the arbitrator's discretion to depart from default discovery limits was limited unless there was a \"compelling need\" for additional discovery and a fair hearing was \"impossible\" without such relief. Here, however, the arbitrator has discretion to extend the timelines merely upon a showing of good cause. Presuming, as we must, that the arbitrator will act reasonably in conformity with the law (see Dotson v. Amgen, Inc. , supra , 181 Cal.App.4th at p. 984, 104 Cal.Rptr.3d 341 ), we cannot say an arbitrator would feel compelled to deny a reasonable request to extend the Resolve arbitration timelines in a complex employment dispute. While the short default arbitration timelines give some cause for concern, we are not convinced they create more than a modest degree of in light of the arbitrator's discretion to extend them."], "id": "2c133679-ba13-4ae8-9a1c-084aa94db041", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Hogg contends that while the trial court did not actually strike her pleadings, the trial court's order excluding evidence of her conversations with her attorneys amounted to a de facto \"death penalty\" sanction that essentially prevented her from preventing her case. She further maintains the trial court erred by rendering a death penalty sanction as a first sanction because circumstances did not warrant a death penalty sanction. We agree that the trial court's sanction preventing Hogg from presenting evidence regarding her conversations with LCA is certainly not a trivial sanction given her defense to LCA's breach of contract claim. Nevertheless, although the discovery sanction hobbled Hogg's ability to present her unconscionability argument-in particular her procedural unconscionability argument, which largely hinges on the content of the conversations she had with her attorneys, the sanction did not rise to the level of a death penalty sanction as a technical matter because it did not adjudicate her claim without regard to the merits. Further, Hogg fails to direct this Court to any record evidence showing that she attempted to establish that the order prevented her from presenting a case on the merits. Because of this, we cannot determine that the sanction rose to the level of a death penalty sanction warranting the heightened level of scrutiny. Revco, D.S., Inc., 873 S.W.2d at 396 (mere allegations that a sanction prevented presentment of case on the merits is insufficient; actual evidence of harm is required)."], "id": "2484d426-e88e-4a0c-baf5-50fe77f54f4a", "sub_label": "US_Terminology"} {"obj_label": "Unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Under the circumstances and conditions of this case, it cannot be said that the doctor and the patient bargained equally. \" has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases meaningfulness of the choice is negated by a gross inequality of bargaining power * * * Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? * * * But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable *819contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms.\u201d (Williams v Walker-Thomas Furniture Co., 350d 445, 449; Blake v Biscardi, 62 AD2d 975, supra.)"], "id": "d2cfb80a-5d6d-4101-a202-3d00376c5395", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Fifth, the party seeking to avoid the contract must establish both procedural and substantive , \"the former focusing on ' \"oppression\" ' or *144' \"surprise\" ' due to unequal bargaining power, the latter on ' \"overly harsh\" ' or ' \"one-sided\" ' results.\" ( Armendariz v. Foundation Health Psychcare Services , Inc. (2000) 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 ( Armendariz ).) Although both must be present, we have stated that \"they need not be present in the same degree. 'Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' [Citations.] In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.\" ( Ibid. )"], "id": "654f2384-e52e-4a1c-b995-282f264148b9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["One of the cases cited by defendant which held that a separation agreement was unconscionable as a matter of law is Tal v Tal (158 Misc 2d 703 [Sup Ct, Nassau County 1993]). However, in voiding the agreement in that case, Judge Segal must have had some uncontroverted proof of the circumstances surrounding the execution of the agreement before him because his decision was, \u201c[b]ased upon the respective financial circumstances of the parties at the time of the execution of the agreements, to wit: the husband being in full control of all marital assets and income and the wife having no assets or income; the fact that the husband\u2019s counsel prepared the agreements; that the wife had no counsel and was aiforded no financial disclosure, and the terms of the agreements themselves which give 100% of all marital assets to the husband\u201d (Tal v Tal, 158 Misc 2d 703, 710). The second case relied on by defendant in support of her contention that this court can decide the issue of solely by looking at the terms of the parties\u2019 agreement is Lyons v Lyons (289 AD2d 902 [3d Dept 2001]). Again, like in Tal, the Court in Lyons had the benefit of affirmations and pleadings which described the events surrounding the preparation and execution of the separation agreement and the parties\u2019 financial situation at that time."], "id": "522c3c12-3036-475d-942a-9dcf12320f40", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Indeed, the Rent-A-Center court expressly stated that \"[i]n some cases the claimed basis of invalidity for the contract as a whole will be much easier to establish than the same basis as applied only to the *96severable agreement to arbitrate.\" ( Rent-A-Center , supra , 561 U.S. at p. 71, 130 S.Ct. 2772, italics added.) And, after concluding that the plaintiff's challenge in that case was directed to the agreement as a whole rather than specifically at the delegation clause, the high court speculated: \"It may be that had Jackson challenged the delegation provision by arguing that these common [allegedly unconscionable] procedures as applied to the delegation provision rendered that provision unconscionable, the challenge should have been considered by the court. To make such a claim based on the discovery procedures, Jackson would have had to argue that the limitation upon the number of depositions causes the arbitration of his claim that the Agreement is unenforceable to be unconscionable. That would be, of course, a much more difficult argument to sustain than the argument that the same limitation renders arbitration of his factbound employment-discrimination claim unconscionable. Likewise, the unfairness of the fee-splitting arrangement may be more difficult to establish for the arbitration of enforceability than for arbitration of more complex and fact-related aspects of the alleged employment discrimination.\" ( Id. at pp. 72-74, 130 S.Ct. 2772.) Thus, Rent-A-Center , itself, makes clear \"that the focus of the court's attention must be on whether the particular challenge is directed at the delegation clause, not whether the same challenges are also directed at the agreement or agreements into which the delegation clause is embedded or nested.\" ( Nielsen , supra , 22 Cal.App.5th at p. 1111, 232 Cal.Rptr.3d 282.) Moreover, to reject a legitimate contractual challenge to a severed delegation clause merely because similar grounds are suggested as a basis for invalidating the related arbitration provision or entire contract is nonsensical and violates the FAA's mandate that courts \"must 'place[ ] arbitration agreements [such as delegation clauses] on an equal footing with other contracts.' \" ( Nielsen , at p. 1110, 232 Cal.Rptr.3d 282, quoting Rent-A-Center .) Thus, under the facts of this case, the trial court properly determined that it was the proper forum for determining arbitrability under the RPA.6 We therefore turn next to the merits of the court's arbitrability decision. *982C. The Delegation Clause and Arbitration Provision Are Not Enforceable"], "id": "f1b822a9-7616-4a4c-9715-a4967c76e272", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Lopez also raised the defense of in the trial court. Agreements to arbitrate disputes between employers and employees are generally enforceable under Texas law. In re Poly-America, L.P. , 262 S.W.3d 337, 348 (Tex. 2008). There is nothing per se unconscionable about an agreement to arbitrate employment disputes and Texas law has historically favored agreement to resolve such disputes. Id. But an arbitration agreement is invalid if it is unconscionable. See In re Palm Harbor Homes, Inc. , 195 S.W.3d 672, 677-79 (Tex. 2006) ; In re Halliburton , 80 S.W.3d at 572. Because the law favors arbitration, the party opposing arbitration bears the burden to prove unconscionability. See In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 756 (Tex. 2001)."], "id": "accb99dc-16ce-427c-bc12-12c7d8360652", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["**707In any event, contrary to what the majority suggests, our cases establish that prolixity itself is not problematic; for purposes of a procedural analysis, surprise \" ' \"occurs ... where the allegedly unconscionable provision is hidden within a prolix printed form.\" ' \" ( Pinnacle , supra , 55 Cal.4th at p. 247, 145 Cal.Rptr.3d 514, 282 P.3d 1217, italics added.) There is nothing hidden about the arbitration agreement in this case. It is not buried in a multipage document that addresses numerous other matters, but *746appears in a relatively short document that almost exclusively addresses arbitration. In a heading at the top of the agreement's first page, set apart from the body of the agreement, the word \"ARBITRATION\" appears in large, bolded, all caps type. In a stand-alone provision at the top of the second page, the agreement states, in large, all caps, italicized type, that Kho is \"AGREEING TO THIS BINDING ARBITRATION PROVISION.\" When Kho signed the arbitration agreement, he also signed a separate two-page agreement containing a stand-alone, bolded-type paragraph explaining that the parties understood and were voluntarily agreeing to resolve \"any disputes\" regarding Kho's employment \"exclusively in accordance with binding arbitration,\" and setting forth some of the features of the arbitration procedure, i.e., \"a retired California Superior Court Judge\" will conduct the arbitration and \"[t]he arbitration proceedings shall be governed by the Federal Arbitration Act, and carried out in conformity with the procedures of the California Arbitration Act.\" The separate agreement also expressly stated that Kho had executed or would \"execute a more comprehensive arbitration agreement with the Company.\" In finding surprise, the majority simply ignores these considerations, as well as precedent finding no surprise under analogous circumstances. ( Pinnacle , supra , 55 Cal.4th at p. 247, fn. 12, 145 Cal.Rptr.3d 514, 282 P.3d 1217 [in finding no surprise, citing fact that arbitration provisions \"appear in a separate article under a bold, capitalized, and underlined caption titled 'ARTICLE XVIII CONSTRUCTION DISPUTES' \"]; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737, 153 Cal.Rptr.3d 78 [no surprise where arbitration clause \"located at the top of the second page in a two-page document with the heading 'Arbitration' in boldfaced font\"]; *150Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1165, 22 Cal.Rptr.3d 189 [emphasizing that arbitration provision \"was printed on a separate page\" with \" 'Arbitration Addendum' at the top,\" and \"was signed separately\"].)"], "id": "695ebad6-e353-4690-8bd3-19a534e5f90e", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Although the Agreement states that respondent is an independent contractor, his administrative wage claim is based on the contention that he was misclassified as an independent contractor, and was instead an employee, entitled to certain protections under the Labor Code. Appellants devote much *209of their briefing to the argument that California law regarding in the employee/employer context is inapplicable here because respondent was an independent contractor. According to appellants, as an independent contractor, respondent falls somewhere between an employee and a consumer for purposes of determining unconscionability, and is not entitled to the level of protections given to employees under California law. (Compare Armendariz , supra , 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669 [addressing unconscionability in employment context] *843with Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 190 Cal.Rptr.3d 812, 353 P.3d 741 [addressing unconscionability in consumer context].)6 We disagree."], "id": "77938ab0-6eb9-41e1-bb15-41465e2b73f5", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["For this reason, the majority's assurance that an identical arbitration provision \"might pass muster under less coercive circumstances\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 697) rings hollow. Because of the economic pressures faced by *147prospective and existing employees, the majority's finding of will surely be the rule in the vast majority of cases in the employment context, regardless of the other circumstances the majority cites. In other words, with few exceptions, as to employees presented with a \"sign or you're unemployed\" choice, the ability to read, reflect, and understand the agreement does not make the situation *744\"less coercive\" in any meaningful sense. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 733-734, 447 P.3d at p. 696.) More broadly, because it would not be difficult for a court to find a \"relatively low degree of substantive\" unfairness in an adhesion contract (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693), the majority's new rule casts significant doubt on the enforceability of many contractual terms in the employment context, not just arbitration provisions."], "id": "2552c79d-ee51-437a-b8bf-571bbf09650b", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The doctrine of is relatively new to the law of landlord-tenant. Effective 1976, section 235-c of the Real Property Law, like the statutory warranty of habitability, attempts to place the tenant in legal parity with the landlord by recognizing that a residential lease is more akin to the purchase of shelter and services rather than the conveyance of a feudal estate, and that the law of sales, derived from contract principles, provides an analogy better suited than the outmoded law of property to determine the respective obligations of landlord and tenant. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, citing Green v Superior Ct., 10 Cal 3d 616, 626-627.)"], "id": "41b92817-08bf-432e-b001-f53f7e8c17b6", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In a previous decision in that case, Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 121 Cal.Rptr.3d 58, 247 P.3d 130 (Sonic I ), our Supreme Court had \"held as a categorical rule that it is contrary to public policy and unconscionable for an employer to require an employee, as a condition of employment, to waive the right to a Berman hearing.\" (Sonic II , supra , 57 Cal.4th at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The Sonic I court \"did not invalidate the arbitration agreement at issue,\" but instead \"held that if one of the parties is dissatisfied with the result of the Berman hearing, it [could] move to arbitrate the wage dispute consistent with the arbitration agreement, just as a dissatisfied party can obtain a trial in court without such an agreement.\" (Sonic II , at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The United States Supreme Court granted certiorari before vacating the judgment and remanding the case to the California Supreme Court for consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (Concepcion ), in which \"the high court clarified the limitations that the FAA imposes on a state's capacity to enforce its rules of on parties to arbitration agreements.\" (Sonic II , at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.)"], "id": "3f386cd8-5a8e-452f-a705-049b2167ba07", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["To the extent that Brinkley suggests that she did not have a meaningful choice with respect to the RIC on the ground that she \"never received a copy of the signed agreement from REIE,\" we find this contention to be without merit. The very first line of the document states: \"To print this document-right-click on your mouse and select print from the popup menu.\" Brinkley was provided the opportunity to print and retain (and review repeatedly) a copy of the RIC, with her e-signature, during this process. Given these circumstances, and the fact that Brinkley has not suggested that she was unable to print the document or did not have access to a printer, the fact that Brinkley was given the opportunity to print the document in this manner is *341sufficient to overcome Brinkley's contention that the RIC should be considered procedurally unconscionable because she did not receive a signed copy of it.11 *24Brinkley's contention that she was not provided with a copy of the assignment of the RIC between REIE and Monterey is of no significance for purposes of our procedural analysis. The RIC specifically informs consumers that the \"Seller may assign this Agreement to any third party without prior notice to you,\" and that \"[u]pon any such assignment, such third party will become the holder of this agreement and your creditor.\" Beyond this, the RIC even informs consumers that \"Seller intends to assign this agreement to Monterey Financial Services, [I]nc., 4095 Avenida de la Plata, Oceanside, CA 92056 ('Monterey'),\" and that \"[a]fter the assignment of this Agreement to Monterey, all questions concerning the terms of this Agreement or payments should be directed to Monterey at its address indicated above.\" The portion of the RIC that included signature lines related to an assignment of the contract was specifically marked \"TERMS CONTAINED IN THIS BOX ARE NOT PART OF THE BUYER'S AGREEMENT.\" In these circumstances, the fact that Brinkley was not provided a copy of the assignment between REIE and Monterey did not affect Brinkley's ability to have a meaningful choice with respect to entering into the RIC, nor did it in any way prejudice her ability to understand the terms of the agreement or have a meaningful opportunity to understand her rights and obligations."], "id": "fa0157c2-11da-4c71-bc16-3e8a187beedc", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Here, we have found that, in addition to at least a moderate level of procedural , the central purpose of the arbitration provision is to evade the statutory protections and limit the remedies available to respondent, as reflected in the numerous specific provisions that are substantively unconscionable. (See Armendariz , supra , 24 Cal.4th at p. 124, 99 Cal.Rptr.2d 745, 6 P.3d 669.) \"Such multiple defects indicate a systematic effort to impose arbitration\" on respondent \"as an inferior forum that works to [appellants'] advantage.\" ( Ibid . ) Thus, because there is no single provision that can be stricken to \"remove the unconscionable *849taint from the agreement,\" the trial court did not abuse its discretion when it found the arbitration clause could not be enforced. ( Id. at pp. 122, 124-125, 99 Cal.Rptr.2d 745, 6 P.3d 669.)14"], "id": "6ec86d1d-6afa-4890-9a75-8cf53ffc4ada", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Regarding the of the rent increase provisions in defendants' leases and the legality of the emergency rent stabilization agreements, the court ruled as follows: \"The Court finds that Defendants' rent increase provisions (including, but not limited to, annual increases, catch-up provision increases, and pass through cost provision increase) are not procedurally unconscionable. The Court finds the leases are lawful and not adhesion contracts. As to the lease provisions concerning the right of first refusal, release, and the arbitration provision, the Court finds these provisions violated the [MRL]. Those provisions are severed from the lease and amendments, and the remainder of the agreements are deemed to be enforceable as a matter of law.\""], "id": "c4c8f1f1-67ef-42d3-96f1-cf9633b635ef", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["A promise made with a preconceived and undisclosed intention of not performing it may be viewed as a misrepresentation of a present material fact sufficient to maintain a claim of fraud independent of a contract. (See Sabo v Delman, 3 NY2d 155 [1957]; Brown v Lockwood, 76 AD2d 721, 731-733 [2d Dept 1980].) The trial court in Cioffi-Petrakis cited to Sabo and explicitly based its decision on this principle of law. (E.C.-P. v P.P., 33 Misc 3d 1233[A], 2011 NY Slip Op 52221[U] [Sup Ct, Nassau County 2011].) The court did not change or extend the principles of law under which marital agreements are typically analyzed: and overreaching. Indeed, the trial court and the Appellate Division previously rejected a challenge to the Cioffi-Petrakis agreement on such grounds. (See Cioffi-Petrakis v Petrakis, 72 AD3d 868 [2d Dept 2010].)"], "id": "3d84c0f3-e848-4588-8017-1e5ed3bfad37", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["\u201cThe concept of . . . does not create a new cause of action to recover damages . . . but, rather, provides a defense for a party opposing enforcement of a contract or a cause of action for rescission of a contract. Thus, the plaintiffs\u2019 causes of action founded upon unconscionability do not set forth cognizable claims and should have been dismissed.\u201d (Bevilacque v Ford Motor Co., 125 AD2d 516, 519 [2d Dept 1986]; see also Lewis v Hertz Corp., 181 AD2d 493, 495 [1st Dept 1992].) The eleventh cause of action is thus dismissed."], "id": "84076981-0dff-45bc-b3da-566c658f3ea3", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["This requirement applies only to an arbitration clause contained in a contract of adhesion. While we find it unnecessary to review the procedural of Kho's execution of the Agreement, we have no doubt that the Agreement was a contract of adhesion, given the circumstances of its execution. (See Sonic II, supra, 57 Cal.4th at p. 1133, 163 Cal.Rptr.3d 269, 311 P.3d 184 [a contract of adhesion is drafted by a party of superior bargaining strength and gives to the other party only the opportunity to adhere to the contract or reject it].)"], "id": "a436d9ac-4e46-4c9c-b77b-5d728ffd6b36", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The dissent's primary objection is that our analysis evinces hostility to arbitration, discriminates against arbitration, or improperly prefers a nonarbitral forum. (Dis. opn., post , 251 Cal.Rptr.3d at pp. 762-763, 447 P.3d at pp. 720-722.) Yet arbitration is premised on the parties' mutual consent, not coercion (see Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. , supra , 559 U.S. at p. 681, 130 S.Ct. 1758 ), and the manner of the agreement's imposition here raises serious concerns on that score. Moreover, we have repeatedly stressed that the substantive of an arbitration agreement \"is viewed in the context of the rights and remedies that otherwise would have been available to the parties.\" ( Sanchez , supra , 61 Cal.4th at p. 922, 190 Cal.Rptr.3d 812, 353 P.3d 741, citing Sonic II , supra , 57 Cal.4th at pp. 1146-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The dissent supports its claim with repeated quotations to our observations about civil litigation , not the arbitral process under review. The argument is thus premised on a false equivalence between the system of civil litigation and the complex arbitral procedure *736adopted in this case, which features few, if any, of the benefits typically associated with arbitration and regarded as fundamental. (See Concepcion , supra , 563 U.S. at pp. 344-345, 131 S.Ct. 1740.) While \"the Berman statutes promote the very objectives of 'informality,' 'lower costs,' 'greater efficiency and speed,' and use of 'expert adjudicators' that the high court has deemed 'fundamental attributes of arbitration,' \" the arbitration agreement here undermines those objectives by causing an \"increase in cost, procedural rigor, complexity, or formality.\" ( Sonic II , supra , 57 Cal.4th at p. 1149, 163 Cal.Rptr.3d 269, 311 P.3d 184, quoting Concepcion , supra , 563 U.S. at p. 348, 131 S.Ct. 1740.)"], "id": "8fdeffb9-d48c-42f4-8b1e-522341651bac", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["But the majority's effort is perhaps not as subtle or covert as it might at first appear. The high court, in discussing the \" 'great variety' of 'devices and formulas' \" that judges hostile to arbitration have used to invalidate arbitration agreements, has expressly \"not[ed] that California's courts have been more likely to hold contracts to arbitrate unconscionable than other contracts.\" ( *765Concepcion , supra , 563 U.S. at p. 342, 131 S.Ct. 1740.) Any reader of this court's opinions would surely be able to confirm the high court's observation. Any such reader would also be able to discern that the analysis and contract principles this court applies in arbitration cases - including **723the *171majority's \"comparative benefit\" rationale for invalidating the arbitration agreement here, its insistence that there be separate consideration for Kho's agreement to arbitrate claims covered by the Berman procedure, its failure to consider the parties' overall bargain and the detriment OTO suffered in determining what Kho received in return for his agreement to arbitrate, and its reliance on factors to find procedural unconscionability that our precedents hold are not factors - are indeed very different from the analysis and principles the court applies in nonarbitration cases."], "id": "8f659991-d9c4-40c5-93bd-2f5bcd08cfd3", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["themselves.\u2019 [Citation.] In other words, the more substantively oppressive the contract term, the less evidence of procedural is required to come to the conclusion that the term is unenforceable, and vice versa.\u201d (Armendariz, supra, 24 Cal.4th at p. 114.) Consistent with its position, cases on which American Surety relies in its supplemental briefing address circumstances where the courts found the particular matter of unconscionability in question to be a pure issue of law presented on undisputed facts. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 89, fn. 6 (Carmona) [whether a particular provision was unconscionable presented a question of law and the evidence in the case was not disputed]; D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 868 [regarding unconscionability argument, \u201c[w]e have the discretion to hear a newly raised question of law that can be decided on undisputed facts appearing in the record\u201d].) However, \u201cunconscionability is, in the absence of a material factual dispute, a question of law that may be raised for the first time on appeal.\u201d (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 686, citing Carmona, supra, 226 Cal.App.4th at p. 89, fn. 6, italics added.) Additionally, \u201c[p]rocedural unconscionability is \u2018inherently fact-specific.\u2019 \u201d (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 42.) American Surety in its substantive briefing on unconscionability asserts that \u201ceach of the elements of unconscionability is present.\u201d Among other things, in arguing unconscionability, American Surety raises the codefendants\u2019 weak bargaining power, the absence of opportunity for meaningful negotiation, \u201csetting of bail without reference to the defendant\u2019s financial abilities or his individual dangerousness,\u201d and additional issues addressed to codefendants\u2019 weak bargaining power, including dangers presented to defendants in being incarcerated in pretrial detention as opposed to being freed on bail and the effect of pretrial detention on defendants in terms of potential job loss, loss of"], "id": "fb97f1d2-2279-401e-854c-f821f73e95cf", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["On the procedural front, Hogg maintains that the Contingency Agreement should be reversed because as between her and her attorneys, her attorneys had more bargaining power, plus they had an ethical and fiduciary duty to advise her to do what was in her best interest. But unequal bargaining power between the parties, standing alone, does not make a contract procedurally unconscionable. Whataburger Rest., L.L.C. v. Cardwell , No. 08-13-00280-CV, 545 S.W.3d 73, 79-80, 2017 WL 3167487, at *4 (Tex.App.-El Paso July 26, 2017, no pet.) (analyzing substantive unconscionability in arbitration agreement context). As for any ethical considerations, the uncontroverted evidence shows her attorneys discharged their ethical duty to her by informing her of the conflict of interest and advising her to seek independent counsel, which she forewent."], "id": "162a383b-30a9-4bef-a49c-710ccc131e3a", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes -- but only those disputes -- that the parties have agreed to submit to arbitration.\u2019 \u201d (Sandoval-Ryan, supra, 58 Cal.App.5th at p. 223.) \u201cCourts presume that the parties intend courts, not arbitrators, to decide threshold issues of arbitrability. [Citation.] Accordingly, \u2018 \u201c[t]here are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or .\u201d [Citation.] The \u201cclear and unmistakable\u201d test reflects a \u201cheightened standard of proof\u201d that reverses the typical presumption in favor of the arbitration of disputes. [Citation.]\u2019 [Citation.] Where the agreement is silent or ambiguous on the question of who decides threshold arbitrability questions, the court and not the arbitrator should decide arbitrability so as not to force unwilling parties to arbitrate a matter they reasonably thought a judge, not an arbitrator, would decide.\u201d (Sandoval-Ryan, supra, 58 Cal.App.5th at p. 223.) \u201c[W]hen a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party\u2019s challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first"], "id": "5d3e0b1d-2cee-4fe1-b032-1ca269c416e2", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The trial court did not abuse its discretion in rendering the discovery sanction or excluding the evidence at issue; we must defer to the trial court's findings that Hogg told the truth about making recordings in the Ryburn email, and that her failure to produce those recordings was an attempt to resist discovery. Based on the record before the trial court, summary judgment was proper because Hogg could not establish a fact question on . We discern no reversible errors. The judgment of the trial court is affirmed."], "id": "5a2e21d3-fe17-44ed-a0fb-f71ac031f1c1", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["\" 'Both procedural and substantive must be present for the court to refuse to enforce a contract under the doctrine of unconscionability although \" 'they need not be present in the same degree.' \" [Citation.] Essentially the court applies a sliding scale to the determination: \" '[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.' \" ' \" ( Farrar, supra, 9 Cal.App.5th at p. 1265, 215 Cal.Rptr.3d 785.) Absent conflicting evidence, the trial court's unconscionability determination is a question of law subject to de novo review. ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ; Farrar , at p. 1265, 215 Cal.Rptr.3d 785.)"], "id": "1b51c86c-5b98-4de0-b333-b75bf0480133", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The \u201cPractice Commentary\u201d anent, subdivision (1) of section 2-302 of the Uniform Commercial Code, further indicates that *41\u201c is not a jury question but a question of law to be determined by the court alone.\u201d (See Buerger & O\u2019Connor, McKinney\u2019s Cons Laws of NY, Book 62\u00bd, Uniform Commercial Code, pp 192-193; emphasis added.) And, it is recalled that \u201c \u2018[e]very contract implies good faith and fair dealing between the parties\u2019 \u201d (O\u2019Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 54)."], "id": "dc1b1f52-37f1-4beb-bb62-23686da95ab5", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Standardized contracts are not, however, unenforceable merely because of the inequality of bargaining power of the parties, without additional proof of or violation of public policy. (Finkle & Ross v A.G. Becker Paribas, Inc., 622 F Supp 1505.) No challenge is made to ETS\u2019 contractual right to cancel any test score \"if ETS believes there is reason to question the score\u2019s validity\u201d (emphasis added). In this action Brian Dalton does not seek to avoid the terms of the contract, merely to enforce them."], "id": "1917753d-5916-4e66-a196-c2c4a05f0d7e", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["For the preceding reasons, I conclude that the arbitration provision here is not unusual and that its substance does not contribute to a finding that the \"degree of procedural unconscionability\" in this case was, as the majority asserts, \"unusually\" and \" 'extraordinarily high.' \" (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 719, 726, 447 P.3d at pp. 685, 690.) Supporting this conclusion is the fact that in cases involving a virtually identical arbitration provision, we did not find an element of surprise that increased the degree of procedural . ( Sonic II , supra , 57 Cal.4th at pp. 1125-1126, 163 Cal.Rptr.3d 269, 311 P.3d 184 ; Sonic I , supra , 51 Cal.4th at pp. 669-670, 121 Cal.Rptr.3d 58, 247 P.3d 130 ; Little , supra , 29 Cal.4th at pp. 1069-1070, 130 Cal.Rptr.2d 892, 63 P.3d 979.)"], "id": "2f2329ec-24cf-44bc-a26c-84fa4e1fecda", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["As a preliminary matter, appellants argue that certain provisions in the arbitration clause, including the bar to recovery of attorney fees and the Private Attorneys General Act (PAGA) waiver, cannot be found unconscionable because respondent has not attempted to pursue those claims or remedies in his administrative wage claim. The question in determining , however, does not involve comparing the terms of the arbitration clause with the non-arbitration claims respondent is pursuing. Rather, under Civil Code section 1670.5, subdivision (a), we review the arbitration clause for substantive unconscionability at the time the agreement was made. (See Sonic II , supra , 57 Cal.4th at p. 1134, 163 Cal.Rptr.3d 269, 311 P.3d 184 [\" 'In determining unconscionability, our inquiry is into whether a contract provision was \"unconscionable at the time it was made\" ' \"].)"], "id": "602eb1bb-5ae0-4668-9e86-12c74bfae4b8", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The burden of proving rests upon the party asserting it. ( Sanchez , supra , 61 Cal.4th at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ; Sonic II , supra , 57 Cal.4th at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) \"Where, as here, the evidence is not in conflict, we review the trial court's denial of arbitration de novo.\" ( Pinnacle , supra , 55 Cal.4th at p. 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217.)"], "id": "544ce685-29dd-4ece-bd4c-2030162e26b3", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["*157The majority's view that Kho received little or nothing \"in return\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698) for the Berman waiver rests on numerous other exaggerations, unproven or erroneous assumptions, miscalculations, *753and/or mischaracterizations regarding the value of the Berman procedures. First, as the majority acknowledges, when an employee files an administrative claim, \"[t]here is no [statutory] requirement that a Berman hearing be held\" (maj. opn., **713ante , 251 Cal.Rptr.3d at p. 737, 447 P.3d at p. 700) and the Labor Commissioner has \"discretion to ... take 'no further action ... on the complaint' \" (ibid ., quoting Lab. Code, \u00a7 98, subd. (a) ). Thus, when Kho signed the arbitration agreement - which is the relevant time for assessing ( Civ. Code, \u00a7 1670.5, subd. (a) ) - it was entirely speculative whether any of the Berman procedure's asserted benefits would be available to him, and the only thing he actually relinquished was the opportunity to ask the Labor Commissioner to exercise discretion to conduct legally nonbinding administrative proceedings on a claim."], "id": "e04d4e7a-11aa-4389-8da5-6038c450a61b", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In Concepcion , the United States Supreme Court cautioned that even when a court purports to apply a doctrine normally thought to be generally applicable, such as , it may not \" 'rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what ... the state legislature cannot.' [Citation.]\" ( Concepcion, supra , 563 U.S. at p. 341, 131 S.Ct. 1740.) According to our nation's high court, \"[a]n obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to provide for judicially monitored discovery. ... A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable *275companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory-restricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. [Citation.] And, the reasoning would continue, because such a rule applies the general principle of unconscionability or public-policy disapproval of exculpatory agreements, it is applicable to 'any' contract and thus preserved by \u00a7 2 of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration agreements ....\" ( Id . at pp. 341-342, 131 S.Ct. 1740.) As such, it would be preempted by the FAA."], "id": "5595c218-1d03-4abb-ac34-be8928e0ef14", "sub_label": "US_Terminology"} {"obj_label": "Unconscionability", "legal_topic": "Business Law", "masked_sentences": ["A similar situation was presented in United States Leasing Corp. v Franklin Plaza Apts. (65 Misc 2d 1082). The court refused to grant judgment for accelerated lease payments stating: \" arises from the inequity of compelling payment for equipment that cannot be used without the right to interpose a defense or set-off. From the point of view of the user it makes little difference that he is labeled a buyer - or lessee. In either case the agreement is unconscionable if the user must pay for something he cannot use without the right to assert a meritorious defense or set-off.\u201d (Supra, at 1086.) In Industralease Automated & Scientific Equip. Corp. v R. M. E. Enters. (58 AD2d 482, 489-490), the court stated:"], "id": "f9d87cfd-64a4-4531-a1ad-9c052c07c9cc", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["\" '[T]here are degrees of procedural . At one end of the spectrum are contracts that have been freely negotiated by roughly equal parties, in which there is no procedural unconscionability. ... Contracts of adhesion that involve surprise or other sharp practices lie on the other end of the spectrum. [Citation.] Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced [citation], contain a degree of procedural unconscionability even without any notable surprises, and \"bear within them the clear danger of oppression and overreaching.\" ' \" ( Baltazar , supra , 62 Cal.4th at p. 1244, 200 Cal.Rptr.3d 7, 367 P.3d 6.) \"[C]ourts must be 'particularly attuned' to this danger in the employment setting, where 'economic pressure exerted by employers on all but the most sought-after employees may be particularly acute.' \" ( Ibid. )"], "id": "ea177731-787b-4eeb-b965-06ce8ec883ce", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Because the Water Authority is entitled to judgment on its declaratory relief cause of action declaring the RSI clause invalid and unenforceable as an unconstitutional condition, we need not address other possible grounds for striking the offensive provision. We need not decide whether the provision, although admittedly included in the water conservation program contracts with the \"object, directly or indirectly\" of insulating Metropolitan from suits for the violation of law, does not run afoul of Civil Code section 1668 because it does not \"exempt\" it from liability,25 or whether the provision violates broader principles of and public policy."], "id": "89e14284-1082-4d37-8ca6-82ce91621ec9", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The lease agreement under discussion was entered into by commercial entities. While \u201ccourts have not been solicitous of businessmen in the name of unconscionability\u201d (White & Summers, op. cit., p 170), and will generally not *77invalidate an agreement in the name of in commercial settings (op. cit., p 172), it is nonetheless apparent that small businessmen can also be victimized by unconscionable practices. However, although some courts have refused to enforce certain clauses in commercial contexts even in the absence of procedural unconscionability (Fairfield Lease Corp. v Marsi Dress Corp., 60 Misc 2d 363), such cases are rare. (See State of New York v Wolowitz, supra, p 68.)"], "id": "54918531-85c6-46e0-886a-e41c7f50aedc", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["It is safe to say therefore that the old common-law rule has become substantially eroded in New York and that it may not be unreasonable to expect it to be abandoned entirely when it would be again considered by the Court of Appeals. This was the view espoused by Mendes & Mount in their appellate brief submitted on the appeal from the order of Justice Stecher granting summary judgment on the issue of base rent. They further argued that the of a lease provision purporting to relieve plaintiff of an obligation to mitigate permitted *488them to resist enforcement as against public policy. Although the rule of no duty to mitigate has strong precedential authority, I hold that under a common-law system such as ours, a litigant espousing a legal viewpoint not recognized as authoritative has the right to press his views to the highest court of this State (the Court of Appeals) and seek to have that court change the law, and also to seek to have an unconscionable contractual obligation held to be against public policy and therefore unenforceable."], "id": "c90bae0c-f358-443e-b71b-4c843b45a2c0", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The court will next address Damian\u2019s arguments that the insurance contract issued to Levy is void as a contract of adhesion and that the contract is oppressive and unconscionable. Initially, the court notes that Damian, who is not a party to the contract, is without standing to raise a claim of or a claim based upon the terms or bargaining conditions of the contract (see, County of Tioga v Solid Waste Indus., 178 AD2d 873 [1991]). Notwithstanding that Damian has no standing to raise these issues, upon the affidavits of Levy and Mr. Cooper, and the facts that NASW endorsed the policy and the sexual misconduct provision (see, American Home Assur. *783Co. v Oraker, Colo Dist Ct, Mar. 5, 1992, 90 CV6483, supra)-, the Superintendent of Insurance approved the policy and the sexual misconduct provision (see, American Home Assur. Co. v Stone, 61d 1321, supra) and New York does not require social workers and psychotherapists to purchase malpractice insurance (see, American Home Assur. Co. v Stone, 61d 1321, supra; McConaghy v RLI Ins. Co., 882 F Supp 540; American Home Assur. Co. v Smith, 218 Ga App 536, 462 SE2d 441; American Home Assur. Co. v Cohen, 124 Wash 2d 865, 881 P2d 1001, supra; Irvin v Drown, Ohio CP Ct, July 8, 1996, No. 94 CVA 97-4941, supra), the court concludes that there is no basis to find that the subject contract of insurance is a contract of adhesion or unconscionable. Further, the court notes that the fact that a provision happens to benefit a carrier in a particular instance is not a ground for a court to set aside a contract provision as unconscionable (see, Allstate Ins. Co. v Jacobs, 208 AD2d 578 [1994])."], "id": "61c6aae9-c6b5-4d09-a16e-a0b92e74c328", "sub_label": "US_Terminology"} {"obj_label": "Unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Notwithstanding the aforementioned holdings, the Appellate Division, in several cases, has held that a summary judgment motion should be denied where the mortgagor asserts a valid defense, including tender of the entire amount then due, the mortgagee\u2019s opportunistic bad faith, or an unconscionable act. (See e.g. Grand Pac. Fin. Corp. v 97-111 Hale, LLC, 123 AD3d 764 [2d Dept 2014] [fact issues existed as whether mortgagee acted in bad faith and engaged in oppressive and unconscionable conduct]; New York Guardian Mortgagee Corp. v Olexa, 176 AD2d at 402; European Am. Bank v Harper, 163 AD2d *405458, 461 [2d Dept 1990] [equitable remedy of foreclosure may be denied to prevent overreaching or other unconscionable conduct by mortgagee]; Di Matteo v North Tonawanda Auto Wash, 101 AD2d 692, 692 [4th Dept 1984] [\u201c on the part of the mortgagee, however, has long been recognized as a defense to enforcement of an acceleration provision\u201d], appeal dismissed 63 NY2d 675 [1984].)"], "id": "f0e2f503-9f6b-4620-9c08-a3e45b691a0a", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The best definition of the modern doctrine of appears in .the majority opinion in Williams v. Walker-Thomas Furniture Co. (350 F. 2d 445) written by Judge J. Skelly Weight before the Uniform Commercial Code was effective in Washington, D. C., but which has since been cited as setting' the guidelines even where the defense is raised under the Uniform Commercial Code. (Matter of State of New York v. ITM, 52 Misc 2d 39.) As Judge Weight stated, the definition includes \u201c an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.\u201d (Williams, supra, p. 449.)"], "id": "d11f20bf-295f-4350-ac83-a13379c9cc02", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Although the court in ITM, commenting on prices charged from 2 to 6 times cost, declared that \"these excessively high prices constituted 'unconscionable contractual provisions\u2019 within the meaning of subdivision 12 of section 63 of the Executive Law\u201d, it noted that \"even if the prices charged were not unconscionable per se, they were unconscionable within the context of this case\u201d (52 Misc 2d, supra, at 53). The case does not support the proposition that prices charged well above cost constitute per se. ITM (supra) was cited by Judge Wachtler in Jones v Star Credit Corp. (59 Misc 2d 189) for the proposition that a $1,234 price for a $300 freezer was unconscionable, but in that case there was clear overreaching by unscrupulous merchants preying on uneducated consumers and welfare recipients. While excessive price can be a signal, the touchstone of unconscionability is oppression."], "id": "894161da-7ddd-4851-b353-418e4eb48b32", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["While defendants\u2019 affidavit details the allegedly onerous nature of the agreement, or its substantive , there are no factual allegations to inform the court of the procedural aspect of that defense, such as whether there was a gross inequality of bargaining power, whether high pressure or deceptive practices were utilized and the like. On the other side of the coin, plaintiff, perhaps feeling no need to reply with respect to the unpleaded affirmative defense, has not attempted to rebut the evidence of substantive unconscionability by showing that the contractual clauses in issue have a legitimate commercial purpose. (See Epstein, Unconscionability: A Critical Reappraisal, 18 J Int L & Econ 293.)"], "id": "311e7b2e-721e-4429-a57e-64fea11cce1d", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": [". See, however, Long Is. Opthalmologic Assoc. v West Broadway Professional Bldg. (88 AD2d 585) which holds that section 235-c of the Real Property Law concerns itself only with procedural . The statute makes no reference to the distinction between substantive and procedural unconscionability, and is identical, except for its references to real property leases, to section 2-302 of the Uniform Commercial Code. Since the Real Property Law was intended to codify the protection afforded tenants by several cases analogizing to the Uniform Commercial Code (see Governor\u2019s Memorandum, NY Legis Ann, 1976, p 406), it seems unlikely that section 235-c of the Real Property Law was intended to operate less broadly than its statutory model. (See Meehan, Comments, McKinney\u2019s Forms, Real Property Practice [1984 Supp], \u00a7 6:12 [questioning the decision is Long Is. Opthalmologic Assoc. v West Broadway Professional Bldg., 88 AD2d 585, supra].)"], "id": "b6e82afd-acbf-408d-b814-ffffa2cf4df3", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In Gillman v Chase Manhattan Bank (73 NY2d 1 [1988]), it was said (at 10): \"An unconscionable contract has been defined as one which 'is so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforcible according to its literal terms\u2019 * * * A determination of generally requires a showing that the contract was both procedurally and substantively unconscionable when made \u2014 i.e., 'some showing of an \"absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party\u201d \u2019.\u201d The Court further observed that a contractual provision may be so \"outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone\u201d (at 12; see also, People v Two Wheel Corp., 71 NY2d 693 [1988]; Sablosky v Gordon Co., supra, at 138; Matter of Friedman, 64 AD2d 70, 84 [2d Dept 1978])."], "id": "e393cb93-5fbd-4ebf-8c05-5bc863331e36", "sub_label": "US_Terminology"} {"obj_label": "Unconscionability", "legal_topic": "Business Law", "masked_sentences": [" of an arbitration agreement may exist in one or both of two forms: (1) procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision, and (2) substantive unconscionability, which refers to the fairness of the arbitration provision itself. In re Halliburton , 80 S.W.3d at 571 ; Pilot Travel Centers, LLC v. McCray , 416 S.W.3d 168, 180 (Tex.App.-Dallas 2013, no pet.). Unconscionability has no precise legal definition because it is not a concept but a determination to be made in light of several factors. Delfingen , 407 S.W.3d at 798. In determining whether a contract is procedurally unconscionable, we must examine (1) the \"entire atmosphere\" in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the \"non-bargaining ability\" of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable. Delfingen , 407 S.W.3d at 798 ; Ski River Development, Inc. v. McCalla , 167 S.W.3d 121, 136 (Tex.App.-Waco 2005, pet. denied). The totality of the circumstances must be assessed *315as of the time the contract was formed. Delfingen , 407 S.W.3d at 798 ; Ski River , 167 S.W.3d at 136. The circumstances surrounding the negotiations must be sufficiently shocking to compel the court to intercede. Delfingen , 407 S.W.3d at 798 ; Ski River , 167 S.W.3d at 136. We apply the abuse of discretion standard articulated in Delfingen to this issue. 407 S.W.3d at 799-800 (concluding that unconscionability is a legal question which is reviewed de novo by the appellate court, but the court must defer to the trial court's fact findings if they are supported by the evidence)."], "id": "281969ae-77dd-4154-a63b-a66efd444813", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The majority's analysis of substantive is difficult to follow, largely due to its shifting approach to that issue. Initially, the majority seems to suggest that substantive unconscionability is irrelevant because there *152was \"an unusually high degree of **709procedural unconscionability\" here, and \"an employee may not be coerced or misled into ... trad[ing]\" the Berman process for \"a litigation-like arbitration procedure,\" \"[e]ven if\" that procedure \"may be an acceptable substitute for the Berman process in other circumstances.\" (Maj. opn., ante , 251 Cal.Rptr.3d at p. 719, 447 P.3d at p. 685.) Later, however, the majority expressly acknowledges that \"[b]oth procedural and substantive unconscionability must be shown for the [unconscionability] defense to be established\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 725, 447 P.3d at p. 690) and asserts that at least \"a relatively low degree of substantive unconscionability\" is required to void the agreement, notwithstanding \"the substantial procedural unconscionability here\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693). At one point, the majority indicates that \" 'the [substantive] unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks on a wage claimant that make the resolution of the wage dispute inaccessible and unaffordable,' thus effectively blocking every forum for redress including arbitration itself.\" (Maj. opn., ante , 251 Cal.Rptr.3d at p. 724, 447 P.3d at p. 689.) At another point, the majority indicates that the question is whether the arbitral scheme \"offer[s] employees an effective means to pursue claims for unpaid wages, and [does] not impose unfair costs or risks on them or erect other barriers to the vindication of their statutory rights.\" (Maj. opn., ante , 251 Cal.Rptr.3d at p. 732, 447 P.3d at p. 696.) At still another point, the majority states that the question is whether \"the bargain\" between the parties \"was sufficiently one-sided as to render the agreement unenforceable\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698), i.e., \"so unfairly one-sided that it should not be enforced\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 724, 447 P.3d at p. 688). Finally, shifting gears one last time, the majority declares in the final paragraph of its analysis that the substantively unconscionable \"question\" here \"[u]ltimately\" is whether the bargain was simply \"unfair.\" (Maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698.)"], "id": "56142cfa-09c2-407c-ada6-484d8f51bda6", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The amended complaint contains 12 causes of action. Three concern usury, and four concern Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC \u00a7 1962). In sum, the claims are: (1) to vacate the judgments by confession because of usury \u201cand other wrongful conduct\u201d; (2) to obtain a judgment against defendants because of usury, and to vacate the agreements; (3) to obtain a judgment based on the overcharge of interest; (4) damages for the violation of the Licensed Lender Law (Banking Law \u00a7 340); (5) damages arising under RICO, subsection (a); (6) damages arising under RICO, subsection (b); (7) damages arising under RICO, subsection (c); (8) damages arising under RICO, subsection (d); (9) to obtain a judgment rescinding the agreements; (10) damages for fraudulent inducement; (11) damages for ; and (12) damages for prima facie tort."], "id": "38a87b81-05cf-4646-9792-074ab7a71949", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In this case the failure of Winks to deliver the ordered furniture within one week and the failure to refund 100% of Walker\u2019s contract payment amounts to and misrepresentations (see, e.g., Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420, 424 [1987] [\"The concept has been employed primarily in the area of consumer protection, in an attempt to deal with the ' \"neverending stream of consumer gypsters and fraudulent operators\u201d \u2019 \u201d])."], "id": "1d9ab17c-c30b-4b04-a56d-a4a8a5c217d3", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["UCC 2-316 (2) permits the exclusion or modification of a warranty of fitness by written and conspicuous disclaimer of warranty. Such disclaimers have been given effect particularly where the transaction is between experienced businessmen (Carbo Indus. v Becker Chevrolet, 112 AD2d 336 [2d Dept 1985]; Commercial Credit v CYC Realty, supra; United States Leasing Corp. v Comerald Assocs., supra). However, UCC 2-302 which renders unenforceable unconscionable contract provisions has been applied to warranty exclusions. (Electronics Corp. of Am. v Lear Jet Corp., 55 Misc 2d 1066 [Sup Ct, NY County 1967].) Subdivision (2) of that statute provides that where reliance is placed upon the alleged of a contract provision the parties shall be afforded a reasonable opportunity to present relevant evidence."], "id": "f398b973-c84e-4faa-90c7-f868e7e5b066", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Section 2-302 of the Uniform Commercial Code, entitled \u201cUnconscionable Contract or Clause\u201d provides \u201c(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause * * * (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a *645reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.\u201d (Emphasis added to indicate that no claim of was made by plaintiff, but is considered as it \u201cappears to the court\u201d.)"], "id": "8cd7eb16-dce6-41c9-a273-a0b814b96d93", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["In Washington, procedural refers to the lack of meaningful choice, considering all the circumstances surrounding a transaction, including factors such as the manner in which the contract was entered, whether each party had a reasonable opportunity to understand the terms of the contract, and whether the important terms were hidden in fine print. ( *20Torgerson, supra, 166 Wash.2d at pp. 518-519, 210 P.3d 318.) The Washington Supreme Court has \"stressed that ' \"these three factors [should] not be applied mechanically without regard to whether in truth a meaningful choice existed.\" ' \" (Id. at p. 519, 210 P.3d 318, italics omitted.) In addition, the fact that an arbitration provision exists in a contract of adhesion does not necessarily render such a provision procedurally unconscionable. (Zuver v. Airtouch Communications, Inc. (2004) 153 Wash.2d 293, 304, 103 P.3d 753 (Zuver).)"], "id": "c36d4bd3-9e14-46cb-9c67-774498ca2495", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["If the lease is now viewed as a contract, then all the rules of law regarding contracts should apply, including the requirement that the injured party make a reasonable effort to mitigate damages. It is interesting to note, that, even though the plaintiff\u2019s attorney did not point out the clause in the lease, there is a clause, entitled, \"Remedies of Landlord,\u201d which give contractually to the landlord the same rights he is claiming under the common law. The clause is so unconscionable on its face that even without the recently enacted statute (L 1976, ch 828, eff July 26, 1976, and applicable to all leases, regardless of when executed), this court would have ruled it unenforceable. Governor Carey in his memorandum of approval, acknowledged that, \"The concept of is not new to the law of this state. The Uniform Commercial Code, at the time of its enactment in 1962, codified the doctrine as it related to the law of sales. It has, however, had limited applicability in landlord and tenant disputes until recently. The doctrine is only now beginning to be judicially"], "id": "f005562a-bed5-42f5-8465-275bf9b184b1", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The California Supreme Court has emphasized that, although some courts have used the phrase \"shock the conscience\" to describe the degree of one-sidedness required to establish substantive , \"an examination of the case law does not indicate that 'shock the conscience' is a different standard in practice than other formulations or that it is the one true, authoritative standard for substantive unconscionability, exclusive of all others.\" (Sonic-Calabasas A, Inc. v. Moreno, supra, 57 Cal.4th at p. 1159, 163 Cal.Rptr.3d 269, 311 P.3d 184.)"], "id": "eb15b952-b8c5-4b67-8575-ba82cb559a4e", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["As codified under the Uniform Commercial Code, the term \"unconscionability\u201d is not defined, nor are the factors or elements thereof enumerated. The official comment under section 2-302 explains that \"[t]he basic test is whether, in the light of the general commercial background and the commer*123cial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. * * * The principle is one of the prevention of oppression and unfair surprise\u201d. Commentators have elaborated on this broad explication to distinguish procedural , wherein evidence of the contract-formation process must be scrutinized, and substantive unconscionability, wherein substantive elements of unconscionability must be identified in the content of the contract per se, either as an overall \"elaborate lopsidedness\u201d of the contract in its entirety, or as an example of \"one-clause naughtiness\u201d. (Leif, Unconscionability and the Code \u2014 The Emperor\u2019s New Clause, 115 U of Pa L Rev 485, 512, 513; Murray, Unconscionability: Unconscionability, 31 U of Pitt L Rev 1.) Case law in this area has stressed various elements for determining the existence of unconscionability in a particular factual situation. High pressure sales tactics, failure to disclose terms of the contract, misrepresentation and fraud on the part of the seller (i.e., the party offering the contract, often on a take-it-or-leave-it basis; here, the landlord), refusal to bargain on certain crucial terms, clauses hidden in fine print and unequal bargaining power aggravated by the fact that the consumer, in many cases, cannot speak English, have been recognized as procedurally unconscionable. (Nu Dimension Figure Salons v Becerra, 73 Misc 2d 140; Brooklyn Union Gas Co. v Jimeniz, 82 Misc 2d 948.) Inflated prices, including grossly inadequate consideration given by the seller, unfair disclaimers of warranty and termination clauses have been deemed substantively unconscionable. (Industralease Automated & Scientific Equip. Corp. v R. M. E. Enterprises, 58 AD2d 482.) These examples are, by no mean, exhaustive. The concept of unconscionability must necessarily be applied flexibly depending on all the facts and circumstances of a given case. The weight given to each factor is as variable as the facts of each case. (Matter of Friedman, 64 AD2d 70.)"], "id": "6af82bb4-40ec-486d-8f7b-7c790b8c5026", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["Additionally, the court held the arbitration agreement was unenforceable as to Jasmine in her individual capacity due to . The minute order states: \"As to Jasmine Lopez's individual claims, the court finds the agreement is both procedurally and substantively unconscionable. Jasmine Lopez was not identified as a party to the agreement. In fact, no one was identified as a party to the agreement.[3 ] [Citation.] There was nothing to call out to Jasmine Lopez that she was signing an agreement to arbitrate her own claims. Jasmine Lopez was not shown to be a party to the agreement. Her *317signature block identifies her solely as resident representative/agent. And, the agreement itself was inserted, without heading or highlighting, into a provision otherwise directed to Irene Lopez's claims. As between Jasmine Lopez and Defendants, the agreement lacked mutuality.\""], "id": "ae45a62e-ea34-4cd3-8751-0130dd6eb734", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The appellant\u2019s assertion that it did not receive value for the forgiveness of debt because the respondent had no equity in the property is without merit. Consideration need not be coextensive or even proportionate, so long as \"the value * * * of the thing forborne or promised * * * is acceptable to the promisee\u201d (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 464). \"Absent a claim of fraud or , the adequacy of consideration is not a proper subject for judicial scrutiny\u201d (Spaulding v Benenati, 57 NY2d 418, 423). By failing to pay the first mortgage on the respondent\u2019s property pursuant to the contract, the respondent allowed the first mortgagee to foreclose on the property. The appellant is to blame for failing to protect its own interest in the property; it failed to pay the first mortgagee. Had it paid off the first mortgage, it would have received the value which it now claims that it did not receive."], "id": "f573932f-2e55-4920-bc56-5cf76e23fe13", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["*467In his affidavit plaintiff claims that he never read and was unaware of the arbitration provision contained in the U-4 form, nor was it brought to his attention. Further, he did not negotiate the terms or provisions contained in the form. However, the court here cannot void the arbitration clause for . By his own account, Singer is an experienced businessperson, as evidenced by both his years and level of compensation in the field of investment banking. He cannot be heard to say that he was coerced or defrauded into signing such a form."], "id": "8a2b0403-2363-42f0-9a5f-bb3f3aef3815", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["\u201c[T]he clear intention thus expressed by the parties was this: Even if the tenant shall be evicted; even if for his * * * rental he will receive no * * * use; even if the relationship of landlord and tenant shall have terminated; these facts, nevertheless, \u2018shall not be deemed to have absolved or discharged the tenant from any liability hereunder.\u2019 \u201d (International Pub. v Matchabelli, supra, p 454.) The lease in the present action does not contain the exact language as quoted from the lease in the International Pub. case, but paragraph 23 is a refinement of that principle. Two factors considered by the court are (1) that the liability of the tenant is limited to the actual damages sustained by the landlord and (2) that the payment of the damages has not been accelerated by the termination of such relationship. A similar clause was upheld in the 812 Park Ave. v Pescara case. The court addressed these two factors and found that their presence precluded a finding of . Further, the landlord has in fact sought to mitigate the damages of the tenants by reletting the premises at the highest available rental."], "id": "a4a1592e-9a7e-4b9e-a0eb-03f8f95719cb", "sub_label": "US_Terminology"} {"obj_label": "unconscionability", "legal_topic": "Business Law", "masked_sentences": ["The doctrine of \" ' \"refers to ' \"an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.\" ' \" ' \" ( Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243, 200 Cal.Rptr.3d 7, 367 P.3d 6 ( Baltazar ); Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1265, 215 Cal.Rptr.3d 785 ( Farrar ).) There is both a procedural and substantive aspect of unconscionability; the former focuses on \"oppression\" or \"surprise\" due to unequal bargaining power, the latter on \"overly harsh\" or \"one-sided\""], "id": "2bcba96e-117c-4d06-ad05-0f70611d0b22", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["*394Mr. Borstein originally sought recovery of legal fees though his retainer agreement provided, for a one-third contingency fee. In addition to the recovery of securities valued in excess of $700,000, Mr. Berstein\u2019s efforts have ultimately resulted in the payment of $85,000 in settlement. In determining the reasonable value of legal services, factors to be considered, in addition to the actual time and labor expended, are the difficulty of the case, the amount involved and the results obtained. (DR 2-106 [b] [22 NYCRR 1200.11 (b)].) Clearly, the services rendered and the result obtained, largely through the efforts of Leon Borstein (noting that no action whatsoever was taken to pursue this matter after he was relieved until he moved to vacate the stay pending arbitration), warrant approval of the fees agreed to by guardian McMickens."], "id": "25039071-01cb-454d-b99a-ed9de0e22860", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The Appellate Division of the Second Department determined that there are no damages in where plaintiff performed services without any expectation of or agreement of compensation. (Absher Constr. Corp. v Colin, 233 AD2d 279 [2d Dept 1996].) The Court found that the work performed was \u201cmerely preparatory to performance, and therefore could not constitute the basis for restitution based upon unjust enrichment.\u201d (Supra, at 280, citing Farash v Sykes Datatronics, supra.)"], "id": "be9aec63-b85d-491d-b854-f59e869175ff", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Now, in the present case, the defendant has not made default or refused to carry out the oral contract. But the plaintiff himself, by his complaint, instead of suing on the oral contract, has sued on the for his services. Thus the plaintiff is the first to repudiate the oral contract, which the defendant has never refused (so far as appears) to carry out, and which he now sets up in his answer. (See Galvin v. Prentice, ut supra, at p. 164, 165.) That this was the ground taken by the plaintiff appears not only by the pleadings, but by the language of the court in its charge, and by the case generally."], "id": "9fcef7f1-79ed-4179-a59e-7dbdf0fd4e4e", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Meanwhile, Mr. Starr continued handling the case and in October 2001, the case settled shortly before jury selection was *653to commence, for $135,000. Counsel for defendant then issued a check for that amount in the name of Mr. Starr and plaintiffs Rose and Simone Aiello. Counsel for defendant, Mr. Health, testified at the hearing that Mr. Starr was the only attorney he had dealt with during all the proceedings in the case. Mr. Starr has offered to pay Mr. Issler for the cost and disbursements incurred in the case. Mr. Starr, however, refuses to pay Mr. Issler according to the fee sharing agreement; he has offered to pay him on a basis, based on the time and effort each attorney spent in the case. Mr. Starr estimates that he performed 96% of the work in the case, and that Mr. Issler performed the remaining 4%. When Mr. Issler refused to accept less than 50% as stipulated in the fee sharing agreement, Mr. Starr instituted this petition for a determination of the fee dispute pursuant to Judiciary Law \u00a7 475."], "id": "2d2aa314-e763-4837-b2e7-4b917a83ecf6", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Respondent is not entitled to payment for work done on the theory of because he has failed to establish the actual repair work, if any, performed on the owner\u2019s car (Vehicle and Traffic Law \u00a7 398-d [1]). Furthermore, the Motor Vehicle Repair Shop Registration Act requires that all work done by a motor vehicle repair shop be recorded on an invoice describing all service work done and parts supplied. The invoice must clearly state whether the parts supplied were original equipment, nonoriginal equipment, or used replacement parts. The statute further requires that one copy of the invoice be given to the customer and one copy retained by the repair shop."], "id": "96e37ad8-7ee2-4e79-8b03-4c039bb34951", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In our opinion, the lower court did not improvidently exercise its discretion in awarding judgment in favor of the plaintiffs who substantially performed under the contract. The contract indicates that there was a clear meeting of the minds between the parties. Under the circumstances, even absent full compliance with General Business Law \u00a7 771, the subject contract was enforceable (see, Wowaka & Sons v Pardell, 242 AD2d 1; see also, Porter v Bryant, 256 AD2d 395). We note that had there been no signed written contract, the plaintiffs would have nevertheless been entitled to an award for completed work based on a theory of (see, Pepe v Tannenbaum, 279 AD2d 620; Frank v Feiss, 266 AD2d 825; William Conover, Inc. v Waldorf, 251 AD2d 727)."], "id": "c8c3703d-8ff1-4c6e-ba6c-f385634bdcfb", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff brought this action to recover a commission allegedly due and owing for his services in procuring a lessee for real property owned by defendants in the City of Oneonta, Otsego County. After defendants answered the complaint, which asserted a single cause of action sounding in breach of contract, plaintiff moved to compel compliance with certain discovery demands previously served on defendants. Thereafter, defendants moved for summary judgment; plaintiff opposed that motion and cross-moved for, inter alia, permission to amend the complaint to assert two additional causes of action, one seeking reformation predicated on mutual mistake and the second based upon ."], "id": "812e2a5b-39d3-428a-a747-fd081db20068", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The Supreme Court properly concluded that the landscaping *799services provided by the appellant fall within the meaning of a home improvement as defined by the Administrative Code \u00a7 21-11.1 (3). That section provides that a home improvement is an \"improvement or addition to any land\u201d and \"other improvements to structures or upon land.\u201d It is well established that an unlicensed home improvement contractor cannot recover for services rendered in contract or in (see, Richards Conditioning Corp. v Oleet, 21 NY2d 895; Bujas v Katz, 133 AD2d 730; Mortise v 55 Liberty Owners Corp., 102 AD2d 719, affd 63 NY2d 743; George Piersa, Inc. v Rosenthal, 72 AD2d 593; Segrete v Zimmerman, 67 AD2d 999). Accordingly, the appellant\u2019s lien was properly discharged (see, Mortise v 55 Liberty Owners Corp., supra). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur."], "id": "7e03f5f4-2451-40f3-8764-49c32b03dcfe", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In the affidavit of services by the attorneys for the attorney in fact, who are actually one and the same, there is a statement that \u201c our fee arrangement is for twenty (20%) per cent of the. net distribution to our clients \u201d. This will not be used by the court to determine the measure of compensation here (cf. Matter of Bargel, 5 Misc 2d 657, affd. 7 A D 2d 645; see, also, *1007Matter of Geiger, 12 Misc 2d 1043). The court fixes the compensation of the attorney in fact, in , in the sum of $500, plus disbursements as itemized."], "id": "624e27b3-bfb4-46df-a67e-027970550b72", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["However, the ordinary contract involving a business or commercial transaction between parties must be distinguished from one between an attorney and Ms client whereby the latter engages the legal services of the former. By reason of the relation of the trust and confidence implicit in the relationship of attorney and client the dealings of the attorney with his client must be on a plane above those prevailing on the market place. And because of this, the client is at liberty to discharge his attorney at any time with or without cause, leaving the compensation for the attorney\u2019s services then to be fixed on a basis."], "id": "ae8fac89-186b-4199-89ef-81fceb59d16e", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The conditions under which these moneys were advanced by the claimant throw grave doubts on his right to recover therefor. During the entire period covered by his account he was a member of decedent\u2019s family, provided with board, lodging and the advantages of a home with her. Where the relations existing between parties are such that it is evident that the acts performed were mere matters of gratuitous kindness and affection in consequence of reciprocal obligations and advantages, without expectation of pecuniary compensation, the law will not imply a promise to pay. A person cannot perform services, intending them to' he gratuitous and with a tacit understanding that no pecuniary charge is to be made, and afterwards recover on a for the same. Moore v. Moore, 3 Abb. Ct. App. Dec. 312; Matter of Stewart, 21 Misc. 412."], "id": "8a6ed2a3-1aa2-458c-9e3e-25bc2c0394a9", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["It seems to this court that section 38 of the Lien Law requires an itemization of materials and labor only in a case where the lien is based on . Where the work has been completed, and the contract was for an agreed price, nothing would be accomplished by requiring the lienor to furnish an itemization of materials furnished and labor performed in performance of the contract. In such a case an itemization would not accomplish the purpose of the section as stated in Callipari v. 516 East 11th St. Corp. (166 Misc. 79, 80): \u201cIt was intended by the statute that there be an itemization of the claim so that the owner or contractor might check against the claim of the lienor.\u201d Where, however, there is no agreed price, or the work on a contract for an agreed price is not completed for whatever reason, a lien may be filed only for the value of the materials furnished and labor performed (Lien Law, \u00a7 3). In such a case, the itemized statement under section 38 of the Lien Law serves a purpose, namely, to apprise the owner or contractor of the detail of the lienor\u2019s claim, and of the basis for the statement of value as set forth in the lien."], "id": "0296d2a2-e456-4212-91e1-ee21ee2c3ad8", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["\u2018\u2018 The general rules concerning breach of covenants of quiet enjoyment are quite clear. Whether the breach of the covenant is alleged as a defense to an action for rent due, or is used as a basis for an action for damages, the determining factor, with few exceptions, is whether the tenant has vacated the premises * * * It should be emphasized that the acts of the landlord must preclude the tenant from the beneficial enjoyment of the premises. Thus, in an action for rent, it is not sufficient for the tenant to defend on the theory that there was a diminution of the beneficial enjoyment of the property. (Edgerton v. Page, 20 N. Y. 281; Two Rector St. Corp. v. Bein, 226 App. Div. 73.) Furthermore, there must be an abandonment of the premises by the tenant. (Boreel v. Lawton, 90 N. Y. 293; Thomson-Houston Elec. Co. v. Durant Land Improvement Co., 144 N. Y. 34.) Lastly, the ouster by the landlord, or the justified abandonment of the premises, amounting to an eviction in law, must have occurred before the rent has become due. (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370; Sully v. Schmidt, 147 N. Y. 248.) If the tenant is ousted before the rent becomes due, the landlord may not maintain an action in . (Christopher v. Austin, 11 N. Y. 216.)"], "id": "549edaaa-1751-4691-aac6-5b1988148fd1", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["While this appeal was pending, defendants moved for leave to reargue the order denying their motion to dismiss. In November 2013, Supreme Court granted leave to reargue, determined that it had erred in its prior order by refusing to dismiss the causes *1291of action for dissolution and an accounting of the partnership, and dismissed those causes of action. Accordingly, defendants have received the relief requested with respect to these causes of action, and that part of their appeal has been rendered moot (see Njoku v City of New York, 280 AD2d 283 [2001]; see generally Matter of Neeley v Town of Colonie, 79 AD3d 1560, 1561 [2010]). As Supreme Court adhered to its original determination relative to the causes of action for imposition of a constructive trust and , however, that aspect of defendants\u2019 appeal is unaffected (see CPLR 5517 [a] [1])."], "id": "421b3059-679a-472c-983c-f6e624f10bed", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Granting for the development of the argument, that the Consul possessed authority to enter into a retainer agreement binding upon *883the distributees for the services of an attorney other than in a pending proceeding in this court, which on the facts of this case is most doubtful, the remuneration to which the latter would be entitled would depend wholly upon principles of . In the usual case this involves an evaluation based upon the size of the estate, the labor necessarily involved, and the professional standing of the person or persons performing the service. (Matter of Sharp, 140 Misc. 427, 433; Matter of Scher, 147 id. 791, 793.)"], "id": "34ff1dc0-73cb-4a95-bedc-cacea504e695", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["On the breach of contact claim, the trial court found the jury hopelessly deadlocked and declared a mistrial. At Tierney's request, the court decided that claim in a statement of decision. It found Tierney failed to perform his contractual obligations and was not entitled to specific performance. But the jury reached a verdict in Tierney's favor on the claim, *102awarding him $156,000 as the reasonable cost of work he did at Nasir's Mountain View gas station. The court vacated this verdict because Tierney had not produced a certificate of licensure to show his compliance with Business and Professions Code section 7031. The trial court thus entered judgment in favor of the Naz Parties and awarded them attorneys' fees, costs, and other expenses."], "id": "6e7f2362-4ad4-405f-a3d9-f75f1da618a1", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["*876The question as to whether or not the existence of an invalid (because of Personal Property Law, \u00a7 31) contract, and the claim having been tried on that theory, bars consideration of a , in a mild form, is presented in the instant case. Readily imaginable would be more extreme cases in which a determination absolutely adverse to a claimant would produce a shockingly unjust result. Imagine a case wherein, by means of emphatically expressed and frequently repeated promises, an unscrupulous and designing promisor had taken advantage of someone, more simple-minded and ignorant of the law, who had served him faithfully over a long period of time and at great expense to himself; or consider a case wherein the promisor, though having no cunning design and intending to act in good faith in his relation to the promisee, was overtaken by the grim reaper, as appears to have happened in the present case, before he got around to making his will, or having executed a will, upon his death, it turned out to be inadmissible to probate, or one lost or destroyed, or one suppressed by someone. Situations like any one of these indicate that, if a claimant is able to overcome the handicap of section 347 of the Civil Practice Act, though his claim in the full amount of what the alleged promised legacy, if it had been duly bequeathed, would have been is effectively barred by section 31 of the Personal Property Law, such a claim ought, nevertheless, to be recognized and allowed to some extent by way of an award of a quantum meruit. In my opinion the statute relied upon by the administrator does not necessarily compel its construction and application as being so absolute as to prohibit any consideration whatsoever of a quantum meruit as the preventative of an, otherwise, resulting unjust enrichment of others at the expense of a claimant. For a somewhat analogous case to this effect, see Hubbard v. Hubbard (151 App. Div. 174)."], "id": "d15ac26f-83b6-493a-8e59-a83a27a514d4", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Petitioner\u2019s belated attempt to recover in for services rendered must also be rejected. No proof has been offered as to the nature, duration or value of the services and the court cannot arbitrarily fix a figure in the absence of such proof. There is nothing to indicate that the not ungenerous support and allowance received by petitioner was not intended as compensation for those services."], "id": "949d2037-9d88-49dd-95f7-b1424e7617a1", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Where as here, there is a dispute as to the elements proving the existence of a contract, a plaintiff is not required to elect a remedy to recover but may proceed on theory of contract for the balance due or for the reasonable value of services rendered. The parties did not have a written contract and it is clear that plaintiff did not set forth in advance an hourly rate or per page charge for transcription. Plaintiff, however, did testify that she charged $40 hourly and that this job took four or five days. She further testified that the tapes were extremely difficult to transcribe, which was undisputed."], "id": "e52e9e55-8e57-478d-af61-4347f362b2e3", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["It must next be determined whether the defendant\u2019s porter was acting within the scope of his employment, apparent or authorized, in taking the plaintiffs bag from him for the purpose of carrying it into the train. The duties of a Pullman porter are necessarily incapable of exact definition, but they certainly embrace the duty to be as helpful to Pullman passengers as conditions permit. Assisting a passenger to get on the Pullman car is clearly within the scope of a porter\u2019s employment, and that duty carries as a necessary concomitant the duty to assist passengers with their baggage. The porter, Miles, testified that it was the custom and his duty to assist Pullman passengers on and off the cars with their baggage. No *455case has arisen in this State which passes upon this precise point, but analogous cases laying down a rule that is necessarily binding here are Holmes v. North German Lloyd S. S. Co. (184 N. Y. 280) and Hasbrouck v. New York Central & H. R. R. R. Co. (202 id. 363). In the Holmes case the defendant\u2019s baggage master took charge of the bags of a passenger of a steamboat as she was about to carry them onto the boat, assuring her that they would be carried to her room. The bags were never delivered to the plaintiff at her cabin or elsewhere. The Court of Appeals affirmed a judgment for the plaintiff for the value of the bags and their contents. In the Hasbrouck case the defendant\u2019s trainman took a passenger\u2019s bag into his custody in order to assist her in alighting from the train. When she alighted the bag was handed back to her by the trainman, but upon examination some time later she discovered that some of its contents were gone. She had not seen the bag between the time of its delivery to the trainman and its return to her. A judgment in her favor was affirmed by the Court of Appeals. If the employees involved in these cases acted within the scope of their employment, the defendant\u2019s porter must be held to have so acted here. This conclusion is strengthened by cases in other jurisdictions dealing with a railroad company\u2019s liability for the loss of articles or luggage intrusted to their porters or \u201c red caps \u201d as the passenger was about to board a train. In Franklin v. Southern Pacific Railway Co. (203 Cal. 680; 265 Pac. 936 [1928]) the plaintiff, about to board the defendant\u2019s train, handed her bag to the defendant\u2019s porter to carry it into the train. The bag was never returned to her. She brought a suit for the loss, and the Supreme Court of California affirmed a judgment in her favor. In Booker v. Pennsylvania Railroad Co. (82 Penn. Super. 588 [1924]) the plaintiff, about to board the defendant\u2019s train, handed his bag to a porter in the defendant\u2019s employ, to be brought onto the train. The bag was never delivered to the plaintiff. A judgment in the plaintiff\u2019s favor for the loss of the bag was upheld. In Great Western Railway Co. v. Bunch (L. R. 13 App. Cas. 31 [1888], affg. 17 Q. B. Div. 215 [1886]) the defendant\u2019s porter undertook to carry the plaintiff\u2019s baggage onto the defendant\u2019s train. The baggage was lost. It was held that the defendant was liable for its loss. In each of these cases it was urged, as does the defendant here, that the porter was the passenger\u2019s servant in helping him onto the train and that he was not the employee of the railroad company for that purpose. In each instance that argument was rejected. I find no authority in this State or elsewhere to support a different conclusion. Nor does it alter the liability of the defendant that the passenger tips the porter for so helping him. In the Booker Case *456(supra) the court said: \u201c It was not pretended that the railroad company advertised or informed the traveling public that it had engaged a number of trusted men whom it was prepared to furnish to passengers for employment by them as personal servants to assist in carrying their hand luggage for reasonable compensation. The money paid by the passenger was not compensation which the porter could have demanded or sued for in an action, but was rather a gratuity or tip which she was not bound to give and which the porter could not have recovered in an action of assumpsit if the passenger had not seen fit to give it. The fact that a traveler gives a tip to a porter for courteous service in the carriage of Jus hand luggage does not make the porter Ms servant for whose negligence he is responsible any more than a tip given to a bellboy in a hotel, to a waiter in a restaurant, or to a hatcheck employee, changes the status of their respective employment. Nor does the fact \u2014 if such is the case \u2014 that the railroad company does not pay its employees while they are \u2018 portering only/ but that their sole source of revenue in such circumstances is the tips which they receive from passengers, negative the continuance of their employment while acting as porters, or relieve the employer of responsibility for their acts witMn the scope of their employment. If a waiter employed by a hotel or restaurant agrees to work without compensation from Ms employer, relying on the tips which he anticipates he will receive from the customers, he is none the less in the employ of the hotel or restaurant, and does not become the servant for the time being of each and every customer upon whom he may wait, nor could he sue the customer for compensation upon a if no tip was forthcoming. It is well known that hatcheck employees are frequently not only not paid by the hotel or restaurant where they are employed, but that in some instances large sums of money are paid for the concession, but tMs does not make the hatcheck employee the servant of the patron, who may or may not give Mm a tip.\u201d (See, also, Southern Pacific Co. v. Maloney, 136 Fed. 171.)"], "id": "85546bd4-a3f8-4c6a-9ce0-8e3ac2140fb2", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Ordinarily the claim of a party closely related to the deceased will be closely scrutinized by the court, the presumption being that the services were rendered through love and affection and not for pay. The services of this claimant, however, are not such services as one would ordinarily expect to be performed, even by a blood relative, without proper remuneration and reimbursement. Claimant, according to the evidence herein, relied on the statements of the deceased to the effect that claimant would be compensated by a gift by will. The fact that there was a failure to so provide does not bar claimant from recovery. The agreement, once established, is enforcible. Recovery may be on the basis of . (Matter of Aldridge, 135 Misc. 442; Matter of Riccio, 24 A D 2d 483.)"], "id": "2595d894-b158-4d07-bf16-6df8c2dffcee", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The fee of the attorneys for the three legatees residing in the Soviet Union is hereby determined on a basis and not upon the alleged agreement concerning which no proof has been offered (Matter of Herz, 14 Misc 2d 1005; Surrogate\u2019s Ct. Act, \u00a7 231-b). The amount of their fee for legal services rendered is fixed in the sum of $175 to be apportioned as follows: $75 to be paid out of the share of Shandra Viktorovna Natalia, also known as Alexandra Viktorovna Torsky; $50 to be paid out of the share of Victor Kapitonovich Torsky, and $50 to be paid out of the share of Lydia Georgievna Kardinalovskaya."], "id": "d5410b25-e1f0-4e35-937d-df32c98a0bc6", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff, as owner of a business for the servicing of neon signs, entered into two contracts with the defendant whereby, for a stated monthly charge, he agreed to replace defective or broken neon tubes, and also to perform other maintenance services in connection with defendant\u2019s signs. Insofar as these contracts obligated plaintiff to replace parts which he had not manufactured or sold they are contracts of insurance, and are unenforcible since plaintiff was not licensed to do an insurance business. (Insurance Law, \u00a7\u00a7 40, 41; cf. Automobile Ins. Co. v. Barondess, 107 Misc. 513; 1 Richards on Insurance [5th ed.], \u00a7 7.) Plaintiff\u2019s obligation was not related to the quality or efficiency of an article made or sold by him (Ollendorff Watch Co. v. Pink, 279 N. Y. 32) but was the assumption of a fortuitous risk and constituted \u201c doing an insurance business \u2019 \u2019 as defined in section 41 of the said statute. .(See 1949 Atty. Gen. 153.) However, inasmuch as the contracts herein were merely malum prohibitum plaintiff should not \u25a0be precluded from prosecuting his claims in ."], "id": "b7d9a8f5-ce96-455c-ab0b-3fbf75ba6b42", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The attorney for the executors requests a fee of 40% of the recovery, which fee is to include his own legal services, the services of other counsel engaged to assist him and the services of the attorney in the test case. The court fixes the fee upon a basis which, under the circumstances, is found to be one third of the amount recovered."], "id": "26b31389-1d9b-4530-b71a-c081f0309778", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["*759Based upon the evidence adduced at trial, the court did find the necessary elements constituting a basis for recovery under a theory of : (1) an agreement to perform transcription services in good faith; (2) acceptance of the service; (3) a reasonable expectation for payment for services rendered; (4) reasonable value for services performed. (See Precision Founds. v Ives, 4 AD3d 589 [3d Dept 2004].)"], "id": "c9fb7a6c-52f0-4dec-9978-3f82cae2a269", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Claimant maintained that in accordance with the above-quoted paragraph 4 of the information for bidders, the New York State Thruway Authority could have charged the contractors for the engineering charges during the extensions granted. The failure to so charge, according to the claimant, constituted a breach of contract entitling it to recover on the basis of in the event the court determines that there is no basis for recovery pursuant to its agreements."], "id": "ea2e1377-9795-46d2-969d-aececbfd16b3", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The right of a substituted attorney to an immediate fixing of his fee, conditioned upon his being discharged \"without cause\u201d, is restated in Brill v Chien Yuan Kao (61 AD2d 1000, 1001, supra) as follows: \"Where an attorney retained for a specific purpose under an express contract is discharged without cause before completion of the agreed-for services, the attorney\u2019s right to recovery is limited to a cause of action in for services rendered up to the time of the *894discharge (Martin v Camp [219 NY 170], supra).\u201d (Emphasis supplied.)"], "id": "99fb5b86-d90b-4d55-bb29-71b52fa54234", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Pacific Bay's challenge to the Claims Settlement Practices regulation is based on a faulty premise. Pacific Bay claims that Blue Shield, relying on Orthopedic Specialists, supra , 228 Cal.App.4th 644, 175 Cal.Rptr.3d 295, asserted it could \"arbitrarily specify\" in its EOC that claims of \"noncontracted, nonemergent providers shall not be paid, period.\" However, Blue Shield makes no such claim. Instead, Blue Shield cites Orthopedic Specialists , contending that case dispelled the \"notion that disallowing recovery for non-contracted, non-emergency providers, who cannot allege that the plan requested or benefited from the services, is unfair to the provider[.]\""], "id": "52f88393-2b1e-41f5-884e-8c3c6cae2000", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["An interesting contention presented by counsel for the administrator is that, the applicable provision of section 31 of the Personal Property Law (subd. 7), having voided the alleged oral agreement to bequeath a legacy, likewise, also bars the award of any . It is true that the instant case does involve the'issue as to whether, in an instance dealing with an alleged contract (as distinguished from quasi-contract), unenforcible because of a provision of the Statute of Frauds, even though the claimant has proceeded on the theory of an express contract, her claim, to the limited extent of a quantum meruit, may be recognized and allowed. Oases, generally of this type, dealing with the above-mentioned statutory provisions of section 31 of the Personal Property Law (subds. \u201c 1 \u201d, \u201c 7 \u201d) and cited in this connection are Matter of Quigley (179 Misc. 210); Matter of Ditson (177 Misc. 648); Matter of Block (258 App. Div. 342); Laing v. Mallory (277 App. Div. 824); Meltzer v. Koenigsberg (99 N. Y. S. 2d 143, affd. 277 App. Div. 1050, affd. 302 N. Y. 523); Bayreuther v. Reinisch (264 App. Div. 138, affd. 290 N. Y. 553); Matter of Lettner (112 N. Y. S. 2d 540); Matter of Douglas (169 Misc. 716, affd. 256 App. Div. 1070) and Kenny v. Brieger (196 Misc. 85)."], "id": "45f8ec45-9a93-45d6-a1b1-55ec21764844", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The first issue presented to the court is whether rule 806.9 applies to this case, though the period of suspension has expired. Rule 806.9 provides in pertinent part: \"(b) Compensation. A disbarred, suspended or resigned attorney may not share in any legal fee for legal services performed by another attorney during the period of his removal from the bar, but he or she may be compensated on a basis for legal services rendered and disbursements incurred prior to the effective date of removal. In the absence of agreement, the amount and manner of payment of such compensation and disbursements shall be fixed by the court on application of either the disbarred, suspended or resigned attorney or the new attorney, on notice to the other, as well as on notice to the client. Such applications shall be made at special term of the court in which the action is pending, or at a special term of Supreme Court in the county in which the moving attorney maintains his office if an action has not been commenced. In no event shall the combined legal fees exceed the amount the *932client would have been required to pay had no substitution of attorneys been required.\u201d*"], "id": "56a1f5b7-7d2c-47f0-8c67-2435832879c0", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In its counterclaim RHS demands an accounting by plaintiff with respect to the funds which have accumulated since his resignation. Since the parties are in a fiduciary relationship and no misconduct on the part of RHS has been proven, it is entitled to an accounting (see 1 NY Jur, Accounts and Accounting, \u00a7 20). At issue are the sums received by plaintiff *459from the Hampton Medical Center and the East Hampton Medical Group and the funds held in escrow by the Southampton Hospital. Plaintiff was entitled to his salary from RHS for the 90-day period following his resignation and is entitled to remuneration on a basis for services subsequently rendered but he must account for all sums received. Since the record is insufficient for a determination by this court, the accounting itself must be the subject of a reference."], "id": "b560cfaa-e695-4b95-85a4-016f99e5d854", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["When a settlement was not reached on SFTC's unpaid account, on October 15, 2013, Minsa sent a demand letter to SFTC for the outstanding balance of $110,238.54. When payment was not made, Minsa filed suit on December 5, 2013. Minsa alleged claims for suit on sworn account, breach of contract, , and promissory estoppel. In addition to seeking recovery of the balance of the account, Minsa also sought recovery of reasonable and necessary attorney's fees. SFTC generally denied Minsa's claims, and in May 2014, asserted its own counterclaims for breach of contract, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and violation of the Texas Deceptive Trade Practices Act."], "id": "06f06d11-9484-4577-936a-90491950f6df", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["This second suit was brought to trial before Judge Wood-buff, when the judgment record in the former suit was produced and read in evidence, and it was thereupon admitted by the counsel for the parties, that no change in the possession or occupation of the premises took place after the eviction alleged to have occurred prior to February 1st, 1848; and that the only question to be tried and determined herein was, whether, notwithstanding the tenant was evicted by the landlord from a part of the premises hired by the tenant for one year, by agreement, not under seal, the landlord may (if the tenant voluntarily continue to occupy the residue for-*210the balance of the year) recover on a a reasonable compensation therefor, and notwithstanding the former verdict and judgment; and whether, notwithstanding the continuance' of such eviction, the landlord might not recover at least a reasonable compensation for such voluntary use and occupation of the residue from the 1st day of February, 1848, to the 1st day of May, 1848."], "id": "5840d23b-57a3-473f-8ba6-bd01f919b591", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The cause of action in requires a showing of \u201ca plaintiffs performance of services in good faith, acceptance *1292of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided\u201d (DerOhannesian v City of Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]; see Thomas J. Hayes & Assoc., LLC v Brodsky, 101 AD3d 1560, 1561 [2012], lv denied 21 NY3d 851 [2013]). The complaint alleges that plaintiff acted in good faith and in the expectation of compensation in making the previously-discussed contributions to the business, that defendant accepted its services and contributions, and that plaintiff has been damaged in the amount of the reasonable value of its contributions. Plaintiff further submitted the affidavit of its principal (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d 83, 88 [1994]), alleging that plaintiff contributed more than $200,000 toward the business as well as all of the knowledge, labor, equipment and other resources necessary for its development, that a substantial amount of processed material that it had paid to create remained on the property when plaintiff was locked out in 2011, and that defendants have continued to benefit from plaintiffs contributions thereafter by selling materials from the business without compensating plaintiff accordingly. Thus, despite defendants\u2019 contention that plaintiff\u2019s services were performed primarily for its own benefit, we agree with Supreme Court that the complaint states a cause of action in quantum meruit (see Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]; see also Goldstein v Derecktor Holdings, Inc., 85 AD3d 728, 728-729 [2011])."], "id": "4fb6cb76-f558-4661-9154-2a3810b24b40", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The proof of claim presented to the administrator by the claimant enumerates the character of the services rendered to the decedent, and amply justifies a recovery upon for the services rendered at the request of the decedent. The claimant could recover by proving the express contract or she could recover upon a quantum meruit when the special promise was not established, but the evidence in fact showed a rendition of services under circumstances which implied an agreement to pay therefor. Matter of McMillan, 167 App. Div. 817; Sturtevant v. Fiss, Doerr & Carroll Horse Co., 173 id. 113; McKeon v. Van Slyck, 223 N. Y. 392; Ritchie v. Bennett, 35 App. Div. 68."], "id": "fe5064b6-177d-4bac-bc57-d5835b81f410", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["First: On contract: No action against S. E. P. Realty Corp. for commissions is stated. It does not allege performance of conditions precedent, either in the conclusory form permitted by rule 92 of the Rules of Civil Practice, or in ultimate fact form. The allegations that the prospective vendee made an offer to plaintiff exceeding the amount which S. E. P. Realty Corp. desired does not show that he brought the minds of the vendor and vendee to an agreement. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378.) Nor does he show a claim for . The alleged terms of the brokerage contract is \u201cto employ the plaintiff to procure a purchaser for the said property \u201d."], "id": "53113c2d-fa8f-41dd-a52b-3e953fb77f49", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The complaint does not plead that plaintiff was a duly licensed home improvement contractor during the performance of defendants\u2019 construction project, as required under CPLR 3015 (e). Plaintiff concedes that it was an unlicensed home improvement contractor during the project (Strauss opp aff \u00b6 5), which is in violation of section 20-387 (a) of the Administrative Code of the City of New York. \u201c[P]ublic policy prohibits an unlicensed home improvement contractor from recovering for breach of contract or in .\u201d (Matter of Metrobuild Assoc., Inc. v Nahoum, 51 AD3d 555, 556 [1st Dept 2008].) Therefore, plaintiff \u201ccannot recover any further payments from the [defendants] either under the contract or in quantum meruit, and it forfeited the right to foreclose a mechanic\u2019s lien.\u201d (Matter of Ashmawy v L.I. Dock & Bulkhead Corp., 251 AD2d 500, 501 [2d Dept 1998].)"], "id": "6cb98e21-f648-43d2-98ee-2cd8323522f3", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["No showing is made or attempted to be made that 24% \u2014 or 20% \u2014 of the aggregate shares of these distributees is a reasonable fee for services rendered (cf. Mailer of Geiger, 7 N Y 2d 109, 112). Nevertheless it is argued that the reasonable value of the services performed is at least equal to the amount specified in the agreement with the forwarding \u201c law firm\u201d. However, on the oral argument of this application it was conceded that the petitioning firm cannot now recover upon the afore-mentioned alleged agreement, which has never been produced, but must be compensated upon a basis (Matter of Chabanuk, N. Y. L. J., June 25, 1964, p. 17, col. 2; Matter of Hers, 14 Misc 2d 1005, 1006-1007; Matter of Torsky, 36 Misc 2d 101, 103; cf. Matter of Bargel, 5 Misc 2d 657, affd. 7 A D 2d 645, mot. for lv. to app. den. 5 N Y 2d 710)."], "id": "9006b815-25e2-47d7-ab6b-c7ecdae43377", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["But it does not follow that the plaintiff cannot have recovery. There is a second cause of action which seeks recovery on a . The contract, which is unenforcible by reason of the statute, is a nullity and non-existent in lav/. It is conceded that services were actually rendered by the plaintiff in procuring this tenant for the defendant. Although the extended term was for five years when the arrangement that was made through the efforts of the plaintiff as broker provided for an extended term of ten years, it seems to be conceded that an option of at least five years was contemplated from the beginning. Mr. Gehrung, the chief witness for the defendant, testified that the provision for ten years instead of five was probably a mistake in the drawing of the lease. It was not questioned on the trial that the five-year extension was made possible by the services of the plaintiff. The services rendered were beneficial to the defendant. It does not appear that they were contemplated to be rendered as a gratuity. In fact, there is a strong inference throughout that the defendant seeks to escape liability only under the Statute of Frauds. But where services have benefited a person who cannot be held hable because his promise was oral, the statute will not be permitted to be used offensively to overthrow a meritorious plaintiff and thus go beyond its purpose of acting merely as a shield against fraudulent claims. Recovery can be had on quantum meruit. (27 C. J. 363, \u00a7 441.) There is testimony on behalf of the plaintiff that the amount of the bill for this five-year term at one and one-half per cent of the aggregate rentals \u201c is the fair and reasonable value for leasing property of that kind at the time in question.\u201d That evidence was not refuted nor was there any inclination on the trial to go into that phase of the case."], "id": "13a72dd2-0be0-44b3-8f2a-d0bee2865aaa", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["It is therefore necessary now to pass to the relief sought by the notice of motion in the alternative. First, defendant seeks dismissal of the second cause of action for legal insufficiency. While It is permissible to join in one complaint counts on contract and for , in this instance in the second *367cause plaintiff reiterates all of the allegations of the first cause on contract and then alleges that at defendant\u2019s special instance and request it performed work, labor and services and furnished material of a stated agreed price and reasonable value upon which a stated sum was paid, leaving due and owing a sum which is the same sum claimed to be due upon the first cause of action. Since the contract forming part of the second cause is upon the basis of the pleadings presumed to be valid, a cause for quantum meruit is not stated."], "id": "15264d9f-2e1b-46c7-86d6-291e562b49a8", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The parties never signed a written fee agreement. To satisfy the Statute of Frauds (General Obligations Law \u00a7 5-701 [a] [10]), a memorandum \"must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter\u201d (Cohon & Co. v Russell, 23 NY2d 569, 575). Here, neither the material terms of any agreement nor, clearly, a rate of compensation was contained in defendants\u2019 letters to plaintiff. Plaintiff\u2019s first count for breach of contract was properly dismissed. In an action in *425however, for the reasonable value of services, \"a sufficient memorandum need only evidence the fact of plaintiffs employment by defendant to render the alleged services\u201d (supra, at 575-576). The obligation to pay reasonable compensation is then implied (supra, at 576). Thus, in Blye v Colonial Corp. (102 AD2d 297), where the only writing signed by a defendant reflecting the agreement claimed by plaintiffs was a letter which discussed some bases for commissions as \" 'an area for future discussion\u2019 \u201d (supra, at 298) but which did not express a firm agreement as to the amount of plaintiffs\u2019 compensation, this Court concluded that the letter adequately evidenced the fact of plaintiffs\u2019 employment to act as finders, and their action in quantum meruit was not precluded (supra, at 298-300). The one letter was \"buttressed\u201d by a letter from one defendant to another discussing remuneration of plaintiffs (supra, at 299). In Dunlevy v Tinsley (178 AD2d 373, lv denied 79 NY2d 757), where plaintiff had also submitted sufficient correspondence to meet the statutory requirements, this Court noted the further finding of the motion court that the evidence demonstrated that there was no intention to render gratuitous services (see also, Shapiro v Dictaphone Corp., 66 AD2d 882, 884-885). In the instant case, defendants\u2019 letter to an entity in the business of brokering licensing agreements, which letter authorized that entity to approach certain manufacturers, could hardly have been an authorization contemplating gratuitous services."], "id": "a44c8fcb-e7c6-432f-8499-a25cce9326cc", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Garmer contends that the trial court erred because recovery of attorney's fees is available in the absence of an enforceable contractual agreement, under the express qualification to the general rule which provides that \"the acceptance of or acquiescence in the services rendered may raise an implied promise to pay therefor.\" Id. Garmer argues the Estate knowingly and eagerly received and accepted its work product, moved to incorporate it into its own case and used that work product for its own benefit to move quickly to settlement. According to Garmer, if it had not been for its efforts in the federal litigation, the Estate's claims in state court against Paducah Nissan and Dedra, and the claim for punitive damages against Jamison, would have been barred by the statute of limitations. See Kentucky Revised Statutes (KRS) 413.180 (requiring an action for wrongful death to be brought within one year of the qualification of the personal representative)."], "id": "8b9a89b0-67be-4313-92f6-184f4a19bbb2", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Whether or not the plaintiff might have a cause of action based on under proper allegations of fact, we cannot and do not now determine. There is only before us an alleged cause of action based upon a purported contract. There being no contract pleaded, there is no cause of action stated, either on the contract as such, or on the theory of a joint venture evidenced by such writing."], "id": "50dfc235-f39b-4416-96e2-de356e3c1c07", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In its reply brief, Pacific Bay finally addresses the elements of a cause of action and the allegations in the complaint. Quantum meruit permits the recovery of the reasonable value of services rendered. (Palmer v. Gregg (1967) 65 Cal.2d 657, 660, 56 Cal.Rptr. 97, 422 P.2d 985.) To recover in quantum meruit, the \"plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant\"; further, the defendant must have \" 'retained [the]"], "id": "0f386726-18e0-4c4c-bfe9-db7cb44194a6", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The rule goes to that extent. But it does not go to the extent that, where plaintiff asserts a special promise for a monthly wage, and defendant asserts a profit-sharing agreement, the jury may still give plaintiff a , when they do not believe what he says about the special promise, and choose to believe what defendant asserts. The claims of a special promise and a quantum meruit are inconsistent. (Herrmann v. Cluett, Peabody & Co., Inc., 127 Misc. 54.) This inconsistency is tolerated by the adjudicated cases only up to the point of submission to the jury. To carry it further, in a case like this, would be to stretch an inconsistency into an absurdity. The jury, at bar, had to decide whether the contract contemplated a salary or a share of the profits. If it was not a salary, it necessarily must,have been what defendant claimed. Under those circumstances, to give the jury the right to say that, if the contract was not for a salary nor for a share of the profits, they could still give the plaintiff the reasonable value of his services, would be to submit to them a fictitious issue. On reflection, I think the result would have been the same if plaintiff went to the jury on a quantum meruit. But I have been cited no authority, and I can find none, which holds that a plaintiff may go to the jury on both a special promise and a quantum meruit. To my mind, such a rule would be entirely out of reason."], "id": "3372cd73-dcc7-4909-bffc-dac55e891ffc", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["A prior motion for the same relief addressed to the first amended complaint was granted by this court by decision dated August 6,1956. In that decision, permission to serve an amended complaint repleading the second cause of action on the theory of was granted. The order entered thereon, however, extended permission to serve an amended complaint without limitation."], "id": "2049811c-a5a0-4f6a-aed3-673dcc224655", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In support of the balance of the relief requested by the petitioners, the attorney-fiduciary has submitted an affidavit to the court which indicates that the law firm, of which he is a *948partner, performed professional services for the deceased, approximately one year prior to his death, during the period 1980 through the beginning of 1982. Inasmuch as these services were performed without a retainer agreement between the parties, the value of counsel\u2019s labors must be determined on a basis. (See, 27 Carmody-Wait 2d, NY Prac \u00a7 159:34; Estate of Goldman, NYLJ, Feb. 6, 1979, at 13, col 2.) In this regard, the court notes, at the outset, that counsel\u2019s claim is based upon approximately 200 hours of time expended, at the rate of $125 per hour. However, while the time spent is the logical starting point in analyzing an application for counsel fees (Matter of Chandler, NYLJ, Mar. 29, 1978, at 16, col 3; Matter of Kentana, 170 Misc 663), it is the least important part of the calculus in assessing the reasonableness of the sum requested. Indeed, in the court\u2019s opinion, more significant to its determination are such factors as the difficulties involved in the matter, the nature of the services rendered, the amount involved, the professional standing of counsel and the results obtained. (Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 123 Misc 346, affd 213 App Div 59, affd 241 NY 510 [1925].)"], "id": "5539aa02-c3c5-4fde-afe7-59f2da67c657", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Accordingly, upon reargument the motion is granted to the extent of dismissing the second cause of action for insufficiency, and the motion is in all other respects denied with leave to plaintiff to serve an amended complaint in which, in addition to the first cause of action on contract, it may state, upon appropriate allegations, an additional cause in ."], "id": "9b2ea298-caa5-4dc0-bb7e-4a45064d5242", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In a proper case a provision in a contract which provides for a breaching party to pay the nonbreaching party\u2019s attorney\u2019s fees may not be unconscionable, but, on the other hand it very well may be; and, when the precise issue of value has been directly presented, fixation by the courts of the \"reasonable value of attorneys\u2019 fees\u201d on a basis, has been required. To hold otherwise would be contrary to public policy because it would actually amount to the enforcement of a penalty (Matter of Mead v First Trust & Deposit Co., 60 AD2d 71, citing Equitable Lbr. Corp. v IPA Land Dev. Corp., supra; Scheible v Leinen, 67 Misc 2d 457, 460; Franklin Nat. Bank v Wall St. Commercial Corp., 40 Misc 2d 1003, affd 21 AD2d 878)."], "id": "10571d7e-494a-4f1f-81cd-cccc29c546fe", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["A number of cases have followed Goldstein and Jeffry . (See, e.g., Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 16, 60 Cal.Rptr.2d 207 [attorney not entitled to fees after he offered to dismiss a class action in return for a personal payment to him of millions of dollars]; A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072, 6 Cal.Rptr.3d 813 [law firm not entitled to fees after it helped a new client enforce a judgment against a former client by assisting the new client in locating and pursuing the former client's assets].) Another case, Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 125 Cal.Rptr.3d 765 (Fair ), noted that attorneys are not entitled to fees where the ethical violation is \"one that pervades the whole relationship.\" (Id . at p. 1150, 125 Cal.Rptr.3d 765.) Fair affirmed the trial court's denial of recovery where an attorney's conduct \"constituted not merely a technical rule violation, but the breach of Fair 's fiduciary duty to\" his clients. (Id . at p. 1151, 125 Cal.Rptr.3d 765.)"], "id": "94cdeded-b770-4eae-9604-ae70db83f9b9", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The court is aware of and has examined the papers underly*632ing the decision and order of another Part of this court in Double R. Home Improvement Corp. v Frank (Sup Ct, Westchester County, May 29, 1991 [index No. 15551/90]), relied on by the defendants. That was actually an action to foreclose a contractor\u2019s improvement lien and the contractor\u2019s failure to fully comply with section 11 of the Lien Law was the ratio decidendi for the complete dismissal. The concluding statement in that dismissal decision, \"Finally, the failure of plaintiff to comply with the requirements of General Business Law \u00a7 771 et seq. precludes its recovery in contract or (cf. Millington v. Rapoport, 98 AD2d 765).\u201d, is seen and read by this court to be obiter dicta not constituting persuasive authority for the dismissal claim here. Moreover, an examination of the appellate decision in Millington reveals that it does not, respectfully, constitute any ground for dismissal under the General Business Law; it was the failure of the contractor to be licensed by New York City under the Administrative Code of the City of New York, which failure actually forbids performing or obtaining an unwritten home improvement contract, that led to the dismissal."], "id": "8e1f7008-2ef8-4080-af7d-d1cdc4acd4da", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In addition to concerns about defendants\u2019 own unclean hands, the court, as explained in the previous section, cannot as a matter of law conclude that no issues of fact exist regarding plaintiffs\u2019 conduct. \u201cWhere a litigant has himself been guilty of inequitable conduct with reference to the subject matter of the transaction in suit, a court of equity will refuse him affirmative aid.\u201d (Levy v Braverman, 24 AD2d 430, 430 [1st Dept 1965]; see also Janet O. v James O., 13 Misc 3d 1225[A], 2006 NY Slip Op 51985[U], *3 [Sup Ct, NY County 2006] [stating party cannot seek equitable relief with unclean hands].) Because the court *195finds questions of fact about plaintiffs\u2019 conduct, it refuses to dismiss their causes of action for unjust enrichment and for work at Taft. Accordingly, the court denies defendants\u2019 request to dismiss the remaining part of the second and third causes of action because of plaintiffs\u2019 allegedly illegal conduct."], "id": "a9501815-411c-4728-ad8b-4ef8795184ca", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["To prevail on a claim for , the Law Firm must demonstrate: \"(1) that [it] provided the [Defendants] services at the [Defendants'] request or with their acquiescence; (2) the services [provided] were of a certain and reasonable value; and (3) the [Defendants] refused to pay for such services after demand\" by the Law firm. Moran v. Hubbartt , 178 S.W.3d 604, 609 (Mo. App. W.D. 2005) (citation omitted). The trial court analyzed the Law Firm's petition and affidavit and determined that all of the elements were met for both quantum meruit claims."], "id": "89d7e08d-d22c-4cd3-9a9c-6f49bce60aae", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The Administrative Code does not expressly state that the licensing requirement applies only to contracts involving residences and dwelling places (see Administrative Code of City of NY \u00a7 20-386 [2], [6]) within New York City. However, we conclude, based on both the statutory text and the legislative history of the home improvement licensing law, that the licensing provisions apply only to contracts involving residences and dwelling places within the City. Notably, both Mayor Lindsay, who signed the measure into law, and the then-New York City Commissioner of Licenses (Joel J. Tyler) observed that the licensing provisions were designed to protect New York City homeowners; the provisions did not regulate the work of contractors for work performed outside the five boroughs (see remarks by Mayor Lindsay at public hearing on Local Laws, Apr. 22, 1968, at 1; remarks by New York City License Commissioner Tyler at hearing of New York City Council, Committee on Housing, Jan. 29, 1968, at 3). Our construction of the home improvement licensing law is consonant with the well established principle that a contractor who is unlicensed in the municipality where the work is performed is barred from recovering under a home improvement contract or in (see Price v Close, 302 AD2d 374, 375 [2003])."], "id": "5fadfbb2-0f8b-4235-90c5-d3f7502158f6", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["General Business Law \u00a7 771 (1) provides that \"Every home improvement contract subject to the provisions of this article, and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract.\u201d A long list of required terms then follows. Under the definitional portion of section 770, a contract in excess of $500 for landscaping, masonry and associated services and labor falls within article 36-A. Hence, there is no question that the agreement here should have been in writing. The more pertinent inquiry, however, is whether the lack of such a writing precludes any and all recovery. The court concludes that lack of a written contract does not bar all recovery under article 36-A of the General Business Law and that damages are recoverable, if not under the agreed terms, then at least under theories of and unjust enrichment."], "id": "ecc679f9-2612-4cd0-9d6c-032e010f6e90", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff contends that he is entitled to recover in for the value of services he rendered to Zev Melamid and his corporation, Town Travel Corp. (hereinafter the defendants), in connection with the defendants\u2019 failed attempt to start a cargo airline. The Supreme Court deter*576mined that the plaintiff was not entitled to recover on his quasi-contractual claim because he had alleged the existence of an express contract (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388; Recon Car Corp. v Chrysler Corp., 130 AD2d 725, 730). The court concluded, in any event, that the plaintiff failed to establish a quantum meruit claim."], "id": "73752bb4-1c65-461d-b6be-d455ed75f273", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Subdivision 10 of section 31 of the Personal Property Law does not make illegal a contract for the rendition of services in the sale of a business by anyone other than a duly licensed real estate broker, real estate salesman, auctioneer or attorney at law. It only makes an express agreement to pay for such services unenforcible. The remedy in is not barred. If Graymount v. Schlemmer (204 Misc. 667) holds to the contrary, I am not in agreement with it. In any event, the facts of that case are not disclosed in the opinion."], "id": "8ab9a87a-a678-48ca-8cd1-495da2231298", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In response to these motions, the City defendants cross-move to dismiss the proposed class action complaint on the grounds that plaintiffs have failed to exhaust administrative remedies, the complaint is barred by the Statute of Limitations, the complaint is barred by laches, and the claims for unjust enrichment and fail as a matter of law.4 Defendant Brian J. Wing, Acting Commissioner of the New York State Department of Social Services (State DSS), cross-moves to *30dismiss the proposed complaint also on the ground that plaintiffs and proposed intervenors have failed to exhaust their administrative remedies, and otherwise joins the City defendants in opposing the requests for class certification and injunctive relief."], "id": "e85717d9-d912-4303-ab39-fcb16dfbeb6b", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The recital of consideration in a negotiable instrument creates an inference of the existence of consideration and prima facie evidence of the fact of consideration but any such inference is here rebutted by the evidence of the alleged circumstances under which the paper was obtained. Inasmuch as the claimant undertook to prove consideration, the sufficiency of the evidence so offered is the test of the adequacy of consideration and a deficiency in the proof is not to be provided by inference or presumption. (Dougherty v. Salt, 227 N. Y. 200; Severance v. Severance, 269 N. Y. 523; Matter of Tierney, 44 N. Y. S. 2d 375, 378, affd. 268 App. Div. 913.) The claimed consideration, consisted of voluntary acts of kindness, unsolicited by the decedent and performed by the objectant without expectancy of compensation upon either a contractual or basis. It is beyond dispute that the objectant lacked either talent or training to render services compensable in the amount stated in the alleged note although it is equally beyond doub t that his undisclosed purpose in associating with *405the decedent was to benefit himself. The court does not accept as credible the testimony of a witness who testified on the objectant\u2019s behalf as to the delivery of the note to the objectant, but if such testimony were believed it would prove nothing more than delivery. Mere friendly acts do not constitute consideration and the defense that the purported note was without consideration is sustained. (Blanshan v. Russell, 32 App. Div. 103, affd. 161 N. Y. 629; Matter of Green, 247 App. Div. 540, 543.)"], "id": "11295bec-76ad-4277-bb24-02a29a6ba497", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The legislature should amend the various uniform local court acts to make it clear that judges in small claims cases can consider equitable claims, counterclaims and defenses32 (e.g. laches, ,33 clean hands34) only in the context of awarding a money judgment. This could be accomplished by adding the following sentence to the end of section 1804 in the various local court acts:35"], "id": "43eadb4e-139b-4743-8ed2-6f9a594d4d3d", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The referee found for the plaintiff upon the facts alleged in the complaint, but decided that as it appeared that the contract in suit had not been fully performed by the plaintiff, and he had not shown a sufficient legal excuse for abandoning it, no recovery could be had upon a ; that as the time fixed by the contract for its performance had been waived, the plaintiff was bound to notify the defendant of his intention, and demand performance upon his part within a reasonable time. This precise point was decided in Lawson v. Hogan (93 N. Y. 39), where a contract similar in character in relation to the same premises was in dispute."], "id": "d21bc483-3282-4e15-aced-56e402136100", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["*413It appears from the above-cited study that the intendment of the statute was coverage of those commonly known as \u201c business brokers \u2019 See page 621 of the 1949 study cited, wherein the statement is made that \u201c Other claimants of commissions, such as insurance brokers, commission merchants, auctioneers and others, seem not fairly within the scope of the proposal studied; their claims are more likely to arise out of a regular course of dealing, and any legislation requiring written memoranda would have to fit into a somewhat different framework of existing New York statutes.\u201d In 1964, the section was amended to \u2018 \u2018 make clear that no recovery on a theory \u201d would be permissible on a contract within the statute, and while so recommending, the Law Revision Commission indicated that no distinction should be drawn between \u2018 \u2018 brokers \u201d and \u201c finders \u201d in determining the applicability of the statute. (See N. Y. Legis. Doc., 1964, No. 65[F]), where recommendation was made for an amendment of the statute to include, expressly, claims for commission 6 \u2018 for services rendered merely in bringing a buyer and seller together \u201d.)"], "id": "69c74a19-8593-4ae0-9650-fb7e0c4ed69a", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff did not complete the work and sue for the purchase price. The preparation of tlie drawing had cost thirty-five dollars, iind it sued on a for these services, and the amount was conceded on the trial. Inasmuch as the defendant did not *328decline to accept because of any dissatisfaction with the work itself,, but did in effect refuse to carry out the contract, the plaintiff at least could maintain an action to recover the actual value of the-services rendered. The refusal of the defendant to perform amounted to a breach of the agreement and; was adequate warrant for the-plaintiff to treat it as terminated and sue on a quantum meruiL (Howard v. Daly, 61 N. Y. 362; Waldron v. Hendrickson, 40 App. Div. 7; Cowen\u2019s Treatise [7th ed.], \u00a7\u00a7 217,794.) As was said in the valuable treatise of Judge Co wen, at section 794: \u201c Where-one party to.a contract gives notice to the other that he shall not perform it, performance by the one receiving such'notice is unnecessary, and he may recover the damages he has sustained up to that-time.\u201d"], "id": "baf1332a-4748-467d-a9f4-27b64d5c24e0", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Whether or not these observations of the judge in vacating the order concludes the question before me as res judicata, the fact is that the order for counsel fees was vacated and upon the husband\u2019s own application. It is not necessary to go so far as to say that the situation is the same as it might have been if plaintiff\u2019s attorney had applied for no counsel fees at all, in which event, he would be free to pursue an independent action against the husband for services; but we can, I think, go so far as to say that because of the husband\u2019s action in applying for and obtaining a vacatur of the order for counsel fees, he is in no position to interpose that order as a bar to the plaintiff\u2019s right to recover on a basis (cf. Naumer v. Gray, 28 App. Div. 529)."], "id": "fc4d8f6d-b723-40a8-9be2-7582066b19e7", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In Walton v. Creditors, 3 Rob. (La.), 438, held: \u201cA notary\u2019s fees being fixed by the law, he can under no pretense demand additional compensation.\u201d In this case the court said: \u201cThe lower court ruled that \u2018evidence to establish a is entirely misplaced in relation to *117those official services for which a tariff is fixed by law.\u2019 It does not appear to us that the court erred. If the fees allowed to notaries by law for services rendered by them be insufficient, they must seek relief by an application to the legislature for a new tariff or by resigning their offices. Courts of justice cannot countenance any other mode.\u201d"], "id": "00ee0778-2dde-46e2-8769-bbf52d02d214", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Furthermore, in this case the discharged attorney already had collected money more than sufficient to cover the value of his services. He was seeking not to enforce his lien but to establish his right to retain what he had already collected. It was his client who was seeking to recover part of the counsel fees awarded and paid for which services had not been performed. Under those circumstances, she may not be barred from pursuing her plenary action for a money judgment binding on the attorney\u2019s estate and capable of execution because the attorney had previously made application under section 475 to have the proper amount of his fees fixed on a basis. Section 475 is not an umbrella under which an attorney may seek shelter from the demands of a client for the return of excessive fees paid."], "id": "8c89259d-196a-47cf-a4e8-2b7eca728367", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Under the circumstances by defendant\u2019s own action the contract may fairly be considered divisible and performed to the extent of the first delivery and plaintiff entitled to recover according to its terms. As to the balance plaintiff would be entitled to a recovery in . It might well be that the reasonable value of the folders equalled the contract price but there is nothing in the record to indicate that it does."], "id": "9591c945-40f3-4664-be67-f7fcf531ba51", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In the complaint in this action, there is no such compliance with the provision of law referred to. The alleged is but a mere continuation of the preceding averment appertaining to the special contract, and is not in any proper sense the allegation of a separate and different cause of action. Taken by itself, as it must be, it does not contain facts sufficient to constitute a cause of action; and it must, therefore, to be available at all, have relation to- the preceding matter."], "id": "0f6b06ba-1d7f-436c-85c2-59031f0327cd", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["There would appear to be a close relationship between the statement of the court in the Long case and the surrounding circumstances and the relationship of the parties in the case before this court. In viewing the present situation as a whole, as the several evidentiary considerations are appraised in respect to their respective bearings in accordance with the applicable principles authoritatively established and binding on us, leaves a necessary legal basis for a recovery in this proceeding, a sufficiently established implied contract, somewhat short of minimum requirements. The evaluation of all the evidence is such that it cannot be said there is a preponderance sufficient to support the implication of a contract. Therefore, this court is of the opinion that the claimant, in the absence of an express agreement, is not entitled to recover on an implied contract and to be paid on the basis of for services alleged to have been performed and that the claim of Myrtle J. Basten, the claimant herein, should be dismissed."], "id": "f948e120-1bbc-4e89-bb83-dba757369e0c", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In the case of Abbott v. Draper (4 Denio, 51), there was an oral contract for the purchase of land. After the purchaser had made some payments in goods under the contract, he sued the vendor for the value of the goods. That is, he repudiated the contract as void, and sought to recover the value on a . But the court said that \u201c as long as the vendor was ready to perform the contract on his part the vendee could not recall the payments which he had made under the agreement.\u201d \u201c Every time a payment was made and received the parties virtually said, although the law will not enforce this contract, we will go on and carry it out.\u201d This language is quoted and \u25a0 approved in Thomas v. Dickinson (ut supra) ; and see Galvin v. Prentice (ut supra). Now, if we apply the principles to the present case, it may be said that every time that the plaintiff rendered and the defendant accepted services, they virtually said they would go on and carry out the contract. Thus they affirmed it down to the very last act done under the same; leaving nothing *152unperformed but a promise to pay for past services. And it will further be seen by this case of Abbott v. Draper, and similar cases, that one party is not allowed to repudiate the contract as void and sue on a quantum meruit, until the other party is in default. He cannot treat a contract iis void, under the statute of frauds, which the other party is willing to treat as valid. The default of the defendant is necessary to give the plaintiff an action as on a quantum meruit."], "id": "1169724c-2b3d-40ab-a802-f37f71743b97", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Pursuant to the Administrative Code of the County of Nassau (hereinafter the Administrative Code) \u00a7 21-11.2 anyone operating a home improvement business must be licensed. The appellant does not dispute that it did not have a license, but contends that it was not required to have one and that, in any event, its failure to obtain a license does not bar its recovery in contract or in ."], "id": "aedd9c31-6cb9-41f6-9590-d0e950b9f6a5", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The defendant herein argues that Breier v Government Employees Ins. Co. (supra) is controlling and requires dismissal of the complaint. Plaintiff, on the other hand, contends that this being a case for recovery in is the type of action the court alluded to in the aforementioned dicta, and, as such, is a case of first impression. The question presented herein, plaintiff argues, is whether the defendant insurance carrier should be allowed to be made whole by way of the reimbursement, when it was counsel\u2019s efforts that produced this result. Plaintiff requests that it be granted summary judgment on its cross motion for one third of the reimbursement, or, in the alternative, that this matter be set down for a hearing to determine the reasonable value of plaintiff\u2019s services."], "id": "11484d1f-c75c-4827-a724-54678cac7c7d", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Richard F. Braun, J. Plaintiff has sued both defendants in this action for foreclosure of a mechanic\u2019s lien, and defendant Sabina Brandt Kelley for money damages for breach of contract, unjust enrichment, and . Defendants move to dismiss the complaint, pursuant to CPLR 3211 (a) (1), (3) and (7), for a discharge of the lien, pursuant to CPLR 3211 (a) (1), and sanctions, pursuant to CPLR 3126 and 22 NYCRR 130-1.1 (c)."], "id": "5b955c1e-7549-45e1-87ba-6dcf017b205d", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Defendant-appellant Cybergenics engaged codefendant Kaleidoscope to produce television programming in connection with certain intellectual property owned by Cybergenics. Pursuant to the written agreement between Cybergenics and Kaleidoscope, the production costs were funded by Cybergenics and Kaleidoscope was paid a monthly retainer. Plaintiff, a film editor, was solicited by Kaleidoscope and its agent, codefendant Artisan, to work on the property. Plaintiff billed Kaleidoscope for these services. When the project was completed and plaintiff was not paid, it sued Kaleidoscope and Artisan for breach of express contract. Cybergenics was also sued, on the theories of unjust enrichment and . Civil Court denied Cybergenics\u2019 dismissal motion for lack of proof that no benefit was conferred on it by plaintiffs services."], "id": "da15105b-9037-444e-8249-2e44508da103", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff requests an undivided attorney\u2019s fee based solely on , including a separate fee for the efforts expended in substantiating its claim to attorney\u2019s fees. Plaintiff, as previously stated, is entitled to its counsel\u2019s fees for bringing this cause of action for recovery of benefits pursuant to the New York State No-Fault Law in accordance with the Insurance Department regulations. In addition, plaintiff may recover reasonable attorney\u2019s fees for time spent substantiating his fee for prosecuting the unpaid claims. This is a fee on a fee. He may recover for \u201cefforts expended in addressing any legal issues which may be involved as well as time spent in assembling and presenting factual data to support the claim.\u201d (Matter of Fresh Meadows Med. Assoc. [Liberty Mut. Ins. Co.], 49 NY2d 93, 99.)"], "id": "acb2727e-18b4-4e98-9bfd-667e6ca8e4a8", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["\" '[F]or purposes of certification, the proper inquiry is \"whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.\" ' \" ( Hall , supra , 226 Cal.App.4th at p. 292, 171 Cal.Rptr.3d 504.) Kendall believes that the Agreement for Services lacks any valid price term, as a matter of pure contract interpretation, and instead, the Agreement for Services should not be permitted to make references to Charge Master billings. He invokes equitable principles of and suggests the court apply a flat percentage reduction from the gross Charge Master charges, to arrive at the reasonable value of the services rendered, through a comparison of the Charge Master rates either to the hospital's costs in providing services, or to the reimbursement rates for various categories of patients covered by other benefits plans. This approach would effectively place the burden on Scripps to prove the value of its services before billing for them."], "id": "d7e30201-5ee1-4021-ba0b-58dd3c287a05", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["It is thought by the plaintiff that there are cases in conflict with this view. They will be found to be cases where there was only a partial performance of a void contract and a refusal to perform fully. In Shute v. Dorr (5 Wend., 204), there -was an oral contract that a child sixteen years of age should serve until he was twenty-one for a specified sum. He left before that time. Of course, there could be no recovery on the contract. A recovery was had on a ."], "id": "bce81085-d326-440d-8ddc-45f45d6f11cd", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The Thompson case had to do with a written contract. Here we are dealing with work and services performed. If proven, a verdict based upon may be rendered. The recovery may be had upon quantum meruit for the value of services rendered, even though an expressed contract for the payment of the alleged services is not established, if the evidence shows the rendition of services under such circumstances as imply an agreement to pay therefor. (McKeon v. Van Slyck, 223 N. Y. 392, 399.) The claimant is only required to prove his case by a fair preponderance of evidence. (Caldwell v. Lucas, 233 N. Y. 248; Matter of Bayles, 108 Misc. 117; Matter of Otis, 126 id. 741; Matter of Moodie, 129 id. 853.)"], "id": "56653582-b091-4854-a4be-08d4687c219c", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Several exceptions to the introduction of testimony were taken, some of which seem to be well founded. It is true that the plaintiff alleged a . and that the answer denied it, but the theory upon which the plaintiff based his recovery was the compensation fixed by the statute, and had nothing to do whatever with the nature of the services, or with their value, but simply depended upon their rendition."], "id": "4957354f-4434-4cad-b2e7-bf9520289503", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Contractors in breach of article 42 have been denied recovery on either theory (Buffoleno v Denning, 82 Misc 2d 472; Vegliack v Mazzella, 73 Misc 2d 90), although Vegliack may also be explained on the ground that the work was not authorized by defendant. While in accord with those decisions as to nonenforcement of the contract, Lindner Appraisal Corp. v Frewil Corp. (72 Misc 2d 1041) permitted a recovery measured, however, without \"corporate profit\u201d. Atkin v Hill, Darlington & Grimm (15 AD2d 362, 367, affd without opn 12 NY2d 940) teaches that \"[legislative intent remains the touchstone\u201d of the statute\u2019s impact on the transaction. This requires consideration of the nature of the statute and *537the surrounding circumstances. Cases arising under comparable statutes are revealing."], "id": "3528e8dc-6267-427e-9fff-b4c6c6f1e1f7", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The critical question here is what was intended by the agreement of the defendants to pay the plaintiff \u2018 \u2018 a retainer \u2019 \u2019 of $40,000. The issue cannot satisfactorily be answered on the basis of the writing relied upon or of the affidavits submitted to the court. \u2018 \u2018 Retainer \u201d could mean either a fee not only for the rendition of professional services, but also for the attorney\u2019s taking the case, making himself available to handle it and refusing other possible employment, or it could have been intended as a word describing compensation solely for services to be performed. If the former, the plaintiff is entitled to recover for indebitatus assumpsit (as pleaded); if the latter, he may recover on (which he does not plead)."], "id": "39cfad57-4881-4769-99a1-b3cc09e3d4fb", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Defendant offered no evidence upon the trial; and, although the stipulation submitting the case to me was signed about three months ago, has not filed any brief. Just what the defendant\u2019s claims in the premises are, I am not advised. Probably it considers itself fortified behind the cases of Crane v. Baudowine (55 N. Y. 256) and McGuire v. Hughes (207 id. 516). The principle established by those cases has been extended to the case of a *850hdspital (Homeopathic Hospital v. Chalmers, 94 Misc. 600; affd., 184 App. Div. 916), and doubtless a dentist would come within the same category as a physician or a hospital. The particular rule in McGuire v. Hughes (supra) is as follows (p. 519): \u201c The general rule, that, where a person requests of another the performance of services, which are performed, the law implies a promise by the former to pay their reasonable value, has no application in the case of a physician, rendering professional services to a third person, if the relation to the patient of the person, who requests them, be not such as imports the legal obligation to provide them.\u201d Again (at p. 521) the court practically restates the same proposition in the following language: \u201c I am, therefore, of the opinion that it should be taken as the rule of law, too well settled upon authority to be now questioned, that a physician, in the absence of a special contract, may recover upon an implied agreement to pay for his services , when they have been rendered at the request of the patient, or of a person who, in the eye of the law, is regarded as being under a legal obligation to provide such professional services for the patient; such as a husband, or the parent of a minor child.\u201d The dictum of this ease seems to be that in no instance will a promise to pay for the services of a physician, etc., be implied, unless the one requesting the service is under some legal obligation to provide the service requested; and the question is, therefore, presented as to whether the defendant was under any such obligation. In this connection we come upon a peculiar situation because, as subsequently understood, it transpires that the ice company was not in fact under obligation to take care of its employee, but it was apparently liable and Schmidt, the president of the company, supposed that it was liable, under section 13 of the Workmen\u2019s Compensation Law. He, therefore, ordered the man cared for by Dr. Locke. The latter testified that he had general directions in all of defendant\u2019s cases, to employ whatever help or assistance was necessary, and in pursuance of that authority he employed the plaintiff, this being a case for a dentist. He also informed Schmidt of the fact, shortly after and before much of the work had been done, and Schmidt raised no objection. Dr. Capron went on and completed his work and is now seeking his pay therefor. The insurance carrier will not pay, and, concededly, is not hable. The patient probably is not responsible financially and did not order the work anyway; and the only possible source of compensation is the defendant. It is doubtless true that, had Mr. Schmidt or Dr. Locke been aware of the true nature of the occurrence in which O\u2019Connor received his serious injury, probably neither would have interested *851himself in the case. As it was and acting under a misapprehension, Mr. Schmidt called Dr. Locke and directed him to do everything possible for the injured man. Dr. Locke\u2019s action in the case is due wholly and entirely to Mr. Schmidt\u2019s order. Both acted in good faith. One of them must suffer, that is either Dr. Locke\u2019s employee, the plaintiff, must go unpaid, or Mr. Schmidt\u2019s company must pay him. It is a fundamental principle of law that, where one of two innocent parties must suffer, he must bear the burden whose act made the situation possible. In this case it was Mr. Schmidt\u2019s act which started Dr. Locke and the plaintiff into action. He assumed that his company was liable; apparently it was; as O\u2019Connor had sustained a severe injury by a fall while engaged in working for the Utica Ice Company. Under such circumstances, Mr. Schmidt employed the plaintiff, through Dr. Locke, and it seems to me only fair that he should pay him, for, otherwise, he must go unpaid."], "id": "d1a73d68-a064-4781-b96a-898fbab9fd8a", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Before finally disposing of this item, it is. necessary to consider respondents\u2019 objection that the claimant was working elsewhere as a registered nurse during the various periods of time in question. This was quite well explained by the claimant and judicial notice may be taken of the wartime conditions and the effect this had upon employment of professional nurses. But, in any event, objectants are within their rights in questioning the value of the services. This is so whether claimant\u2019s theory is a , or a non-implied contract. See Matter of Mason (134 Misc. 902, 906) where it is clearly stated that \u201c in either event only such recovery could be had as was commensurate with the value given and received \u201d, together with citations of supporting authorities."], "id": "e1f414d2-1d87-48b1-b5bb-919237b716de", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["With respect to those cases retained pursuant to an ordinary noncontingent fee retainer agreement, plaintiff is entitled to share in the legal fees earned by the partnership prior to his suspension on a basis (see, Nassau County Bar Assn Ethics Opn No. 83-5). Quantum meruit is defined \"[a]s much as he deserved\u201d (Black\u2019s Law Dictionary 1408 [4th ed 1968]). Does plaintiff then deserve an hourly wage for work he actually performed on a file, or as a former partner, does he deserve something more? The court finds that he deserves something more."], "id": "24eaeb40-eeb7-4042-b96f-5ad67825e9a8", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff now seeks to amend the complaint in order to add a second cause based on , for the fair and reasonable value of his services and to increase the amount of damages. Defendants having interposed the defense that plaintiff\u2019s claim is barred by the Statute of Frauds, contend that the plaintiff may not add the quantum meruit theory or recover thereon in the event he is not entitled to recover on his cause for breach of contract \u2014 a contention which is without merit (Smith v. Kilpatrick, 305 N. Y. 66)."], "id": "e3058f3f-9baa-4e8e-96fa-02979a9d7632", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["*763Respondents \u2019 contentions that the power to make such a contract lies exclusively with the respondent Mayor (Mount Vernon City Charter, \u00a7 65; L. 1922, ch. 490), or, in the alternative that petitioner\u2019s claim, in any event, is one for which may require a hearing by the respondent comptroller to test the accuracy and justness thereof, are without merit. It is axiomatic that in construing statutory provisions, the spirit and purpose of the act and the objective sought to be accomplished must be considered. If the court were to accept said contentions, the general purpose, obvious duty and manifest policy of the Common Council to investigate public officers and public affairs could easily be defeated and obstructed."], "id": "ba8df2d5-43a6-4272-bced-dec04235d197", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Arthur M. Schack, J. *878After settlement of the instant case by plaintiffs incoming attorneys, Michael A. Zimmerman & Associates, EC., plaintiffs outgoing attorneys, Rovegno and Taylor, EC., move for an order to determine the division of legal fees between the incoming and outgoing attorneys. Mr. Zimmerman disputes Rovegno and Taylor\u2019s motion, claiming that the outgoing attorneys were discharged for cause and not entitled to any fee, or in the alternative, if discharged without cause, Rovegno and Taylor should have their fee determined on a basis. For the following reasons this court finds that the outgoing attorneys were dismissed without cause, and the outgoing attorneys, because of no prior fee agreement with the incoming attorney, are entitled to payment of legal fees from the settlement proceeds on a contingency basis."], "id": "7f0d0f0d-3675-4f76-b551-d1216bd317d1", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Claimant County of Monroe alleges that upon the sentencing of convicted felons it is the duty of the County Sheriff to deliver said defendants to the Department of Correctional Services (see, CPL 430.20, 430.30; Penal Law \u00a7 70.00 [1]; \u00a7 70.20 [1]), and that this transfer must be effected \"forthwith\u201d (CPL *262430.20 [1]). The claimant county contends that, due to the State\u2019s unwillingness to accept convicted felons \"forthwith\u201d, said claimant was required to house and maintain numerous State-ready prisoners for periods averaging between 10 and 49 days after sentencing, the longest delay in acceptance being 189 days. The county now seeks to recover for the expenditures which it incurred by reason of the State\u2019s alleged breach of the statutory mandate of CPL 430.20 (1). However, recognizing that recovery cannot be obtained through an action on an implied in fact contract (see, Parsa v State of New York, 64 NY2d 143, 147-148), or by application of the doctrine of (see, Business Jet Airlines v County of Nassau, 105 AD2d 679; see also, Dempsey v City Univ., 106 AD2d 486; County of Onondaga v State of New York, Ct Cl, motion No. M-31741, Dec. 26, 1984, Lowery, J.; see generally, Beth Rifka, Inc. v State of New York, 114 AD2d 560), the county advances the argument that the provisions of CPL 430.20, which require the State to accept sentenced prisoners \"forthwith\u201d, also establish an action for money damages upon the State\u2019s failure to follow said directive."], "id": "d9c779eb-1c13-4ced-b2dd-41129c5fcb34", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The many holdings that the right of a fiduciary to commissions does not create a disqualifying interest, within section 347 of the Civil Practice Act, draw a distinction between a testamentary benefit, which is a gratuity, and an opportunity created by a will to perform services and receive remuneration therefor on a basis. In differentiating between something donated and something earned the courts have held consistently that a fiduciary\u2019s expectancy of fair compensation for services does not render him incompetent to testify to personal transactions with his testator (Reeve v. Crosby, 3 Redf. 74; Rugg v. Rugg, 83 N. Y. 592; McDonough v. Loughlin, 20 Barb. 238; Matter of Folts, 71 Hun 492; Loder v. Whelpley, 111 N. Y. 239; Matter of Benardini, 238 App. Div. 433, affd. 263 N. Y. 627; Matter of Wilson, supra; Matter of Behan, 159 Misc. 337; Matter of Faeth, 200 Misc. 143)."], "id": "bbcfa1f8-1ab5-4371-8a5f-3e0c6b705417", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Where there is an express contract for compensation, an action will not lie for . (Foster v White & Sons, 244 App Div 368, 371, affd 270 NY 572 [1936]; Jontow v Jontow, 34 AD2d 744 [1st Dept 1970].) This principle applies to the awarding of attorneys\u2019 fees. (Jontow v Jontow, supra; Murray v Waring Hat Mfg. Co., 142 App Div 514, 517 [2d Dept 1911].) Accordingly, where there is an express contract, as here, providing for a fee division between counsels, the fees due to referring counsel and the attorney to whom the case was referred are not to be determined based on quantum meruit. (Jontow v Jontow, supra; Sterling v Miller, 2 AD2d 900 [2d Dept 1956], affd 3 NY2d 778 [1957].)"], "id": "83caf8e7-6725-43cd-b5bc-59c5cc1a58ea", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["The court is sympathetic to the assertion that the legal representative, in this instance the executor, performed any number of valuable services to the estate, and acted appropriately in making its decision regarding the lump sum versus the installment payments. It was its duty to do so. As this court has observed on any number of occasions, however, the payment of executor\u2019s commissions is purely statutory and arithmatic. All too often it bears no resemblance to a . Simply put, executor\u2019s commissions are computed on amounts received and paid out. Accordingly, despite it having performed valuable services in connection with the asset, it was an asset neither received nor paid out and accordingly not commissionable. It has long been held that commissions are not payable on property passing directly to a trustee and bypassing the executor. (Matter of Del Monte, 66 Misc 2d 458.) So too must this court dismiss the argument that the asset was commissionable because executor performed a service in connection therewith. That is simply not the qualifying standard in this State. On any number of instances executors are called upon to exercise authority and perform services with no commission available. Real property turned over in kind, efforts made with respect to stock specifically bequeathed are but two instances of areas described where no commission is available. (See, Matter of Tucker, 75 Misc 2d 318; Matter of Lane, 55 Misc 2d 88; Matter of Cullen, 127 Misc 2d 105; Matter of Roth, 53 Misc 2d 1066; Matter of Salomon, 252 NY 381.) While the efforts made in the exercise *199of its executorial duties have benefited the estate, unfortunately the law does not provide for recompense of those efforts beyond the calculable commissions. However, if there are additional attorney or other professional support fees with respect to the executor\u2019s decision the court allows those as disbursements on their itemization."], "id": "1e87e789-5829-4c89-bb8f-e9e5b6210fb8", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Here, it is not disputed that plaintiff did not possess a home improvement license. Thus, if plaintiff was required to possess such a license, plaintiff would be precluded from recovering under either the contract or in . We agree with plaintiff, however, that no license was required, since the building in which the work was performed is situated outside the City of New York."], "id": "640cc704-e9dd-40aa-9604-2ef336a9f227", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Although the plaintiff\u2019s second cause of action against defendant Frank sounds in , an amendment of the pleadings to allege a cause of action in express contract would be permitted. See Dittmar Explosive v A.E. Ottaviano, Inc. (20 NY2d 498), Diemer v Diemer (8 NY2d 206) and Harbor Assoc. v Asheroff (35 AD2d 667) especially where the defendant Frank is on adequate notice of the underlying facts and the only change is one of theory. (Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR 3025, C3025:15-C3025:17, pp 486-488.)"], "id": "84dbb663-b381-4d73-9c6d-116f6758d218", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Katsura determined the engineer could not orally modify the contract, explaining: \"There is no provision in the City charter for execution of oral contracts by employees of the City who do not have requisite authority. The alleged oral statements by the associate city engineer and project manager are insufficient to bind the City. ' \"No government, whether state or local, is bound to any extent by an officer's acts in excess of his ... authority.\" ' \" ( Katsura, supra, 155 Cal.App.4th at p. 109, 65 Cal.Rptr.3d 762.) Katsura then held \" 'a private party cannot sue a public entity on an implied-in-law or quasi-contract theory, *73because such a theory is based on or restitution considerations which are outweighed by the need to protect and limit a public entity's contractual obligations.' \" [Citations.] [\u00b6] ... The reason is simple: ' \"The law never implies an agreement against its own restrictions and prohibitions, or [expressed differently], 'the law never implies an obligation to do that which it forbids the party to agree to do.' \" ' [Citation.] \"In other words, contracts that disregard applicable code provisions are beyond the power of the city to make.\" ( Id. at pp. 109-110, 65 Cal.Rptr.3d 762.)"], "id": "dfe5b1d0-c815-4313-84d0-1a1c4b137af0", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Except in one particular, hereinafter mentioned, the three counts relate to the same transaction. On that ground the respondents\u2019 counsel contends that the pleading violates the mandate of the Code, that the complaint must contain \u201c a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.\u201d (Sec. 481, sul^ 2.) But there may be more than one - cause of action arising out of the same transaction, and if the several causes of action are such as may be united under section 484, their joinder does not necessarily vitiate the complaint. Where it can be seen 'that the statement of each cause of action is probably needful in order to prevent a failure of justice, in consequence of a variance between the pleading and the proof, we think such statement, provided it be plain and concise, should not be regarded as \u201cunnecessary repetition\u201d within the meaning of the Code. Thus, in an action for labor and. services alleged to have been performed under a special contract at *103an agreed price, if it appears that, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, we think the spirit of the Code does not prevent the adding of a count for the same labor and services upon a . In the pi\u2019esent case the first count is of that nature and it. embraces a period from the 1st of October, 1884, to 1st of January, 1885, not covered by the special agreement as set out in the other two counts. Upon these grounds we think the first and second counts may be permitted to stand."], "id": "75f55d61-2da1-4133-92b8-f7db5e84ccf4", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["_ _ If the fifth cause of action is not of a class which will support a warrant of attachment, the joinder of that cause of action with one in will bar an attachment (Brown v. Chaminade Velours, 176 Misc. 238, affd. 261 App. Div. 1071). While the fifth cause of action was previously held by Special Term to be one for the recovery of a sum of money only and, therefore, one in which attachment was authorized (Corcoran & Kostelanetz v. Dupuy, 15 Misc 2d 456, mod. on other grounds *4656 A D 2d 776), that ruling does not constitute the law of the case and is not binding on the defendant, Jacques Dupuy, who was not a party to the action at the time the ruling was made. Moreover, the Appellate Division in passing upon the warrant of attachment issued against defendant, Gladys de Polignac, did not rule upon that point when it modified the decision at Special Term, but modified the decision solely upon the ground the fifth cause of action failed to show that plaintiffs were entitled to recover a stated sum. In deciding the question whether the fifth cause of action sounds in equity or at law, Special Term specifically relied on the rulings in Gross v. Miller (151 Misc. 727; cf. Gough v. Frost, 190 Misc. 927). These cases are distinguishable from the cause of action pleaded herein under section 170 of the Decedent Estate Law inasmuch as this cause of action is asserted against several legatees to whom assets of the estate of the testator have been paid, whereas in the cited cases only a sole legatee or distributee took the assets of the estate. In those circumstances no preliminary relief in equity was necessary to an award of a money judgment because no apportionment of the recovery had to be made pursuant to section 172 of the Decedent Estate Law. However, in the present case several legatees are involved and plaintiffs under the statutes (Decedent Estate Law, \u00a7\u00a7 170, 172) are seeking to follow the assets of the testator into the hands of the legatees who are only liable in proportion to the extent of the property individually received by them. While only personal property is involved and no relief is necessary to establish a lien on real property, nevertheless, any money judgment must be predicated upon findings by the court apportioning the amount found to be due from the testator among the recipients of the testator\u2019s bounty (Decedent Estate Law, \u00a7 172). Accordingly, the action under section 170 of the Decedent Estate Law is one sounding in equity (Herzog v. Marx, 58 Misc. 356; Howell v. Wallace, 37 App. Div. 323). Plaintiffs, by joining a cause of action which is not eligible for attachment with one in which an attachment is authorized, are not entitled to an attachment (Brown v. Chaminade Velours, 176 Misc. 238, affd. 261 App. Div. 1071). To permit plaintiff to sever and discontinue this cause of action would by indirection permit them to validate an attachment which was void in its inception."], "id": "5fdc7db7-6ff0-455d-8d8d-7f21fbc445fb", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["In conclusion, the court (supra, at 931), found that: \"In New York, a money judgment may be enforced against any debt, *610which is past due or which is yet to become due, or upon an assignable cause of action. N.Y.C.P.L.R. \u00a7 5201 (a). The same statute permits enforcement of a money judgment against any property which could be assigned or transferred, whether or not it is vested. N.Y.C.P.L.R. \u00a7 5201 (b). However, a trade name in gross is not 'property\u2019 within the meaning of the statute. Compare Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652, 389 N.Y.S.2d 327, 357 N.E.2d 983 (N.Y.1976) (creditor can enforce debtor\u2019s contractual claims to reimbursement which are due), with Glenmore Distilleries Co. v. Seideman, 267 F.Supp. 915, 918 (E.D.N.Y.1967) (a claim in '* * * being only inchoate, uncertain, and contested, has no present value * * * \u2019 and is not due certainly or on demand.)\u201d"], "id": "52a0aa4e-df3d-4fc5-969d-56ab3de01d0d", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff LePatner & Associates, LLP (LePatner LLP), a law firm, commenced this action on April 7, 2008, by filing a summons and complaint. In the complaint, LePatner LLP seeks to recover the sum of $187,107.61, together with interest, in unpaid legal fees and disbursements allegedly incurred by the Horowitz brothers and due plaintiff in prosecuting a lawsuit on their behalf (see Horowitz v Sterling Acquisitions Group, L.L.C., US Dist Ct, SD NY, case No. 9010/05 CLB [the District Court action]). LePatner LLP asserts causes of action based on theories of account stated, breach of contract, , and unjust enrichment."], "id": "3e01bc63-3732-45a2-8155-687b5b03645e", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["Cassella v. City of Schenectady (281 App. Div. 428), cited by defendant, denied recovery to a physician for services rendered to the Fire Department at the request of its Chief. The position was in the noncompetitive class of the civil service. Plaintiff had not been appointed to the position. Recovery in was denied, the court stating that the fact the city accepted the benefits of the service so given did not entitle him to recover in quasi-contract; the requirements of the Civil Service Law may not be avoided. But the court went on to say (281 App. Div. 432): \u201c Recovery may be allowed against a municipality in quasi contract for benefits received under an unenforcible contract where the invalidity of the contract was due to a mere irregularity or a technical violation (e.g., Ward v. Kropf, 207 N. Y. 467; cf. Rosasco Creameries, Inc., v. Cohen, 276 N. Y. 274) but where the making of the contract flouted a firm public policy or violated a fundamental statutory restriction upon the powers of the municipality or its officers, recovery in quasi contract is uniformly denied. (McDonald v. Mayor, 68 N. Y. 23, 28; Seif v. City of Long Beach, 286 N. Y. 382; Brown v. Mt. Vernon Housing Authority, 279 App. Div. 794; 6 Williston on Contracts [Rev. ed.], \u00a7 1786A; 2 Restatement, Contracts, \u00a7 598.) \u201d"], "id": "1fe301ca-b283-468c-ba09-ef33448efb42", "sub_label": "US_Terminology"} {"obj_label": "quantum meruit", "legal_topic": "Business Law", "masked_sentences": ["While the employment of an attorney by a client is largely governed by the contractual provisions of the retainer, elements of trust and confidence endemic in the attorney/client relationship add a dimension to the retainer beyond the terms of the retainer agreement. Thus it has consistently been held in this jurisdiction that irrespective of the express terms of employment, a client may at any time, for any reason, or without any reason, discharge his attorney (Gair v Peck, 6 NY2d 97; Martin v Camp, 219 NY 170). A necessary corollary of the rule that a client has an unfettered right to discharge his attorney at any time and for any reason is that the client, upon discharging his attorney, cannot be held liable for damages for breach of contract (Gair v Peck, supra; Martin v Camp, *865supra; Crowley v Wolf, 281 NY 59). An attorney employed under a contract providing for a specific fee, who is discharged without cause, is relegated to recovery upon for services rendered prior to discharge (Matter of Montgomery, 272 NY 323; Pratt v Hurley, 2 AD2d 983; Martin v Camp, supra; Myers v Myers, 2 AD2d 835). Moreover, an attorney, as an officer of the court, is judged as such, and contractual rights will yield to the court\u2019s inherent and statutory power to regulate the practice of law, including the charging of fees for legal services (Gair v Peck, supra; Matter of First Nat. Bank of East Islip v Brower, 42 NY2d 471; Reisch & Klar v Sadofsky, 78 AD2d 517)."], "id": "6de07ad3-dc7b-42a8-b138-a3eff37a8298", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It is suggested that certain contracts \u201c should be in writing and the writing should be produced \u201d (Hamlin v. Stevens, 177 N. Y. 39, 50) ; but this cannot be taken as any intimation that where the delivery of the writing rests in part upon there is no room for the operation of the rule of caution and the requirement of clear proof."], "id": "8e339a55-8196-413f-8eea-249325f3cf7d", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["This statement of the relative number of B. T. U.\u2019s in oil and coal respectively, related to the efficiency of the oil heater which the plaintiff proposed to sell defendants, and install in their macaroni plant. Was the natural tendency of this affirmation an inducement to the defendants to buy the heater? The court so held on the trial when the defendants sought to show the prior discussion between the parties as to why they were induced to change from coal to oil. The plaintiff objected to its receipt on the ground that might not be received to vary the terms of a written instrument. The court then ruled that if the plaintiff contended the language was ambiguous and did not warrant this construction, he might show by parol evidence how the statement *180came to be inserted as a part of the contract. He did not accept the court\u2019s offer. He should be bound by the court\u2019s construction \u2014 unless the same is plainly erroneous."], "id": "be398d4d-58a9-491b-9ce5-a75d22bce79c", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Where the language of the will, even when read in the light of extrinsic circumstances, admits of but one construction, must be excluded. (Dwight v. Fancher, 245 N. Y. 71; Matter of Smith, 254 id. 283; Brown v. Quintard, 177 id. 75, 83; Matter of Disney, 190 id. 128; Matter of Milliette, 123 Misc. 745; Matter of Shumway, 138 id. 429.) This rule of exclusion of parol evidence has been applied by me only by reason of the peculiar facts of the present proceeding. Cases may arise where the proof of a ceremonial marriage prior to the will may be received despite the contradictory description of the legatee in the will. Again a valid common-law marriage, particularly to effect legitimizing of the issue, might be proven to have existed at the time of the will. Neither of these situations is present here."], "id": "46a5a342-1cf6-4c40-ae5e-2fa8a436dbb8", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff contends that if the court finds that defendant is a \"merchant\u201d, for purposes of subdivision (2) of section 2-201 of the Uniform Commercial Code, then the letter of August 5, 1974 was a \"partially integrated\u201d contract (even though never signed by the defendant); and, the defendant may not contradict its terms by . This rationale is a common error, that even the courts have misconstrued. Ever since Trafalgar Sq. v Reeves Bros. (35 AD2d 194), the lower courts have construed subdivision (2) of section 2-201 that the failure to respond in writing within 10 days means that the terms of the writing are automatically accepted. Until recently, this misconception was so well entrenched that a trial court characterized it as \"well settled law that by retaining the contract herein without written objection for a period of more than ten days, [one] accepted said contract\u201d. (Matter of Beydoun, NYLJ Sept. 13, 1977, p 7, col 2.)"], "id": "b45e584e-a1cb-40a8-ac61-9fcc699ee5d5", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It is said in 1 American Leading Cases, that in order that a principal may be bound upon a written instrument not under seal, it is necessary that his name should appear in some part of the instrument. The rule is, that in suing on a written instrument, such as a promissory note, the whole liability must be made out on the instrument itself, and that is not admissible to alter or add. to a written agreement that is made the grounds of the action, and therefore a principal cannot be made liable on a written instrument, or by force of a written agreement, when his name does not appear in the instrument or agreement as a.party to the contract. If the names of the widow and heirs must be disclosed on the face of the instrument in order to subject them to liability, it is not done in this case, aud the plaintiff was rightly nonsuited. In Clinton v. The Hope Insurance Company (45 N. Y., 454), the action was upon a policy of insurance issued by the defendant, \" insuring the estate of Daniel Ross \u201d for one year, on a cotton mill and the machinery therein."], "id": "4b7dbe5d-5bdf-45b0-b147-1db1814cb05f", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Turning to the criteria for contract interpretation, if a contract provision is reasonably susceptible of more than one interpretation, facts and circumstances extrinsic to the agreement can be considered to determine the intention of the parties. (Chimart Assocs. v Paul, supra, at 572-573; 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245, 248 [1975].) of conversations, negotiations and agreements made prior to or contemporaneous with the contract in question (supra, at 248-249), and relating to the subject matter of the contract (Anchin, Block & Anchin v Pennsylvania Coal & Coke Corp., 284 App Div 940, 941 [1st Dept 1954], affd 308 NY 985 [1955]; Levinson v Shapiro, 238 App Div 158, 160 [1st Dept], affd 263 NY 591 [1933]), the relationship of the parties (St. Regis Paper Co. v Hubbs & Hastings Paper Co., 235 NY 30, 35-36 [1923]; J & R Lamb v Norcross Bros. Co., 208 NY 427, 431 [1913]), the purpose or object of the contract, or of a specific provision of the contract (Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6 [1976]; O\u2019Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 55 [1939]; Manson v Curtis, 223 NY 313, 320 [1918]), and of industry custom and usage (Merritt Assocs. v Scollard, 161 AD2d 502 [1st Dept 1990]), is admissible to explain an ambiguity."], "id": "c4fb6888-e8fa-43a2-b0ec-dd549000352c", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The first reported case upon the subject after the revision of 1830 was Adams v. Winne (7 Paige Ch. 97 [1838]). The opinion was written by Chancellor Walworth. On the question of evidence he wrote: \u201c I believe the revised statutes have settled the principle, which before had been left in doubt by the conflicting decisions of courts, that where the law presumes a revocation from a change in the testator\u2019s family or property after the making of his will, of actual intention to the contrary is not admissible to rebut that presumption. * * * Although he differed with his associates as to the application of one of those arbitrary rules to a part of the case then under consideration, he was nevertheless constrained to admit that some of those rules, which evidently defeated the probable intent of the testator, had become settled'rules of property which the legislative power alone had a right to change.\u201d"], "id": "138f9a07-7ccf-4dd7-becd-6815fb5f5ca6", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The claimant\u2019s cross motion for examination of the Clerk of the Assembly, the Secretary of the Senate and the Counsel to the Governor is denied. Even if were admissible to impeach the accuracy of the entries in the official legislative journals (City of Rye v. Ronan, 67 Misc. 972, 977, supra) the claimant does not claim any inaccuracies or ambiguities. (Cf. Franklin Nat. Bank of Long Is. v. Clark, 26 Misc 2d 724, 728, 745.)"], "id": "4ec91e7c-6f6c-490c-8f9e-630be129873f", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Moreover, we are making our decision based on the clear and explicit language in the covered perils provision of the insurance policy; that is, we do not find the contract terms to be ambiguous. Thus, we do not consider Doyle's expectations at the time of contracting based on extrinsic (e.g., Fireman's Fund's marketing materials, Doyle's homeowner's policy, etc.). (See Elliott v. Geico Indemnity Co. (2014) 231 Cal.App.4th 789, 801-802, 180 Cal.Rptr.3d 331 [\" 'Although parol evidence may be admissible to determine whether the terms of a contract are ambiguous [citation], it is not admissible if it contradicts a clear and explicit policy provision' \"].)"], "id": "7f56cc0a-0262-47f2-a1a1-1145c6619d69", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff contends that would establish that the written contract does not contain the entire agreement between the parties. \"The answer to this contention is that the contracts appear upon inspection to be in all respects complete and that beyond this our inquiry may not go * * * We may not have recourse to the parol evidence to ascertain *304whether they do in fact include the entire agreement of the parties.\u201d (William H. Waters, Inc. v March, 240 App Div 120, 125.)"], "id": "388e09ea-149d-41c0-982d-ea45817162bd", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["*602Since the alleged oral agreement was made before the plaintiffs employment was to commence and was to be performed for one full year thereafter, the agreement was covered by the Statute of Frauds (see, Tallini v Business Air, 148 AD2d 828; Ginsberg v Fairfield-Noble Corp., 81 AD2d 318; Gottlieb v Gins, 102 Misc 686; General Obligations Law \u00a7 5-701 [a] [1]). For a writing to meet the requirements of the Statute of Frauds, it must contain all of the material terms of the agreement (see, Cohon & Co. v Russell, 23 NY2d 569, 575). In an employment agreement, the duration of employment is a material term. Since the offer sheet did not include the duration of the plaintiffs employment, the Statute of Frauds was not satisfied. Furthermore, may not be used to prove that a writing constitutes the parties\u2019 agreement if the writing is insufficient on its face to satisfy the Statute of Frauds (see, Scheck v Francis, 26 NY2d 466; 61 NY Jur 2d, Statute of Frauds, \u00a7 321). \"It is settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party\u201d (Sabetay v Sterling Drug, 69 NY2d 329, 333; see also, Mayer v Publishers Clearing House, 205 AD2d 506; Doynow v Nynex Publ. Co., 202 AD2d 388). Consequently, the plaintiff was employed at will, and his complaint should have been dismissed (see, Mayer v Publishers Clearing House, supra; Doynow v Nynex Publ. Co., supra)."], "id": "4228b478-76b0-4366-ac81-3e93d6f1ba2a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The only substantial question presented here is whether the parties did in fact so shape the transaction. It is fundamental that a corporation used for the sole purpose of borrowing money at a rate of interest which would be usurious if an individual were the borrower is nevertheless prohibited from raising the defense of usury, as is the beneficial owner of all the stock of the corporation. (Jenkins v. Moyse, 254 N. Y. 319; New York Credit Men\u2019s Assn. v. Manufacturers Discount Corp., 298 N. Y. 512; Werger v. Haines Corp., 302 N. Y. 930.) That is apparently what the parties intended to do here; to use the corporation to borrow the money and to pay the bonus. But that was not the entire \u201c shape \u201d or form of the transaction. Although the corporation alone owned the property and executed the mortgage, the individuals and the corporation together executed the note and the extension agreement. If the effect of this was merely that the individuals were guarantors or sureties of the fundamental debt of the corporation, then such individuals are likewise prohibited from raising the defense or recovering the penalty, for they stand in no better position than the corporation whose debt they have guaranteed. (General Phoenix Corp. v. Cabot, 300 N. Y. 87; Salvin v. Myles Realty Co., 227 N. Y. 51.) If, on the other hand, the effect was that the individuals were actually principal obligors, as distinguished from accommodation comakers whose rights would be gauged by the same rules as those governing guarantors, then the defense of usury would be available to them. (Pink v. Kaplan, Inc., 252 App. Div. 490; Astra Pictures v. Schapiro, 182 Misc. 19; Rockmore v. Epstein, *333127 Misc. 526; Cabrera v. Olsen, 165 Misc. 374.) Such a determination involves factual issues which would preclude the granting of summary judgment to either side. A trial would be necessary to determine the exact status of the parties, and would be admissible to the extent indicated in the Pink case."], "id": "4d342c59-dce8-455b-9fe5-b73f100ebdf7", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In the case at bar we have the fact of the ownership by the testator, at or about the time of drawing the will, of government bonds of the face value of $7,500, and of the separation of these bonds into several piles, one of which corresponded with one of the legacies.' From these facts counsel for the executors claim that the will should be read as though the words \u201c at par \u201d were inserted after the words \u201c government bonds,\u201d in every instance where they occur in the will. Whatever inference may be drawn from0these circumstances, it is certain that when the testator reduced his intentions to writing the words he used do not admit of the construction now sought to be put -upon them. His original intention has become merged in the writing, and is not admissible for the purpose of contradicting or varying it in any way. Matter of Keleman, 126 N. Y. 73."], "id": "0057df8b-8940-40aa-868b-c1bb954bc028", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["If a contract contains language which is unclear or ambiguous, such as a word which has acquired a specific trade meaning, may be used as an aid to interpretation of the language. (Richardson, Evidence [10th ed], \u00a7 625.) Similarly, parol evidence may be used to show the circumstances surrounding the execution of the writing, if the contract contains language of doubtful meaning. If it would not be possible for the court to ascertain the parties\u2019 intention because of such a doubtful meaning, the extrinsic evidence of collateral facts and surrounding circumstances serves to assist the court in interpretation. (Richardson, Evidence [10th ed], \u00a7 626.)"], "id": "31184899-bf6d-49b4-989a-952e887d9419", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["We think, however, tbat tbe court erred in receiving evidence of the admissions of tbe defendant tbat bis bouse and lot in 'Water-town were incumbered by mortgage. Tbe existence of tbe incumbrance was a material fact for tbe prosecution to prove, and tbe best evidence was tbe mortgage itself, tbe record, or a certified copy of tbe record. 'Without. accounting for tbe absence of \u25a0 these, secondary evidence was not admissible. Yerbal admissions of tbe defendant were no higher evidence than parol testimony of tbe contents of tbe mortgage. It seems to be tbe rule in this State tbat tbe admissions of a party are competent evidence, only when of tbe fact sought to be shown by such admissions would be competent. In Welland Canal Company v. Hathaway (18 Wend., 180), it was held tbat evidence resting in records cannot be supplied by proof of admission of the party sought to be affected by such evidence, of tbe existence of tbe facts appearing by such records. To tbe same effect are Jenner v. Joliffe (6 Johns., 9) and Hasbrouch v. Weaver (10 id., 246). Tbe prosecuting attorney acknowledged tbe force of this rule and endeavored to comply with it by offering in evidence a certificate of tbe clerk of Jefferson county, tending to show tbe existence.of a mortgage on defendant\u2019s bouse and lot in Watertown, but tbe certificate, not containing a copy of tbe whole of tbe mortgage, it was excluded. The district attorney then offered himself as a witness, and testified, under objection, that, in a certain conversation, tbe defendant said to him that be owned a bouse and lot in Watertown worth $40,000, which was incumbered by a mortgage of $20,000, given to trustees to secure bonds negotiated by the trustees. This, we think, was clearly inadmissible. Not only was it an attempt to prove \u00e1 record by parol, but it did not profess' to be evidence of tbe whole of tbe record, and so was subject to tbe very objection upon which the clerk\u2019s cer*578tificate had been excluded. Moreover, the admission shows that the mortgage was special in its character, and the question whether it constituted an incumbrance on the property involved an inquiry as to its legal effect, for which purpose parol evidence of admissions is never admissible."], "id": "c0af6919-e3b1-4375-8c24-02835c48fe73", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In Coleman v. First National Bank of Elmira (53 N. Y., 388) the plaintiff went to the defendant\u2019s bank for the purpose of making a deposit of a sum \u00f3f money, and left the same with the teller and informed him that he wanted interest upon it; and thereupon the teller, without anything further being said, handed to him a certificate of deposit, upon the face of which it appears that the deposit was made with one S. R. Yan Campen personally, who was at that time the president of the bank ; nor did the certificate indicate upon its face that the deposit was made with the bank; .and the court held that the real issue was whether the bank or Yan Campen was the depositee. Unexplained, the fact that the plaintiff accepted the certificate of Yan Campen was strong evidence that the bank was not a party to the transaction; but it was .evidence only, and was subject to explanation by parol proof without violating any rule of evidence. The court further said: \u201c The rule does .not preclude a party, who has entered into a written contract with *163an agent, from maintaining an action against the principal upon parol proof that the contract was made in fact for the principal, where the agency was not disclosed by the contract and was not known to the plaintiff when it was made; or where there was no intention to rely upon the credit of the agent, to the exclusion of the principal. Such proof does not contradict the written contract. It superadds a liability against the principal to that existing against the agent. That may be introduced in such a case to charge the principal, while it would be inadmissible to discharge the agent, is well settled by authority.\u201d In the same case it is also remarked: \u201c One who deals with an agent is not concluded from resorting to the principal unless it distinctly appears that, with full knowledge of all facts, he elected to take the sole responsibility oi the agent, and that he designed to abandon .any claim, against the principal.\u201d"], "id": "2cdf994f-8084-4aec-9c23-03b64085c86c", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Domestic Relation of Husband and Wife.\u2014In California the relation of husband and wife is a confidential relation, and when this confidence is violated by the refusal of one spouse to execute an oral trust on which land was transferred to him or her, as a trust to re-convey the land to the other spouse on request (Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689), or to hold the land for the joint use of the two spouses (Barbour v. Flick, 126 Cal. 628, 59 Pac. 122), or to so hold it during their joint lives and afterward to hold one-half thereof for the use of their daughter (Hayne v. Hermann, 97 *263Cal. 259, 32 Pac. 171), a constructive trust arises which a court of equity will enforce and to establish which is admissible. So in Thompson\u2019s Lessee v. White, 1 Dali. 424, 1 Am. Dec. 252, 1 L. Ed. 206, where a wife, desiring her husband to have the use of her separate lands during his life, conveyed them to a third party, who reconveyed them to herself and husband as joint tenants under a parol promise on the part of the husband by will or other means to settle the lands on her sisters and children, but the husband died after the wife without having made such settlement, the court enforced such oral trust in behalf of the beneficiaries thereof against the heirs of the husband and a grantee of them with notice. In Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689, the court said: \u201cIf the relief cannot be granted in this case, we do not see how it could be granted if an attorney should, by his parol promise, induce his client to put the property in his name for some temporary purpose, and then refuse to re convey on the ground of the absence of a written acknowledgment; and so of principal and agent, parent and child, trustee and cestui que trust, etc.\u201d"], "id": "291130be-3c7d-4b65-9969-3b87218b590e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Applying the rules thus laid down to the case under consideration, it seems clear that this is a proper one for the admission of extrinsic evidence to ascertain what the testatrix meant by the expression, \u201cthe home and foreign missions.\u201d Evidently, she meant two separate organizations or societies, as she gives two fourths of the rest and residue, to be divided equally between the home and foreign missions ; and it seems clearly a case of latent ambiguity which may be explained by parol. The case of Leonard v. Davenport is a case similar in many respects to the one under consideration. The Board of Home Missions of the Presbyterian church in the United States of America was allowed to take a legacy bequeathed to \u201c the Home Missionary society,\u201d and against the claim of the American Home *522Missionary society, an unincorporated body, upon that the testator was in the habit of contributing to the Presbyterian committee of Home Missions, was a member of the Presbyterian church with which that society was connected, that the claims of the society were presented in the church of which the testator was a member, and that he had spoken kindly of the efforts of that society (Leonard v. Davenport, 58 How. Pr., 384). It is claimed, however, that the declarations of the testator can only be received where they are made prior to, or contemporaneously with, the execution of the will, and that declarations made afterward cannot be received, as the result might be to make a will entirely different from that which the testator intended. Kedfield lays down the rule, after a consideration of many English and American cases, that, where there is a latent ambiguity, ee any degree of latitude in regard to the admissibility of evidence to show the testator\u2019s intention either by his acts or declarations before, at the time of, and after the execution of the instrument is admissible\u201d (\u00a7 40, p. 591), and that, in such cases, such evidence is received merely in aid of the construction."], "id": "99634372-6cbf-47d8-9939-22cec32100f9", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Inasmuch as the invoices were fully integrated documents that set forth all the essential terms of the parties\u2019 agreements regarding the sale of fish, Glatt\u2019s claim, that prior to the invoicing lower prices were agreed upon, is barred under the rule, as codified in section 2-202 of the Uniform Commercial Code (Sunkyong Am. v Beta Sound of Music Corp., 199 AD2d 100, 101 [1993]; see also Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 522 [1991]; Raj Jewelers v Dialuck Corp., 300 AD2d 124 [2002])."], "id": "e9278928-56a2-486c-a56e-74a176fa057f", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The most that can be said for the letters which were received in evidence is that they contain admissions which tend to support plaintiff\u2019s claim. But admissions have no characteristic or quality peculiar to themselves, or distinguishing them from other facts in evidence. As Judge Collin said in Gangi v. Fradus (227 N. Y. 452, 457): \u201c In case they were made in ignorance of the facts or in an abnormal state of mind, or were based in part upon mere opinion, or were made casually or thoughtlessly or insincerely, or under like or analogous conditions or circumstances, they may, in reason, deserve slight consideration or value or none at all.\u201d And so, admissions are subject to explanation or correction by . It follows that it was open to the defendant to establish all the facts and circumstances surrounding these letters, even though they contradict and vary the writings. (Komp v. Raymond, 175 N. Y. 102; Seeley v. Osborne, 220 id. 416.)"], "id": "12c54e90-5789-4c20-a074-a3f52c1d342d", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It was also contended that the testimony as to the understanding of the mercantile community on the construction of policies of insurance ought to have been received by the court. That there are many cases where is admissible to prove the understanding of parties to an instrument in writing, is admitted; but, as I think, this is' not one of them. The purpose, as avowed, for which parol testimony was to be introduced, was to prove a common usage. Mr. Phillips, the author of a valuable treatise on insurance, has collected under \"one head, all the law relating to usage, affecting the construction of policies, to be found in the books of reported cases; none of which, however, meets the object which the counsel of the plaintiff in the court below wished to prove, viz. that the universal understanding of the insurance companies and the mercantile community is, that a policy similar to the one given in evidence is tantamount to a policy containing the words \u201c for account of whom it may concern.\u201d The instances cited by Mr. Phillips are all in cases where a difference existed between the insurers and the insured, not as in the present case, between the part owners of the vessel. One instance was, whether sarsaparilla was a root included in articles perishable in their own nature ; another, whether rice was comprehended in the term corn; another, whether Revel, in the Gulf of Finland, was included in the terms, any port in the Baltic; and another, whether a vessel loading at Tigre Island was the same as Amelia Island, it being customary for vessels bound to and from Amelia *157Island to discharge and load at Tigre Island, &e. There are several other instances cited by Mr. Phillips, in which custom will have an effect in the construction of certain words in a policy ; but, in exmry instance, the difference in opinion was either on the side of the assured or the insurer. See Phillips on Insurance, 15 to 18. In Higginson v. Dall, 13 Mass. R. 99, Chief Justice Parker observed, that the policy itself is in contract between the parties, and whatever proposals are made, or conversations had between the parties prior to the subscription, they are to be considered as waived, if not inserted in the policy, or contained in a memorandum annexed to it. Poli cies cannot be contradicted or varied by any antecedent written agreement of the parties, or by parol evidence of what passed at the time of effecting the policy. The usage of merchants, with reference to which the parties are supposed to contract, is frequently resorted to, for explaining or defining the terms of a policy; for the terms used in policies very commonly acquire, by the well known usage of trade, a peculiar sense, distinct from the popular sense of the words. However proof of usage is not admissible to contradict the plain unequivocal language of a policy. 2 Phillips\u2019 Evidence, 46."], "id": "77809578-141b-40c8-8dd5-15c39a06a9db", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Tenant, to the contrary, maintains that its said counsel did not agree to anything, but if all other electricity issues were resolved said counsel would \"recommend to tenant, his client, that electricity rent escalation increases be effective from the date of the Con Edison increase rather from landlord\u2019s demand.\u201d Accordingly, tenant moved to strike such Geller testimony as incompetent, in violation of the rule and in the context of settlement or compromise offers."], "id": "39561e48-0b3c-4810-a3bc-c5132b82e9f0", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["*644In Thrifty Payless , the landlord provided estimates to the tenant regarding its likely share of common area expenses during lease negotiations, but the estimates were not included in the lease. The tenant's share turned out to be higher, and the tenant sued for fraud, alleging the landlord knew the common area expenses were material to the tenant and intentionally and negligently misrepresented them. ( Thrifty Payless , supra , 218 Cal.App.4th at pp. 1234-1236, 160 Cal.Rptr.3d 718.) The landlord's demurrer, in part, argued that the rule prohibited evidence of its \" 'estimates.' \" ( Id. at p. 1237, 160 Cal.Rptr.3d 718.)"], "id": "e7c26c25-eaef-4598-aaa5-e401b03ed4c7", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["matter]; Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 260 [trial court may utilize \u201cto elucidate and explain an admission\u201d so long as such evidence does not \u201ccontradict the plain meaning of\u201d the response].)7 And even if the response could be read another way, substantial evidence supports the trial court\u2019s reading. Public Storage\u2019s failure to verify compliance is not evidence of a postcontractual abandonment of the insurance obligation because verification would require Public Storage to evaluate whether renters\u2019 alternative insurance policies were adequate to cover the goods in storage, and the Insurance Code precludes Public Storage from engaging in such evaluation. (See Ins. Code, \u00a7 1758.76, subd. (b)(3) [self-storage facility must disclose to renter that \u201cself- service storage facility and its employees are not qualified or authorized to evaluate the adequacy of the purchaser\u2019s existing insurance coverage\u201d].) And Public Storage\u2019s unwillingness to terminate rental agreements for failure to comply with the insurance obligation (even if the prospective tenant expresses an intent not to comply)\u2014whether due to an inability to evaluate compliance or due to a conscious choice\u2014does not somehow retroactively invalidate that obligation. Accepting plaintiffs\u2019 logic means that a party\u2019s decision not to enforce the breach of a contractual provision means that the provision was never a contractual obligation in the first place. This is nonsensical, and we may not construe contracts to lead to such absurdities. (Civ. Code, \u00a7 1638; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 831.)"], "id": "02713ba7-fbf0-4e1e-af1f-9eaa6fc4d861", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Evidence of extrinsic circumstances is frequently used to assist the court in the interpretation of language which a testator has used to express his testamentary intentions. \u201c is not admissible to show that the testatrix did not mean what she has said in words, though these words may have been chosen by the attorney who drafted the will \u201d rather than by the testator. (Dwight v. Fancher, supra.) In that case there was attempted to be proved that the word \u201c children \u201d was intended by the testatrix to include grandchildren. There, as here, the witness was the attorney and the draftsman of the will. His evidence was held to be inadmissible."], "id": "35993369-c94b-4645-a958-b5060aae0fc7", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The second cause of action raises the question whether the entries in the official Assembly Journal can be collaterally impeached by . There can be no question that if effect is given to those entries in this case, the Governor\u2019s veto of the bill must be held to have been timely. If there had been no recall, the pertinent 10-day period for executive action would have expired on June 4, 1971 and the bill would have become law without the Governor\u2019s signature if he had not returned it with his objections to the Assembly on that day. However, if the bill was actually recalled by the Legislature for purposes of amendment, as reflected by the entries in the Assembly Journal, a new 10-day period would necessarily have started to run again upon the subsequent redelivery of the bill to the Governor."], "id": "1f06a3bd-0b93-4e56-84b8-5a2f3f500e0a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["By the statute of frauds, all contracts concerning the title to lands, which are not reduced to writing, and signed by the parties, are declared to be invalid. The wise provisions of this statute would be wholly defeated, if was admissible to enlarge and support a defective written agreement. But I need not dwell upon this point here. This court has recently decided, that in the case (Mann v. Mann,*) even of a will, a patent ambiguity renders it void, and that parol evidence; to explain the intent of the testator, cannot be let in to establish it. If the law is so, in relation to wills, which are entitled to the greatest benignity, the reasons upon, which it is founded, apply with greater force to a case like the present."], "id": "88949ac6-6ac4-42dc-9301-4cd6bf3011e2", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In any event, in view of the foregoing the court cannot find that the terms of the contract, as read within the four corners of the agreement, require the interpretation urged by the City. Rather, because it is reasonably susceptible of different interpretations the court finds the provision to be ambiguous. (Feldman v National Westminster Bank, 303 AD2d 271 [1st Dept 2003].) therefore would be admissible, and under such circumstances the meaning of the contract becomes a question for the trier of fact. (Geothermal Energy Corp. v Caithness Corp., 34 AD3d 420 [2d Dept 2006]; Pellot u Pellot, 305 AD2d 478 [2d Dept 2003].) Since absolutely no evidence is presented that settles the issue in the City\u2019s favor, no prima facie showing that the contract calls for the increase to match the 2004 resolution has been made."], "id": "af4e4e0e-3237-49e5-8f11-652204833c56", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["892 F.3d 1298, 1302 (Fed. Cir. 2018). Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact, and that the mo- vant is entitled to judgment as a matter of law. Id.; RCFC 56(a). We view the facts supported by evidence, as well as all inferences drawn therefrom, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Whether a taking occurred is a legal question based on factual underpinnings. Chi. Coating Co., LLC v. United States, 892 F.3d 1164, 1169 (Fed. Cir. 2018) (quoting Stearns Co. v. United States, 396 F.3d 1354, 1357 (Fed. Cir. 2005)). In a takings case, determining the scope of a com- pensable property interest is a question of law. Casitas, 708 F.3d at 1351 (citing Tex. State Bank v. United States, 423 F.3d 1370, 1378 (Fed. Cir. 2005)). Relevant here, whether a specific deed conveys a fee simple interest or an easement is a question of law that we review de novo under the law of the state in which the property interest arises, here the State of Texas. Chi. Coating, 892 F.3d at 1169\u201370 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). In Texas, the standard of review applied to summary judgment in a deed construction case \u201cis tied directly to whether the deed is clear on its face.\u201d BNSF Ry. Co. v. Chevron Midcontinent, L.P., 528 S.W.3d 124, 128 (Tex. App. 2017). An unambiguous deed is reviewed de novo, looking only to the four corners of the document and em- ploying the usual canons of textual construction. Id. (citing Clayton Williams Energy, Inc. v. BMT O & G TX, L.P., 473 S.W.3d 341, 348 (Tex. App. 2015)). Interpretation of an ambiguous deed, i.e., a deed with two or more reasona- ble interpretations, presents a mixed question of law and fact, as a court may consider regarding in- tent. Id. That said, \u201c[a] deed is not ambiguous merely be- cause certain provisions of the deed conflict or appear to be internally inconsistent.\u201d Id. Case: 21-1445 Document: 36 Page: 7 Filed: 01/20/2022"], "id": "d99505c0-8b17-4b6e-9f63-5d7bffb8e55b", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["From this brief review of some of the leading cases on this subject, it is manifest that they do not all agree\u2014some holding that the former trial is equally conclusive, whether pleaded by way of estoppel' or given in evidence on the trial, while others assert the doctrine that, though conclusive by way of estoppel, it is only material testimony when given in evidence-on the trial, and may be. rebutted. Some decide that the record itself must constitute the only evidence, while others maintain that may be produced to shew the ground of the former decision, and to explain, but not contra-*25diet the record. The decisions in this court have not been uniform, nor is it perfectly clear where the weight of author. ity or of argument lies. As the very point has been decided in this court in this cause, I forbear entering more at large upon the question, conceiving that we are bound by the former decision."], "id": "b0ff540d-43a6-4b79-98dc-9678860cc4c5", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It may be doubtful if there was sufficient proof of a memorandum in writing of the contract subscribed by the parties to be charged. (2 Rev. Stat. 140, \u00a7 3, subd. 1.) It is not necessary that it should be comprised in one paper. It may be embraced in several, but they must be connected with, and refer to, each other, and the mutual relation of the writings must appear upon the face and cannot be established by , it being the policy of the statute to take the cases enumerated entirely out of the reach of verbal testimony. (Wright v. Weeks, 25 N. Y. 153; Stocker v. Partridge, 2 Robt. 193; Greenleaf on Evidence, \u00a7 268; Browne on the Statute of Frauds, 346, 3 ed., and cases there cited.)"], "id": "1eb6ac94-fd90-491c-b0fc-0c633c28b75e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff cannot prevail on this motion for summary judgment. If, as it contends on the one hand, the \"scope sheet\u201d is the entire agreement, the contract fails for indefiniteness for the omission of any number of material terms, including the scope of work to be performed, price, and time of performance (see, Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, supra), terms that plaintiff candidly concedes must be gleaned from the master agreement between Mount Sinai Hospital and the general contractor. But even if the \"scope sheet\u201d is regarded, for the sake of argument, as the entire agreement, defendant Kerby Saunders is not thereby barred from raising the issue that posting a performance bond was a condition precedent to the contract (Hicks v Bush, supra). Moreover, the burden to demonstrate that this condi*172tion was fulfilled and, therefore, that the contract became enforceable, falls upon plaintiff as the party to whom a duty is owed (Lindenbaum v Royco Prop. Corp., 165 AD2d 254, 258, quoting Calamari and Perillo, Contracts \u00a7 140, at 227-228). For the purposes of deciding the motion for summary judgment, only in the event that a valid and definite agreement can be established does the need for a trial in this matter arise, and then only for the purpose of permitting defendant Kerby Saunders to demonstrate, by the introduction of , that an otherwise complete and binding contract never become effective because it was conditioned upon the posting of a performance bond (Hicks v Bush, supra)."], "id": "c106f5d6-e5fe-4426-8435-dd4b27112c15", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Looking then at the substantial matters involved, and proceeding to decide upon the construction of tins will, I feel bound to apply such rules of interpretation as prevail in Connecticut, wherever they have been indicated by the decisions *299of the courts. I do not find, however, any peculiar doctrine, exceptional to the general law relative to testamentary cases. In the first place, it is clearly established, that in the interpretation of the will, the intent of the testator, as gathered from the instrument in its application to surrounding circumstances, must govern (Holms vs. Williams, 1 Root R., 332); and that of the intention of the testator is inadmissible to vary the express terms of the will. (Avery vs. Chappel, 6 Conn. R., 270 ; Matthews vs. Saunders, 11 Conn. R., 144 ; Canfield vs. Bostwick, 21 Conn. R., 550.) How let us see what the intent of this instrument is, as evinced in its progressive stages. After directing the payment of his debts, Mr. Parsons makes a devise and bequest to his wife, and requires his executors to pay to her annually from his estate, the sum of seven hundred dollars in quarterly payments, until her marriage or decease. There is nothing peculiar in this provision for an annuity. It is payable \u201c out of the estate,\u201d but those words are mere surplusage\u2014it would have been so payable without them. It implies, of course, that a fund shall be reserved for that purpose, but the reservation of a fund for that purpose, does not imply a reservation for another purpose. It never has been pretended that a general provision for an annuity affects the question as to the vesting of the estate upon which it is a charge. In the next place, we come to the prominent and leading disposition of the will. The testator gives all the residue and remainder of his estate, real and personal, by the broadest words of description, to his executors in trust. That a trust does not prevent the vesting of the estate de jwre, in the cestui que trust, is an undeniable proposition. The legal title may be in the trustees, but they are mere repositories, and the equitable right is always held by courts of equity as vested on the testator\u2019s death in the beneficiaries. The rules in regard to the vesting of testamentary bequests are not varied by reason of the intervention of a trust, unless it be that there is a stronger implication in favor of vesting where there is a trust than where there is not. (Van Wyck vs. Bloodgood, 1 Brad. Sur. R., 154, and cases-cited.) *300The main difference between a devise in trust and a direct devise, is, that in the former case there is a vested equitable estate (Doe vs. Ewart, 7 Adol. & E., 636 ; Phipps vs. Williams, 5 Simon R., 44); and in the latter a vested legal estate; and, in regard to personal property, direct legacies as well as bequests in trust, are effectuated only through the medium of the executors. (Davies vs. Fisher, 5 Bear., 201.)"], "id": "fb57f489-db82-4bd6-8022-b895b4491aa3", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The plaintiffs, for a second cause of action, set forth in their complaint that in September, 1865, the plaintiffs sold to the defendant twenty-three casks of wine, by which contract of sale the defendant was to return to the plaintiffs the casks containing the said wine, but that the defendant had neglected and refused to return the said casks. It appeared from the evidence that the sale of the twenty-three casks of wme was made by John J. Webber in his own name, but in fact as the agent of the plaintiffs. In this case it appears there was a regular bill of sale made out. By some apparent oversight, the bill of sale is omitted from the case, although stated to be contained therein; but, from what passed on the trial, we infer there was nothing in the bill of sale from which any obligation to return the casks could be inferred. If this was -so, and the bill of sale purported to be a bill of sale of twenty-three casks of wine, we think was inadmissible to add to or change the contract, by showing that at the time of the sale it was agreed that the defendant should return the casks. A sale of so many casks of wine imports a sale of the casks as well as the wine, unless the contrary expressly appears; and we think *335the court erred in the admission of parol evidence to show that it was agreed at the time of the sale that the defendant should return the casks. For the foregoing reasons, we think there should be a new trial in the case."], "id": "3baecf83-3fd1-4c1e-a48d-1463d37d719e", "sub_label": "US_Terminology"} {"obj_label": "Parol Evidence", "legal_topic": "Business Law", "masked_sentences": ["A. The Parties\u2019 Claims and Counterclaims ..................... 12 B. The District Court\u2019s Jurisdiction over the Dispute ..... 13 C. The District Court\u2019s Resolution of All Claims and Counterclaims ............................................................. 15 D. Appellate Jurisdiction ................................................. 16 IV. Discussion ................................................................... 17 A. The Parties\u2019 Competing Fraudulent Inducement Claims Have Different Fates: SodexoMAGIC\u2019s Claim Survives; Drexel\u2019s Counterclaim Does Not. .... 19 1. Common-Law Fraud Claims in Pennsylvania ..... 20 2. SodexoMAGIC\u2019s Fraudulent Inducement Claim for Compensatory Damages Survives Summary Judgment............................................................... 23 a. SodexoMAGIC Presents Sufficient Evidence of a Misrepresentation as Well as Concealment. ...... 23 b. The District Court Did Not Abuse Its Discretion in Denying Drexel\u2019s Motion to Strike Declarations by Three SodexoMAGIC Witnesses. ................... 28 c. Drexel\u2019s Remaining Counterarguments for Upholding Summary Judgment in Its Favor Also Fail. .............................................................. 34 3. The Rule Does Not Bar Sodexo- MAGIC\u2019s Claim for Fraudulent Inducement. ...... 36 a. Integration Clauses, the Parol Evidence Rule, and Fraudulent Inducement Claims Under Pennsylvania Law. ................................................ 37"], "id": "a1052c09-5bf8-48cc-a3f1-dc5be68dcd7c", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The primary rule of contract construction is to ascertain the intent of the parties and give effect to that intention. If a contract is unambiguous, the intent of the parties is to be discerned from the contract alone based on the plain and ordinary meaning of the language used.[6 ] *497However, a contract may be ambiguous if it is susceptible to more than one interpretation, which is a legal issue determined by the court. If the ambiguity cannot be resolved within the four corners of the contract, the parties' intent can be determined by use of . Resolution of the ambiguity may then be a factual issue to be resolved by the finder of fact. Whelan , 379 S.W.3d at 846 (citations and internal quotation marks omitted). Whether the contract is ambiguous and whether G&G was entitled to prejudgment interest pursuant to section 408.020 are legal issues that we review de novo , but we defer to the trial court's factual or credibility determinations. See id.7"], "id": "e5281098-9b1f-4ac2-bde7-2d5045f546d2", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["As before shown, the learned justice admits the did in fact contradict the writing. He, however, claims this rule is not inflexible, but has referred to no authority to sustain his position. And we know of none. The contrary doctrine we believe to be fundamental law, and we think there is no exception to it, Avhen the action is between the parties to the contract or their privies (1 Greenleaf on Evid. \u00a7 275 et seq.; Boorman v. Johnston, 12 Wend. 566, 573; Wilson v. Dean, 74 N. Y. 531; Thorp v. Ross, 4 Abb. App. Dec. 416). The latter case is very instructive, and we think decisive of this."], "id": "99fe431d-f434-41fc-93c5-b8f2f2c8936d", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["\u201c I, Flora Seymour, being of sound mind, hereby direct Mr. R. J. Davidson to -turn over to Schuyler C. Pew the four bonds now in his possession and belonging to me. \u201c It is my desire that if I should be taken away that the said \u2022Schuyler iC. Pew have this property to use as he may desire in the Master\u2019s work.\u201d It is a familiar rule of construction that a testator\u2019s intention must govern, if it be not inconsistent with rules of law, statutory *490-or otherwise. Such intention must, however, be gathered from, the language of the will itself; and extrinsic as to the -circumstances under which the will was executed is incompetent and inadmissible."], "id": "194aa066-43ad-45ad-a608-12b165e160f3", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["A full examination of this evidence does not seem to be necessary to a determination of this appeal. There is some uncertainty as to the exact time at which the alleged parol agreement was made. If it was subsequently to the delivery of the written lease the agreement was without consideration and void. Smith v. Kerr, 108 N. Y. 31. If the conversation occurred at or prior to its delivery the parol agreement was merged in the written lease and evidenc\u00e9 to contradict or vary its terms was inadmissible. This evidence did not come within the rule permitting proof of an *467independent collateral agreement. The written lease was, upon its face, a complete instrument.' The subject-matter of the agreement sought to be proved by parol was one which would naturally be included in the lease, and was not collateral. In fact the lease contained a provision that the lessor should \u201cmaintain the building in a habitable condition,\u201d and also the usual provision that the lessee would surrender the premises in good condition. All this is inconsistent with the rule under which an independent collateral agreement resting upon may be admitted in a proper case."], "id": "78ffe280-d003-4823-8722-076f7d5c9ef8", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Conversely, where the terms of an agreement are ambiguous, the introduction of is admissible to explain the meaning which has been given to certain words and/or terms. (Prince, Richardson on Evidence \u00a7 11-403 [Farrell 11th ed] [Parol Evidence to Show Custom or Usage].) In Dube v Horowitz (258 AD2d 724 [3d Dept 1999]), parol evidence was permitted to determine the intentions of the parties as to the meaning of the term \u201cwages\u201d in the separation agreement."], "id": "032ac6df-df74-401a-a02b-c4bab1b32e70", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["With respect to the first cause of action, defendant\u2019s answering affidavit urges that the machine subject to the lease broke down and that plaintiff did not repair or maintain it. It also urges that plaintiff breached certain warranties that were made, expressly and impliedly, to the effect that the equipment was merchantable; i.e., fit for the ordinary purposes for which the equipment was to be used, and that it was fit for the particular use intended by defendant. Although this is set forth in somewhat conclusory fashion, nevertheless it would be sufficient to raise a question of fact unless the warranties alleged have either been properly disclaimed, or are barred of proof by application of the rule."], "id": "0cbf8629-54e5-467a-b279-1c1accec0a42", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["F&K argues that the assignment to Winston absolved the former of responsibility under the roof lease. But there is nothing in the record to indicate that a due diligence inspection was conducted at the time of the assignment, such as would lead to the conclusion that any structural damage occurred during Winston\u2019s tenancy. Furthermore, could not be admissible as against F&K\u2019s assignee. Winston was not a party to the two earlier leases, and thus could not be held liable on West Realty\u2019s explanation of inadvertent omission. Dismissal of the breach of contract claim as against Winston was thus appropriate."], "id": "12d57d7a-3cbd-46cf-bb64-a33a1854cf59", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The introduction of in order to ascertain the cost of remodeling, the request by the tenant, what plans or what specific instructions had been given, and the amount of expenses that the tenant incurred in the reconstruction of the premises, did not vary or modify the terms of the lease. There was not any collateral agreement or condition precedent which should have been inserted in the lease, which in turn would have necessitated a preclusion of parol evidence. To hold that parol evidence could not be introduced in order to inform the court of the factual situation surrounding the work performed and the total expenses would have placed the court in the position of not being able to decide the case at all."], "id": "923d439f-5685-4ae7-badd-0ff3a2ce38bb", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It is contended by the appellants\u2019 counsel that notwithstanding is, in general, admissible to show the actual consideration, although it be different from that expressed in the deed, the rule is limited to cases where the inquiry is material to an action between the parties to the deed. It is not necessary to decide that point in the present case, for the reason that if any error was committed'at the trial in receiving the evidence, it was merely as to the order of proof. The plaintiff offered the evidence before he rested. It was not then material or necessary to his case, and if nothing had occurred subsequently to make it material, the reception of it probably would have been erroneous. The plaintiff having proved his bond and mortgage, was entitled prima facie to the relief demanded in his complaint without further proof. The burden of impeaching the consideration expressed in the mortgage and of showing fraud was on the defendant. For that purpose the defendant had a right to give parol proof of a different consideration from that expressed, and in fact he gave evidence to that effect. To that evidence it was competent for the plaintiff to reply, on the issue of fraud, and to give his version of the true consideration. All the evidence given by the plaintiff upon the subject, against the defendants\u2019 objection, was material and admissible for that *560purpose, and if it had been offered after the defendant had opened the door to that inquiry, it would have been entirely unobjectionable. It is obvious that the defendant was not prejudiced by\u2019the reception of the evidence before he took the case, as he was thereby advised of the strength of the plaintiff\u2019s proof on that issue before he entered on his own."], "id": "bf4a9a2e-d06e-4d80-93f4-b3e4f735b8b9", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It is the decided tendency of the courts to hold \u201c that no legacy is specific unless demonstrably so intended, and * * * generally incline in favor of considering doubtful bequests, general legacies, chargeable upon the security named, as the fund first to be applied.\u201d Doughty v. Stillwell, 1 Bradf. 300. The requires that the codicil be construed as if it were:\u201c I give to Janet and Buth, $1,500 from the amount of $1,969.50, which their father owes to me.\u201d Under such reading, the legacy so far as it is not paid from the demonstrated source is payable from the general estate. The decree will provide accordingly."], "id": "69e2426e-3783-4b62-8e04-2876f98c7262", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The question posed by this appeal is whether a claim for breach of an oral agreement was barred by the rule. The oral agreement was made in connection with a transaction by which three companies, of which Albert Kanno was the majority shareholder, were sold to two Delaware corporations. The transaction was documented principally by three writings, each of which had an integration clause."], "id": "948acfc0-3dc8-4441-9c3a-3c09e856ffe4", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["A circumstance showing that, whatever the date of execution of this latter will, it must have been subsequent to March 14, 1884, is. that the testator purports therein to devise absolutely and in fee certain real estate in which, at the date of the execution of the will of March 14, 1884, he only had a life interest. Subsequent to the execution of that will, and on the 27th of June, 1884, Mr. Haviland\u2019s three children, by a former wife, executed to him a deed of the premises referred to, which formed a part of the estate of the decedent\u2019s former wife, the mother of *77the grantors. The undated will purports to devise back to two of these children a one-third interest each in this' identical property. Some doubts seem to have existed in the minds of counsel for the contestants of this later will as to the competency of parol proof to establish the date of execution. The Revised Statutes do not require that a will shall be dated. The date may be established or corrected by showing the real date of its execution. Schouler on Wills (2d ed.), 279. If it were permitted to indulge in conjecture it seems to me that the manner in which the defective date was inserted is readily explained. But a short time would elapse before the termination of the year, and in drawing the will for execution the last word to indicate the date was omitted in apprehension that it might not be executed until the new year."], "id": "c7c15b83-b5df-49db-8d05-72be7f5fb02a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["If, as we have a right to presume from the preamble, the object of the statute was to prevent frauds and perjuries, and as a means to that end, a contract of sale was not allowed to be established by oral testimony, because it was a kind of evidence that could be readily fabricated, and otherwise defective and uncertain, it is to be remembered that the rules, which regulate the introduction, the bearing and the weight of testimony, were more imperfectly understood then than they are now. Baronet Gilbert\u2019s treatise upon the law of evidence was notpublished until three quarters of a century after the passage of the statute, and even that* treatise, though extravagantly eulogized by Blackstone, is characterized now as \u201c a very meagre production,\u201d (Marvin\u2019s Legal Bib. 384), and how little *521the tests which are now every day applied to were then understood, resorted to or allowed, is familiar to every one who has perused the State trials."], "id": "5757ba42-bf9d-4c10-8eab-c4cba19c4e6d", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["When an integrated contract includes a fraud-insulating term \u2013 to form what may be called an \u2018integration-plus\u2019 contract \u2013 that extends the reach of the rule. In that circumstance, the parol evidence rule prevents the use of extrinsic evidence to vary the fraud-insulating term. And without such evidence, it is virtually impossible to establish the justifiable-reliance element needed for a fraud claim. As the Pennsylvania Supreme Court has explained for integrated contracts, \u201cdue to the parol evidence rule\u2019s operation, a party cannot be said to have justifiably relied on prior representations that he has superseded and disclaimed.\u201d Toy, 928 A.2d at 207 (emphasis added)."], "id": "dde60156-3df5-41b3-a366-a23ca480825b", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Again: The instrument offered in evidence in this case as a release of the debt was not executed in the names of the plaintiffs, or of either of them, or by Granniss & Meade as their agents or attorneys ; nor were the plaintiffs named, or even alluded to in that instrument. Where a contract is not necessary to be in writing to give it validity, the constituent may be bound by an agreement of his agent which is in fact made for his benefit, although he is not named at the time, and sometimes where he is not known to the party with whom his agent contracts; and even where it is necessary for\u00bb the contract to be in writing to give it validity, the constituent may be bound by it, if it appear in any part of the instrument that it was intended to be executed by his agent for him, in the character of agent merely. Story on Agency, 143, \u00a7 154, and cases there cited. But where it is necessary that the instrument to be executed by an attorney under a power should operate as the deed of the constituent, under seal, to convey an estate or interest, or to release a right, without a full compensation received or secured to be paid, it must not only appear to have been executed by the agent for the principal, but it must be executed in his name, so as to make it his deed, (a) Though, if the deed is actually made in the name of the principal and purports upon its face to be his deed, and not the deed of the attorney or agents for the principal merely, it is not necessary that a particular form of words should be used in the execution thereof. Wilkes v. Back, 2 East\u2019s R. 142. Appleton v. Burks, 5 id. 148. A parol agreement for the release of a debt without satisfaction, or upon receiving a part thereof only, from the debtor, is not valid, either at law or in equity, without a release under seal; and to show that an instrument which is not a release was intended to be such, is inadmissible. Harrison v. Wilcox, 2 Johns. R. 448. Acker v. Phoenix, 4 Paige\u2019s R. 305. The offer in this case, therefore, to prove by parol that the *336instrument executed by Granniss & Meade was intended to be something different from what, upon its face, it purported to be, was entirely inadmisssible for the purpose for which it was offered; and the evidence was properly rejected by the judge."], "id": "1a26e474-debc-4c15-bd83-f608ca32634f", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["And in an early case in Virginia, it was said with respect to the admission of of the contents of a will, the probate records of which were destroyed during the war of the Revolution, that: \u201cThe rule is, that the best evidence that the nature of the case will admit of is to be received. On this principle, I think the evidence was admissible, though parol proof of the contents of an instrument must be generally very defective (it being seldom possible, after a lapse of time, that the witness can recollect the precise expressions in it, or their collocation, on which its meaning often depends), yet in aid of a long and continued possession in the defendants, and those under whom they claim, such testimony may be resorted to. It is the best evidence the nature of the ease will admit *437of\u201d: Smith v. Carter, 3 Rand. 167. Hence the contents of a lost will may be proved by parol evidence: In re Lane\u2019s Will, 2 Dana, 106; Lucas v. Brooke, 23 La. Ann. 117; Legare v. Ashe, 1 Bay (S. C.), 464. And likewise the existence or loss of the will may be shown by circumstantial evidence: Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Harris v. Harris, 10 Wash. 555, 39 Pac. 148. So, also, the presumption of revocation may be rebutted by either direct or circumstantial evidence: Matter of Johnson\u2019s Will, 40 Conn. 587. And it is even held that evidence of testator\u2019s character is admissible to show his tenacity of purpose and thus affect the probability of his revoking his will: Brown v. Brown, 10 Yerg. 84."], "id": "2573d9af-3007-44be-9d55-22ad3e953f8a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["First. That by the admissions in the pleadings and the record aforesaid, the fact of wrongful eviction of the defendant by the plaintiff was conclusively established in such wise, that the fact of wrongful eviction could not be controverted in this action by any on the part of the plaintiff to show either that no such eviction had taken place, or that such eviction was lawful or under elder title."], "id": "eb4b482a-e5f8-4ebf-a750-ee62410698cb", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["14. apparent the trial court was thoughtfully attempting to comprehend the terms which the parties had negotiated. However, this record does not establish that appellant and the People had negotiated a deal wherein appellant agreed to \u201cobey all laws.\u201d Although the prosecutor made such an oral representation at the change of plea hearing, that condition does not appear in the written plea agreement. The parties\u2019 mutual intent is governed at the time they formed their agreement, and it is found, if possible, solely in the contract\u2019s written provisions. (Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1129.) The written plea agreement does not require appellant to \u201cobey all laws.\u201d There is no ambiguity in this regard. Consequently, we decline to modify the written agreement in this fashion or otherwise rely on . (See Toscano, supra, 124 Cal.App.4th at p. 345.) D. The Trial Court\u2019s Comments In 2019 Are Instructive. In 2019, the trial court stated its belief that the disputed terms were ambiguous. The court noted that the modifier \u201con staff\u201d could be read to only apply to the term \u201cgassing\u201d and it may not necessarily modify the terms \u201cbattery or assault.\u201d In response to a query from the prosecutor, the court acknowledged that it believed appellant may have held a different understanding of that modifier at the change of plea hearing. As a result, the court believed that the written terms could still be deemed ambiguous as to appellant. These informative comments from the court in 2019 support our conclusion that appellant understood the plea agreement in a manner that she now advances in this appeal. As the trial court realized, appellant had likely not understood the terms in the same manner as the trial court had when it had memorialized the agreement during the change of plea hearing. The totality of this record supports appellant\u2019s reasonable position that she accepted an offer to not incur any 115\u2019s involving assaults, batteries or gassings, and those requirements only applied to staff. Under these unique circumstances, the plea agreement should be enforced in her favor. (See Toscano, supra,"], "id": "6ca79ae9-9653-47b1-a927-9b7e1cbe99e2", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The fact that the child\u2019s father is alive is not conclusive against the assumption by a stranger of the place of the parent, but it affords some inference against it: Powys v. Mansfield, 3 Mylne & C. 359. On the question as to whether he intended to assume that relation is admissible, and the declarations of the testator allowed for that purpose: Gill\u2019s Estate, 1 Pars. Eq. Cas. (Pa.) 139; Powys v. Mansfield, 3 Mylne & C. 359; Booker v. Allen, 2 Russ. & M. 270."], "id": "a90c3e25-ceb9-4c70-a045-3b37a66f837d", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Nothing in the letter agreement between plaintiff and defendant Keslow, consisting of no more than a few short paragraphs, precludes the former from recovering his expenses for any work, labor and services that he performed in the course of functioning as a subcontractor. While \"extrinsic and is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face\u201d (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 379), the letter, which is silent as to the parties\u2019 respective obligations and lacks any sort of detail generally, does not appear to be the sum total of the arrangement between the two. Since the letter agreement is not a contract that sets forth the entire agreement between the parties, and is, therefore, not complete, clear and unambiguous on its face, the parol evidence rule does not bar proof, in the form of parol or extrinsic evidence, of the entire purported agreement (Chimart Assocs. v Paul, 66 NY2d 570, 573). Concur\u2014Sullivan, J. P., Wallach, Asch and Williams, JJ."], "id": "b08b8ee1-acf8-4638-9b39-dd8caed32362", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In Mitchill v. Lath (247 N. Y. 377, 381) Judge Audbews stated that before may be received to vary the written contract, at least three conditions must exist: \u201c (1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) * * * Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it.\u201d"], "id": "b5fd1082-f7dd-4794-9b3b-a7afcc1ed06e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Misnomer or misdescription of an intended beneficiary, whether an individual or a corporation, does not necessarily invalidate the bequest or devise. \u201c A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the object of the testator\u2019s bounty can be ascertained. No principle is better settled than that is admissible to remove latent ambiguities, and when there is no person or corporation in existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be designated by its corporate name, by the name by which it is usually or popularly called and known, by a name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may, in all cases be proved by parol. (St. Luke\u2019s Home v. Association for Indigent Females, 52 N. Y. 191; Holmes v. Mead, Id. 332; Gardner v. Heyer, 2 Paige, 11; 1 Jar. on Wills, 330; 1 Redf. on Wills, 691, \u00a7 42, pl. 40; id., 695, pi. 49.) \u201d (Lefevre v. Lefevre, 59 N. Y. 434, 440.)"], "id": "3d0e6ddc-bdeb-42ef-9c21-02eda7e8b0c0", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In the latter case, Justice Seldett, in delivering the opinion of the court, held that an error was committed in admitting to establish her intention to charge her separate estate, and- we are warranted, as I think, in understanding, from the report of the case, that a majority of the court held with him upon this ground alone, and that they would, with him, have held her liable, if her intention had in that case, as Mrs. Babcock\u2019s has in this, been manifested in the writing subscribed by her."], "id": "8f8e52f7-d512-405a-ba1c-1ec3cf966654", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The limited trial record now before us does not permit intelligent appellate review of the seemingly inconsistent findings made by the trial court in connection with the rent issues presented in the litigation. Most prominent among the issues that remain unresolved on this record is the proper interpretation of the petitioner\u2019s ambiguously drawn letter of January 19, 2002, a document which, though the centerpiece of the parties\u2019 appellate briefs, was virtually ignored during the trial proceedings. Since we view the desultory language of the letter as ambiguous, is required to determine its purpose and intent (see Blue Jeans U.S.A. v Basciano, 286 AD2d 274, 276 [2001]). While it may be that the unsatisfactory state of the record is attributable in part to the subtenants\u2019 lackluster pursuit of their rent reduction defense, the fact remains that the correspondence relied upon by subtenants in support of that defense was put into evidence \u201con consent\u201d and was apparently found by the court \u2014 albeit on an insufficient record \u2014 to constitute a binding rent reduction agreement. In this posture, fairness dictates that the matter be tried anew."], "id": "15f0d1ba-dec1-4700-ac28-5a037a8a9630", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In the O\u2019Neil case (280 N. Y. 50, supra), Judge Rippby, speaking for the court, said (pp. 55-56): \u201c The fundamental rule in the construction of all agreements is to ascertain the substantial intent of the parties [cases cited]. The purpose to be accomplished and the object to be advanced may be considered [cases cited] and may, if necessary, be shown by as bearing on the consideration for the written instrument [case cited]. If it is claimed by defendant that a construction should be placed on the contract other than has been indicated, or any doubt arises from the writing itself, the court must look into the intention of the parties to be derived not alone from the words used but it must be read, so far as they may be ambiguous, in the light of the surrounding facts and circumstances [cases cited].\u201d"], "id": "c95f2c9d-61cc-4463-a754-2357b8e07f10", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The claim that the contract was procured through fraud and that it is, therefore, not binding on respondent is not shown *426to possess merit. Respondent\u2019s claim is really not that the contract signed was not to be a contract at all, but rather that the provisions of the contract between the parties were different from those contained in the signed document. (Such a claim violates the rule."], "id": "ef35deb9-05ba-4e33-8c77-f8c1f784683e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Inasmuch as the case was tried without a jury, I felt free to receive, over objection, the rather fragmentary offered by the bank and the defendants as to their course of dealing. This proof indicated that the church maintained its bank account with the plaintiff bank and had at various times bor*621rowed money from the bank upon its notes; that such notes, as well as checks on the account, had been differently signed and indorsed by the defendants in behalf of the corporation, according to changes in the regulations and directions of the church, brought to the notice of the bank; that the financial affairs of the church had latterly been intrusted to and conducted by its finance committee, of which the bank had notice; that the finance committee was composed of the president and treasurer and one other lay member; and that the printed form of checks, used by the church in 1914 and recognized by the bank as fixing the requirements for valid checks against the church\u2019s account, showed the following manner of signature:"], "id": "d46023fe-02a6-40b9-9782-20ef7918b5fa", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["A case which is still cited by the higher courts as an authority on the question of when may be offered in such a matter is that of Mann v. Mann, 1 Johns. Ch. 231. In this case the question arose as to the propriety of allowing parol evidence to show the intention of the testator as to the meaning of the word *751\u201c moneys \u201d as used in Ms will. At pages 234-236 of the opinion the court stated as follows:"], "id": "9af7164d-dece-4864-9e44-0fe0bdb13664", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Under the so-called \u201c rule \u201d in this State, when a valid written contract or other written instrument has a clear meaning and contains the complete agreement or legal engagement of the parties, parol or other extrinsic evidence which tends to vary or contradict the terms of the writing is not admissible (Laskey v. Rubel Corp., 303 N. Y. 69; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334; Mitchill v. Lath, 247 N. Y. 377; Thomas v. Scutt, 127 N. Y. 133). An exception is made when the object is to prove that a writing, apparently valid and complete on its face, was not to become effective unless and until the occurrence of an orally agreed upon condition precedent (Smith v. Dotterweich, 200 N. Y. 299). Admission of such evidence is permissible, however, not to vary or contradict the terms of the written instrument in contravention of the parol evidence rule, but to show that no contract ever came into existence. \u201c When the effect of the oral testimony is to establish the existence of a written contract, which it is designed to contradict or change by parol, then the spoken word must yield to the written compact.\u201d (Smith v. Dotterweich, supra, p. 305.)"], "id": "1bbe2ae4-2add-4cdb-90eb-e5cd89405dba", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["*418In the case before us the court below took it for granted, although there was no evidence on the subject, that the letter of the 9lh of February was in reply to a written communication, sent by the person who delivered the paper, which was still in the possession of the defendant. Probably this was so ; but that did not relieve the plaintiff from the necessity of proving what the defendant\u2019s agreement was. If any part of the correspondence which constituted the agreement was in the hands of Greele, the proper course for the plaintiff was to call on him to produce it on the trial; and, if he refused, might have been given of its existence and contents. Stone was called as a witness for the plaintiff and could have stated whether the letter was in answer to a written communication or to a verbal message; and if to the former he could have proved the contents thereof. It was the duty of the plaintiff to produce this proof to sustain his case. As he neglected to do this he had no right to recover; and the motion for a nonsuit should have been granted."], "id": "39a0e333-9184-4bc5-8d0a-0713377cdd51", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["A learned opinion on the legal question involved here, with somewhat similar facts, was written by Justice Rowland L. Davis, now of the Second Department, then of the Fourth Department, in Union Trust Co. v. Boardman ([Dec. 1925] 215 App. Div. 73, affd., 246 N. Y. 627). That action was for a judicial accounting and interpretation of portions of a trust agreement. Controversies had arisen between the beneficiaries of the trust instrument and they sought the court\u2019s interpretation of the written language. At page 77 the court asked the question: \u201c May a court of equity grant reformation of the trust agreement between beneficiaries, after the donor\u2019s death, on the theory that his intended plan of distribution was defeated by an alleged mistake in computation \u201d and that his real intention was that the parties should share equally? From evidence showing the relation of the parties, the paper upon which the donor made computations, the respondents claim to have shown conclusively that it was the intention of the donor that there should be equal division. The court assumed that, as far as is humanly possible to show, the proof was sufficient to justify a finding that the donor held all his grandnephews and grandnieces in equal affection and that he made a mistake in computation. The respondents succeeded at the trial in their claim that the written agreement may be reformed as between the beneficiaries and the donor\u2019s definite language may be nullified and new provisions inserted to carry out the intent. Justice Davis, in deciding, said (p. 78): \u201c It is conceded that there is no authority in this State establishing a clear precedent for such a conclusion, but it is argued that the legal principle is well established in other jurisdictions and may properly be applied here.\u201d The court continued: \u201c It seems to us a dangerous doctrine. Heretofore our courts have held in passing upon the written language used by a man disposing of his property to take effect after his death, that its jurisdiction extends only to the interpretation of ambiguous language in the instrument, or to a declaration of its invalidity. * * * Courts of equity have not assumed to exercise jurisdiction to make a *467new agreement or a new will for a party and to interject therein in the place of plain provisions, other provisions which the court may say the decedent had in his mind at some time hut which he mistakenly omitted.\u201d (Italics mine.) As against the respondents\u2019 contention, to make the change would be to redraft the instrument upon evidence which rests largely upon conjecture. The court again said (at p. 79): \u201c It is quite evident that if this be the true doctrine (the one supported by the respondent), relative to gifts, made either during the lifetime of the donor or by a trust agreement or by will, a wide and unexplored field will be open for claims and litigation respecting property thus given.\u201d Again (at p. 80): \u201c We are reluctant to introduce a new, and as we view it, dangerous doctrine into the settled law of the State. We hold that a court has no power or jurisdiction to go behind the definite language of the agreement and substitute new terms for those written by the donor. \u2018A will cannot be corrected because the testator misapprehended its effect; Nor as a general rule, is admissible to supply omissions, or to control or explain the intention, or vary the legal construction.\u2019 (Arthur v. Arthur, 10 Barb. 9, 16.) The same rigid rule must be applied to a trust agreement disposing of the donor\u2019s property very largely after his death.\u201d (Matter of Evans, 135 Misc. 656; Matter of Bent, 142 id. 811; Matter of Walsh, 147 id. 103, 105; Matter of Skidmore, 148 id. 569, 581; Matter of Levy, 160 id. 394, 397.)"], "id": "10ec8a39-20da-486f-bfe3-eec1dddc048b", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["*648*Upori any other construction of the act, the inhabitants of the town, whose agents are compelled to accept the bond of indemnity, if offered, must often lose their remedy upon it against the surety, or be put to the inconvenience of actually advancing money for the maintenance of the bastard child; and in all cases where the infant is provided for by the ..overseers, by other means than the actual expenditure *649of money, all recourse to the surety on the bond of in- , \u25a0\u201d . y demmty for compensation, must be defeated, lo .. ... \u201e \u201e this bond, then, as a contract requiring positive proof of the actual expenditure of money in the support of the child, and in all cases excluding a subsequent adjudication of justices, settling the rate of compensation, or any of \u00e1 reasonable allowance for establishing a right of recovery, would be to construe it most beneficially for the ease and benefit of the obligors, to the grievance, inconvenience and loss of the obligees, and the inhabitants of the town whom they represent as their trustees. I am not prepared thus to favor the wrong doer or his sureties, at the expense of those who are involuntarily drawn into liability by his misconduct. I think every fair intendment should be made in favor of the trustees of the town, and that they are entitled to a liberal construction of the act for the suppression of the mischief it intends to suppress, and the advancement and beneficial application of the remedies it provides for them."], "id": "ed0d8890-d7a8-4c9f-a774-0a8ec332098a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["When a tenant in common by agreement relinquishes the right to bring partition, he surrenders to the other tenants a valuable vested interest in his ownership of the property. The surrender of an interest in real property is required to be in writing under the Statute of Frauds (Real Property Law, \u00a7 242). In addition, the whole alleged agreement was made prior to the execution of the deed under which the parties held. All prior agreements relating to title and ownership are presumed to be merged in the written instrument. To establish the alleged agreement would require the reception of to vary the terms of the deed. This was rejected in Smith v. Smith (214 App. Div. 383); Casolo v. Nardella (275 App. Div. 502, 505, motion for leave to appeal denied, 300 N. Y. 549)."], "id": "08b5234c-192c-443d-ab89-24831bae07c6", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Under the unambiguous language of each of the Four Assignments, each assignment is effective immediately, and no assignment is contingent on any condition, including the condition that Mokaram or Choudhri purchase Latif's entire interest in ML Partnership and ML General. Although Mokaram testified at trial to an alleged oral condition under which Mokaram and Choudhri agreed that none of the assignments would be effective unless Mokaram purchased Latif's interest in ML Partnership, the Four Assignments contain no language imposing such a condition. Because this as to a prior or contemporaneous agreement to this condition contradicts the plain meaning of each of the Four Assignments, the law deems this evidence incompetent to change the unambiguous language of the *603Four Assignments. See White Oak Operating Co., LLC v. BLR Const. Cos., LLC, 362 S.W.3d 725, 734 (Tex. App.-Houston [14th Dist.] 2011, no pet.)."], "id": "38ef612b-8879-4fdb-9c1d-e3d9f6a22a87", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["If the plaintiff had the power to overwrite the name of Pike with a contract implied by law, or recover against him as an original contractor or guarantor, then the amendment was unobjectionable, because it only expressed his obligation, and to sustain it, could not affect the interests of his estate, while it sustained the legal result predicated of his signature in the place mentioned. There is no distinction between a note and an agreement recognized. In the cases in 2 Hill and 2 Denio (supra), the rule was applied to both. They rest on the same principles, and should be governed by the same rule."], "id": "78ca4ca5-f0b7-480e-b639-bd98dc53d57a", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Defendants contend that the \u201cno-reprisal\u201d agreement is ambiguous because they did not intend it to prohibit them from charging and trying nonstrikers for conduct unbecoming a Union member for crossing the Union\u2019s picket lines during *793the strike at Republic. During the trial this court refused to permit the defendants to introduce any or writings antedating said agreement to show this undisclosed intent."], "id": "30a654a5-c863-49b6-8afd-fde4237fdcbf", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["There being a deficiency of personal estate to pay the legacies, it is urged that they constitute a charge upon the proceeds of the sale of the real estate, a part of which has been sold by the executors under the power contained in the will. This question is to be determined from the contents of the will, of intention being inadmissible. (Lupton vs. Lupton, 2 J. C. R., 623.) There are few points which have been more agitated from an early period, than that of charging the real estate with debts and legacies. Independent of statutory provisions, I think the present will contains enough to charge the real estate by implication, at Common Law, with the payment of the testator\u2019s debts. The debts are directed to be paid in the first place, as soon after the testator\u2019s death as may be convenient, provided that his real estate be not sold, unless it shall become absolutely necessary; and then, subsequently, the rest and residue of the estate, real and personal, is. devised and bequeathed, after the payment of debts, and the executory are clothed with a power of sale. (Harris vs. Ingledew, 3 P. W., 91; Kentish vs. Kentish, 3 B. C. R., 257, note; Shallcross vs. Finden, 3 Vesey, 739; Williams vs. Chitty, 3 Vesey, 545; Clifford vs. Lewis, 6 Madd., 33; Graves vs. Graves, 8 Simon, 55; 2 Russ. & My., 581; Ball vs. Harris, 8 Simon, 485; 1 Dru. & W, 430; 1 You. & Col., N. C., 290; 2 My. & K, 607.) As the personal estate was the primary fund for the payment of the debts and legacies, and the testator appears to have contemplated and charged the payment of his debts out of and upon his real estate, it renders the ground for a simi*475lar implication in regard to the legacies much stronger. In Hassel vs. Hassel, 2 Dick., 527, a gift of the residue of real and personal estate, \u201c not hereinbefore disposed off was held to charge the legacies previously bequeathed, on the real estate. In Brudenell vs. Boughton, 2 Atk., 268, the same was intimated by Lord Hardwicke to be the effect of a simple gift of the residue. In Bench vs. Biles, 4 Madd., 187, a devise and bequest of all the rest, residue and remainder of the real and personal estate, was decided to create a charge of the legacies on the real estate,\u2014and the same point was also adjudged in Cole vs. Turner, 4 Russ., 376, and Mirehouse vs. Scaife, 2 My. & C., 695. (See 10 Simons, 393; 3 Russ., 343; Story's Eq., \u00a7 1246, &c.; 7 Paige, 421; 1 Penns., 96; 2 Binmey, 525; 6 Id., 395; 2 Dall., 131; 9 Beav., 150.) In the present case, the testator devises the residue of his estate, real and personal, \u201c not hereinbefore d/isposed off \u201c after\u201d the payment of his debts. The debts being thus expressly mentioned in the residuary clause, it is manifest the words, \u201c all the rest and residue of my estate, real and personal, not hereinbefore disposed off refer to other previous dispositions. The whole estate, real and personal, is here thrown and blended into one fund; the term residue applies as much to the real as to the personal estate, and unless the legacies be considered as intended to be charged on the real estate, there is no previous disposition of the real estate. These expressions, taken in connection with the power of sale to the executors, the apparent expectation of the testator that his debts would have to be paid out of his realty, and consequently, that the legacies, if paid,must be realized out of the same fund, incline me to the conclusion, that it was his intention to charge the legacies on the real estate. This result is sustained by some of the cases I have cited, and though the question submitted to me is not free from doubt, yet, under all the circumstances, I am of opinion that the devise of the residue of the real estate, was designed to pass the realty subject to the pay*476ment of the legacies. The largest devisee is named executrix with other executors in the will, the legacies are given to relatives of the testator, and not to strangers ; and there is no circumstance wanting to incline the Court in favor of sustaining the charge against the realty, provided it can be done in harmony with established principles. My first impressions were against the legatees, hut an examination of the cases has convinced me, that the will contains sufficient indications of the testator\u2019s intention, according to settled rules of construction, to impose the burden of the payment of the legacies upon the devisees of the residue of the real estate."], "id": "4e733f0a-14ed-4be8-9b6e-56564c9fed70", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In Mann v. Mann (1 Johns. Ch. 231, 234), it was said: \u201c It is a well settled rule, that seems not to stand in need of much proof, or illustration, for it runs through all the books, t from Cheyney\u2019s Case (5 Go. 68) down to this day, that cannot be admitted to supply or contradict, enlarge"], "id": "8bc68ca7-31de-450a-a781-51eccd9806af", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It purports to have been made \u201cfor value received,\u201d but in what form or to what amount is not expressed, and the question presented is whether the proof of the oral agreement under such circumstances, on an issue like the present, violates the elementary rule of evidence before referred to. The principle established by the authorities seems to be, that if no consideration be expressed in a written agreement, or if it *425purports to have been made on divers good considerations, that the true consideration may be proved aliunde (see the various cases on the subject collated in Sugden on Vendors [8th Am. ed), vol. 1, p. 238, note b, and see 6th ed., 3d vol., R. S., p. 672, sec. 124, and cases cited), and it is said by judge Huston in Bollinger v. Eckhert (16 Serg. & R., 424: \u201cWe have settled down in this: Whatever material to the contract was expressed and agreed to when the bargain was concluded and the article drawn may, if not expressed in the article, be proved by parol, unless it is expressed contrary in the writing.\u201d Upon this principle of what passed at the execution of a deed was held admissible in Pennsylvania, to show that the conveyance, though nominally absolute, was in fact for the purpose of enabling the grantor to institute an ejectment in the name of the grantee in the circuit court of the United States (Ingham agt. Crary, 1 Penrose & Watts, [Penn)., 389). In declaring the law in our own state justice Cowen, in McCrea agt. Purmont (16 Wend., 460), after a review of many of the leading authorities in England and in the United States, says in conclusion: \u201c Looking at the strong and overwhelming balance of authority, as collected from the decisions of the American courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, except for the purpose of giving effect to the operative words of conveyance. To that end, and that alone, it is conclusive. Such effect, I have no doubt, has long been ascribed to it by conveyancers and dealers in real estate. It is a construction that violates no rule of law, but harmonizes with well-settled . principles, and should be steadily maintained and applied whenever the ends of substantial justice may require it\u201d (McCrea agt. Purmont, supra). This acknowledgment of consideration estops the grantor from alleging that the deed was executed without consideration, prevents a resulting trust in him and forever debars him from denying the deed for the uses therein mentioned; but for every other purpose it is open to explana*426tion, and may be varied by parol proof (see cases cited in Sugden on Vendors [8th Am. ed.], p. 238, note b). There seems to be nothing in the rule referred to, which conflicts with the plaintiff\u2019s right to prove the oral understanding upon which the assignment was executed and delivered. He did not prove that the written assignment made by him to Fullerton was executed without consideration, but was allowed to prove what the consideration was as matter of fact. Ho trust, by implication or otherwise, resulted from the assignment, because it was drawn in form absolute on its face, so as to enable Fullerton to prosecute in his own name an action upon the claims assigned; nor did the verbal understanding impress any trust upon the assignment in Henderson\u2019s favor, because all his interest in the claim, as against Chapman, irrevocably passed by that assignment, and the verbal understanding did not operate as a reservation of any part of it. It created an inchoate right of action, however, in Henderson\u2019s favor, as against Fullerton, which matured and became complete upon the collection of the judgment. The distinction here pointed out is observable in the authorities. Henderson does not impeach the assignment, and does not deny the validity-of the transfer. He merely seeks to enforce, as against Fullerton, the agreement which was the consideration for the transfer, which agreement became efficacious when the transfer produced its results."], "id": "72aaa75d-86fa-47e7-a5d4-01e0dd895c5e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Once the facts are clearly stated it is not too difficult to apply the controlling principles to them. The rule upon which third-party defendant relies is a rule which precludes evidence of conversations or negotiations by the parties to a written contract when such conversations or negotiations occur either prior to, or at the time of, the execution of the written contract when such conversations would contradict, vary, add to or subtract from its terms. (Richardson on Evidence [7th ed.], \u00a7 420; Thomas v. Scutt, 127 N. Y. 133.) Accordingly, a parol contract made after the written contract does not fall within the prohibition of the rule. Moreover there is no prohibition (in the absence of statutory provision to the contrary) against modifying a written contract by a subsequent oral agreement (17 C. J. S., Contracts, \u00a7 377, p. 865). \u201c Those who make a contract, may unmake it. * * * Whenever *954two men contract, no limitation self-imposed can destroy their power to contract again \u201d. (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 387-388.) \u201cAn existing contract may be modified later by subsequent agreement, oral or written \u201d (Martin v. Peyton, 246 N. Y. 213, 218)."], "id": "a04c3c29-a2b3-42ef-8109-2234c00cc511", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The court permitted testimony to explain the circumstances, reasons and understandings of the parties concerning the two signatures of the individual defendant. Such evidence is not barred by the rule. It does not vary the terms of the parties\u2019 written contract. Parol evidence is admissible to show the facts pertinent at execution from which may be gleaned the intention of the parties as to the reason and legal effect of the individual defendant\u2019s second signature. (Esselstyn v. McDonald, 98 App. Div. 197; Electric Carriage Call & Specialty Co. v. Herman, 67 Misc. 394; Schonberger v. Culbertson, 231 App. Div. 257; New Amsterdam Cas. Co. v. Mobinco Brokerage Co., 219 App. Div. 486.)"], "id": "9bda32e0-de16-4c2e-8818-ea664fccecf5", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["\u201c This case seems to fall directly within the principle \u2018 that of an oral agreement made at the time of the drawing, making or indorsing of a bill or note, cannot be permitted to vary, qualify or contradict, to add or to subtract from the absolute terms of the written contract. (Specht v. Howard, 16 Wall. 564; Forsyth v. Kimball, 91 U. S. 291; Brown v. Wiley, 61 U. S. 442; Brown v. Spafford, 95 U. S. 474; Read v. Bank of Attica, 124 N. Y. 671.) \u201d (Jamestown Business College Association v. Allen, 172 N. Y. 291.)"], "id": "df12b86e-316e-4c2d-b9ed-e40e08fead9b", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["IIG does not contest the existence of integrated agreements. It argues instead that an exception to the rule permits the introduction of extrinsic evidence to establish fraud. The fraud exception to the parol evidence rule is codified at section 1856, subdivision (g) : \"This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud.\""], "id": "fc8bed15-af6b-4e31-b7b8-c8cb8255a7da", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["There is nothing in Fogelson v. Rackfay Constr. Co. (300 N. Y. 334) to cause me to decide differently. In that case an action was brought by tenants to enjoin a landlord from terminating bus service which had been provided for a long period of time in accordance with an alleged oral agreement. The court refused to grant the injunction, holding that the lease embodied the entire agreement between the parties and could not be varied by of supplementary agreements, and that the continuation of the voluntary furnishing of bus service could not be compelled in the future, although it had been provided by the landlord for many years. The rent commission had not been called upon to intervene in the Fogelson controversy. The case now before me is quite different. Here the administrative agency established by the Legislature to ascertain the facts, and to apply the statutory controls to the facts as found, has done just that. Since I cannot say that the order attacked by the petitioners is arbitrary, capricious, unreasonable or unlawful, I am not empowered to *977reverse the determination (Matter of Motta v. Temporary State Housing Rent Comm., 202 Misc. 341; Matter of Brown v. McGoldrick, 203 Misc. 1027; Matter of Mayfair-York Corp. v. McGoldrick, 206 Misc. 925, affd. 285 App. Div. 945; Matter of Servedio v. Abrams, 208 Misc. 397; Matter of Feinberg v. Abrams, 208 Misc. 568)."], "id": "a837131e-5c88-41e7-a035-8595e7044b62", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The claimant is obliged to admit this well-established limitation, but argues that the sale contract is ambiguous, because the provision in it, and in the notice of sale and terms of sale, which form part of it, providing for the sale of \u201c all the title of the State of New York,\u201d is inconsistent with, and in derogation .of, the statute regulating the sale, and the resolution of the commissioners of the land office to which reference has been made. We will discuss later that alleged inconsistency and contradiction, but at this point it is sufficient to point out that, assuming it to exist, it does not constitute an ambiguity permitting in explanation. As is held in a case cited by the claimant, \u201cAn ambiguity, in order to authorize parol *207evidence, must relate to a subject treated of in the paper and must arise out of words used in treating that subject. \u2019\u2019 Trustees of Southampton v. Jessup, 173 N. Y. 84, 89, 90. There is nothing ambiguous about the phrase \u201c all the title of the State of New York.\u201d The claimant, in his brief, himself contends that it has a very exact and definite meaning. Parol evidence, to alter or change it, is of no avail."], "id": "c2c20c86-c65a-473a-ac12-dee1a17f8805", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In cases where a writing or memorandum relating to the sale or lease of real estate is attacked under the Statute of Frauds for insufficiency in respect to the identification of the subject matter, the general rule is that while may not be admitted as to the terms of the agreement, it nevertheless is receivable to show extrinsic circumstances relating to the situation of the parties in respect to the land, so as to enable the court definitely to ascertain the property to which the contract referred. (Miller v. Tuck, 95 App. Div. 134, 135.) Thus, there are numerous authorities which hold that where real property is vaguely or inadequately described in the writing but nevertheless susceptible of ascertainment, parol evidence may be received in order to indicate the specific parcel intended to be conveyed. (Miller v. Tuck, supra; Crandall v. Smith, 172 Misc. 92 and cases therein severally cited.) However, in the case at bar it is urged by defendant that in the absence of the plot plan the contract is completely lacking and silent as to the premises intended to be leased and to permit the subject matter to be furnished by parol or extrinsic evidence would open the door to the very evils the Statute of Frauds was *746designed to avoid. On the other hand, the plaintiff argues that the plot plan, which was in existence and in the possession of the defendant when the contract was executed, clearly refers to the subject matter of the transaction and should be read together with the signed instrument in spelling out the intent of the parties."], "id": "ae10d4d5-d6c6-4aad-a4ee-cf0774f2358a", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Establishment of Lost Will Revoking a Former Will.\u2014 of the contents of a will subsequent to the one produced for probate, which subsequent will has been lost, destroyed, or canceled, is admissible to establish the revocation of the will produced: Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393. Evidence of the contents of an alleged lost will relied upon as a revocation of a prior one, offered for probate, is inadmissible in the absence of evidence that it was executed in the presence of two witnesses as required by the statute: McKenna v. McMichael, 189 Pa. 440, 42 Atl. 14. And it must also be shown that the lost will either in express terms revoked the former will or that its provisions in devising the property were so far inconsistent with the former will that it would operate as a revocation: Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620. The evidence to oppose the probate of a will may consist in the mere proof of a revocatory clause in a later will which has been lost or destroyed, even though the proof as to the entire contents be insxiffieient to admit the lost will to probate: In re Cunningham, 38 Minn. 169, 8 Am. St. Rep. 650, 36 N. W. 269; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W. 151. Where a will offered for probate was claimed to have been revoked by a later will drawn by the same attorney, testimony of the attorney who drew the will to the effect that the testatrix came to his office to have him draw the second will, whereby she desired to revoke the former will, and make certain changes in it, but, at the same time, did not desire to allow her husband, in whose hands the former will was to know of such changes, that she was anxious to have witnesses to the will, who would not speak of the fact of having witnessed the will, and that he remembered the date of the will, and the substance of the provisions, together with the testimony of the other witness to the will, a physician, who had offices next to those of the attorney, to the fact of execution, was held sufficient to prove the lost will: In re Bell\u2019s Estate, 13 S. D. 475, 83 N. W. 566."], "id": "d6fbbbd6-8d65-4f4a-a6d2-b83be5755fe0", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The rule attaches legal consequences to an integrated contract \u2013 a contract that is the only agreement between the parties on a specific topic. See Restatement (Second) Contracts \u00a7 209(1) (\u201cAn integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.\u201d). To demonstrate integration, parties commonly include an integration clause in a contract. Such a clause typically states that the contract contains the final expression of all the terms of the parties\u2019 agreement and that it supersedes all prior agreements on the subject matter. For integrated contracts, the parol evidence rule prevents the use of extrinsic evidence to add to or modify the contract\u2019s terms:"], "id": "732aa2b9-ed79-49ab-ae74-32ce4e1dcc42", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["\u201cIt is a well-settled rule, that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheyney's Case (5 Co. 68) down to this day, that cannot be admitted to supply or contradict, enlarge or vary, the words of a wil', nor to explain the intention of the testator, except in two specified cases; 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described; and, 2. To rebut a resulting trust. * * * (Citing cases.) * * * If there be a mistake in the name of the legatee, or there be two legatees of the same name, or if the testator bequeath a particular chattel, and there be two or more of the same description, or if, from any other misdescription of the estate, or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jun. 259, 260, 415, and Lord Kenyon, in 7 Term Rep. 148) in the only way in which it can be produced, viz., by parol proof, it must be dissolved in the same way; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity; and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the soundest principles of law and policy. \u2018 It would be full of great inconvenience/ say the justices, in Cheyney\u2019s case, 1 that none should know, by the written words of a will, what construction to make, or advice to give, but that it should be controlled by collateral averments out of the will.\u2019 And if collateral averments be admitted, to use the words of Sir Matthew Hale, in Fry and Wife v. Porter (1 Mod. 310) \u2018 how can there -be any certainty? a will may be any thing, every thing, nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral averments and proofs, and make it utterly uncertain? \u2019 In a still later case, (3 P. Wms. 354) Lord Talbot observed, that if we admit parol proof, \u2018 then the witnesses, and not the testator, would make the will; \u2019 and he spoke with equal decision in the case of Brown v. Selwin (Cases temp. Talbot, 240) though the parol proof, in that case, would have left no doubt of the intention of the testator being contrary to the legal operation of the will. * * *"], "id": "41fac7ec-57f0-41a8-af8a-1e4d697adef4", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It appears from the papers before this court that ambiguity does exist as to certain language contained in paragraph 12 of the agreement here involved. This agreement on its face is much more than a mere \u201csublease\u201d. Under the circumstances disclosed by the moving papers, adduced upon a trial, subject to cross-examination by counsel, would be admissible to interpret the meaning of the ambiguous phrase here involved and the intent of the contracting parties with respect thereto. In the interests of justice, therefore, the issues created by such ambiguity should not be determined solely on the basis of affidavits submitted on motions for summary judgment (Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25, 30; Italian Benevolent Inst. v. Elaine Co., 240 App. Div. 196,198). These issues can best be resolved by a trial."], "id": "a440dc0b-cca3-4e06-a77e-227892eb209e", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The intention of the maker, then, is the controlling consideration in construing an instrument of doubtful testamentary character. This intention usually is to be gathered from the terms of the entire instrument, construed together, and always so when its provisions are plain and clear, but extrinsic evidence may be received to enable the court to place itself in the position of the parties in order to interpret doubtful and ambiguous provisions. The intention may be ascertained, not only from the instrument itself, but from all the facts and circumstances surrounding the parties and attending the execution of the instrument: Rice v. Rice, 68 Ala. 216; Tuttle v. Raish (Iowa), 90 N. W. 66; Beebe v. McKenzie, 19 Or. 296, 24 Pac. 236; Kisecker's Estate, 190 Pa. 476, 42 Atl. 886; Parker v. Stephens (Tex. Civ. App.), 39 S. W. 164. may be received to aid in arriving at the intention of the maker and the character of the instrument, when such intention is not clearly and satisfactorily expressed in the writing itself: Clarke v. Ransom, 50 Cal. 595; Kelleher v. Kernan, 60 Md. 440; Egerton v. Carr, 94 *12N. C. 648, 55 Am. Rep. 630; Witherspoon v. Witherspoon, 2 McCord, 520. Such evidence is admissible to show that the maker did not, at the time of signing an instrument, understand it was a will or intend that it should operate as such: Barker v. Comins, 110 Mass. 477, 488. Testimony of his conversation at that time may be received to show his intention: Wareham v. Seller, 9 Gill & J. 98."], "id": "c5feb8f7-8d88-4dc2-a589-145135e260e3", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["During the 1980s a dispute arose over the location of the parties\u2019 rear lines with plaintiff contending that he had adversely possessed a strip of land beyond his rear boundary. Plaintiff commenced this action in 1987. Thereafter in 1989, deciding that ambiguities in defendants\u2019 deed permitted the conclusion that the parcels were not contiguous and that certain supported a contention that defendants\u2019 rear or westerly line was not straight but concave, plaintiff procured a quitclaim deed for a small parcel allegedly being the land between the two parcels. The description of the new parcel included a portion running underneath defendants\u2019 home. Plaintiff amended his complaint to claim legal title to the land described in the 1989 quitclaim deed."], "id": "48b2949a-b428-48c4-8d67-a7d109c7ebcb", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["misrepresentations of its student enrollment projections. But it does not proffer that evidence for the purpose prohibited by the rule: to nullify, vary, or supplement a contractual term. See Yocca, 854 A.2d at 436\u201337. Rather, SDM accepts the terms of the Management Agreement as they are \u2013 in particular, those related to its obligations to make investments and provide dining services \u2013 and it seeks to use the extrinsic evidence to prove that Drexel fraudulently induced it to enter into the Management Agreement. Nor does the Management Agreement contain a fraud-insulating provision. It does not disclaim reliance on precontractual representations, and it does not state that representations in the Management Agreement are exclusive or supersede all prior representations. Thus, here, the parol evidence rule does not prevent the use of extrinsic evidence to prove precontractual misrepresentations. See Youndt, 868 A.2d at 546.7"], "id": "a4774a42-e69f-4c41-be3d-d70af43e6d29", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["There is nothing in the written memorandum which states that the more formal agreement was to be subject to the approval of defendant\u2019s legal adviser and this defense in the light of its clear violation of the rule must fall. The defense that plaintiff failed to perform all the conditions on her part to be performed is disproved by the proof from the broker, whose veracity the defendant also sponsors. As to defendant\u2019s third defense, the law is well settled that the usual obligation to minimize damages\" has no application to a contract of leasing (Gray v. Kaufman Dairy & Ice Cream Co., 9 App. Div. 115, 119; Sancourt Realty Corp. v. Dowling, 220 App. Div. 660). However, since there is no denial that plaintiff occupied the premises with her family and thus may have received a beneficial use therefrom, the question of damages becomes an issue."], "id": "d3b3eec8-0113-43f4-940f-53fd48081bbe", "sub_label": "US_Terminology"} {"obj_label": "Parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Oral testimony as to statements of the testator to the draftsmen of his will were received subject to a motion to strike. This testimony referred to statements made at the time of the will\u2019s preparation and statements made sometime thereafter. The motion to strike this testimony is granted. In the construction of a will the intention of a testator is to be gathered from the will, read as a whole (Matter of Evans, 234 N. Y. 42; Matter of Schliemann, 259 N. Y. 497) and when the judicial conscience is in doubt as to the construction of a particular portion of the will, the circumstances surrounding the testator at the time of the paper\u2019s execution may be considered (Matter of Smith, 254 N. Y. 283; Matter of Neil, 238 N. Y. 138; Collister v. Fassitt, 163 N. Y. 281; Bradhurst v. Field, 135 N. Y. 564) and inquiry may be made as to the testator\u2019s fortune and family (Matter of Title Guar. & Trust Co., 195 N. Y. 339). is not admissible to contradict the language of a will or to provide an intention that has been omitted from the instrument (Matter of Smith, supra; Dwight v. Fancher, 245 N. Y. 71; Brown v. Quintard, 177 N. Y. 75; Matter of Nelson, 268 N. Y. 255; Matter of Tamargo, 220 N. Y. 225; Matter of Gautier, 3 N Y 2d 502, 510.) Testimony may be resorted to in the event of an ambiguity in the words of the will but an expression of intention made after the execution of the instrument may not be availed of in a search for testamentary purposes (Morris v. Sickly, 133 N. Y. 456)."], "id": "f2141818-94a2-4e0f-837d-08af64f82ac8", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 9 Cal.Rptr.3d 97, 83 P.3d 497, the trial court granted judgment on the pleadings for the defendant in a malicious prosecution case, holding that dismissal of the underlying action based on the rule was not a favorable termination. The Supreme Court reversed, beginning its analysis as follows: \"To determine 'whether there was a favorable termination,' we 'look at the judgment as a whole in the prior action ....' [Citation.] 'It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits.' [Citation.] Rather, *47'[i]n order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit.' [Citation.]\" ( Id. at pp. 341-342, 9 Cal.Rptr.3d 97, 83 P.3d 497.)"], "id": "f0adebed-8b58-48e2-af2b-9db662f4bf01", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["It is a well settled rule which runs through all the books that cannot be admitted to supply or contradict, enlarge or vary the words of a will, or to explain the intention o\u00a3 a testator, except in two cases: 1, Where there is a latent ambiguity, arising dehors the will as to a person or subject meant to he described; and, 2, To rebut a resulting trust. It is conceded by counsel that this case does not come within either exception."], "id": "cfa5ed39-82cd-434c-87ff-18e8cf049344", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["While there is the obvious problem in permitting to establish an intention to revoke (see, Matter of Stern, 189 Misc 639) where the statute provides that there is no revocation as a matter of law, it may be argued that where the will itself states that a bequest to children is limited because of ill feelings towards them, the after-born should receive an intestate share. However, this is a matter for determination by the Legislature. The courts must give effect to legislation as it is written not as they or others believe it should be written (Allen v Minskoff 38 NY2d 506; Matter of Rosenthal v Hartnett, 36 NY2d 269)."], "id": "91701c97-2c55-423e-99ab-098b852f46ed", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["As to the alleged breach of contract, and the issue of whether defendant did or did not work jointly on the AYW case, it is settled that \u201cwhen interpreting a contract, the court should ar*403rive at a construction which will give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.\u201d (Matter of John E. Andrus Mem. Home v DeBuono, 260 AD2d 635, 636 [2d Dept 1999]; see also WWW Assoc. v Giancontieri, 77 NY2d 157, 162 [1990] [\u201cwhen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms\u201d; court held that cannot be used to add to or vary the writing that is ambiguous]; see also T.M. Bier & Assoc., Inc. v Piraino, 16 AD3d 578, 579 [2d Dept 2005] [in interpreting a contract one provision should not be left without force or effect].)"], "id": "0e370eb8-fc2f-49aa-98c5-818e4c01c4e1", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["In the ease before us, the defendants\u2019 letter was simply a proposal that the plaintiff should accept an order for fifty warps instead of one hundred, at the price of seventy cents. This was the exact language used, and, the existence of a contract or not, depended on the acceptance of the order upon the terms proposed. The acceptance was by letter, but the contents of this letter, as well as the fact that it was mailed to the defendants, was established by . No exception was taken to the proof, and as the letter is presumed to have reached the defendants in due course of mail, and might have been produced by them before the referee, it may be that this was sufficient proof of an acceptance in writing. (Watts v. Ainsworth, 6 Law T. N. S. 252.) But if there be doubt on this point, there was sufficient evidence of a delivery and acceptance of a part of the warps, to take the case out of the operation of the statute."], "id": "2e2461dd-c029-43dd-b824-b31d27df26f3", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["An oral agreement that the contract is cancelable would contradict the terms of the contract providing for the irrevocability of the offer, and hence, is inadmissible under the rule (Mitchill v. Lath, 247 N. Y. 377; Halloran v. N. & C. Contr. Co., 249, N. Y. 381; Ball v. Grady, 267 N. Y. 470; B. H. Krueger, Inc., v. Hearn Dept. Stores, 265 App. Div. 791)."], "id": "28467ebf-b4c6-4dfd-9b9c-62f3df9ad57b", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Second. That a fair interpretation of the description used in the deed of the defendant to the plaintiff, in the light of the surrounding circumstances, and the that was given, would tend to the conclusion, as a question of fact, that the defendant did not assume to convey and did not intend to convey any portion of the Taylor lot to the plaintiff."], "id": "343096af-1f44-433f-9d80-bc702b0eca3e", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The appellant claims that to establish the above facts was inadmissible, for the reason that it contradicted and was received to vary the terms of a written, contract by the note. . We do not think that rule applies. The contract of the sale or release of plaintiff\u2019s interest was by parol. That is the contract which would by its terms determine who was to pay the plaintiff. \u2022 The note would not necessarily, and parol evidence of what the terms of that agreement were was, properly received. \u25a0"], "id": "c49a5ea5-4a6a-4a08-ae8f-840e3866f1f5", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["The objections taken to certain rulings of the justice upon questions of evidence have no merit. Tlie award was a collateral matter, and of its contents was properly received. The question put to the witness Ellis, one of the umpires, whether he had a right to examine the buggy, was wholly immaterial, and his answer, \u201c I suppose so,\u201d though irrelevant and improper, did no possible harm."], "id": "c13458f1-b40c-45be-b8ca-87170f197aed", "sub_label": "US_Terminology"} {"obj_label": "parol evidence", "legal_topic": "Business Law", "masked_sentences": ["Under the statutes of this State (2 E. S., 64, \u00a7 42) a will devising realty may be altered or revoked in the same way that a will bequeathing personalty may be altered or revoked. Since the passage of this statute, and since 1 Victoria (chap. 26), it has been so generally held that it may be regarded as settled in this State and in England, that of the satisfaction of a legacy may be given without violating those statutes, because it is not proving a revocation or alteration of the will, nor is it in contradiction of the testator\u2019s declared intern ion, but is evidence of a subsequent transaction, showing that the testator has partly carried his will into effect in his lifetime. (Langdon v. Astor's Exrs., 16 N. Y., 9, 39, 49; Kirk v. Eddowes, 3 Hare, 508; 2 Whar. Ev., \u00a7 1007; 2 Taylor\u2019s Ev. [6th ed.], 998, 1048; 1 Greenl. Ev., \u00a7 296; Abb. Tr. Ev., 148; Gresley\u2019s Ev., 297; 2 Will. Exrs. [6th Am. ed.], 1443; 2 Redf. Wills, 442.)"], "id": "590ae886-ee59-4372-80cd-906e08135df6", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Applying this legal theory to her vehicle, Gutierrez argues the Hyundai was not merchantable when sold to her because \"it had the unresolved and *1243undisclosed stop lamp switch issue\" identified in the safety recall. In Gutierrez's view, this breach of the of merchantability occurred at the time of sale and, as a result, the cause of action does not depend on the timing of her discovery of (1) the safety recall or (2) CarMax's failure to fix the vehicle as specified in the recall."], "id": "54992951-78f1-4656-a3de-434267f77c7a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["There is no estoppel in the case, and no that the face of the judgments was the amount due. The assignment from Mrs. Walrath was without recourse. All parties dealing with the judgments were bound to take notice of their contents, and of the contents of the judgment rolls on which the judgments were based. Such parties were thus advised of the true amount for which the judgments could be enforced, and the plaintiff especially, as a party to the judgments, was bound to know that his payment of them would give him no right of contribution against the defendant."], "id": "e182c662-3adb-4058-96cf-e794c73d0160", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The primary action was commenced by the Town of Ogden to compel compliance by a contractor (Howarth) with certain subdivision development and construction regulations. Howarth commenced a third-party action against Hart, the owner of one of the homes in the subdivision, on the ground that if the subdivision regulations had not been complied with, it was by reason of certain alleged acts by Hart. Hart counterclaimed against Howarth, his builder-vendor, on the ground (1) that he (Hart) was a third-party beneficiary of a contract between Howarth and the town to properly develop the subdivision in accordance with town regulations \u2014 a contract allegedly breached by Howarth; (2) that Howarth had fraudulently induced Hart to execute the purchase contract by oral representations regarding the quality of workmanship and materials in Hart\u2019s home \u2014 oral representations allegedly breached by Howarth; and (3) that Howarth allegedly breached an regarding the quality of workmanship and materials in Hart\u2019s home."], "id": "fe420cb7-54b3-44b3-b45c-760802cb62c9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Where an item of food or drink intended for human consumption is sold, an is imposed on the manufacturer that the item is fit for human consumption and free from any harmful or unwholesome substances, when it leaves the manufacturer\u2019s control. (UCC 2-314; Hohn v South Shore Servs., 141 AD2d 504 [2d Dept 1988]; 86 NY Jur 2d, Products Liability, \u00a7 129, at 517; Annotation, Liability for Injury or Death Allegedly Caused by Foreign Substance in Beverage, 90 ALR4th 12, \u00a7 2 [a], at 22; see also, England v Sanford, 167 AD2d 147 [1st Dept 1990], affd 78 NY2d 928 [1991].) In order to recover, however, the injured consumer must prove that the product was actually defective or unwholesome, and that the defect or unwholesome condition existed at the time the product left the possession or control of the manufacturer. (Tordella v RJR Nabisco, Inc., 178 AD2d 737 [3d Dept 1991]; Kotiadis v Gristede Bros., 20 AD2d 689, 690 [1st Dept 1964].) In the case of food or drink sold in a sealed container, this burden may be satisfied by proof that there was no opportunity for tampering with the sealed container, or by proof that there was no such tampering in the given case. (See, supra.)"], "id": "230f2802-ef10-4190-8753-65fe87d55bd9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Warranties of merchantability and fitness for use are implied by sections 2-314 and 2-315 of the Uniform Commercial Code, unless excluded or modified pursuant to section 2-316 of the Uniform Commercial Code where, as here, the exact exclusionary words of subdivision (2) of section 2-316 of the Uniform Commercial Code are not used, the exclusion may nevertheless be accomplished by \"language which in common understanding calls the buyer\u2019s attention to the exclusion of warranties and makes plain that there is no .\u201d (Uniform Commercial Code, \u00a7 2-316, subd [3] , par [a].) Or, when the buyer \"has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him\u201d. (Uniform Commercial Code, \u00a7 2-316, subd [3], par [b].) Or, when the exclusion results from \"a course of dealing or course of performance or usage of trade.\u201d (Uniform Commercial Code, \u00a7 2-316, subd [3], par [c].)"], "id": "b6f9b55b-cffc-495b-96d3-bfdff52d2667", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["It is not necessary, therefore, for the court to consider whether defendant Fordham is liable under the theories of strict liability in tort or of merchantability under section 2-314 of the Uniform Commercial Code. (Cf. Peterson v Backrodt Chevrolet Co., 61 Ill 2d 17 and Realmuto *985v Straub Motors, 65 NJ 336, with Cintrome v Hertz Truck Leasing & Rental Serv., 45 NJ 434, and Cornelius v Bay Motors, 258 Ore 564. Cf. Swensson v New York, Albany Desp. Co., 309 NY 497. See, generally, 2 Frumer and Friedman, Products Liability, \u00a7 16A[4][b][iv]; \u00a7 18.03[3]; Strict Liability Not Applicable to Used Car Dealers Absent Actual Creation of Defect, 25 De Paul L Rev 574; Torts \u2014 Products Liability\u2014 Strict Liability in Tort Applied to Seller of Used Automobiles, 42 Tenn L Rev 426; Products Liability: Manufacturers\u2019 Products Liability as It Relates to Used Automobile Dealers, 31 Okla L Rev 736. On the question of the application of implied warranties to used car dealers, see, generally, Official Comment, McKinney\u2019s Cons Laws of NY, Book 62 Vi, Uniform Commercial Code, \u00a7 2-314, p 259; Prosser, Torts [4th ed], \u00a7 100; 2 Frumer and Friedman, \u00a7 16A [4] [5] [i].)"], "id": "28d233b6-99fb-443f-9185-eb4d50e53b18", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Under that doctrine an of habitability is read into leases and the tenant is not required to move before he can obtain an abatement of rent (Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Amanuensis Ltd. v Brown, 65 Misc 2d 15; 57 E. 54 Realty Corp., v Gay Nineties Realty Corp., 71 Misc 2d 353; Jackson v Rivera, 65 Misc 2d 468; Mannie Joseph, Inc. v Stewart, 71 Misc 2d 160; Morbeth Realty Corp. v Rosenshine, 67 Misc 2d 325; Steinberg v Carreras, 74 Misc 2d 32, revd on other grounds 77 Misc 2d 774). This doctrine recognizes that apartment renters, unlike farmers, are not seeking the land on which the apartment is located but rather, \"they seek a well known package of goods and services \u2014a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.\u201d (Javins v First Nat. Realty Corp., 428d 1071, 1074.) The law of contracts permits an implied warranty to be read into oral and written apartment leases that the apartment is safe, sanitary and fit for human habitation. The laws in force at the time that such lease agreements are entered into become a part of such contracts (Dolman v United States Trust Co. of N. Y, 2 NY2d 110). When a landlord fails to perform his obligations under the lease contract by flagrantly and persistently violating the law, as is the case here, I find that there is such a substantial breach of the landlord\u2019s obligation under the contract that it serves to discharge the tenant\u2019s obligation to pay rent."], "id": "df7836de-fe98-4b42-b6fd-790b2d249485", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In the present case the cause of action arose after this section took effect. (Pers. Prop. Law, \u00a7 96.) Section 96 provides that \u201c There is no or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller\u2019s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.\u201d"], "id": "7412e7fb-1c88-48fa-a539-d492d0427ca1", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u201cThe second inquiry is whether the defendant gave an as to the glass as well as to the drink in it. [The plaintiff] was the ultimate consumer of the drink, but the glass remained the property of defendant. In Shaffer v. Victoria Station, Inc., 91 Wash.2d 295, 588 P.2d 233 (1978) the Supreme Court of Washington was faced with a similar situation. In that case plaintiff ordered a glass of wine and the glass broke in his hand causing permanent injury. The state of Washington adopted the identical provision from the Uniform Commercial Code regarding implied warranties as did the state of New Jersey."], "id": "d98dd7d7-5719-4841-b1d8-5e989298fc79", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Williston quotes (rev. ed., vol. 1, \u00a7 239b) from the Georgia decision of Roebling\u2019s Sons Co. v. Southern Power Co. (142 Ga. 464, 468) as follows: \u201c Suppose that a purchaser should order from a manufacturer a table warranted to be of certain dimensions and with certain ornamentations, can it be contended that this would exclude an that the table should be properly put together, and that such a contract would be fulfilled by supplying a table with the dimensions and ornamentations specified, although it might be constructed of such inferior material as to fall down as soon as the purchaser should place a dictionary upon it and turn to the word \u2018 warranty \u2019? \u201d"], "id": "6500c509-4b97-4a40-9527-9e6ec4a426ed", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Appellant raises two points on appeal. In Point I, Appellant argues the circuit court erred in entering judgment in favor of Ms. Tolliver on her claim for breach of of habitability because the claim is barred by the exculpatory clause in the 2017 lease. In Point II, Appellant argues the circuit court erred in entering judgment against it on its counterclaim because Appellant proffered evidence to support a prima facie breach of contract claim."], "id": "0a05d3d7-98e8-4d56-961d-a3d78292561d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["A monumental trilogy of cases has revolutionized this area of the law. (Greenberg v. Lorenz, 9 N Y 2d 195; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Goldberg v. Kollsman Instrument Co., 12 N Y 2d 432.) The Kollsman case is particularly pertinent. There the Court of Appeals held that a suit in by an airline passenger was main*555tainable against the assembler and manufacturer of an allegedly defective altimeter. At pages 434 to 435 of its opinion the court said that: \u2018 \u2018 The question now to be answered is: does a manufacturer\u2019s implied warranty of fitness of his product for its contemplated use run in favor of all its intended users, despite lack of privity of contract? \u201d It answered its own query when it said (pp. 436-437): \u201c that, at least where an article is of such a character that when used for the purpose for which it is made it is likely to be a source of danger to several or many people if not properly designed and fashioned, the manufacturer as well as the vendor is liable, for breach of law-implied warranties, to the persons whose use is contemplated.\u201d"], "id": "c1c33df7-b62d-4c54-bf91-12509990061d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["My original opinion in this case makes it crystal clear that the cause of plaintiff\u2019s injury Avas the original and basic defect in the manufacture of the nail. Applying the test set forth in Natale it is manifest that the essential cause of the accident was the manufacturer\u2019s breach of of fitness for *1058use. The characterization of Wi'lmod\u2019s failure to inspect the nail as \u201c active \u201d negligence must be read in context. It was not a finding of \u201c active \u201d negligence in the sense that what Wilmod did was the essential cause of the occurrence but rather that vis-a-vis plaintiff and defendants Macrose its negligence was \u201c as a matter of law, that of a manufacturer \u201d because it did not on the box of nails which it sold indicate the name of the manufacturer but stated that the nails were \u2018 \u2018 manufactured in Japan for Wilmod, Oo., NYC \u201d. The opinion makes it clear that it was that representation made to persons who purchased the nails from or through it that caused it to be considered a manufacturer so far as they were concerned."], "id": "c44234ea-ab0c-4c3f-b487-4d1eeb323df8", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": [". \u201cThe doctrine of of habitability has been the accepted policy of many Judges of the Civil Court of the City of New York for a number of years\u201d (Groner v Lakeview Mgt. Corp., 83 Misc 2d 932; see, e.g., Jackson v Rivera, 65 Misc 2d 468; Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Steinberg v Carreras, 74 Misc 2d 32)."], "id": "bcde2443-ca20-4339-af38-04712efeec78", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff seeks to recover against Wilmod on the theory of breach of warranty, both express and implied. Since Wilmod did not advertise the product or in any way make any affirmative statements regarding its quality, there can be no express warranty; nor do the facts establish a warranty of fitness for a particular use. The fundamental question, therefore, is whether a supplier in the position of Wilmod is liable to a consumer with whom it is not in privity of contract for a breach of of merchantability."], "id": "6cb24295-c09a-4da1-8ea9-a8b0221d8dd9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The defendant contended (as here) that the created by the statute contemplates the existence of a warranty running only from an immediate seller to an immediate buyer, and that therefore the wife, who was not the purchaser, did not have privity of contract with the retailer; furthermore, that her husband, the purchaser, did not have privity of contract with the defendant manufacturer. Coincidentally, the court discussed the right of an infant to recover for warranty where the parent makes a food purchase and also elaborated upon the intention of the Legislature:"], "id": "83b90d6b-4bf3-45ec-8755-e0ea72f948fa", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Here, the instrument between the parties contained more than a mere disclaimer of express warranty and of , other than of merchantability and fitness. There was an express provision that the written instrument contained the entire agreement between the parties. That broad general statement was immediately followed and amplified by particularization that \u201c there are no promises, terms, conditions, or warranties other than those contained herein \u201d. (See par. 10 of instrument dated June 12, 1969, quoted, infra.) The same instruments, in large bold print set forth on the front page, admonished the buyer not to sign the instrument before it was read. (See par. \u201c Notice to The Buyer\u201d quoted above.) Finally, while subject to no legal requirement the disclaimer of express warranties and of implied warranties, other than of merchantability and fitness were mentioned by name and were set forth conspicuously in a separate space on the face sheet of the agreement. (See disclaimer of warranty clause, front page agreement dated June 12,1969, quoted, infra.)"], "id": "5f43e560-0520-4249-b16b-5c1b162e892f", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The general rule is well settled, and is unquestioned, that in the sale of personal property there is an of title. But it is claimed, on the part of the plaintiffs in error, that such rule is not applicable where the vendor is not in possession of the chattel sold, at the time of the sale. Upon this point there has been some conflict of opinion; and the question not having been judicially settled, in this state, it is necessary to give it a careful examination."], "id": "ad88ffdd-5278-44e3-9274-172f783e1c29", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["*1034Here the contract of sale contemplated that the reactor be shipped over some distance to the purchaser. Under these circumstances, the sale required that the seller package the goods for shipment, thereby creating an that the goods be adequately packaged (Uniform Commercial Code, \u00a7 2-314, subd. [2], par. [e]). Furthermore, the plaintiff relied upon the seller\u2019s skill to prepare the reactor for shipment, hence the seller warranted that the reactor, including the bracing, was suitable and adequate for the purpose of shipment (Uniform Commercial Code, \u00a7 2-315; Fraley v. Ford, 81 Ariz. 268). Nor was the shipper\u2019s obligation to properly package limited to the implied warranty created by the Uniform Commercial Code. When the shipper sold the reactor for shipment to the plaintiff, the shipper assumed an implied contractual duty to properly prepare it for shipment. Its liability for a breach of this duty is the same as though it had committed a breach of warranty (United States v. Loveys Co., 174 F. Supp. 44, 47)."], "id": "ff7f3616-99cc-4fff-8adf-f98764c1b372", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": [". The three remaining causes of action are founded on the alleged negligence of the landlord and the roofer, Stanley Werling. The first cause of action is against the landlord for negligent maintenance of the roof. The second cause of action is against the roofer for the negligent repair of the roof, and the third cause of action is against both defendants for the negligent repairs. The fourth and final cause of action is against the landlord alone and is founded on the breach of the of habitability."], "id": "5aae13c1-947a-4d99-a790-7f8af339210d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u2018 \u2018 There seems after all to be little if any difference between a liability based upon an and a positive duty *46based upon public policy. Both operate irrespective of negligence, and the same facts will support either. Peculiar as it may seem, however, the courts require privity for recovery in cases resting on the theory of warranty but not in those resting on the theory of tort liability. This distinction is questionable \u2019 \u2019. (7 Calif. L. Bev. 360, 364.)"], "id": "df6a1d20-be9f-4555-a81c-c86cb69f78a6", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In Stuart v Crestview Mut. Water Co. (34 Cal App 3d 802, 811-812) the California Court of Appeals held: \"We cannot, however, find any basis for holding the engineers on a strict liability theory. They rendered a professional service and are in no sense analogous to manufacturers who place products on the market and who are, therefore, in the best position to spread the cost of injuries resulting from defective products. [Citations omitted.] A relatively recent decision, Allied Properties v. John A. Blume & Associates, 25 Cal.App.3d 848, 855-856 [102 Cal.Rptr. 259] sums up the present state of our law with respect to the liability of professionals: '[T]he well settled rule in California is that where the primary objective of a transaction is to obtain services, the doctrines of and strict liability do not apply [Citation omitted.] As originally stated in Gagne v. Bertran, 43 Cal.2d 481 [275 P.2d 15], former Chief Justice Traynor, in holding there was no strict implied warranty liability on the part of a test hole driller, stated at page 487: \"He was not a seller of property who obligated himself as part of his bargain to convey property in the condition represented. The amount of his fee and the fact that he was paid by the hour also indicate that he was selling service and not insurance. Thus the general rule is applicable and those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.\u201d"], "id": "cf96d1d2-3fd2-42ad-aa55-7df61eba6f5f", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["It may be true that the Court of Appeals 1 \u2018 has dispensed, without qualification, with the court-made traditional requirement of privity\u201d (Williams v. Union Carbide Corp., 17 A D 2d 661, 662) in actions for breach of warranty. It is not yet the law, however, that one distributor may maintain an action for breach of express or against another distributor not in privity with the first who neither manufactured the article in question nor advertised it nor made any representations whatsoever with respect to it, nor even marked it with his name or trade-mark. Moreover, there is no reason to hold that justice requires such a rule."], "id": "8f554adc-55e3-4b9f-b10a-98a934b7812a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Edward J. Sperzel, J. This action, as it relates to defendant Smithtown Ford, Inc. (Smithtown), seeks damages in connection with plaintiff\u2019s purchase of a motor vehicle from Smithtown based upon breach of and revocation of acceptance pursuant to the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (15 USC \u00a7 2301 et seq. [Magnuson-Moss Act]), recovery of attorney\u2019s fees under said Act, improper delivery pursuant to section 2-601 (a) of the Uniform Commercial Code, breach of written warranty pursuant to section 198-b of the General Business Law (Used Car Lemon Law) and breach of the warranty of serviceability pursuant to section 417 of the Vehicle and Traffic Law."], "id": "f8d51c91-8f8e-48b4-a19f-6dfb2fef79be", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The award of damages to Abuhamda, however, is not supported by authority. There is no evidence that appellant\u2019s misrepresentation that the title was \u201cfree and clear\u201d was other than innocent or that appellant was negligent. The risk of arrest and detention for possession of a stolen vehicle is not a risk of injury to person or property within the doctrine of strict product liability. Nor is the award authorized as one of \u201cconsequential damages\u201d under the Uniform Commercial Code (\u00a7 2-714 [3]; \u00a7 2-715 [2] [b]). Privity is required to support an award of \u201cconsequential damages\u201d under the statute and section 2-318, which gives \u201call persons who could be reasonably expected to use a product privity with the seller for any breach of the of merchantability which causes personal injury\u201d (Carpinello, Distinguishing between Tort and Contract in Product Liability Context, One on One, Newsletter of General Practice Section of New York State Bar Association, vol 5, No. 3, at 6) does not in our opinion apply to a breach of warranty of title (see, McKinney\u2019s Cons Laws of NY, Book 62Vfc, Uniform Commercial Code \u00a7 2-318, comment 2, p 315). The judgment in favor of Abuhamda must therefore be reversed."], "id": "cb58fc5f-2ada-4463-a14e-c6577c677586", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The court now turns to the second cause of action alleged in the complaint, to wit, that defendant breached its of fitness for the purpose intended. This court holds, under the law of the State of New York, there is no cause of action against the architect for breach of implied warranty and, for that reason, the second cause of action pleaded fails to state a cause of action."], "id": "6f23f0d7-a09e-401e-8b56-42cc0ede40e9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["With respect to the second, fourth and fifth causes of action *865and that part of the third cause of action alleging breach of of fitness for a particular purpose, defendant failed to \u201cmake a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact\u201d (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Because defendant failed to meet its burden in moving for summary judgment, it is not necessary to consider the sufficiency of plaintiff\u2019s opposing papers (see, Ayotte v Gervasio, 81 NY2d 1062, 1063). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J.\u2014Summary Judgment.) Present\u2014Green, J. P., Balio, Fallon, Callahan and Davis, JJ."], "id": "efd6898e-d77b-4bc5-8f53-392ddf2484b7", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The cases cited by respondent in support of its position are inopposite. None involved construction of a similar exclusion in a similar type of warranty. For example, Belden-Stark Brick Corp. v Rosen & Sons (39 AD2d 534, 535, affd 31 NY2d 884) involved a sale of bricks to a business and provided in part: \u201c \u2018Seller shall not be liable for any consequential damage of any kind whatever\u2019 \u201d. No such all-excluding provision is present in this consumer service warranty. Likewise, Singer Co. v Alka Knitting Mills (41 AD2d 856) involved a commercial sales contract between parties on a more equal footing, the sale of a knitting machine to a textile manufacturer. As the opinion notes the contract expressly excluded any seller liability for consequential damage. Bakal v Burroughs Corp. (74 Misc 2d 202) involved the sale of a computer and allied *932equipment from a manufacturer to a business person. The written warranty was held not to cover any incidental or consequential damages to the purchaser\u2019s business because it expressly provided that in any event the seller\u2019s only obligation was limited to an exchange of equipment and that the buyer expressly waived all damages, whether direct, incidental or consequential. Nothing in the warranty before the court so provides. The only question in Architectural Aluminum v Macarr (70 Misc 2d 495) was whether the written warranty excluded an of merchantability or fitness in a commercial sale of goods."], "id": "50ab7dde-ff7d-4b86-8abd-e6ba71bee404", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["80 Cal.App.4th 1124, 1128; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572.) Moreover, a prevailing party under Code of Civil Procedure section 1032 is not necessarily a prevailing party under a separate attorney fee statute. (See Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1554.) Here, the attorney fee statute at issue only awards attorney fees to a buyer who \u201cprevails in an action under this section.\u201d (\u00a7 1794, subd. (d).) In turn, that section explicitly states: \u201cAny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.\u201d (\u00a7 1794, subd. (a).) Thus, the statute contemplates that a buyer must have been damaged to bring an action under Song-Beverly. And only by bringing an action under the Act, would the buyer even potentially be able to recover attorney fees under subdivision (d). Here, the trial court specifically found that Duff had not proved that he was damaged by Jaguar\u2019s breach of the of fitness. Nevertheless, the court found it appropriate to award Duff nominal damages of $1. Arguably, those nominal damages could be considered a \u201cnet monetary recovery\u201d entitling Duff to attorney fees under our holding in Reveles, supra, 57 Cal.App.4th 1139. Yet, in following Reveles and awarding attorney fees where the net monetary recovery is based on nominal damages after the fact finder determined Duff was not damaged, the trial court made an award that runs counter to the requirements of Song-Beverly. Duff was awarded substantial attorney fees under subdivision (d) of section 1794 without being damaged as required in subdivision (a). As we state ante, mechanically awarding attorney\u2019s fees to a buyer is not the purpose of the Act. (See Dominguez, supra, 160 Cal.App.4th at p. 60.)"], "id": "2e29552d-c233-42c8-b60b-b0942f01a418", "sub_label": "US_Terminology"} {"obj_label": "Implied Warranty", "legal_topic": "Business Law", "masked_sentences": ["After the Legislature creates the substantive right, it is the court which must devise the procedure. (Shaw, New Law of of Habitability, NYLJ, Sept. 2, 1975, p 1, col 2.) In an attempt to fashion procedure for the enforcement of section 235-b of the Real Property Law, this court finds that as one of the facts and circumstances upon which a nonpayment proceeding is based, it is necessary for the purposes of subject matter jurisdiction for the petitioner to allege compliance with section 235-b of the Real Property Law. Proof of that allegation is also necessary to establish the petitioner\u2019s entitlement to rent."], "id": "ab83a0e7-e998-435b-834a-6b3e23c2b5b3", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Again, the vocal and musical directors are made the arbiters of the fact and: extent of the incompetency under the rule. If, as claimed by the defendant, there is no qualification or limitation upon the word, or it is not controlled by any other word or sentence in the rule, why the necessity of its measurement by the directors? If the plaintiff was \u201cincompetent,\u201d in an artistic sense, he was under the definition wholly unfit to perform as a baritone, and the fact and extent of that incompetency did not require to be adjudged by the directors as a reason for discharging him. The law secured to\u2019 the company the right at anytime, without such adjudication, to discharge the plaintiff for cause, such as unfitness or inherent want of ability to render the service which he agreed to render. It is the rule that, when a person engages to perform a service requiring the possession of special skill and qualities, there is an on his part that he is possessed of the req-uisites to perform the duties undertaken, and, if found wanting, the right to discharge exists. If, then, the \u201cincompetency\u201d intended by the rule was of: such a character as time might remove, and as to the fact and extent of which the directors were to be the sole judges, it could only have applied to physical-incompetency in its relation to this contract. It is scarcely to be assumedtliat, if he was incompetent from an artistic stand-point, it could be qualified or measured, or that time would remove the disqualification, or that the coitipany would have retained him and paid him a large salary for seven weeks? without complaint or adverse criticism. I am therefore urged to the conclusion that the true interpretation of rule 6 is that the incompetency must be such as is produced from physical causes arising after the contract is entered into."], "id": "2b59b805-97a6-43a1-9020-55cf7b86a1f4", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The warranty of habitability has usually come into issue in summary proceedings for the nonpayment of rent. In that context the tenant raises the breach of the of habitability as a defense. This court holds that this warranty may be used affirmatively in a cause of action for property damage.3 Governor Carey stated in his memorandum of approval that: \u201c[T]he circumstances and situations in which tenants will be seeking to enforce the warranty will take many forms. Tenants have utilized the doctrine affirmatively as well as defensively; as a counterclaim, set-off, and defense in non-payment of rent proceedings. The remedies have been complete or partial abatement of rent and reimbursement for repairs made by tenants themselves. It will be the court\u2019s function to fashion remedies appropriate to the facts of each case\u201d (NY Legis Ann, 1975, p 438; emphasis supplied). The bill\u2019s leading sponsor, Senator Barclay, wrote that \u201cthis warranty is available as a cause of action or as an affirmative defense or counter claim\u201d (NY Legis Ann, 1975, p 315)."], "id": "5e9d87fc-fb67-494f-9ab1-f331c9663f7e", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u201c[W]here a limited warranty expressly excludes any common-law , it is exclusive and a cause of action sounding in common-law breach of contract may not be maintained\u201d (Lantzy v Advantage Bldrs., Inc., 60 AD3d 1254, 1255 [3d Dept 2009]). \u201cA breach of contract cause of action, however, is precluded only to the extent it is based on the breach of warranty\u201d (Gallup at 1661), and a claim may be maintained alleging specific violations of the purchase contract (Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1075-1076 [2d Dept 2007]). As plaintiffs have alleged the breach of a specific contractual provision requiring Barbera Homes to comply with all relevant laws and regulations in undertaking and completing the contracted work, the availability or assertion of a similar warranty claim does not compel dismissal of this cause of action."], "id": "c86b4f05-b5dd-49c0-85ab-ca03265a0057", "sub_label": "US_Terminology"} {"obj_label": "Implied Warranty", "legal_topic": "Business Law", "masked_sentences": ["And in a law review article by Margaret R. Scherer, entitled New York\u2019s Search for an Effective of Habitability in Residential Leases (43 Albany L Rev 661, 686), Ms. Scherer states: \u201cIn light of the rule that statutes enlarging or limiting common law rights or liabilities should be construed as consistent with existing common law principles unless the intention to overrule such case law plainly appears by express legislative declaration or necessary implication, Kaplan should be overruled as an *132unwarranted extension of section 235-b and the implied warranty of Tonetti.\u201d"], "id": "544e21f9-30b5-4afd-b3fd-355fd0a6d763", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["A recent Appellate Term, First Department, case is nearly on point with the action at bar. In McBride v 218 E. 70th St. Assoc. (102 Misc 2d 279), the tenant sued her landlord for property damage resulting from the latest of eight floods. The apartment was flooded with six inches of water. The plaintiff moved for summary judgment on her cause of action based on the breach of of habitability. The Appellate Term ruled that the motion should be granted as to the issue of liability but ordered an assessment of damages. The court found that this tenant did not cause the flooding or contribute to it. There need not be a showing that the landlord acted in bad faith or contributed to the defective condition of-the premises. The court seemingly approved the reasoning of Kaplan v Coulston (85 Misc 2d 745, supra), and it cited it with approval."], "id": "96e0f0f1-5d6b-483f-b810-8ddc12709b54", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["On the contrary, the contract declared on and admitted by the pleadings is an executed sale, on which no- attaches (Hart v. Wright, 17 Wend. 267; 18 Id. 449); for, in the language of Judge Paige, in Hargous v. Stone (5 N. Y. 86), \u201c If the article is at the time of the sale in existence and defined and is specifically sold, and the title passes in present\u00ed to the vendee, the transaction amounts to an executed sale, and although there is no opportunity for inspection, there will be no implied warranty that the article is merchantable.\u201d But even on a sale of goods \u201c to arrive,\u201d the warranty implied by the law must be reasonable, and the purchaser must bear the risk of deterioration which is necessarily consequent upon the transmission (Bull v. Robinson, 10 Exch. 342-346). The coal was of the brand indicated (Dounce v. Dow, 64 N. Y. 411), and the defendant did not elect to reject, but accepted it (Townsend v. Shepard, 64 Barb. 39). So that whatever remedy he might otherwise have had, it is clear from the pleadings and proof that there is no defense."], "id": "914b9514-3c29-4d75-aa74-e59ad8e47a31", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The issue then narrows to a determination of whether or not the presence of a piece of magnesium ammonium phosphate, also known as a struvite crystal, contained in a can of tuna fish, constitutes a breach of , merchantability and fitness for human consumption. There is no question that there was an implied warranty that the tuna fish was of merchantable quality and fit for human consumption. (Personal Property Law, \u00a7 96; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Greco v. Kresge Co., 277 N. Y. 26.)"], "id": "a788c142-6e26-4b70-aa87-a2671a05a00d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Lastly, defendants urge that the sixth and seventh causes of action for breach of implied and express warranty, respectively, lack necessary allegations of privity, as did the original complaint. A comparison of the complaint and the amended complaint indicates that no new allegations have been provided to support the previously deficient claim. It is clear that allegations of privity, that is of a direct sale by each defendant to plaintiff personally or through their agents (see, Utica Observer Dispatch v Booth, 106 AD2d 863), are required on an implied warranty claim when only property damages or economic loss is alleged. (UCC 2-318 [prior to 1975 amendment]; Miller v General Motors Corp., 99 AD2d 454, affd 64 NY2d 1081; Jaffe Assocs. v Bilslo Auto Serv., 58 NY2d 993; Aniel Oldsmobile-Cadillac v Sirus Leasing Co., 101 AD2d 688.) Here, there is no allegation of a direct link in the distributive chain (Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 410 [1985]). While the law school alleges that defendants sold the asbestos products, there is no allegation regarding to whom such products were sold. Accordingly, the implied warranty claim asserted as the sixth cause of action is dismissed. Since, however, in these complex asbestos actions facts regarding which defendant supplied which product and whether such product was directly supplied, are unearthed following protracted disclosure, Brooklyn Law School may move for leave to replead this cause of action upon a proper showing which shall include facts indicating which defendants directly sold specified products to Brooklyn Law School, personally or through the parties\u2019 agents."], "id": "27ecd4ce-6699-4a04-9beb-60c724adda8b", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The court concluded that \u201cthe housing merchant statute * * * only applies to contracts or agreements for the sale of new homes,\u201d which requires \u201ca sale and passing of title\u201d (184 Misc 2d at 414-415, citing Caceci, supra; Roberts, supra; Fumarelli, supra; Chan v Rose Constr. Corp., 211 AD2d 872 [3d Dept 1995]; Pitcherello v Moray Homes, 150 AD2d 860 [3d Dept 1989]).5 That not being the case where the new home is constructed on land already titled to the homeowner, the statute does not apply, and any contractually derived claim is unimpaired by the statutory notice and statute of limitations provisions."], "id": "35592c40-2010-4716-8766-d934758544ed", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In the case of Booth v. Alcock (L. R., 8 Ch. App., 663), a lessor granted a lease of a house with its appurtenances, among which lights were specified. At the time of the grant he held an adjoining house for a term of years. He subsequently acquired the reversion, expectant on the term, of the adjoining house, and, after the expiration of the term, he proceeded to build on the site of the adjoining house in a manner which might interfere with the lights of the demised house. Held, that he was not prevented from so doing; that the general words in a grant must be restricted to what the grantor then had power to grant, and will not extend to what he may subsequently acquire. In this case lights were expressly mentioned. Yet the lessee obtained only such rights as the lessor had at the time, and could not control even such as the lessor afterwards acquired. As the lessor warrants what he leases, it must have been held that such only applied to such rights and easements as he then had power to grant. But if his lease bound him to warrant the *480apparent easement, lie would not have been permitted to assert bis subsequently acquired rights to the prejudice of that easement. Much less, then, would the lessor have been liable for the acts of third parties."], "id": "d9670d5e-7c08-495a-ae25-2c76533593b5", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Section 2-316 (subd [3], par [b]) of the Uniform Commercial Code was considered by the the court in Tarulli (supra). The section provides: \u201cwhen the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no with regard to defects which an examination ought in the circumstances to have revealed to him\u201d."], "id": "4c2f8a16-6cfa-477c-9e07-d1bcc25ca27a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Claimant\u2019s contention that privity has been discarded in a breach of warranty cause of action is incorrect. Privity of contract is no longer required in breach of warranty actions involving strict products liability situations for the very good reason such actions (at least as to parties not in privity \u2014 see DeCrosta v Reynolds Constr. & Supply Corp., 49 AD2d 476) are tortious, not contractual. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401-402.) The warranties implied in *640these actions are ones implied in law, distinct and separate from the relevant sales contract. (Ibid.) The putative warranty alleged by claimant here, if it exists at all, clearly does not involve products liability. It is dependent upon and a part of the prime contracts between the State and Green Island, its general contractor. Claimant has pointed to no legal obligation which would support such a warranty independent of said contracts. In fact, it could be argued that no breach of an cause of action exists separate from contract other than in the sale of goods. (See Aegis Prods. v Arriflex Corp. of Amer., 25 AD2d 639; see, also, Sears, Roebuck & Co. v Enco Assoc., 83 Misc 2d 552, 557-558, affd 54 AD2d 13.) The use of the term \"implied warranty\u201d, with all its products liability and Uniform Commercial Code sale of goods associations, is perhaps inappropriate and confusing in public construction contract cases. We believe analysis would be aided if it were remembered that the limited warranties implied in such cases (such as furnishing the construction site \u2014 see generally 48 NY Jur, Public Works and Contracts, \u00a7 81) are nothing more than additional contract terms implied from the underlying express contract and the surrounding circumstances. Such warranties should thus be considered purely contractual and we fail to see how the warranty constructed by claimant here can be viewed any differently. The court thus concludes that a claim based on breach of warranty is unfounded.2"], "id": "5638241d-1f72-48e2-af93-51b07c340634", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Burwell v Jackson (9 NY 535 [1854]), a case cited by the sons purportedly for the proposition that an assignment carries with it an of title, applies only to executory *363agreements. Here, the 1980 agreement was made pursuant to a fully consummated contract for sale between the developers and the co-op, and was not executory. Moreover, the policy expressly requires that an instrument that transfers title contain a covenant or warranty of title (conditions of the policy \u00a7 3 [f])."], "id": "4f6e278b-9c16-4dc9-b572-3516d1e43cba", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The complaint made the transactions an arrangement to \u201cmanufacture for\u201d defendants articles (not yet in use) of a certain sort prescribed. This is not a sale in prcesenti, within the statute of frauds, but an agreement to do work and supply the material thereto. Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. In such cases there exists an that the articles will be free from any latent defect growing out of the process of manufacture, and the rule of \u201ccaveat venditor\u201d governs in respect thereof; but as to latent defects in the \u201cmaterials\u201d used, proof or direct inference of the manufacturer\u2019s knowledge of such latter must be affirmatively shown on the vendee\u2019s part. Hoe v. Sanborn, 21 N. Y. 552, approved in Bridge Co. v. Hamilton, 110 U. S. 114, 3 Sup. Ct. Rep. 537; Howard v. Hoey, 23 Wend. 350. However, a warranty of \u201cfitness\u201d of the ordered chattels for any special, known, or supposed use or purpose is not implied, but the same must be particularly bargained for. Bartlett v. Hoppock, 34 N. Y, 118. The title to the respective articles, of course, remains in such manufacturer until the legal \u201cdelivery\u201d and approval of the finished article. Kein v. Tupper, 52 N. Y. 550, 553, 555; Tompkins v. Dudley, 25 N. Y. 273, 274. Meanwhile no action lies for the contract price. 52 \u00d1. Y. 555. As regards the \u201ccounterclaim,\u201d there was no proof offered, however, that the first lot as delivered was not made equal to the \u201csample,\u201d No. 260; and such counter-claim was properly disregarded by the court, as unproven. Beck v. Sheldon, 48 N. Y. 365. But as to the second lot of yarn. Before any thereof had been shipped the purchasers duly stopped all further \u201cshipping\u201d of any more goods until further instructions from them. This also appears directly admitted on the face of the complaint. Hence the contract price and charges for shipment were thereafter not recoverable, as such stoppage of further performance was never revoked, (Smith v. Brady, 17 N. Y. 174, 188; Husted v. Craig, 36 N. Y. 221;) and consequently the only remedy of the manufacturer was a suit, not upon and in pursuance of the contract, but for the manufacturer\u2019s \u201cdamages\u201d sustained by reason of the vendee\u2019s breach of the contract, through the loss of profits and other attendant injury. Messmore v. Shot Co., 40 N. Y; 427. For, when stopped, the manufacturer could legally go no further. Goodwin v. Kirker, 2 Hilt. 401. The price cannot be recovered, as the \u201ccontract price\u201d is not divisible, and the whole agreement was not \u201cperformed\u201d when further shipment was forbidden; and, as the yarn on hand or finished could not, thereafter, be rightfully sent off to the place of destination, it remained the manufacturer\u2019s property, and if lost or destroyed he must bear the loss himself. Such stoppage has not been recalled. See Butler v. Butler, 77 N. Y. 472, 475, and authorities cited. The rule is laid down: \u201cNo title vests in him for whom a chattel is to be manufactured till it is finished and properly delivered and approved, or sufficiently submitted for approval.\u201d Andrews v. Durant, 11 N. Y. 35, 40, 45. To same effect, Atkinson v. Bell, 8 Barn. & C. 277; Merritt v. Johnson, 7 Johns. 473. And, therefore, no action for the \u201cprice\u201d accrues until then. Kein v. Tupper, 52 N. Y. 555. And this is so, although the manufacture (in Europe) of the whole goods was not countermanded, but only their shipment was stopped. The like principles must here apply. The contract sued on, providing for a delivery at a distant point from Europe, was \u201cambulatory,\u201d until appropriate delivery of the articles ordered. Evans v. Harris, 19 Barb. 417, 427, 428. The case on such rejected goods, as made out by the pleadings and the evidence, was solely one of a \u201crefusal to accept goods\u201d *408manufactured to order, and in such cases, ordinarily, the measure of damages, at most, is the difference between the market value of the goods at the time of the breach of contract and the price at which they were ordered; and a notice to accept was a necessary prerequisite to be given unto the vendee hereto, and the refused merchandise as manufactured might have been sold at auction, with a view of getting at such market value. Bigelow v. Legg, 102 N. Y. 652, 653, 6 N. E. Rep. 107; Myers v. De Mier, 52 N. Y. 647, 648; Messmore v. Shot Co., 40 N. Y. 422, 427; Beebe v. Dowd, 22 Barb. 255. No notice to defendant of such auction sale would be required. Messmore v. Shot Co., 40 N.Y. 422."], "id": "5a8fc726-2470-457e-b6a9-a05d86c72a0c", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Robert G. Hurlbutt, J. Plaintiffs commenced the first-captioned action in September 1986, and the second-captioned action in September 1987, by service of summonses and complaints asserting causes of action including negligence, strict liability, and loss of consortium. Plaintiff Donald Burdick alleges that while he was employed by the Valeron Corporation at the Valenite Metals Division in Dewitt, New York, from 1966 to 1969, he was exposed to \"cobalt, cobalt dust, and fumes containing cobalt\u201d which caused him to develop cobalt-related lung disease (otherwise known as hard metals disease) and that defendants were manufacturers and suppliers of the cobalt and cobalt-containing materials which caused his injury. The summary judgment motions brought by defendant Afrimet-Indussa Inc., in the first-captioned action, and defendant Kennametal, Inc., in the second-captioned action are identical in fact and theory and, thus, the determination made herein shall apply to both captioned actions."], "id": "f5a52eee-acc2-4118-8a8d-35cdfc99bbee", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In Natale v Martin Volkswagen (92 Misc 2d 1046 [City Ct, Utica 1978]) the court held that a hand-stamped disclaimer stating \"this car sold without any guarantee. This car sold in its present condition as is\u201d was ineffective to eliminate the of merchantability. The words were \"stamped over other printed material in such a way as to obscure those words and make it difficult, if not impossible, to read. The buyer cannot be expected to agree to a waiver which she could not read\u201d (supra, p 1049)."], "id": "2740b114-0fd0-43a1-b2e1-e0a22fa97233", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["FHSA does not preempt plaintiffs\u2019 claims (see, Wright v Dow Chem., supra; Casper v Du Pont de Nemours & Co., supra). Although such claims are based upon requirements imposed by State law, thus satisfying the first prong of the preemption analysis, not all of plaintiffs\u2019 claims relate to labeling and, thus, they do not satisfy the second prong. Under UCC 2-314 (2) (e) and (f), \"[g]oods to be merchantable must be at least such as * * * are adequately contained, packaged, and labeled as the agreement may require; and * * * conform to the promises or affirmations of fact made on the container or label if any\u201d. Plaintiffs\u2019 claims that relate to the \"promises or affirmations of fact made on the container or label\u201d (i.e., adequate warning claims) are preempted. However, plaintiffs\u2019 amended and proposed second amended complaints are not confined only to such claims."], "id": "8b23443c-8c12-452e-b1a3-b9407cbccc83", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["He contends that the boat engine, because of its defective design and assembly, from the time of purchase, would not operate at full power and flooded regularly. That the double warranties of section 2-314 (subd [2], par [c]) (; merchantability; usage of trade) and section 2-315 (implied warranty; fitness for particular purpose) of the Uniform Commercial Code apply without limitation based upon the provisions of section 2-316 of the Uniform Commercial Code (exclusion or modification of warranties)."], "id": "a0ec6de1-acd5-45bb-8544-fb08e79f9211", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In Adamson v. Jarvis, (12 Moore, 253,) Best, Ch. J., after examining the cases, says: \u201c These cases rest on the principle that if a man, having the possession of property which gives him the character of owner, affirms that he is owner and thereby induces another to buy, when in point of fact the affirmant is not the owner, he is liable to an action.\u201d So far as the courts in this country have examined this question, the authorities sustain the distinction laid down by Chancellor Kent. In Gookin v. Graham, (5 Hump. Rep. 480,) the supreme court of Tennessee said : \u201c In a sale of personal property there is always an of title, unless it be purchased under such circumstances as clearly show that the vendee intended to risk the title; as if the vendor be not in possession, but the same be held adversely by another.\u201d See also Andres v. Lee, (1 Dev. & Bat. 318.) So in Trigg v. Ferris, (5 Humph. 343,) Reeve, J., in giving the opinion of the court, said, \u201c It is a well settled principle, applicable to all sales of chattels in the possession of the vendor, that the act or fact of sale itself, by operation of law, implies and involves a warranty of title.\u201d"], "id": "52416aac-75af-4085-a3e1-4dae5914d540", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In its cause of action against the shipper, the plaintiff alleges that the shipper warranted that the reactor would be properly packaged for shipment and the shipper breached that warranty. The shipper denies that there was any warranty either express or implied. In his brief, counsel for the shipper states, \u201c The contract of sale in this case called for the manufacture by Sybron of a certain glass lined reactor with an agitator for the use of Standard Brands. The contract did not provide for the sale of any bracing, either internal or external, to the plaintiff.\u201d Counsel further argues that an of bracing for shipment is not encompassed within the implied warranty provisions of the Uniform Commercial Code (-\u00a7\u00a7 2-314, 2-315) and that this is so because the preparation of bracing and loading constitutes a service and not a sale of goods as contemplated by the Uniform Commercial Code."], "id": "0bd38582-2488-411d-a5d9-2238b045528a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u201cspecifically rejected the contention that the warranty was intended to make the landlord a guarantor of every amenity- customarily rendered in the landlord-tenant relationship and held that the protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person . . . deprive the tenant of those essential functions which a residence is expected to provide\u201d (Solow v Wellner, 86 NY2d 582, 588 [1995] [internal quotation marks and citations omitted]). Cohoes Housing outlined a list of code violations (exhibit B). The existence of a code violation does not automatically translate into a breach of the warranty of habitability; rather, \u201conce a code violation has been shown, the [tenant] must come forward with evidence concerning the extensiveness of the breach, the manner on which it impacted upon the health, safety or welfare of the tenants\u201d (211 E 46th Owners LLC v Mohabir, 33 Misc 3d 1232[A], 2011 NY Slip Op 52195[U], *7 [Civ Ct, NY County 2011] [internal quotation marks and citations omitted])."], "id": "0750e74c-ba3d-40bb-bf3b-c99a8a026130", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The court finds the condition of bedbugs in the building generally was known to petitioner early in June 2003 and with respect to the premises particularly in late June 2003 when respondent informed petitioner. An abatement based upon the of habitability pursuant to Real Property Law \u00a7 235-b protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide. (Solow v *519Wellner, 86 NY2d 582 [1995], quoting Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979].) Respondent showed through his graphic testimony that the bedbug infestation impacted or affected his health, safety and welfare and use of the premises. There can be no doubt that the presence of the bedbugs in the premises satisfies the above criteria for an abatement under these set of facts."], "id": "e83fc2a5-0e59-4ce8-a3af-3e63a450d11a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The sixth cause of action is for breach of contract in the nature of breach of warranty that the house was habitable. There is no of habitability in the sale of a previously owned home. (Real Property Law \u00a7 251; Carter v Cain, 112 AD2d 2 [4th Dept 1985]; Young v Keith, 112 AD2d 625, supra; see, Caceci v Di Canio Constr., 72 NY2d 52, 57 *517[1988] [common-law housing merchant warranty implied in sale of new homes] [now statutory, General Business Law \u00a7 777-a]; 7 Powell, Real Property, lffl 938.2, 938.6 [2]; 91 NY Jur 2d, Real Property Sales and Exchanges, \u00a7\u00a745, 46; 2 Harvey, Law of Real Property and Title Closing, \u00a7 471; Annotation, Defective Home \u2014 Vendor\u2019s Liability, 25 ALR3d 383; 7 Williston, Contracts \u00a7 926; id., vol 11, \u00a7 1399A [3d ed 1961].)"], "id": "e39f4dc6-0534-49e7-841e-1eed10c564f3", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["*162The leading case in the area is Park West Mgt. Corp. v Mitchell (47 NY2d 316, cert den 444 US 992). In that case, the New York Court of Appeals held that a landlord, while not an insurer of the premises, impliedly warrants that (1) the premises will be fit for human habitation, (2) the condition of the premises is in accord with the uses reasonably intended by the parties, and (3) the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety. The court expressed the paramount purpose of the of habitability as a means by which a tenant will be placed in a more equitable bargaining position vis-a-vis the landlord."], "id": "5c57a390-97a2-492b-9660-3e9627839cd5", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["This court therefore assumes that the Statute of Limitations for the implied housing merchant warranty is more than four years and it is this court\u2019s profound belief the warranty is for a period equal to what a reasonable expectation would be that a house constructed in a workmanlike manner would be free of material defects. This court therefore finds that the Statute of Limitations for a defective roof is over six years as one could reasonably expect that a well-made roof should last over six years. The court is aware of Laws of 1988 (ch 709) (Senate bill 5395-A) which amends the General Business Law and the CPLR to create an for the sale of a new home and to establish a six-year Statute of Limitations for *999breach of such warranty, however, that law does not become effective until March 1, 1989 and is not applicable to contracts of sale for new homes entered into before the effective date."], "id": "4fb16036-267c-4b0d-94d9-0c18247237af", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The author cites Mones v. Imperial Bottling Works, Inc. (14 N. J. Misc. 369; 185 A. 483) where a drug was sold which did not satisfy the standards of that State, and Haynor Mfg. Co. v. Davis (147 N. C. 267; 61 S. E. 54), holding that the of merchantability was broken when there was a sale of intoxicants which could not be resold without violating a law."], "id": "60d28b81-7c8d-4a40-9d4f-a764b01540f4", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In Rodrigues v. Habersham, (1 Spear's S. C. Rep. 314,) it was held \u201c If a seller expressly refuse to warrant, there can be no pretence for raising the ; but what amounts to a refusal to warrant must in general be submitted to a jury.\u201d In Smith v. The Bank of the State of South Carolina, (Riley's Ch. Rep. 113,) where the seller struck the clause of warranty out of a deed, it was decided in the court of equity that there was no implied warranty. The language of Gaston, J., in Andrews v. Lee, (1 Dev. & Bat. Eq. Cas. 321,) seems to me peculiarly applicable to this case. \u201c The price shows that the purchase was a speculation; and the giving of a note for the purchase money, without delivery of the property, or covenants from the vendors as to title, leaves scarcely room to doubt but that he bought at his own hazard.\u201d"], "id": "894880d7-d5db-46fd-8971-347644f27838", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["On May 21, 2014, plaintiff commenced this action against Pack Line and Nuspark. Plaintiff alleges, among other things, that \u201c[b]etween in or around December 2009 and August 2010, *213the Auto Tubber was delivered, set up, installed and tested in [plaintiff\u2019s] facility.\u201d (Verified complaint \u00b6 18.) Plaintiff also alleges that \u201c[u]pon completion of installation, Pack Line tested the Auto Tubber, and it was immediately apparent that the machine was completely defective and unsatisfactorily manufactured.\u201d (Verified complaint \u00b6 19.) Plaintiff further alleges that \u201c[immediately upon delivery, [plaintiff] made numerous complaints about the defective Auto Tubber to Pack Line and Nuspark.\u201d (Verified complaint \u00b6 27.) Plaintiff asserts causes of action for breach of contract, breach of the implied covenant of good faith, breach of express warranty, breach of the of merchantability, breach of the implied warranty of fitness, and unjust enrichment."], "id": "8592dfc3-1261-44e7-af50-684ab3796c8f", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Similarly, an appellate court in California has applied strict liability to a landlord when a tenant in a furnished apartment injured her back when she fell through a couch with defective supporting straps. Two of four straps were missing and the remaining straps were loose. The landlord had purchased the couch one year before the accident, but the plaintiff was the first tenant to use it. The court applied the doctrine of strict liability to the landlord as a lessor of personal property, not as a lessor of real property. (Fakhoury v Magner, 25 Cal App 3d 58.) In so holding the court extended the line of cases illustrated by Cintrone (45 NJ 434, supra), concerning a lessor of personal property to a landlord of a furnished apartment. An has been attributed to a sale of realty to the effect that the house will be erected in a reasonably workmanlike manner and will be reasonably fit for human habitation. (Schipper v Levitt & Sons, 44 NJ 70.) There the court concluded that the failure to install a mixing valve caused the scalding of an infant plaintiff."], "id": "fc37983a-18d2-48e5-8033-30cc8ab74ad4", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The law in every contract of marine insurance (without special provision to the contrary) raises an , as well by the owner of the vessel, as of the cargo, of its seaworthiness at the commencement of the voyage; but this mere implication, predicated upon the requirements of good faith and honest dealings, may be obviated and destroyed by direct proof, of a full disclosure of such facts of unseaworthiness, as preclude the supposition of any such understanding between the parties,\u00b0or where the insurance is of a vessel at sea, where it is well understood the assured could not know her condition. The contract in this case was general against Tjarratry of the master and mariners, and all other losses or misfortunes that should occasion damage to the goods on the voyage. The goods were lost by the sinking of the vessel at sea, and it would seem to be a most hypercritical and technical rule of construction that would exempt the insurers from any loss (not expressly excepted) occurring on the voyage, without fault of the assured, aft\u00e9r the risk had attached (Cullen v. Butler, 5 M. & S. 461). If the vessel, crew, and equipments were sufficient at the commencement of the voyage, the assured fully complied with all her obligations, and she made no warranty that the vessel should continue seaworthy, or as to the future conduct of the managers of the vessel (1 Arn. on Ins. \u00a7 244, 5; 1 Phil, on Ins. \u00a7 733). In the case of an insurance by the owner of the vessel, a qualification may exist in the operation of any such general rule as to accidents happening during the voyage, arising from his own obligation to keep the vessel in suitable\" condition for the service in which it is engaged; for if, from bad faith or want of ordinary prudence and diligence, he fails to do so, and loss happens from that cause, he, and not the *252underwriter, must bear the consequences (Paddock v. Franklin Ins. Co. 11 Pick. 227; Starbuck v. N. E. Mar. Ins. Co. 19 Id. 198 ; Copeland v. Same, 2 Met. 432; Am. Ins. Co. v. Ogden, 20 Wend. 287)."], "id": "44e737f7-76e3-4fc2-be55-336692afe805", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Upon every sale of a note there is an on the part of the vendor that it is a legal note; that the parties whose names appear thereon as makers or endorsers are legally holden as such, and that the note has not already been paid. In other words, there is an implied warranty of the seller\u2019s title to the note, unless he gives the purchaser the requisite information to put him on his guard; but if the vendee has such information, he purchases at his peril, and at his own risk. In this case, if the broker had sold the note as his own, without informing Hendricks that the money was really advanced for the benefit of the endorser, the endorsement having been made for an usurious purpose, and not on a legal transfer of the note to the broker, the latter would have been liable to refund the money, either on account of the implied warranty, or of the fraud, if the purchaser could not legally recover of the parties whose names appeared on the paper; and probably the endorser, who had thus improperly obtained the money from the innocent vendee by means of his agent, would also have been liable as for so much money had and received to the use of the purchaser. By the application of these plain and obvious principles of law and natural justice, the laws of the state will be enforced, and innocent purchasers of negotiable paper will be protected against the frauds which are so frequently practiced upon them."], "id": "3bf21aa6-25d2-4228-9c0c-1f67bbe05264", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Further, plaintiffs negligent testing claim (in the first cause of action), to the extent it is based upon a failure to warn theory, is preempted because such a claim would \"require a showing that [the defendants manufacturers\u2019] [packaging and labeling] should have included additional, or more clearly stated, warnings\u201d (Cipollone v Liggett Group, 505 US, at 524, supra; Warner v American Flouride Co., supra, at 3, 12-13 [dismissing negligence, strict tort liability, and breach of *452 claims premised upon inadequate labels]). To the extent plaintiff does not rely on defendants\u2019 labels or packaging to allege negligent testing, such claims are not preempted (Cipollone v Liggett Group, 505 US, at 524, supra; Taylor AG Indus, v Pure-Gro, supra, 54d, at 561-562)."], "id": "bcf7ec02-6187-4a24-9dc4-71f4cfaf016f", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The second cause of action incorporates the agreement and alleges an that Wayne \u201c would perform the work provided in said contract in a good and workmanlike manner and would use ordinary care and suitable materials that the premises were constructed in a careless, negligent and unworkmanlike manner, and with improper materials, in that, among other things, many defects subsequently appeared, including a leaking basement, a sinking rear yard, and sinking exterior asphalt work. The third cause of action relates solely to a bulkhead alleged to have been constructed by Wayne Land Company, Inc., some of whose officers and agents were also officers and agents of the defendant Wayne, and alleges that there were latent defects in the bulkhead and that it was not constructed in conformity with law. It is to those last two causes of action that this motion is directed."], "id": "32b51bef-c42c-487b-ab32-8bcf651c7ce4", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Because the defendant was not \u201ca merchant with respect to goods of that kind\u201d as contemplated in section 2-314 of the Uniform Commercial Code, this court cannot construe *232an of merchantability (see, also, Uniform Commercial Code, \u00a7 2-104). And although the fitness warranty of section 2-315 of the Uniform Commercial Code does not require that the seller be a merchant, this court concludes that that warranty is inapplicable to the case at bar in that there was little or no evidence that plaintiff buyer was \u201crelying on the seller\u2019s skill or judgment to select or furnish suitable goods\u201d (Uniform Commercial Code, \u00a7 2-315)."], "id": "f7409c9b-ef04-46f5-be4e-16f213922c59", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["An that an article is fit for human consumption when the article is prepared for sale as food follows the article. Why there should be one rule when the action rests in negfigence, and another rule when the action is for breach of warranty, excepting what I have already referred to, is not apparent to me. If in the end the manufacturer or producer is liable for any defect or unwholesomeness in the article that he manufactures and which he holds out to the pubHc as being fit for the purposes manufactured for, there seems to be no reason why intermediate action should be required. This, however, does not arise in this case; the action rests in negfigence. Following the opinion in MacPherson v. Buick Motor Co., which decision has not been overruled by the Court of Appeals, in the later case of Chysky v. Drake Bros. Co. (supra), but reaffirmed by the said Chysky case, the question of privity of contract, in a case resting in breach of warranty, need not- be passed upon by me."], "id": "b9bcd132-f83e-44e0-a9c4-b22f1840d449", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u2018We may not rewrite the section to conform to that unexpressed, supposed intent.\u2019 [Citation.]\u201d (Id. at p. 194, fns. omitted.) Duff asserts the instant action is analogous to Martinez because, like the trial court there, the trial court in the instant action added a requirement to Song-Beverly. Specifically, Duff argues the trial court\u2019s determination that he is not entitled to damages under section 1794, subdivision (b)(1) would add the requirement to the statute that all lessees of any vehicle must return the vehicle at the end of the lease term or waive damages under that subdivision. We do not see such a sweeping general principle arising out of the judgment in the instant action. The trial court here did not add any additional requirement to Song-Beverly. It simply made a necessary factual finding as required under section 1794 to determine what damages were available to Duff for breach of the . In other words, contrary to adding a requirement to Song-Beverly, the trial court merely followed the Act. Similarly, we are not persuaded by Duff\u2019s argument that the trial court\u2019s finding that he was not entitled to damages under section 1794, subdivision (b)(1) violated Song-Beverly because it resulted in the unequal treatment of purchasers and lessees. Under Song-Beverly, a lessee has the same rights as a purchaser of goods. (See \u00a7 1795.4, subd. (b).) Here, Duff argues that a purchaser who still owned a vehicle at the time of trial would not be deprived of damages under subdivision (b)(1) of section 1794, but he, as a lessee, was so denied simply because he purchased the vehicle after the lease expired and owned it at the time of trial. Not so. Whether a plaintiff is a purchaser or a lessee of a vehicle, to recover what he or she paid for the vehicle, the plaintiff must prove he or she \u201crightfully rejected or justifiably revoked acceptance of the goods or ha[d] exercised any right to cancel the sale.\u201d (\u00a7 1794, subd. (b)(1).) Thus, Duff had to show that he rejected or"], "id": "9e49ef2a-871e-4a2e-9bf3-91c1d55c8d94", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["12 Respondent argues that appellant \u201ccannot raise a negligence per se argument as to statutes identified for the first time in her opposition to [the] motion for summary judgment. Appellant cannot keep moving the goal post. The tactic of changing one\u2019s story to avoid summary judgment . . . is improper.\u201d We note that she objected to appellant\u2019s new claims based on the of habitability, nuisance, and unfair business practices, but there was no similar objection to claims based on the Building Code, the Civil Code or the State Housing Act of California. As to those last three statutory based claims, Cassell briefed them in her reply papers. Though these issues are moot, it bears noting that respondent cannot be heard to complain that appellant raised new theories in her opposition to the summary judgment motion because the reply brief addressed appellant\u2019s new theories on the merits without raising an objection. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302 [by briefing the merits and not objecting, defendant waived objection to plaintiff asserting a new cause of action in opposition to summary judgment].)"], "id": "db96fb9c-5418-4354-b7f5-7504bea2754a", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Indeed, contrary to Sierra Palms's reading of Windham , that case suggests section 5980 should be read expansively. Confronted with the contention the legislative authorization to bring a claim for property damage to a common area did not include a cause of action premised on a breach of warranty, the Windham court rejected the argument as too narrow a construction of the statutory language and contrary to the statutory purpose. By giving the homeowners association standing to sue for property damage to common areas as the real party in interest, the court explained, the Legislature necessarily intended that the association stand in the shoes of the property owner and be able to bring a claim for damage to the common area, regardless of theory. (See Windham, supra , 109 Cal.App.4th at p. 1174, 135 Cal.Rptr.2d 834 [the Legislature intended \"to allow associations to sue as real parties in interest for damage to common areas whether for breach of or on any other theory of liability\"].)"], "id": "1e1e2b9d-f89e-4d22-8cd9-2f437180a3ef", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The court believes that these general principles of law *865have broad application, and are relevant to the present case. We find that no of perfection results from the rendition of services by the State. Therefore, no claim based on strict liability can lie.2 We leave open the possibility that liability for an inadequate design may be established on a negligence theory. To establish negligence on the part of the State, it will be necessary to meet the more stringent test of Weiss v Fote (7 NY2d 579, supra) set forth above."], "id": "09bdb51a-a0f4-4fc5-b720-55033cde08a9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["*406On the other hand, there are \u201cdefenses\u201d to a claim for breach of , and defendant has the burden of establishing a defense. \u201cDefenses available to claims of breach of the implied warranty of merchantability include the buyer\u2019s contributory conduct * * * [T]he focus is on factors that may sufficiently attenuate the causal connection between the defendant\u2019s acts and the plaintiffs injury to bar recovery.\u201d (Bellevue S. Assoc. v HRH Constr. Corp., 78 NY2d 282, 298 [1991] [internal quotation marks omitted], quoting 1 White and Summers, Uniform Commercial Code \u00a7 11-8, at 541 [Practitioner\u2019s 3d ed].) Among the available \u201cdefenses\u201d is \u201cmisuse\u201d of the product. (Carbone v Alagna, 239 AD2d 454, 456 [2d Dept 1997].) However, \u201cculpability on the part of a [claimant] in mishandling the product * * * will not bar recovery unless that conduct is found to be the sole cause of the [claimant\u2019s] injury.\u201d (Schafer v Standard Ry. Fusee Corp., 200 AD2d 564, 565 [2d Dept 1994].)"], "id": "50633b71-dd8a-4ead-b632-9b0274e4b84e", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs \u2019 purchases by competitive bids at a public auction were made in 1962 and 1964.. At that time neither the statutory nor decisional law, applicable to such purchases, recognized the expressed opinion or judgment of the seller as giving rise to any of authenticity of authorship. (See Memorandum of the -State Dept, of Law [McKinney\u2019s 1968 Session Laws, vol. 2, pp. 2284 \u2014 2285] recommending remedial legislation [now General Business Law, \u00a7'\u00a7 219, 219-a] to change the then existing law.)"], "id": "b24c8df7-1001-4906-a454-15bddf63fca8", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["We now examine the jurisdiction issue in the instant case. As set forth ante, plaintiffs brought causes of action for (1) negligence; (2) nuisance; (3) trespass; (4) strict liability/products liability; (5) strict liability/ of fitness; (6) strict liability/ultra hazardous activity; and (7) intentional infliction of emotional distress. Plaintiffs are complaining of stray voltage entering their property from the Indian Wells substation. Plaintiffs allege they have suffered health issues due to the stray voltage from the substation."], "id": "7089223e-b42a-471a-a917-9f68a61974d6", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u201cNot at all analogous to the case before us is our *561decision . . . holding that, \u2018where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order, the transaction is a purchase of goods.\u2019 . . . While it has been said that a restaurant owner does not sell food, but rather renders a service, the fact is that there is \u2018a sale of what is actually used\u2019 . . . [T]here can be no doubt that, when one goes into a restaurant, he does so in order to buy what the restaurant in truth has to sell, namely, food.\u201d (Perlmutter v Beth David Hosp., 308 NY at 107, quoting Temple v Keeler, 238 NY at 346, 347.) The issue in Temple v Keeler was also the applicability of an of fitness. In reaching the conclusion that there was \u201ca sale of what [was] actually used\u201d (id. at 347), the Court noted a prior \u201cauthoritative decision,\u201d construing a criminal statute, which \u201cheld that a hotel keeper who places before his guests at dinner, partridges, sells the birds, although the guests paid a total sum for [food] and lodging.\u201d (Id.)"], "id": "f8e6c829-6900-4742-b740-01025c5ed3b0", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["*380This court believes that the circumstances surrounding the purchase of the \u201coutboard\u201d for \u201cPleasure Use\u201d and its registration for such purpose by defendant gives rise to both an of merchantability and an implied warranty of fitness for a particular purpose. (Pleasure Use.) These double warranties exist and recovery may be based on either or both warranties. (See Uniform Commercial Code: Implied Warranty of Fitness For Particular Purpose as Including Fitness For Ordinary Use, Ann., 83 ALR3d 656; What Constitutes \u201cParticular Purpose\u201d Within Meaning of UCC \u00a7 2-315 Dealing with Implied Warranty of Fitness, Ann., 83 ALR3d 669.) The plaintiff having established to the court\u2019s satisfaction the existence of both warranties, the defendant has a shifted burden to establish an exclusion or modification of these implied warranties under section 2-316 of the Uniform Commercial Code, by way of defense or disclaimer."], "id": "ab27b4ca-d69b-41d4-8194-b99e07bce400", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["\u201c [T]he oral and written notices in 1966, the attempt to have a non-waiver agreement signed, the explanation by Hearing\u2019s own attorney of the effect of Hartford\u2019s action, Hartford\u2019s letter of March 6, 1968, and Hartford\u2019s offer to settle the actions and reserve the rights of both parties on the coverage question, were 1 fair notice \u2019 to the insured of the company\u2019s position. \u201c [Plaintiff] argues in its memorandum that Hartford waived its rights by proceeding to defend the negligence actions without insisting that the non-waiver agreement be signed. Not only is this answered by the Court of Appeals in the Goldberg case [Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N. Y. 148], but in our case it is obvious that to resubmit the non-waiver agreement would have been an idle gesture. Mr. Night had said in his letter of March 16, 1966, to Kearing, (plaintiff\u2019s Exhibit 27 attached to the answering affidavit), that he would recommend signing of the non-waiver agreement provided \u2018 Hartford will make an investigation or defend Hearing if the agreement is signed \u2019. This was precisely what Hartford had agreed to do ten days earlier in its letter of transmittal (Exhibit G-l). Later, Night admitted at pages 49-55 that he would not let or permit his client to sign the non-waiver agreement. \u201c In that testimony, the Court will note a confirmation of what we have said concerning products coverage under the garage liability endorsement. At page 50, Mr. Night said: \u201c \u2018 Now, of course, there was other coverage I felt applicable to this loss and that I had called to the Hartford\u2019s attention. \u201c1Q.. What other coverage did you claim applied to this loss ? \u201c1 A. In my letter to Hartford of March 17,1966,1 pointed out to him that the garage comprehensive endorsement in my opinion covered this loss.\u2019 \u201cHartford\u2019s position was stated by Mr. Pugh in a conversation of May 31, 1966, in which Mr. Pugh apparently told Mr. Night: \u201c1 That Hartford Accident covered this loss and would defend Hearing because they were convinced that there was coverage under the claim that there was a breach of the , and that this was coverage under the garage comprehensive aspect of the policy even though there was a question with regard to the negligence in the manufacture of the tread of the tire, but as to that, Hartford was convinced that this was no longer an issue in the ease.\u2019 *358\u201c So we see that even at that early date, both Kearing\u2019s lawyer and Hartford\u2019s representatives, were of the same opinion and that is that if this tire were sold as part of the garage operations, there was coverage for Hearing and Hartford was obliged to defend. That obligation continued up to and through the trial until it was determined at the trial that the tire was not sold as part of the garage operations and, therefore, and at that time, it was determined that Hartford had no obligation to indemnify Hearing.\u201d On the other hand, plaintiff\u2019s counsel urge in a memorandum:"], "id": "8c66ca90-d356-423d-a784-be2a9bfeccf1", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In the instant case, respondent knew he was living directly above commercial space facing a busy City thoroughfare, Third Avenue at approximately 69th Street. The installation and use of Lechters\u2019 illuminated awning is something that could be reasonably expected by the parties, given the location of the apartment. Furthermore, it is reasonable to expect that if any light cast into the Leland apartment from the awning was disturbing, respondent would close his curtains. \"If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the of habitability has occurred\u201d (Park W. Mgt. Corp. v Mitchell, supra., 47 NY2d, at 328). In this case, respondent has failed to demonstrate that a reasonable person would find the Lechters\u2019 awning to be so intrusive as to render the bedroom unusable or unsafe (New York Univ. v Schurtman, NYLJ, Dec. 15, 1992, at 21, col 1 [App Term, 1st Dept]). Even giving credence to respondent\u2019s claim that the illuminated awning remained on past 10:30 from June 1990 to November 1990, respondent\u2019s position was not demonstrated by the credible evidence."], "id": "1b026a1d-74a0-4151-8574-5942f5439945", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Other cases have addressed the issue of the cumulative effects of a number of what may be termed \u201cminor\u201d lapses. In one case, the court held that the landlord\u2019s action in firing both a full-time superintendent and a full-time handyman, which led to a failure to provide, at various times, heat, hot water, elevator service, security (by failing to repair a broken front door lock), and garbage collection and disposal, amounted to a breach of the of habitability. (111 East 88th Partners v Simon, 106 Misc 2d 693; see, also, Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.)"], "id": "a3688482-a52f-408d-926b-1f3b6a122fed", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["What is. reasonable care depends upon the circumstances of each particular case. When docks are thrown open for the use of the public a general license is conferred upon anybody to use them for all lawful purposes, and where this is done for the purposes of gain there' is an that the premises are reasonably safe for the purposes for which they were designed."], "id": "ddf217c9-43cb-46ec-9384-d4246bccc368", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Under the Uniform Commercial Code, \u201c[d]ogs have been held to constitute \u2018goods\u2019 within the meaning of section 2-105 . . . and defendant, a private breeder, is a \u2018merchant\u2019 within the meaning of UCC 2-104 (1)\u201d {Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 9th & 10th Jud Dists 2007] [citations omitted]). A dog purchaser may recover damages pursuant to UCC 2-714 on the theory that the defendant breached the of merchantability (see UCC 2-314; Saxton v Pets Warehouse, 180 Misc 2d at 378; Sacco v Tate, 175 Misc 2d at 902). On the other hand, a third party, such as plaintiff, must demonstrate either privity with the defendant or personal injuries arising from the alleged defect to recover such damages {Adirondack Combustion Tech., Inc. v Unicontrol, Inc., 17 AD3d 825, 827 [2005]; see UCC 2-318; Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25, 26 [1986]). Since plaintiff failed to establish either of these requirements, she cannot recover damages pursuant to UCC 2-714 on the theory that defendant breached the implied warranty of merchantability when he sold the dog to the nonparty purchaser. As the court\u2019s findings and conclusions are supported by the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Accordingly, the judgment is affirmed."], "id": "cfcb0de2-8410-428a-aada-40774f970967", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["A similar result was arrived at in the State of Illinois in the case of Blarjeshe v. Thompson\u2019s Restaurant Co. (325 Ill. App. 189). There a sandwich was purchased at the request of one of the plaintiffs by a third person from the defendant\u2019s restaurant. It was delivered to the plaintiff who requested it. The latter gave half of the sandwich to the coplaintiff. Both became ill, allegedly as a result of a fungus growth covering the contents. The defendant contended that the plaintiffs could not claim advantage of an since they were not the purchasers and that even if the purchaser is considered the agent of the plaintiff for whom the sandwich had been purchased, she could not he the agent of the coplaintiff, who was a donee of a portion of the sandwich. There the court held that the implied warranty of the fitness of food for human consumption extends beyond the immediate purchaser and extended to both plaintiffs."], "id": "fb221abc-3049-444f-8bcb-f45e6c3a9258", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff seeks to add a cause of action for damages based upon the breach by the landlord of an of habitability. Such a cause of action seems to be based upon a theory of strict liability upon the part of the landlord similar to the breach of the implied warranty of merchantability in the products liability cases. In this situation the plaintiffs seek to make the landlord liable without proof of notice to him of any defect."], "id": "035f1b1f-df64-4842-b281-83b53946d3c9", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Three years after we decided La Sara Grain , we held in Melody Home that \"an to repair or modify existing tangible goods or property in a good and workmanlike manner is available to consumers suing under the DTPA.\"26 Citing La Sara Grain , we stated that \"[a]n *723implied warranty arises by operation of law when public policy so mandates\".27 Our holding cannot reasonably be read to directly contradict authority on which we expressly relied. The court of appeals in Foreman summarily concluded that a breach of the Melody Home implied warranty is actionable only under the DTPA, pointing to another statement in that opinion that consumers of services do \"not have the protection of a statutory or common law implied warranty scheme.\"28 But that statement described the state of the law before Melody Home ; it says nothing about whether the implied warranty we recognized is actionable apart from the DTPA."], "id": "814cce81-09f3-4e84-a58d-feeb542d9795", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["*695As part of that contract, subdivision 1 of section 235-b of the Real Property Law requires the court to read into every residential lease contract a clause guaranteeing that the premises will be free of conditions dangerous to the health and safety of the tenant and that they will be fit for the uses reasonably intended. On the basis of the facts as presented here, the court finds that the of habitability has been breached."], "id": "59bc526e-bd6f-4ec1-8197-ecf7cf82a62b", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The majority\u2019s reliance on Park W. Mgt. Corp. v Mitchell (47 NY2d 316) does not support a cause of action for reimbursement of rent in an illegal landlord-tenant relationship. The Court of Appeals in Park W. (supra), merely recognized the right of a former tenant to recover money for a percentage reduction of the contract for rent in a legal landlord-tenant relationship based on Real Property Law \u00a7 235-b. In so doing, it recognized that a lease is more akin to the purchase of shelter, rather than a conveyance of land, and that, therefore, the law of sales with its of fitness (UCC 2-314) \"provides a ready analogy\u201d (supra, at 324) that is better suited than the outdated law of property to determine the respective obligations of landlord and tenant. Following this logic, there is no implied warranty of fitness recognized in the UCC for a \"hot\u201d product; or an illegal sale; nor should there be, by \"ready analogy\u201d a cause of action based on an implied *16warranty of habitability for an illegal apartment. Plainly, there is simply no basis in law to recognize a cause of action for rent paid in an unlawful landlord-tenant relationship."], "id": "8f20cb31-c8cb-4b66-af70-7819967d19c7", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Paekeb., J. The controlling question, presented in this case, is whether there was an of title on the sale of the note, from McCoy & Quackenboss to Artcher. Mc'Coy . Thus, in Bremner v. Williams, 1 Carr & P. 414, which was an action against a stage coach proprietor, for an injury to a passenger, in consequence of the insufficient state of defendant\u2019s coach, the court say, every stage coach proprietor warrants the passengers that the coach is equal to the journey. And Sharp v. Grey, 9 Bing. 457, was a like case, and the court held the stage proprietor liable, although the defect in the coach was out of sight, and net discoverable upon ordinary examination. But even these cases do not hold such warranty to be absolute. They rest more properly upon the principle, that carriers of persons are bound to a very high degree of caution, where the lives and limbs of human beings are under their control\u2014and should provide, as far as human care and foresight can go, for their safe conveyance. See Angell on Carriers, \u00a7 534, and onward. Ingalls v. Bills, 9 Met. p. 1."], "id": "83835846-14ee-4fbe-8132-e7ce4b416d2b", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs also assert claims based upon the defective design of the container, and the manufacture of a fuel with a dangerously low flash point. Such defective design claims are independent of the product\u2019s labeling and, thus, are not preempted (see, Higgins v Monsanto Co., supra; Bingham v Terminix Intl. Co., 850 F Supp 516). It should also be noted that, since the elimination of privity to support an action for breach of (UCC 2-318), there is little, if any, difference at present between an action for strict products liability and one for breach of implied warranty (see, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407). Therefore, to the extent that plaintiffs\u2019 implied warranty claims relate to the inadequate design of the container and the dangerously low flash point of the camp stove fuel, rather than to inadequate labeling or warnings, those claims survive. In arriving at this determination, we also take heed of the rule of interpretation that *139preemption clauses in a statute are to be narrowly construed and that matters beyond their scope are not preempted (Cipollone v Liggett Group, 505 US, supra, at 524)."], "id": "a3adb419-70b6-4d99-8c7b-f40a21b6f2a6", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["misstep from turning into a fall. In addition, a handrail placed along the subject stairway would have served a dual purpose in that it not only would have aided people going up and down the stairs but also acted as a guide due to the fact that the subject area light was inadequate at the time\u201d of the fall. Regarding causation, Avrit opined, \u201cHad a handrail been in place on . . . , [appellant\u2019s] incident most likely would not have occurred,\u201d and that \u201cthe unsafe condition of [the] subject stairway was a direct cause of [appellant\u2019s] incident.\u201d In addition to relying on Avrit, appellant adverted to select statements in the deposition of Rollins. Rollins testified: \u201cMy experience indicates that [the] assembly, including the platform to the toilet, was probably not permitted.\u201d Appellant pointed to evidence that Cassell installed a handrail for the stairs following appellant\u2019s incident. In her opposition papers, appellant did not dispute Separate Statement No. 20. She did, however, dispute Separate Statement No. 21. Reply Papers In her reply, Cassell argued that appellant\u2019s opposition \u201cimproperly focus[ed] on matters absent from her operative pleading\u201d because she did not allege \u201cclaims regarding of habitability, nuisance, and unfair business practices. She discusse[d] such claims in her Opposition for the first time.\u201d Cassell argued that it would be unfair for the trial court to consider these arguments. She claimed that appellant\u2019s opposition improperly relied on authority involving tenants because they do not apply to nontenants. In other words, Cassell suggested that even if she owed a duty of care to Mazza, she did not owe one to appellant. Also, Cassell argued that appellant"], "id": "91276fbf-633a-4644-a673-31c4a4230c95", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["A manufacturer is under a duty adequately to prepare, inspect and package its food product, and failure to take these precautions constitutes or may constitute negligence. (Bissonette v National Biscuit Co., 100d 1003, 1004 [2d Cir 1939].) However, as in the case of breach of , an *391injured consumer seeking redress upon a theory of negligence must show that the failure in the preparation, inspection or packaging of the food product occurred before the product left the possession or control of the manufacturer (Polvere v Chunky Chocolate Corp., supra; Halem v Wagner Baking Corp., 16 Misc 2d 840 [City Ct, Kings County 1959]), and that consumption of the product was a proximate cause of the injury for which recovery is sought (Ober v Associated Coca-Cola Bottling Co., 118 AD2d 1016 [3d Dept 1986]; Pompilio v McGeory, 283 App Div 826 [2d Dept 1954]; Miller v National Bread Co., supra, at 89.)"], "id": "48e601c5-3f1d-4f24-a942-539822c6a987", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Were this the sole basis of recovery the petitioner would be out of court. However under subdivision 2 of section 96 of the Personal Property Law (see, now, Uniform Commercial Code, \u00a7 2-314) there survives the that the goods be of merchantable quality, a fact belied herein, of course, by the governmental seizure as violative of the Pure Food and Drug Act."], "id": "81701238-a549-4b6a-8acc-a0d45bf2ca4d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Garcia assails two of the above stated reasons for concluding that a buyer cannot, under the Act, sue the manufacturer for a refund of goods and services purchased from the dealer. First, she argues that the Act does not *1269require privity. To be sure, there is language in a few cases stating that \"under the Act, the buyer can sue 'the manufacturer' for breach of the of merchantability despite a lack of privity.\" ( Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1333, fn. 11, 170 Cal.Rptr.3d 861 ; Gusse v. Damon Corp. (C.D.Cal. 2007) 470 F.Supp.2d 1110, 1116, fn. 9 ( Gusse ).) But this language stands for the unremarkable and statutorily compelled conclusion that a buyer may always sue the manufacturer for breach of the implied warranty under the Act irrespective of the buyer's privity with the manufacturer. ( Mega RV , at p. 1333, 170 Cal.Rptr.3d 861 [buyer may sue manufacturer for defects in component parts integrated into a vehicle]; Gusse , at p. 1116 [buyer may sue manufacturer for car obtained from dealer]; see generally Mega RV , at p. 1333, 170 Cal.Rptr.3d 861 [\"The Act protects purchasers of consumer goods by requiring specified implied warranties [and] placing strict limitations on how and when a manufacturer may disclaim those implied warranties\"].) This language does not stand for the much broader proposition that privity does not matter at all under the Act. To the contrary, and as explained above, the Act expressly treats manufacturers and retail sellers as distinct entities and consequently does not allow a buyer to sue a manufacturer for the retail seller's breach of an implied warranty."], "id": "5d325109-92fe-4393-812e-796761d6a2c5", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In this action for nonpayment, petitioner landlord affirmatively puts forth the argument that Federal law preempts a State court from adjusting rent increases approved by HUD. The landlord petitioner\u2019s second argument, put forth defensively in response to the tenants\u2019 counterclaim of a breach of the warranty of habitability, argues that alleged deficiencies in services and conditions, even if substantiated, do not reach the level of a breach of the of habitability. The respondent tenants\u2019 polemical powers are spent interpreting all available data on the boundaries and limitations of the warranty of habitability and applying those interpretations favorably to the present situation. As a result of this alleged breach, the tenants seek a rent abatement."], "id": "29bcbc9d-03d2-41ee-8b65-7de314e8a005", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The defendants argue that there was no privity of contract between the infant plaintiff and the defendants and that, accordingly, the plaintiff could not recover on a breach of warranty. In support of this contention the defendants cite Chysky v. Drake Bros. Co. (235 N. Y. 468, 472) wherein it is stated: \u201c If there were an which inured to the benefit of the plaintiff it must be because there was some contractual relation between her and the defendant \u201d. The reason for this rule *280is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty."], "id": "889e5ef1-425a-41e9-a3e8-6ecf4c82b138", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["The District contends that Penzel is required to produce \"expert testimony\" to establish the Plans were \"defective.\" This argument is premised on the District's belief that claims in Missouri \"are considered fault-based claims.\" The District reasons that \"within the context of design documents, 'fault' is established by proving that a design professional negligently prepared the design documents,\" which requires expert testimony. We disagree. The implied warranty in a Spearin claim is that the plans are free from significant defects; it is not simply a guarantee that a particular level of care and competency was used to create the plans. \"When the government provides a contractor with defective specifications, the government is deemed to have breached the implied warranty that satisfactory contract performance will result from adherence to the specifications, and the contractor is entitled to recover all of the costs proximately flowing from the breach.\" Essex Electro Engineers, 224 F.3d at 1289. In Ideker , the Missouri case we found most similar to Spearin , the Western District listed six necessary elements \"to constitute a cause of action...in the nature of a breach of warranty by a contractor against a governmental entity,\" none of which involved fault or negligence by the government-owner. 654 S.W.2d at 621. Accordingly, Penzel need not show the District fell below a reasonable standard of care to prevail on its Spearin claim, and an expert witness is not required to attest to standard of care."], "id": "c48b9dee-7f52-447e-a49b-1a1fe0a5d92d", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Burwell v. Jackson, 9 N. Y. 535, decided in 1854, has been said to show \u201c such perfection of learning and reasoning as to make it a landmark in the law.\u201d' In that case, the vendors agreed that they would \u201c execute or cause to be made and executed unto the said party of the second part * * * a good and sufficient deed of conveyance of a certain lot of land,\u201d etc. The title of the vendors was extinguished before the time for conveyance, by sale under mortgage, which latter was on the record at the time of the making of the contract. The court held \u201c that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title knowing its defects,\u201d and \u201c there is in every executory contract for the sale of lands, whatever may be the language in which the agreement is couched, an implied undertaking to make a good title, unless such an obligation is expressly excluded by the terms of the agreement.\u201d It was held, also, that this ceases upon the consummation of the contract of sale by the execution of the deed, because then the law throws upon the purchaser the responsi*208bility of caring for Ms own protection by suitable express covenants in the deed."], "id": "9f7f813a-f2d5-48a3-8c70-b17813fd79a4", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["This criterion establishes that the conditions in the public areas established the failure of the landlord to maintain the premises free of conditions threatening to the lives, safety and welfare of the tenants, thereby breaching the warranty. (Park W. Mgt. Corp. v Mitchell, supra; Octagon Assocs. v Kaufman/ Spivak Assocs., NYLJ, July 14, 1989, at 26, col 4 [App Term, 1st Dept]; Tower W. Assocs. v Derevnuk, 114 Misc 2d 158 [Civ *650Ct, NY County 1982].) This does not, however, exhaust the full impact of the ."], "id": "b5d6be30-a63e-4ade-b49f-6d4acc47e55c", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Joseph D. Mintz, J. Third-party defendant moves pursuant to CPLR 3211 to dismiss the third-party complaint on the grounds that it fails to set forth a cause of action, and, alternatively, the third-party claim is barred by the exclusivity of remedy provision of the applicable workers\u2019 compensation law, the Longshore*557men\u2019s and Harbor Workers\u2019 Compensation Act (hereinafter LHWCA) found at 33 USC \u00a7 901 et seq. A prior motion to dismiss the third-party complaint was made before Justice Norman Wolf. That court granted the motion with leave to replead without reaching the questions presented herein, i.e., whether a cause of action based on an of workmanlike performance exists on behalf of a ship repair company against a vessel, and whether 33 USC \u00a7 905 (b) precludes an action against a shipowner/employer."], "id": "c5ac4563-334a-473c-8e1b-7c53066b4edf", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In view of the foregoing, it is clear that the housing merchant statute only applies to contracts or agreements for the sale of new homes. (See, Pitcherello v Moray Homes, supra.) Consequently, since the instant action did not involve a sale and passing of title, plaintiffs\u2019 claim is not governed by the housing merchant implied warranty statute or its notice of claim and Statute of Limitations provisions. (See, Chan v Rose Constr. Corp., supra.) Rather, plaintiffs\u2019 claim is governed by CPLR 213 which provides a six-year Statute of Limitations for a cause of action for breach of a construction contract which began to run upon the completion of the contract on May 1, 1992. (See, State of New York v Lundin, 60 NY2d 987, 988 [1983]; Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389 [1977]; Chan v Rose Constr. Corp., supra; Hart v Moray Homes, 158 AD2d 890 [3d Dept 1990].) This means that plaintiffs had until May 1, 1998 to commence the instant action against defendants. Since plaintiffs commenced the action on October 10, 1997, the action is timely."], "id": "c75bd50c-a12b-431b-8bd4-cd718d3e71aa", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["In this tenant-initiated code enforcement proceeding to direct the landlord to remove conditions constituting violations of the Housing Maintenance Code (Administrative Code of City of New York \u00a7 27-2001 et seq.), Civil Court properly invoked Real Property Law \u00a7 234 in awarding attorneys\u2019 fees to the prevailing tenants. The leases contained a standard attorneys\u2019 fees provision, so that landlord is deemed to have agreed to pay tenants their reasonable attorneys\u2019 fees incurred \"as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease[s]\u201d (Real Property Law \u00a7 234). Since the conditions giving rise to the proceeding clearly constituted a breach of the express warranty of habitability stated in the leases, as well as a breach of the of habitability (Real Property Law \u00a7 235-b), landlord was in default of its covenant to provide habitable premises and tenants are entitled to recover the reasonable attorneys\u2019 fees incurred by them to enforce that covenant."], "id": "19842f2e-e375-4681-9ccb-8e25701e4820", "sub_label": "US_Terminology"} {"obj_label": "implied warranty", "legal_topic": "Business Law", "masked_sentences": ["Global moved to strike Nghiem's petition, asserting that both claims were barred by limitations. Global argued that Nghiem's claim was actionable only under the DTPA and that its two-year statute of limitations applied.7 Nghiem agreed that his negligence claim was barred but argued that his implied warranty claim was under the common law, not the DTPA, and the residual four-year statute of limitations applied.8 The trial court agreed with Global, struck Nghiem's petition, and severed its order, making it final and appealable.9"], "id": "97de3dca-f2d1-46df-b935-5b75da142f37", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Whether an easement by representation and estoppel was made to any of plaintiffs must be separately determined with respect to each plaintiff. (White v. La Due & Fitch, Inc., supra.) The estoppel upon which an easement by representation rests was originally conceived of as preventing application of the or the parol evidence rule (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Newman v. Nellis, 97 N. Y. 285; White v. Manhattan Ry. Co., 139 N. Y. 19; Norton v. Ritter, 121 App. Div. 497) but in some cases has been stated as an estoppel to deny the truth of representations made (White v. La Due & Fitch, Inc., supra; Bimson v. Bultman, supra; Turner v. Howard, supra) or an estoppel to deny the existence of an easement (Civic Assn. at Roslyn Country Club v. Levitt & Sons, supra; see Phillips v. West Rockaway Land Co., supra). It is not necessary in the instant case to ascertain the difference, if any, in these concepts or to consider whether defendants\u2019 failure to plead the Statute of Frauds places the matter on the basis of oral contract only and obviates the necessity of showing all the elements of estoppel, for as hereinafter stated, the court finds all the elements of estoppel to exist. Any representation, whether by map (Phillips v. West Rockaway Land Co., supra), by advertising, or by oral representation (White v. La Due & Fitch, Inc., supra), made to the particular plaintiff may give rise to an estoppel to deny existence of the easement. With respect to the purchasers from Sea View Estates, the court finds that no representation of the nature claimed in the complaint was made to Lomen, orally or otherwise, but that representations were made to plaintiff Blanke that \u201c all the other plots in the area [would] be strictly for houses \u201d and that the community beach \u2018 \u2018 was going to be the only beach and * * # the rest of it was going to be only houses \u201d. As to Blanke, the testimony thus sustains an easement by representation, and Sea View having failed to answer the complaint, plaintiff Blanke is entitled to a judgment declaring any plot now owned by Sea View subject to an equitable restriction limiting its use to houses. While Cameo Interests also failed to answer the complaint, it is not necessary to consider testimony of purchasers from Cameo since none are plaintiffs in this proceeding."], "id": "f11efd85-61bd-436c-ae15-3e151833b51a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["*654on motion, as the issues should be resolved after a trial. On appeal, the Appellate Division affirmed in a memorandum opinion (1 A D 2d 844) and stated: \u201c Although we express no disagreement with the disposition of the motion at Special Term, insofar as it involved the defense of res judicata, pleaded in appellant\u2019s answer, we call attention to the fact that the motion to dismiss, having been made on the pleadings, could not have been granted in any event, on the basis of the allegations contained in that defense which are deemed controverted by traverse or avoidance as the case requires. (Civ. Prac. Act, \u00a7 243; Gracie Square Realty Corp. v. Choice Realty Corp. 305 N. Y. 271, 278; Lipkind v. Ward, 256 App. Div. 74, 75.) The defense asserting the was properly before the court on the motion by reason of the admission in respondent\u2019s bill of particulars that the contract alleged in the complaint was oral. The motion was properly denied, despite that defense, for the reasons stated at Special Term.\u201d The Statute of Frauds must be pleaded in order for defendant to avail himself of it on a trial."], "id": "dc105feb-f8d6-4b09-85d5-b4181f94763a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The discussion between the parties prior to the settlement of the infant\u2019s action was not a novation extinguishing the original debt and comes within the (Healy v Brotman, 96 Misc 2d 386). Since there is no lien, common-law or statutory, for a doctor\u2019s medical services (Marsh v La Marco, 75 Misc 2d 139), the plaintiff\u2019s claim is limited to the assignment in question."], "id": "4bede94a-40de-4c98-8adc-4fc80794258e", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Davis, P. J.: All allegations of fraud or imposition on the appellant, in procuring the instrument of 6th of August, 1869, having been distinctly withdrawn during the trial (as appears at fol. 202 of the case), that paper stood, as the court then remarked, unimpugned and upon its legal effect. It was upon this instrument that the learned judge, at Special Term, predicated the defendant, Alcott\u2019s liability, as surety for plaintiff, to the defendant Wehrum. The instrument recited that Alcott had become, and was, security foi the payment of the sum of $2,000 to the defendant Wehrum, on *251the 1st of May, 1870, and provided that Lockwood should hold the mortgage of Kreitz, as an indemnity to Alcott upon his liability as such. It was signed and sealed by both the principal and surety. This was, in our opinion, sufficient to take the promise of Alcott out of the operation of the . The reasons given by Beady, J., in his opinion at Special Term, are quite satisfactory to us on this point, and we adopt them as expressing what we deem to be the law."], "id": "56bd3645-2585-41ca-97bd-3238381b29e4", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The fourth cause of action requests the imposition of a constructive trust. It is true that where a testator has received property from others, now deceased, equity will intervene under certain circumstances to declare the surviving testator a trustee in order to carry out a promise on the strength of which the property has been received (Trustees of Amherst Coll. v Rich, 151 NY 282). However, even though the will not prevent the court from imposing a constructive trust, nevertheless, decisional law requires clear evidence of the existence of a promise, either express or implied, and such a promise is not established simply by showing a confi*645dential relationship exists between the persons involved (Oursler v Armstrong, 10 NY2d 385)."], "id": "1022c788-3454-499f-bf2f-16412bee5e9b", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["But it is clear (as expressed in 56 N. Y. Jur., , \u00a7 54, pp. 97-98) that: \u201c While forbearance may be good consideration for a contract in general, a promise made by one person to pay the existing debt of a third person is not rendered independent of the original obligation so as not to be within the statute of frauds, by the mere fact that it is based upon the creditor\u2019s forbearance to sue the debtor or upon the dismissal of a suit which the creditor had instituted against the debtor, because in such cases forbearance consists only in harm to the promisee whereas a consideration moving to and beneficial to the promisor is required to make an oral promise enforcible under the statute of frauds. \u2019 \u2019"], "id": "79b04b0c-7c64-468a-a8ad-b156f3732473", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["The contention of the learned counsel for the plaintiff is, that the agreement before mentioned was valid and effectual to afford the relief sought. This action is, in its nature, one for specific performance of that agreement. The mutual promises of the.two brothers constituted the only consideration for the agreement, and that was sufficient. But the sufficiency of consideration does , not necessarily render the agreement valid. We shall assume that the plaintiff is entitled to the relief, if the agreement, as made, imposed on the parties to it any legal obligation to observe and perform its provisions. The parties then owned real and personal .property amounting in value to about $100,000, and Weils Gooding continued to own his portion of it to the time -of his death. This' agreement on the part of Wells Gooding was, that on his death the plaintiff, if his survivor, should take by devise and bequest all his property, subject only to the bequest of $10,000 to the sister. This, in practical effect, was an agreement to sell the property and to vest title in that particular manner. It was within the and void, and unless there was such part performance as to bring it within the rule which supports the right in such cases to enforce performance, it is difficult to see any-right of action in the plaintiff. Nothing can be regarded as requisite part performance to take such agreement out of the operation of the statute of frauds, which does not place the party seeking relief in a situation which is a fraud *150upon him, unless the execution of the contract be required in his behalf and for his protection. (2 Story\u2019s Eq. Juris., \u00a7 761.; Phillips v. Thompson, 1 Johns. Ch., 149 ; Parkhurst v. Van Cortland, 14 Johns., 15, 35; Wheeler v. Reynolds, 66 N. Y., 227; Winchell v. Winchell, 17 N. Y. Weekly Dig., 104; Levy v. Brush, 45 N. Y., 589; Dung v. Parker, 52 id., 494."], "id": "dbbb67d9-fd46-4afd-9764-a0e3a9ef671a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The action is predicated upon an alleged joint venture between plaintiff and the defendants Berfond and Bae to impress a trust upon real estate owned by the defendants or some of them and for an accounting. The answer is a general denial with separate defenses of the . Plaintiff objects to defendants\u2019 notice of examination of plaintiff at defendants\u2019 attorney\u2019s office, which is improper (Schatzkin v. Schatzkin, 278 App. Div. 934; Schulsinger v. Cowles, 7 Misc 2d 411), and defendants make the objection that only 12 days\u2019 notice by mail was given of the examination, which is a mere irregularity (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122; Civ. Prac. Act, \u00a7\u00a7 105, 109) which the court may correct by setting the time of examination (Isenburger v. Arrowhead Mills, 212 App. Div. 121)."], "id": "1616eb2b-f204-4fb7-a7d5-352b3291543f", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["An interesting contention presented by counsel for the administrator is that, the applicable provision of section 31 of the Personal Property Law (subd. 7), having voided the alleged oral agreement to bequeath a legacy, likewise, also bars the award of any quantum meruit. It is true that the instant case does involve the'issue as to whether, in an instance dealing with an alleged contract (as distinguished from quasi-contract), unenforcible because of a provision of the , even though the claimant has proceeded on the theory of an express contract, her claim, to the limited extent of a quantum meruit, may be recognized and allowed. Oases, generally of this type, dealing with the above-mentioned statutory provisions of section 31 of the Personal Property Law (subds. \u201c 1 \u201d, \u201c 7 \u201d) and cited in this connection are Matter of Quigley (179 Misc. 210); Matter of Ditson (177 Misc. 648); Matter of Block (258 App. Div. 342); Laing v. Mallory (277 App. Div. 824); Meltzer v. Koenigsberg (99 N. Y. S. 2d 143, affd. 277 App. Div. 1050, affd. 302 N. Y. 523); Bayreuther v. Reinisch (264 App. Div. 138, affd. 290 N. Y. 553); Matter of Lettner (112 N. Y. S. 2d 540); Matter of Douglas (169 Misc. 716, affd. 256 App. Div. 1070) and Kenny v. Brieger (196 Misc. 85)."], "id": "b6653c36-fb28-44cb-ac0e-a0a5548b544c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["*261Whether the shrewd language; used in the last clause of the stipulation was purposely designed to lull the defendant\u2019s counsel to sleep without awakening him to the condition of his pleading in the case at bar, I am unable to say; suffice, however, that the fact remains if my interpretation of the stipulation be correct. It would be a loss of: time to enter upon a discussion of the question that in order that the defense of gambling be available it must be pleaded. The rule is well settled, and the Court of Appeals has said in a case involving the : \u201c The 'Statute of Frauds is a shield which a party may use or not for his protection just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds1 an exception to the rule.\u201d Crane v. Powell, 139 N. Y. 388; Matthews v. Matthews, 154 id. 291. In view of the fact that the defense of gambling has not been interposed by the answer in the case at bar, and in view of the fact that defendant, by the language of the stipulation of facts, receives no aid in such defense in this action, I am forced to the conclusion that plaintiff is entitled to judgment for the full amount claimed. I, therefore, award judgment for the plaintiff for the sum of $875 and interest; and let judgment be entered accordingly."], "id": "6bce9ec9-c38f-4bbb-9b53-8d09757103bc", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["*305With respect to the second argument urged in support of the motion to dismiss, it is to he noted that the complaint alleges that defendant Sylvia Altman, as well as her husband, represented to plaintiff that the husband was the sole owner of the subject premises and that the wife acquiesced in and ratified the alleged agreement; further, that plaintiff relied upon the aforesaid representations. If the foregoing allegations are established as true, then the wife would be estopped from successfully raising an objection under the that she neither signed the instrument nor authorized her husband in writing to do so on her behalf (Joehl v. Tricarico, 271 App. Div. 898 [2d Dept.]; Levy v. Rothfeld, 271 App. Div. 973). The case of Redlark Realty Corp. v. Minkin (306 N. Y. 762) and cases of similar import, cited by defendants, are distinguishable from the instant case. Here, unlike the afore-mentioned cases, the agreement which is the gravamen of the action, is not oral but is in writing. This case properly involves an issue of estoppel, whereas in the cases cited by defendants the doctrine of estoppel was not validly applicable to the issues raised therein."], "id": "9ed1a327-c187-4272-acc7-31797738049c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Defendant AT&T moves respectively, pursuant to CPLR 3211 (subd [a], pars 5, 7) and CPLR 3212, for an order dismissing the complaint on the grounds that (1) it fails to state a cause of action, (2) the cause of action alleged may not be maintained by reason of the , or, alternatively, (3) defendant is entitled to summary judgment.*"], "id": "377979d2-ca04-4392-b3ce-ef3bc2af6bdb", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Hext, as to the right of the defendant to invoke the protection of the under his answer, pleading a general denial, without referring to the statute. The plaintiff urges that the objection that the statute is applicable has been waived by the defendant because it is not pleaded in his answer; and cites Porter v. Wormser, 94 N. Y. 431, to sustain his contention. In that case (on page 450) Judge Andrews, says: \u201cThe general rule is that the defense of the statute of frauds must be pleaded, except where the complaint on its face discloses a case within the statute. It cannot be doubted that if the defendants had brought an action to recover a balance claimed to *326be due on the contract for the purchase of the bonds, without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute, to avail himself of its protection.\u201d The language of the court certainly sustains the claim made by the plaintiff\u2019s counsel; but, in considering its application, it must be limited to the circumstances of the case in which it was employed. The action was by bill in equity to open and review an account of transactions in the purchase and sale of stock and government bonds. The complaint, in substance, alleged the existence of a contract for the purchase of the bonds, and sought to avoid the loss charged thereon, \u201con the ground of fraud in the inception of the contract.\u201d The allegations of the complaint implied the existence of a legal contract, and did not impeach it as void under the statute; and the court properly held that \u201cthe plaintiff, having become an actor, and brought an action to impeach the account on grounds which implied the existence of a formal contract, is not in a position to question the validity of the contract under the statute;\u201d citing Cozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. Ch. 148; 2 Story, Eq. Jur. \u00a7 755. An examination of these authorities show the ground upon which the decision-in Porter v. Wormser, supra, was made."], "id": "ebd0ce9f-2e91-4e5c-9e63-beb4428ab547", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Interesting questions are also raised by. the appellants\u2019 claim that the contract in suit was not assignable, and that the plaintiff cannot recover upon the. theory of his employment, in place of the contracting firm which assigned the contract to him, because such employment is not pleaded in the complaint, and because, if pleaded, it would be open to the defense based upon the ; but, in view of our decision upon the point above discussed, we are not called upon to determine the other questions raised."], "id": "f1225b18-9b8f-4df6-855b-89966a02e957", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["An agreement to share the proceeds of a lottery is a valid and enforceable agreement (see, Johnson v Johnson, 191 AD2d 257; Yates v Tisdale, 3 Edw Ch 71; see generally, Annotation, Enforceability of Contract to Share Winnings from Legal Lottery Ticket, 90 ALR4th 784). An oral agreement to share proceeds that will be paid over a period of several years does not contravene the (see, Pando v Fernandez, 118 AD2d 474; 90 ALR4th, op. cit., at 797-798). The oral agreement of the co-workers was sufficiently definite to be enforced (see, Pearsall v Alexander, 572 A2d 113 [DC Cir]), and the court erred in concluding that the co-worker who pur*1028chased the winning ticket was under no legal duty to share the proceeds. Moreover, there is no evidence in the record of donative intent. It is undisputed that the co-worker acted pursuant to the oral agreement."], "id": "1a73a7b5-d313-4b52-84a4-fe0817a2129a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["So far as the sharing of Mansfield\u2019s \u201cfree goods\u201d is concerned, the defendants deny the existence of any joint venture with respect to Mansfield and further deny that they have breached any obligation \u2014 fiduciary or contractual \u2014 which they might owe the plaintiffs. In addition various affirmative defenses were asserted by the defendants: the agreement to control the output of Mansfield is said to be illegal and contrary to public policy; the absence of Mordu Hasday as a party plaintiff is alleged to constitute a fatal defect in that he was a partner in Dixie until May, 1946, when he was replaced by the plaintiff Joseph Hasday as a partner; it is urged that the alleged original oral agreement for a joint venture with respect to Mansfield was merged in and superseded by the above-described letter of March 21,1946, which limited to one year the arrangement with respect to the \u2018 \u2018 free goods \u2019 \u2019; and as a further defense it is asserted that with respect to that portion of the alleged joint venture not comprehended within the written letter of March 21,1946, the is a bar."], "id": "ae27d477-2c92-4095-988e-16c4d6bb2f82", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["I will remark here, that in looking carefully into all the evidence, I am constrained to the belief that the only reason which influenced the defendants in refusing to perform the contract was, that the rifles had nearly doubled in value from the time the contract was made until the time they were to be delivered. After the testimony was nearly closed a motion was made to dismiss the complaint, upon the ground that there was no consideration passing in the contract, and \u201c that the contract was a mere nudum pactumthe motion was granted. Notwithstanding this, I am satisfied after a careful examination of the statute, and of all the American and English authorities on the subject, there was error in dismissing the complaint. The contract as stated above, was a full compliance with the requirements of the statute, and upon the facts presented the plaintiff was entitled to recover. It will be conceded that before the passage of the , a verbal contract between parties for any amount whatever was good. This being so, the statute simply altered the common law in this respect, that it merely requires for greater certainty, that a memorandum of the contract should be made in writing."], "id": "4948efb7-2a5a-478b-a53e-f6fccfe1f174", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The court is not concerned upon a motion such as this with the merits of the litigation or with the possibility that the proof at the trial may fall short of establishing as facts what are now mere allegations in the complaint. (Denihan Enterprises v. O\u2019Dwyer, 302 N. Y. 451, 458; Lefler v. Clark, 247 App. Div. 402, 404; Vernon v. Vernon, 4 Misc 2d 776; Guarino v. Guarino, 3 A D 2d 889.) The question is not whether in a given case a plaintiff can produce facts tending to obviate the objections but whether he should not at least be given an opportunity of doing so. I believe such an opportunity should be available. (Piccione v. Schultz, 198 Misc. 876; Matter of Klausner, 192 Misc. 790; McCormack v. Halstead, 132 Misc. 916.) The bars the remedy, not the right. (Bayles v. Strong, 104 App. Div. 153, affd. 185 N. Y. 582.)"], "id": "e84f92e8-a8d4-4319-b063-9a5c84a0bb10", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The requirements of the Statute of Wills are highly peculiar. This statute stands in some respects only in the same category with such enactments as the and its prototype, the French Ordormance de Moulms of the year 1566. These enactments nevertheless required, in almost every instance, a substantial compliance with the direction prescribed. But the Statute of Wills refers to unilateral act only. Without adherence in every respect to the'directions prescribed by statute, a unilateral act of a party may have no validity whatever. When a unilateral act is of a gwcm-public character, and a will is such, the state universally prescribes with particularity the formalities requisite for the authentication or validity of the act itself. The reason why the requirements of the Statute of Wills demand implicit obedience is that, as an act of testamentation is unilateral and to take effect after the death of the chief actor, it is peculiarly exposed to fraud, simulation, or even forgery. Therefore it is, that for the making of wills special forms were required by law. The forms prescribed are then closely obligatory in order to give validity to the act. The motive of the legislative requirement may be, and in the instance of testamentation is, no doubt, corroboration or authentication, and to prevent fraud. In the instance of a testamentary act it may be stated generally as a rule of law that, *217without adherence to the prescribed forms, the act itself has no juridical value whatever. The Statute of Wills does not impose forms with a view to the convenience of the parties, and their omission is consequently not optional or immaterial, but the forms themselves\" go to the very essence of the legal act. It is an error to regard such directions as mere technicalities, for they are founded on the highest public policy, and a noncompliance is fatal to the validity of the act attempted."], "id": "f703f005-d523-4372-adb6-272c181d392c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff alleged in his complaint that the appellants Jean Fashions, Inc. (hereinafter Jean Fashions), and liana Knitting, Inc. (hereinafter liana), were liable to him for rent payments due under the terms of a five-year lease. We find that the complaint should have been dismissed as to Jeans Fashions since a purported assignment of the lease to it by liana was not in writing and therefore was void under the (see, Geraci v Jenrette, 41 NY2d 660; Otiniano v Magier, 181 AD2d 438; General Obligations Law \u00a7 5-703 [1], [2]). In addition, we conclude that liana submitted sufficient evidence to establish the defense that its surrender of the lease was accepted by the plaintiff (see, eg., Centurian Dev. v Kenford Co., 60 AD2d 96). In view of the plaintiff\u2019s failure to dispute this evidence, there are no triable issues of fact, and summary judgment dismissing the complaint against liana should have been granted (see, Zuckerman v City of New York, 49 NY2d 557)."], "id": "d7ca7ad1-77d9-4f39-a29b-2b82b234fb0f", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["While the was not pleaded as an affirmative defense in the answer (see Civ. Prac. Act, \u00a7 242, and McKenna v. Meehan, 248 N. Y. 206), nevertheless, its defense is available to the defendants. As was said in Goldberg v. Cohen (110 N. Y. S. 185): \u201cIt was not necessary in this case for the defendants to plead the statute of frauds, inasmuch as the complaint on its face disclosed a cause of action within the statute \u2019 \u2019. Hence, if plaintiff can at all recover it would have to be under the written instrument only."], "id": "c9053937-1676-463c-b6d9-ff9a55484a61", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["*370First, it is clear that one party to a transaction, even though authorized to do so, cannot be the agent of the other party to sign the memorandum of a contract which falls within the provisions of the (Restatement, Contracts, \u00a7 213, subd. [1]; Wilson v. Lewiston Mill Co., 150 N. Y. 314; Dorian Holding & Trading Corp. v. Brunswick Term. & Ry. Securities Co., 230 App. Div. 514, affd. 256 N. Y. 674)."], "id": "9eec6e10-4215-4f0a-9c75-7742fcc5d2c5", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The reports of judicial decisions in the state of New Jersey are silent, with respect to the meaning of the words \u201csigned\u201d and \u201csignature,\u201d in the statute of 1851, of the word \u201c signed \u201d in the statute of 1850, and of the same word in the statute of 1714. The last named act (1 Laws of New Jersey, 7) provided *422that wills should be in writing and should be \u201csigned\u201d by the testator. When that act went into operation, the (29 Charles II., ch. 3) was nearly forty years old. That statute had prescribed, by its fifth section, that all devises and bequests of lands should be \u201cin writing and signed by the parties so devising the same and should be \u201c attested and subscribed by three or four credible witnesses.\u201d As early as 1680, the Court of King\u2019s Bench decided that, within the meaning of \u00a7 5, the position of the testator\u2019s signature was immaterial (Lemayne v. Stanley, 3 Lev., 1). It was held by all the Judges that the words \u201c I, John Stanley,\u201d written by John Stanley himself in the exordium of his will, constituted a valid signature \u201c within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and, therefore, a signing in any part is sufficient.\u201d"], "id": "220c47ec-5090-435a-995a-bc490f62267f", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["On the other hand, the tenant alleges that it took possession under an oral lease for 10 years from September 1, 1963 to August 31, 1973, at an annual rental of $7,800 plus an annual charge of $100 for gas and water together with the obligation to maintain at its own expense one half of the building and one of two elevators (the leased premises). The tenant argues that *460part performance saves the 10-year oral lease from the proscription of the under subdivision 4 of section 5-703 of the General Obligations Law; and further that the common-law doctrine of \u201c equitable estoppel \u2019\u2019should be invoked to defeat this proceeding."], "id": "60c9203c-c76c-4ccd-8577-af9794d4b45e", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["It is contended by the counsel for the appellant that, as the guaranty was a promise to answer for the debt of another, it was necessarily put in writing to satisfy the requirement of the , and parol evidence of such consent and waiver is inadmissible. This case was before us on a former appeal, and it was then held that the reception of parol proof, tending to show such consent and waiver subsequent to the making of the guaranty, was not error. (MS. opinion of Bradley, J., Jan. Term, 1885.) We adhere to that ruling."], "id": "58e4d0a7-c99e-4412-b519-2a6d7e8be734", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Although the court concluded that its finding regarding the applied to all causes of action alleged in the complaint because all of them were derivative of the contract claims, it also addressed defendants' other arguments. It rejected Diesel/One Race's and Revolution's arguments regarding the purported insufficiency of the allegations to support the breach of oral contract, breach of implied-in-fact, and declaratory relief causes of action. The court agreed, however, with Revolution's argument regarding the inadequacies of the allegations of intentional interference with contractual relations, and sustained Revolution's demurrer to that cause of action on this ground (as well as on the statute of frauds ground)."], "id": "6c9d03c6-5153-4526-8261-c330854caf8e", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": [". This provision of the statute was not intended to change the law requiring a consideration for a contract not to claim dower, but apparently' only to change that rule of law which avoided contracts between parties intending marriage by the marriage itself, so that now an ante-nuptial agreement solely between the parties contemplating marriage could be enforced after \u2022 and notwithstanding the marriage. Such construction has recently been given to this section by this General Term in Brown v. Conger, Executor, etc., where it was held that this section did not repeal or alter that portion of the which requires such contracts to be in writing."], "id": "749d9294-db66-47a9-9433-0a2c662ec4e7", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The principle is well established, however, that this doctrine does not apply where, as in Daly , Whittom , and other cases, \"the two theories sought to be submitted in the case ... [are] not truly inconsistent.\" See id. at 204. We find that to be the case here. It was proper under Rule 55.10 for Respondents to submit the defense to Franklin Farms' breach of contract while at the same time submitting its own breach of contract claim. We do not find these to be inconsistent theories that would require Respondents to abandon one or the other under the election of remedies doctrine. Point denied."], "id": "60e1bc12-4e61-4652-8aac-174aa8559caf", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["The , as memorialized in Civil Code12 section 1624, sets forth several categories of contracts that \"are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent.\" ( \u00a7 1624, subd. (a).) The defendants contend, and the trial court found, that the contract at issue in this case falls within the category described in subdivision (a)(1), i.e., \"[a]n agreement that by its terms is not to be performed within a year from the making thereof.\" ( \u00a7 1624, subd. (a)(1).)"], "id": "d933906b-2990-4ff0-b5eb-4e3fc7c3c23a", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["An invoice between merchants containing the names and addresses of the buyer and seller, the date, the payment terms, the price of the goods, a description of the goods, the amount of the goods and the total price of the sale constitutes a writing in confirmation of a contract for the sale of goods satisfying the , provided that no written notice of objection is given as to the contents of the invoice within 10 days of receipt (see UCC 2-201 [1], [2]; B & R Textile Corp. v Domino Textiles, 11 AD2d 539 [1980]). Glatt did not deny receipt of the fish or the invoices, or allege having made a written objection thereto; nor was there any claim that payment had been made. By establishing that the parties had a contract and that Glatt owed money on the contract, plaintiff made out a prima facie case on its cause of action for breach of contract as against Glatt. It was therefore incumbent upon Glatt to proffer admissible evidence sufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]; Freedman v Chemical Constr. Corp., 43 NY2d 260 [1977])."], "id": "9f7623ba-eaa8-4046-950a-bff71a82b952", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Permission will be granted, however, to replead again the second cause of action only. A cause of action properly pleaded on the theory of quantum meruit is not barred by the but the second cause of action contained in the second amended complaint is obviously based upon the oral contract. In serving a new complaint, the plaintiff should not include any allegations upon which evidence could not be offered at the trial. The plaintiff could not, for instance, \u2018 \u2018 rely on the contract as evidence of the value of the services \u201d where the oral contract is barred by the statute (Parver v. Matthews-Kadetsky Co., 242 App. Div. 1, 3). (See, also, Erben v. Lorillard, 19 N. Y. 299.) Therefore, the allegation contained in paragraph \u201c 14 \u201d of the second amended complaint 1 \u2018 which defendant promised and agreed to pay \u201d should be excluded."], "id": "aaf38e93-ff7b-4b3f-bee6-0a9e29482e0e", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Contrary to the defendant\u2019s contention, the trial court did not improvidently exercise its discretion in denying his motion to amend his answer to include the affirmative defense that the plaintiff\u2019s action was barred by the (see, General Obligations Law \u00a7 5-701). The loan agreement was fully capable of being performed within one year and, therefore, was not covered by the statute (see, D & N Boening v Kirsch Beverages, 63 NY2d 449; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175; Mann v Helmsley-Spear, Inc., 177 AD2d 147). Thus, the proposed amendment was devoid of merit (see, Crimmins Contr. Co. v City of New York, 74 NY2d 166; Nasuf Constr. Corp. v State of New York, 185 AD2d 305; Brown v Samalin & Bock, 155 AD2d 407; Right Turn v Sloan, 88 AD2d 889)."], "id": "f7e44b56-20ba-4c1b-a86d-a8f3de99d1c9", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Once again, the trial court sustained the demurrers with leave to amend. It found that Zakk's allegations that he was not fully compensated for his work on the original xXx film were insufficient to allege estoppel to assert the *442 because he failed to allege facts showing that he provided services of an extraordinary or exceptional character. The court explained, \"[s]tated differently, Plaintiff fails to allege facts why estoppel should be applied to permit enforcement of the alleged contract instead of Plaintiff being required to pursue a quantum meruit claim.\" Based upon this finding, the court sustained the demurrers to all causes of action, but granted Zakk leave to amend, including leave to add an alternative quantum meruit claim. Although the court found that all causes of action were barred by the statute of frauds, it also specifically addressed, and rejected, Revolution's argument that Zakk failed to allege sufficient facts to state a claim for intentional interference with contractual relations."], "id": "4a1f4764-4c61-4e4e-8749-b1ce9fa214cb", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In ascribing a motive to the legislative terminology, one text has set forth their opinion that \u201c subscribed \u201d means signing at the end of a document in the following language: \u201c Presumably the underlying purpose of the legislature in requiring that a memorandum be \u2018 subscribed \u2019 is the same as that in the case of wills, which must be subscribed by a signature at the end of the document, namely, to prevent fraud through insertion or additions to a writing subsequent to its execution \u201d (56 N. Y. Jur., , \u00a7 220)."], "id": "4ad6075b-2776-4a1c-bc03-a80f4f973fea", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In the first cause of action, the Plaintiffs allege a claim against the defendant, Corpus Christi Church, for breach of the employment agreements between the Plaintiffs and the church. Except for the prior grounds that this court has no subject matter jurisdiction over this religious dispute based on the First Amendment, the defendant has not established that the first cause of action in the complaint fails to state a cause of action nor that the bars this claim. If this court had subject matter jurisdiction of the dispute (which it has been determined this court does not), then the motion by Corpus Christi Church to dismiss the first cause of action for breach of contract would be denied."], "id": "aca65d86-5511-4db9-8fa5-90c4572a8721", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The cause of action based on the December 9, 1957 contract, even on plaintiff\u2019s version of the facts, would have been, in any event, dismissible on the ground of the . The contract covers a period of three years and obviously falls within the statute (Personal Property Law, \u00a7 31). To comply with the statute it was necessary that there be a memorandum setting forth the essential terms of the agreement signed by the party to be charged \u2014 the restaurant corporation. Assuming that Moskowitz signed the contract, plaintiff\u2019s authority to affix the corporate name and to fill in its essential terms depend entirely upon parol testimony offered by plaintiff."], "id": "5ff3994b-be98-416d-9e77-de24b2a2dbe3", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Such a cause of action would not necessarily be grounded in breach of oral contract and in the opinion of this court would not be barred by the . But, even assuming that plaintiff intended to plead a breach of oral contract, whether such a contract in enforcible under the Statute of Frauds should not generally be determined summarily, but at the trial. There would then be here \u201c a controversy as to the existence, the content and effect of the oral agreement * * \u00ae best determined upon a trial of the issues\u201d (Jacobson v. Jacobson, 268 App. Div. 770). Accordingly, the motion is denied."], "id": "b33df5a5-0e96-4192-91a9-b0e7b4ed8dc7", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Here, the written contract is composed of two documents: the terms and conditions to which Freeman agreed when it bid on the property and its electronic bids.2 Notwithstanding these terms, Freeman argues that the contract fails to satisfy the because all essential terms of the contract are not reduced to writing. On appeal, it advances two primary arguments in support of reversal, asserting that the terms and conditions did not identify FNBC as the seller and that the terms and conditions did not include the offer-and-acceptance agreement."], "id": "6bbb8c97-d40a-4005-80a5-50e28fd5eb0b", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["When the casein 32 New York, 630, arose and was decided the act of 1849 was in force, and if the court had been of the opinion that the third clause of the had been repealed, the learned judge delivering the opinion would not have been permitted to assert, without some of the members of the court dissenting from the proposition, that marriage alone did not constitute a valid consideration for a contract. '"], "id": "650b491b-886c-404c-ba79-20c8319ba28a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In Blakeley v. Agency of Canadian Car & Foundry Co. (73 N. Y. S. 2d 573, 574, 575, affd. without opinion 272 App. Div. 1001) the action was brought to recover for services performed by plaintiff\u2019s testator for the defendant who, under an oral agreement with the defendant, was to be paid for services rendered as an officer and director of the defendant out of the award for damages arising from the destruction of its plant and business by agents of the German Government in 1917 \u201cwhen, as and if\u201d such award was made. The award was made in 1941. The court in holding that the contract was not within the said: \u201cHere, the award might have been made and the contract performed within a year, even though the contingency seemed unlikely and even improbable. There did exist possibility of performance in law and in fact. That is sufficient. The circumstance that the award was not actually made within the year is not controlling. It does not render the agreement void and unenforceable.\u201d"], "id": "2adb3a2b-8126-438a-84cf-0c2edb5dd015", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["We agree with the IAS Court that when viewing the writings collectively, issues of fact exist with regard to material terms of the agreement and as to whether there was a meeting of the minds to formulate a valid contract, such as: what services Khazzam actually performed; whether he merely introduced Manzke to Shearson (i.e., a \"finder\u201d) or whether he performed marketing services for the fund; what Khazzam\u2019s role was after the fund was launched; whether Khazzam was entitled to compensation for the life of the fund *518or a shorter period; and whether Khazzam would be compensated based on \"revenues\u201d or \"fees\u201d and the parties understanding as to the definition of these terms, all of which are matters to be resolved at trial and which precludes summary judgment dismissing the affirmative defense (see, e.g., Berne Investors v Wechsler, 152 AD2d 804, 806; Shapiro v Dictaphone Corp., 66 AD2d 882, 884). Concur\u2014 Rosenberger, J. P., Asch and Tom, JJ."], "id": "2b444a18-465a-471a-95b5-1abd12242e6f", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["*412The promise to pay for this work was by parol; and it being a promise to pay the debt of another, it was void by the , unless it can be brought within the exceptions which take some such promises out of the operation of that statute. As to the work done by the order of Quin, it appears that it was delivered, and an order drawn for it on the defendant. He then promised to pay for it when he paid for the work that was done by the order of Beach."], "id": "de01ddf8-7858-476a-a13c-e30434401427", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": [". Only one of the cases cited by respondent, City of New York v Turnpike Dev. Corp. (36 Misc 2d 704 [Sup Ct, Kings County 1962]), actually supports respondents\u2019 position, but the court declines to follow it, in view of the Court of Appeals decision in Commission and the similar cases cited above. The other cases cited by respondents do not support their position, as they involved unsuccessful attempts to raise the by a party which was either not a true successor in interest to either party to the contract (Gracie Tower Realty Assoc. v Danos Floral Co., 142 Misc 2d 920 [Civ Ct, NY County 1989]), or a total stranger to the contract (Kaminsky v Abrams, 51 Misc 2d 5 [Sup Ct, NY County 1965]; Brooklyn Union Gas Co. v MacGregor\u2019s Custom Coach, 122 Misc 2d 287 [Civ Ct, Kings County 1983])."], "id": "23ebc4ee-63e8-4086-99b7-ccd58bbf4b12", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["In their various motions, the Sellers advanced the theory that the formal bid process, as set out in the Bid Documents and Confidentiality Agreement, controlled all of the relevant negotiations and, thus, a formalized PSA was necessary to create a contract that was binding on them. Accordingly, the Sellers filed, among other motions for summary judgment,4 a motion they term the \"Master Motion for Summary Judgment.\" The Sellers argued that LNO's contract claim was barred by the , that no enforceable contract for the sale of the Assets existed between the parties because there was no meeting of the minds or intent to be bound, that there were failures of conditions *38precedent, and that the alleged agreement was illusory. The Sellers also moved for summary judgment on the ground that the November 20, 2012 e-mail could not form the basis for a binding contract under the UETA because they did not agree to conduct business electronically and the e-mail lacked an electronic signature."], "id": "4535a735-2fd4-4290-b2a4-a8b96bf6c452", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In Prokop (p. 574) the foregoing considerations were held to justify a refusal to charge that \u201c if the jury believe the plaintiff\u2019s version that an agreement was made on September 22, but that plaintiff was to commence in the performance of that work on the following Monday, that they must find for the defendant under the .\u201d Accordingly a judgment for plaintiff based on the jury\u2019s verdict was unanimously affirmed."], "id": "789dc8e9-5178-4c88-945f-cdc5beb7c10c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The sole issue remaining' is the existence of an agreement and the appropriateness of the amount of the award. Delivery of a letter setting forth the fee and proof of receipt entitles the agency to a fee (see, Costello Assocs. v Standard Metals Corp., 99 AD2d 227, supra). While an agreement between an agency and an employee must be in writing, an oral agreement be*813tween an agency and an employer is enforceable and not subject to the (see, Career Blazers Agency v Corporate Graphics, 111 Misc 2d 47; see also, Howard-Sloan Legal Search v Todtman, Young, Tunick, Nachamie, Hendler & Spizz, 193 AD2d 404; Hunt Personnel v Hemingway Transp., 105 Misc 2d 626, 628). Further, where there is no express agreement as to the amount of the fees, the employment agency is entitled to recover on a quantum meruit basis (see, Career Blazers Agency v Corporate Graphics, supra, at 48) subject to the fee schedule set forth under subdivisions (5) through (9) of General Business Law \u00a7 185 (Career Blazers Agency v Corporate Graphics, supra, at 48-49; see also, Robert Half of N. Y. v Levine-Baratto Assocs., supra, at 170, citing Pilot Empl. Serv. v Afro Intl. Corp., NYLJ, Dec. 15, 1977, at 6, col 3 [App Term, 1st Dept]; Robert Half Personnel Agencies v Certified Mgt. Corp., supra, at 318)."], "id": "82ec15f5-b538-45b8-b581-142b4b57397d", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["*465In Schechner v. Zipser (89 N. Y. S. 2d 354, 355, affd. without opinion 277 App. Div. 843 [1st Dept]) the court said: \u201c The claim that the constitutes a good defense to the action because the writing sued upon does not state the consideration for the promise must be overruled. If the consideration had not been furnished in its entirety prior to the execution of the writing, the defendant\u2019s contention would be sound. Barney v. Forbes, 118 N. Y. 580, 23 N. E. 890; Standard Oil v. Koch, 260 N. Y. 150, 183 N. E. 278. However, where, as here no part of the consideration was still to be furnished at the time of the execution of the writing, the memorandum satisfies the statute notwithstanding the fact that it fails to mention the past consideration. In Drake v. Seaman, 97 N. Y. 230, 234, the Court of Appeals said: \u2018 It must show on its face what the whole agreement is so far as the same is executory, and remains to be performed, and rests upon an unfulfilled promise. \u2019 This language was cited with approval in Standard Oil v. Koch, supra, 260 N. Y. at page 154, 183 N. E. at page 156. \u2019 \u2019"], "id": "a886eb6e-4153-4dba-a50c-5f9cb387fbab", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["The case of Schieffelin, v. Carpenter, 15 Wend. 400, does not conflict with this view of the subject. It was there decided that a parol agreement to give a new lease to a third person, with the consent of the tenant, did not amount to a surrender by operation of law, although such third persons took possession in anticipation of receiving such new lease, and the landlord received rent from them; as the agreement itself was adjudged void under the , it was held not to amount to a surrender; and besides, there was nothing done in that case inconsistent with the relation of landlord and tenant between the owner and the original lessees. The acts of all the parties were to be construed and qualified by a reference to the executory character of the agreement under which they acted, and their mutual expectation that a new lease would be given and received."], "id": "69310d73-8021-46bc-93e6-e46b481f2875", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["*799STEAMBOATS. INDEX. 799\u2022 SUPPLEMENTARY PROCEEDINGS. 1. In an action, by the owners of a steamboat, against the owners of another boat, for negligence producing a collision; the plaintiffs cannot recover as damages the probable loss of profits which they might have realized from a return trip from a place, whither their boat was bound when injured by the collision. Hunt v. The Hoboken Land Improvement Co., 144 2. It is error to charge a jury, that the statute of this state, requiring steamboats when meeting each other to turn to the right (or to starboard) \u201c does not apply to steamboats crossing the river.\" Id. 8. It does apply whenever the two boats meet, whether approaching each other upon courses either directly or obliquely opposed. Id. 4. The general law of navigation prescribes the same rule. Id. 5. When the course of one boat is at right angles to that of the other, the question of negligence depends upon the particular circumstances of the case, and not alone upon the question, which turned first, if, under the circumstances, the boat that first turned from her course, turned in the wrong direction. Id. STORAGE. See Bailment, 1, 2. SUBSCRIBING WITNESS. See Evidence, 10. SUMMONS. See District Courts, 29, 30. Marine Court, 2, 10, 34, 36, 45. SUPPLEMENTAL ANSWER. See Landlord and Tenant, 3. See Practice, Discovery, 43. , Sheriff\u2019s Sale, 3, 7. SURETY. 1. A surety, in an action brought by his principal upon a money demand, may set up as a defence the recovery of a judgment against him, on his contract of suretyship. Hannay v. Pell, 432 2. Unless he has actually made some payment on account of his liability as such, a surety is not entitled to relief at law, and can only proceed in equity to compel the principal to make payment and the creditor to receive it. Id. 3. Yet, under the Code of Procedure, where the principal brings against the surety an action upon an account, in the form of an action at law, and the answer sets up the recovery against the surety of a judgment by the creditor and prays affirmative relief; the court, when it appears upon a finding of the facts by referees or otherwise, that the amount due on the account is less than the judgment, may adjudge that the plaintiff pay to the creditor the judgment deducting the amount so due from the defendant, and may provide that the payment by the defendant to such creditor, of the amount last mentioned, shall discharge the defendant from the plaintiff\u2019s claim. Id. 4. Where the defendant, upon the plaintiff entering into a contract with a firm for his employment as a clerk, executed to him an agreement guaranteeing that his salary at certain rates agreed upon should amount to \u00a715 per week; held, that the defendant\u2019s agreement was not within the , and was valid although the consideration was not expressed therein. Douglass v. Jones, 551 5. The guarantor being a silent partner in the firm, the modification by another partner, acting for the firm, of the contract of employment with the"], "id": "b179a4ab-5c88-47d5-bbf3-5c1548c18f30", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Hu answered the fourth amended complaint with a general denial and asserted numerous affirmative defenses to the contract claim. The cause of action for rescission, she alleged, \"is actually a cause of action for breach of contract [and] has already been dismissed with prejudice.\" Hu averred that she and Guan had no contractual relationship, and that the alleged contract violated the and is illegal, void, and contrary to public policy. Hu further alleged that if a contract did exist, she had no duty to perform because she did not receive an instruction to sell the property; and, because Guan failed to perform, he repudiated the contract and breached the implied covenant of good faith and fair dealing."], "id": "35d00666-2163-4f92-a922-f9b583cbd0bd", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["As a general rule, an express provision contained in an agreement to have that agreement governed by the law of a particular jurisdiction will be honored. (See Freedman v Chemical Constr. Corp., 43 NY2d 260, 265, n.) However, in that same footnote, the Court of Appeals went on to say that, \u201c[b]ut where, as with the , the issue arguably cannot be controlled by voluntary agreement, there is some question whether, in the absence of a reasonable basis for choosing the law of the jurisdiction designated by the parties, their choice of law will be honored (see Restatement, Conflict of Laws 2d, \u00a7 187, subd [d], par [a])\u201d. That is \u201c[t]he jurisdiction whose law the parties intended to apply, however, must bear a reasonable relation to the agreement (A.S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 381); and the enforcement of the provision applying a foreign rule of law must not violate a fundamental public policy of New York (see 8 NY Jur, Conflict of Laws, \u00a7 24).\u201d (See Gambar Enterprises v Kelly Servs., 69 AD2d 297, 303.)"], "id": "be5cb8ee-104b-4446-abda-712d28b48828", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["It has been held by the Court of Appeals of this State that it is a principle, universally recognized, that the revenue laws of one country have no force in another, and that the exemption laws, and the laws relating to married women, as well as a local , are not recognized in another jurisdiction, under the principles of comity. Marshall v. Sherman, 148 N. Y. 26; Morgan v. Neville, 74 Penn. St. 52; Kelley v. Davenport, 1 Browne (Penn.), 231; Ross v. Wigg, 34 Hun, 192; Ludlow v. Van Rensselaer, 1 Johns. 95 ; Skinner v. Tinker, 34 Barb. 333; Waldron v. Ritchings, 3 Daly, 288; Seigell v. Robinson, 56 Penn. St. 19."], "id": "8b927618-b235-4bca-94c7-50cb84176148", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The defendant moves, pursuant to rule 102 of the Rules of Civil Practice, to require the plaintiff to serve an amended complaint in which the causes of action will be made more definite and certain, and, further, pursuant to rule 107, for dismissal of the first and second causes upon the ground that the contract there set forth is unenforcible under the provisions of the ."], "id": "f096c387-187a-4c67-8733-3fc98cf6eedd", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff requests that we strike defendants\u2019 affirmative defense of the . Although plaintiff never moved in Supreme Court for this relief, we exercise our authority on appeal (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112) to search the record and grant plaintiff partial summary judgment dismissing this defense because it is clear that it presents no material triable issue of fact (see, Glick & Dolleck v Tri-Pac Export Corp., supra, at 441)."], "id": "901b7320-e051-4f50-9c49-752f90633a55", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Thus, according to the plaintiff, the consideration for the guarantee was his oral promise, definite in every respect, not to sue the principal debtor for 30 days upon condition that within such time the agreed weekly payments would be made to him. But the (Personal Property Law, \u00a7 31, subd. 2) requires that such a promise, being a consideration wholly executory and therefore contractual in nature, be stated in writing (Brodlie v. Fink, 275 App. Div. 1061). The written words \u201cto * * * continue credit \u201d, even if read as meaning \u201c to forbear to sue \u201d, do not open the door to parol evidence of the specific agreement testified to hy the plaintiff concerning the duration of the period of forbearance and the condition upon which such forbearance would be predicated. Moreover, the oral agreement upon which the plaintiff relies is a distinct variance from the provisions of the written guarantee, which left the plaintiff free \u201c from time to time, in its discre*623tion, to * * * continue credit to Keystone \u201d. This reserved discretion to forbear from bringing suit, which \u2018 \u2018 from time to time \u201d might or might not be exercised by the plaintiff, is no firm commitment, not even a conditional one, not to sue for 30 days. Certainly no such commitment is inferable from the language of the written guarantee. The absence from that writing of a frame of reference into which could be fitted parol evidence concerning the terms of the oral agreement for continuance of credit is no mere ambiguity. Also, it is reasonable to believe that an agreement so specific as that here relied upon would have been included in the writing itself (cf. Mitchill v. Lath, 247 N. Y. 377; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334)."], "id": "488851f5-21da-4350-a5ef-7684aab91b17", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In this court\u2019s opinion the said contention may not be sustained. The aforesaid arrangement involved a new party and, as alleged, did not condition the discharge of the original debtors upon actual and full performance by the new promisor ; on the contrary, it provided for a present discharge of said original debtors. The assent of the original debtors to this arrangement was not required, nor was the validity of the *969same affected by the fact that a substituted performance (in the form of painting services) was called for thereunder. In this court\u2019s view, said arrangement constituted a true novation and, as such, was and is a valid defense to the claim which the plaintiff now asserts against one of said original debtors. (See Schloss Bros. & Co. v. Bennett, 260 N. Y. 243; 6 Corbin on Contracts, \u00a7\u00a7 1297, 1299, 1300.) And in this connection, it may also be noted that an action based on a novation is not subject to the defense of the contained within the provisions of section 31 of the Personal Property Law. (Claggett v. Donaldson, 238 App. Div. 831.)"], "id": "80962825-ef75-46f6-9bdf-54b6fad1c55c", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["- he had a relationship with USA Swimming and its personnel; - his relationship with USA Swimming created a conflict of interest vis-\u00e0-vis his representation of Knutson; - he would not litigate against USA Swimming, and he had shared that information with USA Swimming during his negotiations on behalf of Knutson; - he had refused to represent Schubert in litigation against USA Swimming because he believed that would create a conflict of interest; - he had told USA Swimming's executive director that he did not want the dispute between Knutson and USA Swimming \"to escalate\"; - making her story public or taking it to the press would be a bargaining chip for Knutson; - Knutson might have an independent claim against Schubert; - he did not believe she could prevail in litigation against USA Swimming due to the ; *1093- USA Swimming had provided him with confidential information he had not shared with Knutson at USA Swimming's request; - he had told USA Swimming during the negotiations that Knutson was out of money; - the settlement agreement contained a release of Schubert and a confidentiality provision; - his representation that Knutson could reach the performance markers in the settlement agreement was not based on any independent research; - he had forwarded attorney-client privileged communications to USA Swimming during the negotiations for the settlement agreement; - he had withheld e-mails containing evidence of his conflicts of interest when Knutson requested her file from his office; and - Knutson might have been eligible for financial support through the Athlete Partnership Agreements or other sources without entering the settlement agreement. A substantial factor in Knutson's decision to enter into the settlement agreement was Foster's fraudulent concealment of the foregoing facts. The settlement agreement contained unattainable performance *486markers that led to the loss of financial support from USA Swimming and to feelings of despair, loss, and unhappiness. She suffered both economic and noneconomic damages as a consequence. Knutson's economic damages were her lost tuition and support benefits. Knutson's noneconomic damages were the emotional distress and pain and suffering she experienced due to the performance markers in the deal with USA Swimming."], "id": "ae48ced7-73c5-4da6-a693-f76513418b51", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["However, as a practical problem, it is impossible for her to return to her room, and thus avail herself of the agreement which was made. Implicit in this agreement is an intention to create a charge on the property for this special use, which could only be performed at the property, although as is naturally to be expected from these two women unlearned and unversed in the intricacies of the law, nothing was said between them about a life estate or trust estate in the property for the benefit of the plaintiff. The court feels that a helpless person situated as this plaintiff is, should not be left without a remedy. However, the agreement made is rendered unenforcible by section 242 of the Beal Property Law, which requires that either of said estates be created by an instrument in writing, excepting however, trust estates created \u201cby act or operation of law\u201d. This is the same exception contained in the original enacted by Parliament in 1677 and it has been construed since that time, both by courts in England and in this country, to cover both resultant trusts, where the law implies a trust upon the basis of the actual or presumed intention of the settlor and *796the so-called \u201c wrong rectifying \u201d or constructive trusts, which are frankly created without regard to the intention of the parties and often in direct contravention of the intention of a wrongdoer, in order to prevent an injustice."], "id": "f2439075-ee8d-4ef6-bfa3-ddd59140be72", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["*362The is an affirmative defense that that the AutoNation Parties had the burden to plead and prove. See Duradril, L.L.C. v. Dynomax Drilling Tools, Inc. , 516 S.W.3d 147, 158 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Though the AutoNation Parties pleaded this defense in their answer, they did not assert this defense in their summary-judgment motion. The AutoNation Parties' no-evidence summary-judgment grounds challenging the essential elements of Lindsey Construction's claims do not provide a basis for granting summary judgment based on the statute of frauds, which is an affirmative defense that may not be raised by the AutoNation Parties in a no-evidence summary-judgment ground. See Haven Chapel United Methodist Church v. Leebron , 496 S.W.3d 893, 904 (Tex. App.-Houston [14th Dist.] 2016, no pet.). The AutoNation Parties did not expressly present the statute of frauds as a ground in their summary-judgment motion; therefore, we may not affirm the trial court's judgment based on the statute of frauds. See Henkel v. Norman , 441 S.W.3d 249, 251 n.1 (Tex. 2014) ; Stiles v. Resolution Trust Corp. , 867 S.W.2d 24, 26 (Tex. 1993)."], "id": "98fa2a07-e7ea-4610-bb5c-144fd3c02feb", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Secondly, the defendant maintains that the letters sustaining the contract do not constitute writing or memorandum sufficient to satisfy the . The court, however, finds that there is adequate written evidence of the undertaking signed by the defendant. Furthermore the court does not regard this as a contract for sale within section 85 of the Personal Property Law."], "id": "cfd463e5-340d-4598-bd27-3319e308c945", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Contrary to the lower court\u2019s ruling, the is not an absolute bar to a determination that occupant is entitled to a life estate. Although the statute of frauds generally prohibits the creation of \u201c[a]n estate or interest in real property ... or any trust or power, over or concerning real property . . . unless . . . by a deed or conveyance in writing\u201d (General Obligations Law \u00a7 5-703 [1]), there is an exception to the writing requirement \u201cwhere there is part performance that is \u2018unequivocally referable\u2019 to an oral agreement\u201d (Spirt v Spirt, 209 AD2d 688, 689 [1994]; see General Obligations Law \u00a7 5-703 [4] [\u201cNothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance\u201d]). While the mere payment of money is not enough to constitute part performance, \u201cother acts, such as taking possession or making improvements, when combined with the payment of rent, may be sufficient\u201d (Tuttle, Pendelton & Gelston v Dronart Realty Corp., 90 AD2d 830, 831 [1982])."], "id": "a4610eeb-a05a-4e06-b000-c66bb0172733", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Nor are we persuaded that defendants are entitled to specific performance of the oral agreement between Conklin and Urbanski based upon the doctrine of part performance. It is well settled that \"[a] party\u2019s partial performance of an alleged oral contract will be deemed sufficient to take such contract out of the only if it can be demonstrated that the acts constituting partial performance are ' \"unequivocally referable\u201d \u2019 to said contract\u201d (Curanaj v Security Pac. Natl. Bank, 202 AD2d 856, 857, quoting Burns v McCormick, 233 NY 230, 234). Here, although defendants\u2019 acts of planning and constructing the water storage tank could refer to the agreement they seek to enforce, i.e., Conklin\u2019s alleged gift of real property, those acts are equally consistent *615with plaintiffs claim that defendants were obligated, in exchange for the conveyance of the parcel, to perform by supplying water to the remaining lands. We also reject defendants\u2019 assertion that plaintiff should be equitably estopped from asserting the Statute of Frauds as a defense."], "id": "6efbcceb-9310-43d8-a3db-bbb669cfab58", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Since plaintiff contends that the contract obligated defendant to pay commissions so long as customers procured by him place orders with defendant, the applies. (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846; Martocci v. Greater N. Y. Brewery, 301 N. Y. 57; Zupan v. Blumberg, 2 N Y 2d 547.) While plaintiff as a commission salesman may be entitled to discovery of books and records for the purpose of computing damages, the question of damages will never be reached if memoranda sufficient to satisfy the statute do not exist. Accordingly, discovery will be allowed for the limited purpose of ascertaining whether a sufficient memoranda exists. For that purpose discovery may be had of the items designated (a), (b) and (c) above, but of books of account only as they relate to any account with reference to plaintiff maintained on defendant\u2019s books. The foregoing is, of course, without prejudice to a further application should plaintiff, through discovery, be able to produce memoranda sufficient under the Statute of Frauds."], "id": "01cb8aba-d62b-4d15-9a29-b7c5dbe06aec", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In Steiner v. Fenster (51 N. Y. S. 2d 814) the court granted plaintiff\u2019s motion to strike out the defense of the in an action to recover for commissions based on an oral agreement appointing plaintiff as defendant\u2019s sole and exclusive sales agent and distributor throughout the United States. The \u00a1agreement was to be \u2018 for the duration of the war between the United States and Germany and/or Japan \u201d. The court said '(p. 815): \u201c At the time the contract herein was made, the end of the war between the United States and Germany and/or Japan was a possible event which might have transpired before the end of the year. The contract could, therefore, have been performed within the year and accordingly is not within the Statute of Frauds.\u201d"], "id": "5c4a8cc7-4a76-45c0-b73e-36f445526093", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In Storer v. Ripley (282 App. Div. 950) the court held that an oral agreement that the plaintiff should be a director of a corporation as long as he and a third person owned stock in \u25a0the corporation was not within the . The court said (p. 951): \u201c The agreement was not one which, by its terms, did not admit of performance within one year. The stock, the ownership of which measured the obligation to continue the directors in office, could have been disposed of within one year; and the contract was thus possible of performance within that period and so not within the proscription of the Statute of Frauds (Personal Property Law, \u00a7 31, subd. 1).\u201d"], "id": "11228ed0-31d4-45b5-ba96-aa0264c3817f", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Here, Zakk's allegation that he fully performed his obligations under the alleged oral contract at issue is enough to avoid the . Therefore, in finding that Zakk's breach of contract and related claims were barred by the statute of frauds absent alleged facts showing defendants were estopped to assert the statute, the trial court erred. We also conclude the trial court erred in finding the third amended complaint was a sham pleading, and that the statute of limitations barred his quantum meruit claim. However, we conclude the trial court did not abuse its discretion in dismissing the promissory estoppel claim. Accordingly, we affirm the judgment to the extent it dismisses Zakk's promissory estoppel claim and reverse the judgment as to his remaining claims."], "id": "a7742f05-0564-4eda-aa6a-657e14f8176c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["In the case of Schubert v. Bowman (9 Misc 2d 111, 112), the court, in denying defendant\u2019s motion for an order dismissing the complaint in an action brought by a vendee for specific performance of an alleged contract for the sale of real property, stated: \u201c Prior to the decision rendered in Crabtree v. Elisabeth Arden Sales Corp. (305 N. Y. 48), the courts were not in agreement on the issue as to what documents could be considered in determining the existence of a contract or memorandum for the sale of real property meeting the requirements of the . That case flatly stated the law to be that writings signed or unsigned, provided that they clearly refer to the subject matter of the transaction, and may be so established by *750competent evidence, may be read together.\u201d (See, also, Sokol v. Terry, 43 Misc 2d 168.)"], "id": "7339361f-db01-4178-a36d-69bb4a466faf", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The second separate defense will also be permitted to stand. In Smith v. Graham (279 App. Div. 1051), in what appears to have been a somewhat similar situation (although I do not have the complaint in that case before me), the court held that the defendant should not be given leave to plead the defenses of res judicata and the . Here, however, these defenses were pleaded at the outset. It is true, as the court pointed out in the cited case, that if the complaint \u201c be one in quantum meruit, the defenses have no logical place in the answer \u2019 \u2019 but added \u201c If on the trial it should appear that plaintiff is attempting to recover on the contract rather than for the reasonable value of his services, an amendment to the answer would be allowable to present appropriate defenses.\u201d Because of the inclusion in this complaint of the words \u2018 \u2018 special instance and request \u201d and because it is possible that the plaintiff may directly or by indirection seek to import into the ease the contract he has tangentially alleged, I think it is safer and fairer to the defendants to let them have the full benefit of their affirmative defenses. They may need them at the trial, and their retention in the answer will serve as a clear reminder that plaintiff will not under any circumstances recover under any contract here,"], "id": "5f0b65fb-757a-4611-a690-99ded9a27251", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The court is of the opinion that the agreement relied upon by the plaintiff was entire and indivisible and that defendant\u2019s performance of a part thereof does not have the effect of taking it out of the and thus rendering enforcible that portion wherein plaintiff claims that defendant promised to pay her on demand the entire unpaid balance due on the mortgage if he failed to pay the monthly installments, thereby causing the bond and mortgage to be in default. The entire agreement was originally unenforcible and it is no less so as to the unperformed portion thereof. (De Beerski v. Paige, 36 N. Y. 537, 539; George v. Dobson, 261 App. Div. 447, affd. 287 N. Y. 675.) This \u201c is not a case of fraud. No confidential relation has been abused (Goldsmith v. Goldsmith, 145 N. Y. 313; Wood v. Rabe, 96 N. Y. 414). No inducement has been offered with the preconceived intention that it would later be ignored * * *. The most that can be said against * * * [the defendant] is that he made a promise which the law did not compel him to keep, and that afterwards he failed to keep it \u201d. (Burns v. McCormick, 233 N. Y. 230, 235.)"], "id": "e10f4a97-318e-476d-b859-f8bba11e309d", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The agreement, however, is attacked by the learned counsel for defendant upon the ground that it was not in writing, and, therefore, was absolutely void under the . This position is not tenable, for the reason that it clearly appears from the evidence that there was a full and complete performance of the verbal agreement on the part of the plaintiffs. They paid $2,000 in cash at the time the conveyance Was made. The property was taken subject to two mortgages, amounting to $11,000, interest on which mortgages the plaintiffs paid until such time as they paid the mortgages in full and had them discharged of record. All this was done before their father died. A parol agreement in respect to land cannot be avoided in equity because not in wilting, where there has been a part performance of it. Smith v. Smith, 51 Hun, 164. Part performance by the party seeking to enforce the contract is sufficient. Freeman v. Freeman, 43 N. Y. 39. The Statute of Frauds does not apply to this case."], "id": "21bdb152-3804-487c-ba91-598c59b6d249", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Yazdani's cited cases do not support that further timing or manner details were essential to this contract. See Campbell v. Nw. Nat. Life Ins. Co. , 573 S.W.2d 496, 498 (Tex. 1978) (oral agreement at issue granting option to purchase apartment complex was subject to ; case involved right to recover in quantum meruit independent of contract); Botello v. Misener-Collins Co. , 469 S.W.2d 793, 795 (Tex. 1971) (purchase of land agreement was subject to statute of frauds; also, parties agreed $5,000 of $200,000 purchase price was to be paid in cash without agreeing as to time or manner of payment of remaining $195,000).8"], "id": "cd4f4d77-4ab2-4555-bac4-76d27f76ae7d", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Admitting the agreement set up in. the answer to be valid and binding on the plaintiff, the defendant states good ground for an' allowance, by way of recoupment or counter-claim, for such damages as he may be able to establish by legal evidence, growing out of its breach by reason of the omission on the part of the plaintiff *554to remove the poor-house within the specified time. It is urged by the respondent's counsel that the agreement is void, because of . the want .of power .in the plaintiff to enter into it, in ,so far as it relates to the provision sought to be enforced by the defendant, on which the alleged breach is.based. .This .objection is answered by the decision,in De Groff v. The American Linen Thread Co. (24 Barb., 376; same case an appeal, 21 N. Y., 124). It was there held, that even if a corporation has no power to enter into the contract, viewed as a mere corporate power, yet having- undertaken to do so, and having accepted performance by .the other party, it cannot .be permitted tq set up an excess of. authority, in excuse of its own non-performance. It was valid, too, as a .contract for the sale, of lands, although by parol, as it had been performed by the defendant, by the payment of the money agreed to be paid on and prior to July 1st, and .on. that day giving the bond and mortgage as he had agreed. Besides, the action is brought in enforcement of the bond given pursuant to the contract of, sale ; hence the plaintff cannot Ire permitted to. disjiute its validity, basing an objection either on its own want of power to enter into it, or on the . , The agreement on the facts stated in the answer was binding qn the plaintiff. , .........\u25a0"], "id": "93c76376-fcb5-4497-bcec-76275121b7da", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Upon this state of facts, plaintiff\u2019s counsel conceded that if the original arrangement as to plaintiffs employment was for a longer time than one year, it was void under the . But he claimed that it was a good contract for a year at all events, and being good for that period, and plaintiff having gone on under it not only for that length of time? but also for part of another year, the presumption of law is? that theesecond year was upon the same terms \"as the first, and that defendant was bound to keep him during the whole of the second year, unless there was cause for his discharge."], "id": "f8d33cca-ecc6-441e-829b-e482a9d2ccd2", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The claim of the defendant upon this appeal is, in brief, that there was no agreement relative to the sale of the real property in question to satisfy the requirements of the , or the provisions of the Real Property Law. And the contention of the plaintiff is that the transaction was an executed one to which the Statute of Frauds is not. applicable within the principle of the case of Thomas v. Dickinson, 12 N. Y. 364. In the case cited the plaintiff and defendant entered into a verbal agreement by which the plaintiff was to transfer to the defendant his interest in two lots of land possessed by him under contracts for their *461purchase, and the defendant was to convey to the plaintiff in fee a parcel of about eighteen acres of land, and was to pay a sum of money and transfer a debt. The plaintiff \"transferred the contracts and surrendered the possession of the lots of land, and the defendant conveyed to the plaintiff the eighteen acres of land; the money was not paid to the plaintiff, nor the assignment of the debt executed. As \u00a1stated by Johnson, J.: \u201c Thus the. whole contract, save in a single particular, was performed by the parties to it, notwithstanding its invalidity; all that remained to be done to complete its performance was that the defendant should make the transfer of the Campbell debt. The plaintiff had fully performed. * * * It thereby ceased to be a contract for the sale of lands or an interest in lands and became .a mere agreement to pay for lands conveyed. As such it was not within the statute of frauds.\u201d"], "id": "3052c08d-ce42-46a5-be11-393f063637da", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["What has been said about the facts, as to which there can be no serious dispute, makes it self-evident that the guaranty was given to induce a resumption of deliveries and an extension of credit by the blade company, and hence by fair implication the guaranty states the consideration and meets the requirements of the in this respect (Sun Oil Co. v. Heller, 248 N. Y. 28; Standard Oil Co. v. Koch, 260 id. 150, 153) and in all other respects as well. Notwithstanding its brevity and informality it completely and accurately evidences the agreement the parties actually made."], "id": "4cce231f-ee5c-45e0-9cd4-9771ff90a73f", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Respondent\u2019s position is that Gracie Tower lacks standing to raise the . Maloof had Kahn\u2019s oral authority to enter into a renewal lease with respondent. Since Gracie Tower is not a party to this oral agreement, but rather \"a third-party stranger to the oral contract\u201d it may not as a matter of law interpose the Statute of Frauds (Brockport Developers v 47 Ely Corp., 82 Misc 2d 310, 314 [Sup Ct, Monroe County 1975]; Brooklyn Union Gas Co. v MacGregor\u2019s Custom Coach, 122 Misc 2d 287 [Civ Ct, Kings County 1983]; Kaminsky v Abrams, 51 Misc 2d 5 [Sup Ct, NY County 1965])."], "id": "63da5d1e-b7b2-47d1-a83a-4b90291b78c5", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Furthermore, it may be that the defendant Terry would be liable, as claimed by the plaintiff, pursuant to an alleged subsequent oral guarantee since if the promise bottoming the guarantee were original, the would not apply. (Bulkley v. Shaw, 289 N. Y. 133; Frosco Food Club Plan v. Dennison, 18 Misc 2d 241.) However, whether the promise was original or collateral is a question of fact to be resolved upon the trial. (Rosenkranz v. Schreiber Brewing Co., 287 N. Y. 322.) Finally, a determination as to whether or not the defendant Terry committed a fraud in incurring the contractual liability herein must await the trial since the Dun and Bradstreet report submitted by the plaintiff with respect to the defendant Terry\u2019s financial condition, although compiled in 1962, concerned Terry\u2019s financial condition since January, 1960, covering the period in which the alleged contractual liability was incurred."], "id": "7492dfee-72b6-4de7-bc0a-ffe918fbff52", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["On appeal, tenant argues that the alleged oral modification of the written lease is precluded by the written lease itself and, in any event, any alleged five-year oral lease, whether as an extension of the preexisting written lease or as a stand-alone oral agreement, is barred by the . Landlords respond, among other things, that partial performance is an exception to the statute of frauds (General Obligations Law \u00a7 5-703 [2])."], "id": "043fe190-bcee-40be-be8c-cf79f6c678c8", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Although this arrangement was oral and related to a term exceeding one yeai\u2019, to wit, for one year and one month, it operated, with the acts of the parties under it, to discharge the defendant from a claim for future rent, as was, in fact, expressly agreed. It was, in effect and in fact, a surrender of the remaining term \u201c by act or operation of law.\u201d Such surrender was admissible under the (3 R. S. [7th ed.], 2326, \u00a7 6), inasmuch as a surrender \u201c by act or operation of law \u201d is expressly excepted from it. This exception left such surrender to remain as at common law. It is important, of course, that it be established, that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place. But such was just this case. In Smith v. Niver, Harris, J., says: \u201cIt is undoubtedly conclusively settled by authority that a second lease, to operate as an effectual surrender of the first, must itself be effectual to vest in the lessee the term it professes to convey, and must bind him to a'performance of its conditions on his part.\u201d The learned judge was here speaking of the precise case stated by him, a case unaccompanied by acts of the parties, which, with the agreement, would carry with them an element of estoppel, for in the next sentence he adds: \u201c But it has never, I apprehend, been decided that a lessor who has consented to a change of tenancy, and permitted a change of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can afterwards charge the original tenant for rent accruing during the *433occupation of the new tenant.\u201d And, further, \u201c if the lessor, in fact, \u25a0consent that the lessee shall cease to be liable and accepts a substituted tenant, the first tenant must be held to be discharged. The lessor has his remedy against the new tenant, and is estopped from, denying a legal surrender of the first lease f and he repudiates the \u2022doctrine to the contrary of this, sought to be maintained on the strength of Schieffelin v. Carpenter (15 Wend., 400), as to which he says, if this case is to be regarded as an authority, therefor, \u201c I think it is in that respect wholly unsupported, either by principle or adjudged cases.\u201d The remarks of the learned judge above quoted .are not, as was supposed by the learned referee, to be limited in their application to a case where the substituted tenancy was for a period not exceeding one year, for they were made with reference to a surrender \u201cby act or operation of law,\u201d which, as .above suggested, is excepted from the statute, and is left to have effect as at common law, hence would, when proved, apply to a longer as to a shorter term alike. In Beall v. White (94 U. S. R., 389), it is said by IVEr. Justice Oliffoed that \u201ctext writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or hy operation of law, when the parties without express surrender do some act which implies that they have both agreed to \u25a0consider the surrender as made,\u201d citing both Woodfall and Taylor \u2022on Landlord and Tenant in support of his remarks. This subject is considered quite elaborately, and with clearness and precision, in Bingham on Real Estate (p. 260), where the distinction between a surrender by express words and a surrender by implication, that is, by operation of law, is marked and- commented upon'. It is'there said that \u201cthe material point of such an issue is one of \u25a0evidence, whether the intention of both the lessor and the lessee, is proved by words only, and not by written evidence) as prescribed in the statute of frauds, or by their \u2022 conduct and actions. If it is proved by words only, the agreement is within the statute of frauds, 'and cannot operate as a surrender. If their intention to surrender is made plain by their conduct and actions, in a way which permits of no mistakes or misrepresentations, by means of *434the perjury or the misunderstanding of witnesses, the agreement to\u2019 surrender is so proved as not to be within the statute of frauds, but amounts to an \u2018 act or operation of law,\u2019 as that phrase is used in the statute, and effectuates a surrender,\u201d and in support of this doctrine many cases are there cited. (See, also, Blumenthal v. Bloomingdale, 100 N. Y., 558.) In Matthews v. Sawell (8 Taunt., 270) it was held that a mere parol surrender of a written lease having more-than three years to run was void under the statute of frauds, and consequently the lessee was not discharged therefrom. In this case importance was given to the fact that the plaintiff had not assented to any change of tenancy. Dallas, J., said: \u201c If the plaintiff had in fact consented that the defendant should cease to be Hable, and had gone beyond that and had accepted a substituted tenant, I should have-thought the defendant discharged.\u201d (See, also, remarks of the other judges to the same effect.) The case supposed by the learned judge, as above given, is quite like the present. It is laid down in 4 Wait\u2019s Actions and Defenses, 212, after speaking of express surrenders-touched by the statute of frauds, that \u201c a sun-ender by operation of' law is effected by some- less formal act of the parties, from which a mutual agreement by them to consider the surrender as made may be implied; some aot of notoriety which estops them from denying that it has taken place; \u201d and it is added: \u201c Thus any agreement between the parties that the term shall be put an end to, wMch is un equivocally acted upon by both, is such surrender; \u201d and, further, \u201c an actual and continued change of possession by the mutual consent of parties is a surrender by operation of law, whether the-possession is delivered to the landlord himself or to another for him; \u201d and, still further, \u201c acceptance of possession by the landlord and his leasing the premises to another, or accepting an, under tenant or an assignee as his tenant, followed by an actual possession by the latter, also operates as such a surrender.\u201d"], "id": "4db7027a-f2ea-4db6-b8a1-e70a2c559666", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["No contractual liability can be imposed upon the State except in the manner prescribed by law. The statute in question. pro: vided that no contract over a certain sum shall be deemed executed or effective unless the same is first approved by the comptroller and filed in his office. Such provisions can not be waived by any of the officers of the State. (Belmar Contracting Co. v. State of New York, 233 N. Y. 289; New York Central R. R. Co. v. State of New York, 183 Misc. 815.) In the Belmar case .(supra) the Court of Appeals held: \u201c There is a like situation here. Section 130 of the Highway Law clearly provides- that the execution of a formal written contract after its approval by the comptroller is essential. This is the basis of the liability of the state. None of its officers may impose upon it a contractual obligation. except in the manner prescribed. We may not ignore the restrictions and limitations with which the legislature has chosen to surround the expenditure of public moneys. They are wise and should be enforced. The state has chosen to- enact something similar to the for its own protection. Those dealing with it do so knowing this fact and at their own risk. If there is no contract there is no liability. However inequitable the conduct of the state may be it has said that it shall only be responsible upon one condition and consequently the claimant \u00ab must show that that condition has been complied with. Nor may this rule be evaded any more than the provisions of the Statute of Frauds may be evaded on any theory that while the contract itself is unenforcible the contract to make this contract, is valid. (Dung v. Parker, 52 N. Y. 494.) Had the State of New York refused entirely to execute the contract it incurred no liability. Equally true is this if it merely delays in its *649execution. (South Boston Iron Co. v. United States, 118 U. S. 37.)\u201d"], "id": "b05228b0-f2a8-4ad6-81a5-936cae123f6c", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The same underlying principle runs through the other authorities upon which the special guardian and the referee place reliance. In Mutual Life Ins. Co. v. Holloday a husband deeded. certain land to his wife on a parol agreement that she should devise it to him in her will. She actually executed such a will. She later made another will leaving it to others. It was held that the agreement although originally void by reason of the , had become fully executed by the transfer and the execution of the will, thus effectually preventing the transferee from making a valid subsequent will diverting it to others. In Lyons v. The Maccabees a prospective husband induced plaintiff to marry him in reliance upon a parol agreement, which he fulfilled, to make her the beneficiary under a certain policy of insurance. It was held that the agreement was consummated by the marriage and designation of beneficiary and that the insured could not thereafter validly substitute another payee of the proceeds of the policy. Miller v. Sire presented substantially identical facts except that the inducement for the marriage was an assignment of a mortgage, which took place substantially simultaneously with the marriage."], "id": "e0849d68-0b01-4f2e-bb5a-034385270459", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Eorbearance to sue by the creditor, for a certain time, or generally, without specifying any time, is a good consideration to support a promise to pay the debt of a third person, if properly expressed in the writing. 4 John. 237, And it seems that if. A, verbally request a merchant to credit another person for goods, and he do so, the past consideration is sufficient to support a written contract, afterwards formerly signed by A, Vid. Fell on Merc. Guar. 39, 40, 260. And where you refuse to give credit to A. for goods, till he gives *360-1you a promissory note, stating for value received, and I write under the note, \u201c I guaranty the above,\u201d and sign my name to it, upon which you let A. have the goods; although this is a collateral undertaking, upon which, if by parol, I should not be bound, yet my written guaranty shall bind me; for, though it be true, that no consideration is directly expressed by me for my undertaking, yet it shall be referred to the value received, mentioned in the note of A.; and being all one transaction, there is thus a sufficient consideration to be gathered from the face of the instrument, to sustain my engagement within the meaning of the . 8 John. 29. Such a paper imports one original entire transaction; for a guaranty of a contract implies, from the force of the term, that it is a concurrent act, and part of the original agreement. Id. 40, per Kent, Ch. J. Hence, the plaintiff may declare if he chooses, on the contract itselfj without troubling himself about the original consideration, and recover as in ordinary cases, by a simple proof of the instrument."], "id": "422a6875-5818-4bef-a348-6ec208209ace", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The is a shield which a party may use or not for his protection, just as he may use the Statute of Limitations, the statute against usury and that, against betting and gaming. Crane v. Powell, 139 N. Y. 379. Hence it follows that the defendant Smith, when he signed the. counterpart'of the lease in evidence, waived the statue of frauds- in this case,- by admitting the lease to b\u00e9 signed and sealed by the lessors."], "id": "9120a636-c6f1-460d-9b8f-f118bf74c73d", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Former section 282 of the Real Property Law relied upon in Brody v Rhoads (33 Misc 2d 699, affd 15 AD2d 561) was repealed effective September 27, 1964 by subdivision 7 of section 19-101 of the General Obligations Law and its provisions are incorporated in section 15-301 of the General Obligations Law. As the statute is inapplicable, the contract for the purchase and sale can be terminated orally. Apart from this statute, a paroi discharge or termination of a contract for the purchase and sale of land is valid. The does not relate to an agreement to abandon or rescind a contract for the sale of land. (56 NY Jur, Statute of Frauds, \u00a7\u00a7 156, 159; 4 Williston, Contracts [3d ed, 1972], \u00a7 592.) The complaint must be dismissed with costs."], "id": "a1396f1d-6e2f-47f3-9671-d4e12dd27f90", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["The learned counsel for appellants urges one ground for reversal, which, he claims, arises from the refusal of the court below to charge, in behalf of defendants, the following request: \u201c If the contract was made on the seventh or eighth of January, as testified to by Mr. Pontier, the plaintiff cannot recover, even if it had been a contract for a year; that such a contract would be void under the .\u201d"], "id": "0778b996-64b2-414e-8784-90c69fe77d67", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["*403Without reference to the sufficiency of the evidence to establish the plaintiff\u2019s alleged oral contract it is clear that she cannot prevail on this appeal. The action is at law and not in equity. The contract to make compensation in real estate not being in writing is void under the , and whatever relief might be granted the plaintiff in an action in equity the court is powerless to grant relief in this action beyond what the trial justice has already granted. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], \u00a7\u00a7 259, 270; Banta v. Banta, 103 App. Div. 172; Ludwig v. Bungart, 48 id. 613; Matthews v. Matthews, 133 N. Y. 679, 80 Hun, 605; Stanton v. Miller, 14 id. 383, affd., 79 N. Y. 620.) The trial justice, therefore,, awarded the plaintiff the most favorable judgment to which under the pleadings and evidence she was entitled."], "id": "9c831c34-bf24-4c51-ab4e-9545db60bd40", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["In conclusion, I refer to the case of Thompson v. Blanchard (3 N. Y. [3 Comst.], 337), in which it was held by the court of appeals that an undertaking required by statute to be entered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal; and that if it could be said that such an instrument would not be obligatory by the , the very obvious answer is, that the legislature of 1848 had the same power to restore the *319common law, as to this class of securities, that their predecessors had to abolish it."], "id": "7883ab25-6011-4b9d-8a14-246515cd66b1", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Perhaps it should be observed at this point that defendant\u2019s denial of liability to Kidder Peabody is based not only on the , but also on certain factual grounds to be passed on by the jury under proper instructions at the close of all the evidence: \u2014 that there was neither contract nor any understanding on the part of defendant that it was the party which was to compensate Kidder Peabody for its services; that, after the parties had failed in two attempts to agree, Kidder Peabody abandoned this deal and acted for other and conflicting interests; and that the merger, ultimately effectuated about three years after the original introduction, was not the result of Kidder Peabody\u2019s services but was the result of independent intervening-factors."], "id": "c783ab67-b720-4db5-b195-72b27b1ed8f0", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Even if the decedent had consented to the transaction under some oral agreement or declaration of trust, the circumstances attending the whole matter are sufficient to constitute a constructive trust which a court of equity will recognize and enforce despite the provisions of the (Real Prop. Law, \u00a7 242) or of its extension (Real Prop. Law, \u00a7 259) or of the statute which abolished, with specified exceptions, the resulting trusts recognized and enforced at common law (Real Prop. Law, \u00a7 94). Equity will not permit a statute to be used as an instrument for either the perpetration or the perpetuation of a fraud, but will grant relief whenever a person, through the influence of a confidential relationship, acquires title to property which he cannot conscientiously retain adversely to the interest of the person who placed confidence and trust in him, or whenever the abuse of a confidential relation leads, without any writing, to the implication of a trust. (Wheeler v. Reynolds, 66 N. Y. 227, 237; Wood v. Rabe, supra; Goldsmith v. Goldsmith, 145 N. Y. 313, 318; Sinclair *125v. Purdy, 235 id. 245, 252; McKenna v. Meehan, 248 id. 206, 214; Foreman v. Foreman, 251 id. 237, 241; Fraw Realty Co. v. Natanson, 261 id. 396, 401, 411; Herrmann v. Jorgenson, 263 id. 348, 355; Foote v. Foote, 58 Barb. 258, 262; affd., sub nom. Foote v. Bryant, 47 N. Y. 544, 550; McClellan v. Grant, 83 App. Div. 599; affd., 181 N. Y. 581; Gallagher v. Gallagher, 135 App. Div. 457, 463; affd., 202 N. Y. 572; Matter of Michelbacher, supra; Irving Trust Co. v. Reikes, 228 App. Div. 510, 513; Isquith v. Isquith, Nos. 1, 2, 229 id. 555, 561; Matter of Van Muffling, supra.)"], "id": "008fde57-b6bb-4aaf-9253-d551846bf43a", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff\u2019s argument assumes that the New York is substantive, rather than procedural. This question has not yet been settled (see Rubin v. Irving Trust Co., 305 N. Y. 288) and need not be passed upon here. Even if our statute is substantive, this court would not apply such a mechanical rule to the facts of this case, for in so doing, it might allow the enforcement of a contract which is unenforcible where made and where it was to be performed and which would have been unenforcible in New York had it been made here. Therefore, the first cause of action must be dismissed."], "id": "e72586af-a044-4b97-ad68-ae27fcaed6f6", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Notwithstanding the foregoing, the court notes that the doctrine of part performance is itself subject to an exception that precludes its application here. Significantly, it has been held that where an action \u201cis pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the defense\u201d (Zito v County of Suffolk, 106 AD3d 814, 816 [2d Dept 2013]; see also Sparks Assoc., LLC v North Hills Holding Co. II, LLC, 94 AD3d 864, 865 [2d Dept 2012] [part performance may be sufficient in some circumstances to overcome the statute of frauds, \u201cbut only in an action for specific performance\u201d]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010 [3d Dept 2009]; Farash v Sykes Datatronics, 90 AD2d 965, 965 [4th Dept 1982] [\u201cequitable claim of part performance cannot be applied in an action at law\u201d]; 73 Am Jur 2d, Statute of Frauds \u00a7 296 [\u201cdoctrine of part performance is purely an equitable doctrine, unrecognized at law, and accordingly will not sustain an action at law based on a contract within the Statute of Frauds. Thus, the part performance exception to the Statute of Frauds is inapplicable in a suit where only money damages are sought\u201d]).6"], "id": "7d2435c7-4cc4-4b90-95b8-c464ca610c8c", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["It ought to be constantly kept in mind, that the conflicting claims of the parties here, did not arise whilst the power of revocation existed. That power was completely extinguished by the deed of 1800, and before the respondents acquired any interest in the subjects embraced in those, deeds. There can be no doubt, but that at that time (May, 1800) an original assignment might have been legally made, giving to J. B. Murray all the claim now set up. If so, there could be no good reason against his then taking a rati*588fication, or confirmation, of any prior defective assignment\u00bb In the case of Tarbuck v. Marbury, (2 Vern. 510.) so much relied on for setting aside these assignments, it was a judgment creditor who was setting up his claim against the deed, which was set aside, because the power reserved to the grantor to mortgage and charge the estate with what sums he thought lit, was considered as amounting in effect, to a power of revocation. Where the creditor is pursuing his debtor with a judgment and execution, or in any other manner, to enforce payment of his demand, an assignment of the debtor\u2019s property, containing a power of revocation, may very well be considered as made to \u201c delay, hinder, or defraud creditors,\u201d according to the language of the . But I do not see how it could, in any sense, be said to delay or hinder a creditor, who was taking no measures to enforce payment of his demand, as is the case now before us. For any thing that appears, all the creditors of Robert Murray 4r Co. were satisfied with the assignment, and the provision there made for the payment of their debts. This is an im-. portant feature, in which this case is distinguishable from the one of Clark v. Hyslop, decided in the Supreme Court, and on which so much reliance has been placed. Clark there was a judgment creditor, and had issued an execution against Tiis debtor, which was levied on the property 'assigned to Hyslop. This levy was made at a time, too, when by the very terms of the assignment, the property was not held under it, that is, after some of the creditors had refused to come in and accept of the terms proposed, and be'fore any new trusts were declared, pursuant to the provisions in the assignment. It was with great propriety there said, that locking up the property in this manner was decaying and hindering creditors. The observations of Lord Ellenborough, in Meux, qui tam. v. Howell, (4 Term Rep. 14.) would seem to show that no creditor could be considered as delayed or hindered, within the sense and meaning of the statute of frauds, except such as were taking some measures to recover their debt. He says further, that the statute was meant to prevent the operation of deeds, &e. fraudulent in their concoction, and notmerely such as, in their effect, might \u2022delay or hinder other creditors. (1 Vesey, Jun. 160.)"], "id": "9cb3aacf-6004-4512-a30f-8d81bad70855", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Defendant\u2019s reliance on Schoenfeld v Ochsenhaut (114 Misc 2d 585 [Civ Ct, Kings County 1982, Saxe, J.]) is misplaced. In that case, the plaintiffs contracted to pay the funeral expenses of an elderly neighbor who apparently left no surviving relatives. After the funeral, the decedent\u2019s brother surfaced and allegedly promised the plaintiffs that he would pay the funeral costs, which had not yet been paid. The brother never followed through on that promise, and he was later sued by plaintiffs. Relying on the , the court ruled that, even if the brother had promised to pay the funeral bill, the promise was unenforceable because it was not reduced to writing."], "id": "ca00f772-fbc1-4faf-8298-dd51aa260f1e", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["The complaint made the transactions an arrangement to \u201cmanufacture for\u201d defendants articles (not yet in use) of a certain sort prescribed. This is not a sale in prcesenti, within the , but an agreement to do work and supply the material thereto. Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. In such cases there exists an implied warranty that the articles will be free from any latent defect growing out of the process of manufacture, and the rule of \u201ccaveat venditor\u201d governs in respect thereof; but as to latent defects in the \u201cmaterials\u201d used, proof or direct inference of the manufacturer\u2019s knowledge of such latter must be affirmatively shown on the vendee\u2019s part. Hoe v. Sanborn, 21 N. Y. 552, approved in Bridge Co. v. Hamilton, 110 U. S. 114, 3 Sup. Ct. Rep. 537; Howard v. Hoey, 23 Wend. 350. However, a warranty of \u201cfitness\u201d of the ordered chattels for any special, known, or supposed use or purpose is not implied, but the same must be particularly bargained for. Bartlett v. Hoppock, 34 N. Y, 118. The title to the respective articles, of course, remains in such manufacturer until the legal \u201cdelivery\u201d and approval of the finished article. Kein v. Tupper, 52 N. Y. 550, 553, 555; Tompkins v. Dudley, 25 N. Y. 273, 274. Meanwhile no action lies for the contract price. 52 \u00d1. Y. 555. As regards the \u201ccounterclaim,\u201d there was no proof offered, however, that the first lot as delivered was not made equal to the \u201csample,\u201d No. 260; and such counter-claim was properly disregarded by the court, as unproven. Beck v. Sheldon, 48 N. Y. 365. But as to the second lot of yarn. Before any thereof had been shipped the purchasers duly stopped all further \u201cshipping\u201d of any more goods until further instructions from them. This also appears directly admitted on the face of the complaint. Hence the contract price and charges for shipment were thereafter not recoverable, as such stoppage of further performance was never revoked, (Smith v. Brady, 17 N. Y. 174, 188; Husted v. Craig, 36 N. Y. 221;) and consequently the only remedy of the manufacturer was a suit, not upon and in pursuance of the contract, but for the manufacturer\u2019s \u201cdamages\u201d sustained by reason of the vendee\u2019s breach of the contract, through the loss of profits and other attendant injury. Messmore v. Shot Co., 40 N. Y; 427. For, when stopped, the manufacturer could legally go no further. Goodwin v. Kirker, 2 Hilt. 401. The price cannot be recovered, as the \u201ccontract price\u201d is not divisible, and the whole agreement was not \u201cperformed\u201d when further shipment was forbidden; and, as the yarn on hand or finished could not, thereafter, be rightfully sent off to the place of destination, it remained the manufacturer\u2019s property, and if lost or destroyed he must bear the loss himself. Such stoppage has not been recalled. See Butler v. Butler, 77 N. Y. 472, 475, and authorities cited. The rule is laid down: \u201cNo title vests in him for whom a chattel is to be manufactured till it is finished and properly delivered and approved, or sufficiently submitted for approval.\u201d Andrews v. Durant, 11 N. Y. 35, 40, 45. To same effect, Atkinson v. Bell, 8 Barn. & C. 277; Merritt v. Johnson, 7 Johns. 473. And, therefore, no action for the \u201cprice\u201d accrues until then. Kein v. Tupper, 52 N. Y. 555. And this is so, although the manufacture (in Europe) of the whole goods was not countermanded, but only their shipment was stopped. The like principles must here apply. The contract sued on, providing for a delivery at a distant point from Europe, was \u201cambulatory,\u201d until appropriate delivery of the articles ordered. Evans v. Harris, 19 Barb. 417, 427, 428. The case on such rejected goods, as made out by the pleadings and the evidence, was solely one of a \u201crefusal to accept goods\u201d *408manufactured to order, and in such cases, ordinarily, the measure of damages, at most, is the difference between the market value of the goods at the time of the breach of contract and the price at which they were ordered; and a notice to accept was a necessary prerequisite to be given unto the vendee hereto, and the refused merchandise as manufactured might have been sold at auction, with a view of getting at such market value. Bigelow v. Legg, 102 N. Y. 652, 653, 6 N. E. Rep. 107; Myers v. De Mier, 52 N. Y. 647, 648; Messmore v. Shot Co., 40 N. Y. 422, 427; Beebe v. Dowd, 22 Barb. 255. No notice to defendant of such auction sale would be required. Messmore v. Shot Co., 40 N.Y. 422."], "id": "5dae17fa-fb7f-46da-abe4-1fc01cd50fca", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff\u2019s motion against this counterclaim is granted, because the counterclaim is insufficient in law by reason of the , there having been no payment and no delivery referable to such alleged oral contract (Personal Property Law, \u00a7 85). Defendants\u2019 contention that the original payment of $3,905 made under the written contract was, pursuant to the new oral agreement, applied on the latter is also insufficient as a matter of law, as is the contention that a piece of equipment was delivered and accepted by plaintiff under the original contract, and applied on the new oral contract. (Such acceptance is, however, denied by plaintiff.) Any payment or part performance must be clearly referable to the oral contract, in order to take it out of the Statute of Frauds, and must be made thereunder, not prior thereto. (Young v. Ingalsbe, 208 N. Y. 503; Maher v. Randolph, 275 N. Y. 80; Russeks Fifth Ave., Inc., v. Kaplan, 106 N. Y. S. 2d 661.)"], "id": "4a10f124-1742-412b-af06-f265b6e8ec99", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Defendant\u2019s claim of part performance to avoid the operation of the is untenable since the part performance is not unequivocal in character to establish the agreement. (Wooley v. Stewart, 222 N. Y. 347.) Defendant\u2019s defenses are sham and frivolous and insufficient at law under the Statute of Frauds. The counterclaim does not raise any triable issue but merely involves an accounting which is a necessary incident of almost every partition action and is had as a matter of right before the entry of either the interlocutory or final judgment. (Civ. Prac. Act, \u00a7 1075; 8 Carmody on New York Practice, \u00a7\u00a7 537-546; Zaveloff v. Zaveloff, 37 N. Y. S. 2d 46, 52.)"], "id": "2e25700a-0ead-4039-80f2-cfd32d0bb10b", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["Defendant\u2019s first affirmative defense invokes the contained in section 2-201 of the Uniform Commercial Code, which, in pertinent part, states: \u201c(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.\u201d"], "id": "6697eb7f-60dd-4d99-8729-805cb5bd49b6", "sub_label": "US_Terminology"} {"obj_label": "Statute of Frauds", "legal_topic": "Business Law", "masked_sentences": ["As pleaded, it must be held that the defenses set forth, state facts which if established will defeat plaintiff\u2019s cause of action unless overcome by proof of performance of the quality sufficient to take the transaction out of the . The court, however, on a motion, is in no position to pass upon that issue as it can only be determined at the trial of the action dependent upon the proof to be adduced there. (Guarino v. Guarino, supra; Hammond v. Hammond, 264 App. Div. 322; Jacobsen v. Jacobsen, 268 App. Div. 770; Katzman v. \u00c6tna Life Ins. Co., 309 N. Y. 197, 205.)"], "id": "53f4dadd-0969-4e2e-b13d-fc0b30ad9915", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["Accordingly, defendant\u2019s motion for summary judgment is hereby denied and additionally, pursuant to CPLR 3212 (b), the court grants partial summary judgment to the plaintiff dismissing the defendant\u2019s defense. Dismissing the statute of frauds defense, however, is not a finding there was a binding contract, it simply means that the defendant is denied the opportunity to utilize the statute of frauds as an affirmative defense. It still remains for the trier of fact to determine whether an oral contract was formed between the parties (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327 [1978])."], "id": "0de6321c-b145-4dde-9c7c-c92bea56f98a", "sub_label": "US_Terminology"} {"obj_label": "statute of frauds", "legal_topic": "Business Law", "masked_sentences": ["There is, upon the authorities, no doubt that in a case where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case free from all objection on account of the adequacy of the consideration, or other circumstance rendering the claim inequitable, will compel a specific performance, though as an original question it might be considered doubtful whether in any such case, especially when the contract is sought to be established by parol testimony, so patent a means for the evasion of the provisions for the security of property, furnished by the statute of wills, should have been allowed. But courts of equity having been pressed by the hardship of particular cases, and the unreasonable and, perhaps, often fraudulent conduct of the decedent have made precedents on the subject which have resulted in the establishment, as a principle of equity law, that in such cases the court will often decree a specific performance, and charge those holding the property under the will with a trust for the benefit of the party to whom it was agreed to be given. (Parsell v. Stryker, 41 N. Y., 480.) But in the cases in which such con*323tracts are set up, and especially where they are attempted to be established by parol testimony, the temptation and opportunity for fraud is such that they are looked upon with suspicion, and the courts require the clearest evidence that a contract founded on a valuable consideration, and certain and definite in all its parts, should be shown to have been deliberately made by the decedent. (Ogilvie v. Ogilvie, 1 Bradf., 356 ; Bowen v. Bowen, 2 id., 336; Williams v. Hutchinson, 3 N. Y., 312; Robinson v. Raynor, 28 id., 494; Lisk v. Sherman, 25 Barb., 433, and cases before cited.) It is claimed that the contract relied upon in this case is within the , as one not to be performed within a year. In regard to this question the state of the law may be said to be uncertain. The case of Dresser v. Dresser (35 Barb., 573) went to the Court of Appeals, where, as stated by Mr. Abbott, two opinions on this point were delivered, one holding the contract void, the other, valid; but the court did not pass upon the question. (Table of Cases Criticised, 1 Abbott\u2019s Dig. of New York Reports, Ixiv.). The case in 35 Barbour is stated to have been followed by the General Term in the third department in Kent et al. v. Kent et al. (1 Hun, 529), but the latter case is not fully reported."], "id": "87a9e253-abcc-4440-b22b-4116f4e58352", "sub_label": "US_Terminology"} {"obj_label": "Specific Performance", "legal_topic": "Business Law", "masked_sentences": ["Indication of the vendor\u2019s power over the land itself is also found in the fact that he can, while the contract is still in force, convey complete ownership of the land to a bona fide purchaser who receives the property without notice of the contract (see Macauley v. Smith, 132 N. Y. 524) Angel v. Methodist Prot. Church, 47 App. Div. 459; Pollack v. Viele, 273 App. Div. 871, affd. 298 N. Y. 670; cf. Ely v. Scofield, 35 Barb. 330; Ten Eick v. Simpson, 1 Sandf. Ch. 244; 58 C. J., , \u00a7 87, p. 923; 66 C. J., Vendor and Purchaser, \u00a7 905, p. 1092)."], "id": "8031a0d2-a1ce-4d14-a1e1-36bbddfa6140", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Edward H. Lehner, J. Defendants move for an order (a) dismissing the complaint dated July 15, 1997 (the Complaint) of Gladliz, Inc. (Gladliz) pursuant to CPLR 3211 (a) (1) and (7) and 3016 (b) on the grounds that (i) Gladliz waived its right to seek damages (as opposed to or declaratory judgment), (ii) the Complaint fails to state a cause of action, (iii) the Complaint fails to plead fraud with sufficient specificity, and (iv) the allegations in the Complaint are refuted by the documentary evidence; and (b) assessing costs against Gladliz and its attorneys pursuant to part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR 130-1.1 et seq.)."], "id": "6885d26a-f1c3-4270-974b-ff9bddca3c62", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["\u201c And the said parties of the first part, their heirs, executors, administrators and assigns hereby covenants and agrees to and with the said parties of the second part their executors, administrators and assigns, by these presents, that the said parties of the second part, their executors, administrators and assigns, paying the said yearly rent above reserved and performing the covenants and agreements aforesaid on their part, the said parties of the second part, their executors, administrators and assigns, shall, and may at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy the said demised premises, without any manner of let, suit, trouble or hindrance of or from the said parties of the first part, their heirs and assigns, or any other person or persons whomsoever, and. at the expiration of the term hereby granted {provided the parties of the second part shall have given a notice in writing to the party OF THE FIRST PART, At least. three months before the expiration of the said term, of a desire for a renewal of this lease) the said parties of the first part, their heirs or assigns, will execute and deliver to the said parties of the second part, a further lease of said premises for the further period of seven years from the expiration of the term above granted, at such rate of yearly rent as may be mutually agreed upon between the parties; or in case of disagreement, then the amount of such rent shall be determined and fixed by two disinterested persons, one to be chosen *586by the parties of the first part and the other by the parties of the second part; and in case of the disagreement of said two referees they shall select a third referee, and a decision by a majority of the three referees shall be binding upon the parties hereto.\u201d This provides for the execution and delivery of a further lease, which was not the provision in the lease in the case above cited, and that this was the intention of the parties is made certain by their own interpretation of this covenant since it was first expressed ih the original lease from Edward Barker to George Palmer. Each renewal as exercised has been by execution and delivery of a new lease. All of the data and history concerning these leases appear in the tenants\u2019 answer by way of a separate defense. The lease contains a provision as to disposition of buildings erected by the lessees during the term and also a provision as to the method of fixation of rent for the renewal term. These in themselves \u201c evoke new conditions of continuance in occupation.\u201d A new lease was both necessary and proper.\" In any event the right or option to renew is personal property (Decedent Estate Law, \u00a7 80; Surr. Ct. Act, \u00a7 202; Code Civ. Pro. \u00a7 2672), likewise a lease for years. As personal property the same are deemed assets and as such go to the executors and administrators, to be applied and distributed as part of the personal property of the testator or intestate. Surr. Ct. Act, \u00a7 202. They are the proper-parties to compel . Despard v. Churchill, 53 N. Y. 192; Schmitt v. Stoss, 207 id. .731; Walker v. Bradley, 89 Misc. Rep. 516. In order to bring about a renewal of the lease it remains for the surviving tenants and the personal representatives of those dead, to give a timely and proper notice of election to renew the lease and also, under the circumstances, to agree upon the terms thereof and execute the same. The executors or administrators must give this notice themselves. This is one of their powers. They cannot delegate it. Were the facts as in Orr v. Doubleday, Page & Co., supra, they could not compel specific performance for the reason that the original lease was a present demise of the premises for a full term, the last half of which was to take effect upon the termination of the first, no new lease for the additional years being necessary. Maisel v. Shanholt, 189 App. Div. 831. The agent, Mr. Lane, who undertook to give the notice of renewal substituted his name as agent for certain estates. I do not regard that as a proper notice, even if the signing and delivery thereof was authorized by the various personal representatives of deceased tenants. It appears, however, that it was not so authorized. Mr. Lane testifies that Charlotte Case, Ida Dorsett, Emma White and William F. Taylor all .told him \u201c that they wanted a renewal \u201d for seven *587years, as was in the original lease. But Charlotte Case had died prior to August 20, 1919, and she was not a party in interest at the time of the attempted exercise of the right of renewal. William F. Taylor denied that he had any such talk with Mr. Lane. Ida Dorsett was but an administratrix de bonis non and the interest represented by her as well as that of Emma White would come by way of the will of their mother, Anna Dorsett, under which William Himlyn was executor and which estate is still in process of administration. Mr. Himlyn never authorized Mr. Lane to ask a renewal. Florence P. Lane claims her interest under an assignment from one Ella F. Mills who was residuary legatee under the will of Charlotte Case. But there are a number of legacies under said will and no proof of any residuary estate, etc. Furthermore there is no assignment from the executors and they do not join in the lease or notice. The tenants contend, however, that the second notice given at the time of the submission of the proposed lease was sufficient notice, even if Mr. Lane was not authorized to act as agent, because, the proposed lease was executed and acknowledged by Elizabeth Egbertson, who under the will of her mother, Elizabeth J. Brown, was named as executrix and sole beneficiary. She duly qualified as executrix. She did not execute th\u00e9 proposed lease as executrix, but notwithstanding this I should hold the notice of renewal properly executed were it not contingent upon the further renewal of seven years and were she the only person required to give notice: It is well settled, however, that where a lease is made to two or more tenants jointly with covenant for a renewal or a privilege for an additional term, it cannot be exercised by one of them alone., 16 R. C. L. 898; Finch v. Underwood, L. R. 2 Ch. Div. 310; Buchanan v. Whitman, 76 Hun, 67; affd., 151 N. Y. 253; Janes v. Pope, 19 id. 324; Foster v. Mulcahey, 196 App. Div. 814. The notices were not signed by the parties entitled to the renewal. The giving of such notice is a condition precedent which must be performed before the right to a renewal may become vested. McAdam Landl. & Ten. (4th ed.) 593, 596; Morgan v. Goldberg, 9 Misc. Rep. 156. Some testimony has been offered as to the value of the buildings erected by George Palmer during the term of the first lease of said premises. It would seem that this proof is offered that the court may in this proceeding make some allowance to the tenants therefor or that the court may be impressed as to the value of these buildings in determining the equities between the parties. After the buildings were erected a new lease was executed and delivered and further leases have been executed and delivered and with parties landlord and parties tenant both varying. The only .provision in these leases as to the buildings,, and in each lease the provision is *588the same, is as follows: \u201cIt is mutually understood and agreed that in case all rents and taxes and water rates are paid as aforesaid at the expiration of the terih hereby granted, the parties of the second part shall within ten days thereafter have the privilege of removing from said premises all buildings and improvements by them placed thereon.\u201d The execution and delivery of a new lease and occupation thereunder for a further term and without reservation as to the buildings other than as aforesaid would seem to be a surrender of the buildings by the tenant to the landlord and the title thereto passed to the landlords Goldberg under the deed from the original landlord. Then again, the persons now claiming to be tenants have chosen to proceed to enforce a renewal and have not availed themselves of the privilege to remove the buildings if in fact they have any present existing rights thereunder. The testimony as to the value of the buildings does not impress me. Standing they have value; removed, the charges of a wrecker would be met. The tenants, however, make no claim for compensation for these buildings herein nor do they ask leave to remove them. If they believe that to be within the equitable jurisdiction of this court in this proceeding and in the present state of the pleadings, which I seriously doubt, then I should find no right to compensation to them for the buildings and no right to remove the buildings. The original lease under which the tenants claim that they are entitled to a renewal by reason of the alleged notice aforesaid makes the further provision, i. e., \u201c Provided, further, however, that the said parties of the second part shall in no case be entitled to receive a further lease as aforesaid unless all the rents, taxes and water rates upon said premises as heretofore stipulated, shall, at the expiration of the term hereby granted have been fully paid and discharged by the said parties of the second part.\u201d No proof has been offered as to performance or non-performance of this condition. Attention has been called to the judgment in a prior proceeding which inadvertently fixed the date of expiration of the original lease as March 31, 1923. This pending proceeding was not instituted until April 9,1923, or later. Considerable stress has been laid upon alleged dereliction of duty on the part of the trustee under the will of Mary J. Palmer, it being claimed that he will profit at the expense of the estate if the landlord prevail here by reason of the fact that he as executor and trustee has failed to join in the notice of renewal. There has been litigation involving this matter (Palmer v. Taylor, 201 App. Div. 422; 235 N. Y. 367) but not determinative of the questions raised in this proceeding. An executor or- trustee may exercise his discretion as to whether or not h\u00e9 will- take upon himself the* responsibility of a renewal of a lease; *589and the exercise of an option therefor. If he fail in any duty or obligation to his estate to the damage of the estate, relief may be had against him upon his accounting and not in this proceeding, nor can that question be determined here."], "id": "021a93e7-25ae-4b45-8c4f-033bbe2e8310", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Under the provisions of section 5-1311 of the General Obligations Law, when neither the legal title nor possession of the subject matter of the contract has been transferred to the *390purchaser, if the subject lands are taken by eminent domain, the vendor cannot enforce the contract and the purchaser is entitled to recover any portion of the price that he has paid. It would appear that the respondent, then, having paid $1 for an option it has never validly exercised, has, as a matter of law, no further interest in the premises being condemned, the consideration of the granting of the option having been performed and its maturation into a purchase contract having never taken place and being now expired. Niagara Mohawk has neither title nor possession of the premises and claims in its own verified answer only an equitable title to the premises. The affidavits show, on their face, no valid triable issue of fact. The court finds nothing inconsistent herewith in the case of Matter of County of Westchester v. P. & M. Materials Corp. (20 A D 2d 431). In Fatscher v. South Shore Skate Club (24 A D 2d 462) the purchaser had obtained an.order directing , later affirmed by the Appellate Division, Second Department, vesting title as of a date before the taking. This case is obviously not controlling as title has not passed to Niagara Mohawk on any theory. Paragraph 4 of the answer is stricken and the application for summary judgment in favor of the petitioner Town of Wellsville and the respondents Doran Shutt and Wilma Shutt and against the respondent Niagara Mohawk Power Corporation is granted."], "id": "089e7b08-6a3c-440d-9765-bd341391efa1", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Section 631 of article 41 of the Civil Practice Act provides that an appeal may be taken from an order, affecting a substantial right, made in a special proceeding at a Special Term of the Supreme Court. Section 1459 of the Civil Practice Act provides *790that arbitration is a special proceeding. A proceeding' to stay arbitration falls within the scope of section 631. (Prashker, New York Practice [4th ed., 1959], p. 1005.) .(See, also, Matter of Marchant v. Mead-Morrison Mfg. Co.. 252 N. Y. 284, motion for reargument denied 253 N. Y. 534, appeal denied 282 U. S. 808 [1930] specifying an order for the of an agreement to arbitrate as a special proceeding.)"], "id": "c0cac641-2971-460f-9ab8-0da516008499", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On August 15, 2014 Eleanor Licensing and Halicki filed this lawsuit to recover possession of, and legal title to, Eleanor No. 1. Their complaint alleged eight causes of action: breach of contract, breach of contract implied by conduct, breach of implied covenant of good faith and fair dealing, declaratory relief, return of personal property, quiet title, injunctive relief and ."], "id": "a9c2b1a0-62a9-4d4d-b443-0aa89335009c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["It is worth noting that, in any event, the premise of Appellants' first point on appeal-that Appellants' breach of the Ground Lease was not before the trial court for determination-is flawed for several reasons. First, Appellants moved for directed verdict at the close of MPO's evidence and at the close of all of the evidence, arguing on both occasions that their breach of the Ground Lease had not been pleaded by MPO. The trial court denied the motion on both occasions. The trial court found that though breach of the Ground Lease was not pleaded by MPO as a part of its claim seeking damages for breach of the Settlement Agreement (Count II of the first amended petition), MPO did plead breach of the Ground Lease in connection with its equitable claim seeking of the Settlement Agreement (Count I of the first amended petition).6 The trial court thus found that Appellants' breach of the Ground Lease was an issue to be determined in connection with claims being tried to the court in equity. Appellants have neither addressed nor challenged this ruling."], "id": "16b9b151-4359-454b-a9aa-18996b43ed16", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Our analysis of petitioner\u2019s claim that the District breached the collective bargaining agreement begins by noting that a CPLR article 78 proceeding is not the proper remedy to determine contractual rights (Matter of City Constr. Dev. v Commissioner of N. Y. State Off. of Gen. Servs., 176 AD2d 1145, 1146). Even if petitioner could establish a breach of the contract, the breach would not provide a legal right to CPLR article 78 relief (see, Matter of Goodstein Constr. Corp. v Gliedman, 69 NY2d 930, 931). Petitioner concedes that he seeks , which is an equitable remedy (see, Buteau v Biggar, 65 AD2d 652, 653) outside the scope of a CPLR article 78 proceeding (see, CPLR 7803)."], "id": "90eb25fb-16d0-46d2-a2b1-f7abf4568c57", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The only remaining contention requiring comment is that because the profits on the plaintiff\u2019s contract of resale are known it has an adequate remedy at law. The normal remedy for breach of an agreement to sell real property is (Baumann v. Pinckney, 118 N. Y. 604; Stone v. Lord, 80 N. Y. 60) and the buyer may be accorded this relief notwithstanding that he has agreed to resell it. (Restatement, Contracts, \u00a7 360.) While the defendant Dvora Sheinbaum cites statements of text writers which would seemingly allow a court to deny specific performance to a vendee who is under contract to resell, no controlling authority to this effect has been called to my attention. In the absence of such authority, the case must be determined upon its own facts. Here, not alone is it uncertain whether the plaintiff could successfully maintain a claim for the profit on its resale \u2014 as stated there is no proof of the usual basis for the allowance of a claim for special damages, such as notice to the defendants that the plaintiff had entered into its agreement with them in contemplation of the resale \u2014 but it is doubtful, to say the least, whether such damages, even if awarded, would be collectible. It is not to be overlooked that the defendant husband has not refused to honor his contract commitment to the plaintiff, in such situation to subject bim to a judgment for damages is hardly consonant with equity. A judgment against the wife would probably have to be satisfied out of the very property with which we are here concerned. In the circumstances, it cannot be said that the *1012plaintiff .has an adequate remedy at law and equity dictates that the plaintiff have judgment of specific performance."], "id": "60971453-9e99-468a-9467-0695dfd74f26", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Actually the problem here is divisible into two parts, as suggested by the court in its oral decision. Defendant is entitled to a decree of of the terms of the contract, but with closing and current adjustments of the items therein enumerated to be effectuated as of the time of the decree in place of the date originally fixed in the contract. The second \u2014 and more complex \u2014 problem is the assessment of responsibility and damages for the delay in closing from March 12, 1958, when the seller had cleared up the defect, to the date of decree."], "id": "fe669e11-6ae8-485e-9e6d-cf01f8968122", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["\u201c Q. Would you agree to a restriction by this commission to allow this transaction to go into effect only if you agree not to register your P. S. C. authority? \u201cA. Yes.\u201d In answer to the question of the examiner, page 64: 11 Q. In other words by your statements, I should gather the inference that you do not desire to further conduct any operations in interstate or foreign commerce, is that correct? \u201c A. I would say yes. As far as I know right now, yes.\u201d I am satisfied from this testimony that the defendant had not considered operating in interstate commerce by registering his *637Public Service Commission rights either in the negotiations leading up to the execution of the bill of sale or subsequently at the time of the Interstate Commerce Commission hearing, January 31,1955 \u2022 that at the time of the hearing he was willing to forego his right to file his public service certificate with the Interstate Commerce Commission in order to obtain the approval of the commission to the transfer of his interstate commerce certificate, Docket No. MC-66834 and that he consented at the hearing to the inclusion of the condition which was subsequently approved by the examiner and incorporated in the order of the Interstate Commerce Commission dated November 10,1955. Inasmuch as he was one of the petitioners making the application to the Interstate Commerce Commission, he cannot now be heard to say that a condition agreed upon and consented to by him and in which he was a petitioner, interposed a change in the terms of the proposed sale so that he could rely upon the condition to rescind the bill of sale. The principles of estoppel and waiver are, in my opinion, a bar to such contention. The defendant urges that inasmuch as this is an action for , it is an equity action addressed to the discretion of the court and that equitable principles must apply so that an unfair and unreasonable agreement should not be enforced in equity against him. The difficulty with this contention is that the defendant is seeking the protection of equity under circumstances which do not constitute \u201cthe coming into equity with clean hands.\u201d Finally, the defendant urges that the court refused to admit certain evidence at the time of the trial and refused the defendant\u2019s offer of proof thereof and that the court should, therefore, reopen the case and accept further evidence. The proof which was offered related to the state of defendant\u2019s mind, namely, his intention in respect to the filing of his public service certificate with the Interstate Commerce Commission so as to be able to continue to engage in interstate operations after the sale of his certificate, No. MC-66834. The testimony so offered related to a period of time prior to the hearing, January 31, 1955, and the filing of the petition by the plaintiff and defendant for approval of the transfer by the Interstate Commerce Commission as required under the bill of sale which is the subject of this action. I have not changed my opinion as to the admissibility of this evidence. The offer in view of the very direct and specific testimony of the defendant at the Interstate Commerce Commission hearing, January 31, 1955, is surprising inasmuch as the defendant\u2019s testimony indicates to me the exact contrary to that which it was indicated he would offer at the time of the trial."], "id": "f0454062-e0d3-4089-b9e6-4b479f96bde7", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*466Plaintiff in its action against St. Rita\u2019s seeks an injunction barring sale of the property to a party other than itself, and other damages. Plaintiff contends that the application of Religious Corporations Law \u00a7 12 and Not-For-Profit Corporation Law \u00a7 511 resulted in a taking of plaintiff\u2019s property without due process of law. The basis for the claim of unconstitutionality is that the application was heard without plaintiff having the ability to participate in the proceeding and to submit any testimony or evidence in support of the sale. As a result, plaintiff claims he has been summarily denied his right to participate in a special proceeding affecting his contract rights which is tantamount to a taking of property without due process of law. Plaintiff seeks to be heard by the court, at which time he contends he will be able to produce evidence and witnesses who will testify that the consideration was adequate at the time the sale was negotiated and the bargain was struck which was September 1984."], "id": "a009d47b-a1c5-4f79-a9ff-3a9dc3d006e7", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The administrator is plainly in need of advice and direction from the court because of the unusual and peculiar circumstances in which he finds himself. On the one hand, he wishes to preserve the Miltod offer and fears losing it, and on the other, he is faced with a strenuously argued position that the respondent Wicks has an enforcible contract which would support an action for (see Matter of Graves, 197 Misc. 555)."], "id": "73413eec-39c9-4cb6-ad5b-6964449efb81", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The second cause of action alleges improper termination of the OAAs entered into between the City and the bus companies and seeks thereof on the ground that the OAAs require that they may not be terminated by either the City or the bus companies without mutual consent except in two specific circumstances which do not apply here: (a) termination by the City as a result of a default or (b) termination by the City as a result of a change in control of one of the bus companies."], "id": "bcb1676f-f2f0-4587-ab49-e461019787fa", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["A further impediment to exists in the rent adjustment provision quoted above. A change in rent \u201c predicated on \u201d a change in cost of living index is not necessarily exactly proportionate to the index change. Moreover, the clause contains no indication of the time interval at which adjustments are to be made, nor is there any definition of what \u201c major changes \u201d means. It could, perhaps, be inferred from the provision for animal rental that adjustment was to be made annually, though the fact that the change was keyed to the cost of living index and that that index is reported monthly offers basis for a contrary inference. There is, however, no guide at all to What the word \u201c major \u201d means. The cost of living index portrays current prices in terms of points as compared with a base year and is reported in terms of tenths of a point. Major is a word of comparison, of relativity, and as here used refers to the cost of living index, not to the change in rent that an index change may produce. Even if the court accept plaintiff\u2019s argument that the intention was to exclude changes that would produce only trivial changes in rent, are \u20181 trivial \u2019 \u2019 changes to be measured in terms of cents, dollars or tens of dollars, against a rental of $525 per month?"], "id": "b48f40b2-7c13-4f2e-995a-f4fa8aaeee7d", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In Munson v. Syracuse, Geneva & Corning R. R. Co. (103 N. Y. 58) the court denied of a contract for the sale of land, saying, per Akdkews, J. (pp. 73-74): \u201c But we are of opinion that the contract of September 14, 1875, is repugnant to the great rule of law which invalidates all contracts made by a trustee or fiduciary, in which he is personally interested, at the election of the party he represents. There is no controversy as to the facts bringing the case as to Munson within the operation of the rule. He and his associates were dealing with a corporation in which Munson was a director, in a matter where the interests of the contracting parties were or might be in conflict. The contract bound the corporation to purchase, and Munson, as one of the directors, participated in the action of the corporation in assuming the obligation, and in binding itself to pay the price primarily agreed upon between the plaintiffs and Magee. He stood in the attitude of selling as owner and purchasing as trustee. The law permits no one to act in such inconsistent relations. It does not stop to inquire whether the contract or transaction was fair or unfair. It stops the inquiry when the relation is disclosed, and sets aside the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook to represent, without undertaking to deal with the question of abstract justice in the particular case. It prevents frauds by making them as far as may be impossible, knowing that real motives often elude the most searching inquiry, and it leaves neither to judge nor jury the right to determine upon a consideration of its advantages or disadvantages, whether a contract made under such circumstances shall stand or fall * * * The value of the rule of equity, to which we have adverted, lies to a great extent in its stubbornness and inflexibility. Its rigidity gives it one of its chief uses as a preventive of discouraging influence, because it weakens the temptation to dishonesty or unfair dealing on the part of trustees, by vitiating, without attempt at discrimination, all transactions in which they assume the dual character of principal and representative.\u201d"], "id": "7767daf4-89a0-4bf8-add4-a2a9eae59589", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In any event, the clear weight of authority is that such liability does not exist. The rule in New York is that, in the absence of statute or contract, attorneys \u2019 fees are not recoverable against the opposite party (24 Carmody-Wait 2d, New York Practice, \u00a7 148:87). \u201c An action to enforce a separation agreement' does not come within the term \u2018 matrimonial action \u2019 as defined in the Civil Practice Law and Bules [CPLB 105 (m)], and such actions are not mentioned in any of the provisions of the Domestic Belations Law which relate to allowances and awards in specific actions or proceedings and the enforcement of judgments or orders entered therein; hence, the court does not have the power to make an order requiring the husband to pay alimony and counsel fees in an action for of a separation agreement.\u201d (16 N. Y. Jur., Domestic Belations, \u00a7 706, p. 270). (See, also, Marson v. Marson, 6 A D 2d 786; Schreiber v. Schreiber, 34 A D 2d 681; Berry v. Jaworski, 187 Misc. 481; 19 Carmody-Wait 2d, New York Practice, \u00a7117:57.)"], "id": "425af22f-b6a1-4ec1-b846-560b6e2f8de8", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*1002By the instant action plaintiff seeks to obtain what he contracted for in specie, to wit, a store in a particular neighborhood engaged in a business similar to other stores presently being conducted by the plaintiff, in other parts of the Borough of Brooklyn, the good will pertaining thereto, a restrictive covenant clause barring competition from the defendant for a period of time and a five-year lease covering the premises with an option to renew same for two additional five-year periods; \u201c which to him has some special value, and which he cannot readily obtain in the market\u201d (Butler v. Wright, 186 N. Y. 259, 262). As regards the interest in realty, it is a general rule that the court has jurisdiction \u201cto enforce of an executory contract to lease premises.\u201d (Shea v. Keeney, 155 App. Div. 628, 630.)"], "id": "bfa27bbd-3aff-4ff7-b97b-4601fe1b4a2b", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The conclusion is however justified that the issuance of injunctions or decrees of falls on the outer perimeter of this court\u2019s jurisdiction. This is not because they are equitable in nature, but because the Court of Claims Act does not specifically refer to them, necessitating the position taken in Psaty (supra) that such relief must be incidental to a claim for money damages."], "id": "6e03290e-57d0-41d6-96f5-caa5d50de9c4", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*703The facts are undisputed that the plaintiffs and defendants, except Park Ave. Structures, Inc., entered into a partnership on the 12th day of August, 1960; that the purpose of said partnership was to purchase a large tract of land and conduct and carry on the business of builders; that they planned to sell the various improved parcels and upon the sale of all its real property, to terminate the partnership. The real property and subject matter of this partition action is the same property which is presently subject to an action for by the defendant Park Ave. Structures, Inc., resulting from the alleged failure of the partnership or its members to comply with the terms of a contract to sell."], "id": "5cf3a353-c05f-41b4-99d8-66abc7ccddb0", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["42. \u201cEach party to a contract has a duty to do everything that the contract presupposes that he will do to accomplish its purpose [citations] and a duty not to prevent or hinder performance by the other party.\u201d (Bewick v. Mecham (1945) 26 Cal.2d 92, 99.) In Bewick, the defendant\u2019s actions \u201cprevented the determination of the purchase price by the method contemplated by the contract.\u201d (Ibid.) \u201cDefendant\u2019s obvious purpose was to make the contract inoperative and to prevent plaintiff from seeking after the price was determined by the appraisers. A party who prevents fulfillment of a condition of his own obligation commits a breach of contract [citations] and cannot rely on such condition to defeat his liability.\u201d (Ibid.) Moreover, section 36 (J) of the lease contained express covenants requiring the parties cooperate so the terms of the right of first refusal could be effectuated: \u201cFurther Assurances: Each party agrees to perform an further acts and execute and deliver any additional documents that may be reasonably necessary to carry out the provisions of this Paragraph 36.\u201d Based on the evidence provided, for months TTP did not disclose to J&A it was in escrow to sell the Tower Theatre parcel to Adventure Church. Even after J&A became aware of a sale, TTP refused to provide the purchase agreement or the amount of the third party offer, overstated the sales price, and only set unilateral terms of the sale of the brewery premises. Its communications ignored the language contained in the right of first refusal regarding a matching price, and instead asserted the price it offered was fair and reasonable. TTP only disclosed the sales agreement after litigation commenced and J&A was in a position to compel the disclosure through discovery. Once J&A was provided the third party offer from the church, it provided its written notice to exercise the right of first refusal within 12 days, on May 3, 2021. TTP, in turn, provided a counteroffer. It responded it was willing to sell the brewery premises at the previously set price of $1.268 million if J&A would meet certain conditions including dismissing the lawsuit, expunging the lis pendens, and paying TTP $25,000 to cover litigation fees and"], "id": "1e16ade6-a557-4cac-86b4-682a17c16e68", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["9. request for the trial court to \u201cfind no ambiguity with the plea and require of the plea agreement and allow [appellant] to withdraw her plea of guilty.\u201d On May 31, 2019, the trial court heard oral arguments regarding appellant\u2019s motion. The court ruled that the modifier referring \u201cto staff\u201d was ambiguous because \u201cthe assault and battery does not necessarily have to refer to staff the way the plea form is written.\u201d The court determined that the ambiguity was resolved by the transcript from the 2017 change of plea hearing. The court noted that, when it discussed this with appellant at that hearing, the restrictions had been expressed as applying to any assault and battery. Appellant had agreed with that representation. The court determined that appellant had intended to accept those terms and conditions. The court further concluded that appellant had subsequently received 115\u2019s involving assault and battery, so she did not qualify for relief. At sentencing, the trial court stated that appellant\u2019s plea bargain had required her to not have any \u201c115s\u201d regarding \u201cassault, battery, gassing nonstaff/staff.\u201d (Italics added.) The court sentenced appellant to four years in state prison in conformity with the plea agreement. 7 DISCUSSION In the present appeal, appellant seeks specific performance of the plea bargain. She contends that she complied with the negotiated terms because she did not receive any 115 violations involving staff during the two years following her change of plea. She argues that this criminal case should be dismissed. In contrast, respondent contends that appellant violated the plea agreement because she incurred 115 violations involving nonstaff. Respondent asserts that specific performance is inappropriate. Respondent urges us to affirm the judgment."], "id": "d871e3d7-0fd7-444c-a1df-35494e1edc5f", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The provisions added by plaintiff\u2019s attorney were (1) that the northerly line of the premises contracted to be sold was contiguous to land known as the Bay side Golf Club, (2) that the date of closing be fixed as September 5, 1956 at 10:00 a.m. provided taxes be apportioned as of July 5, 1956 and (3) that the sale was conditioned upon the purchaser or his assignee acquiring title to the Bayside Golf Course, pursuant to a contract dated March 2,1956, and that if plaintiff could not acquire title to the Golf Course property, then the seller would return the moneys paid by purchaser, and upon such repayment the contract would be cancelled without any further liability of either party to the other (italics supplied). Further, that if the purchaser defaulted, the sole liability of the purchaser would be limited to the loss of the contract payment which the seller was to retain as liquidated damages and that the seller expressly waived the right to any and all claims for damages and/or the right of action for ."], "id": "a8803ee0-1d6e-4b1b-a48f-65ae2d2ad112", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff\u2019s claim for relief, in any event, is not based directly on defendants\u2019 violation of the Multiple Dwelling Law, but is based on their breach of contractual obligations under the bylaws and other applicable contracts between the cooperative and its building\u2019s residents, including proprietary leases, as well as the building\u2019s certificate of occupancy. Plaintiff seeks an injunction akin to : that O\u2019Neill\u2019s unit be owned and occupied by a family with an artist certified pursuant to Multiple Dwelling Law \u00a7 276, as required by these contracts, as well as the certificate of occupancy."], "id": "d8a5ce80-89e4-45c0-a61f-52a1c42cf21a", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Further, to the extent that Lantel argues that Petrolink's letter of August 25, 2011 did not constitute a valid exercise of the option because it was not an \"unconditional acceptance of the terms of the purchase option\" (capitalization omitted), such an argument is not one in support of affirmance of the *386judgment, but rather, is an attack on the entire premise of the judgment.7 The judgment that the court entered *292is based on the fact that Petrolink's valid exercise of the purchase option caused a contract for purchase and sale to come into existence, and it is this contract for purchase and sale that the court ordered Lantel to specifically perform in the judgment. Lantel's argument that the notice was insufficient to constitute a valid exercise of the purchase argument is not, therefore, an argument in support of affirming the judgment; rather, it is an argument that would require reversal of the judgment. If Lantel wanted to challenge the validity of the court's finding that Petrolink validly exercised the purchase option?a finding that is a prerequisite to the court's ultimate determination that Petrolink was entitled to , it would have had to appeal from the judgment and contend that the trial court erred in making that finding. It did not do so."], "id": "e12b4536-62ff-4a16-a13b-d2bbdc210b61", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff, in his memorandum of law seeks to establish by reference to the history of the statute and other means that the recording of the Murphy contract did not affect plaintiff\u2019s right to . Where, as here, however, the words of the statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation (State Farm Mut. Auto Ins. Co. v Westlake, 35 NY2d 587, 592; McKinney\u2019s Cons. Laws of N.Y., Book 1, Statutes, \u00a7 76). Under the plain wording of the statute, the La Marche contract is void as against the Murphys. The court finds as a matter of law that the Murphys contracted in good faith for the purchase of the property. The statute does not specify that the subsequent contract vendees must have good faith (i.e., lack of knowledge of a prior contract) at the time they receive the deed or even at the time they record their contract. The statute merely specifies that they \"contract\u201d in good faith and this they did. The filing of the lis pendens by plaintiff on May 30, 1975 cannot in anywise vitiate the plain mandate of section 294."], "id": "8b256bbb-baad-4fb6-b3fa-46ced3195403", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Carolyn E. Demarest, J. In motion sequence No. 1, 33 Development Inc. moves to dismiss the present complaint brought by 929 Flushing LLC and vacate the notice of pendency. Plaintiff cross-moves under motion sequence No. 2 for summary judgment and . The instant action arises out of the execution of a short form agreement titled \u201cBinder of Sale\u201d (the binder) pertaining to real property located at 929 Flushing Avenue, Brooklyn, New York 11206. Though the parties never fully executed a formal agreement, plaintiff contends that the binder, executed by Joel Jacob as purchaser and Anita Wong \u201cas managing agent,\u201d without further identifying the seller, created a legally enforceable contract that requires defendant to sell the premises to plaintiff."], "id": "86a1aa88-47bc-4462-92da-7a5d594608ca", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Trey cites Looney v. Sun Oil Co. , 170 S.W.2d 297 (Tex.Civ.App.-Texarkana 1943, writ ref'd w.o.m.) for the proposition that the exclusive jurisdiction of actions to annul the Commission's orders are vested in Travis County. In that case, a party by deed was limited to drilling one well on a particular tract of land, but obtained permits from the Commission to drill several additional wells. Id. at 298. A party with standing under the deed filed suit for to limit the number of wells to that allowed by the deed. Id. The Looney court indeed noted the general proposition that \"jurisdiction is vested in the district courts of Travis County\" for actions to set aside or annul the orders of the Commission. Id. at 299. But in the next paragraph the court stated the \"fact that the relief here sought, if sustained, may have the effect, indirectly, of destroying the value of defendant's permit to operate wells Nos. 2, 3 and 4, will not deprive the District Court of Gregg County of jurisdiction *215to hear and adjudicate this issue of the enforcement of the alleged contractual rights.\" Id. at 300 (the court ultimately denied the equitable relief because all the necessary parties had not been joined)."], "id": "04ab1145-290f-469a-be11-326f9c8cabf0", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["NVM filed this action against Longs and CVS for breach of contract to recover the additional CAM charges for 2012, for to enforce its option under the construction agreement, and for declaratory relief to enforce the additional CAM charge provision and to enforce its option to *602repurchase the property.3 Defendants cross-complained, seeking the return of the additional CAM charges they assert were overpaid.4 The defendants moved for summary judgment on the complaint. *371NVM did not substantially dispute defendants' statement of material facts. However, it disputed defendants' characterization of the Longs/CVS transaction as solely a stock acquisition. Although it could not dispute that Longs continued to hold title to the property, it maintained Longs was merely a shell entity for the sole purpose of holding legal title, and that CVS operated and controlled the property. NVM adduced evidence that the Longs stores have been renamed CVS, the Longs headquarters have been moved to CVS's headquarters, and all of Longs's executives and employees at the headquarters office were terminated or resigned after the merger."], "id": "78e32375-8138-4528-a61c-8ab0427065ac", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*756The Court finds as a matter of law that the limitations period relating to the defendant\u2019s action seeking to preclude the entry of a QDRO, and thus subjecting defendant\u2019s retirement benefits to equitable distribution, accrued after he reached pay status in the retirement benefits. (Cf. Tauber v Lebow, 65 NY2d 596 [1985] [preceding the enactment of CPLR 211 (e), and finding a child support and alimony arrears claim, arising under a separation agreement incorporated but not merged into a judgment of divorce, time barred]; Dolan v Dolan, 172 AD2d 1013 [4th Dept 1991] [ for sale of marital property was not commenced within six years of former husband\u2019s re-marriage in accordance with nonmerged separation agreement, and thus was time barred]; see also, Matter of Downer v Downer, 199 AD2d 1092 [4th Dept 1993]; Yerdon v Yerdon, 190 AD2d 1046 [4th Dept 1993].) Stated otherwise, since plaintiffs right to receive a distribution under the defendant\u2019s retirement plan did not accrue until after her former husband reached pay status, the six-year limitation period did not begin to run until his retirement date. (Cf. Long v Paige, supra.) The case of Yecies v Sullivan (221 AD2d 433 [2d Dept 1995]) relied on by defendant is distinguishable as it relates to the equitable distribution of a present interest in real property, divided under a judgment of divorce."], "id": "81b6a68c-5fc4-4cba-ac85-5c296ceff5dd", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The Act thus anticipates that a party to an arbitration agreement may file a lawsuit in court, and it describes the procedural vehicles through which the *767opposing party may respond-i.e., it may file either an answer to the complaint or a section 1281.2 petition to compel. The Act also prescribes the remedy the court must order if any party demands arbitration of an arbitrable dispute that is the subject of a lawsuit- of the arbitration agreement, not a damages award for breach of contract. (See, e.g., Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057, 201 Cal.Rptr.3d 318 [\"A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement.\"].)"], "id": "5f8a6357-bd73-4c1d-b1a0-797fb2dcc9ae", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The evidence here more nearly resembles that in Foreman v. Foreman (251 N. Y. 237). There, as here, the relationship between the parties was the confidential one of husband and wife. The consideration for the purchase of the realty was paid by the husband. Title was taken in the name of the wife. She agreed to give him a deed upon demand and to dispose of the land or proceeds in accordance with his wishes. The husband in that case paid the taxes, the insurance premiums, the interest on the mortgages and the cost of repairs. Here, the husband or the holding company for him, from the time of the original conveyances to the wife, collected the rents and made the necessary expenditures for the carrying charges. The wife in the lifetime of the husband made no objection to his use of the rents. \u201c The dominion that goes with ownership was continuously his. * * * The rule is now settled by repeated judgments of this court that the statute does not obstruct the recognition of a constructive trust affecting an interest in land where a confidential relation would be abused if there were repudiation, without redress, of a trust orally declared.\u201d (Cardozo, Ch. J., citing Sinclair v. Purdy, 235 N. Y. 245, 253; Gallagher v. Gallagher, 135 App. Div. 457; 202 N. Y. 572, and other cases.) In the Foreman case quotation was made from Sinclair v. Purdy (supra): \u201c It is not the promise only, nor the breach only, but unjust enrichment under cover of the relation of confidence, which puts *743the court in motion.\u201d A constructive trust was found to have been established and the determination of the lower courts that could not be enforced because of the provisions of sections 94 and 242, Real Property Law, was reversed."], "id": "6ce74d51-cd55-473e-985c-ba1758864257", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Subsequent to the foregoing, plaintiff commenced the within action for legal malpractice and breach of contract on March 6, 1991. It is alleged that the defendants negligently failed to obtain a stay of the Appellate Division order in Da Silva I, thereby permitting the notice of pendency to be cancelled. It is asserted that, as a result, defendants\u2019 acts deprived plaintiff of the right to of the binder agreement, and the alternative relief of money damages. It is further asserted that defendant AA&F negligently failed to seek such a stay and to reinstate the notice of pendency. Further, plaintiff claims that AA&F\u2019s untimely motion to amend the remittitur deprived him of the right to recover money damages from the sellers. He now seeks to recover damages of $20 million, which includes the loss of the bargain and the loss of future profits. He further seeks to recover $160,000 paid to defendants for legal services rendered in the two underlying actions. Defendants have answered the complaint, issue having been joined on April 30, 1991."], "id": "437e4d3b-4d37-4a6f-a51c-e5d740905002", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On the whole, if we agree with the chancellor, that the will is to be retained so far as it creates a trust power of apportionment, I am unable to see any reason for denying its operation as to other provisions equally valid ; and on the other hand, if we hold with the chancellor that the land goes to the heirs by operation of law, it seems to me the very principle which gives it that direction, withdraws the will altogether, and leaves the statute of descents to perform its office. Although the appellant\u2019s points presented this alternative view of the case, yet the counsel on both sides agreed on the argument that the land descended. In either view, the respondent is unable to make such a title as he contracted to convey. The decree for a was, therefore, erroneous, and should be reversed."], "id": "78019163-0d02-4dd2-bce2-53437ac6fa89", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["(2) If the plaintiffs shall fail in establishing their contract so that they are not entitled to because the defendants have established their affirmative defense, and by the same token their cause of action against the third party, we have a situation where the defendants have established the liability of the third party without damages to themselves because the plaintiffs have failed."], "id": "ac877d53-8412-40c3-966a-18adf4b17d2d", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["It is well settled that can be decreed in such a case only when there has been part performance unequivocally referrable to the alleged agreement. The payment of a portion o'f the purchase price is not such part performance (Hummell v. Cruikshank, 280 App. Div. 47, 49; Galletta v. Zuckerman, 122 N. Y. S. 2d 10, 14) and no other part performance is alleged."], "id": "650f14b8-f10c-4f5b-940b-04d260f26573", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In the ninth counterclaim, partial defense and offset, it is alleged that the assignor failed to perform its covenant to obtain the agreed financing for payment of the purchase price in the manner provided by the contract. The pleading is good as a counterclaim only, under which, if a sum is found due to the plaintiff, the court may mold a decree so as to provide for payment as provided in the contract, if the defendant is found entitled thereto. The relief sought is in the nature of . The pleading is good as a counterclaim only and otherwise the motion is granted."], "id": "62f26ab7-cce7-4570-90fa-2dffdb1bbd31", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["If, in exchange for the promise from the District Attorney, the defendant had relinquished some meaningful right or rights to which he would otherwise have been entitled, then steps would have had to be taken to restore him to the position he was in prior to the understanding with the prosecution, or else of the agreement might have been appropriate. But in the instant case, the defendant has lost no rights or been prejudiced in any way, except that he is now confronted with felony charges instead of misdemeanors, exactly the position he was in at the start of the proceedings against him."], "id": "dee1f233-865a-47af-a602-d706a28465ac", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In 5 Wait\u2019s Actions and Defenses, 831, it is stated as' follows : \u201c A suit for , like that of foreclosure, is of a twofold character, partly vn personam and partly vn rem. The court may enforce the contract either by \u25a0operating upon the person to compel a conveyance, or may \u2022pass the title of the land by decree.\u201d"], "id": "0c992324-b9d3-4f0c-a3e7-40b4e4c46739", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Following the jury verdicts, the parties extensively briefed the remaining issues to be determined by the court in equity. Ultimately, the trial court entered its judgment dated January 11, 2017 (\"Judgment\"). The Judgment incorporated the jury verdicts, and entered judgment in favor of MPO and against Appellants on Count I, MPO's claim for of the Settlement Agreement. The Judgment also entered judgment in favor of MPO on Count II of Appellants' counterclaims which had sought a declaration terminating the Ground Lease and ordering the payment of attorneys' fees for MPO's breach of the Ground Lease by not paying rent. With respect to Appellants' declaratory judgment claim, the trial court found that Davis and DSII were the first to breach the Ground Lease when they failed to close on the transactions anticipated by the Settlement Agreement, and that the failure to close was not in good faith and warranted the denial of equitable relief."], "id": "7ce970f7-0d4c-4eab-989d-42cbe472f742", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["As a general rule, the court of chancery will not interfere to compel a of a sale of stock. But an agreement to transfer certain specified shares, founded upon a good' consideration actually paid therefor, or an actual hypothecation thereof for the payment of a specified debt, but not intimated on the books of the company, although it does not transfer the legal title to the stock, is a good equitable transfer or hypothecation thereof, which will give to such assignee a preferable claim over any person who has not a prior equity, unless he has obtained a legal title to the stock by an actual assignment upon the books of the corporation without notice of such equity. This is upon the maxim that where the equities of the parties are equal, and' neither has a legal title, he who is first in time is strongest in right. Qui prior est in tempore, potior est in jure. And as the delivery of the scrip to Bartow with a blank endorsement- thereon, to secure the payment of Barker\u2019s note, gave to him an equitable lien upon this stock to that extent, so the subsequent delivery of the scrip to Kortright, for the security of Bartow\u2019s debt to him, transferred an equitable interest to the same extent, as a- pledge not merely of the stock but also of the $10,000 note for which Bartow held the scrip in security. I have no doubt, therefore, as between Kortright and- the Commercial Bank of Albany, or any other creditors of Bartow, that the equity of Kortright is the strongest; the legal title to the stock being *355ctill in Barker, so that neither of the claimants under Bar-tow has any legal title to the same."], "id": "74170469-5956-48e5-ad17-e76e75a26fdd", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["But the plaintiff has not shown by his complaint that he is entitled to the equitable relief asked. The contract, a of which is sought to be enforced, was entered into in 1842. A part of the consideration was acknowledged to have been received, and the plaintiff agreed to pay the residue, $3019 33, upon the 7th of March, 1845, upon the receipt of which the defendant Rogers agreed to convey the land. It does not appear by the complaint, that the defendant was ever called upon to perform, or that the plaintiff ever offered to pay, or tendered to him the $3019 33, but he rests his equity entirely upon the fact, that Rogers fioe years after the time that the plaintiff was bound to perform, that is on March 1st, 1850, sold and conveyed the property to the defendant Ogilvie, for what the plaintiff regards as an inadequate consideration. It seems that he suffered five years to elapse without doing any thing in performance of the contract, and he now comes into court with the averment that he is ready and willing to perform, and asks that the conveyance to Ogilvie may be declared void, and set aside, and that Rogers may be required to convey the land to him, the plaintiff, upon receiving the $3019 33 with interest, and all sums that Rogers may have paid for taxes or assessments ; or that the land, which is averred to be now worth $10,000, may be sold by order of the court, and after deducting from the proceeds of the sale the amount to which Rogers is entitled, that the residue may be paid to him, the plaintiff."], "id": "7f9ac9f8-2409-4963-afae-751d8745f4ca", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Petitioner is relying upon the equitable powers of the Surrogate as defined in section 40 of the Surrogate\u2019s Court Act. Bespondents do not deny that courts of equity have the power to compel of void contracts in certain types of situations, which are generally referred to as involving part performance, but claim that the Surrogate\u2019s Court is not a court of equity, and its only jurisdiction in this proceeding depends upon compliance with section 227; in other words, even if petitioner had alleged all of the essential elements of a contract, the petitioner could never allege anything but a void contract."], "id": "3f8fc528-51a3-427a-bf00-91e50d1103a0", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Defendants raise six affirmative defenses as bases for judgment in their favor. The first defense asserting that the complaint and affidavits submitted by plaintiff fail to state a cause of action is without merit. Plaintiff has established the existence of Option No. 2, its election to exercise its right to purchase the strip of land under that option, and the refusal of defendants to deed over the property or to submit to the value assessment procedure enunciated in the option agreement. Once plaintiff notified defendants of its election to exercise its option, there existed a binding contract for the sale of realty which may be enforced by . (Trustees of Hamilton Coll. v Roberts, 223 NY 56; Rockland-Rockport Line Co. v Leary, 203 NY 469; 62 NY Jur, Vendor and Purchaser, \u00a7 182, pp 472-473.) Accordingly, plaintiff has established a prima facie case and is entitled to summary judgment unless defendants come forward with evidence which either raises a triable issue of fact or establishes a meritorious defense entitling defendants to judgment. (See Zuckerman v City of New York, 49 NY2d 557, 562.)"], "id": "e8da5a55-5e70-4d89-977e-6035380e6fca", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Additionally, the reference to legal or equitable relief in conjunction with any other pleading or filing denotes the traditional law-equity distinction that lives on in what are termed the \"legal\" versus \"equitable\" remedies obtainable when liability under some substantive right of recovery is proven , i.e., the \"legal\" remedy of money damages versus the equitable relief of injunctions, , and the like. State ex rel. Best v. Harper , No. 16-0647, --- S.W.3d ----, ----, 2018 WL 3207125, at *4 (Tex. June 29, 2018) ; 1 DAN B. DOBBS , LAW OF REMEDIES \u00a7 1.2 (2d ed. 1993) (\"The damages remedy was historically a legal remedy. The injunction and most other coercive remedies were equitable.\"). A third-party discovery subpoena does not seek legal or equitable relief in the traditional sense, and we decline to extend its reach here."], "id": "07cc300f-dcee-4728-9636-02cc7aaf420c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["But let us test the question by a principle which cannot err. Suppose Hubbard and Orcutt had (as they probably would have done in the event of the contract proving a good one) insisted upon the performance of the contract by the plaintiffs in error; and suppose the latter had refused to give a conveyance pursuant to the terms of the contract. Does any man doubt but that the court of chancery would have entertained a bill, and decreed a 1 If so, the contract is mutually binding, and good against all the parties. This test must be conclusive against the defendants in error."], "id": "606c9358-7ecb-4f1a-bb93-f759987bd36c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["As noted above, plaintiffs\u2019 third cause of action seeks compensatory damages, which include their attorneys\u2019 fees, *604and consequential damages. As provided in paragraph 33 of the rider to the contract, plaintiffs are entitled to recover their reasonable attorneys\u2019 fees as the prevailing party in this action for arising out of defendants\u2019 breach of the contract. Plaintiffs shall submit an affirmation of counsel, together with appropriate documentation, as to the basis of the legal fees charged to them, on notice to defendants, within 30 days of the date of this decision. Defendants may respond to such demand for attorneys\u2019 fees within 20 days thereafter. If the amount to be awarded as reasonable attorneys\u2019 fees cannot be agreed upon by the parties, a hearing will be ordered."], "id": "bba89570-2e1a-4303-8e94-9451b7a01882", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs and defendant entered into a contract for the sale of premises 221-227 East 5th Street, Brooklyn, New York. Prior to closing, plaintiffs\u2019 attorneys advised defendant that the contract was being assigned to Kensington Associates, a partnership in which plaintiffs were 2 of 5 partners. The attorneys further advised that the assignment will be executed at the time of closing and requested that all documents be made out in the name of the assignee. On the adjourned date, the closing did not take place and the plaintiffs commenced an action for and the lis pendens was filed in the Kings County Clerk\u2019s office."], "id": "22bdf4c5-725c-406c-b330-5683c242365c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On this point, it is helpful to note that the initial burden of proving the proper remedy remains on the buyer (UCC 2-715, Comment 4). In this instance, plaintiff\u2019s very attempt to prove qualifiable special performance damages has also proved: (a) the value of the disputed automobile was readily established by expert sources; (b) the adequacy of legal contract damages; and (c) the availability of \"a substitute transaction [which] is generally a more efficient way to prevent injury than is a suit for * * * [and gives] a sound economic basis for limiting the injured party to damages\u201d (see, Restatement [Second] of Contracts \u00a7 360, comment c)."], "id": "f5d580d8-b419-491c-98d9-52e3707478a1", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The defendant urges that the whole contract must be enforced,' or no part of it will be. That rule does not apply where the part which cannot be enforced is separable from the other. Where a vendor is unable to completely perform his contract, it is true that the ordinary rule is that the vendee will not be compelled to^ accept a part. Yet even to this rule there are exceptions, notably when one part is separable from the other. (Ogden v. Fossick, 4 DeGex., F. & J., 426; Powell v. Elliot, L. R., 10 Ch., 424; Wilkinson v. Clements, L. R., 8 Ch. App., 96.) But, on the other hand, when the vendee claims performance and the vendor is unable to make complete performances, the vendee is allowed to have all he can get, with compensation for the deficiency. (Morss v. Elmendorf, 11 Paige, 277.) The principle is, that the party who-is not in fault shall be entitled to a of as much of the contract as the other can perform. Here the plaintiffs are not in fault, and the defendant willfully refuses to perform. There is no reason why the court should not compel a specific performance so far as this can be done. (Story\u2019s Eq., 774, 779 ; Pomeroy\u2019s Eq., \u00a7 1407 n.) A further matter is the agreement to stop all passenger trains at this station. Some objection has been made to the granting of specific performance where the contract requires continuous personal action running through an indefinite period of time. (Marble Co. v. Ripley, 10 Wall., 339.) But the propriety of granting this relief in a case like the present was recognized in Phillip v. Great Western Railway Company (L. R., 7 Ch. App., 409). Although it was held that a train carrying mails was not \u201c under the control \u201d of the company, and, therefore, the relief was denied. (See, also, Rigby v. G. W. Ry. Co., 2 Phillips, 44.)"], "id": "f09d2788-3518-4854-a016-9568d4a586e7", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["There is nothing in the pleadings or findings asking the restoration to Burdick or anybody else of his half of tbe contract. As this contract was entire, it is self-evident one-half being dead and extinguished that tbe other half \u2014 tbe surviving part \u2014 cannot be specifically enforced under the well established principles of law as *82above stated. Tlie extinguishment of the undivided half destroyed the whole to such extent as to prevent ."], "id": "80c7ec5b-7deb-4dd1-b864-23d68c4f746d", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["If the plaintiffs have a specific lien, acquired by the contract with Palmer, upon the property which by it was to be conveyed to them, it can be enforced only in equity, and it would be manifestly unjust to refuse to do so, and turn them over for relief to their remedy as general creditors against an insolvent debtor. It cannot be doubted that the plaintiffs acquired by their contract a specific lien, for it is such lien that makes the vendor a trustee of the property for their use, and authorizes the court to decree of such contract in proper cases.' It is the dictate of equity that such lien should' be enforced in such manner as to ensure them an effectual remedy for the injury they have suffered, and this principle I think is sustained by authority."], "id": "e7cc71c1-9348-46d2-afed-63e99b5acffc", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On January 24, 2012, Petrolink sued Lantel for, among other things, , asserting that it had exercised its option to purchase the property and had agreed to purchase it at a price equal to the fair market value of the property based on an appraisal, and that it had offered to tender the value established by its own appraisal-i.e., $320,000.00. Lantel filed a cross-complaint, alleging breach of contract and breach of the covenant of good faith and fair dealing with respect to the lease, and a claim for specific performance, arguing that Petrolink was the breaching party or the party that wrongfully *288refused to consummate the sales transaction for the property. Lantel alleged that Petrolink had \"provided notice to [Lantel] that it was exercising its right to purchase Parcel 1 pursuant to Section 21 of the Lease,\" and that Lantel was \"willing, ready, and able to perform all conditions, covenants, obligations and promises required of it under the Lease, including selling\" the property to Petrolink for the value established by Lantel's appraisal-i.e., $ 1,615,000.00."], "id": "4fef1f43-b4cb-4b2a-8071-f1ca30f40d06", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*760This is because \"[i]mmunity 'implicates a court's subject matter jurisdiction over pending claims,' and '[w]ithout jurisdiction, the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case.' \" Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cnty. , 449 S.W.3d 98, 108 (Tex. 2014) (quoting Rusk State Hosp. v. Black , 392 S.W.3d 88, 95 (Tex. 2012) ; Fin. Comm'n of Tex. v. Norwood , 418 S.W.3d 566, 578 (Tex. 2013) ). Therefore, assuming the Memorandum is a valid contract breached by the City when it failed to develop the Cherry Street Property into a park, we must first decide whether the Act waives the City's immunity from suit on a breach of contract claim for . See id."], "id": "0290a3cf-3792-4522-a99d-0c87fc0e1980", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On or about February 8, 1985 plaintiffs entered into a written agreement with the Murphys for the purchase of their condominium unit. The plaintiffs concede that they were informed of the provision in the bylaws giving the Board a right of first refusal. The contract of sale also required the Murphys to seek an \"early determination\u201d as to whether the Board intended to exercise its right of first refusal. Plaintiffs proceeded to obtain the necessary financing and a closing date was set for May 25, 1985. In or about the first week of May 1985, the Murphys formally notified the Board of the purchase price and the terms of the proposed sale. Thereafter, at the next regularly scheduled meeting, the Board decided to exercise its right of first refusal and designated another unit owner to purchase the unit at the same price and terms offered by the plaintiffs. The plaintiffs have commenced this action seeking of their contract of sale. The matter is now before the court on the motion of plaintiffs for an order enjoining the defendants, pendente lite, from selling the condominium unit to anyone other than plaintiffs."], "id": "d88aa2d4-dffd-4179-bb7b-de25418c2745", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["It is further alleged that the county will have wasted some 3 million dollars in money already expended in furtherance of the domed stadium project and will be subject to the risk of loss of damages for breach of the contract of August 8, 1969. These last two items do bear some causal relationship to the claimed illegality and more properly fall into the traditional category of public waste. On the other hand, under the circumstances of this case, wherein the illegality is dependent upon the resolution of complex factual issues, allegations of public waste do not afford standing to maintain the action. Moreover, even if illegality should be conceded, the type of relief sought in the complaint, to wit, of a multi-million dollar project and a 20-year management contract lies beyond the scope of equitable relief afforded by section 51 of the General Municipal Law."], "id": "a93c1652-c5e2-4f62-a9d0-81783ac03f45", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["So far, it may be said, upon the authority of these early cases, that a court of equity, where it cannot, or where it considers, in view of all the circumstances, that it ought not, to decree a , may, in lieu thereof, award an issue to ascertain the plaintiff\u2019s damages; dr, if it can do so, may fix the amount of the compensation by the application of some equitable rule or measure."], "id": "4434eff3-fac1-4d27-9172-8f7740a96f99", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Finally, plaintiff contends that defendant\u2019s first counterclaim is forestalled by the equitable doctrines of estoppel, waiver, and laches. Plaintiff argues that defendant waived and is now estopped from seeking because it explicitly rejected the air rights fee when given the opportunity in March 2013 and again in January 2014 to close. Plaintiff relied on defendant\u2019s refusal to close by (1) retaining a consultant to negotiate with the City, the party that granted title to the predecessor owner, in an attempt to bargain for a new deed conveying *987the bottom three floors; and (2) by making substantial improvements to the building. Plaintiff also contends that all four elements of the doctrine of laches have been met by defendant\u2019s year-plus delay in seeking to close and accept the air rights fee (see Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991] [\u201cThe four basic elements of laches are, (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant\u201d])."], "id": "5d388f2a-16f1-468c-805c-623d0297170e", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["That all that the defendant did after the fire was to employ a \"few men to take down a part of the walls, which were considered dangerous as they stood. That, without indicating what he would do himself under the covenant, he applied to the plaintiffs upon several occasions to know what they would do about the lease, and stated to them that it would be much better for him to take down the building and erect a more modern \u2022one in a better style, which would command a better rent, and asked if he did so, if they would be willing to pay a higher rent; hut the plaintiffs declined to enter into any such arrangements, and as during two-thirds of the time that had elapsed from the happening of the fire, nothing had been done, and as no materials had been brought to the premises for repairing the building, the plaintiffs, after nearly two months had elapsed from the time of the fire, commenced this suit to compel the defendant to perform his covenant to repair. The equitable relief asked for in the complaint was, that the defendant should be adjudged to perform his covenant; \u2022 that the plaintiffs might be authorized to expend the rent accruing under the lease in repairing the damages occasioned by the fire; that the defendant might in the meanwhile be restrained from taking any proceed*429ings to enforce the payment of the rent, or to disturb the plaintiffs\u2019 possession; and that a receiver should be appointed, to whom the plaintiffs could'pay the rent, that it might be applied towards the making of the repairs, and that such repairs should be made under the direction of the receiver, if the defendant neglected to proceed with due diligence to make them that is, as I infer, if he should not proceed after the court had decreed the of the contract."], "id": "5fe896a0-bdfa-49a3-aa84-b118f338fbfe", "sub_label": "US_Terminology"} {"obj_label": "Specific performance", "legal_topic": "Business Law", "masked_sentences": ["On November 2, 1959, petitioners received the purported demand for arbitration which contains the following statement of the claim or relief sought: \u20181 of the contract dated November 18, 1956 entered into by all parties mentioned in said contract, or in lieu thereof, payment of all damages sustained by the persons or firm aggrieved by such breach, and *1079for such other and further relief as may be determined, together with all costs and disbursements in this proceeding.\u201d"], "id": "f8c702b9-1030-4ced-953c-086fb1a90a2b", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["These conclusions ring true in this action as well. The facts in this case are on all fours with 101123 LLC, and are distinguishable from the facts in S.E.S. for the reasons described in 101123 LLC. Accordingly, the First Department\u2019s conclusion that allowing \u201cwould be tantamount to providing carte blanche to buyers to evade limited remedies provisions by the use of delaying tactics based upon unwarranted construction of contract provisions, the tie-up of property, and the institution of meritless litigation intended to ensure sufficient passage of time for evaporation of title deficiencies\u201d is equally applicable to this action (id. at 112 [internal quotation marks and citation omitted])."], "id": "a00ad713-9824-4207-b9c6-cc885921f20c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Neither of these points need long detain us. On the first point, a complaint alleging that a contract is void under Government Code section 1090 involves, by definition, the issue whether the contract is valid and enforceable. And this is true regardless of whether the complaint also alleges specific contract claims or demands . In a case initiated by such a complaint, a party's entitlement to attorney fees under section 1717 turns on the fact that the litigation was about the existence and enforceability of the contract, not on the presence of particular contractual claims or a request for specific performance. (See Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322, 198 Cal.Rptr. 483 [\"Whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded.... \u00b6 In the final analysis we look to the pleading to determine the nature of plaintiff's claim.\"].) We find no basis to conclude that Eden Township 's holding that a suit seeking to declare a contract void under Government Code section 1090 is an action on a contract applies only in cases in which other contract claims are alleged or specific performance is demanded."], "id": "d8e2bc8f-8118-477e-895f-f072bc2d6b8f", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Arrangements to transfer title to Bohlen were abruptly halted when Lange filed a lis pendens and commenced suit against plaintiff for . Supreme Court *556held in favor of plaintiff. A further delay ensued because of Lange\u2019s appeal which was eventually dismissed by the Appellate Division. The delay caused by these lawsuits set back the transfer of title to Bohlen by about 16 months."], "id": "a662e3f2-e1b1-448b-b0c4-9fb51bbe89d0", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*548The learned counsel for the appellant seems to think it was necessary to show the contemplated act, one which would occasion, injury, and that none was shown nor was it demonstrated that irreparable damage would result from the act designed; which was necessary in order to entitle the plaintiff to the injunction sought. This may be regarded as the general rule. (T. and B. R. R. Co. v. B., H. T. and W. R. R. Co., 86 N. Y. 107.) But courts of equity very frequently grant injunctions in the nature of a to restrain the violation by a tenant of his agreement. (Eden on Injunctions [1st Am. ed,], and eases cited; Tayloi\u2019s Land, and Ten.,, pp. 329, 330.)"], "id": "f8afe08d-be71-45a6-b57b-b1f2a6a5516b", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff vendees sued for of the contract and money damages for the breach thereof. By way of alternative relief, plaintiffs also sought a vendee\u2019s lien for the amount of their contract down payment plus the net title charges. At the trial before the court without a jury, both parties stipulated to the entry of the judgment granting specific performance. The court then took testimony on the question of whether there had been an anticipatory breach of the contract on the part of the defendant resulting in damages, and determined that there had been no breach (Gittlits v. Lewis, 28 Misc 2d 712). No evidence was taken at the trial on the question of whether the defendant would be able to convey title in accordance with the terms of the contract, since this was not an issue raised by the pleadings. As a consequence, the question of whether plaintiffs would be entitled to a vendee\u2019s lien was not determined."], "id": "652ecef4-9a1c-413c-80c4-03e33bccbf9c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In the case of Muck v. Hitchcock (149 App. Div. 323, supra) an action for was brought against a church to compel the conveyance of property which defendant had agreed to sell pursuant to a written contract. The Appellate Division there held that the trial court erred in holding that specific performance could not be directed against a religious corporation where no order had been obtained prior to the execution of the contract. The Appellate Division, however, did not direct specific performance but ordered that the defendant return to the plaintiff the consideration paid under the contract. Thereafter, the Court of Appeals reversed the Appellate Division (212 N. Y. 283) solely on the ground that the Religious Corporations Law did not apply to a foreign religious corporation. Clearly, the language employed by the Appellate Division in that case was dictum, and there is no appellate authority sanctioning specific performance against the will of the corporation."], "id": "14610dba-bac5-4626-901b-8f0ddcf3b535", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The trial court could not award Sharifan both and monetary damages for Yazdani's contract breach. See Haile , 522 S.W.3d at 685 ; Stafford , 231 S.W.3d at 535. We must reconcile the apparent conflict that Sharifan was entitled to both specific performance and damages, if reasonably possible. One indication the trial court was awarding the remedy of damages and not specific performance is that the court concluded that, whatever other remedies or claims might have been available or requested, \"all such other remedies\" were moot where Sharifan elected to recover under his breach-of-contract claim and should recover \"a money judgment.\" Another indication the trial court was awarding damages and not specific performance is that the court did not compel any performance by Sharifan. See Woody v. J. Black's, LP , No. 03-15-00293-CV, 2016 WL 3677241, at *3 (Tex. App.-Austin July 7, 2016, no pet.) (mem. op.) (\"[A] court's order of specific performance of a contract must compel performance by both parties, rather than ordering only one party to specifically perform.\")."], "id": "ea48bb3c-8144-40d3-92f7-dbae6d506fd2", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The exchange of letters between the two firms of attorneys did not create any understanding that is decisive of these motions. The court will not issue a restraining order as a method of compelling of the alleged agreement between the attorneys and neither will the court on the basis of such an agreement interfere with a party\u2019s selection of the attorneys of her choice who have expressed their willingness to act for her."], "id": "bbb1a804-db7e-46f4-9f07-14c4ddbcb213", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Based upon the foregoing \u201cAgreed Statement,\u201d and the accompanying exhibits, this court finds that the plaintiff buyer (hereinafter buyer) is not entitled to . The dishonor of the buyer\u2019s check resulted in a *1029failure of payment of the contractually required deposit. This nonpayment resulted in failure of an essential condition, a failure of consideration, and a material breach of the contract, thus excusing the performance of the defendant seller (hereinafter seller) and entitling the seller to terminate the agreement between the parties."], "id": "315ddbe7-f98a-4cde-92b9-fe5316177bd2", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["I deem it unnecessary, from the view which I have taken of this case, to examine how far a complainant can have a decree for the of a contract different from that prayed for in his bill. It appears to be consistent with sound reason and adjudged cases, that if a complainant file his bill for the specific execution of a contract materially different from that entered into, the defendant is justified in equity in opposing its execution, and the complainant on that bill ought not to have a decree for the agreement set up and admitted in the defendants answer. The case in 2 Vesey, 299, fully supports these propositions; it was for a specific execution of a contract. The defendant set up in his an? swer and proved by paroi (as has been done in this case) a different contract from that in the bill: Sir John Strange, master of the rolls, in giving his opinion on that case on the point now under consideration, says : \u201cI am still of *656the same opinion, and that the bill should be dismissed with costs; for it would be very hard upon a defendant, if a plaintiff should unjustly bring him into a court of equity, where defendant should insist on an agreement different from that which the plaintiff sets up, and the plaintiff should reply to the answer and insist on his former demand, and go into long proofs, and afterwards, finding he cannot have the decree prayed for by his bill, should resort to that which the defendant sets up, and insist on a decree for it.\u201d"], "id": "5a595a4b-4ee9-40f9-8b44-b3be4a90d974", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["A previous suit for of this agreement was resolved in favor of the defendant upon the firiding that title was in the name of defendant and his wife. Since the wife had not made an agreement to sell nor was she estopped to deny such an agreement, specific performance could not be decreed against both husband and wife as prayed for in the complaint."], "id": "71b69409-74e9-43f1-a560-fad97a10f3be", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["It would, of course, be difficult to enforce a of the agreement to make a will, and thus secure to the plaintiff the one-half of the deceased property, and the use of the other one-half thereof to the plaintiff during her natural life. But it is not difficult to see that in a court of equity the action might be retained and damages given. Plaintiff was entitled to relief without stopping to speculate upon the name to be given to the action. ( Wright v. Wright, 54 N. Y., 443.)"], "id": "5be96eed-2d0e-415a-a245-71b02ee8fe4d", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["I am asked to try, in this proceeding, between a per*622son over whom this court has no control and another whose official acts are mainly subject to its jurisdiction, a question of fact in the nature of a fraud. If entertained, it would have to be tried either upon affidavits \u2014-a very unsatisfactory means of arriving at the truth -\u2014or by the oral examination of witnesses. The parties would thus be deprived of a trial by jury of an important matter, and with which, of all others, a' jury is supposed to be most competent to deal. In effect, this; proceeding involves points pertaining to the nature of an action for , in so far as a knowledge, or want of knowledge, by the petitioner, of the order for the removal of the building, or buildings, is concerned. If he had such knowledge, before the sale, Ms excuse for non-fulfilment of Ms contract would fail, and he would be obliged to consummate it. Otherwise, he would be successful. I look in vain for any power given, either directly or by necessary implication, wMch will warrant this court to try such a case. *623and award damages for the neglect of an execntor to fulfil snch a contract. The legislature has never, hy any act which has come under my observation, manifested an intention to invest it with power so large, or to impose upon it a duty so onerous."], "id": "d5b2ccc7-c7e3-4883-ab9a-705afd72f11b", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Note.\u2014The opinion of the vice-chancellor, Willard, is the only one which discusses the merits of this case. And he held, that the party who seeks the *759aid of a court of equity, in enforcing a of a contract, holds the affirmative, and must make out a case entitling him to the relief sought. And must show, 1st. That the legal remedy is inadequate; and that, without a specific performance, injustice will be done, or irreparable injury produced. And, 2d. That the contract is fair, just, and reasonable, equal in all its parts, founded on an adequate consideration, and free from fraud, misrepresentation, or surprise."], "id": "4f78dd71-f129-4b82-b35e-3370c1a1e669", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["We think, however, the view most consonant with the purpose to be accomplished is that anticipatory, preparatory, collateral, and ancillary acts are generally not sufficient part performance to call for an exception to the provisions of the statute of frauds; ... but that some acts done in reliance upon a sufficiently established verbal agreement to convey, and done with the knowledge of the other party to the agreement ... may be so disastrous in their consequences to the one performing as to imperatively call for of an oral agreement. 247 S.W.2d at 825 (emphasis added)."], "id": "935004b2-871b-4318-8812-68cf16174187", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["A contrary result was reached in Brindisi v. Stallone (259 App. Div. 1080, 1081). . That suit was for of a contract by the defendants\u2019 decedent to leave all of his property to plaintiff. The Appellate Division (Second Department) reversed, on the law and the facts, the judgment rendered below and remitted the matter to Special Term to take further proof in accordance with the memorandum decision. Insofar as is here relevant, the court said: \u2018 \u2018 The judgment properly con*928fined the widow\u2019s interest to her exemption rights under section 200 of the Surrogate\u2019s Court Act. When the present widow married the decedent in 1931, at which time the present provisions in the Decedent Estate Law were operative, the decedent prior thereto, in good faith, had obligated himself, for a valuable consideration, to leave all his property to the plaintiff. The present widow, therefore, married the decedent under circumstances that were equivalent to marrying a man who possessed no property that was subject to devolution at his death. The widow, under the statute, had only an expectant interest which was subject to the contingency that the decedent had not in good faith sold or given away or completely encumbered his property in his lifetime. Here, in good faith, prior to his marriage to the present widow, he had obligated himself to plaintiff so as to deprive anyone else of the right to enjoy his property. Therefore, nothing was possessed by the decedent to which the otherwise expectant interest of the widow could attach. The same would be true if, instead of this contract obligation to convey all the property to the plaintiff, there had existed a debt in a sum greater than the decedent\u2019s entire estate. The provisions in the Decedent Estate Law for the benefit of a surviving spouse attach only to such property of a decedent as remains after performance of his obligations and payment of his debts, assuming, of course, that good faith is present throughout.\u201d"], "id": "d9015e65-8f8a-46af-b07d-ae1503958bc8", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Shortly before that email was sent, on April 28, 2015, after discovering that defendants had entered into the contract with Rubin for the sale of same property that was the subject of the contract with them, by their present attorney, the Law Office of *589Jeffrey Fleischmann PC, plaintiffs filed a notice of pendency and commenced this action against defendants. Plaintiffs\u2019 complaint alleges a first cause of action for of the contract, a second cause of action for a declaratory judgment that defendants willfully and materially breached the contract and that they are required to schedule a closing date under the contract as soon as practicable, a third cause of action awarding them compensatory and consequential damages against defendants, and a fourth cause of action, as an alternative to specific performance, awarding them a vendee\u2019s lien for the deposit and any additional funds paid to them of no less than $34,000."], "id": "e7bb173f-2f4e-4f25-8c8f-7f190ba7c82f", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Defendants initially contend that the Statute of Frauds does not operate as a bar to their counterclaim for . The Statute of Frauds provides that an agreement to convey an estate or interest in real property is unenforceable unless it is in writing and subscribed by the party to be charged (see, General Obligations Law \u00a7 5-703). To satisfy the Statute of Frauds, \"a memorandum, subscribed by the party to be charged, must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement\u201d (Conway v Maher, 185 AD2d 570, 572)."], "id": "0c3f1367-7959-4a74-b71d-471b411b5b43", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["*810The New York annotations to the Restatement state that the section is in harmony with the New York law and as illustration cite the fact that the assignee of a vendee under a contract for the sale of land may enforce of the contract hy the vendor (Epstein v. Gluckin, 233 N. Y. 490), while the vendor is denied that remedy against the assignee who has not assumed the terms of the agreement (Langel v. Betz, 250 N. Y. 159). Further exemplification of this conclusion is the fact that the holder of an option to purchase land may enforce specific performance by the vendor (Crocker v. Page, 210 App. Div. 735, affd. 240 N. Y. 638), and specific performance may be decreed in favor of a vendee who had the privilege of rescinding if a certain condition precedent did not come into being and he waived the condition (Catholic Foreign Mission Soc. v. Oussani, 215 N. Y. 1)."], "id": "23d66711-0908-4fcf-ac59-4bb0d178cb3f", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["What is an equitable adoption? The courts in New Jersey do not specifically use that term, although others, who have interpreted the laws of New Jersey have described the applicable doctrine as an \u201c \u2018equitable adoption\u2019.\u201d (Matter of Jarboe, 235 F Supp 505, 507.) Using the language of a leading case in New Jersey, the rule applied is best stated as follows: \u201c[A]n oral agreement to adopt, where there has been a full and faithful performance on the part of the adoptive child but which was never consummated by formal adoption proceedings during the life of the adoptive parent, will, upon the death of the latter and when equity and justice so requires, be enforced to the extent of decreeing that such child occupies in equity the status of an adopted child, entitled to the same right of inheritance from so much of his foster-parent\u2019s estate that remains undisposed of by will or otherwise, as he would have been had he been a natural born child.\u201d (Burdick v Grimshaw, 113 NJ Eq 591, 595.) Therefore, the doctrine to be applied is an oral, written or implied contract right which is enforced in equity (Burdick v Grimshaw, supra; Ashman v Madigan, 40 NJ Super 147; Hendershot v Hendershot, 135 NJ Eq 232). By granting the court of equity is \u201cconsidering as done that which ought to be done\u201d *646(Burdick v Grimshaw, supra, p 596). As a result the term equitable adoption is a shorthand way of describing an equitable result. However, each of these cases involved a claim by or on behalf of the alleged adopted child against the alleged adoptive parent\u2019s estate. No case from the courts of the State of New Jersey has been cited, found by this court or referred to by objectants\u2019 expert witness, who is a former Judge in New Jersey and leading authority in this area of the law, which decides the issue of whether the contract can be enforced by others, so as to permit the relatives of the alleged adoptive parent to inherit from the alleged adoptee. The testimony of-this expert witness, referring to the above cases as well as others in the New Jersey courts, was that a court in New Jersey would permit the relatives of the adoptive parent to inherit. However, that issue was never decided therein and there are no dicta which so indicate."], "id": "948113d5-cd9c-4019-81d8-40ff14c15c8b", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The form of the summons prescribed in the Code makes a distinction between cases for the recovery of money only and those where other relief is sought (Code, \u00a7 129); and in the former the plaintiff may take judgment in case the complaint is unanswered, for the amount mentioned in it (\u00a7 246), thus requiring the complaint to state the amount claimed. In all actions for the recovery of money, a jury trial is a matter of right (\u00a7 253), and amendments to pleadings are limited to those consistent with the case in the complaint (\u00a7 275.) Possibly these provisions may deprive the plaintiffs, where they have given notice in their summons that the relief sought by them is the recovery and payment of money, and demanded such relief in *462their complaint, of the right of so amending their pleadings as to change their case, so far as to the relief sought, as to deprive the defendant of the right of trial by jury. If so, it will be necessary to examine how far such inviolable right of trial by jury has deprived the plaintiffs of a right to equitable relief by decreeing the payment of the purchase-money to them when they have only established a conditional right to the purchase-money on making a good title and conveying it to the defendants. The only difference between the judgment of a court of law for the purchase-money of land, and the decree of a court of equity for the same, always was, that the latter -permitted and required the vendor to make a good title before he was entitled to such money. In the former case, the vendee, upon paying the purchase-money on' the judgment, was left to his remedy of filing a bill for . (Richards a. Edick, 17 Barb., 260 ; 4 T. R., 781; 5 Ib., 366.) I find it, therefore, impossible to conceive how the clogging of the plaintiff\u2019s demand for relief, with any of the conditions imposed by a court of equity, can make the action at all the less one for the recovery of money and one requiring a jury trial. Such conditions are for the vendee\u2019s benefit, and should be claimed by him. There is nothing which calls for the plaintiffs\u2019 offering to do such acts; they are imposed by the court as conditions of granting relief."], "id": "19c39b4d-b20b-43c9-89ba-e516b12b1e32", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["This complaint states a good cause of action against defendant for breach of its contract of insurance with the plaintiff. There are no cases on the precise question in this jurisdiction. There is certainly no precedent for requiring a policyholder to bring this action in equity for . In fact, it is questionable whether such an action would lie as it seems obvious that the plaintiff has an adequate remedy at law."], "id": "3de2d9de-6d7b-494d-ab79-8240768c5998", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["On November 18, 2016, plaintiffs filed their initial complaint. On February 10, 2017, plaintiffs filed the operative first amended complaint asserting causes of action for (1) fraud and deceit; (2) breach of oral contract; (3) declaratory relief; (4) rescission of the MTA; (5) breach of the MTA; (6) breach of the implied covenant of good faith and fair dealing; (7) negligence; (8) negligent misrepresentation; (9) breach of fiduciary duty; (10) quantum meruit; (11) constructive fraud; and (12) of the oral agreement. Jury trial began on December 7, 2018. Defendants requested that the trial be transcribed, but their counsel failed to arrange to have a court reporter present for the first afternoon of trial proceedings. Thus, the voir dire of the jury, the trial court\u2019s initial jury instructions, the opening statements, and a portion of Andrejich\u2019s direct testimony were not transcribed. 5"], "id": "f1fc2b8a-3c2d-4ea5-b1d0-a399ca58bf34", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The courts have relied on the statutory provisions described above to hold that even where a party has entered into an arbitration agreement, that party may file a complaint in superior court seeking resolution of a dispute potentially subject to the arbitration agreement. In Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795-1796, 13 Cal.Rptr.2d 678 ( Brock ), the court explained: \"A party to a contractual arbitration agreement may compel a recalcitrant party to comply with a valid agreement by means of a petition pursuant to section 1281.2, which is in essence a suit in equity to compel of the arbitration agreement. [Footnote omitted.] [Citation.] [\u00b6] But as this court recognized long ago, contractual arbitration is in no sense ... a usurpation or ouster of the judicial power vested in the trial court of this state by our Constitution. ( Snyder v. Superior Court (1937) 24 Cal.App.2d 263, 267 [74 P.2d 782].) As a result, there is nothing to prevent one of the parties to a contractual arbitration provision from resorting initially to an action at law . ( Spence v. Omnibus Industries (1975) 44 Cal.App.3d 970, 975 [119 Cal.Rptr. 171] [ ( Spence ) ]; Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742-743 [59 Cal.Rptr. 783].) The other party, if determined to pursue arbitration, must then take action to compel arbitration. ( Spence , supra , 44 Cal.App.3d at p. 975 [119 Cal.Rptr. 171].) 'A right to compel arbitration is not ... self-executing. If a party wishes to compel arbitration, he must take active and decided steps to secure that right, and is required to go to the court where the [other party]'s action [at law] lies.' ( Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 143 [120 Cal.Rptr. 35].) Consequently, the party seeking to enforce the contractual arbitration clause must file the section 1281.2 petition in the action at law (or raise it as an affirmative defense in the answer) or else the right to contractual arbitration is waived.\" (Italics added; see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 44-45, 12 Cal.Rptr.3d 711 [quoting Brock ].)"], "id": "0cff24e4-5899-4c6c-8ecc-ab2c592c0497", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The Court of Errors reversed the decision; the court holding, that the appellants having gone on the land, and under the written memorandum, made improvements, that was a sufficient part performance of the agreement to take it out of the statute; and that, although the memorandum of the agreement was uncertain in its terms, yet, as a part performance was made the basis of the claim to a of it, parol evidence might be connected with the memorandum in writing, for the purpose of making out the contract; and there being satisfactory evidence of an agreement, independently of the memorandum, the conduct of the respondent was held to be unfair, and such a fraud \u2022 on the appellants, as to justify a decree for a specific performance."], "id": "e597046e-fdcc-4ef7-b95d-f434b47ae1b5", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The allegations relative to and to impress a trust do not necessarily create additional causes of action if they serve as links in the statement of plaintiff\u2019s claim that he has an equitable interest in the property which is a prerequisite to his maintaining an action under article 15 (Karp v. Twenty-Three Thirty Ryer Corp., 185 Misc. 440; Real Property Law, \u00a7 500, subd. 4). It appears, however, that they go beyond such purpose since, following allegations appropriate for specific performance, it is alleged in paragraph 13 of the complaint, among other things, \u201c that except for provisions of Article 15 of the Real Property Law of the State of New York, plaintiff has no other adequate remedy. \u2019 \u2019 Such allegation is not required in a complaint brought pursuant to article 15 (Real Property Law, \u00a7 502) but is a requisite allegation to obtain specific performance (Terner v. Glickstein & Terner, 283 N. Y. 299; Simmons v. Kelly, 195 N. Y. S. 2d 425). And in paragraph 17 it is alleged that by virtue of the conveyance to the defendant wives \u201c a trust has resulted in accordance with the provisions of section 94 of the Real Property Law in favor of the plaintiff herein to the extent necessary to satisfy his just claim for a transfer of the title of the property to him in accordance with the further allegations herein contained.\u201d This too is an unnecessary allegation *235in an action brought pursuant to article 15. Under that article the court is authorized to adjudicate only existing rights of parties and cannot direct transfer of legal title by the defendants to the plaintiff (Gifford v. Whittemore, 4 A D 2d 379, 384). Hence, under the allegations of the complaint, plaintiff might properly seek in addition to a declaration of rights under article 15, a judgment decreeing specific performance and also impressing a trust on the property to the extent necessary to satisfy plaintiff\u2019s claim; and this is so notwithstanding the allegation in the complaint that the action is brought pursuant to article 15 since said allegation is required in order to obtain relief thereunder as provided in section 502 of the Real Property Law."], "id": "971d55bb-54f6-477b-8bf6-24d34e72d92a", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["In order for the court to make an assessment of the amount of damages due to the plaintiffs in the default judgment and whether should be granted, the court shall conduct an inquest on submitted papers. The plaintiffs shall submit to the court and opposing counsel their documentation on damages within 30 days of the date of filing of this decision. The defendant shall submit opposition papers within 45 days of the date of this decision. The plaintiffs shall submit any reply papers within 60 days of the date of filing of this decision."], "id": "e3c5401c-793c-496e-8ac7-ed2aeca30a32", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The complaint sets forth three causes of action. The first cause alleges, in effect, that all parties reside in New York State; on January 28, 1958, and at all times mentioned, the defendants Argendorf owned certain real property in the town of Evans, County of Erie, New York; on January 25, 1958, the plaintiff entered into an oral contract with defendants Argendorf for the purchase of certain standing timber on said premises, \u201cup to 60,000 board feet for the sum of Twenty Five Dollars ($25.00) per thousand on timber of 14 inches or over on the stump and for which the plaintiff made a down payment of One Hundred Dollars ($100.00), the balance to be paid according to the scale slips of lumber cut and removed with all timber to be removed within four months of the date of the contract; and further, for all amounts of timber in excess of 60,000 board feet to pay to the defendants the amount of Twelve Dollars and Fifty Cents ($12.50) per thousand;\u201d cutting could commence immediately and the plaintiff entered into an oral agreement with defendants Goetzman and Janas for the sale of said timber \u201c on similar terms and conditions as with defendants Bernard Argendorf and Mary Argendorf \u201d at the price of $37 \u201cper thousand; \u201d defendants Goetzman and Janas, on January 26, 1958, commenced cutting said timber; on February 7, 1958, defendants Argendorf ordered the plaintiff to cease cutting; the plaintiff partially performed said oral agreement and is *600ready, willing and able to perform it; defendants Argendorf refuse to perform; and \u201cplaintiff has no adequate remedy at law.\u201d The prayer for relief is for and injunction."], "id": "7ac1d5aa-98e5-4ceb-a15a-6e61806e3ddc", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The question submitted to the court is whether the plaintiffs are entitled to a by the defendant of the contract of sale made by him and them. No question is made but that a valid power of sale of the real estate of the testatrix was properly granted by her will to the executors therein named, nor that the devise in trust of the real estate for the purpose of executing the power was conferred as a power in trust. (1 R. S. [Edm. ed.], 681, 682 et seq., %% 72, 74, 77, 94, 106.)"], "id": "2a743caf-57d6-4c17-ab0b-268f7119e80e", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["If the attempted exercise of the options was a \u201c claim \u201d within the meaning of SCPA 1808 and 1810, the executors\u2019 position would have merit. However, those sections relate to claims by creditors against an estate. (3 Warren\u2019s Heaton, Surrogates\u2019 Courts [6th ed.], \u00a7 270, par. 1.) They do not apply to claims to specific personal property in the possession of the estate. (Matter of Kellas, 38 N. Y. S. 2d 197.) That the instant action falls within the latter category is evidenced by the fact that the relief sought in the complaint is .for and not for money damages. Claims to specific personal property in the possession of a fiduciary are governed by SCPA 2105 and the remedies provided thereunder are separate and distinct from those contained in section 1808. (Matter of Kellas, supra.) Subdivision 1 of SCPA 2105 provides that \u201cA person having a claim to specific money or personal property * * * alleged to be in the possession of * * * a fiduciary may present to the court from which letters were issued * * * a petition *953showing the facts and praying that the fiduciary be required to show cause why he should not be required to deliver the specific money or personal property Despite the language of this section, it has been held that former section 206-a of the Surrogate\u2019s Court Act, which was the predecessor to SCPA 2105, did not deprive the Supreme Court of concurrent jurisdiction to entertain such claims. (Bradley v. Roe, 257 App. Div. 1005, revd. on other grounds 282 N. Y. 525; Broder v. Broudarge, 38 N. Y. S. 2d 282.) Inasmuch as SCPA 1808 is inapplicable to the claims herein, they are governed, not by the 60-day Statute of Limitations contained in SCPA 1810, but by the period of limitations operative for SCPA 2105, that is, those contained in the Civil Practice Law and Rules. (Matter of Equitable Life Assur. Soc. of U. S. v. Branch, 32 A D 2d 959.) This being an action for specific performance, the applicable period of limitations is six years (CPLR 213). The supplemental complaint having been served well within that period, the court finds that the action is not time-barred."], "id": "aeb4e3a0-1b50-4197-8ff3-9df3c907b07c", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["\u201c The rule which courts of equity have adopted in suits for the of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite and certain, for the reason, as Judge Stoet expresses it, that a court of equity \u00a3 ought not to act upon conjectures,\u2019 and if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld.\u201d Lobdell v. Lobdell, 36 N. Y. 327. The agreement under consideration seems to meet every requirement of the rule adopted by courts of equity. The decreeing of a specific performance of the contract imposes no hardship or injustice upon the defendant, while the denial of such a decree would operate as a fraud upon the plaintiffs. They executed every part of their agreement, in confidence that the other party would do the same. To permit such other party, or his heirs, now to withdraw from the performance of the contract would aid a manifest fraud against the plaintiffs. It appears from the evidence that there was never any desire or intention manifested by the father of the parties to this action, with whom the agreement was made, to avoid its performance or defeat its operation. It is found as a matter of fact, upon competent and sufficient evidence, by the learned trial court \u201c that Abraham Korminsky, in pm-suance of said agreement, made a last will and testament, wherein and whereby he devised said premises to plaintiffs, but that said will had been lost or destroyed, and plaintiffs have been unable, after diligent search, to find the same.\u201d All the other heirs except the defendant, not parties to the agreement, have conveyed to plaintiffs all the interest in said premises which may have descended to them as heirs at law of Abraham Korminsky, without consideration, and for the purpose of carrying out the agreement in question."], "id": "7238006f-0ca3-4c9a-bd0a-75da20ba1983", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["A memorandum of sale is no less a contract because the parties contemplated the execution of a more formal instrument. (McTague v Conroy, 133 Misc 312, affd 227 App Div 745.) Whether the parties to an informal agreement become bound prior to the drafting and execution of a contemplated formal writing is basically a question of their intent to become or not to become bound. (Gridley & Sons v Northeastern Cons. Co., 36 AD2d 1001; Arnold v Rothschild\u2019s Sons Co., 37 App Div 564, affd 164 NY 562.) In the instant case, the plaintiff paid a $1,000 deposit for the right to purchase certain real property and the defendant accepted the deposit, thereby incurring an obligation to convey the property. The written agreement together with the testimony at trial indicate that the parties contemplated no further negotiations or agreement upon any essential terms and thus, the agreement is binding, notwithstanding the provision for future formalization. (Karson v Arnow, 32 Misc 2d 499.) All of the essential elements of the transaction, including the price, the property to be sold and the date of sale, were stated in the memorandum, evidencing a meeting of the minds. Had the vendor sued for the court could have imposed reasonable nonessential terms, since the parties agreed upon the essential terms. (Berman Stores Co. v Hirsh, 240 NY 209; 1 Williston, Contracts, \u00a7 48.) Consequently, this court finds that although no formal contract of sale was entered into, the memorandum signed by the parties herein constitutes a binding agreement between the parties."], "id": "3a2dcc0c-9b51-45e9-bc3d-32e1d8332fa8", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["There is still another view. The agreement between Mrs. Swan and the plaintiff was acted upon by him. He took possession of the servitude granted to him, and expended money by putting down the water pipes. He was in a position, therefore, to enforce against her of her agreement. He could require the execution of a proper conveyance, if the one produced was not valid. The same rights which he had against her he would have against Snell and the defendant, who took their deeds with knowledge of the plaintiff\u2019s equity."], "id": "a9561e03-d317-431c-a70d-2b9b27ff32ea", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["We further conclude that the court properly granted petitioner\u2019s motion for summary judgment seeking of the stipulation. To the extent that respondent\u2019s arguments in opposition to the motion concern the affirmative defenses that were stricken by the court in an earlier order, *1008those arguments are not properly before us. Respondent also argues that there are questions of fact precluding summary judgment. That argument concerns the distribution of the proceeds of the sale, however, and the \"judgment and order\u201d on appeal provides that distribution of all proceeds will be determined by further order of the court. Thus, any argument with respect to distribution is premature. (Appeal from Order of Monroe County Surrogate\u2019s Court, Ciaccio, S.\u2014Summary Judgment.) Present\u2014Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ."], "id": "b0948345-d72e-4bf0-8033-ebcffadfb397", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Harvey defends this action claiming that plaintiff cannot have a money judgment because plaintiff is not personally obligated to pay the obligations of Arista and, therefore, has suffered no damage. Harvey also claims that an action for will not lie because, under the agreement, Harvey\u2019s obligation to pay the debts of Arista does not arise until the creditors obtain a judgment against Arista. If Harvey merely agreed to indemnify the plaintiff, these contentions might be correct. But the provisions of the August 8 agreement (whereby Harvey agreed to exercise his power as the sole stockholder of Arista to have Arista satisfy the debts of Arista and that if Arista failed to satisfy its debts, Harvey would personally assume and satisfy them) made Harvey more than an indemnitor. By this agreement Harvey undertook a positive obligation to assume the debts of Arista (Trinity Church v. Higgins, 48 N. Y. 532); he became a guarantor of payment of those debts."], "id": "1b3d106a-613e-4e0b-84b6-6d32983a33a3", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["Chronologically, Justice Irving Kirschenbaum, in Emanuel v 306 West 92nd St. Corp. (NYLJ, July 22, 1981, p 11, col 2) denied tenant\u2019s motion for a preliminary injunction in an underlying action for where landlord claimed \u201ca long list of prospective tenants looking for such an apartment\u201d to justify refusal to a sublet under section 226-b of the Real Property Law."], "id": "18e15734-b2ba-4bb7-8fa9-15040cbd7da1", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The City contends there has been no waiver of immunity from suit because the relief sought by the Group is for , which is not a permissible award under section 271.153 of the Act. Specifically, the City argues that under the plain language of subsection (c) of section 271.153, the Legislature waived immunity from suit for breach of contract claims seeking specific performance only when the written contract concerned the sale or delivery of certain reclaimed waters. See TEX. LOC. GOV'T CODE ANN. \u00a7 271.153(c). Because the Memorandum did not concern the sale or delivery of reclaimed waters, there was no waiver of immunity. In response, the Group contends the City's reference to subsection (c) is inapplicable because subsection (c) was not in effect when the Memorandum was executed. Rather at that time, section 271.153 was silent on the recovery of specific performance, and thus, it did not prohibit the recovery of specific performance."], "id": "83c24c81-a84e-420a-a4cd-5850b1fa20b8", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["As noted above, the car was sold prior to the commencement of this litigation for a price of $185,000 more than the $40,000 contract price, and plaintiff requests that he be *123granted in the form of a constructive trust impressed upon the proceeds of sale, plus interest from the date of sale. As it developed, the defendant had not sold at the \"top of the market,\u201d which peaked in July of 1989, approximately two years after the original contract, when the car had a value of $335,000, which was $295,000 over the contract price. Thereafter, collectible automobile values slumped and the sale price of a comparable Astin-Martin vehicle by January of 1990 was $225,000 and, by the time of trial, was $80,000."], "id": "1f4f5f7b-bbaa-42b7-98b0-2f6bd430e4fb", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["The supreme court, in its opinion under review, assumes that \u201c the contract makes no specific provision for hard-pan excavation.\u201d This remark is correct, if by it there is only meant that hard-pan excavation is not specifically enumerated in the contract, in contradistinction to excavation generally ; and, in this view, it would be equally correct to say that the contract makes no specific provision for sand excavation, gravel excavation, or clay excavation. But if the supreme court means, as the conclusion drawn from the proposition seems to indicate, that hard-pan excavation was a description of work which Dubois by the contract was not bound to perform, then the proposition is entirely erroneous. The obligation assumed is in these words : \u201c The said Isaac Dubois doth covenant and agree to construct, in a. good, substantial, and workmanlike manner, all that part of the Delaware & Hudson canal which- is included in .section twelve of the line of the canal,\u201d &e., and afterwards it was specified of what dimensions, form, .and finish this part of the canal should be constructed, and then follows the covenant on the part of the company for compensation, which was \u201c at the rate of nine cents per cubic yard for excavation, and forty cents per cubic yard for rock in ledge, or fragments measuring one cubic yard, and thirty cents per cubic yard for slope wall, and eleven centspercubicyardforembankment,\u201d &c. Bythe terms of the contract,then,itisasplain as words can makeit,thatDuboisboundhimselftodig and construct the canal of the dimensions proposed, whatever should be the materials he had to excavate. Probably the parties did not contemplate, when they entered into the contract, that so large a part, or any part of the excavation, would prove to be hard pan; but the risk of what the excavation would prove, was, so far as the contract shows, assumed by the contractor, and'in strict law he was bound by it. It is said that a court of chancery would have relieved him from , on the ground of mistake ; perhaps it would, but this does not affect the question which is now before us. Certainly it would have been inequitable and oppressive for the company to insist on a strict fulfilment, if it were to be attended with a ruinous sacrifice. But as they had the legal right to do so, any modification which they saw fit to make of the terms, by which they would be more advantageous to the contractor, was gratuitous, and though obligatory inasmuch as the contract was executory, is still not to be extended, by implication or inference, beyond the express agreement or understanding of the company. The case admits that there was no express agreement for extra allowance for hard-pan excavation, but it was proved by the resident engineer, that in his monthly estimates hard-pan was set down as extra work, and allowed for. as such, by considering it as embankment, at eleven cents per yard, under the contract, and then adding fourteen cents a yard thereto, so as to make, in the whole, an allowance of twenty-five cents a yard. This extra allowance, it seems, the contractor was aware of while he was prosecuting the work, for it is proved that he at all times objected to its sufficiency. But if it was, as it seems evidently to have been, a gratuitous allowance, that is, an allowance which by strict law the company was not obliged to make, the objection to its insufficiency could have no effect; it certainly cannot have the effect of entitling the party to recover more in a court of law."], "id": "691f8339-4a1f-4338-bc45-4fae1bb1b020", "sub_label": "US_Terminology"} {"obj_label": "specific performance", "legal_topic": "Business Law", "masked_sentences": ["See Heinrich , 284 S.W.3d at 373-76 (otherwise-proper ultra vires claims implicate immunity to extent remedy has effect of retrospective monetary relief); IT-Davy , 74 S.W.3d at 855-56 (contrasting permissible ultra vires claims with \"suits against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities,\" which \"are suits against the State ... because [they] attempt to control state action by imposing liability on the State\"); W.D. Haden Co. v. Dodgen , 158 Tex. 74, 308 S.W.2d 838, 840 (1958) (\"There is a clear distinction between [permissible ultra vires claims] and suits brought against an officer to prevent exercise by the state through some officer of some act of sovereignty, or suits against an officer or agent of the state to enforce of a contract made for the state, or to enjoin the breach of such contract, or to recover damages for such breach, or to cancel or nullify a contract made for the benefit of the state.\") (quoting Imperial Sugar Co. v. Cabell , 179 S.W. 83, 89 (Tex. Civ. App.-Galveston 1915, no writ) ); see also Texas Dep't of Transp. v. Sawyer Trust , 354 S.W.3d 384, 388 (Tex. 2011) (observing that \"sovereign immunity will bar an otherwise proper [ultra vires ] claim that has the effect of establishing a right to relief against the State for which the Legislature has not waived sovereign immunity\") (citing City of Hous. v. Williams , 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam))."], "id": "d1953f81-069c-4a1d-962f-7798a7a2b3bc", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The defendants seek a dismissal of the first cause of action in this lawsuit. Said cause of action seeks an accounting and enforcement of the \"equal gifts\u201d portion of the agreement. Plaintiff is the daughter of the decedent and seeks enforcement as a of the agreement. The defendants assert that any possible enforcement of the agreement is barred by the applicable six-year Statute of Limitations. (See, CPLR 213.)"], "id": "19e4f5c7-07ed-4f31-be48-9873ba303335", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["While the No-Fault Law provides a limited window of arbitration between no-fault insurers (see Insurance Law \u00a7\u00a7 5105, 5106 [d]; Eagle Ins. Co. v ELRAC, Inc., 291 AD2d 272 [1st Dept 2002]), the statutory language does not pertain to a health insurer such as Aetna. Thus, Aetna cannot maintain a claim against defendant under the principle of subrogation (see Health Ins. Plan of Greater N.Y. v Allstate Ins. Co., 2007 NY Slip Op 33925[U] [Sup Ct, NY County 2007]). Nor may Aetna assert a breach of contract claim against Hanover, since it is not in privity of contract with Hanover, and there has been no showing that it was an intended of the contract. Concur \u2014 Tom, J.E, Acosta, Freedman and Kapnick, JJ. [Prior Case History: 2013 NY Slip Op 33221(U).]"], "id": "295905ea-7eab-463c-9f1d-ba43113bc16c", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["There is no dispute as to the essential facts. On these facts, the plaintiff sues on four causes of action against the Chase Bank: (1) That Samuel Schupper, the plaintiff\u2019s assignor, was a of a contract between the Chase Bank and the Rotterdam bank; (2) that the Chase Bank, upon receiving the order from the Rotterdam bank, was deemed to have made a deposit to the account of Samuel Schupper, the plaintiff\u2019s assignor; (3) that the Chase Bank was negligent in the performance of its contract, in that the Chase Bank breached its duty owed to its depositor (Samuel Schupper) in paying out funds intended for him and in not depositing these funds to the account of the depositor, or, at least, in not inquiring of the Rotterdam bank as to the proper disposition of the funds before paying the money out; and (4) that the Rotterdam bank was, to the knowledge of the Chase Bank, acting as the agent of Wolf, that the Chase Bank owed a duty to ascertain the person to whom the funds should be paid, and that the Chase Bank negligently paid out the funds to Sidney Schupper. Although stated in several different theories, the plaintiff\u2019s claim for relief is based upon the alleged legal impropriety, in the circumstances, of the Chase Bank\u2019s payment to Sidney Schupper of an amount due to Samuel Schupper."], "id": "46b100e7-4b9e-40ca-b4bb-871ecd7ef8a0", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Lcmrence v. Fox does not apply to every case in which a person claims to be a \u201c \u201d of a contract between two others. It does apply to cases where there is a legal right founded on some obligation of the promisee to the beneficiary, to cases where the contract is made for the benefit of a near relation of a party to the contract and to cases where at the request of a party to the contract the promise runs directly to the beneficiary although he does not furnish the consideration. (Seaver v. Ransom, 224 N. Y. 233.) There must be a duty owing by the promisee to the party claiming to sue on the promise. (Seaver v. Ransom, supra, p. 240.) This requirement, however, 11 has been progressively relaxed until a mere shadow of the relationship suffices, if indeed it has not reached the vanishing point. (Corbin, Third Parties as Beneficiaries of Contractors\u2019 Bonds, 38 Yale Law Journal, 1.)"], "id": "4a4ac8e3-ca2c-4609-a5e9-015a01695d61", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Both Aetna and the Rental Corporation move for summary judgment in the third-party action. Aetna claims that the accident \u201cdid not result from ownership maintenance or use of a covered auto under the terms of the policy\u201d. Although it hints that, because there is no mention of snowplowing or snowplows in the insurance policy, the vehicle was not a covered auto, Aetna focuses on the lack of connection between plaintiff\u2019s injuries and the driving function of the truck to which the snowplow was attached. The Rental Corporation claims that if plaintiff\u2019s injuries were caused by negligent snowplowing, then the accident resulted from the use of a motor vehicle within the meaning of the policy. The Rental Corporation also moves, in the alternative, for summary judgment on its cross claim against the Town for indemnification. The Town, in turn, supports the Rental Corporation\u2019s motion for summary judgment against Aetna, asserting that as of the insurance contract, Aetna owes the Town the same duty to defend and indemnify as it owes to the Rental Corporation. The Town opposes the motion for summary judgment against it on the ground that judgment *246on the third-party claim against Aetna renders the cross claim moot, and on the ground that, if Aetna is entitled to summary judgment, then the Rental Corporation is nonetheless liable to the Town pursuant to the contract between the defendants. Plaintiff does not appear on the motion."], "id": "f14e674c-d1f7-42cf-9763-35d2f312d6da", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Moreover, neither Harris nor RN Solution in fact applies so broad a rule as some of their language, taken in isolation, arguably suggests. In Harris , the doctor at issue was not only an employee of the corporation that entered into the arbitration agreement, but also a of that agreement. ( Harris, supra , 188 Cal.App.3d at p. 479, 233 Cal.Rptr. 186.) Similarly, in RN Solution , the party opposing enforcement of the arbitration agreement in fact signed it in her capacity as the corporation's president and CEO, and had personally \"benefited financially and professionally\" from it, so she was not only an \"agent-employee\" of the corporation, but also a third-party beneficiary. ( RN Solution, supra , 165 Cal.App.4th at p. 1520, 81 Cal.Rptr.3d 892.)"], "id": "42a6083b-7705-4748-8136-73a2061b501b", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In New York Jurisprudence (10 NY Jur, Contracts, \u00a7 249, p 176, supra; citing, inter alia, New York Pneumatic Co. v Cox Constr. Co., 201 App Div 33, affd 235 NY 567; Little v Banks, 85 NY 258, 263), the rule as to third-party beneficiaries of a public contract is stated thusly: \"The rule permitting a to sue upon a contract has been applied to *654certain public contracts. Thus, contractors with the state or a municipality who assume, for a consideration received from the sovereign power, by covenant expressed or implied, to do certain things, are liable in case of neglect to perform such covenant, to a private action in a suit of a private party injured by such neglect, although the state or municipality might not be liable to such party, and such contract inures to the benefit of the individual who is interested in its performance. This rule has been based upon the theory that the contractor, having received a consideration from the sovereign power for performing a public duty, is liable for neglect to discharge that duty to anyone who thereby sustains special damages.\u201d"], "id": "246bf2fa-9a55-4493-8bd4-479cce003290", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Citation of authority is not required to sustain the court\u2019s power to condemn an ordinance as a violation of higher law, where the validity of the ordinance is properly before it. The real question is whether the very passage of this ordinance subjects it to review under article 78 of the Civil Practice Law and Rules. It is true that the action of legislative bodies upon applications for special use exceptions pursuant to zoning ordinances are subject to this type of review as in Matter of Rhodes v. Waters (15 Misc 2d 119), despite the untrammeled discretion of the legislative body (Matter of Lemir Realty Corp. v. Larkin, 10 A D 2d 1005, affd. 11 N Y 2d 20). However, special use exception matters fall into an \u201c administrative \u201d category similar to applications for zoning variances (Matter of Copp v. Mead, 194 N. Y. S. 2d 144, 146). Nevertheless, the contrary rule applies to legislative action on applications for a change of zone. Those matters being amendments are \u201clegislative.\u201d They are not susceptible to direct review under article 78 (Matter of Buckley v. Fasbender, 275 App. Div. 853; Matter of Pelham Jewish Center v. Board of Trustees, 9 Misc 2d 564). I deem the instant ordinance to be governed by the latter rule of procedure. The appropriate remedy might be by plenary action for judgment declaring the ordinance unconstitutional or in violation of any rights petitioner might have as a of the lease; or perhaps some or all of the *134issues may be raised by appeal from a determination enforcing it (see, e.g., People v. Gilbert, 307 N. Y. 773; People v. Kraushaar, 195 Misc. 487; cf. People v. Greeman, 137 N. Y. S. 2d 388). Therefore, I rule as has Mr. Justice Hoyt in Matter of Lee v. Board of Trustees of Vil. of Briarcliff Manor (N. Y. L. J., July 9, 1964, p. 10, col. 5), that this proceeding does not lie."], "id": "b0de119f-9fbc-4978-b2a1-c34103ef98e7", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The principal issue raised on this motion pertains to the employee\u2019s right to initiate the instant application, i.e., his status as a \u201c party to the controversy which was arbitrated,\u201d within the purview of the statute (Civ. Prac. Act, \u00a7 1462). By virtue of the fact that it is his job tenure which is at stake and which was the subject of the controversy, the employee claims status under the bargaining contract. The issue pertaining to the employee\u2019s right to initiate this proceeding must be determined by the court before reaching the merits of the application itself."], "id": "6182d94a-16c4-40b3-aabb-983ccfb0f980", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The defendant urges that, since the Government has a one-year right of redemption, her tenancy should not be interfered with during that period, as the benefit of the lease would be lost to the redemptor. Notwithstanding, that this is of no concern to the defendant, that argument assumes that the lease is something of value to the property when in all likelihood the terms of the tenancy were a contributory factor to the circumstances that resulted in foreclosure. Be that as it may. there is no New York authority, statutory or otherwise, that a lease made subsequent to a recorded mortgage (which is the situation here) should remain in effect for the duration of a redemption period fixed by Federal statute for the Government\u2019s protection. The Federal law which merely gives the Government the right of redemption affects only the title of the mortgaged premises for that period after a foreclosure sale. It is so recognized by the courts of this State. (Co-operative Loan and Sav. Soc. v. McDermott. 14 A D 2d 590: Eawitable Life Assur. Soc. v. Hochstein, 45 Misc 2d 450.) For the defendant to have any enforceable right as a , as she claims, it must be shown that the plaintiff made a promise upon a valid consideration to a third party for the defendant\u2019s benefit, although she was not privy to the consideration (Lawrence v. Fox, 20 N. Y. 268). There is a complete absence of such a showing."], "id": "28179a71-dfc6-40f7-8c69-9434d4801035", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In Milliken & Co. v Consolidated Edison Co. (84 NY2d 469 [1994]), the Court of Appeals found that commercial tenants had no right to make claims for physical damage or associated economic loss caused by a power interruption against Con Ed as a where they were submetered for electrical use and the landlord was the utility\u2019s customer, absent an express undertaking by the utility. In Tri-Tone Litho v Consolidated Edison Co. (230 AD2d 625), commercial tenants who were not in a contractual relationship with Con Ed claimed that Con Ed failed to upgrade plaintiff\u2019s service for several months, causing alleged economic damages. The Court found that Con Edison owed such tenants no duty. Clearly, a utility should not be liable to commercial tenants it is unaware of, conducting types of business which it is unaware of, for economic damages which could not be foreseen."], "id": "9216411a-434e-4337-8bc1-22fa735bc19c", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["On November 15, 2016, appellants filed a motion to compel arbitration and separately filed brief in support asserting that because Glenda Sue was a of a valid, enforceable arbitration agreement between appellants and Tonja Belt, Jesse Alan should be ordered to submit to arbitration in accordance with that agreement. Jesse Alan responded on November 30, 2016, denying that the arbitration agreement was valid or binding against Glenda Sue as Belt was not \"the Resident, or the person duly authorized by the Resident\" to execute the agreement and accept its terms, a requirement of the arbitration agreement. Appellants replied to Jesse Alan's response on December 13, 2016."], "id": "264eb973-a783-4d55-839e-e5c4ea70cd99", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Even if Cohen acted as an agent for his clients, he did not have standing to bring a \"representative petition\" to compel arbitration on their behalf. Cohen was not a party to the subscription agreements, nor does he identify any substantial, personal interest in the agreements. He does not claim to be a third party beneficiary, his clients did not assign him the notes or any of their rights under the subscription agreements, and he identifies no statute *357giving him standing to enforce the subscription agreements on behalf of his clients. He was perhaps an attorney-in-fact or an investment manager, neither of which gave him standing to enforce the agreements. (See JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1240, fn. 20, 123 Cal.Rptr.3d 429 [\"when a nonsignatory of a contract is attempting to seek relief for breach of the contract itself, that nonsignatory must be doing so by means of either a argument, or a legal theory which entitles that nonsignatory to 'stand in the shoes' of a party to the agreement-either by virtue of a preexisting relationship, or as an assignee or successor in interest\"]; Northstar Financial Advisors, Inc. v. Schwab Investments (N.D.Cal. 2009) 609 F.Supp.2d 938, 942 [investment manager could not \"bring claims *858on behalf of its clients simply by virtue of its status as an investment advisor\"], revd. on another ground (9th Cir. 2010) 615 F.3d 1106.)"], "id": "d12c0d76-6969-4976-a8ce-ddba16d6fc50", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The escrow agent must take whatever steps may be necessary to fulfill his or her duties properly. Here, defendants\u2019 duty was to strictly execute the terms of the escrow agreement (Farago v Burke, 262 NY 229, supra; Schuman v Conforti, 41 AD2d 661 [2d Dept 1973]), and failure to fulfill the duty entitled the of the subject matter of the escrow (herein the plaintiff) to bring an action against the escrow agent without joining the promisor (herein TFC) (see, United States v Jacobs, 304 F Supp 613 [SD NY 1969])."], "id": "3e83f82f-6635-4f3b-a3e2-d5bace8d4c4c", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["It is clear that if the area in which the accident occurred were a State roadway and the lighting in question was owned and maintained by LILCO, that there would be no liability on the part of the public utility. (See, Kraye v Long Is. Light. Co., 42 AD2d 972; Shubitz v Consolidated Edison Co., 59 Misc 2d 732; Nicholson v City of New York, 271 App Div 899, affd 297 NY 548.) It would appear that the defendant town, in the case at bar, is in a position similar to the public utility in terms of Hempstead Turnpike, inasmuch as that road is not a town road but a State road for which the town has no responsibility to maintain. If any one owes the public a duty to make them reasonably safe to pass over, it is the State. The town is merely in the same posture as the public utility vis-\u00e1-vis the road known as Hempstead Turnpike, and it is merely furnishing a benefit which it has the right to discontinue at its discretion. There is no more an indication of an intent to furnish rights herein than there are in cases where a municipality contracts with an outside party to provide services which will benefit its citizens or the public, e.g., water supply (Moch Co. v Rensselaer Water Co., 247 NY *545160), and illumination of public roads. (Kraye v Long Is. Light. Co., supra; Kornblut v Chevron Oil Co., 62 AD2d 831, 843 [concurring opn].)"], "id": "69133813-18e4-4299-8d06-9eeac55b505c", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In 1990, with construction approximately 85% complete, plaintiff and the City became involved in a dispute over certain low-income housing requirements and, as a result, the City failed to tender payment of approximately $35,000 of the CDBG funds that were allegedly due pursuant to its loan agreement with plaintiff. Work on the project stopped and plaintiff commenced this action against the City for breach of contract. The City in turn filed a third-party complaint against Whitman and Beautz, seeking indemnification, contribution and recovery as a of their contracts with plaintiff, and charging each with negligence. The third-party action was severed from the main claim, and the latter proceeded to trial, after which a jury found that the City had unjustifiably breached its loan agreement with plaintiff."], "id": "5fb3b7e1-722f-4fcc-a059-ad421b6cd8af", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["As to the first part of the second defense, namely, that Dave Fleischer has no standing to sue in his individual capacity, defendants claim that he was not a party to the agreement and cannot assert any claim on behalf of himself individually under the agreement, maintaining that the Fleischers chose to produce cartoons under the protection of a corporate organization and that Paramount acceded to dealing with them on that basis and that the relationship between Fleischer Studios, Inc., and the Fleischers was that of employer-employee and that they cannot now claim that they as individuals were party to the agreement between their corporation and Paramount. Moreover, defendants claim that there is no claim made herein by plaintiff that he is a of the contract between Paramount and Fleischer Studios, Inc., or that the contract was intended for his direct benefit. Defendants finally contend that if Dave qnd Max Fleischer were parties to the agreement between Paramount and Fleischer Studios, Inc., there would be no necessity for the wholly separate contract also dated May 24, 1941 between Paramount and Max and Dave Fleischer."], "id": "8bd52b23-5027-463b-b26a-f3bc4a3ce00d", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In the ninth cause of action which is based on contract to recover for the infant\u2019s conscious pain and suffering prior to his death, it is not clear whether plaintiff is suing on the theory that the infant was a of a contract between the defendant and his parents or whether the newly born infant was a direct party to the contract. The complaint alleges, among other things, that the infant \u201c through the agency of those acting on his behalf, duly performed all of the conditions precedent to be performed on his part in relation of the agreements with the defendant \u201d."], "id": "553076d5-d62c-43b0-ad38-57f887df2788", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["However, the tenant must pay the common charges as a for services rendered the tenant by the condominium. In Seaport S. Condominium (supra, at 875), the court held that \"given the established fact that [the tenant] has not paid either basic common charges or the additional charges for fuel, late fees, interest [or] attorneys\u2019 fees, an order directing use and occupancy should be entered.\u201d The defendant clearly benefits from the services provided to her by the condominium and must bear the costs involved in paying for those services. A reasonable use and occupancy is at least $245.67 per month, which is the common charge for this unit. *594Therefore this court is ordering that the defendant pay use and occupancy from October 17, 1994 (the date the summons and complaint were filed) through April 17, 1996, which is 18 months at $245.67 per month for a total of $4,422.06."], "id": "3f805287-8829-4342-9df8-607955c5996e", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["*681No agreement directly between the plaintiff and the newspapers is pleaded or claimed to exist. Neither does the complaint plead a contract between the defendants for the plaintiff\u2019s benefit, and therefore the doctrine which permits a recovery by a can have no application. It follows therefore that the complaint is insufficient as against the moving defendants and is dismissed with leave to replead in accordance with this memorandum, if plaintiff be so advised."], "id": "2849b60d-ed25-4957-9d1e-e024055a70a9", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["There is no question that the property owners are the dominant obligees, and that the plaintiff, as a , may have recourse to the bonds only to the extent that they remain untouched by the needs of the former. However, this does not defeat the right of plaintiff to bring the action, but may only be availed of by way of an affirmative defense."], "id": "d1061aa7-cf9a-408e-b4a1-810a72ea6b6d", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["If it is not altogether clear whether it is on the theory of implied agency or doctrine, or because it is a \u201c wrongful act, neglect or default \u201d (Greco v. Kresge Co., 277 N. Y. 26), it is manifest, nevertheless, that in these cases of the breach of an implied warranty of fitness for use in connection with the sale of foodstuffs, the traditional concept of privity no longer constrains the courts to an absurd as well as unconscionable result."], "id": "512b603d-6e91-49e8-8363-787ea20cdfdc", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The court further finds that even if plaintiff was a of the contract between Halls Security and the City of New York, it cannot be concluded that Halls Security could have reasonably expected, anticipated or prevented the attack upon Natale Macaluso. (See, Moberg v New York Yankees, 218 AD2d 731; see also, Harper v Wells Fargo Guard & Investigative Servs., 226 AD2d 345.) To the extent that plaintiffs assert that Halls Security failed to provide campus patrols as required by their contract, this claim, at the most, constitutes a breach of contract and does not raise any triable issues of fact as regards the claim of negligence."], "id": "e90376c3-9318-47c9-99ea-f8ef44028d6b", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In expressing the grounds for this decision, it does not seem necessary that the covenant be here set out in full. It is true that the covenant is inartistically drawn and, as a whole, is somewhat ambiguous, but it clearly does prohibit the erection upon lands of defendants of an apartment house and the occupancy o'f a dwelling on such lands by more than two families. I do note that the covenant is stated to be by the party of the second part (the grantee from Iselin) \u201c and his heirs and assigns * * * to and with the said Adrian Iselin, Jr., his heirs, executors and administrators \u201d and that there is nothing in the wording thereof indicative of the intent that it is imposed *304for the benefit of the assigns or grantees of said Iselin. Therefore, the plaintiff may not enforce the covenant on. the theory that she is a of the contract. (See, Hungerford v. Ocean Gardens, 283 App. Div. 797, affd. 308 N. Y. 765.)"], "id": "f3b17e02-6f89-4986-b9fc-4e750968f619", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["\u201cParties asserting rights under a contract must establish \u2018(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost.\u2019 \u201d (Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786 [2006], quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983].) \u201cIt is the generally accepted rule that the intent to confer a direct benefit on a third party must clearly appear in order to enable such a party, not named in the contract, to recover there*180under.\u201d (Snyder Plumbing & Heating Corp. v Purcell, 9 AD2d 505, 508 [1st Dept 1960].) There must be a \u201cclear intention to confer the benefit of the promised performance.\u201d (PT. Bank Mizuho Indonesia v PT. Indah Kiat Pulp & Paper Corp., 25 AD3d 470, 471 [1st Dept 2006].) \u201cAbsent such intent, the third party is merely an incidental beneficiary with no right to enforce the contract.\u201d (Strauss v Belle Realty Co., 98 AD2d 424, 426 [2d Dept 1983]; see also Beveridge v New York El. R.R. Co., 112 NY 1, 26 [1889].)"], "id": "63c9539e-07b0-4110-b04c-ad53e8432ab7", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Claiming that the parties had no right to alter the stipulation insofar as his fee was concerned and that the court had no power, authority or jurisdiction to act as it did in \u201d so ordering \u201d the vacatur of the stipulation without his consent, plaintiff has brought this action wherein he seeks to recover as a from the defendant Severino the sum of $2,000 as agreed."], "id": "305035d0-3657-4a65-bdc0-ea7d4004d427", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["*780There is no question but that there was a contract of life insurance between deceased, Frank Martin, and defendant. The plaintiff, Susan Martin, is a of such policy and may recover only pursuant to its terms. Defenses to the promisor defendant life insurance company, on the contract which induced its promise, are available to the same extent that it would be if it were sued by the initial promisee (i.e., Frank Martin)."], "id": "d47f0117-5794-4631-ae8c-2b74c06befa2", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Section 2.18 of the agreement provides, inter alia: \u201cWestern Union agrees that for a period of 25 years after the Closing Date it will not compete, either directly or indirectly, by wire, radio or other means of communication, now or hereafter existing, with the Cable System in international telegraph operations [as defined from time to time in the Communications Act].\u201d Plaintiff, alleging standing as a of the contract, claims a breach of this covenant against competition. The time frame is based upon the allegation that the closing date of the agreement was September 30,1963, and that therefore, the covenant against competition is effective through September 30, 1988."], "id": "c5e839b9-b361-496a-b2cb-4ed92609ee95", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The biggest roadblock to the actual use in New York of the rule (by its name) in breach of warranty cases, has been due to the claim that the Gimenez case (264 N. Y. 390 [1934], supra) is authority for the proposition that the third-party beneficiary doctrine is not applicable in breach of warranty cases. And so the courts have continually refused to employ the rule as a means of circumventing the strict privity doctrine of the Chysky case (235 N. Y. 468 [1923], supra) because the court said (Gimenez v. Great Atlantic & Pacific Tea Co., supra, p. 395): \u201c the courts have never gone so far as to recognize warranties for the benefit of third persons.\u201d"], "id": "8da996ab-2c18-4788-bcf3-d90c9183730b", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The theory upon which the plaintiff son bases his cause of action is that he is a of the separation agreement and is entitled to recover the amount of expenses allegedly incurred by him by reason of defendant\u2019s alleged breach of the agreement in failing'to pay his college expenses. The right of a child to bring an action to enforce a provision of a separation agreement between his parents has been upheld by the Court of Appeals in Forman v. Forman (17 N Y 2d 274). The argument that, since the separation agreement did not provide for payment to the son himself of the cost of his college education, he cannot maintain the instant action is not sufficient to warrant dismissal of his cause of action. Clearly, the subject provision of the agreement was designed for his benefit and if, in reliance thereon and in anticipation of reimbursement, he expended sums of money for his college education, his cause of action should not be dismissed for insufficiency in advance of a trial."], "id": "13302ee2-a97f-4adf-8211-8126aa6532ab", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Finally, this court fails to concur with movant\u2019s interpretation of the license agreement that members of the general public \"cannot be deemed to be intended beneficiaries of that portion of the contract relating to operation, repair or maintenance,\u201d because American Golf has no possessory interest, but that members of the general public can sue if excessive fees are charged because it is clear that members of the general public were intended to be specific beneficiaries of the contract concerning fees. (See, mem of law.) If the rationale is that plaintiff cannot commence an action against American Golf for failure to maintain the premises in a safe condition because it is not in privity of contract, then it follows that plaintiff cannot commence an action against American Golf for a refund, but must seek the refund from the City instead. In this regard, American Golfs reliance on Kornblut v Chevron Oil Co. (62 AD2d 831 [2d Dept 1978]) as supporting American Golf\u2019s rationale is misplaced. In Kornblut (at 834): \"[t]he plaintiff chose to seek recovery on the theory that the decedent was a of the contract between Chevron and the Thruway Authority, and in making that choice risked the consequences which follow the theory of contractual obligation [citation omitted]. We must treat the Thruway Authority as a creation of the State, carrying out a governmental function (Public Authorities Law, \u00a7 353) including, among other things, the construction of 'suitable facilities for gas stations\u2019, which 'shall be publicly offered for leasing for operation * * * under rules and regulations to be established by the authority\u2019 (Public Authorities Law, \u00a7 354, subd 10), and the operation and maintenance of the Thruway, either by its own equipment or by agreement with independent contractors, or both (Public Authorities Law, \u00a7 360). Hence, the contract between Chevron and the Thruway Authority and the contract between [defendants] must be considered in the light of the law controlling the relationship between the government and its contractor and a third party claiming injury arising out of a breach of the contract.\u201d In contrast, plaintiff herein is not suing on a contractual theory; plaintiff claims that defendants were negligent in the maintenance of the facilities."], "id": "94805417-4cf6-41f0-82e0-88d91a3ea0c3", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The committee, as plaintiff, instituted an action in Supreme Court, New York-County, against the then preliminary executors of the estate (the will has since been admitted to probate). This action, transferred here by order of the Supreme Court, seeks damages for breach of contract in the sum of $5,000,000 in behalf of the incompetent, as a under a separation agreement entered into between her parents, both now deceased. Incompetent\u2019s father, this decedent, agreed that he would make \u2018 \u2018 adequate provision in his Will for the maintenance and support of said Marie Meister and for payment of all expenses incurred or to be incurred for her medical care and treatment \u201d. The separation agreement during the lifetime of the father called for the payment of $2,000 per annum. In his will he provided that the income of a parcel of real property in Hempstead, Long Island, be paid by the trustees in their dis*461cretion for her care, maintenance and support. The income from this trust for her benefit during the year 1967 was $5,284.14, more than two and one-half times the annual provision for her support agreed upon between the parties during the decedent\u2019s lifetime. A principal issue in this case was whether the provision made by the will was within the intent of the parties. Sharp questions of law and fact were faced by the parties during the time the settlement was in process of negotiation. At the time the settlement was reached the parties were faced with (questions of construction relating to the separation agreement and the will and questions as to the intent of the parties in respect of the obligations of the husband. Under the settlement the incompetent, now 42 years of age, will receive the income of a trust amounting to $300,000 with provision for invasion to the extent of $10,000 a year, totaling $100,000 of that fund. This income amounts to more than five times that which she would take under the will. This estimate does not take into account what will be available out of the $100,000 by way of invasion over the next 10 years. The $300,000 will be funded undiminished by any compensation which is to be allowed to the attorney for the committee. He is to be paid from the general estate, then approximately $1,300,000."], "id": "24698a5c-d970-4de1-9665-7ae0eae0366b", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["As a of the 1947 agreement, Linda is a contract creditor of the estate (Matter of Granwell, 20 NY2d 91; Simonds v Simonds, 45 NY2d 233; McClare v Massachusetts Bonding & Ins. Co., 266 NY 371; Seaver v Ransom, 224 NY 233; Matter of Brown, 41 AD2d 275, revd on other grounds 33 NY2d 211; Matter of Orvis, 35 AD2d 538; Matter of Chilson, 28 AD2d 766)."], "id": "95138a50-9e2f-4582-bd58-6a96dd288036", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["It is the petitioner\u2019s position that the respondents are merely incidental beneficiaries to the regulatory agreement. They allege that the parties to the regulatory agreement never formulated an intent to directly benefit these tenants, and that, at most, the intent was that the benefits should redound to the public at large, or to a class of indefinite expression \u2014 which is insufficient to support a finding of status. (See Ultramares Corp. v Touche, 255 NY 170.) On this basis, the petitioner contends that the respondents are \u201cmerely * * * incidental * * * [beneficiaries] with no right to enforce the particular contracts\u201d (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655)."], "id": "d0f270f6-c37f-4f92-820b-7556e54c3c2e", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["To begin, the McClures are not third-party beneficiaries because the complaint and attached exhibits do not show a clear intent on behalf of the DeLoreys to benefit DiggiCs subdividees. See Wood v. Germann, 130 Nev. 553, 557, 331 P.3d 859, 861 (2014) (recognizing that a nonparty to a contract only has standing to enforce the contract when the nonparty is an intended third-party beneficiary). \"To assert standing as a to a contract, a plaintiff must show (1) a clear intent to benefit the third party. and (2) the third party's foreseeable reliance on the agreement.\" Boesiger v. Desert Appraisals, L.L.C., 135 Nev. 192, 197. 444 P.3d 436. 441 (2019). The core of the McClures argument is that the Cohn map showed that the properties were subdivided before the DeLorey-Diggle Deed. and thus, the DeLoreys created a general scheme that included the Beachfront Building Restriction when they included that covenant in the DeLorey-Diggle Deed. However, the exhibits attached by the McClures to their FAC belie their argument. While the McClures are correct that the Cohn map subdivided a large tract of land near Lake Tahoe, the DeLorey- Diggle Deed shows that the DeLoreys conveyed only a portion of Lot 3 from the Cohn map to Diggle. Further, the other operative documents, such as the Diggle-Bejarano Deed and the Snug Harbor CC&Rs, all recognize that Diggle subdivided the land. For example, the docurnents renewing and modifying the original CC&Rs explicitly recognized that the signer was \"the owner of one of the seven parcels of land subdivided by Paul Diggle from a parcel conveyed to hirn by deed . . . on June 13, 1955\" (emphasis added). Diggle did not include a Beachfront Building Restriction in any of the subdividing documents even though the DeLorey-Diggle Deed included such a restriction. Moreover, the DeLorey-Diggle Deed did not require"], "id": "7eea5e5f-b06e-4580-89f7-0e6166aa4f97", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Conversion France SAS, Corp v Outokumpu Stainless USA, LLC, 590 US ___, ___; 140 S Ct 1637, 1643-1644; 207 L Ed 2d 1 (2020) (recognizing \u201cthat arbitration agreements may be enforced by nonsignatories through assumption, piercing the corporate veil, alter ego, incorporation by reference, theories, waiver and estoppel\u201d) (cleaned up). Our Court of Appeals has similarly observed that whether nonsignatories can arbitrate depends on general common-law principles, such as agency law. See American Federation of State, Co & Muni Employees, Council 25 v Wayne Co, 292 Mich App 68, 81; 811 NW2d 4 (2011). Plaintiffs develop other arguments against enforcement of the arbitration agreement by the Firm or Morse, including that the agreement is unconscionable and illusory and that defendants forfeited their right to enforce arbitration. These arguments do not directly involve the interpretation of the agreement and were not addressed by the Court of Appeals below. My resolution of the interpretive issues before the Court here would leave plaintiffs free to raise these other arguments on remand."], "id": "59e21438-cded-48df-b09f-bae5bcba89f4", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The \u201cconditional\u201d promise within the contract of insurance with Frank Martin was that his beneficiary, plaintiff, would recover $20,000 on his death only if such were \u201caccidental\u201d. If such death were not accidental, e.g., suicide, only the nominal recovery of $10,000 was to be paid to the , plaintiff, Susan Martin, in this action. If indeed the deceased violated the \u201ccondition\u201d requiring \u201caccidental\u201d death for double recovery, the beneficiary cannot recover such amount for the duty of the defendant to pay the $20,000 amount was conditioned upon deceased\u2019s performance in the manner of his death. It is fundamental that the beneficiary\u2019s rights flow from the contract itself (see, generally, 2 Appleman, Insurance Law & Practice, \u00a7 771); her \u201crights [being] no greater than those of the assured, and the policy in [her] hands is subject to attack exactly as it would have been had the assured lived.\u201d (New York Life Ins. Co. v Faillace, 138 Misc 182, 183, affd 231 App Div 826.)"], "id": "08f27a10-aafe-4a18-b74b-ba43a0821d64", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The court finds respondent, Joe Hawes, to be a of the bailout agreement between MHA and DSS. To base eviction proceedings on occurrences prior to the date MHA accepted the rent check, January 26, 2004, raises questions as to whether the MHA-DSS bailout agreement was based on *257incomplete, if not misleading, information. As the court based its decision on petitioner\u2019s lack of compliance with its own published procedures, the court need not address that question further at this point. Petition denied for the reason given herein."], "id": "7af5d737-76d8-4f6b-8f37-0a3fba4631f9", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["They also must realize, we are sure, that there is no privity between the subcontractor and the State, nor that the subcontractor has a right to sue as a of the contract. The State is solvent. It consents to be sued by the one with whom it has entered into the obligation of the contract, and does always pay upon final determination of its obligation. It owes nothing directly to the subcontractor, who, nonetheless, is permitted to testify and who, no doubt, is the most competent witness concerning the portion of the contractor\u2019s claim involving his own work. (N. Y. Const., art. VI, \u00a7 9 ; Court of Claims Act, \u00a7 9.)"], "id": "5d0a49fd-a00f-4033-b229-e2c4042762d2", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [" The first cause of action in the amended complaint sought to recover damages, in effect, for breach of contract. It alleged that the plaintiff was a of the Bradhurst contract, and that under the Bradhurst contract, the work was to be completed by October 2013, but it took substantially longer due to inexcusable delays by the County and Bradhurst. The amended complaint alleged that despite numerous requests by the plaintiff, the County failed to take steps to speed the construction along, resulting in damages to the plaintiff."], "id": "46db9c6c-6220-4046-b295-680e4bcb6875", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The corporation was the direct, rather than the incidental, beneficiary of the agreement. Any benefit to the stockholders would only be incidental, flowing, as it must, through the corporation. It is not necessary in this case to infer who the beneficiary of the agreement was. It \u2018 \u2018 was the intention of the parties to the agreement so arrived at, that the corporations should benefit therefrom by reason of the said limitation on the salaries of the officers \u201d. The agreement to limit the compensation of the officers was made \u201c to preserve the corporation\u2019s assets\u201d. (Further amended complaint, pars. 12, 14.) Thus, it was expressly intended by the parties that the corporations would be the beneficiaries of the agreement. Whether the plaintiffs will be able to prove these allegations on the trial is a matter that is not now before this court. The complaint alleges sufficient facts to show that there was an agreement to limit salaries and that the corporation was the of that agreement. It also alleges facts sufficient to show that the individual defendants have accepted salaries in excess of those permitted by the agreement. This branch of the defendants\u2019 motion, accordingly, is denied. The defendants may serve an answer to the complaint within 20 days of the service of a copy of the order to be entered hereon."], "id": "c5094771-6c37-4dd8-89e7-79466cba7765", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The General Business Law of this State seeks to define the term credit card as follows: \" 'Credit card\u2019 means and includes any credit card, credit plate, charge plate, courtesy card, or other identification card or device issued by a person to another person which may be used to obtain a cash advance or a loan or credit or to purchase or lease property or services on the credit of the issuer or of the holder\u201d (General Business Law \u00a7 511 [1]). The statute also defines terms of \"person\u201d, \"issuer\u201d, \"holder\u201d, \"unauthorized use\u201d, \"seller\u201d, \"lender\u201d, \"improper use\u201d, and \"accepted credit card\u201d. However, the statute fails completely in disclosing the nature of the use of a credit card from a legal standpoint. The broad spectrum of seeking to define the use of a credit card from such a viewpoint is summarized in 50 Am Jur 2d, Letters of Credit, and Credit Cards, \u00a7 38, at 428-429, as follows: \"From a legal standpoint, credit cards or their predecessors have been variously defined as, or held to be, negotiable instruments, mere identification cards, broad contracts of guaranty, assignments, contracts, or special, clean, revocable letters of credit.\u201d (Case reference is set forth for each definition noted.)"], "id": "df0337e0-7e9a-4f97-826f-5ee875630fdb", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["To protect and preserve laborers\u2019 right to receive a prevailing wage, our courts have expansively viewed the remedies afforded laborers under Labor Law \u00a7 220. Thus, for example, in Wright v Wright Stucco, the Court of Appeals held that laborers have, in addition to the statutory remedy provided in Labor Law \u00a7 220, a continued common-law right to sue their employer as a under a public construction contract. (Wright v Wright Stucco, 50 NY2d 837, 839 [1980]; see *802also Nawrocki v Proto Constr. & Dev. Corp., 82 AD3d 534, 536 [1st Dept 2011] [same].)"], "id": "c1e10c70-32c7-432e-a3d1-c14072d56595", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["\u201cDASNY is in breach of its contractual obligations to the County as a of the [UDC]/DASNY Agreement by, among other things, failing to ensure that a \u2018world class\u2019Aquatics Center was adequately and properly designed, and was built for the County in a good and workmanlike manner, free of design or construction defects, errors or omissions\u201d (exhibit E to motion \u00b6\u00b6 100, 121). *254The County cross-moves for partial summary judgment dismissing the first, second and third affirmative defenses asserted in the UDC/DASNY answer. Those affirmative defenses are: failure to state a cause of action, failure to commence this action within the applicable statute of limitations, and that the UDC/County agreement is void and unenforceable for lack of consideration (exhibit F to motion \u00b6\u00b6 170-172)."], "id": "a5370a0c-f4e7-4798-a269-e31dc29319bf", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["\u201cA party asserting rights as a must establish \u2018(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost.\u2019 \u201d (State of Cal. Pub. Employees\u2019 Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434-435 [2000], quoting Burns, 59 NY2d at 336.) New York has adopted the standard set forth in section 302 of the Restatement (Second) of Contracts to determine if a party was an intended beneficiary:"], "id": "da9781aa-024f-4b3c-8494-75be60e62650", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In Salesky v Hat Corp. of Amer. (20 AD2d 114), a putative sought to enforce a contract which, unamended, named her as the beneficiary. The signatories duly modified it naming another party the beneficiary. The court held that the contract, by its terms, allowed the signatories to modify or terminate it. Since the signatories reserved the right to amend or modify the contract, the court held that the putative beneficiary had no rights under the contract."], "id": "f63512d9-e80a-4c71-8a27-2108934b439a", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The first element-injury-focuses in on whether the plaintiff \"plead[ed] facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury.\" Heckman , 369 S.W.3d at 155. \"A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority[.]\" [Emphasis and internal citation omitted]. Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 848-49 (Tex. 2005). \"In order to establish standing to maintain a breach of contract action, a plaintiff must show either status or privity.\" OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P. , 234 S.W.3d 726, 738 (Tex.App.-Dallas 2007, pet. denied). \"For purposes of standing, privity is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff.\" [Internal quotations and alterations omitted]. Id. ; see also Republic Petroleum, L.L.C. v. Dynamic Offshore Res. NS, L.L.C. , 474 S.W.3d 424, 430 (Tex.App.-Houston [1st Dist.] 2015, pet. denied) (\"A plaintiff establishes standing to maintain a breach-of-contract action by demonstrating that it has an enforceable interest as a party to the contract, as an assignee of a party, or as a third party beneficiary.\")."], "id": "6ae7d40c-8cc2-4c06-b146-d844707a73a2", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Judge Cardozo\u2019s decision in Glanser v. Shepard (233 N. Y. 236 [1922]) stands as a living testament to the appropriateness and applicability of the rule in breach of warranty actions, particularly since public health is involved. It is absolute proof of the advisability of discarding the privity doctrine in the interest of justice as well as reason. Let us apply the decision to the facts in this case:"], "id": "74bec062-915b-46eb-a980-649b1d4ae451", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In May 2017, Mabel filed a lawsuit against Hickory Heights, claiming that during her approximately three months' stay while she recovered from a broken hip, she was sexually assaulted in the facility. Mabel's complaint asserted negligence, medical negligence, and breach-of-contract theories against Hickory Heights. Hickory Heights responded to the lawsuit by filing a motion to compel arbitration based on the documents signed by Ethel. Hickory Heights argued (1) that Mabel's causes of action fell within the ambit of the arbitration provision and (2) that although Mabel did not sign the documents, Ethel did so and bound her mother as the of those contracts. Mabel opposed the motion, arguing that Ethel did not have Mabel's power of attorney; that Ethel signed only in an attempt to be Mabel's representative but lacked authority to bind her mother; and that Ethel did not sign in her individual capacity so that the third-party-beneficiary doctrine did not apply. The trial court summarily denied the motion in a one-page order without explaining its reasoning.2 Hickory Heights appeals, asserting that the trial court erred because the third-party-beneficiary doctrine mandates that Mabel's causes of action be resolved in arbitration."], "id": "32c82587-528e-4126-9458-5d3fd31172a7", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The appellants' first argument before this court is that the claims asserted on Glenda Sue's behalf are governed by the arbitration agreement because she is an intended of the arbitration agreement signed by Belt in her individual capacity. In support of this argument, appellants assert that (1) a valid contract existed between Pine Hills and Belt, in her individual capacity;7 and (2) the arbitration agreement between Pine Hills and Belt was made for the benefit of Glenda Sue. The circuit court specifically found that Belt \"lacked legal authority to act in a representative capacity to bind *496Glenda Talley to the arbitration agreement\"; and thereby, found that no valid agreement existed between Talley and appellants. We first consider this finding of the circuit court, although we note that appellants do not appear to specifically challenge this finding."], "id": "140568fb-ad80-4d51-944f-cb536594e9f0", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Although it may be ultimately liable to the limit of its coverage on the underlying liability policy, the insurance company is not a judgment debtor primarily liable to plaintiff, who is a of the liability contract between defendant insured and the carrier. The undertaking is an unconditional promise by the insurer to pay the full amount of the judgment, or such proportion as is ultimately affirmed. By undertaking this direct, unqualified obligation, it \u201crelinquishes any defenses to liability it may have had under its policy and relies solely upon the errors assigned upon the appeal.\u201d (7 Weinstein-Korn-Miller, NY Civ Prac, par 5519.11, quoting Smith v 167th St. & Walton Ave. Corp., 177 Misc 507, 509.) By so doing it clearly provides greater protection to both the plaintiff and the defendant as well; it thus satisfies the manifest intent of CPLR 5519 which is to assure the continued integrity of a judgment through the appellate process, while enabling the appellant to test error without prematurely, and perhaps unnecessarily, forfeiting his property. This view is further supported by the specific wording of the statute which neither mandates that a different carrier provide the appellate undertaking, nor requires the posting of a bond."], "id": "a3201991-c807-4d9a-847f-b66c069e7e73", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Moreover, this motion stands on its own as an independent application for relief. In the original motion plaintiff invoked Real Property Law \u00a7 291-f to prevent a modification of the lease. The instant motion seeks to enforce the lease pursuant to its terms on the ground that plaintiff is a of the lease clause. Thus, even if the motion is considered to be an independent one, it does not violate the rule in Foley v Roche (supra, at 568): \"Nor should the remedy be available where a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application.\u201d The prior motion did not seek to enforce the lease as written. Since this motion is different from the prior one, and is not barred by the original decision, it must be dealt with on the merits."], "id": "ee4201b7-f0d9-488f-8f00-6830e0520cd3", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["When an assignment occurs after a PSA's closing date, most courts \"hold that the assignment is voidable at the option of the parties to the PSA.\" Wood v. Germann , 331 P.3d 859, 861 (Nev. 2014). \"These courts have recognized that a PSA is a contract between the originating lender and the subsequent purchaser/trustee and that, under traditional principles of contract law, a contracting party is capable of ratifying conduct that is done in violation of the contract.\" Id. \"Thus, although a post-closing-date loan assignment violates *503the terms of the PSA, these courts conclude that such an assignment is not void, but is merely voidable, because the trust has the option of accepting the loan assignment despite its untimeliness.\" Id. \"Applying these traditional principles of contract law, these courts further hold that the homeowner, who is neither a party to the PSA nor an intended , lacks standing to challenge the validity of the loan assignment.\" Id."], "id": "4b5e1422-d0be-48f2-aa2a-fb72c8850972", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Hazen and Sawyer argues that it is entitled to indemnification from Koehler based on Koehler\u2019s subcontract with Pegno/ *888Tully. They argue that despite the fact that they are not named beneficiaries in the subcontract, Koehler assumed Pegno/Tully\u2019s obligations under its contract with the City, including Pegno/ Tully\u2019s obligation to indemnify other prime contractors such as Hazen and Sawyer. Hazen and Sawyer also argue that they are a of the subcontract between Pegno/ Tully and Koehler and thus can seek indemnification directly from Koehler."], "id": "d45a6d6b-6a9c-46b8-a22e-c484e854eb04", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The respondent\u2019s argument in this regard is that he is a under the co-operative plan contracted for by the petitioners. In the plan the petitioners were advised that they took their interest in the apartment subject to the rights of the tenant then occupying the apartment. Further, the petitioners were told that the apartment may have been subject to the Bent Stabilization Law. This court has not been persuaded that the agreement by which the petitioners entered into a contract with the owner of the fee, whereby the petitioners would have to pay a total purchase price of $34,160 for the shares *678representing apartment 16C, was a contract for the benefit of the respondent. New York courts have been liberalizing the theory of third-party beneficiary, but not to the extent here urged by respondent. The trend has had to do with allowing a donee beneficiary to recover upon a promise intended for his benefit without a showing of any additional element. The respondent has not shown that this contract of purchase was a contract for his benefit."], "id": "648c16d2-78cd-42fc-b249-6bfcd81588e0", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The policy in question is a $20,000 ordinary life policy with double indemnity for accidental death and with family income benefit. The family income rider provides for payment of monthly income of $200 beginning one month from date of death and continuing until April 1, 1974, and for a final payment of $20,000 on that day. It also provides that: \u201c No beneficiary shall have the right to assign, encumber, alienate, anticipate, or commute any payment hereunder or to change the manner of settlement in any way unless such right is given the beneficiary by the owner in writing and is endorsed on the policy by an officer of the society.\u201d No such indorsement appears on the policy; the only exception to the no commutation provision is that the company reserves the right if, by reason of loans, the monthly benefit to be paid is less than $20, to commute at 2%% and settle the policy in one lump sum. The widow contends that by contesting the validity of the policy the company repudiated it, entitling her as to recover for breach of contract the present value of sums payable in the future as well as all sums, with interest, that should have been paid to date. The company contends that the widow can now recover only sums heretofore payable with interest and that the widow cannot recover amounts payable under the policy after date of the judgment until the respective due dates of those amounts. In dollars and cents, with interest to November 2,1962, and with an adjustment resulting from the erroneous statement of the insured\u2019s age, the widow asks judgment for $107,352.64; the *368company argues that the judgment must be for $54,618.82, and concedes that there would then remain 137 installments of $214.95 each, plus a final payment of $21,494.84. The court agrees with the company\u2019s contention."], "id": "c036a9b7-6ecb-43ae-939c-922212727648", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Prof. Lambert suggests that logically the courts might usefully invoke the Blessington case (305 N. Y. 140, supra) as a basis for recognizing an implied warranty running to a , and continues (p. 421): A court\u2019s capacity to do justice in the field of products liability can be withered by an overzealous attachment to the archaic privity rule * * a court nominally committed to the talismanic privity rule can judiciously avoid its blighting effects and, by admirable resourcefulness, invoke the implied warranty mechanism (so that the warranty right is extended to the third party beneficiary) * * *. gee also 20 NACCA Law Journal 291-302; 17 id. 375-376; 16 id. 352-356.\u201d The responsibility to keep the law straight is a high one. It should not be reduced to the mean task of keeping it straight and narrow.\u2019 Traynor, gome Open Questions on the Work of State Appellate Courts,\u2019 24 IT. Chi. L. Bev. 211,219 (1957).\u201d"], "id": "4e83ded2-07dc-4ae4-acb8-a5a3860631d3", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["We also agree with the contention of claimant that the court erred in denying its claim for damages resulting from delays encountered in constructing the railroad overpass. The record establishes that the extraordinary and unanticipated delay was attributable to Conrail\u2019s unreasonable refusal to accommodate claimant\u2019s schedule. We disagree with the court\u2019s conclusion that the State had no obligation to obtain Conrail\u2019s cooperation. The construction contract provided that all work affecting the railroad would be \"carried out under the joint supervision of the Department of Transportation and the railroad company\u201d. Pursuant to that provision, the State *965entered into a separate agreement with Conrail, by which Conrail consented to claimant\u2019s entry upon its premises for the purpose of performing all necessary work, agreed to make any \"necessary changes in its railroad and railroad facilities to the extent required for\u201d construction, and agreed to \"coordinate its said work\u201d and \"to cooperate with\u201d claimant. Significantly, the agreement between the State and Conrail obligated the State to reimburse Conrail for all its costs in accommodating claimant. In our view, the State would not have entered into that contract with Conrail unless the construction contract required it to secure Conrail\u2019s cooperation. In any event, the second agreement granted the State the right to enforce Conrail\u2019s cooperation for the benefit of claimant, a . We thus conclude that the State bore the contractual risk for the expense of delay in the event that Conrail failed to cooperate."], "id": "3d4fc40a-579c-4c0b-99c7-f8fd3bde2c29", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Finally, the city argues that, if it be assumed that the city commissioner did act on the claim and deny it, the third-party action constitutes an impermissible collateral attack against his decision, which is reviewable in the first instance by the State department, in a \u201cfair hearing\u201d. The main difficulty with this argument is a factual one. Nowhere is it shown, or even asserted, that Jones was ever given notice that the claim for payment of the hospital bill has been denied by the city commissioner. Furthermore, it is questionable whether, even if such notice and failure timely to seek administrative review could be shown, the ringing rationale of McDermott (supra) would not impose a quasi-contractual duty on the city to hold Jones harmless for breach of duty that may have been caused by the conduct or inaction of either the city department or H & H, which as noted is closely related to the city. (Indeed, in holding the plaintiff harmless, the city would be, in a sense, paying itself, and it would be using funds derived not only from city revenues but from State and Federal sources as well.) Even in a similar case involving a private hospital, it was held that the hospital had a duty to act so as to insure that claims of patients eligible for Medicaid payment are properly processed. (Mount Sinai Hosp. v Kornegay, 75 Misc 2d 302.) Indeed, the latter case expressed approval of the view that, if the patient is eligible for Medicaid, the city Department of Social Services, not the patient, becomes the primary obligor, as the promissor in a contract. (See Knickerbocker Hosp. v Downing, 65 Misc 2d 278.) (If H & H wishes to maintain the legal fiction that it is separate and distinct from the city, perhaps it should consider adding or substituting the city as a party defendant in the main action, *65since its quarrel appears to be with the city department and not with Jones, whom no one, so far, denies was eligible to have his bill paid with Medicaid funds.)"], "id": "be17fda9-e84f-4831-911a-0dc7a6a7db7e", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In its motion, Lockwood contends that it is entitled to contractual indemnification from Tully as a of a contract entered into between Tully and the State of New York Department of Transportation. \u201c[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.\u201d (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept 2009]; see also General Obligations Law \u00a7 5-322.1.) Here, since Lockwood fails to establish prima facie that it was free of negligence, it is not entitled to summary judgment on its claim for contractual indemnification as against Tully."], "id": "b1b418ce-f004-4d42-ab85-04efc6821534", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [". On October 21, 2013, the City and the Museum executed an amendment to the lease, whereby the Museum was granted the right to impose a mandatory entrance fee, subject to approval by the City, which \u201cshall not be unreasonably withheld.\u201d (See letter to ct of Bruce R. Kelly, dated Oct. 24, 2013 [New York State Courts electronic filing Doc. No. 43].) Not only does this amendment not alter the analysis in this decision, if anything, it bolsters the court\u2019s ruling (in Part III.B) that plaintiffs cannot maintain a claim for specific performance under the lease. However, in this deci*555sion, the court will not speculate about the degree to which the amendment may either moot or preclude some of the claims in these cases. This will be addressed at the preliminary conference, scheduled below."], "id": "a212ff0c-230e-4da1-bbcd-a2f126e5e7c7", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["There is no question that NYCHA owes a duty to its tenants, well established in landlord and tenant law. However, *731there was no testimony from any of the claimants that NYCHA breached its duty. NYCHA was, therefore, dismissed from the actions. Con Edison claims it owes no duty to the tenants in this or any public housing project due to lack of privity, that is, because the utility account is with the landlord and the cost of electricity is included in the rent. In other words, Con Ed claims the tenants are not third-party beneficiaries of the contract between Con Ed and NYCHA for electricity. Con Edison provided no case law for this proposition, and the court, finding the argument preposterous during the liability portion of the Small Claims Court trial, proceeded directly to the issue of breach. In preparing a written decision in this matter, I find that this issue of privity or entitlement to treatment as a of the contract is a question of first impression as concerns residential tenants\u2019 property damage. There is one case concerning residential tenants, Strauss v Belle Realty Co. (65 NY2d 399 [1985]), which is distinguishable, as it concerns a tenant injured in the common area of an apartment building who fell during a blackout on defective stairs. The blackout was found to be caused by the gross negligence of Con Edison. The Court of Appeals held that while the absence of privity does not foreclose recognition of a duty, it is the responsibility of the courts, in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree, and to protect against crushing exposure to liability. For the reasons stated below, public policy requires finding that tenants in public housing are third-party beneficiaries of NYCHA\u2019s contract with Con Edison for electric service."], "id": "ffc009c2-1d87-4ce8-9df6-6ca9af45f715", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The second cause of action alleges that defendants breached an alleged contract with Etna as to which Penvest was a by providing a misleading financial statement on Etna. In opposition to this motion, plaintiff *777argues that an accountant is not immune from liability to a lender for negligence in reviewing a borrower\u2019s financial statements and rendering an uncertified report (Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 422-423 [1988]). As the Court of Appeals has held, an accountant may be liable to the lender on a theory of negligent preparation of a borrower\u2019s financial statements and rendering a report therein, even an uncertified one, where, even though the engagement is pursuant to a contract entered into between the accountant and the borrower, there is \"evidence of a relationship sufficiently approaching privity between the lender and the accountant\u201d (71 NY2d, at 423, supra). In determining whether there is a bond \" 'so close as to approach that of privity\u2019 \u201d, the Court of Appeals has \"spelled out the following criteria for liability: (1) awareness that the reports were to be used for a particular purpose or purposes; (2) reliance by a known party or parties in furtherance of that purpose; and (3) some conduct by the defendants linking them to the party or parties and evincing defendant\u2019s understanding of their reliance\u201d (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [1989], citing Credit Alliance Corp. v Andersen & Co., 65 NY2d 536 [1985])."], "id": "9f40f101-7996-40d9-932c-a070527da2e7", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["There is no legal theory which supports Mr. Sichel\u2019s claim for damages. The December 25, 1984 agreement may have been an enforceable contract between Mr. and Mrs. Lowenstein (the parties thereto) and perhaps also by any named in their mutual wills (Rastetter v Hoenninger, 214 NY 66; Tutunjian v Vetzigian, 299 NY 315). But nothing in the record establishes that Mr. Sichel was an intended third-party beneficiary of this agreement. Furthermore, as mentioned above, as the draftsman of such a contract Mr. Sichel has a duty to show that he fully disclosed all relevant facts to his clients and that his appointment was fair and reasonable (Matter of Weinstock, supra; Matter of Becker, 104 AD2d 444; Matter of Laflin, 111 AD2d 924; Matter of Carlisle, 142 Misc 2d 657, affd 159 AD2d 379; Matter of Thron, 139 Misc 2d 1045; Matter of Stalbe, 130 Misc 2d 725; Matter of Harris, 123 Misc 2d 247). The record is devoid of any such proof."], "id": "b532073d-b0ae-4ed0-bccd-675f32ba6b90", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The doctrine was approved in the Klein v. Duchess Sandwich Co. (14 Cal. 2d 272, supra) case, citing Dryden v. Continental Baking Co. (11 Cal. 2d 33) where the husband bought the bread, the court saying (p. 284): \u201cIn answer to the contention of the. defendant baking company that no recovery should have been allowed on the implied warranty theory because there was lack of privity of contract, the court observed that, \u2018 assuming that privity is an essential element of such an action, it might well be urged that the wife * * * *54was a third party beneficiary of the contract!\u201d (Italics supplied.)"], "id": "331cc01f-dbd7-4735-aca7-a91c249b7a33", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["\"We cannot accept the view of the court below that the bond may be construed as a common-law bond, free from the statutory restrictions. It is obvious that it was the intention of *230the Comptroller to exact a statutory bond in the form he had prescribed and it is equally clear that it was the intention of the surety company to give such a bond. The plaintiff as a cannot claim that the instrument is something different from that which the parties plainly intended it to be. (Hub Oil Co. v. Jodomar, 176 Misc. 320.)"], "id": "1d247747-90b5-40aa-9dab-65545639731d", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [". The argument is appealing but somewhat tenuous. Laddon (supra) specifically referred to provisions of the California Insurance Law which gave a plaintiff the right to sue the carrier where a judgment against the insured remains unsatisfied. New York, as virtually every other State, has similar statutory provisions (Insurance Law, \u00a7 167, subd. 7) but it seems premature to apply the doctrine in a case where the plaintiff has not achieved the status of a judgment creditor (cf. Jackson v. Citizens Cas. Co. of N. Y., 277 N. Y. 385 [decided under the predecessor of Insurance Law, \u00a7 167]). As originally conceived the purpose of liability insurance was to indemnify the insured against loss (Creem v. Fidelity & Cas. Co. of N. Y., 141 App. Div. 493, mod. 206 N. Y. 733; Langmaid, \u201c Subrogation in Suretyship and Insurance \u201d, 47 Harv. L. Rev. 976, 1002 [1934]) but today the design is such that the insurance constitutes the asset that will be used in the first instance to satisfy a claim or judgment. An insured is thus considered a prudent person for having obtained insurance and there are expressions in the eases that at least to the extent of medical payment coverage the injured person is a third-party beneficiary of the insurance contract (Silinsky v. State-Wide Ins. Co., 30 A D 2d 1; Moore v. Leggette, 24 A D 2d 891, affd. 18 N Y 2d 864). Nonetheless, even these limited statements regarding third-party beneficiary status have been questioned (Grynbal v. Grynbal, 32 A D 2d 427). Furthermore, it has been held that, except as section 167 of the Insurance Law provides, a noninsured person \u201cis not a third-party beneficiary of the contract of insurance obtained by the insured \u201d (Browdy v. State-Wide Ins. Co., 56 Misc 2d 610, 617 [Shapiro, J.]; cf. Gordon v. Nationwide Mut. Ins. Co., 30 N Y 2d 427; Pipoli v. United States Fid. & Guar. Co., 38 A D 2d 249, affd. 31 N Y 2d 679; Matter of Kreloff, 65 Misc 2d 692; Comment, 46 St. John\u2019s L. Rev. 172 [1971]); note, 36 Brooklyn L. Rev. 464, 482-484 [1970]). Consequently, it is unlikely that in the usual negligence action the third-party beneficiary doctrine will be deemed applicable so as to confer upon an injured person the absolute right to pretrial discovery of insurance coverage. Upon the facts at bar, this court holds that the aforesaid doctrine is not applicable for discovery purposes."], "id": "b26e3104-91f1-4d1c-96c6-568c995013c1", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff claims that CASSM Realty\u2019s proprietary lease with O\u2019Neill also entitles her, as a of that contract, to live in a building where his unit, like other units, is owned and occupied by a family with an artist, as is likewise guaranteed by her proprietary lease with CASSM Realty. (Cornhusker Farms, Inc. v Hunts Point Coop. Mkt., Inc., 34 AD3d at 310; Gap, Inc. v Fisher Dev., Inc., 27 AD3d at 211-212; National Union Fire Ins. Co. of Pittsburgh, Pa. v Red Apple Group, 309 AD2d at 657; Internationale Nederlanden [U.S.] Capital Corp. v Bankers Trust Co., 261 AD2d at 123; see Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d at 44-45; Edge Mgt. Consulting, Inc. v Blank, 25 AD3d at 368-369.) While recognizing the strict requirements for conferring third-party *277beneficiary status, absent CASSM Realty\u2019s proprietary lease with O\u2019Neill, the court may not grant either O\u2019Neill or plaintiff summary judgment on plaintiff\u2019s claim as a third-party beneficiary of that contract. (Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 181-182; Mendel v Henry Phipps Plaza W., Inc., 6 NY3d at 786; State of Cal. Pub. Employees\u2019 Retirement Sys. v Shearman & Sterling, 95 NY2d at 434-435; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d at 57.)"], "id": "a08fd3ed-f843-45be-97a6-1e630fe670ba", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["John R. Tenney, J. Anthony J. Zinga, Jr., brings this action to enforce the terms of a separation agreement between his late father, Anthony Jr. Zinga, Sr., and his mother, Carmella T. Zinga. This agreement was dated April 4, 1972, and at paragraph 4, states as follows: \"The Husband agrees to maintain and keep in effect his present life insurance policies naming his child as beneficiary.\u201d The plaintiff in this proceeding is the child referred to in the separation agreement. Mr. Zinga argues that the provision of the separation agreement puts him in the position of a , and that, therefore, he was entitled to enforce the contract and receive the proceeds of the policy at the time of his father\u2019s death. (Ferro v Bologna, 31 NY2d 30; Forman v Forman, 17 NY2d 274.)"], "id": "28c79a54-e984-4cc8-bf72-3c6a05e961ed", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Defendant appears to qualify as a . Her husband was compelled to provide her with a mobile home which he fulfilled by his contract with the plaintiff. (Vrooman v Turner, 69 NY 280; Snyder Plumbing & Heating Corp. v Purcell, 9 AD2d 505; Murphy v Transportation Vehicles, 22 Misc 2d 966.) It is not necessary for *516the plaintiffs to make any promise to defendant. (Vroomah v Turner, supra, p 284.) Plaintiffs were or should have been aware of the husband\u2019s intentions since possession of the premises was by defendant. In any case, plaintiffs were on notice of an interest by defendant, and they had an obligation to determine her interest before foreclosure or accepting a quitclaim deed in lieu of foreclosure."], "id": "f563e922-d6e7-49bc-b75a-7823abbf02da", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [" \"[T]he identity of a need not be set forth in the contract or, for that matter, even be known as of the time of its execution\" (Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d 881, 883 [internal quotation marks omitted]; see Desernio v Adrelean, 188 AD3d 992, 993). \"However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts\" (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655 [citations omitted]; see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710). Courts generally have recognized \"a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was 'an intent to permit enforcement by the third party'\" (Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d at 710, quoting Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 45)."], "id": "718e44b7-a883-44b8-a05f-142e3c51916d", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["AHS made its group policy available to the employees of Newsday, of which Mairano was one. AHS obligated itself merely to provide Mairano with hospital service benefits, nothing more. When AHS contracted with Smithtown .General Hospital, it agreed to co-operate directly with the hospital for hospital benefits rendered its subscribers. Petitioner herein, the judgment creditor, stands in the shoes of Mairano as to any rights Mairano has against AHS. The only right that Mairano had against AHS was the right to hospital benefits. The right to payment for such benefits ran directly to the \u00a1hospital from AHS, subject to approval as to adequacy by the Commissioner of Health and subject ,to the approval of the Superintendent of Insurance as to reasonableness. Mairano is a to the contract between AHS and Newsday only to the extent that he receive hospital benefits."], "id": "d8a156b5-91e3-4d7a-8797-da20cfca984e", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The bank, in support of its cross motion seeking dismissal of the counterclaims, alleges that it had no duty to Frances Blackman as a of the bank\u2019s contract with Roxanna Edwards, and that it should not be held liable for negligence in failing to conform to the requirements of EPTL 7-5.2 (1). The bank alleges that what it did was a common practice in the banking community, and the decision of the Appellate Division and Court of Appeals requiring strict compliance with EPTL 13-3.5 was unforeseen. Furthermore, the bank alleges that both the representatives of the Black-man and Farrar Estates authorized Alice Savage to withdraw the proceeds of the Totten trust, and therefore the plaintiff has complied with the agreement it had with its deceased depositor Roxanna Edwards as well as with EPTL 7-5.4."], "id": "ae431927-aa04-45a8-ae18-c27a211f97b4", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["An examination of defendant\u2019s brief reveals that the defendant presented this argument: There was no privity of contract between Alice (the wife) and the A. & P. and she cannot recover on a contract claim for breach of warranty (where the husband was the purchaser) \u2019 \u2019. In affirming, the Court of Appeals pierced the privity veil by employing either the agency or theories. If the wife\u2019s funds or joint household funds were used, then the husband acted as \u201c agent \u201d for his wife. If the husband\u2019s money was used, then he made the purchase for the benefit of his family consisting of Ms wife and infant (the infant was not injured). Again, common-sense justice outranks technicality. Whatever method of construction is used it seems apparent that the judicial concern is primarily with eroding away an artificial concept."], "id": "54d6c41d-66e8-4f3d-bf4b-05bf363c5fd0", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The Appellate Divisions, however, have not uniformly applied the foregoing rule. Gaco W. adheres to the rule quoted above that an owner has no right of recovery against a subcontractor in the absence of contractual language to the contrary. (229 AD2d at 474 [where no express provision of the contract provided one way or the other on the issue (see record on appeal)].) That is our case here."], "id": "fe5ece77-b223-400f-8a1f-d3e482769dff", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The general rule is \u201cthat the owner has no right against the subcontractor, in the absence of clear words to the contrary.\u201d (4 Corbin on Contracts \u00a7 779D, at 47 [1951].) \u201cThe owner is neither a creditor beneficiary nor donee beneficiary [i.e., is not an intended beneficiary in modern parlance]; the benefit that he receives from performance [of the subcontract] must be regarded as merely incidental.\u201d (Id.; see e.g. Outlaw v Airtech A.C. & Heating, Inc., 412d 156, 164 [DC Cir 2005, Roberts, J.] [\u201ctraditional contract law rule that, absent any indication to the contrary in an agreement, property owners are not intended or third-party beneficiaries of contracts between contractors and subcontractors\u201d]; Pierce Assoc., Inc. v Nemours Found., 865d 530, 535-539 [3d Cir 1988] [same]; International Fid. Ins. Co. v Gaco W., 229 AD2d 471, 474 [2d Dept 1996].) The New York Court of Appeals has adhered to this rule in the reverse situation of a subcontractor\u2019s suit against the owner seeking enforcement of owner\u2019s obligation to pay the general contractor. (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 656 [1976], citing 4 Corbin, Contracts \u00a7 779D; see also Artwear, Inc. v Hughes, 202 AD2d 76, 84 [1st Dept 1994] [\u201cit is well settled that the subcontractor or supplier of a general contractor on a construction project is not invested with status\u201d]; Schuler-Haas Elec. Corp. v Wager Constr. Corp., 57 AD2d 707 [4th Dept 1977].) The Court of Appeals also relied on, as it so very often does in contract cases, the Restatement (Second) of Contracts for this conclusion. The American Law Institute treats both situations interchangeably (Restatement [Second] of Contracts \u00a7 302, Comment e, Illustration 19 [\u201cA contracts to erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B\u2019s promise, and B is an incidental beneficiary of C\u2019s promise to pay A for the building\u201d]). There is no reason to believe, especially in view of the Court\u2019s citation of the Restatement in Port Chester (40 NY2d at 656), that the Court of Appeals would not treat both situations similarly, on *181the theory that \u201cthe . . . services performed by the subcontractor . . . are for the benefit of the general contractor who is responsible for the completion of the improvement, not for the benefit of the owner.\u201d (Schuler-Haas Elec., 57 AD2d at 708; see also 4 Corbin, Contracts \u00a7 779D; 9-45 Corbin on Contracts \u00a7 45.3 [rev ed].)"], "id": "c3afcffe-d527-4279-90fc-8da185556bc4", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["A contract of reinsurance is one between the reinsurer and the insurer/reinsured. The individual or entity that is the other party to the basic contract of insurance (the insured) is in privity with the insurer, not with the reinsurer. An agreement of reinsurance is a contract of indemnity by which the reinsuring company, in return for a part of the premium, undertakes to reimburse the insurance company/reinsured for a loss sustained on risks insured by the latter. (Turner Constr. Co. v Seaboard Sur. Co., 85 AD2d 325, 327 [1st Dept 1982]; National Ins. & Guar. Corp. v Vander Veer, 66 Misc 2d 862 [Sup Ct 1971]; 13A Appleman, Insurance Law and Practice \u00a7 7694 [1976].) Absent other specific provisions, the reinsurer has no obligation to the original insured and the latter has no right of action against the former. This is so even if the insurer becomes insolvent. (Prince Carpentry v Cosmopolitan Mut. Ins. Co., 124 Misc 2d 919, 931 [Sup Ct 1984]; Skandia Am. Reinsurance Corp. v Schenck, 441 F Supp 715, 724 [SD NY 1977]; 19 Couch, Insurance 2d \u00a7 80:69 [1983].) Thus, the insured cannot claim the status of a of the reinsurance contract. (Sofia Bros. v General Reinsurance Corp., 153 Misc 6, 9 [Sup Ct 1934]; Skandia Am. Reinsurance Corp. v Schenck, supra.) Frequently the insured will not know *313of the existence of a reinsurance contract, but even if there is knowledge, such an awareness will not assist an insured who later decides to sue the reinsurer. (Squibb-Mathieson Intl. Corp. v St. Paul Mercury Ins. Co., 44 Misc 2d 835, 837 [Sup Ct 1964] [Nunez, J.]; see also, Republic Metalware Co. v General Reinsurance Corp., 245 App Div 232 [4th Dept 1935]; Insurance Co. v Park & Pollard Co., 190 App Div 388 [1st Dept], affd 229 NY 631 [1920]; China Union Lines v American Mar. Underwriters, 755d 26, 30 [2d Cir 1985].)"], "id": "f26c6b2e-2553-4ba1-991a-7f2683975ffc", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The second cause of action alleges that respondents\u2019 approval of the GPP and FEIS violated the State-City MOU because it is not consistent with the provisions contained in the IMP This, too, is without merit. Firstly, the MOU plainly states that it was \u201cfor the sole and exclusive benefit of the PARTIES hereto and no other person or entity is intended to be a beneficiary hereof nor may such person or entity claim or be entitled to any right or benefit of any nature whatsoever in connection herewith.\u201d Thus, petitioners have no standing to enforce the MOU (see Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783 [2006] [plaintiffs had no standing to enforce purported rights under a land disposition agreement between the City and defendant, since, inter alia, the agreement explicitly negated any intent to permit enforcement by third parties])."], "id": "8995a2bb-b874-4cdf-b648-be3738ece98f", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The basic difficulty with defendant\u2019s position is that, while it correctly points out that plaintiff is a of a contract it made with the city (Blue Cross of Northeastern N. Y. v Ayotte, 35 AD2d 258, 260), it then overlooks plaintiffs status as a third-party beneficiary in July, 1976. At that time, the contract of July 1, 1967, was in effect by virtue of the automatic renewal provision. This contract had been renewed from year to year in accordance with its terms. Indeed, by letter dated June 3, 1976, defendant recognized the annual renewal in the course of advising the city that while certain new benefits mandated by the Legislature did not have to be included until the renewal date, \"unless we hear from you to the contrary, we will apply the new benefit to your group immediately instead of your group\u2019s annual renewal date which is July 1, 1976.\u201d Thus, even if the annual renewal provision were regarded as unclear, the \"practical construe*449tion\u201d given to the contract by the parties for some nine years recognized that it was renewed annually. (Brooklyn Public Lib. v City of New York, 250 NY 495, 501.) Since Gruskin\u2019s letter was ineffective to eliminate benefits covered by no-fault, the contract which renewed itself on July 1, 1976, was renewed without the no-fault change. While defendant and the city may have had the right to make changes in this contract (Blue Cross of Northeastern N. Y. v Ayotte, supra) and to eliminate duplication of coverage with respect to no-fault (Dudley v Blue Cross, 63 AD2d 813), they could not take away rights which had already vested in plaintiff. (Clifford v Corrigan, 117 NY 257, 263.) When plaintiff incurred the hospitalization expenses in July, 1976, plaintiff\u2019s right to payment by defendant vested under the hospitalization contract which, by automatic renewal, continued in effect without the no-fault change. Defendant then became liable for payment, and subsequent changes in the contract could not take away that right which had already vested. See, also, Stein v Severino (41 Misc 2d 209, 211) stating: \"Parties to a contract entered into for the benefit of a third person may rescind the contract as they see fit, without the assent of the third person at any time before the contract is accepted, adopted or acted upon by him and such rescission deprives the third person of any rights under or because of such contract (Moore v. Ryder, 65 N. Y. 438). However, after the third person accepts, adopts or acts upon the contract entered into for his benefit, the parties thereto cannot rescind the same without his consent, so as to deprive him of its benefits (Comley v. Dazian, 114 N. Y. 161).\u201d Judgment for plaintiff against defendant for $836."], "id": "0cd9df9a-9714-4e17-89c1-5da166330a68", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Where a union welfare fund purchases insurance for the benefit of union employees, questions of construction of the contract of insurance are cognizable in a court of law. In *224Smith v Boer (45 Misc 2d 338) the Civil Court of the City of New York determined which of two provisions in a union trust agreement governed the claim of the beneficiary of a deceased union member to recover the proceeds of a group life insurance policy. In Pasko v Cuba (33 Misc 2d 350) plaintiff\u2019s intestate brought suit in the former Municipal Court to enforce the terms of a life insurance policy against union welfare fund trustees who had sole power to approve the application. The court held (p 352): \"The union\u2019s claim that the court has no jurisdiction is without merit. Plaintiff\u2019s intestate, as a , may institute suit under the collective bargaining contract and need not resort to a court of equity.\u201d (See, also, Soto v International Organization of Masters Mates & Pilots of Amer., 74 Misc 2d 355; Krohn v Steinlauf, 22 Misc 2d 365.)"], "id": "e14220b3-0460-4ab9-9a88-928336adc2d2", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Vikash suggests that Ashlyne's contract claim is procedurally improper, asserting Ashlyne \"has not brought an action to enforce her rights as a in any court of competent jurisdiction,\" and she \"did not join the Department of Homeland Security to the state court dissolution action.\" Vikash's undeveloped arguments lack merit. He offers no authority that a state court lacks jurisdiction over Ashlyne's contract claim. Nor does he explain why the Department of Homeland Security must be joined as a party to a sponsored immigrant's contract claim based on an I-864 affidavit. As we have seen, by signing the I-864 affidavit, Vikash agreed to submit to state court jurisdiction. ( 8 U.S.C. \u00a7 1183a, subd. (a)(1)(C).) And state courts regularly exercise jurisdiction over contract claims involving I-864 affidavits brought by the sponsored immigrant alone. (See Love v. Love , supra , 33 A.3d 1268 [Pennsylvania] ; In re Marriage of Kamali and Alizadeh , supra , 356 S.W.3d 544 [Texas] ; In re Marriage of Sandhu , supra , 207 P.3d 1067, 1071 [Kansas] ; Naik v. Naik , supra , 944 A.2d 713, 717 [New Jersey] ; Davis v. United States , supra , 499 F.3d 590, 592 [recognizing propriety of enforcement of I-864 affidavit in Ohio state court]; Moody v. Sorokina , supra , 40 A.D.3d 14, 830 N.Y.S.2d 399 [New York].)"], "id": "b9c10213-fc1b-4ed7-a767-5a0cdb278023", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [" \r \r Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about July 12, 2021, which granted in part and denied in part defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to grant the motion as to the claims for breach of contract asserted by plaintiff as a , and otherwise affirmed, without costs."], "id": "d43f71d0-86cb-4dbc-b867-d65626d49363", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Finally, the defendant contends that even if the account is found to be a special account, yet, the plaintiff as assignee of First National City Bank and Hubshman Factors Department is not entitled to recover. It is well settled that deposits made to a special account, in the absence of a special agreement to the contrary, if not used for the purposes of the special account, are to be returned to the depositor. (Cassedy v. Johnstown Bank, 246 App. Div. 337, supra.) It may well be that the third party for whom the account was set up, not being the beneficiary of a trust, has no right to recover the funds deposited therein. (Staten Is. Cricket & Baseball Club v. Farmers Loan & Trust Co., 41 App. Div. 321.) This action, however, is brought by the depositor, not only as assignee of the third party (First National City Bank and Hubshman Factors Department) but also in its own right. The amended complaint in paragraph 10 alleges \u2018 \u2018 the defendant has unlawfully refused to pay or remit said amount to Hubshman Factors Department, First National City Bank or to the plaintiff although due demand has been made therefor \u201d (emphasis added). Clearly, the proceeds of a special account such as the one before the court, not being subject to a setoff by the depositary bank, belong to the depositor or his assignee, and when the depositor further takes an assignment of all right, title and interest of the of the deposit, the depositary bank must relinquish possession. Judgment granted to the plaintiff for the amount demanded in the complaint."], "id": "9dbccae7-5062-473c-865a-ad57a88512e9", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["It is this court\u2019s position that the questioned clauses in the life insurance contracts (transferring ownership of the policies), create a contract, performable at death, and \"[l]ike many similar instruments, contractual in nature, which provide for the disposition of property after death, they need not conform to the requirements of the statute of wills.\u201d (Matter of Hillowitz, 22 NY2d 107, 110; Matter of Gross, 35 AD2d 830.) These clauses are not testamentary dispositions but valid contractual conditions and therefore must be given full force and effect. (Matter of Cairns, 33 Misc 2d 621.)"], "id": "f4b2d263-c2eb-43c4-93fa-910bb74288dd", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In Moch Co. v Rensselaer Water Co., the Court of Appeals rejected an attempt by the plaintiff (whose warehouse suffered extensive fire damage) to sue a waterworks company for failing to provide sufficient water (to douse the fire) on the theory that plaintiff was a of the contract between the company and the city. In so holding, the Court held as follows (247 NY at 164-165):"], "id": "2fede77f-ad6c-47a9-8c96-bcefbdfac44f", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Count 12: breach of contract against JFK and Middlesex, for violating their professional services agreement by failing to comply with all applicable hospital policies, procedures, protocols, and guidelines governing services provided by physicians in the emergency department, including but not limited to the JFK physician assistant policy with respect to the treatment and care of plaintiff, a of the professional services agreement;"], "id": "5801b4a6-4f6e-45e7-913d-6fc7710ba312", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["There is no merit to plaintiffs appeal from the order entered April 23, 2010, insofar as reviewed. Plaintiffs theory of holding Chase liable is based upon the bank\u2019s status as a . It is well settled that a nonparty to a contract cannot be named as a defendant in a breach of contract action unless the nonparty assumed the obligations under the agreement (see Bartsch v Bartsch, 54 AD2d 940 [1976]; International Customs Assoc., Inc. v Ford Motor Co., 893 F Supp 1251, 1255 [1995]). While the status of an intended third-party beneficiary gives that individual a right to sue on a contract to which that individual is not a party, this status does not confer upon one of the parties to the agreement the right to sue the third-party beneficiary (see International Customs Assoc., Inc., 893 F Supp at 1255-1256). In this case, plaintiff did not establish that the bank had assumed any obligations of the agreement between plaintiff and the other named defendants."], "id": "8efd3e81-47b2-4a5d-bd80-95193cb40341", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": [". We note claimant has also failed to allege any sufficient claim for unjust enrichment (see Custer Bldrs. v Quaker Heritage, 41 AD2d 448; 62 ALR3d 288). Further, claimant\u2019s memorandum herein specifically eschews any theory and it is clear claimant is at best only an incidental beneficiary of the State\u2019s prime contracts with Green Island, thereby not being entitled to any recovery thereunder. (See Zweig v Metropolitan Life Ins. Co., 73 Misc 2d 93, 95; Restatement, Contracts, \u00a7 147; \u00a7 133, illus 12.)"], "id": "43b5c7e2-4023-4aa8-82e8-90b1464b819a", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["*431I hold that the respondents\u2019 contentions are correct and that they are third-party beneficiaries of the provision in question. Contrary to the petitioner\u2019s contention that a holding of status would vest the respondents with rights of \u201cperpetual tenancies\u201d, my holding here only requires the petitioner, prior to any proposed change in commercial use, or use other than one originally intended, to secure the written approval of H.U.D. The burden is not too onerous and does not, in fact, prohibit a change in use but merely requires approval from the secretary prior to such change."], "id": "8585001e-1bce-45f8-83c8-fec7f13239e5", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["To the defendant\u2019s objection that he has failed to establish any right of action as a taxpayer within the ambit of section 51 of the General Municipal Law, the plaintiff contends that since he here sues a private stock corporation and not an officer, agent, commissioner or other person acting on behalf of a *266municipal corporation, said statute is inapplicable and that he bases his right to sue as a of a contract, pursuant to such authorities as Lawrence v. Fox (20 N. Y. 268) and Pond v. New Rochelle Water Co. (183 N. Y. 330). The plaintiff overlooks, however, the language of section 910 of the contract between the defendant and the city, dated October 8, 1959, which provides that nothing expressed in or to be implied therefrom: \u201c is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and the holder or holders of the first mortgage and the second mortgage authorized by Paragraph 406 and the Federal Housing Commissioner or his successors in office, any legal or equitable right, remedy, or claim under this Agreement, or under any provisions herein contained; this Agreement and all such provisions being for the sole and exclusive benefit of the parties hereto and the holder of the mortgages, and the Federal Housing Commissioner or his successors in office, except as in Paragraph 906 provided.\u201d"], "id": "68d99044-5aa1-41f0-bb00-6df6938901e0", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs also seek recovery as a of the collective bargaining agreement between defendant unions and the public employers. Plaintiffs particularly claim the benefit of the no-strike clauses contained in those agreements. Historically, New York has been in the vanguard of the development of the third-party beneficiary doctrine. The doctrine itself had its American genesis in Lawrence v Fox (20 NY 268). Subsequent cases have applied this principle to contracts where one of the parties was a governmental entity. (See, e.g., Pond v New Rochelle Water Co., 183 NY 330; Kornblut v Chevron Oil Co., 62 AD2d 831, affd 48 NY2d 853.) Extensive research by the court has failed to disclose any New York case where a public sector union breached an explicit no-strike clause of a contract which explicitly referred to protecting the interests of those who utilize the public service. In this regard, the facts before the court are highly unusual."], "id": "7049af5e-a426-419b-a807-b925f12b3613", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["\u201cOne is an intended beneficiary if one\u2019s right to performance is \u2018appropriate to effectuate the intention of the parties\u2019 to the contract and either the performance will satisfy a money debt obligation of the promisee to the beneficiary or \u2018the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\u201d (See Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 368 [1st Dept 2006] [emphasis added].) Additionally, \u201cthe parties\u2019 intent to benefit the third party must be apparent from the face of the contract.\u201d (LaSalle Natl. Bank v Ernst & Young, 285 AD2d 101, 108 [1st Dept 2001]; see also U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 105 AD3d 639, 640 [1st Dept 2013] [dismissing claim because of \u201cthe absence of any clear language on the face of the (contracts)\u201d].) \u201cAbsent clear contractual language evincing such intent, New York courts have demonstrated a reluctance to interpret circumstances to construe such an intent.\u201d (LaSalle, 285 AD2d at 108-109, citing Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 45 [1985].) Most important, a third-party beneficiary \u201chas no greater rights or remedies than the direct parties to [a contract].\u201d (Ambac Assur. Corp. v EMC Mtge. LLC, 39 Misc 3d 1240[A], 2013 NY Slip Op 50954[U], *4-6 [Sup Ct, NY County 2013, Ramos, J.]; BAII Banking Corp. v UPG, Inc., 985d 685, 697 [2d Cir 1993], citing Dunning v Leavitt, 85 NY 30, 35 [1881] [\u201cit would be contrary to justice or good sense to hold that (a third-party beneficiary) should acquire a better right against the promisor than the promisee himself had\u201d].)"], "id": "5ee43a32-8139-4804-a65b-7ad8af8678cd", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs contentions that it should be permitted to amend the complaint to allege that Chase is a of the construction agreement and that it should be permitted to add a cause of action against Chase for unjust enrichment are also without merit. Leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025 [b]; Crespo v Pucciarelli, 21 AD3d 1048, 1049 [2005]). In this case, the proposed amendments are palpably insufficient and devoid of merit. Thus, the Civil Court properly denied the branch of plaintiffs motion seeking leave to amend the complaint."], "id": "3ced686e-de0c-4617-b6d7-68d5fc55d260", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["In the Matter of Chilson (28 AD2d 766) the Appellate Division, Third Department, was called upon to interpret the provisions of a separation agreement remarkably similar to the one at bar, and to decide whether it was proper for the infant to attempt to enforce directly its terms which applied to him. At issue was the payment for the cost of the infant petitioner\u2019s college education by the estate *510of his deceased father. The Appellate Division held (supra, p 766) \"[cjlearly, where as here, a child is an intended beneficiary under a separation agreement, rather than a mere incidental one, it is proper for the child to advance his claim directly through his guardian (Foreman v Foreman, 17 NY2d 274).\u201d"], "id": "96524821-42a2-4b70-9179-a53a5c1ab4fc", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The defense of Huntington based upon the agreement of the two individuals for Dean to pay rent and for the repair of equipment and supplies is likewise improperly interposed in this action. Nowhere is it alleged, nor has proof been made, that Dean itself agreed to make the payments allegedly relied upon. Additionally, the defense of the defendant Gazza that Huntington became the of an agreement between him and the plaintiff is not only conclusory but is unsupported by the evidence adduced upon the trial."], "id": "412adeaa-2a3b-4543-9663-de8b0c1159b4", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Further, it appears clearly that the court in Eden v Miller (supra) classified the corporation which was to be formed by the promisees as a third-party creditor bene\u00f1ciary as distinct from a donee or incidental . \"Their [promisees\u2019] right is analogous to that of a debtor, with whom a third person has contracted to pay the debt of the creditor.\u201d (37d at p 10; emphasis supplied.) By parity of reasoning, this court believes that in the case at bar the classification of the corporation as third-party creditor bene\u00f1ciary is the correct one."], "id": "47daab4c-5005-49bb-9738-8580eab0577f", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff cross-moves for an order directing that the place of trial be retained in Queens County, on the grounds that (1) plaintiff is not bound by the venue provision of the bond, since it was not a party thereto; and (2) the convenience of parties would best be served by retaining the action in Queens. But in order to prevail in its claim against movant, plaintiff must rely upon the benefits which accrue to it by reason of the execution of the bond. It is, therefore, a (Lawrence v. Fox, 20 N. Y. 268) whose rights, as against the maker of the bond, are limited to the terms thereof. The holding in Graziano v. Indemnity Ins. Co. of North America (286 App. Div. 867) is not to the contrary. The decision, in that case, merely indicates that the provision in the bond with respect to the place of trial affects the remedy (i.e., procedural issues relating to venue) but does not limit the cause of action (i.e., substantive rights, sufficient to constitute an affirmative defense). Venue is a procedural issue and does not affect the substantive rights of the parties. Thus, there is no merit to the first ground asserted by plaintiff."], "id": "9e342281-8a65-4b4d-8985-450dab411eaf", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["The Cooperative Corporation contends that plaintiff failed to allege that it relied on paragraph 39 to extend the mortgage at issue, that the mortgagee is not a of the lease contract between the Cooperative Corporation and the tenants, and that the mortgagee, as opposed to the receiver, may not enforce the provision* The short answer to all of these arguments is that paragraph 39 specifically provides that the mortgagee is a third-party beneficiary and, by implication, permits enforcement by the mortgagee."], "id": "53fa478c-1805-43f1-8e12-0e29b03d1bcc", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["It is the contention of the plaintiff that the provision of the policy, as aforesaid, was made for the benefit of the plaintiff in that she is a member of that class of \"others\u201d referred to in the policy provision. She claims that as soon as her injuries occurred in the accident giving rise to the immediate and imperative need for medical and surgical attention, her rights under the policy accrued and she, therefore, is a of the insurance contract under the principle of Lawrence v Fox (20 NY 268)."], "id": "8303319b-1209-430c-b4de-4e64db2f884f", "sub_label": "US_Terminology"} {"obj_label": "third-party beneficiary", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff cannot enforce the contract between EFC and Mid-State. That contract expressly precludes enforcement by third parties (see, Fitzpatrick Constr. Corp. v County of Suffolk, 138 AD2d 446, 449-450, lv denied 73 NY2d 807). Thus, the court properly granted summary judgment dismissing the fourth, sixth and seventh causes of action in the amended complaint and properly denied leave to assert the first, third and sixth causes of action in the proposed second amended complaint. Those causes of action depend upon plaintiff\u2019s status as a of that contract."], "id": "ba862cb3-fb5e-4425-8cdf-d19b3b499a8e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The most troubling part of the Federal court\u2019s analysis is its reference to the legislative history. The court referred to Senator Williams\u2019 floor statement in support of the conference report as supporting its conclusion. The statement, which is the only floor discussion of section 3607, in its entirety was: \"Finally, I am pleased to note that the conferees did retain a provision of the Senate bill which provides a federally-sanctioned, simple and nonjudicial method by which the residents of a conversion project may void a long-term, leasing arrangement.\u201d (126 Cong Rec 28178 [daily ed, Sept. 30, 1980].) At the outset it is not certain that the term \"leasing\u201d was even intended by the Senator, since he did not refer at all to management \"contracts\u201d which were, without doubt, the central thrust of section 3607. Further, Senator Williams\u2019 following remarks, apparently about section 3608, show his, *818and the other Senate conferees\u2019, great concern about abuses in self-dealing leases and their inability to get House support for anything other than limited relief for the Florida situation: \"[i]t would also have been prudent to provide prospective as well as retroactive relief in situations involving unconscionable leasing arrangements\u201d (126 Cong Rec 28179 [daily ed, Sept. 30, 1980]). Those remarks are inconsistent with a view that the bill provided for terminations of any leases without judicial scrutiny."], "id": "292d546e-50bd-4125-8d79-edf07e4d057e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Tenants claim that certain of these representations were false because no part of the assessment charges received was spent on the facade repairs, that the basis of the Board\u2019s rejection of the mortgage alternative was unreasonable and contrary to the *30cooperative\u2019s best interests, that the facade work was premature, and that the special assessment was a pretext to balance the corporation\u2019s operating budget. However, the broad financial management authority granted to the Board in the bylaws and proprietary leases clearly includes the determinations made by the Board, and there is no claim that any part of the funds collected from the special assessment was used for any purpose other than the furtherance of the cooperative\u2019s legitimate interests. Whatever tenants\u2019 claims as to the wisdom of the Board\u2019s decisions, they are clearly authorized by the bylaws and proprietary leases. Even if, as tenants claim, the assessment served only to cure a budgetary shortfall or a depletion of the cooperative\u2019s capital reserves as a result of ongoing facade work expenses throughout 2010, the assessment represents merely an indirect financing of the facade repairs. Absent proof sufficient to establish a triable issue of fraud, , unconscionability, or other action \u201ctaken without notice or consideration of the relevant facts\u201d (Matter of Levandusky, 75 NY2d at 540), the Board\u2019s decisions are insulated from judicial scrutiny by the business judgment rule. Thus, tenants failed to \u201covercome the presumption that the directors exercised their honest judgment to promote the lawful and legitimate interests of the corporation\u201d (Horwitz v 1025 Fifth Ave., Inc., 7 AD3d 461, 462 [2004])."], "id": "f4d525bc-2a86-4a92-ac96-55f05d0c9378", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Brown asserts no legitimate basis upon which to claim that the probate court erred in failing to award him attorneys' fees in this case. Again, the court did not find that the proposed distribution plan \"violated the prohibition against ,\" and its rejection of the proposed plan does not automatically equate to such a finding. Second, Brown does not establish that he is entitled to his attorneys' fees in this case under the 2010 Arbitration Agreement between himself and his sister, as he suggests.20"], "id": "7006fbd7-91b7-4b4c-9298-9edd59276475", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The guardian\u2019s position is that the executor sold the stock at a price substantially below its fair value and that the agreement is ambiguous, making it unclear at what price the parties intended the stock to be sold. The guardian further argues because the executor was in a position of that approval of the court was required prior to the sale."], "id": "6d70ebb8-cc92-4b0d-8962-9f0ad1a7eef1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["This rule, however, is not applicable to accounting proceedings where facts are not sufficiently disclosed in the account to put the parties on notice that there has been . (Matter of L. I. L. & T. Co. [In re Garretson], 92 App. Div. 1 [2d Dept., 1904], affd. on opinion below 179 N. Y. 520.) In such instances the decree judicially settling such account will not be res judicata as to matters not adequately disclosed upon a subsequent accounting."], "id": "dbcd0e00-804c-42ce-bb02-32db13c7cef9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["A power of attorney, no matter how broadly drawn, cannot be held to encompass an authorization to the attorney in fact to make a gift to himself of the principal\u2019s property. Such a gift carries with it a presumption of impropriety and , a presumption which can be overcome only with the clearest shewing of intent on the part of the principal to make the gift. Not having overcome this presumption, it is evident that respondent breached his fiduciary duty to the decedent when he made a gift to himself of one half of her estate."], "id": "4f6e9772-315d-4c16-bd20-4ccc1b46ac4b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The determination of what constitutes adequate disclosure in an accounting is not a purely mechanical procedure. What is called for is not only a factual description but disclosure which reenforces the special rules governing the duties and powers of the fiduciary. For example, in Matter of Chapin (171 Misc 783, supra) the issue was whether the beneficiaries of a trust could object to the trustee\u2019s investment in a participation in a bond and mortgage on the ground it was not a legal investment, despite the fact that this purchase had been set forth in a prior judicial accounting, where its validity was not challenged. Surrogate Foley held that this objection was precluded by the prior decree because the investment had been reported \"with sufficient particularity to apprise the persons interested in the estate as to the nature of it\u201d (supra, at 784). He distinguished a line of cases in which an accounting decree was not preclusive because the acts of the trustees \"constituted a breach of trust\u201d (at 785). (Matter of Long Is. Loan & Trust Co., 92 App Div 1, affd 179 NY 520; Matter of Schmidt, 163 Misc 610.) In those cases the prior account had set forth the trustee\u2019s investments but failed to reveal that their purchase was tainted by the trustee\u2019s .1"], "id": "84a23b59-8677-4658-a982-4b30e1592014", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Much is contained in the various affidavits as to the valuation of the paintings involved in the contract of sale and as to the allegedly excessive amount of commissions fixed in the consignment contract. Were an element of absent from the transaction, the question of valuation and excessive commissions ordinarily would be disposed of in an accounting proceeding but, if self-dealing is present, immediate action by the court is required for the protection of the estate and questions of valuation and terms may not be a determining factor. \u201c [W]hen the trustee has a selfish interest which may be served, the law does not stop to inquire whether the trustee\u2019s action or failure to act has been unfairly influenced. It stops the inquiry when the relation is disclosed and sets aside the transaction or refuses to enforce it, and in a proper case, surcharges the trustee as for an unauthorized investment. It is only by rigid adherence to these principles that all temptation can be removed from one acting as a fiduciary to serve his own interest when in conflict with the obligations of his trust.\u201d (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125, 132; see, also, Matter of People [Bond & Mtge. Guar. Co.], 303 N. Y. 423)."], "id": "3d5acc46-b51f-4efc-b5c3-3963d54e799b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff, a former member of the board of directors of the defendant cooperative corporation, is seeking to collect the balance of a brokerage commission due under a written commission agreement, signed by the president of the defendant cooperative corporation. The prior decision and order of this court (see Strax v Murray Hill Mews Owners Corp., NYLJ, Dec. 8, 1995, at 30, col 4), as well as the subsequent decision of the Civil Court dismissing the defendant\u2019s claims of overreaching, bad faith, , breach of fiduciary duty, conflict of interest and unclean hands, preclude the argument that there are any legal impediments that would prevent plaintiff, an attorney and director, from entering into a commission agreement with the cooperative corporation, nor were such impediments demonstrated upon the retrial."], "id": "d3438bc3-d521-43d1-ad77-f7087d9f46c7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Furthermore, the operating agreement must be interpreted in light of common understandings in corporate law. Although the Company was established as a limited liability company rather than as a corporation, we interpret the establishment of a formal board as a choice by the Company to organize itself according to the ordinary rules of a board of directors. (See Friedman et al., Cal. Practice Guide: Corporations (The Rutter Group 2017) \u00b6 2:36.18, p. 2-16.) Ordinarily, a majority shareholder who has the authority to appoint a majority *504of the board of directors may make decisions despite the objection of a minority shareholder. If the Gurneys' interpretation were correct, that rule would be flipped on its head, with essentially no recourse for the *33majority to assert its authority. Under their interpretation, the Gurneys could never be removed from managing the Company, regardless of any bad behavior on their part or the terms of their employment. Even if the Gurneys had already breached their duty of loyalty by entering into a transaction to benefit themselves at the expense of the Company and ITV, the remaining board members would have no means of preventing the Gurneys from continuing indefinitely to operate the Company, except by dissolving the Company."], "id": "2621c07e-705a-4808-93b7-2d64a06090d8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["In objection 16 it is asserted that the affidavit of mailing of notices, in compliance with paragraph (1) of subdivision 12 of the statute is defective because it states a conclusion of law rather than the facts of the mailing. The affidavit incorporates by reference the names and addresses appearing on the list required to be filed by subdivision 12 of the statute, and which list was in fact duly filed herein. The objection is, therefore, without merit. Objection 5 also relates to said list, the objection being that it fails to show the nature of the interests of the persons named and the classification of paragraph (1) of subdivision 12 in which they fall. The statute does not require such showing. Although such information might save time for the trustee and the special guardians upon the accounting, it is within the discretion of the trustee whether to insert it in the list. The objection (17) that the publication was defective because of a printer\u2019s error in the name \u201c Hardenbrook \u201d, it having been misspelled as \u201c Hardenbreek \u201d, is likewise rejected, particularly since in the same clause the same family name is correctly printed. Objection 18, that the permission of the banking board to the trustee to establish the fund, and the authorization of the Board of Governors of the Federal Reserve System and of the banking board authorizing investments in the sum of $50,000 have not *1018been filed, is likewise dismissed as not required. The certification made by the banking board pursuant to subdivision 13 of the statute is surely sufficient evidence that the fund has the approval of that board. The further objection contained in number 18 that there is no affidavit filed on behalf of the trustee showing that the trustee has complied with subdivision 4 of the statute and has made no investment amounting to , etc., was well taken, but the affidavit has since been filed. Objection 19, that the trustee has filed no affidavit concerning its mailing of notices of the first investment under subdivision 9 of the statute is rejected because such notice is not jurisdictional, as hereinbefore discussed."], "id": "d285a350-2164-41f9-9363-1a9eaf8da139", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs allege that Thain engaged in by putting the financial interests of himself and Goldman above that of the NYSE seatholders. Further, plaintiffs allege that Thain stands to receive a direct personal financial benefit from the unfair terms of the merger, and given his large financial stakes in Goldman. Plaintiffs additionally maintain that Thain effectively dominated and controlled the Board, and as a consequence, the Board merely \u201cpassively rubber-stamped\u201d the transaction. Moreover, plaintiffs maintain, in tandem with allegations of Thain\u2019s domination, that the majority of the Board was incapable of exercising independent business judgment given their extensive business and employment relations with Goldman and other financial institutions on Wall Street with large ownership interests in Archipelago, JP Morgan and Merrill Lynch."], "id": "b0c11865-d007-4fc7-ae7c-26c872bce4e3", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["In prior cases, whenever limited letters have been issued under the amendments (see, e.g., Matter of Teah, 166 Misc 2d 976 [1996]; Matter of Davidson, 177 Misc 2d 928 [1998]; Matter of Vasquez, 162 Misc 2d 184 [1994]), section 702 has been used to protect the estate from the prospect of by replacing the acting fiduciary in a limited respect. In those cases, the fiduciary was, in effect, involuntarily displaced with respect to the transaction or proceeding in question. The present application is different, however, in that the acting fiduciaries themselves are seeking, rather than opposing, the issuance of limited letters to a cofiduciary under section 702."], "id": "4bda4066-0d67-42c7-b787-23cefa2452e9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The petitioner also urges that the trust should be set aside because the trustees specifically violated the terms of the trust. Article third of the trust provides, in pertinent part, that \u201cthe Trustees are prohibited from engaging in any act of (as defined in \u00a7 4941[d])\u201d. It is uncontroverted that by letter dated November 21, 1980, ACN and his wife as cotrustees wrote to themselves and offered to sell the assets listed in the trust agreement at the values specified in the agreement, to wit, $2,000,000. In payment, the purchasers were to give a demand promissory note with interest at 10% per annum payable quarterly to the cotrustees. On the same date, ACN and his wife, as purchasers, accepted the offer of sale and executed their acceptance of the terms of the sale."], "id": "44120ac4-a245-4073-940b-0fac98813b5f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": [". The court does not find that the issue raised by the movants regarding the trustee\u2019s assessment of its own risk and its efforts to obtain broad indemnification for its actions states a colorable claim of conflict or . It is clear from the December 10, 2010 letter from Bank of America to BNYM (exhibit F to Ingber aff, Jan. 28, 2013) that BNYM did not obtain indemnification beyond what was provided for under the PSAs. The December 10th letter states in relevant part: \u201c[f]or the avoidance of doubt, nothing herein is intended to limit, modify, supersede, expand or in any way affect any indemnity rights already available to the trustee under each PSA for each Original Trust and Additional Trust.\u201d"], "id": "00e9d814-3caa-4369-b7ae-41371ec2f530", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["It was this breach of fiduciary duty and the substantial amount of by respondent as fiduciary of the decedent which has created the intolerable conflict of interest for respondent as fiduciary of the estate. An attorney in fact, in exercising the broad powers granted to him should surely be required to turn especially sharp corners in the discharge of his fiduciary responsibilities, particularly when he stands to benefit personally from his acts or dealings. Accordingly, it is the finding of this court that respondent is ineligible to act as administrator of the estate of decedent upon the ground of improvidence under SOPA 707 (subd. 1, par. [e]) and that the letters granted him should be revoked."], "id": "a15943a3-ff96-47dc-8df3-50614c50126a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Two of the executors, Reis and Stamos, assert that this is not a case of . The third executor, Levine, assumes the position that the temporary restraining order should be continued in effect until the court has had an opportunity to review the agreements and that the transaction involves self-dealing on the part of Reis, and 1 \u2018 potential conflict of interest of Stamos * * * (a noted painter) \u201d who \u201cwas considering entering into an agreement of his own with Marlborough \u2019 \u2019 which he later consummated."], "id": "fb692f17-d951-4ef6-99f6-e577cf2e050c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The claim that the statute permits , it seems to the court, goes largely to a matter of policy, not of constitutionality, but at any rate it is unfounded in view of subdivision 4 of the statute and the construction placed thereon in Mullane *1014v. Central Hanover Tr. Co. (339 U. S. 306, 309) to wit, \u201c The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate.\u201d (And see Matter of Bank of New York, 189 Misc. 459, 463.) The failure to require so-called \u201c documentary \u201d evidence of investments and transfers (objection 7) and of other notices thereof may affect the opportunity for self-dealing but do not amount to authorization thereof. They are regulatory matters only, and do not render the statute unconstitutional. The claim that self-interest will cause the trustee to pour all funds of small trusts into the common trust fund, so far as possible, may be true. Such seems to be the purpose of the statute. Insofar as operating costs are reduced, it is possible that the trustee may gain by a reduction of its own expenses, but the fund will gain also. If the fund produces a better return, the trustee will gain only insofar as it receives commissions on income in the underlying trusts (subd. 4), and reasonably high income upon diversified investments is certainly not to be condemned. The provision for a stated period of time between a decision to withdraw funds from the common trust fund and the time of actual withdrawal is for the protection of the beneficiaries and deprives no one of substantial rights. It is proper, regulatory legislation. (Veix v. Sixth Ward Assn., 310 U. S. 32.) The same is true with respect to the provisions for triennial accountings."], "id": "7bf64b8f-5624-402c-8fb4-30e438f3dd17", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The estates are entitled to an allocation to them of an award representing the underlying value of their proportionate interest in the Phelps Can Company following its liquidation. In order to restore the beneficiaries of the constructive trust to the position they would have enjoyed had there been no , they are entitled to that portion of the Phelps\u2019 net assets which the shares of the Bellinger and Debbie estates bore to the outstanding shares of the company stock on December 31, 1966. (Scott, Trusts [3d ed.], \u00a7 516; Joseph v. Herzig, 198 N. Y. 456; Central Manhattan Props. v. D. A. Schulte, Inc., 91 F. 2d 728; Diamond v. Oreamuno, 24 N Y 2d 494; Matter of Hubbell, 302 N. Y. 246; Ann. 47 ALR 2d 176; Matter of Bolton, 121 Misc. 51; Matter of Dupignac, 123 Misc. 21; People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433.)"], "id": "f2effc7c-7bc7-49fc-a015-3936c3e27727", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Further, the court concludes that it was reasonable for counsel to opine that the advances from SRA No. 1 were not motivated by self-interest and the desire of the general partners to insulate themselves from liability under their personal guarantees. Given the facts in the case, as even plaintiff concedes, had there been a default by CTLP, it was possible but unlikely that there would have been a foreclosure. Even if there had been, the value of the premises with improvements would have satisfied any claim for a mortgage balance due, so that the likelihood of the personal guarantees being triggered was quite remote. Under these circumstances, the legitimate business purpose of SRA No. 1 in preventing default and foreclosure, and in assuring the continuation of the entire development through the means of a one-year loan, could reasonably be characterized as a sound business and economic *94measure, and not , the moneys having been fully repaid, and there being no intimation that the general partners derived any personal benefit from the transaction whatsoever, except for the theoretical avoidance of the invocation of their personal guarantees."], "id": "e96c9ce9-10a4-4cb5-832d-d0ec729eb2b6", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The \u201c mere fact that the trustee advanced its own money in the first place but acquired the mortgages for the purpose of distributing them among the trust estates administered by it and where only a short interval elapses between the purchase and distribution, there is not such as to make the transaction improper. The trustee would rarely be able as a practical matter to advance the money in the first place wholly out of the trust funds of the various trusts, and the advance of its own funds is made not for the purpose, of investing its own funds but for the purpose of obtaining an investment for the various trust estates.\u201d (2 Scott on Trusts, pp. 882, 883; Matter of Coulter, 121 N. Y. S. 2d 535.) Moreover, in the administration of a number of separate funds where the aim is to keep the funds productive as steadily as possible, cash cannot be available in all participating estates on the same day. In each case the interval between closing date and complete allocation was a short one, namely, four days, eight days and fifty-eight days, respectively. In respect of the last-mentioned mortgage of $3,000,000, all but $589,900 was apportioned at once. During the same month all but $92,000 was apportioned. The balance was allocated to estates and funds by August 1st. Only by completely ignoring reality could we say that any of these purchases was made for the trust company\u2019s own account. The only fair view of the transactions is that the trust company was engaged in combining trust funds for investment and acquired the mortgages only for the purpose of distributing them among the trusts, estates and funds."], "id": "83afaa8b-e62c-4f1f-a0c7-5a7509750b41", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["SCPA 2301 reposes in the discretion of the Surrogate, and in the proportions fixed by him, the funds from which payment is made of allowances for the necessary services of the guardian ad litem. Generally, the rule is that a fiduciary may be surcharged with another interested party\u2019s counsel fee where the fiduciary is guilty of misconduct that necessitated the expense. (Parker v Rogerson, 49 AD2d 689; Matter of Garvin, 256 NY 518.) However, in this case, there is no issue of any misconduct or bad faith on the part of the petitioner. The petitioner\u2019s purchase of the estate\u2019s interest in the subject business and property properly could be acquired by him only after court approval since as a fiduciary of the estate he could not engage in . (Matter of Rothko, supra; Matter of Scarborough Props. Corp., supra.) Although the sale was not consummated, the services of the guardian ad litem were necessary for both jurisdictional purposes in the proceeding as well as for the oversight and protection of the interests of the infant. Accordingly, such services properly are an estate expense and should be borne as such."], "id": "1b7bd060-b09d-4e0b-b349-e6c1471f2a7b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["There can be no question that the moneys received by this respondent did not belong to him and did not represent a proper repayment of any loan made by him. There is no legal or equitable principle available to justify respondent\u2019s act of divesting his corporation of the money returned under the contract, and converting it to his own personal use to the detriment of the rights of an existing creditor. No court would or should provide any judicial sanction for this respondent\u2019s bold act of *397stripping his corporation of the assets which it required to satisfy an existing creditor by means of acts of with himself which resulted in the diversion of corporate assets to his personal account."], "id": "8e358ad2-c855-4588-aaf2-104daf20bba2", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Under that test the moving party has a heavy burden to show not merely that a different business decision could or should have been made by the administrator, but also that there is some actual impropriety. Thus, a lease entered into by the administrator in excess of her powers can be invalidated. (See, at 809, infra.) So, too, can a lease executed as a result of fraud or be voided. Here, the order requires specific prior court approval for a lease by the administrator, who is an occupant of the building, with herself or her family."], "id": "74ef6ce5-d9e7-4ed8-8266-470f4467ff72", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The record is clear and petitioners do not deny that the reason Welco relinquished control of the board in 1988 was to trigger the running of the two-year window period for the tenant-shareholders to terminate certain commercial leases of the sponsor, pursuant to section 3607 of the Condominium and Cooperative Conversion Protection and Abuse Relief Act (15 USC \u00a7 3607)."], "id": "c543deea-7e31-40f7-89f0-58f7955987b5", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["This action was brought by the Gebbie Foundation, Inc., (\u201c Gebbie \u201d), a New York membership corporation and charitable foundation, which is the legatee of the remainder of the entire residuary estate of one Marion B. Gebbie, deceased (\u201c Marion \u201d) and the legatee of one third of the residuary estate of one Geraldine G. Bellinger, deceased (\u201c Geraldine \u201d) against the defendants (other than Lefkowitz) in individual and fiduciary capacities, for a judgment based upon and profiting; the plaintiffs\u2019 complaint alleging self-dealing and profiting in connection with the sale of 125 shares of stock of the defendant, Phelps Can Company (\u201c Phelps \u201d) from each .of the estates of the aforesaid decedents, and demanding that the defendants be declared constructive trustees, account, and pay over to the estates their proper share and/or the aforesaid shares of stock."], "id": "79678634-f778-4e5c-8522-f3d90d72c1bf", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Examination of subsequent decisions which have followed Matter of L. I. L. & T. Co. (In re Garretson), (supra) in setting aside decrees settling prior accounts for the purpose of relitigating issues raised by transactions involving discloses that the results were attained because the prior accounts either misdescribed the nature of the property, or misrepresented it, or wholly failed to disclose any fact with respect to the origin of the investment. Thus in Matter of Denbosky (245 App. Div. 93) the prior account purported to show the deposit of an amount in cash in satisfaction of a legacy, when in fact there had been invested in a mortgage certificate an equivalent amount. In Matter of Schmidt (163 Misc. 156) the investment in question was erroneously described in the prior account as an interest in a mortgage whereas the fact was that it was a whole mortgage. In Matter of Curtiss (261 App. Div. 964, affd. 286 N. Y. 716) the trustee had issued certificates of participation in whole mortgages, which it held individually, to the trusts involved. Thereafter it placed a second mortgage upon the same property, against which it issued further participation certificates, some of which it likewise assigned to the trusts. In the prior account the certificates were described as \u201c shares and participations in bonds and .first mortgages * * *, said shares and participations being coordinate in lien with other participations issued therein and subject to no prior interest *849* * The second, mortgage had been placed without the knowledge or consent of the certificate holders and without consolidating the two mortgages into a first lien. It was claimed therefore that the trustee had diminished the security of' the certificate holders in the first mortgage and jeopardized the investment. The certificate holders in the second mortgage contended that they participated in a subordinate mortgage instead of a prior mortgage as required by law. No disclosure of these facts was made by the account and it was properly held that the prior decree was not res judicata as to these investments. In Matter of Ryan (181 Misc. 566, affd. 264 App. Div. 704, affd. 291 N. Y. 376), cited by the respondents herein, the questioned investments in whole mortgages were described in the prior account as: \u201c Bd. & Mtge.\u201d \u2014 name of mortgagor in each instance \u2014 amount of mortgage. In fact each whole mortgage had been purchased by the trustee from itself and the guarantee of its affiliate corporation obtained through the medium of bookkeeping entries, none of which was disclosed by the account, nor was any fact mentioned to put the beneficiaries on notice. Surrogate Delehauty granted vacatur of the prior decrees to the extent required to permit determination of the legality of such investments."], "id": "81ce7b62-5c5d-4e6d-94dc-e991ce9ace6b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["I.A crucial component of the foreclosure process which is often conducted as an ex parte proceeding is the referee\u2019s accounting \u2014 one that is done prejudgment providing a detailed snapshot of the mortgage debt. This calculation done by an impartial appointee of the court ensures the reliability and fairness of the foreclosure proceeding. It serves the function of accurately advising the court of the costs and disbursements expended during the process, thus enabling the court to determine whether the charges were taken in consonance with the law and to ensure that there has been no overreaching. An accurate, impartial, transparent accounting becomes particularly important when the purchaser is not a third party but is the foreclosing mortgage holder and the potential for arises."], "id": "9f580560-2a7c-4e00-b11b-19093c03c078", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of fraud, or unconscionability, a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith."], "id": "e644256f-32fc-4f92-87b5-739c0115d229", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Initially the court must determine the appropriate injunctive standard. Plaintiff seeks an injunction to maintain the status quo and toll the termination notice based on the doctrine established in First Natl. Stores v Yellowstone Shopping Center (21 NY2d 630 [1968]). The \"Yellowstone doctrine\u201d, as it became known, allows injunctive relief in landlord-tenant matters without regard to the likelihood of success on the merits in order to protect a tenant\u2019s leasehold (see, Post v 120 E. End Ave. Corp., 62 NY2d 19 [1984]; Herzfeld & Stern v Ironwood Realty Corp., 102 AD2d 737 [1st Dept 1984]). The Yellowstone doctrine recognizes the unique nature of the leasehold. It allows the tenant to cure his default under the lease without jeopardizing his rental lease. The Yellowstone injunction is not applicable where there is no right to cure (Podolsky v Hoffman, 82 AD2d 763 [1st Dept 1981]; Wuertz v Cowne, 65 AD2d 528 [1st Dept 1978]). Here, Park East, the cooperative corporation, seeks to terminate the lease as pursuant to the Condominium Act. This defect is not capable of being cured and accordingly the court may not evaluate the request for injunctive relief based on the Yellowstone doctrine, the purpose of which is to permit a tenant to cure defects."], "id": "cee284af-ed53-4c36-8dfe-8b8dd3cf34d9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Finally, there is no suggestion of fraud or unconscionability in the transaction. \u201c[A]bsent claims of fraud, , unconscionability or other misconduct, the court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance, of the [company\u2019s] legitimate interests.\u201d (Gillman v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509 [2d Dept 1989].) The court\u2019s review of the voluminous papers submitted on these motions uncovers no credible evidence of fraud, unconscionability or self-dealing sufficient to create a question of fact on this issue."], "id": "2d9b319a-cb45-4b13-86ae-baad577c97f7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The executors claim that they were obliged to liquidate the corporation in order to enable them to acquire the necessary *747funds to set up reserves for the various trusts under the will. But they had the power to distribute in kind and they had other wide powers under the will whereby the trusts could be set up pending acquisition of funds if and when necessary for reinvestment. Moreover the cash condition of the corporation which had the sum of $313,303 on deposit indicated no difficulty in that respect, and in fact none arose. Even if speedy liquidation were required under existing special circumstances, the law does not tolerate any exception to the absolute prohibition against by a fiduciary with which the executors are charged herein by objectants (Matter of Kilmer, 187 Misc. 121)."], "id": "f04e9763-c8ea-408c-ac21-8580bf5236ab", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The trial court found that Fudge failed in her burden of proving that the disputed transactions were either illegal or improper and that she should be reimbursed for them. The court also found that the dissolution agreement clearly resolved the claims. Fudge claims that Parks, as a fiduciary, owed a duty to account for the transactions and therefore bore the burden of proving that the transactions were not the result . Her argument fails in several respects."], "id": "0fd7d253-cadf-4d45-b2e8-7396ba611cad", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs contention that defendant\u2019s use of the loan proceeds to pay down the Modern loan, and reduce its risk-exposure, was an act of and violated the terms of the loan similarly has no merit. Plaintiffs maintain defendant withheld $85,000 from the loan proceeds and used $75,000 of the loan proceeds to pay down the Modern loan. However, a review of the record indicates that defendant discovered a mistake in Modern\u2019s equipment appraisal before the closing for the Modern loan. Specifically, defendant \u201cdouble count[ed]\u201d the collateral value of the Modern loan by $75,000 because a truck that Lammy intended to purchase with the loan proceeds was included in the collateral value when the loan was approved. To correct this mistake and balance the loan amount and collateral value, defendant determined it would keep the Modern loan amount as is and use $75,000 of the loan proceeds to pay down the Modern loan at closing. Defendant indicated these changes in the disbursement request and authorization at closing of the Modern loan. Moreover, the disbursement request and authorization plainly showed a partial disbursement to Lammy for a vehicle purchase in the amount of $85,913.74. Lammy agreed and signed the disbursement request and authorization, without objection, indicating the information contained in the disbursement request and authorization was \u201ctrue and correct and that there ha[d] been no material adverse change in borrower\u2019s financial condition[.]\u201d One\u2019s \u201cmere failure to read an agreement is not a defense in an action to enforce the terms of a written agreement.\u201d Id. Because plaintiffs failed to demonstrate defendant engaged in a material misrepresentation regarding the disbursement of the Modern loan, the trial did not err in granting summary disposition of plaintiffs\u2019 fraud claim. Roberts, 280 Mich App at 403."], "id": "9281c653-9081-42a3-b136-5408483901fe", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Citing Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 39 Cal.Rptr.3d 589, Thayer , supra , 92 Cal.App.4th 819, 112 Cal.Rptr.2d 284, and Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 78 Cal.Rptr.2d 913, FCA argues that the trial court could properly look to evidence of spurned settlement offers to determine if subsequently incurred attorney fees were in fact reasonably incurred. They acknowledge the cases such as these typically involve instances where the plaintiff obtains a less favorable result at trial, but maintain we should read them to allow a court to consider rejected settlement offers \"whenever the post-settlement litigation produces a huge disparity between the legal fees incurred and the recovery obtained .\" FCA argues we should not look to the fact plaintiffs in the end obtained double the amount of their settlement offers, but focus on the \"valued added \" by plaintiffs' counsel in \"running up nearly $90,000 in fees.\" They suggest plaintiffs spurned \"good faith, reasonable settlement offers\" and *848characterize plaintiffs' counsel as engaging in \",\" \"patent over-lawyering,\" \"over-staff[ing],\" and seeking \"overblown fees.\""], "id": "c240d732-ec72-498c-bd81-9fe5ec53e9c7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The Federal court\u2019s conclusion that the distinction between leases and contracts exalts form over substance and thwarts the congressional purpose assumes that the purpose was to preclude the of sponsors with the cooperative. As previously noted (supra, at 815-816), there is nothing in the legislative history to support such a conclusion or that it was even considered. There is no doubt that a cooperative or condominium conversion is a complex project involving legal decisions as to the form of the project and the subsidiary *819rights involved. Congress did not seek to regulate all of these issues. It is clear that if the sponsor were to create a condominium and retain a fee rather than a leasehold interest in the store, laundry or garage space, the remaining part of the project, whether a cooperative or condominium, would have no claim under the Act; there would be no \"lease\u201d or \"contract\u201d to terminate. Thus the form of the transaction will produce different results even under the Federal court\u2019s analysis. While the circuit is correct that \"a lease, in substance, may be nothing more than a contract of operation\u201d (815d, at 198, supra), the court should reserve for subsequent consideration the question of interpretation presented by such a document. A lease of commercial store space does not present the issue."], "id": "18e0b801-2e30-4476-ae0a-1b3974672e64", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["First, the probate court did not find that the Trustees' actions \"violated the prohibition against .\" Nor did its rejection of the Trustees' proposed distribution plan equate to such a finding.17 This claim apparently relates to the Trustees' request for an offset to Brown's share of the Trusts' assets for \"the attorneys' fees, expenses and costs which [he] unilaterally cost the [Estate] over the last three years through his litigious efforts [as to the] Estate.\" The probate court granted an offset of the attorneys' fees incurred in the Probate Case. Pursuant to Missouri law, and under the terms of the Trusts, the Trustees were entitled to such an offset.18"], "id": "95ab229e-f1a2-43e9-af65-04e6d4228660", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["It is not mere questions of value that concern the special guardian. The issue is raised as to whether in those acquisitions made for the Van Deusen trusts from other trusts of which the petitioner was trustee or from the \u201c T-l \u201d account, the petitioner may have been shifting to the Van Deusen trusts the burden of a loss which it had already sustained in these investments. If the trustee sought to conceal a loss by shifting this burden to the Van Deusen trusts, this would be illicit for which the petitioner would be liable. It is therefore relevant to determine whether the trustee acted in good faith in acquiring for the Van Deusen trusts these mortgages and mortgage participations from itself. It is appropriate to ascertain what evidence the petitioner had as to the value of these investments at the time they were made or whether reasonable efforts were made by it to determine this value."], "id": "1787b887-7cd3-4dc6-a033-02418bb0e9fb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["\u201c[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect. This is a sensitive and \u2018inflexible\u2019 rule of fidelity, barring not only blatant , but also requiring avoidance of situations in which a fiduciary\u2019s personal interest possibly conflicts with the interest of those owed a fiduciary duty\u201d (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989] [citations omitted], rearg denied 74 NY2d 843 [1989]). Thus, there is an obligation of utmost candor (see Alpert, 63 NY2d at 569; Kavanaugh v Kavanaugh Knitting Co., 226 NY 185, 193 [1919]), strictly obligating a fiduciary \u201cto make a full disclosure of any and all material facts within his or her knowledge relating to a contemplated transaction with the other party to the relationship\u201d (60A NY Jur 2d, Fraud and Deceit \u00a7 99). \u201c[W]hen a fiduciary, in furtherance of its individual interests, deals with the beneficiary of the duty in a matter relating to the fiduciary relationship, the fiduciary is strictly obligated to make \u2018full disclosure\u2019 of all material facts\u201d (Blue Chip, 299 AD2d at 279, quoting Birnbaum, 73 NY2d at 466; see Arlinghaus v Ritenour, 622d 629, 636-637 [2d Cir 1980], cert denied 449 US 1013 [1980]; 3A Fletcher, Cyclopedia of the Law of Private Corporations \u00a7 1171 [1931])."], "id": "97602eab-6810-442c-b0a4-9f42dae581d8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["\u201cdefendant violated his trust by and other misconduct in which he acted with a conflict of interest, both as trustee and as chief executive officer and a director of the corporation, all of which was inimical to the interests of the trust beneficiaries. This conduct was specifically alleged to have related to defendant\u2019s (1) proposing and obtaining board of directors\u2019 approval of salary increases for himself and [a cotrustee], almost doubling their annual remuneration in the space of three years, (2) obtaining similar approval of long-term employment *180contracts for various corporate officers which would protect and reward them financially in the event of the corporation\u2019s acquisition by outside companies, and (3) handling of various alternative proposals for outright outsider acquisition of the corporation or a leveraged buyout of it participated in by present corporate management, in all of which defendant allegedly discouraged consideration of merger possibilities which would have been favorable to stockholders but less favorable to management.\u201d (Id. at 907-908.) Thus, in Hoopes, the disclosures directly correlated to the allegations of self-dealing and conflict of interest and the fiduciary exception was not applied to compel disclosure of communications regarding any other topics."], "id": "9a729934-8e42-4386-9c2a-0b5382924acd", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Counsel for the principal group of objectants have very rigorously argued in their voluminous briefs for a modification of the referee\u2019s report. None of the arguments has any merit in law and the authorities cited in them have no direct application to the facts of the present proceeding. They seek a determination which would form a basis of surcharge not only in this estate, but in other estates, for negligence in the placement of the mortgage loan. The loan aggregated $2,800,000 and was allotted by participations to various trusts, testamentary, inter vivos and personal, and to the custodian accounts of individuals. If negligence did exist the amount of the liability would not deter the enforcement of a surcharge. In the absence of negligence, however, the courts should not be asked to strain to mulct the stockholders of the trustee in an amount of such magnitude. It should be noted that the contention of counsel for the objectants that these participations were bought directly from the corporate trustee is not substantiated by the evidence. There was no in the accepted use of that term. The purchase was from the trustee, not as a bank or trust company, but as a trustee of other estates which held the specific securities purchased for this estate. There is no rule which prohibits a fiduciary of one estate from buying from itself as trustee of another estate, government or State or municipal bonds, or mortgages or other securities at a fair value."], "id": "e681f506-a834-4c44-a20f-efb86d47eafe", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The petitioner replies that questions of mismanagement, negligence and of value are foreclosed by the decision of this court which rejected all such objections to the accounts for *175periods prior to this accounting, except as to . The petitioner further contends that this method of acquiring mortgages and allocating participations to trusts or the transfer of such participations from one trust to another does not constitute wrongful self-dealing, citing Matter of Union Trust Co. (219 N. Y. 514)."], "id": "4e39e675-9643-46f1-aa15-48a15ba92923", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["First, the trial court was presented with sufficient evidence from which to conclude that Parks did not engage in . The court heard conflicting evidence concerning the nature of the checks written, whether the checks pertained to personal or partnership interests, and whether appropriate reimbursements were made. The court weighed the conflicting evidence and found that Fudge had failed to prove that these transactions were improper. It is within the sole province of the fact-finder to weigh credibility and resolve disputed facts. Simmons v. Dixon , 96 Ark. App. 260, 267, 240 S.W.3d 608, 613 (2006). To reverse on this basis would be to require this court to act as a super fact-finder or to second-guess the trial court's credibility determination, which is not our function. Based on the evidence presented, *728we are not left with a firm conviction that a mistake was made."], "id": "85edbd23-dd2e-4482-9afd-5bb51b41f6ba", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The;fact that it was Reis who occupied the position of does not excuse the other two executors who were parties to the contract, although a different remedy may be applied if at a trial different degrees of fault may be found (Wilmerding v. McKesson, 103 N. Y. 329, 341), assuming any wrongdoing at all will be found. In Matter of Durston (297 N. Y. 64, 72-73) it *325was said: \u201cIt is contended by the executrix of the estate of Edward L. Robertson, who before his death was one of the trustees, that her testator\u2019s estate is not subject to a surcharge because his action in approving the retention of shares of the Trust Company and the acquisition of additional shares was entirely disinterested and uninfluenced by any consideration other than the interest of the beneficiaries. That was true, but it is not questioned that he gave his approval to the retention of the .shares of the Trust Company held by the testator and to the acquisition of additional shares as well. Under these circumstances his liability as a cotrustee concurring in and approving illegal investments may not be avoided because he was personally uninfluenced by the conflicting interests to which his cotrustees were subjected. The basis of his liability is found in his approval of and acquiescence in such investments which resulted in loss to the beneficiaries. When a cotrustee approves a prohibited investment and such losses result, his liability is clear.\u201d"], "id": "835a5b85-5dc4-4db3-82d9-2dc4f27271ce", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The IAS Court properly dismissed the within petition seeking to inter alia, annul the determination of respondents refusing to approve petitioner\u2019s application to purchase the shares representing an interest in the cooperative apartment. Absent illegal discrimination, the respondent members of the board of directors of the respondent cooperative corporation had the right to withhold their approval of petitioners\u2019 purchase for any reason or no reason (Rossi v Simms, 119 AD2d 137, 140). The so-called business judgment rule (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538) permits judicial inquiry into claims of fraud or by board members (see, Schoninger v Yardarm Beach Homeowners\u2019 Assn., 134 AD2d 1, 10) but only where such claims have a basis. The petitioners were required to submit evidence that the board did not act in the best interest of . the shareholders (see, Straus v 345 E. 73 Owners Corp., 181 AD2d *208483, 488). The IAS Court correctly determined that petitioners did not. We have considered petitioners\u2019 remaining arguments, and find them to be without merit. Concur\u2014Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ."], "id": "2e9349ae-4cd8-4cce-87bc-05243bf13107", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s third counterclaim alleges a breach of fiduciary duty by Raymond J. McRory, Esq. However, Raymond J. McRory, Esq. is not a party to this action. While this counterclaim also alleges claims of fraud, , and waste with respect to actions taken by Arthur Burns, Thomas Neary, Salvatore Benevento, and Carmel Salerno have not joined Arthur Burns, as the manager of 363-367 Neptune Avenue, LLC, as a defendant on this counterclaim (see Limited Liability Company Law \u00a7 409 [a]; compare Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1039 [2009]). Thus, this counterclaim must be dismissed."], "id": "99344c2f-f126-4fbd-8add-4fc692f74efd", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["An effort is made to characterize this situation as not involving , by comparing the position of Reis to that of a small minority corporate shareholder who has no impact upon the functioning of a corporation and comparatively little to gain financially from any particular transaction. It is true that Reis is not shown to be a shareholder in either gallery, but he is an officer and director of Marlborough Gallery, Inc. and in such capacity he has a voice in the management of the corporation and owes an obligation to the corporation to seek financial advantage for it. This obligation to the corporation, coupled with a possibility of enhancing his own position in the corporation structure, could impel a corporate director to seek every advantage for the company and would be in direct conflict with the obligation which a fiduciary owes to obtain the most advantages for the estate he represents."], "id": "97e33b67-edfb-43b1-bb49-a688c67a4879", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["In Point XI , Brown contends that the trial court erred in denying his attorneys' fees, in that sufficient evidence established that he was entitled to such fees, because he \"demonstrated [that] he was forced to respond to the Trustees' two proposed distribution plans and the court found both plans violated the prohibition *638against thereby failing as a matter of law.\""], "id": "09a315bc-5642-4542-b28a-1a06ea47b32b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["From the presentation thus far, the issues for plenary trial appear to be: (A) have the executors with the galleries engaged in disloyal ; (B) should the agreements be set aside; (C) what, if any, damage has the estate suffered and how can it be indemnified; (D) should the executors be removed, suspended or otherwise controlled and dealt with? The temporary injunction should preserve the status quo by ensuring that all options for final relief are reasonably preserved for the court if needed after trial."], "id": "0409c693-12aa-4489-9c8c-4e01ea89ed91", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["I cannot say, as of now, as the plaintiffs charge, that these are \u201cdramatic\u201d examples of waste. That depends, respectively, on the price and use of the flowers, the use of and necessity for the tickers, whether the vehicle involved was used for personal as distinguished from company purposes, and, as to Shahmoon charging the company for the expense of his wife\u2019s companionship on his business and convention trips, the amount thereof needs ascertainment. This much is clear: Undisclosed fringe benefits are forbidden to a fiduciary; by a trustee is looked upon askance by the courts; a publicly-held stock corporation is not the private preserve of its principal stockholder; the purchase of facilities or services, at company expense, but put to personal use, is improper. With these precepts in mind, the reference hereinbefore directed will also include these issues, as to which, after accounting and testimony, the Referee will similarly report thereon with his recommendations."], "id": "71f30b31-e268-4783-a218-372e8b81ff4e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["*731Moreover, in view of the fact that these conversions involve the investment of entrusted assets in the trustees\u2019 affiliated mutual funds, the loss of safeguards under section 100-c of the Banking Law is particularly troubling. In other words, the element of suggests a need for greater, not less, oversight even though the banks are authorized to make such investments. The statute conferring such authority (EPTL 11-2.3 [d]) had a well defined purpose, namely, to enable banks to compete with securities firms by allowing the banks to choose a more easily administered common investment vehicle (the mutual fund) over another available option (the common trust fund) (see Senate and Assembly Sponsors\u2019 Mems in Support, Bill Jacket, L 1994, ch 609). The terms and history of such statute are, however, silent as to the consequence of such statutory largesse where a bank chooses to opt out of a common trust and into direct investment in an affiliated mutual fund, namely, the loss of the periodic judicial accountings that had protected the beneficiaries of the underlying trusts. Simply put, such loss appears to have been an unintended by-product of section 11-2.3 (d) and may be too high a price to pay for the salutary objective that inspired its enactment."], "id": "4970b6ad-abe8-401a-8eee-037fb3077bd6", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The conclusion is that the appearance of is so strong in this case that the court could not permit performance under the contracts without judicial supervision and permission at this time. The court is not prepared to invalidate the contracts without affording the parties a full hearing, but the situation is one which calls for relief and, accordingly, the existing restraint will be continued subject to the conditions and modifications set forth below. The protection of the estate warrants this, and at the hearing on July 18 the respondent galleries were not able to state \u00a1that the sale of a particular painting had been either lost or prejudiced by the restraint which then had been in effect for some weeks. It is to the advantage of all parties that they avail themselves of an early hearing of .this matter at which all facts may be disclosed."], "id": "44cf5dd1-32b1-4807-8d67-b56e7f8e0081", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The contract must meet certain other criteria such as exceeding three years and be between the developer and the association of unit owners; procedurally, termination requires the vote of two thirds of the unit owners other than the developer and must occur within two years of the unit owners gaining a specified form of control of the project (15 USC \u00a7 3607 [a], [b], [c]). The Senate committee report contains a single sentence describing the meaning of what was then-section 509 of S. 2719: \"Section 509 provides a means by which the unit owners of a conversion project may terminate a long-term, contractual arrangement without having to resort to judicial action\u201d (see, S Rep No. 96-736, 96th Cong, 2d Sess, 51, 77, reprinted in 1980 US Code Cong & Admin News 3506, 3558, 3584). The only substantive change adopted by the conference was to lengthen the threshold *813period of the contract to three years from the two in the Senate version (see, HR Conf Rep No. 96-1420, 96 Cong, 2d Sess, 168, reprinted in 1980 US Code Cong & Admin News 3617, 3713). Representative Ashley noted during the floor debate of the conference report that most of the Senate\u2019s efforts to nationalize the cooperative and condominium conversion process had been eliminated. \"The conference report narrowly addresses only the most egregious problems. It provides a process for condominium and cooperative unit owners to terminate self-dealing contracts with developers who, after the date of enactment, converted multifamily rental buildings into condominium or cooperative projects\u201d (126 Cong Rec 28444 [daily ed, Sept. 30, 1980]). Indeed, Senator Williams lamented the loss of an opportunity to nationalize tenant rights in the conversion process (36 Cong Rec 28178 [daily ed, Sept. 30, 1980])."], "id": "e6f54752-97e0-4374-bab9-d2adc36a22d1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Ira Gammerman, J. This motion is brought to dismiss the consolidated class action complaint brought by individual depositors of defendant East New York Savings Bank (East New York), objecting to the recent conversion of East New York from a mutual savings bank to a stock corporation and its subsequent merger with defendant First Empire State Corporation (First Empire). It is plaintiffs\u2019 contention that they, as depositors of East New York, were entitled to profit from the conversion and that their failure to do so was caused by fraud and on the part of the defendants. In their complaint plaintiffs seek a rescission of the conversion-merger plan, or, alternatively, money damages in an unspecified amount."], "id": "436304a3-c92b-443e-b7b9-ea923b160823", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The financial problems of the Company arose before plaintiffs became officers, and appear to be due to the fact that the \"sponsor defendants\u201d continue to be in control of the Company\u2019s Board, despite the claim that the sponsor ceased to control the Company in 1989. The allegations of and violations of fiduciary duty appear to be well founded. For example, defendants do not dispute that seven rent-stabilized cooperative apartments were transferred by the sponsor to aspiring actor defendant, Christopher Brady, who defaulted on the maintenance payments. Moreover, while Brady was in default, \"sponsor defendants\u201d forwarded him the rent collected from the rent-stabilized tenants, thus depriving the Company of funds to which it was entitled. Thus, the actions of the defendants cannot be used to attribute fault to the Company in order to sustain the sponsor\u2019s wraparound mortgage."], "id": "58dab9f9-81d5-4fb5-934a-c044a29e1565", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["It appears from the cases and authorities that appreciation damages should be granted at least where the breach of fiduciary duty is accomplished in bad faith, or where the *877fiduciary is guilty of fraud, disloyalty or , or where the fiduciary was under a duty to retain assets. Such damages may also be awarded against other parties who knowingly participated in such a breach of fiduciary duty. (Hart v Ten Eyck, 2 Johns Ch 62, 116; Hopkins v Loeber, supra; McKim v Hibbard, supra; 3 Scott, Trusts [3d ed], \u00a7\u00a7 206, 291.2; Restatement, Trusts 2d, \u00a7 206; 25 U Chi L Rev 389, 392; 34 NYLJ L Rev 596; 4 UCLA L Rev 314). While such damages might not be absolutely necessary for adequate protection of the beneficiary, the awarding of such consequential damages is justified as a deterrent to future conduct of this nature by fiduciaries. (Hart v Ten Eyck, supra; cf. Diamond v Oreamuno, 24 NY2d 494.)"], "id": "70850870-c676-40c1-96ae-a063551f7cf7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Walter consistently maintained at the trial that every transaction involving W.E.D. was fair. Here, as in Matter of Lasser (supra), he is unable to point to any time period when he repudiated his assumed role of managing this substantial asset of the estate. Accordingly, it is in no way unfair or violative of the Statute of Limitations to now require him to account for his stewardship of W.E.D. Holding Corp. (Matter of King, supra; Matter of Lasser, supra). Moreover, in those instances where the fiduciary of an estate is able to gain control over a corporation as a result of the estate\u2019s ownership interest in the corporation, the fiduciary is judged by the standards of a trustee rather than the \"business judgment rule\u201d which is usually applied to the conduct of a corporate officer and directors, and the beneficiaries of the estate may seek redress directly against the fiduciary rather than resorting to a shareholder\u2019s derivative action (Matter of Schulman, *710165 AD2d 499). If the conduct of these fiduciaries, whether de jure or de facto, is to be judged by the standards of a trustee, then the Statute of Limitations applicable to a trustee should also be applied to their acts in operating the corporation. Walter never disavowed that he was operating W.E.D. with the best interests of the estate in mind and he should now account for his actions in this regard. Of course, whether Walter can establish his contention that all of the transactions involving W.E.D. were fair and, even if he can establish this, whether it would prevent setting aside the transactions on the basis of his without full disclosure to other parties (Diamond v Oreamuno, 24 NY2d 494; Leibert v Clapp, 13 NY2d 313), are issues which must await Walter\u2019s account and any objections that might be filed thereto."], "id": "6d574b2f-78c0-478f-b746-f21f79f32750", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Insofar as the alleged breach of fiduciary relationship is concerned, it is clear that there was none. Under the mortgage participation agreement between Plantsville and Camala, Plantsville had the right to extend, modify or satisfy the first mortgage, provided that it did not diminish the security of Camala. It was contemplated that the Lincoln first mortgage would be refinanced, and if there was no prohibition on Camala or its sister company taking over the first mortgage, *931there would be no prohibition against the president of those companies doing so individually. It is clear that far from operating through , defendant Stern, by taking over the first mortgage personally at a 13Vi% interest rate, which was well below the going commercial rate at the time, was getting no benefit for himself. Rather, he was preserving the situation and maintaining Camala\u2019s equity position by investing over $1,200,000 of his own money. Even though there was no longer sufficient cash flow from South Pierre to cover payments for both Plantsville and Camala. Camala had a guarantee and continued to receive payments from Plants-ville. There is no basis for any claim of any breach of fiduciary obligation owing by Stern to Camala."], "id": "7f966916-8d7e-4d41-bcec-d7221da0600e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The executrix has the duty to explain her actions particularly to one interested in the estate. Her failure to answer will give rise to her dismissal as a breach of her fiduciary duties. (See SCPA 711, 719.) No matter how broadly drawn, a power of attorney does not allow for the attorney in fact to make a gift to herself of the principal\u2019s property without creating a presumption of impropriety and . The situation by its very nature, invites inquiry."], "id": "7cf10d86-4e15-48aa-b050-8d450f043c33", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff commenced this action to recover the sum of $21,445 for title abstracting services allegedly rendered to defendant between August 10, 2006 and May 15, 2007. The complaint asserts causes of action for breach of contract and on an account stated. On May 14, 2008, plaintiff served a notice to produce and a notice to admit on defendant, and the same day also served a certificate of readiness for trial in which plaintiff stated, inter alia, \u201cDiscovery proceedings now known to be necessary completed\u201d; \u201cThere are no outstanding requests for discovery\u201d; \u201cThere has been a reasonable opportunity to complete the foregoing proceedings\u201d; and, \u201cThe case is ready for trial.\u201d Plaintiff filed the certificate of readiness for trial on May 21, 2008. Plaintiffs discovery demands included a request that defendant admit receipt of its price list and unpaid invoices and the veracity of same. Without moving to strike the certificate of readiness, defendant answered plaintiffs discovery demands. In its response to the notice to admit, defendant denied receipt of plaintiffs price list and the unpaid invoices, or, in the alternative, said that they had been received by defendant but purposefully concealed from defendant by a former officer and shareholder of defendant. Defendant further asserted that said individual had engaged in a pattern of and other behavior to purposefully harm defendant. Defendant did not admit the veracity of the invoices. Together with its answer to plaintiffs discovery demands, defendant served a number of discovery demands on plaintiff."], "id": "6e7196e2-03f1-4e8d-b80c-309f718ee966", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The total fee paid by conservator Gwendolyn Cole to herself for dog care exclusive of expenses paid to third *721parties for food, shots, spaying and other required expenses totals the sum of $779. A fee for dog care was never fixed by the court but set by the respondents themselves. It is well established that a fiduciary should not deal with himself. This prohibition against does not depend upon any question of fraud, but is an absolute rule made to avoid the possibility of fraud and self-interest. (Matter of Ryan, 291 NY 376.) The court shall therefore reduce the allowed fee for dog care to $450 and surcharge the respondent Gwendolyn Cole the sum of $329."], "id": "05dee7ae-d4d4-4dfd-971e-b97235fa33b9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The harm alleged in the amended complaint is that Casciano and Fulham engaged in to the detriment of Bridge-point as to their dealings with 350 Elmwood, LLC, and that Casciano and Fulham otherwise diverted funds from Bridge-point to their individual benefit. These allegations make clear that the harm sought to be remedied is harm first and foremost to Bridgepoint and not the plaintiff. The operating agreement makes this clear in article V providing for pro rata contributions to all of the members\u2019 capital accounts. As the remedy sought by plaintiff would inure to the benefit of the corporation before any benefit could be rendered to plaintiff and the other members, the court concludes that the second cause of action seeks derivative relief and is not a direct action (Longo v Butler Equities II, 278 AD2d 97, 98 [1st Dept 2000])."], "id": "c2d6643b-8387-46b9-98b3-38db3da2d0e2", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["*34Plaintiff, the Board of Managers of the White Sands Condominium (Board), brought this action to recover the principal sum of $12,870.95, which represented common charges assessed against defendants\u2019 residential condominium unit in the White Sands Condominium (Condominium) for the period from September 2009 to July 2010. In their answer, defendants asserted numerous defenses, including challenges to the Board\u2019s authority to assess and collect common charges, as well as breach of fiduciary duty and . Plaintiff, which had successfully sued defendants for unpaid common charges for the period ending June 5, 2009 in a prior action (Board of Mgrs. of White Sands Condominium v Cooper, 34 Misc 3d 152[A], 2012 NY Slip Op 50310[U] [2012] [decided herewith]) (Case Number 1), moved, pursuant to CPLR 3212, for summary judgment, on the ground that the City Court\u2019s award of judgment in favor of plaintiff in the prior action established plaintiffs right to recover unpaid common charges from defendants, and that, as defendants could have litigated the same defenses asserted herein in the prior action, they were estopped from raising the issues underlying those defenses in this litigation. In their opposition, defendants asserted, among other things, that material issues of fact existed as to whether the Board had authority to act under the Condominium\u2019s governing instruments, including its offering plan and bylaws, and whether the Board had acted in good faith. The City Court denied plaintiffs motion, concluding that the doctrine of res judicata was inapplicable to the defense challenging plaintiff\u2019s authority, and that an award of summary judgment was precluded due to the existence of material issues of fact as to whether the Board\u2019s actions, including the imposition of common charges as well as other acts, were authorized and were made in good faith and in compliance with the Condominium\u2019s regulations."], "id": "ee36f9b3-f7ff-4eb9-93f6-c1a8e2538be9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["\u201c[t]he Metro and Verizon Leases were entered into either because of the collective fraud of defendants in ignoring and concealing the Leases from the Unit Owners or by the mistaken belief by defendants Metro and Verizon that the Board had the authority to enter into the Leases when it did not.\u201d Individual board members have fiduciary duties owed to the condominium and its unit owners (see Board of Mgrs. of Fairways at N. Hills Condominium v Fairway at N. Hills, 193 *874AD2d 322 [2d Dept 1993] [fiduciary duty requires that the board of managers perform their duties in good faith and with the degree of care that an ordinary prudent person in a like position would use under similar circumstances; in accordance with New York law, board members are free from liability for honest but imperfect exercises of the board\u2019s business judgment but could be held individually liable if plaintiff were able to prove and bad faith]). Nevertheless, courts will dismiss complaints that fail to allege with specificity independent tortious acts by the board members (see e.g. Felton v 77 Park Ave. Condominium, 38 AD3d 1 [1st Dept 2006]). Plaintiffs\u2019 complaint is devoid of any specific allegations of fraud, self-dealing or other wrongdoing that would support a finding of individual liability against the Board and the Board members.19 Indeed, the only acts alleged are that the Board members incorrectly construed that they had authority to enter into the agreement. Such a claim cannot support a breach of fiduciary duty as a matter of law (see e.g. Carney v Donley, 261 111 App 3d 1002, 1011, 633 NE2d 1015, 1022 [2d Dist 1994] [\u201cWhen a board properly exercises its business judgment in interpreting its own declaration, we will not find the board\u2019s interpretation a breach of fiduciary duty\u201d]). Nor does the complaint allege any theory for individual liability against the Board members based on a piercing of the corporate veil. Accordingly, the Board defendants\u2019 motion to dismiss the first and sixth causes of action shall be granted."], "id": "869b3793-1c9e-4c51-91ff-7802edbaa4ea", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["On April 29, 1996 the individual respondents filed a petition with the Board of Regents seeking removal of the petitioners as officers and/or members of the Board of Trustees of Adelphi University. An amended petition was filed with the Board of Regents on July 7, 1996. The amended petition contains five general categories of allegations: that the trustees have granted the President of Adelphi University an excessive compensation and benefit package, including lavish perquisites, despite what respondents contend is a poor performance record; that the Board of Trustees has taken action on matters notwithstanding the existence of conflicts of interest, resulting in several instances of ; that the trustees failed to investigate an employee\u2019s theft and misuse of University funds and failed to take remedial action; that the trustees have failed to properly oversee the University with respect to issues regarding members of the administration and faculty, including violations of the University\u2019s Articles of Governance; that there have been acts of misconduct and negligence by the Board of Trustees \"with respect to the revelation of the foregoing facts to the public\u201d."], "id": "2761d596-ce98-4c28-946c-a30d7b7d3743", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980 was enacted to remedy certain abuses in conversions of rental housing into cooperative and condominium forms of ownership. Congress found that in cooperative and condominium conversions \"certain long-term leasing arrangements for recreation and other condominium- or cooperative-related facilities which have been used in the formation of cooperative and condominium projects may be unconscionable\u201d (15 USC \u00a7 3601 [a] [3]). Congressional intent under section 3607 of the Act was to protect newly formed cooperatives and condominiums from or \"sweetheart\u201d contracts entered into when the landlord or sponsor is still in control of the property. Section 3607 provides that self-*1068dealing contracts may be terminated by tenant-shareholders when they gain control of a cooperative or condominium development. (Park S. Tenants Corp. v 200 Cent. Park S. Assocs., 748 F Supp 208 [SD NY 1990]; West 14th St. Commercial Corp. v 5 W. 14th St. Owners Corp., 625 F Supp 934 [SD NY 1986].)"], "id": "c9e27186-458a-401d-8270-5cfd703714a8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The basis of petitioner\u2019s position is that the intermediate accounts rendered by the executors and trustees failed to set forth all of the assets of the estate for which they were accountable ; that the statements in said accounts that they contained a statement of all facts affecting the rights of the executors and trustees and the interested parties were deliberately false and untrue in that they failed to disclose that stock of a corporation owned by testator was purchased by one of the executors and trustees and by a corporation controlled by him; that such acts constituted ; that said accounts failed to make a full and complete disclosure of such transactions and that the decrees settling such accounts were obtained by actual and intentional fraud. The petition further alleges that the waivers, *69general releases and ratification of the statement of account at the time of distribution to the remaindermen after the termination of the trust were secured through actual and intentional fraud."], "id": "a7c3ab6a-3be3-4083-8dd5-7888234f2a9b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff\u2019s appeal to WHCS Real Estate Ltd. Partnership v 33 Greenwich Owners Corp. (168 Misc 2d 721) is also inapposite. That case deals with the Condominium and Cooperative *86Conversion Protection and Abuse Relief Act of 1980 (15 USC \u00a7 3601 et seq.), which permits the shareholders to terminate certain long term leases of condominium and cooperative facilities. The Act is limited to \"[a]ny contract * * * which\u201d \"provides for operation, maintenance, or management of a condominium or cooperative association in a conversion project, or of property serving the condominium or cooperative unit owners in such project\u201d (15 USC \u00a7 3607 [a] [1]). The Act has no application to holders of unsold shares of residential apartment units."], "id": "f3ff7210-f624-4109-836e-b74cabec3ec2", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Matter of Peck (152 Misc. 315), cited by the objectants, presented for determination an example of by a fiduciary in which the executors sought to establish ratification of the challenged acts of investment by the respondents upon the basis of their execution of an instrument of release to the *850executors in which a formal accounting- was waived. No evidence having been presented indicating that the facts regarding the purchase of the mortgages had been brought to the attention of the parties at the time of the execution of the release, the contention of the executors was overruled. The principles enunciated in Adair et al. v. Brimmer et al. (74 N. Y. 539, 554), that to establish a ratification by a cestui que trust, full knowledge of the material facts, and in an instance of self-dealing by a fiduciary, full knowledge of the legal rights possessed by the cestui gue trust, must be clearly shown, are still unquestionably the law, for the rule there formulated was indirectly approved in City Bank Farmers Trust Co. v. Cannon (supra), and again in Matter of Ryan (supra). Distinction must be drawn, however, between estoppel predicated upon ratification whether through the medium of receipt, release, informal accounting, or knowledge otherwise acquired, and estoppel arising by decree judicially settling an account. If parties who are duly cited upon an accounting do not avail themselves of the rights accorded to them by statute, do not inquire or question acts of the fiduciary which are sufficiently disclosed to them by the account to put them on notice or inquiry, and yet at a later date nlay assert objections to such previously disclosed acts' and proceedings, the benefits of judicial settlement are obliterated. Upon the entry of a decree judicially settling an account, rights of both the fiduciary and the parties in interest .vest. Such vesting of rights should not be lightly disturbed except in a proper ease under subdivision 6 of section 20 of the Surrogate\u2019s Court Act."], "id": "fe9c74ac-67fd-4b10-95ad-621c67c5ea49", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["*583In respect of the individual trustees the court finds no such malfeasance or misfeasance as warrants surcharge of either. They had confidence in the corporate trustee. They could have had no more access to the records of the interrelated companies than the general public. They are not shown to have known of the of the corporate trustee. The difficulties confronting realty managers generally during this accounting period were experienced by these trustees. No deliberate fault of the individual trustees is shown nor any personal gain by them.- No surcharge will be imposed on them. In denying the- request of objectants that the individual trustees be surcharged the court has not passed upon their right to receive commissions nor passed upon the question whether their derelictions or inactivities as trustees warrant denial of commissions to them in whole or in part. All of those questions have been reserved for further hearing when the decree is noticed for settlement."], "id": "eb41f301-fe8d-475e-b082-e45ddfb025f8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Much reliance is placed by objectants on Matter of Ryan (supra); Matter of Long Is. Loan & Trust Co. (Garretson) (supra), and Matter of Curtiss (261 App. Div. 964). We make no endeavor to distinguish in detail these decisions from the instant case other than to note that they appear to turn largely on questions of , misrepresentation, obvious inadequacy of information supplied in the account or with special circumstances not herewith presented."], "id": "54cb3fb7-1a0d-4572-a554-5fe3d7b79279", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["From the viewpoint of trust administration that' idea finds justification in the fact that the existence of a common trust *463fund furnishes a ready means of investing small amounts of money with the same assurance- of safety as can be had from that diversification of risk which a large investment can secure for the investor. To secure that safety for persons interested in estates the Legislature validated the idea of a common trust fund for trust investments. The legislation dealt with the subject of commingling and in relation to such a fund and assured the corporate fiduciary managing such a fund against criticism based solely on the act of investing in such fund moneys held by the fiduciary as such. The Legislature made sure by its provisions that the fund would not be used by the fiduciary for its own corporate investments and that there would be no opportunity to load the fund with securities promoted by the operating bank. It gave to the Banking Board large discretion in the matter of rules and supervision so as to assure the propriety of the administration of such a fund."], "id": "dd6e63a9-c4ae-42ba-a6b8-3e8a5e5c5219", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["1. Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property. He notes that the jury found that Campbell breached his fiduciary duty to Finch. Finch says Campbell commingled funds and engaged in by locking Finch out and using Finch & Campbell funds to operate his new law firm. He says in his brief: \"What Campbell purchased with the commingled funds was his ability to practice law and fund his lifestyle without paying his [Bruce Campbell Law Firm] staff and other expenses out of his own pocket or out of [Bruce Campbell Law Firm's] revenues.\""], "id": "49468645-cf73-45af-a785-028f88e46279", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["In Purchase v. Atlantic Safe Deposit & Trust Co. (81 N. J. Eq. 344, affd. 83 N. J. Eq. 353) the corporate trustee paid to one of its directors compensation for disclosing (italics supplied) a purchaser of a parcel of trust realty in the belief that the purchaser was a stranger when it was the director himself. The court stated that it was the duty of the board of directors to find a purchaser, and that a member who performed that service did no more than his plain duty, and held that the corporate trustee and director were liable for the refund of the director\u2019s compensation and the director to account and pay for all profits received in connection with the purchase. It does not appear from the opinion whether the director was a licensed real estate broker who, if the services had been legitimately performed, would have been entitled to a commission. It is stated, however, that the compensation was paid for \u201c disclosing a purchaser \u201d \u2014 the implication therefrom being that the director was not a broker and merely suggested the name of a possible purchaser and did not participate in the negotiations resulting in the sale. In that case the entire transaction was permeated with fraud both upon the corporate trustee and the trust beneficiary and a flagrant violation of the director\u2019s obligation of undivided loyalty to his fiduciaries. Even had no compensation been paid to the director in that case and the purchase made innocently by him, he would have been accountable for the profits under our law (Matter of Kilmer, 187 Misc. 121 and cases cited). That case differs, however, from the case at bar in that here the broker has in good faith and with undivided loyalty furthered the interests of the beneficiaries by the sale of the property to a stranger, and the compensation received by his corporation was for services rendered as a real estate broker, and not for profits or possible profits arising out of the purchase of the trust property by him or by persons related to or associated with him in any relationship, or involving the element of ."], "id": "e69c6680-0d59-4cf7-afe9-5c14187b4e46", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["This alternative account of the purpose of the Clause does not, howev- er, favor the \u201csnapshot\u201d interpretation, and thus it does not cast doubt on the constitutional effectiveness of rollback legislation. Even if one under- stands a concern about undue executive pressure on the legislature to have influenced the delegates to the Constitutional Convention in negotiating the Clause, the \u201con net\u201d construction of \u201cshall have been encreased\u201d is still the superior reading. Although there is some support in the history of the Constitutional Convention for the view that the drafters of the Ineligi- bility Clause had a concern about improper executive influence through the appointment power, the text of the Clause shows that this concern was not its overriding and unqualified purpose. By its terms, the Clause does not prohibit the President from appointing a sitting member of Congress to an Executive Branch office. The delegates rejected the Virginia Plan, which would have done so. In that regard, the Clause could not have been designed to root out any possible Executive Branch use of the appoint- ment power to influence members of Congress. Indeed, in forging his compromise, Madison was clear in not seeking to impose such a draconi- an rule. See Van Alstyne Statement at 53 (\u201c[N]ot to recognize the efficacy of [rollback legislation] . . . would itself offend one of the reasons that accounted for the final form of [the Ineligibility Clause]: to assure the eligibility of Members of Congress for appointment to vacancies in exist- ing offices, insofar as neither the office itself nor any prerequisite associ- ated with that office would result to them as a consequence of any act of Congress during [their] term.\u201d). The issue, then, is whether the \u201csnapshot\u201d interpretation of \u201cshall have been encreased\u201d would appreciably guard against the corrupting influence of executive appointments, even though the Clause poses no general bar to the Executive offering them as inducements. We do not see how it would. A construction of the Clause that would permit rollback legislation would seem well-designed to check the Executive from unduly influenc- ing congressional members with the prospect of attractive appointments, given that appointments in general are not prohibited. Any tangential effect that the increase in the pay of an office might otherwise have on the President\u2019s ability to influence Congress by promising appointment to such office would be negated by the expectation of the enactment of rollback legislation. Thus, as with the desire to avoid by the legislature, conceding the efficacy of rollback legislation would comport with this purpose of the Ineligibility Clause. See Dixon Statement at 71"], "id": "196da660-1da5-483c-8b34-9e39e4876e7e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["It is well settled that joint adventurers owe a high degree of fidelity to each other. (Meinhard v. Salmon, 249 N. Y. 458, 463-464.) The courts have universally agreed that a joint adventurer or partner is prohibited from during the pendency of the venture and that profits so realized belong to the venture (e.g., Meinhard v. Salmon, supra; Selwyn & Co. v. Waller, 212 N. Y. 507; Stem v. Warren, 96 Misc. 362, mod. 185 App. Div. 823, mod. 227 N. Y. 538; 48 C. J. S., Joint Adventures, \u00a7 7, subd. a, \u00a7 11, subd. b, pp. 831, 840). If the activities of the errant partner are in any wise traceable to the business or assets of the venture they will be treated as part of the venture. (Cf. Partnership Law, \u00a7 12, subd 2, \u00a7 43.) This standard of rigid fair-dealing is especially high when the self-dealing party is manager of the enterprise. In Meinhard v. Salmon (supra) the court said that one of the joint venturers \u201c had put himself in a position in which thought of self was to be renounced, however hard the abnegation. He was much more than a coadventurer. He was a managing coadventurer (Clegg v. Edmondson, 8 D. M. & G. 787, 807). For him and for those like him, the rule of undivided loyalty is relentless and supreme (Wendt v. Fischer, [243 N. Y. 439]; Munson v. Syracuse, etc., R. R. Co., 103 N. Y. 58, 74).\u201d (Meinhard v. Salmon, supra, p. 468.) (See Boxill v. Boxill, 201 Misc. 386, 389.)"], "id": "ec70e5f0-f011-4b9d-9aa8-75812e9179db", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Dan Lamont, S. In this compulsory accounting proceeding wherein the ac*750counting executrix and her husband are cotrustees of three testamentary trusts under decedent\u2019s will, this court holds and determines that process must issue to all persons interested in such trusts. The exception provision of SCPA 2210 (10) relating to cofiduciaries should not apply to the cotrustee husband of the accounting executrix where the executrix is accused by the objectants of and mismanagement, where the executrix makes a six figure claim against the estate, and when bank accounts allegedly standing in decedent\u2019s name are not accounted for and are claimed by the executrix as her separate property."], "id": "507f596f-ceb0-400b-821f-b2a52cee13b5", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Respondent asserts collaterally that even if the fiduciary exception were to apply, petitioner has not shown \u201cgood cause\u201d to require production of documents that are governed by the attorney-client privilege. In New York, the application of the *114fiduciary exception is governed by Hoopes v Carota (142 AD2d 906 [3d Dept 1988]), where the Appellate Division, Third Department, found that beneficiaries of a trust established good cause to compel disclosure of otherwise privileged attorney-client communications in a suit against the trustee for alleged and other misconduct. In Hoopes, the beneficiaries of a trust commenced an action to remove the named trustee amid allegations that the trustee proposed and obtained board approval for salary increases for himself and another person, obtained approval for long-term employment contracts for various corporate officers and discouraged merger negotiations that were alleged to have been favorable for stockholders but less favorable to management. The Court determined that the salient factor in that case was that defendant acted both in his capacity as a trustee and as a corporate officer and director and was therefore the fiduciary of the plaintiff beneficiaries."], "id": "47bae79c-e76f-4846-8ef2-2dc7dce47bbf", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["A trustee ordinarily owes a duty to the cestui not to buy at a sale of trust property (3 Bogert on Trusts & Trustees, \u00a7 543; Matter of Hubbell, 302 N. Y. 246, 255; Fulton v. Whitney, 66 N. Y. 548, 555). There is present in this matter an element of by one of the executors, a course of conduct which has long been interdicted (Matter of Shehan, 285 App. Div. 785, 791 and cases cited; cf. Skinnell v. Mahoney, 197 App. Div. *97808). That phase of the motion for the examination with respect to the enumerated items is accordingly also granted. Likewise granted is the demand for the production of the records and books of Max Tannenbaum, Inc., S. Tannenbaum \u25a0Company and S. Tannenbaum Co., Inc. The latter corporation is not a party to this proceeding but inasmuch as it appears that the records are subject to the control or are in the custody of the widow-executrix, their production is proper (Matter of Shehan, supra; see, also, Southbridge Finishing Co. v. Golding, 2 A D 2d 430). The special guardian\u2019s motion to participate in said examination is also granted. Settle order on notice."], "id": "e9c5ca87-28f8-4eb8-b4e7-4b83f26c6517", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["In their petition, Plaintiffs averred that Thompson Coburn guided its client, Allegiant Bank, in concealing the improper conduct committed as part of the BLP scheme. Specifically, Plaintiffs claimed that Thompson Coburn and Allegiant Bank discovered in late 2001 that Sigillito and Brown retained unauthorized placement fees when transferring the clients' assets to overseas borrowers and made transactions prohibited by the Internal Revenue Service. Plaintiffs contend that, instead of informing Allegiant Bank's clients of the unauthorized transactions or reporting the prohibited to the Internal Revenue Service, Thompson Coburn aided Allegiant Bank in transferring its custody of the self-directed IRAs to a successor custodian *913in a manner that permitted the BLP's continuation. Plaintiffs maintain that, because of the advice and counsel given by Thompson Coburn, Allegiant Bank secured customer approval for transfer of the IRA accounts to the successor custodian without raising questions about Allegiant Bank's resignation."], "id": "2cc13567-1b5e-4c72-bb27-5d2af9217554", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["A recent Court of Appeal decision illustrates these principles. ( Greco v . Greco (2016) 2 Cal.App.5th 810, 206 Cal.Rptr.3d 501 ( Greco ).) In Greco , a beneficiary of her deceased parents' trust and estates sued her brother in civil court for elder abuse, and in probate court for breaches of fiduciary duty. ( Id . at pp. 816-817, 206 Cal.Rptr.3d 501.) In both actions, the sister alleged the brother (as the trustee of the trust and executor of the estates) filed litigation against her in bad faith and for improper reasons, and wrongfully used trust and estate funds for these purposes. ( Ibid . ) Similar to here, she alleged the brother breached the \" 'duty to act with utmost good faith ..., the duty of loyalty ..., the duty to treat all beneficiaries equally ..., the duty to act according to the Trust and Estates documents, the duty to avoid ..., and the duty to avoid conflicts of interest.' \" ( Ibid . ) In the breach of fiduciary duty claim, the sister alleged her brother \" 'engaged in a course of conduct ... fomenting litigation and other wrongful acts, against ... beneficiaries of the Trust and/or estate, in an attempt to disinherit them ... and/or prevent questioning of his actions.' \" ( Id . at p. 817, 206 Cal.Rptr.3d 501.) The brother responded by filing anti-SLAPP motions, contending the sister's claims \"arose from actions and communications in the underlying litigation and therefore were protected activity.\" ( Id. at p. 818, 206 Cal.Rptr.3d 501.) The sister countered that \"the gravamen of the [claims] was that by taking money to pursue his personal vendetta, [the brother] wrongfully took money in breach of his fiduciary duties.\" ( Ibid . ) Supporting declarations showed the brother withdrew substantial funds from the trust and estates to fund the underlying litigation. ( Ibid . )"], "id": "f2745f6d-1e10-453a-afe1-a5e6dd6421a7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Here, petitioners reason that it would be an \u201cunreasonable or absurd application of the law\u201d to interpret Insurance Law \u00a7 1411 (d) to permit stock repurchases that are not restricted by Insurance Law \u00a7 4105 (a)\u2019s earned surplus test, and urge this court, as did the Santi Court, to look to the legislative intent when applying Insurance Law \u00a7 1411 (d). (Petitioners\u2019 reply brief at 120.) The difference, however, between the instant case and the facts presented in Santi is that in the latter, the Court of Appeals concluded that Corines\u2019 argument was based on a \u201cfair and literal reading of the text,\u201d while here there is nothing in the text of Insurance Law \u00a7 1411 (d) to support the argument that stock redemptions are subject to the provisions of Insurance Law \u00a7 4105 (a). Even if this court were to look to the *209legislative intent which petitioners cite, i.e., that the legislature wanted the Superintendent to have to approve stock redemptions to prevent possible by management and insiders (see petitioners\u2019 reply brief at 120), this intention is not at odds with the plain language of Insurance Law \u00a7 1411 (d), which clearly states that \u201ca plan of stock redemption and retirement [must be] approved by the superintendent as reasonable and equitable.\u201d If the legislature wanted to incorporate any portions of Insurance Law \u00a7 4105 (a) into section 1411 (d), it certainly could have done so, but instead chose not to. Therefore, this court will not impose the standards set out in Insurance Law \u00a7 4105 (a) on Insurance Law \u00a7 1411 (d)."], "id": "5ffe826b-2c03-4b28-9e40-17e871e78e3b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The court concludes that there is ample evidence in the record to establish the finding that the liquidation of the corporation along with the estate\u2019s interest therein as carried out by the executors involved a conflict of interests, and dereliction of duty on their part with respect to an asset to which the widow personally and alone benefited to the detriment of the estate. Consequently, the executors must be held chargeable with the amount of loss sustained by the estate in their failure to account for the good-will value of testator\u2019s shares of stock and for the profits reaped by the widow as a result thereof (Matter of Ryan, 291 N. Y. 376; Matter of Brown, 242 N. Y. 1, supra; Matter of Silkman, 121 App. Div. 202, affd. 190 N. Y. 560, supra; Matter of Vivanti, 138 App. Div. 281, appeal dismissed 200 N. Y. 513; Matter of Borden, 95 Misc. 443; Matter of Shehan, 285 App. Div. 785; Matter of Spingarn, 5 Misc 2d 36, supra; Matter of Bradley, 143 N. Y. S. 2d 264; cf. Matter of Arnay, 18 Misc 2d 266; Matter of Halle, 103 Misc. 661; Matter of Bolton, 121 Misc. 51; Matter of Gorsline, 225 App. Div. 720; *751Thursby v. Kirby, 171 Misc. 310; Matter of Dupignac, 123 Misc. 21, affd. 211 App. Div. 862; Matter of Welch, 77 Misc. 427)."], "id": "7992b948-cfdd-4c6e-be5f-ae45387e2c39", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The objeetants seek to surcharge the corporate cotrustee alone with the sum of approximately $360,600 and interest, for alleged negligence and even gross negligence in investing the funds of the trusts in participations of a certain mortgage and for failure to give notice to the life beneficiaries required by former section 188, subdivision 7, of the Banking Law. It was further contended that the real estate upon which the total mortgage of $2,800,000 was placed was not worth fifty per cent more than the amount of the loan, that the loan was imprudent and improvident and that it was negligently made, because there was no proper investigation or reliable appraisal of the real estate, and that the income of the *600property was insufficient to meet the carrying charges, including taxes and interest upon the loan. Other grounds of n\u00e9gligence, and lack of prudence in connection with the loan were asserted by the objectants. The cotrustee on the other hand contends that its officers and representatives acted in good faith and with the current exercise of prudence, vigilance and honest judgment."], "id": "a8f94f44-ddb8-4253-8420-dafb1b504afb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Appellees are the owners/lessors and lessees of mineral interests in Sections 25 and 36, Township 9 North, Range 11 West, Cleburne County, Arkansas. The mineral interests at issue, which lie in the Moorefield Shale Formation (below the Fayetteville *250Shale Formation), are integrated into SWN's drilling units by virtue of integration orders issued by the AOGC in March 2017. SWN subsequently filed supplemental applications with the AOGC seeking a determination of \"the reasonable royalty rate consistent with royalty negotiated for depth-limited leases below the base of the Fayetteville Shale formation, made at arm's length in the [same] general area.\" In essence, SWN argued that the oil and gas leases between the mineral owners and Hurd Enterprises and Killam Oil were \", non-arm's length\" transactions and that the 25 percent royalty rate was \"grossly excessive.\" Appellees objected to the supplemental application and contended, among other things, that the AOGC did not have the authority to disregard the royalty rate in an existing lease when the lessee elects to go non-consent. After a public hearing, the AOGC ordered that \"[t]he leasehold royalty payable to the parties ... by the Consenting Parties during the recoupment period shall not exceed 1/7th.\" Thus, the AOGC reduced the royalty rate agreed to by Hurd Enterprises and Killam Oil and the mineral owners."], "id": "aeb97993-0382-44f8-b4ed-d52e2fb6f0c7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["We do not suggest a cause of action for participation in breach of trust must always be viewed as giving rise to a civil conspiracy. Certainly, we can conceive of circumstances where an attorney could be liable for participation in breach of trust, but where the attorney could not be viewed as a coconspirator of the trustee. For example, if a trustee were to fail to keep the beneficiary informed regarding the trust's administration, and if, unbeknownst to the trustee, the trustee's attorney were to engage in by transferring trust property to him or herself, then the beneficiary could state a cause of action against the attorney for participation in breach of trust, but there would be no basis for concluding there was an agreement or plan between the attorney and the trustee to engage in the conduct amounting to a breach of trust."], "id": "d26b7129-b645-4aca-be9d-b272e1ef787d", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Respondent\u2019s status as conservator of decedent\u2019s property does not place her in any better position with regard to the retirement benefits than her possible status as decedent\u2019s attorney-in-fact. Respondent had a duty in her capacity as decedent\u2019s conservator to prevent her own interests from conflicting with the interests of decedent (see, Matter of Rothko, 43 NY2d 305; Meinhard v Salmon, 249 NY 458; *875Munson v Syracuse, Geneva & Corning R. R. Co., 103 NY 58). Such a conflict clearly arose when respondent selected an option for decedent\u2019s retirement benefits which reduced decedent\u2019s benefits so that benefits might be continued to be paid to respondent after decedent\u2019s death. If a fiduciary believes should be permitted because of \"extraordinary circumstances\u201d, an exception to the rule that business decisions are within the discretion of the fiduciary rather than the court is applicable and authorization for the self-dealing transaction can be obtained from the court if it is established that the transaction is in the best interests of the parties to whom the fiduciary obligation is owed (Matter of Tennenbaum, 20 AD2d 808, affd 15 NY2d 829). Thus, if respondent believed that the option selected by her was in the decedent\u2019s best interest and in accord with what decedent would have selected had she been competent to make such a selection, she should have sought court approval. To presume or speculate that such an application would have been granted would be tantamount to condoning respondent\u2019s failure to seek prior court approval of this self-dealing transaction and would be detrimental to encouraging compliance with the high standards required of a fiduciary."], "id": "9896dc19-18e6-4501-8492-03f0bd19b3e1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Another section of the newly enacted tax law states that the governing instrument must bar the trustees from engaging in certain prohibitive acts, i.e., (1) engaging in as defined in subdivision (d) of section 4941 of the Internal Revenue Code of 1954; (2) retaining any excessive business holdings as defined in subdivision (c) of section 4943 of said code; (3) investing in such manner as to incur tax liability under section 4944 of said code; (4) making any taxable expenditures as defined in subdivision (d) of section 4945 of said code; and (5) requiring the trustees to distribute trust income for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by section 4942 of said code. Unless the governing instrument contains such restrictions, bequests to such a trust will not qualify for estate tax deductions and the income of the trust will not be exempt from income taxes."], "id": "0033e9cd-0bd4-4318-93dd-0f299f0882ab", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Regarding the Waystation's arguments about her failure to notify the Attorney General, Summers contended she did not have to allege such notification or notify the Attorney General before filing the complaint. She also submitted evidence she notified the Attorney General of the action in writing shortly after filing the complaint. Summers conceded her cause of action for required her to join the Attorney General as an indispensable party, and she requested leave to amend to do so.4 She also requested that, in the event the trial court sustained the demurrer for failure to notify or join the Attorney General, the court grant her leave to amend to cure those defects."], "id": "f0ff15d0-4d41-4063-a5a0-8c8a4d64d8da", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["This court recognizes that the resale of this automobile for only 57% of the original purchase price only seven months after the original purchase does not by itself create triable issues of fact. (Bankers Trust Co. v Dowler & Co., 47 NY2d 128; Marine Midland Bank v St. Louis, 75 AD2d 972.) The court also recognizes that naked assertions of impropriety in the sale cannot overcome the presumption of commercial reasonableness. (First Nat. City Bank v Cooper, 50 AD2d 518.) But where, as here, the defendants show that a great discrepancy between the purchase price and the resale price exists, that they did not receive notice of the public sale within the requisite time period, and that a private sale was later conducted without notice to them, the burden then falls- upon the plaintiff to show at trial that notice was adequate and that the sale was commer*455cially reasonable, without any . (Security Trust Co. of Rochester v Thomas, 59 AD2d 242.)"], "id": "e3145207-faed-4286-ab95-66faa6ea7246", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["During the years in question defendant entered into numerous agreements to sell \u201cseconds\u201d to Dasid and Durvin \"at prices below their actual market value and below prices *471charged to other accounts. These jobbers would then resell the goods to a third entity at a higher price. Lowenstein is conservatively estimated to have sustained an economic loss of approximately $433,000 as the result of defendant\u2019s in its goods, with defendant having received substantial amounts of money in the form of kickbacks. Thus, for example, the Lowenstein invoices would be marked \u201cbill and hold\u201d and, once the jobber paid Lowenstein, the goods would be released to the third entity, the ultimate purchaser. A portion of the profit received by the jobbers from the sale to the ultimate purchaser would then be remitted to defendant."], "id": "fad3fb88-9d0c-4d10-944f-2d561563c7cb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Subsequently, on November 28, 2005, Dolores Fogarty, Esq. was appointed guardian of the property of Jane S. Ms. S. delivered to her a check in the amount of $60,000 \u201cas repayment of loans made to Mel S. out of Jane S.\u2019 account.\u201d The findings further state, \u201cThe payment of said $60,000 by Mel S. shall not be deemed a release of any claims that might exist on behalf of Jane S. against her daughter . . . nor shall it be conclusive that such payment is the correct amount for the repayment of *1039any such loans.\u201d (Findings at 7-8.) Thus the pending trial on the objections to the account of Ms. S. as guardian of her mother involves the question of whether the correct amount of money has been repaid by the guardian for her and whether the guardian should be surcharged."], "id": "ee09cc6a-9718-4114-b0e6-5ab3e16aedc9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Although not specifically so stated in any of the petition or answers thereto, it appears that the facts, as can be culled from all of the other papers and proceedings had herein, support a claim for the imposition of a constructive trust (see e.g. Matter of Sakow, 219 AD2d 479 [1995]). That is, if claimant can show respondent used a confidential relationship with his stepmother to deprive her of her property and engaged in to enrich himself (id. at 482), a cause of action may exist. Further, the wherefore clause in the petition can be so construed so as to support a claim for imposition of a constructive trust. Under the liberal construction theory, a pleading must stand if factual allegations manifest any cause of action cognizable at law, and the pleader is afforded the benefit of any favorable inferences (Salvatore v Kumar, 45 AD3d 560 [2d Dept 2007])."], "id": "b95af2dd-117a-4165-8894-5855f843235f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["The standard of review applied to the actions of a residential cooperative corporation, the common-law business judgment *29rule, requires courts to \u201cdefer to good faith decisions made by-boards of directors in business settings\u201d (40 W. 67th St. v Pullman, 100 NY2d 147, 153 [2003]). The rule applies \u201c[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith\u201d (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990]), that is, consistent with the powers authorized by the bylaws and proprietary leases, where there is \u201ca legitimate relationship between the Board\u2019s action and the welfare of the cooperative\u201d (Pullman, 100 NY2d at 156), and where there is no evidence of \u201cbad faith, arbitrariness, favoritism, discrimination or malice on the cooperative\u2019s part\u201d (id. at 157). Accordingly, it must first be determined whether the cooperative\u2019s action \u201cwas authorized, made in good faith, and in furtherance of the [cooperative\u2019s] legitimate interests,\u201d and then whether the tenants \u201craise [d] a triable issue of fact with respect to fraud, , or other misconduct by the [cooperative] which would trigger further judicial inquiry\u201d (Walden Woods Homeowners\u2019 Assn. v Friedman, 36 AD3d 691, 692 [2007]; see also Oakwood On The Sound, Inc. v David, 63 AD3d 893, 894 [2009]; Levine v Greene, 57 AD3d 627, 628 [2008]; Martino v Board of Mgrs. of Heron Pointe on Beach Condominium, 6 AD3d 505, 506 [2004]; Gillman v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509 [1989]). \u201c \u2018[C]onclusory and speculative allegations of bad faith, self-dealing, and other wrongdoing\u2019 \u201d will not suffice to raise a triable issue of fact (Molander v Pepperidge Lake Homeowners Assn., 82 AD3d 1180, 1183 [2011], quoting Bay Crest Assn., Inc. v Paar, 72 AD3d 713, 714 [2010])."], "id": "8c6a1462-0249-46d3-bf5e-123a91aa5e35", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["\"What the defendants argument comes down to is first that the plaintiff\u2019s guardian must have known of the transaction here complained of and failed to object. This is a question of fact and under a proper pleading defendants may raise it. Secondly, their argument is that an accounting trustee need not raise all possible questions himself and as to those not raised which,are discoverable, he is protected. To a certain degree this is true (Matter of Weir, 182 Misc. 845). But it does not generally extend to situations where the trustee is charged with dealing with himself (Matter of Ryan, 291 N. Y. 376). The claim here, while not strictly , is closely allied to it."], "id": "041a0c1b-6526-4214-b579-1c3fc3526f6e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["*666In each case the trustee gave prompt notice to the income beneficiary and properly earmarked the interest of this estate in the combined investment. The court finds that the trustee was not engaged in making an investment for its own account but was attempting to make an investment for the benefit of a number of estates and funds under its supervision. The court holds that the trustee was not guilty of , and that the investments were not on that ground improper."], "id": "5202f746-1afd-4e48-bb28-b77be37d9159", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["One court, in analyzing the assessment made for maintenance and repairs stated that \u201c[a]bsent a demonstration of the board\u2019s lack of good faith, , dishonesty or incompetency, its determination * * * should not be judicially reviewed.\u201d (Papalexiou v Tower West Condomium, 167 NJ Super 516, 528.) This is a recitation of the well-known \u201cbusiness judgment\u201d rule under which a court will not and should not tell the board of directors how to run the co-op. (423-443 Tenants Corp. v Kretchmer, NYLJ, Nov. 26, 1980, p 6, col 4.)"], "id": "d14b799d-684c-4c08-bdb3-001ad26212ca", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["It might be noted at this point that there is absolutely no claim whatsoever that Angelo J. Martone or Michael R. Martone were guilty of any , fraud, collusion or attempts to influence any county officials. It is conceded by all that both father and son are persons of high integrity and, also, that Michael R. Martone did not participate in the preparation of bids and did not influence any person with respect thereto. It is conceded that Mr. Martone\u2019s legal activities were confined to condemnation matters and tax certiorari matters, and that he did not have the \u2018 \u2018 slightest connection \u2019 \u2019 with the construction of the new jail or the legal incidents connected with that construction."], "id": "0eafa216-981b-4812-8a42-36e25c4c428e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Finally, upon this phase of the proceeding the Surrogate finds that the officers of the executor acted in the best of faith and with the highest sense of fidelity to the beneficiaries. They proceeded in the exercise of judgment, prudence and vigilance. (Matter of Clark, 257 N. Y. 132, supra.) Not the slightest evidence of , negligence, imprudence, improvidence or other ground of surcharge has been shown. All these objections are overruled in their entirety."], "id": "a8ef5e5a-7818-4e3d-8472-64df9126b556", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff urges that if, as a stockholder, his complaint fails, the court should view it as one brought by a director against defendant directors requiring them to account for their improper acts of and waste (General Corporation Law, \u00a7 61). He urges that the right which he seeks to vindicate is not a personal one, but the corporate right to the faithful service of its directors. The fact that he no longer is a director is of no moment (Tenney v. Rosenthal, supra). Nor is it necessary that a prior demand be made on the corporation to sue to set aside an alleged improper transfer (Katz v. Braz, 188 Misc. 581, affd. 271 App. Div. 970)."], "id": "b28c4b51-a5fe-402d-be4f-800d935225dc", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["We conclude from the above that the member states did not intend for the Compact to be a binding reciprocal agreement. The unmistakability doctrine, the lack of express restrictions in the Compact on the member states' power to delete or amend Articles III.1 and IV, the preexisting provisions in many member states' constitutions prohibiting contractual suspension of the tax power, the members' historical intent to preserve their sovereign tax powers, and the Compact's other provisions, such as the , persuade us that the member states did not intend for Articles III.1 and IV to be immutable, binding contractual terms. We therefore conclude that the Legislature acted within its plenary power in enacting Tax Code section 171.106 as the exclusive method for apportioning the Texas franchise tax and that the provision does not violate the *107Contract Clause or otherwise undermine the Compact's purpose or efficacy."], "id": "f48cc05f-3e74-42a8-8c1c-f746a8cddfb3", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["Shortly after passing this general severability statute in 1945 PA 119, the Legislature repealed severability clauses in specific statutes dating back to 1897. See 1945 PA 267, \u00a7 4 (\u201cThe legislature having incorporated into the statute on construction a uniform applicable to all public acts and declaring such acts to be severable, the provisions of Act No. 119 of the Public Acts of 1945 [i.e., the uniform severability act] are declared applicable to the following acts and the sections of such acts hereafter indicated are declared to be obsolete and are hereby repealed[.]\u201d). These repeals demonstrate the universal application of MCL 8.5 across all statutes."], "id": "e3f141b2-ae49-490e-8e37-a482d092e9ac", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["KAHN, J. The issue before us in this appeal is whether the trial court correctly determined that the enforce- ment of a prenuptial agreement executed by the plain- tiff, Laura Grabe, and the defendant, Justin Hokin, was not unconscionable at the time of the dissolution of their marriage. Shortly before the parties\u2019 marriage in 2010, they executed a prenuptial agreement in which each party agreed, in the event of a dissolution action, to waive any claim to the other\u2019s separate property, as defined in the agreement, or to any form of support from the other, including alimony. The agreement also provided that a party who unsuccessfully challenged the enforceability of the agreement would pay the attor- ney\u2019s fees of the other party. In 2016, the plaintiff brought this action seeking dissolution of the marriage and enforcement of the prenuptial agreement. The defendant filed a cross complaint in which he claimed, inter alia, that the agreement was unenforceable because it was unconscionable at the time of the disso- lution under General Statutes \u00a7 46b-36g (a) (2).1 After a trial to the court, the court concluded that, with the exception of the attorney\u2019s fees provision, enforcement of the terms of the prenuptial agreement that the parties entered into was not unconscionable, even in light of certain events that had occurred during the marriage. Accordingly, the trial court rendered judgment dissolv- ing the marriage and enforcing the terms of the prenup- tial agreement, with the exception of the provision requiring the party who unsuccessfully challenged the enforceability of the agreement to pay the attorney\u2019s fees of the other party. On appeal,2 the defendant con- tends that the trial court incorrectly determined that the occurrence of the unforeseen events found by the trial court did not render the enforcement of the entire agreement unconscionable at the time of the dissolu- tion. We affirm the judgment of the trial court. The record reveals the following facts that were found by the trial court or that are undisputed. Shortly before the parties\u2019 marriage on October 2, 2010, they entered into a prenuptial agreement. The agreement provided that it would be \u2018\u2018governed and construed in accordance with the Connecticut Premarital Agreement Act, [General Statutes] \u00a7 46b-36a et seq. . . .\u2019\u2019 Under the agreement, each party waived any claim to the prop- erty of the other during the marriage. In the event of a marital dissolution, each party agreed to waive \u2018\u2018all claims and rights to any equitable distribution of [s]epa- rate [p]roperty [of the other party, as defined in the agreement],\u2019\u2019 and to \u2018\u2018any claim for temporary or perma- nent maintenance, support, alimony, [attorney\u2019s] fees (including [pendente] lite [attorney\u2019s] fees) or any simi- lar claim . . . .\u2019\u2019 In addition, each party agreed that, if either party \u2018\u2018unsuccessfully seeks to invalidate all or any portion of [the] [a]greement or seeks to recover alimony (other than pendente lite [attorney\u2019s] fees) or property in a manner which deviates from the terms of [the] [a]greement, then the prevailing party shall be entitled to recover all reasonable and necessary [attor- ney\u2019s] fees and other costs incurred in successfully defending his or her rights under [the] [a]greement.\u2019\u2019 The agreement also contained a severability provision stating that, \u2018\u2018[i]n case any provision of [the] [a]gree- ment should be held to be invalid, such invalidity shall not affect, in any way, any of the other provisions herein, all of which shall continue in full force and effect, in any country, state or jurisdiction in which such provisions are legal and valid.\u2019\u2019 In addition, the agreement provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscio- nable if enforcement hereof is sought at any time in the future.\u2019\u2019 At the time that the parties executed the prenuptial agreement, the plaintiff\u2019s annual income was $1,312,225, and her net worth was $12,319,380. The defendant\u2019s estate had a fair market value of $5,150,295,3 and he disclosed income of $97,719.06 over the previous six months. The primary sources of the defendant\u2019s income were a director\u2019s fee of approximately $60,000 per year from an entity known as Intermountain Industries and guaranteed payments ranging from $80,000 to $100,00 per year from an entity known as 4H, LLC Family Part- nership (4H, LLC).4 The defendant received no other income from employment. Before their marriage, both the plaintiff and the defendant would frequently stay out all night socializing and drinking with friends. The plaintiff changed her behavior when she became pregnant shortly after the marriage, but the defendant did not. After the parties\u2019 oldest daughter was born in late 2011, the defendant continued to neglect his responsibilities to his family. For example, ten months after his daughter\u2019s birth, the defendant left the plaintiff at home alone with her while Hurricane Sandy struck their neighborhood, and the plaintiff was forced to seek shelter at her parents\u2019 home. After the parties\u2019 second daughter was born in 2013, the defendant\u2019s family planned an intervention for him, as his drinking was out of control and he was being com- pletely unproductive. The intervention never occurred, and the defendant continued to stay out all night, sleep most of the day and ignore the needs of his wife and children. In August, 2014, the plaintiff contacted a divorce law- yer. Two weeks later, the house in Norwalk where the parties resided, which the defendant owned, was com- pletely destroyed by a fire. The parties then leased another residence in Norwalk. In November, 2014, the plaintiff filed an action for the dissolution of the mar- riage, but she later withdrew it. In 2015, the parties\u2019 third daughter was born. During this period, the plaintiff started building a house in the Rowayton neighborhood of Norwalk. In March, 2016, the plaintiff separated from the defendant and moved into the Rowayton house with their three young daughters. Several weeks later, she filed this action seeking the dissolution of the marriage and enforcement of the prenuptial agreement. In February, 2017, the defendant filed an amended answer and cross complaint, alleging, inter alia, that the prenuptial agree- ment was unenforceable under \u00a7 46b-36g (a) (2) because it was unconscionable when enforcement was sought.5 Thereafter, in September, 2017, a yacht club in the Caribbean known as the Bitter End Yacht Club (Yacht Club), which was owned by the defendant\u2019s family and in which the defendant had an indirect, fractional own- ership interest, was destroyed by Hurricane Irma. Also in 2017, Intermountain Industries failed due to a down- turn in the price of crude oil. As a result, it no longer paid the defendant a director\u2019s fee, and its guaranteed payments to 4H, LLC were discontinued. Evidence presented at trial showed that, since the execution of the prenuptial agreement, the defendant\u2019s assets had decreased in value from $5,150,295 to $2.1 million. A note on the defendant\u2019s financial affidavit dated February 11, 2019, which was introduced as an exhibit at trial, indicated that $1,845,000 of these assets were held in the Justin Hokin Grantor Trust, represent- ing the trust\u2019s ownership interests in other assets, \u2018\u2018pri- marily [4H, LLC],\u2019\u2019 and that \u2018\u2018[t]he most significant asset in [4H, LLC], is [the Yacht Club], which was destroyed by Hurricane Irma in the summer of 2017.\u2019\u2019 The note also indicated that the trust was \u2018\u2018wholly illiquid\u2019\u2019 and that its value was not \u2018\u2018accessible\u2019\u2019 to the defendant. The defendant had liabilities of $1,351,262, more than $1 million of which was debt owed to his father and to 4H, LLC, for \u2018\u2018legal fees . . . .\u2019\u2019 The affidavit showed that the defendant had no significant income.6 The defendant contended in his posttrial brief to the trial court that the births of the parties\u2019 three children, the destruction of his house by fire, the destruction of the Yacht Club by Hurricane Irma and the failure of Intermountain Industries were not contemplated when the prenuptial agreement was signed and that enforce- ment of the agreement would be unconscionable in light of these unforeseen events. Accordingly, the defendant requested that the trial court not enforce the agreement and, instead, order a property division \u2018\u2018[that] . . . would permit the defendant to purchase a home in close proximity [to the plaintiff\u2019s home] to provide the minor children a comparable quality of life between both par- ent households.\u2019\u2019 The plaintiff contended before the trial court that, to the contrary, the events cited by the defendant were not beyond the contemplation of the parties when they executed the prenuptial agreement. She also referred to evidence presented at trial that would support findings that, after the defendant received insurance proceeds for the destruction of his house, paid off two mortgages on the house and sold the land, he retained net proceeds of $775,587.73, as compared with equity of $20,309.58 at the time that the prenuptial agreement was executed; the value of the Yacht Club property on December 31,2017, was $14,900,000, $3,000,000 more than its value on the date that the prenuptial agreement was executed; and the defendant\u2019s family was responsible for the fail- ure of Intermountain Industries. Accordingly, the plain- tiff argued that, even if the events were not contem- plated, it would not be unconscionable to enforce the prenuptial agreement, in part because it would be unfair to require the plaintiff bear the burden of the defen- dant\u2019s neglectful and unproductive behavior. In its memorandum of decision, the trial court found that, at the time of trial, the plaintiff was forty-one years old and in good health. She had a bachelor\u2019s degree in journalism and was two credits short of receiving her master\u2019s degree in science from New York University. She had a net weekly income of $34,284,7 and the fair market value of her assets was $27.4 million. The defen- dant was forty-four years old and in good health. He had a bachelor\u2019s degree in geography from the University of Montana. He had no significant income8 and his assets had a fair market value of $2.1 million.9 The trial court determined that the defendant was at fault for the breakdown of the marriage. The court observed that, after the parties\u2019 three children were born, \u2018\u2018the defendant continued to live a life full of drinking and partying. Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his mar- riage.\u2019\u2019 The marriage \u2018\u2018suffered as the defendant slept most of the day, stayed out all night, and did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 The trial court further found that, at the time that they entered into the prenuptial agreement, the parties had not contemplated that they would have three chil- dren, the defendant\u2019s house would be destroyed by fire, the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail, depriving the defendant of his primary source of income.10 Although the court concluded that these events were not specifi- cally contemplated by the parties when they entered into the agreement, it determined that they were not events that would render enforcement of the terms of the agreement unconscionable. When it came to the enforcement of the attorney\u2019s fees provision, however, the trial court concluded that, under the circumstances existing at the time of trial, enforcement of that provision would be unconsciona- ble. The court observed that the plaintiff \u2018\u2018has great financial wealth and [was] not incapable of paying for her own attorney\u2019s fees.\u2019\u2019 In addition, the court found it \u2018\u2018unlikely that the parties considered paying millions of dollars in attorney\u2019s fees to the other party in the event of a marital dissolution\u2019\u2019 and that the enforcement of the attorney\u2019s fees provision \u2018\u2018would financially crip- ple the defendant\u2019s remaining assets . . . .\u2019\u201911 In light of these findings, the court concluded that, \u2018\u2018while the totality of the agreement is not unconscionable, [the provision requiring a party who unsuccessfully chal- lenges the prenuptial agreement to pay the attorney\u2019s fees of the other party] is unconscionable and should be stricken from the antenuptial agreement. The remainder of the parties\u2019 antenuptial agreement shall be enforced . . . .\u2019\u2019 Accordingly, the trial court rendered judgment dissolving the parties\u2019 marriage, striking the attorney\u2019s fees provision from the prenuptial agreement and, consistent with the severability provision of the agreement, concluding that the remainder of the agree- ment was enforceable. The court also incorporated the final parenting plan into the judgment, pursuant to which the children were to reside primarily with the plaintiff but would spend time with defendant pursuant to a regular visitation schedule. In addition, the parties stipulated that the defendant would pay weekly child support in the amount of $57, in accordance with the child support guidelines. Thus, although the parties had joint legal custody of the children, the plaintiff was to have primary physical custody. This appeal followed.12 On appeal, the defendant con- tends that the trial court incorrectly determined that it would not be unconscionable to enforce the prenuptial agreement when it found that the parties did not initially contemplate that the defendant would be helping to raise three young children at a time when he had no income and greatly diminished assets.13 The plaintiff contends that, even if the parties did not initially con- template these events, the trial court correctly deter- mined that they were not so far beyond their contempla- tion as to render the enforcement of the agreement unconscionable.14 We agree with the plaintiff. We begin our analysis with the standard of review. Pursuant to \u00a7 46b-36g (a), \u2018\u2018[a] premarital agreement . . . shall not be enforceable if the party against whom enforcement is sought proves that . . . (2) [t]he agree- ment was unconscionable when it was executed or when enforcement is sought . . . .\u2019\u2019 Whether the pre- nuptial agreement is enforceable is a mixed question of fact and law. See Friezo v. Friezo, 281 Conn. 166, 180\u201381, 914 A.2d 533 (2007), overruled in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). Although the underlying historical facts found by the trial court may not be disturbed unless they are clearly erroneous; see Kovalsick v. Kovalsick, 125 Conn. App. 265, 270\u201371, 7 A.3d 924 (2010); whether a prenuptial agreement is unconscionable in light of those facts, if not clearly erroneous, is a question of law subject to plenary review. See Crews v. Crews, 295 Conn. 153, 163\u201364, 989 A.2d 1060 (2010); see also General Statutes \u00a7 46b-36g (c) (\u2018\u2018[a]n issue of unconscio- nability of a premarital agreement shall be decided by the court as a matter of law\u2019\u2019). \u2018\u2018Unconscionable is a word that defies lawyer-like definition. . . . The classic definition of an unconscio- nable contract is one which no [individual] in his senses, not under delusion, would make, on the one hand, and which no fair and honest [individual] would accept, on the other.\u2019\u2019 (Internal quotation marks omitted.) Beyor v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). We have previously recognized that \u00a7 46b-36g was intended to endorse, clarify and codify the standards set forth in this court\u2019s decision in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v. Friezo, supra, 281 Conn. 185\u201386 n.23. In McHugh, this court held that \u2018\u2018an antenuptial agreement will not be enforced where the circumstances of the parties at the time of the dissolution are so far beyond the contempla- tion of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice. . . . Thus, where a marriage is dissolved not because it has broken down irretrievably, but because of the fault of one of the parties, an antenuptial waiver of rights executed by the innocent party may not be enforceable, depending [on] the circumstances of the particular case and the language of the agreement. . . . Likewise, where the economic status of [the] parties has changed dramatically between the date of the agree- ment and the dissolution, literal enforcement of the agreement may work injustice.\u2019\u2019 (Citations omitted.) McHugh v. McHugh, supra, 489. Other unforeseen changes that may, depending on the circumstances, render a prenuptial agreement unenforceable include the birth of a child, loss of employment or a move to another state. Bedrick v. Bedrick, supra, 300 Conn. 706. \u2018\u2018Absent such unusual circumstances, however, ante- nuptial agreements freely and fairly entered into will be honored and enforced by the courts as written.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489. \u2018\u2018Unfairness or inequality alone does not render a [prenuptial] agree- ment unconscionable;15 spouses may agree on an unequal distribution of assets at dissolution. [T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agree- ment unconscionable. . . . Instead, the question of whether enforcement of an agreement would be uncon- scionable is analogous to determining whether enforce- ment of an agreement would work an injustice. . . . Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly antici- pate all future events.\u2019\u2019 (Citations omitted; footnote added; internal quotation marks omitted.) Bedrick v. Bedrick, supra, 300 Conn. 705\u2013706. Indeed, if every event that the parties did not anticipate could provide a basis for invalidating a prenuptial agreement, no such agreement would be enforceable. Thus, \u2018\u2018the party seek- ing to challenge the enforceability of the antenuptial contract bears a heavy burden.\u2019\u2019 Crews v. Crews, supra, 295 Conn. 169; see id., 170 (\u2018\u2018proving uncontemplated, dramatically changed circumstances requires a signifi- cant showing\u2019\u2019); see also id. (\u2018\u2018McHugh requires an extraordinary change in economic status and . . . the threshold for finding such a dramatic change is high\u2019\u2019 (internal quotation marks omitted)). In the present case, we assume without deciding that the trial court correctly found that the parties did not contemplate the births of their three children, the destruction of the defendant\u2019s house by fire, the destruc- tion of the Yacht Club by a hurricane or the failure of Intermountain Industries when they entered into the prenuptial agreement.16 We further assume that the resulting diminishment in the value of the defendant\u2019s assets and his loss of income from Intermountain Indus- tries also were not contemplated. As we explained, however, it is clear under our case law that, standing alone, the fact that existing circumstances were beyond the parties\u2019 initial contemplation does not establish that enforcement of a prenuptial agreement would be uncon- scionable. Rather, we must determine whether these circumstances were \u2018\u2018so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489; see also Crews v. Crews, supra, 295 Conn. 168 (if court determines that circumstances at time of dissolution were beyond parties\u2019 initial contemplation, court must then determine \u2018\u2018whether enforcement would cause an injustice\u2019\u2019). In making this determination, we must con- sider all of the relevant facts and circumstances. See, e.g., Crews v. Crews, supra, 163. We first address the defendant\u2019s contention that the trial court improperly failed to recognize that enforce- ment of the prenuptial agreement would be unconscio- nable in light of the uncontemplated births of the par- ties\u2019 children and his loss of assets and income because the \u2018\u2018children are entitled to continue the lifestyle to which [they were] accustomed and the standard of liv- ing [they] enjoyed before the divorce . . . .\u2019\u201917 (Internal quotation marks omitted.) Hornung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912 (2016). We are not per- suaded. There is no question in the present case that the children are being supported by the plaintiff at the same standard of living that they enjoyed before the dissolution. As far as the record reveals, they continue to live in the same house, to sleep there most nights, to attend the same schools, to receive the same level of health care and to enjoy the same food, clothing, vacations, entertainment and the like as they did before the marital dissolution. Thus, it is difficult to perceive the relevance of Hornung in the present case. Contrary to the defendant\u2019s suggestion, the fact that a child spends a limited amount of time with a noncustodial parent who has a somewhat lower standard of living than the child does not, ipso facto, mean that the child\u2019s standard of living is reduced. See Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the defendant concedes that, as a noncustodial parent, he would not be entitled to a child support award under any circumstances. As we stated in Tomlinson v. Tom- linson, 305 Conn. 539, 46 A.3d 112 (2012), \u2018\u2018the legisla- ture viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines . . . child support award is defined as the entire payment obligation of the noncustodial parent . . . .\u2019\u201918 (Empha- sis in original; internal quotation marks omitted.) Id., 554. The defendant also appears to claim that, for the sake of the children, he is entitled to enjoy his predissolution standard of living because an \u2018\u2018extraordinary disparity in parental income may hinder [the] lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) See Maturo v. Maturo, supra, 296 Conn. 101. Again, we are not persuaded. This court recognized in Maturo that, when there is an \u2018\u2018extraordinary disparity\u2019\u2019 in parental income, the court may depart from the child support guidelines when the custodial parent has the higher income and deviation from the presumptive sup- port amount \u2018\u2018would enhance the lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) Id.; see also Regs., Conn. State Agencies \u00a7 46b-215a- 5c (b) (6) (B) (when there is extraordinary disparity between parents\u2019 net incomes, court may deviate from presumptive support amounts if deviation would \u2018\u2018enhance the lower income parent\u2019s ability to foster a relationship with the child\u2019\u2019 and \u2018\u2018sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation\u2019\u2019). In other words, Maturo recog- nized that a lower income noncustodial parent may be permitted to pay less than the presumptive child sup- port amount to a higher income custodial parent if there is an extraordinary disparity in their incomes and the other conditions of the regulation are met\u2014relief that the defendant in the present case did not seek. Thus, although \u00a7 46b-215a-5c (b) (6) (B) admittedly was intended to address the problems that may arise when divorced parents have disparate incomes and standards of living, the remedy that it provides is quite limited. Maturo does not suggest that a lower income noncusto- dial parent has any right under the regulation to receive child support from a higher income custodial parent for the purpose of enhancing the ability of the noncustodial parent to \u2018\u2018foster a relationship\u2019\u2019 with a child who shares the custodial parent\u2019s higher standard of living. Cf. Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69 (2021) (under Maturo, trial court improperly ordered parent with higher income to pay supplemental, lump sum child support to custodial parent with no income other than child support on basis of \u2018\u2018significant dispar- ity\u2019\u2019 in parties\u2019 income). In Maturo, the court recognized that, \u2018\u2018[w]hen a parent has an ability to pay a large amount of support, the determination of a child\u2019s needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered sup- port that is more than reasonably needed for the child becomes, in fact, [tax free] alimony.\u2019\u2019 Maturo v. Maturo, supra, 105\u2013106. (Emphasis altered; internal quotation marks omitted.) Indeed, as we have already explained, a noncustodial parent is not entitled to a child support award under any circumstances. See Tomlinson v. Tomlinson, supra, 305 Conn. 554. The defendant contends that the fact that a noncusto- dial parent cannot receive child support supports his argument that the prenuptial agreement is unconsciona- ble because it demonstrates that, if the agreement is enforced, the trial court will be \u2018\u2018without the tools to account properly for the best interests of [the] children, putting both the noncustodial parent and them in an untenable place.\u2019\u2019 (Emphasis added.) Thus, the defen- dant appears to suggest that, in the absence of the prenuptial agreement, the trial court would be author- ized to award alimony or a property distribution to him for the purpose of ensuring that he can provide for the children in the same manner as the plaintiff. This court has held, however, that it is improper to disguise a child support award as alimony, and that alimony should be used only to address the needs of the recipient parent.19 See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d 963 (2006). Moreover, we observed in Tomlinson v. Tomlinson, supra, 305 Conn. 555, that \u2018\u2018permitting the diversion of funds away from the [custodial] parent [who is] providing for the care and well-being of minor children . . . would contravene the purpose of child support.\u2019\u2019 Although we were referring in Tomlinson to a situation in which a former noncustodial parent takes custody of the children and becomes responsible for supporting them but continues to pay child support to the former custodial parent; see id., 541\u201342; the same principle would hold true whenever a custodial parent is required to pay any form of support to a noncustodial parent based on the fiction that the payment is for the support of the children.20 In short, we see nothing in our statutes or case law to suggest that it is the public policy of this state that a noncustodial parent is entitled to receive any form of postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent.21 Indeed, \u00a7 46b-215a-5c (b) (6) (B) of the regula- tions expressly contemplates that, after a marital disso- lution, the parents of a child may have an \u2018\u2018[e]xtraordi- nary disparity\u2019\u2019 in income. It follows that the regulation contemplates that a child may well have a higher stan- dard of living than his or her noncustodial parent while continuing to have a relationship with that parent. We conclude, therefore, that Maturo does not support the proposition that it would be unfair, much less uncon- scionable, to enforce a prenuptial agreement merely because there is an extraordinary disparity between the incomes or standards of living of the custodial parent and the children, on the one hand, and the noncustodial parent, on the other hand.22 The defendant also relies on this court\u2019s decision in Bedrick v. Bedrick, supra, 300 Conn. 691, to support his contention that enforcement of the prenuptial agree- ment would be unconscionable. In Bedrick, the parties executed a postnuptial agreement in 1977, providing that, in the event of a marital dissolution, neither party would receive alimony.23 Id., 693\u201394. Instead, the plain- tiff wife would receive a cash settlement in an amount to be periodically reviewed. Id., 694. A May 18, 1989 addendum to the agreement provided for a cash settle- ment in the amount of $75,000. Id. The plaintiff waived her interest in the defendant\u2019s car wash business, and the defendant agreed that the plaintiff would not be held liable for his personal and business loans. Id. In the early 1990s, the defendant\u2019s car wash business became successful. Id., 707. In 1991, when the parties were forty- one years old, their child was born. Id. By the time of trial, the plaintiff had worked for that business for thirty-five years, providing administrative and book- keeping support. Id. Since 2001, when the business began to deteriorate, the plaintiff had managed all busi- ness operations except for maintenance. Id. In 2004, the plaintiff worked outside of the business to provide the family with additional income. Id. The trial court concluded that \u2018\u2018[t]he economic circumstances of the parties had changed dramatically since the execution of the agreement and that enforcement of the postnuptial agreement would have worked injustice.\u2019\u2019 (Internal quo- tation marks omitted.) Id. Accordingly, it concluded that the agreement was unenforceable. Id. This court concluded that \u2018\u2018[t]he facts and circumstances . . . clearly support the findings of the trial court that, as a matter of law, enforcement of the agreement would be unconscionable.\u2019\u2019 Id., 708. In the present case, the defendant contends that Bedrick stands for the proposition that a prenuptial agreement is unenforceable whenever (1) a child was unexpectedly born during the marriage, and (2) a spouse has undergone dramatic economic changes. We conclude that Bedrick is easily distinguishable from the present case. First, in Bedrick, the plaintiff gave birth to the parties\u2019 child after sixteen years of marriage when both parties were forty-one years old. See Bedrick v. Bedrick, Docket No. FA-XX-XXXXXXX, 2009 WL 1335100, *4 (Conn. Super. April 24, 2009). By contrast, in the present case, the parties\u2019 three children were all born within five years of the marriage, when both parties were in their thirties. Although the children may not have been \u2018\u2018contemplated\u2019\u2019 when the parties executed the prenuptial agreement, it is reasonable to conclude that their births were less of a bolt from the blue than the birth of the parties\u2019 child in Bedrick. Indeed, when asked at trial whether he and the plaintiff \u2018\u2018plan[ned] on having children during the course of the marriage,\u2019\u2019 the defendant replied, \u2018\u2018[y]eah.\u2019\u2019 When asked what his plan was, he replied, \u2018\u2018[t]o be fruitful and multiply.\u2019\u201924 Second, the plaintiff in Bedrick worked for the defen- dant\u2019s car wash business for thirty-five years, including the entire thirty-two year duration of the marriage, often seven days per week. Bedrick v. Bedrick, supra, 300 Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100, *3. The business floundered after the dissolution action was instituted and the plaintiff ceased working for it. Bedrick v. Bedrick, supra, 300 Conn. 707. In the present case, there is no evidence that the defendant contrib- uted to the success of any business or enterprise of the plaintiff. Third, in Bedrick, the plaintiff secured employment \u2018\u2018outside of the [car wash] business in order to provide the family with additional income.\u2019\u2019 (Emphasis added.) Id. Although the defendant in the present case may have contributed to the support of his children during the marriage, there is no evidence that he provided financial support to the plaintiff.25 Finally, the plaintiff in Bedrick was fifty-seven years old at the time of the marital dissolution, did not have a college degree and had been diagnosed with diabetes, which was controlled by medication. Bedrick v. Bedrick, supra, 2009 WL 1335100, *3\u20134. In the present case, the defendant was forty-four years old at the time of dissolu- tion, had a college degree and was in good health. We further note that the defendant had significant assets at the time of the marital dissolution and is ade- quately provided for, at least in the near term. Although we recognize that his assets may not be sufficient to meet his needs for his entire lifetime, nothing in the record would support a conclusion that he is incapable of earning an income.26 To the contrary, the evidence showed that the defendant was an educated, healthy forty-four year old with some business experience, and he testified at trial that, once he expended his assets, he was \u2018\u2018going to have to hustle and figure some things out, get . . . some salaried or . . . contract work . . . and hope that what [he\u2019s] been working on for the last three years will come to fruition down in the . . . Virgin Islands.\u2019\u2019 In addition, the defendant\u2019s counsel admitted to the trial court that the defendant \u2018\u2018is intelli- gent, he is healthy, and he is capable of working.\u2019\u2019 Accordingly, we cannot conclude that it would be unconscionable to expect the defendant to obtain employment to replace the unexpected loss of his income from Intermountain Industries.27 Indeed, if we were to conclude otherwise, an employed person who entered into a prenuptial agreement and, after the mar- riage, lost his or her job could simply refuse to seek employment and then claim that his or her lack of employment was a dramatic change in circumstances warranting invalidation of the agreement. Moreover, there is no evidence that the defendant, unforeseeably or otherwise, gave up any income earn- ing or asset building opportunities as a result of his marriage or the births of the children, or that he made significant and ongoing contributions to family life, such as shopping, doing household chores, entertaining the plaintiff\u2019s associates and family, or caring for the children, for which it would be unfair, much less uncon- scionable, not to compensate him. Cf. Hornung v. Hor- nung, supra, 323 Conn. 163 (\u2018\u2018[b]ecause the plaintiff\u2019s efforts as a homemaker and the primary caretaker of the children increased the defendant\u2019s earning capacity at the expense of her own, she is entitled to [an alimony award that will allow her to] maintain [her high predis- solution] standard of living after the divorce, to the extent possible\u2019\u2019). To the contrary, the trial court found that the defendant \u2018\u2018did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 We conclude, therefore, that the trial court correctly determined that enforcement of the prenuptial agreement in the present case would not be unconscionable in light of all of the relevant facts and circumstances. Finally, the defendant contends that it was inconsis- tent for the trial court to conclude that it would be unconscionable to enforce the provision of the prenup- tial agreement requiring a party who unsuccessfully seeks to invalidate any portion of it to pay the attorney\u2019s fees of the other party but not unconscionable to enforce the remainder of the agreement. We disagree. Significantly, the prenuptial agreement contained a sev- erability clause that expressly contemplated that, if one or more of its terms were found to be invalid, the rest of the agreement would survive. See A. Rutkin et al., 8A Connecticut Practice Series: Family Law and Prac- tice with Forms (3d Ed. 2010) \u00a7 50.53, p. 256; cf. Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 118, 679 A.2d 372 (1996) (discussing principles of severability under Connecticut contract law). In sis- ter states that, like Connecticut, have premarital agree- ment statutes like \u00a7 46b-36g that are modeled after the Uniform Premarital Agreement Act; see, e.g., Friezo v. Friezo, supra, 281 Conn. 183\u201384; the presence of a renders enforceable the remainder of a prenuptial agreement that contains a provision that is unconscionable or invalid as a matter of law. See, e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906 (Ill. App. 2014) (concluding that severability clause left \u2018\u2018remainder of the agreement . . . unaffected by [court\u2019s] holding\u2019\u2019 that agreement\u2019s \u2018\u2018[attorney fee shift- ing] ban as to [child related] issues violates [Illinois] public policy and is unenforceable\u2019\u2019 as to those issues); Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005) (emphasizing presence of savings clause in concluding that \u2018\u2018[p]rovisions in a prenuptial agreement purporting to limit or waive spousal support are void and unen- forceable as they are contrary to public policy, and [that they] may be severed from valid portions of the prenuptial agreement without invalidating the entire agreement\u2019\u2019); cf. Rivera v. Rivera, 149 N.M. 66, 72\u201373, 243 P.3d 1148 (N.M. App.) (premarital agreement was unenforceable because it contained provision waiving right to seek spousal or child support in violation of state statute, and \u2018\u2018agreement [did] not contain a sever- ability clause, and [w]ife [made] no argument that the remainder of the agreement should not be affected by the invalidity of the support provisions\u2019\u2019), cert. denied, 149 N.M. 64, 243 P.3d 1146 (2010). Accordingly, the trial court did not act inconsistently as a matter of law in concluding that the effect of enforcing the attorney\u2019s fees provision was unconscionable because it would \u2018\u2018financially cripple\u2019\u2019 the defendant, while also finding that the remainder of the agreement was enforceable. Because enforcement of the remainder of the agree- ment would, as we explained, leave the defendant with significant assets sufficient to provide for his needs until he can obtain a source of income, the trial court properly allowed the parties the benefit of the bargain to which they had agreed before their marriage. The judgment is affirmed. In this opinion the other justices concurred. * November 17, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. General Statutes \u00a7 46b-36g provides in relevant part: \u2018\u2018(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: *** \u2018\u2018(2) The agreement was unconscionable when it was executed or when enforcement is sought; *** \u2018\u2018(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.\u2019\u2019 The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes \u00a7 51-199 (c) and Practice Book \u00a7 65-1. Financial disclosures attached to the prenuptial agreement indicated that the value of the defendant\u2019s assets at the time of the marriage was $13,267,952.81. It was discovered during the dissolution proceedings that this figure had been established by using generally accepted accounting practices, rather than fair market value, and that the fair market value of the assets was $5,150,295. Intermountain Industries was an oil and gas exploration business in which the defendant\u2019s father had a controlling interest. Intermountain Indus- tries made dividend payments to an entity known as Century American, which, in turn, made guaranteed payments to 4H, LLC, the members of which were the defendant\u2019s father and his lineal descendants, including the defendant. The trial court made no findings in connection with the defendant\u2019s claim at trial that the prenuptial agreement was unconscionable when the parties executed it, and the defendant does not pursue that claim on appeal. Specifically, the financial affidavit indicated that he had a weekly income of $2 from dividends and interest payments. In determining this amount, the trial court relied on a child support guidelines worksheet dated February 12, 2019, in which the plaintiff stipu- lated that she received $48,361 in gross weekly income and mandatory deductions of $14,077, for a net weekly income of $34,284. The plaintiff submitted a subsequent financial affidavit to the trial court dated February 20, 2019, indicating that her net weekly income was $24,505. This figure appears to have been a clerical error, as the same affidavit indicates that her gross weekly income was $48,361, and mandatory deductions were $14,491, which would yield a net weekly income of $33,870. The parties stipulated that, for child support purposes only, the defendant had a gross weekly income of $3720 and a net weekly income of $2569. The trial court made no finding on the issue, but the undisputed evidence showed that the defendant had liabilities of $1.35 million, yielding a net worth of approximately $750,000. The trial court stated that, \u2018\u2018[a]lthough the defendant was not financially crippled after his home burned down, the Yacht Club was underinsured, and the insurance proceeds could not fully restore the property to its prior form. In addition to the defendant\u2019s financial losses from these unforeseen events, he was no longer able to generate revenue from the Yacht Club after it was destroyed, significantly diminishing his assets.\u2019\u2019 Evidence presented at trial showed that the plaintiff had paid attorney\u2019s fees in the amount of $1,559,713.17 defending against the defendant\u2019s cross complaint seeking invalidation of the prenuptial agreement. After this appeal was filed, the plaintiff filed a motion for leave to file a late conditional cross appeal in which she requested permission to cross appeal from the trial court\u2019s ruling invalidating the attorney\u2019s fees provision in the event that the Appellate Court reversed the judgment and remanded the case to the trial court for a new trial without resolving the issue of the enforceability of the prenuptial agreement. The Appellate Court denied the motion, and this claim is not before us. The defendant also claims that the trial court improperly precluded him from soliciting testimony as to whether the parties contemplated certain events when they entered into the prenuptial agreement. Because we con- clude that enforcement of the agreement is not unconscionable, even assum- ing that the events at issue were not contemplated by the parties, we need not address this claim. The plaintiff also contends, essentially as an alternative ground for affirmance, that the trial court incorrectly determined that the parties did not contemplate that they would have children, that the defendant\u2019s house would be destroyed by fire, that the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail. There appear to be two separate bases for this claim. First, the plaintiff appears to contend that these events were contemplated by the parties as a matter of law because the prenuptial agreement expressly provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscionable if enforcement hereof is sought at any time in the future.\u2019\u2019 Second, the plaintiff claims that these events were, as a factual matter, within the contem- plation of the parties. We are doubtful, however, whether a \u2018\u2018no change in circumstance\u2019\u2019 provision could save a prenuptial agreement that otherwise would be unenforceable as unconscionable. We need not resolve these issues here, however, because we conclude that the trial court correctly determined that the existence of these uncontemplated events did not render the enforcement of the prenuptial agreement unconscionable. Bedrick involved the enforceability of a postnuptial agreement. See Bedrick v. Bedrick, supra, 300 Conn. 693. The same principle, however, applies to prenuptial agreements. See id., 696\u201397; Crews v. Crews, supra, 295 Conn. 167 (\u2018\u2018equitable considerations codified in our statutes . . . have no bearing on whether [a prenuptial] agreement should be enforced\u2019\u2019 (inter- nal quotation marks omitted)). As we indicated; see footnote 14 of this opinion; we need not address the plaintiff\u2019s challenge to the trial court\u2019s factual findings on these issues because, even assuming that, contrary to the plaintiff\u2019s claim, the findings were correct, we agree with the trial court\u2019s legal conclusion that those facts did not render the prenuptial agreement unconscionable. The defendant testified at trial that, since the dissolution action was brought, he has paid rent of $3500 per month for a 983 square foot, three bedroom house in the Rowayton neighborhood of Norwalk. He further testified that the house has a garage that he has converted into a playroom, laundry room, workshop and storage area. See Regs., Conn. State Agencies \u00a7 46b-215a-1 (6). The current version of the child support guidelines recognizes that there has been \u2018\u2018a trend away from \u2018custodial/noncustodial\u2019 and \u2018visitation\u2019 language toward the concept of shared parenting.\u2019\u2019 Child Support and Arrearage Guidelines (2015), preamble, \u00a7 (g), p. xii. The guidelines also recognize that, \u2018\u2018within the context of shared physical custody, both parents are essentially custodial.\u2019\u2019 Id. When that is the case, the guidelines provide that \u2018\u2018the most practical approach [is] for [child support] to be paid by the parent with the higher income.\u2019\u2019 Id. As we have indicated, in the present case, the plaintiff has primary physical custody of the children, and the defendant has made no claim that he is entitled to child support on the ground that the parties have shared custody. To the contrary, he agreed to pay child support to the plaintiff and concedes that he is not entitled to receive child support from her. We note that there is considerable overlap between the factors that the trial court must consider when crafting an alimony award pursuant to Gen- eral Statutes \u00a7 46b-82 and the factors that it must consider when assigning property pursuant to General Statutes \u00a7 46b-81. Neither statute authorizes the court to consider the ability of a spouse to support his or her children, and the defendant has cited no authority for the proposition that, unlike an alimony award, it is proper to assign property for that purpose. The court in Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990), observed that the failure to award an indefinite award of alimony to the plaintiff wife might be unconscionable because \u2018\u2018it could not help but have some effect upon the child to go back and forth between a father who can afford to live in luxury and a mother who is required to exercise some degree of frugality.\u2019\u2019 Id., 197. Melrod involved a Maryland statute providing that a court may award alimony for an indefinite period if the court finds that, \u2018\u2018even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.\u2019\u2019 Md. Code Ann., Fam. Law \u00a7 11- 106 (c) (2) (1984); see Melrod v. Melrod, supra, 196. Connecticut has no such statute, and, as we explained, alimony may not be used in this state to disguise child support. Although we recognize that it may be difficult for some children under some circumstances to grapple with the fact that their parents have disparate standards of living, we do not agree with the court in Melrod to the extent that it concluded that it is unconscionable to permit a child who enjoys the same high standard of living that he or she did before the dissolution to have a relationship with a parent who lives in a somewhat more modest manner. Indeed, spending time with a less affluent parent could be just as beneficial to a child as time spent with an affluent parent. As we indicated, if the parents have shared physical custody of the children, the parent with the lower income can make a claim for child support. See footnote 18 of this opinion. That is not the case here. If the legislature believes there is a gap in the statutory scheme governing marital dissolutions and financial awards in this regard, it is free to address that gap legislatively. It is not the role of this court to create public policy in this highly regulated area. In such a situation, the fact that the lower income noncustodial parent is unable to provide for himself in the same manner as when the prenuptial agreement was executed may, depending on all of the relevant facts and circumstances, justify invalidating the agreement and awarding alimony on that ground. See footnote 27 of this opinion. We are aware of no authority, however, for the proposition that a noncustodial parent who otherwise would not be entitled to alimony would be entitled to it solely on the basis of his \u2018\u2018need\u2019\u2019 to provide for his children in the same manner as the custodial parent. See, e.g., Loughlin v. Loughlin, supra, 280 Conn. 655 (it is improper to disguise child support as alimony). This court concluded in Bedrick that postnuptial agreements are subject to stricter scrutiny than prenuptial agreements when a court is determining whether they are enforceable at the time of execution. Bedrick v. Bedrick, supra, 300 Conn. 703\u2013704. Specifically, unlike prenuptial agreements, post- nuptial agreements \u2018\u2018are subject to special scrutiny and the terms of such agreements must be both fair and equitable at the time of execution . . . .\u2019\u2019 Id., 697. Courts apply the same standard, however, when determining whether postnuptial and prenuptial agreements are enforceable at the time of enforcement, namely, whether the agreement was unconscionable. Id., 704. The defendant suggests that this testimony related to his expectations during the marriage, not at the time that he executed the prenuptial agree- ment. As we have indicated, we assume, without deciding, that the trial court correctly determined that the parties did not \u2018\u2018contemplate\u2019\u2019 having three children when the agreement was executed. As we have also suggested, however, the question of whether an event was \u2018\u2018contemplated\u2019\u2019 is not a black and white one but involves shades of gray. Although the parties may not have \u2018\u2018contemplated\u2019\u2019 having three daughters within five years of the marriage in the sense that they did not expressly discuss the matter and had no specific plan when they entered into the agreement shortly before the marriage, it seems highly implausible that they had a conscious plan to have no children at that time but that several months after the marriage when the plaintiff became pregnant, the defendant suddenly developed a plan to \u2018\u2018be fruitful and multiply.\u2019\u2019 We conclude, therefore, that, even if the births of the three children were not contemplated when the agreement was executed, in the sense that the births were not consciously and explicitly planned, they were not so completely beyond or contrary to expectation that enforcement of the agreement would work an injustice. See McHugh v. McHugh, supra, 181 Conn. 489. The defendant points out that, after the marriage, the parties lived in the defendant\u2019s house, \u2018\u2018where he paid the carrying costs,\u2019\u2019 until it was destroyed in the fire. They then leased another house using insurance pro- ceeds. The evidence also showed, however, that the plaintiff provided approximately 75 percent of the furnishings for the defendant\u2019s house, for which she received insurance compensation, and she spent $50,000 to $60,000 on improvements to the defendant\u2019s property, for which she never made any claim. The trial court made no finding as to whether the evidence that the plaintiff lived in the defendant\u2019s house supported the conclusion that the defendant provided financial support to the plaintiff, and we con- clude that the evidence does not compel the conclusion that he did. The only finding that the trial court made on this issue was that \u2018\u2018[t]he parties kept their money separate and devoted vastly different amounts of effort and respect into their marriage . . . . Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his marriage.\u2019\u2019 The defendant contends that this court is precluded from considering his ability to provide for himself because the trial court did not expressly specify his earning capacity. See, e.g., Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013) (trial court must specify dollar amount of party\u2019s earning capacity when that factor provides basis for financial award because failure to do so \u2018\u2018leaves the relevant party in doubt as to what is expected from him or her, and makes it extremely difficult, if not impossible, both for a reviewing court to determine the reasonableness of the financial award and for the trial court in a subsequent proceeding on a motion for modifica- tion to determine whether there has been a substantial change in circum- stances\u2019\u2019). The defendant fails to recognize that the trial court in the present case was not determining the amount of a financial award pursuant to \u00a7 46b- 82 (a) and General Statutes \u00a7 46b-86, as in Tanzman, but was determining whether enforcement of the prenuptial agreement would be unconscionable under \u00a7 46b-36g (a) (2) in light of all of the relevant facts and circumstances. The defendant bore the heavy burden of proving an extraordinary change in circumstances to prevail on that issue. See, e.g., Crews v. Crews, supra, 295 Conn. 169. The defendant has pointed to no evidence that would support a finding that, as of the date of the dissolution, he was no longer capable of earning an income, and he made no such claim to the trial court or on appeal. The defendant\u2019s counsel contended at oral argument before this court that the defendant should not be required to establish that he will be unable to provide for his basic needs before the enforcement of the prenuptial agreement can be found to be unconscionable under \u00a7 46b-36g (a) (2), because such an interpretation of that statute would render \u00a7 46b-36g (b) superfluous. See General Statutes \u00a7 46b-36g (b) (\u2018\u2018[i]f a provision of a premar- ital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility\u2019\u2019). We agree with the defendant that there may be circumstances in which the enforcement of a prenuptial agreement would be unconsciona- ble even though the party seeking to invalidate the agreement would be able to provide for his or her basic needs if the agreement were to be enforced. Cf. Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 273\u201374, 242 A.3d 542 (2020) (trial court correctly concluded that enforcement of prenuptial agreement would be unconscionable when \u2018\u2018there was evidence in the record that [a motor vehicle accident resulting in a mild traumatic brain injury] impaired the plaintiff\u2019s ability to work full-time, and, as a result, she was forced to obtain part-time employment at a salary far lower than the one she earned at the time the agreement was executed\u2019\u2019). That does not mean that the question of whether the party seeking to invalidate the agreement will be able to provide for his or her basic needs if the agreement is enforced is always irrelevant to the determination of whether enforcement would be unconscionable. Indeed, there may be cases in which, under all of the relevant facts and circumstances, the enforcement of a prenuptial agreement would not be unconscionable despite a significant reduction in the income of the party seeking invalidation, provided that the court finds that the party can still provide for his or her basic needs. We need not resolve that issue in the present case, however, because the defendant presented no evidence that he is no longer capable of earning an income comparable to the income that he was earning when he executed the prenuptial agreement. See foot- note 26 of this opinion."], "id": "cd672cae-164d-4e24-87e1-79ebc0aad44a", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["As such, no waiver of a person\u2019s right to seek a divorce for longer than the statutory one year after execution of a separation agreement will be enforced by the court. The denial of defendant\u2019s motion does not require the vacatur of the entire agreement. The separation agreement has an explicit provision for the severability of provisions found invalid by a court. More*195over, even in the absence of the , the remainder of the agreement would be enforceable. Indeed, there is no recited consideration for the five-year provision, and the papers fail to address the total absence of consideration for Mr. B. to wait four years longer than the law provides. (See Domestic Relations Law \u00a7 170 [6]; see e.g. Seligman v Seligman at 635; Hummel v Hummel at 599; Taft v Taft at 445; Jessup v LaBonte at 295.) Even though a portion of the agreement is declared void, the separation agreement still retains its vitality as the prerequisite to an action for a conversion divorce."], "id": "ee0c6639-df9f-4bbb-887f-f335407b9f96", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["Malibu argues that any invalid portions of Measure R may be severed. (Preamble, supra , \u00a7 16.)11 A \" ' \"normally calls *1211for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable....\" ' ... ' \"[s]uch a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of legislative intent ... [and is not ] so connected with the rest of the statute as to be inseparable.... \" ' \" ( Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 714, 25 Cal.Rptr.2d 449, 863 P.2d 694 ; see also *407Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330-331, 118 Cal.Rptr. 637, 530 P.2d 605.)"], "id": "8cb99999-afa0-4420-bede-62ceeb6db08d", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["We note that the Administrative Law Judge stated that the reimbursement provisions were a \"non-severable part\" of the overall Act. We disagree. \"The test for severability in the absence of an express is one of legislative intent.\" Association of Tex. Prof'l Educators v. Kirby , 788 S.W.2d 827, 830 (Tex. 1990). The overall Act is largely not subject to preemption and can be given effect separate and apart from the specific rate-setting provisions at issue here. See id. at 830-31 (quoting Texas & P. Ry. Co. v. Mahaffey , 98 Tex. 392, 84 S.W. 646, 648 (1905) ). There is no indication that the Legislature would not have passed the Act without the rate provisions as they apply to air ambulances or that the Act cannot function without those provisions as applied here. See id. ; Rose v. Doctors Hosp. , 801 S.W.2d 841, 850 (Tex. 1990) (Phillips, C.J., dissenting) (\"The inquiry, therefore, is whether 'the invalid part is so intermingled with all parts of the act as to make it impossible to separate them, and so preclude the presumption that the Legislature would have passed the act anyhow.' \" (quoting Sharber v. Florence , 131 Tex. 341, 115 S.W.2d 604, 606 (1938) )); see also Anderson v. Abbott Labs. , No. 3:11-CV-1825-L, 2012 WL 4512484, at *6 (N.D. Tex. Sept. 30, 2012) (discussing severability in context of preemption)."], "id": "2c3ed2ad-32e2-4b23-8e0b-adefc6351a1e", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["Neither does the Angeloff court refer to the discussion of Christian (supra). The court, however, distinguishes between the contract \u201cas evidence of the authenticity and reality of the separation\u201d (Angeloff v Angeloff, 86 AD2d 974, 975, supra) and its economic elements which form the gravamen of Mrs. Angeloff\u2019s attack. \u201cEven if rescission of the agreement was found to be warranted, it would still retain its vitality as providing evidence of the primary basis for a conversion divorce\u201d (86 AD2d, at p 975) particularly where Mrs. Angeloff \u201cis as desirous as defendant to terminate this marriage, albeit on grounds other than conversion\u201d (86 AD2d, at p 975)."], "id": "f1eab224-907f-4b6c-86a2-6421b4502e33", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["Defendant was charged, in each of five separate informations, respectively, with placing a sign advertising its opticians\u2019 business on public property at five locations in the Town of Brook-haven in violation of Town of Brookhaven Code \u00a7 57A-11 (B), which prohibits commercial advertising on public property and roads. Defendant\u2019s counsel entered not guilty pleas on defendant\u2019s behalf and moved to dismiss the informations. Counsel argued, in the District Court as he does on appeal, that the provision under which defendant was charged did not further the Town\u2019s stated purposes in enacting chapter 57A of the Code; that certain of the regulation\u2019s terms and expressions are unconstitutionally vague; and that the entirety of chapter 57A, which contains the provisions regulating the location and configuration of commercial and noncommercial signs, is unconstitutional because chapter 57A impermissibly favors commercial speech over noncommercial speech. Defendant\u2019s counsel urges that, in the absence of a (which the Town has since enacted), chapter 57A, in its entirety, must be invalidated. The District Court denied the motion and, on February 9, 2012, defendant\u2019s counsel entered guilty pleas to the five informations on defendant\u2019s behalf. For the reasons that follow, we find chapter 57A to be unconstitutional."], "id": "dd5fa458-bd59-4bc1-91a1-f70c7859d665", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff sought to dissolve her marriage to the defendant and to enforce a nuptial agreement that the parties had executed shorty before their mar- riage. The prenuptial agreement provided that, in the event of dissolu- tion, the parties agreed to waive any claim to each other\u2019s separate property or to support from the other. The agreement also provided that a party who unsuccessfully challenged its enforceability would pay the attorney\u2019s fees of the other party and contained a providing that, if any provision or provisions in the agreement were found to be unenforceable, the remainder of the agreement would con- tinue in full force and effect. The defendant filed a cross complaint, claiming that enforcement of the agreement would be unconscionable in light of certain, uncontemplated events during the marriage, including the birth of the parties\u2019 three children, the destruction of the defendant\u2019s house by fire, the destruction of a yacht club, in which the defendant had an indirect ownership interest, due to a natural disaster, and the failure of a business from which the defendant derived his primary source of income. The trial court found that, although these events were not contemplated, they did not render enforcement of the agreement unconscionable. The court found, however, that enforcement of the attorney\u2019s fees provision would be unconscionable insofar as it would financially cripple the defendant. The trial court rendered judgment dissolving the parties\u2019 marriage, striking the attorney\u2019s fees provision from the prenuptial agreement and concluding that the remainder of the agreement was enforceable. The defendant appealed, claiming that the trial court incorrectly determined that the occurrence of the uncon- templated events during the parties\u2019 marriage did not render enforce- ment of the agreement unconscionable at the time of dissolution. Held that the trial court correctly determined that enforcement of the parties\u2019 prenuptial agreement was not unconscionable in light of all of the rele- vant facts and circumstances: the fact that events arose during the marriage that were beyond the parties\u2019 initial contemplation did not establish that enforcement of the prenuptial agreement would be uncon- scionable, and, although the defendant claimed that the children were entitled to continue the lifestyle to which they were accustomed before the dissolution, the children were being supported by the plaintiff at the same standard of living they enjoyed before the dissolution, the defendant conceded that, as a noncustodial parent, he was not entitled to child support, and there was nothing in this state\u2019s statutes or case law to suggest that public policy required that a noncustodial parent receive postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent, as a regulation (\u00a7 46b-215a- 5c (b) (6) (B)) setting forth the criteria for deviating from this state\u2019s child support guidelines expressly contemplates that, after dissolution, parents may have an extraordinary disparity in income; moreover, the defendant had significant assets at the time of the dissolution, nothing in the record supported the conclusion that he was incapable of earning an income, it was not unreasonable to expect the defendant to obtain employment to replace the income that he lost from the failed business, and there was no evidence that the defendant gave up any income earning opportunities as a result of his marriage or the births of the children, or that he made significant contributions to family life, for which it would be unfair not to compensate him; furthermore, it was not inconsistent for the trial court to conclude that it would be uncon- scionable to enforce the attorney\u2019s fees provision in the agreement on the ground that enforcement of that provision would financially cripple the defendant while also finding the remainder of the agreement enforce- able, as the agreement\u2019s severability clause contemplated the possibility of enforcement of certain provisions in the agreement but not others. Argued May 3\u2014officially released November 17, 2021*"], "id": "a2ddf12b-d78b-42b4-a7d6-6c9010928537", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["Given the existence of an applicable , the court finds that the parties have expressed their intent to be bound by the remaining provisions of the Compact, in the event of the invalidation of a particular clause. This determination is buttressed by the presence of an exception for paragraph 3, the provision prescribing the types of gaming the Seneca Nation can conduct; in other words, all other provisions may be severed."], "id": "8ba74dab-05ff-4bbf-863d-8e782c57b0c7", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["The Aanderuds argue that, as in Baker , the SPPA's severability provision renders the delegation clause ambiguous because the severability provision *894indicates that a court, and not just an arbitrator, might find the arbitration provision unenforceable. We agree with Vivint Solar that this does not create an ambiguity. In contrast to the arbitration provision in Baker , the arbitration provision here expressly states that any disputes, which include those over the scope and applicability of the arbitration provision, are to be resolved through binding arbitration except those within small claims court jurisdiction. Since arbitration is not at issue in a small claims court action, the small claims court can only find unenforceable provisions of the SPPA other than the arbitration provision. Thus, when the provides for severance of any provision of the SPPA if it is \"held to be invalid, prohibited, or otherwise unenforceable by an arbitrator or court of competent jurisdiction,\" the court being referred to is the small claims court, which is not empowered to determine the scope or applicability of the arbitration provision.3 *237The Aanderuds also argue the clause in the arbitration provision that allows for the parties to seek \"provisional remedies in aid of arbitration from a court of competent jurisdiction\" is inconsistent with a delegation of arbitrability issues to the arbitrator. We disagree. Under this provision, the court is not determining whether the arbitration provision is invalid or unenforceable; instead, it allows a court to issue a provisional remedy in connection with an arbitrable controversy only on the ground the award to which the applicant may be entitled may be rendered ineffectual without provisional relief. (\u00a7 1281.8, subd. (b); Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1247, 200 Cal.Rptr.3d 7, 367 P.3d 6 [provisional relief clause permits parties to arbitration to seek provisional remedies during the pendency of the arbitration.].)4 Since provisional remedies can be issued without invading the province of any issues delegated to the arbitrator, the provisional remedy clause does not create an ambiguity as to whether arbitrability will be determined by the arbitrator."], "id": "81d46e9d-a539-40f6-a81b-c9b7c27c07ab", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["An issue that is not directly addressed in the cross motion but which was discussed by the wife at great length at oral argument is whether the entire separation agreement must fall if the no-divorce clause is void and unenforceable. It is the wife\u2019s position that if the court strikes the provision, then it must strike the entire agreement. The wife\u2019s argument' is unavailing. First, the agreement contains a (art XVIII, para 18 [G]). Second, case law makes clear that when a clause in a separation agreement is voided, it can be severed and the rest of the agreement may stand. (P.B., 19 Misc 3d at 192, citing Jessup v LaBonte, 289 AD2d 295 [2d Dept 2001]; Taft v Taft, 156 AD2d 444 [2d Dept 1989]; Seligman v Seligman, 78 Misc 2d 632 [Sup Ct, Kings County 1974]; Hummel v Hummel, 62 Misc 2d 595 [Sup Ct, NY County 1970].) Third, Christian v Christian, on which both parties rely, holds that courts must, to the greatest extent possible, defer to separation agreements. (42 NY2d at 71-72.) Here, both parties bargained for this agreement and both parties had lawyers during negotiations. The fact that one paragraph in the 39-page agreement is deemed to contravene public policy does not warrant striking the entire agreement. Therefore, the court finds the rest of the agreement is valid and remains enforceable."], "id": "f998d561-c65a-47ba-a612-07ee0bb70f17", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["See also Barr v American Ass\u2019n of Political Consultants, Inc, 591 US ___, ___; 140 S Ct 2335, 2350-2351; 207 L Ed 2d 784 (2020) (plurality opinion) (\u201cFrom Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the Court\u2019s remedial preference after finding a provision of a federal law unconstitutional has been to salvage rather than destroy the rest of the law passed by Congress and signed by the President. The Court\u2019s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a .\u201d); Seila Law LLC v Consumer Fin Protection Bureau, 591 US ___, ___; 140 S Ct 2183, 2209; 207 L Ed 2d 494 (2020) (plurality opinion) (\u201cEven in the absence of a severability clause, the \u2018traditional\u2019 rule is that \u2018the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.\u2019 \u201d) (citation omitted). These general principles include, among others, the presumption that statutes are constitutional, that the Legislature intended its enactment to be constitutional, and that legislation should not be declared unconstitutional \u201cexcept for clear and satisfactory reasons.\u201d 2 Singer, Sutherland Statutes and Statutory Construction (7th ed, November 2020 update), \u00a7 44:1."], "id": "a797c4f1-7670-4065-b129-a6f7ea1bde7d", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": [". The parties agreed in the stipulation of settlement that their \u201cAgreement is entered into and is to be governed by Section 236, Part B of the Domestic Relations Law of the State of New York, commonly known as the Equitable Distribution Law.\u201d (Notice of motion to dismiss, exhibit D, stipulation of settlement at 3 [second \u201cWhereas\u201d clause].) The stipulation also contains a by which the parties agreed that if any provision is declared illegal or invalid, the remainder of the agreement shall continue in full force and effect."], "id": "baf28606-da2f-4f94-8d6e-472a9f5fbe1b", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["*304The intent of a separation of insureds provision, also referred to as , is to \" 'provide each insured with separate coverage, as if each were separately insured with a distinct policy, subject to the liability limits of the policy.' \" ( Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 772, 110 Cal.Rptr.2d 844, 28 P.3d 889 ( Safeco ).) California case law considering the effect of severability clauses on exclusionary provisions is limited. (See Safeco, supra, 26 Cal.4th at pp. 767, 772, 110 Cal.Rptr.2d 844, 28 P.3d 889 (conc. & dis. opn. of Baxter, J.)) To the extent such authority exists, no California cases discuss the applicability of a professional services exclusion on an additional insured in a policy with a severability provision. However, a few cases from other jurisdictions have concluded additional insureds were entitled to coverage where the named insureds provided professional services and the additional insureds did not provide any such services."], "id": "9782302a-daa8-41bf-aed3-b108888c77e3", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["The Governor and the State (collectively, the State) contend that plaintiffs lack standing to sue, that the action is premature, and that the Seneca Nation is an indispensable party in whose absence the suit cannot continue. On the merits, the State and the Town contend that the Compact is consistent with the MOU, that a provision in the Compact can be construed to permit the *652Seneca Nation the authority to choose to operate a casino, with the Governor\u2019s agreement, on property purchased by them anywhere in Erie County, and that the delegation of such discretion was ratified by the Legislature upon the Governor\u2019s certification to it on August 18, 2002. With respect to the relief sought by plaintiffs, the State and the Town contend that such relief requires reformation of the Compact, which remedy they contend is barred by the Compact\u2019s , by the absence of the Seneca Nation as a party, and by the doctrine of federal preemption."], "id": "8633261a-6c8c-4a0b-b13c-8d8817d42383", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["While defendants do not concede that the legislative veto is unconstitutional, they claim that, even if it is, the remainder of the Enabling Act may be enforced in its absence. Whether or not an offending provision may be severed from the remainder of the statute requires an examination of both legislative intent regarding the severability and whether the remaining provisions of the statute can function in accordance with the legislative scheme. (People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48 [1920]; Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191 [1984].) While a comprehensive may give evidence of the legislative intent regarding severability, a provision will not be severed if the remaining provisions pervert the Legislature\u2019s intent in the enactment of the statute. (CWM Chem. Servs., L.L.C. v Roth, 6 NY3d 410 [2006].)"], "id": "91131561-b5b3-43e3-bee0-4beccf7340f5", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["section 215 not only does not expressly encompass \u201call\u201d governmental records (it simply permits orders requiring production of \u201ctangible things\u201d in general), it also includes no express repeal of any federal statute pro- hibiting disclosure of such information. Similarly, section 215 contains no language like that identified in this Office\u2019s 1999 opinion on the relation- ship between the immigration disclosure provision and the Census Act\u2019s confidentiality provisions, in which we noted the absence of express language such as \u201cnotwithstanding any provision of law . . . [this provi- sion provides for the disclosure of information] without restriction\u201d that could indicate an intention to override the longstanding statutory protec- tions for census information possessed by the Department of Commerce. IIRIRA Opinion at *5. The PATRIOT Act does include a requiring that PATRIOT Act provisions be given \u201cmaximum effect\u201d if deemed invalid or unenforceable in part or as applied, but this provision does not indicate congressional \u201cintent that [section 215] be construed broadly to give it maximum effect,\u201d as the National Security Division has suggested to us in its views. The full text of this provision states: Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be con- strued so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimi- lar circumstances. PATRIOT Act \u00a7 2 (reprinted at 18 U.S.C. \u00a7 1 note (2006)). By its plain terms, this provision applies only when PATRIOT Act provisions are \u201cheld to be invalid or unenforceable\u201d in whole or in part (emphasis add- ed); it does not otherwise establish any special rule of construction for the PATRIOT Act or manifest an intention to repeal, absent judicial invalida- tion, any provision of prior law. See also, e.g., 147 Cong. Rec. 20,685 (2001) (section-by-section analysis of PATRIOT Act conference report included in the record by Sen. Leahy describing this provision as \u201cprovid[ing] that any portion of this Act found to be invalid or unenforce- able by its terms, or as applied to any person or circumstance, shall be"], "id": "04f5140f-26b3-435e-9d52-11cd0b0a0de0", "sub_label": "US_Terminology"} {"obj_label": "severability clause", "legal_topic": "Business Law", "masked_sentences": ["The question then is whether the unconstitutional portions may be severed from the constitutional portions. Absent a , \u201cthe burden is on the [legislative body] to show that the unconstitutional provisions are severable . . . [t]he critical issue [being] whether the legislation would have been enacted if it had not included the unconstitutional provisions\u201d (National Adv. Co. v Town of Babylon, 900d 551, 557 [2d Cir 1990]). Where \u201cthe constitutional and unconstitutional provisions [are] inextricably interwoven\u201d an inference may be drawn that they are nonseverable (id.; see McKinney\u2019s Cons Laws of NY, Book 1, Statutes \u00a7 150 [d]). Although the severability clause did not exist at the time of the instant offenses, we may nevertheless consider whether the unconstitutional portions may be severed from the constitutional parts (e.g. Lamar Adv. of Penn, LLC v Town of Orchard Park, N.Y., 356d 365, 375 [2d Cir 2004]), and we conclude that they cannot be severed. In light of the ubiquitous use of the language of limitation quoted above and the relative absence of media of expression for noncommercial speech, it is impossible to sever so much of chapter 57A as permits \u201ccommercial favoritism\u201d while retaining the remainder. The chapter\u2019s provisions are so closely interwoven that removing them wholesale would render the regulatory scheme incoherent and would amount to a judicial rewriting of a legislative scheme, which the courts do not favor (National Adv. Co., 900d at 557)."], "id": "6db018c3-163d-4ef4-b7d5-a2b3f8e43163", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["October 29, 1953, they made a further written agreement complementing their agreement of September 21, 1953, including therein escrow provisions conditioning payments upon delivery by the respondent to the petitioners of writings, such as assignments and patents, etc., by December 15, 1953, making time of the essence. Since then there has been of both agreements on both sides, including payment of $13,500 of the original escrow fund to the respondent. On the *525respondent\u2019s notice of arbitration as to a $5,000 payment which became due on March 30, 1958, under the agreement of September 21,1953, the petitioners seek this stay on the contention that there is no agreement for arbitration because there has not been total compliance with three of the seven items in the second agreement which were to have been fulfilled by December 15, 1953. Paragraph Fourth of the latter agreement conditions the existence of the first agreement upon compliance with the conditions which have been fulfilled in part."], "id": "70a49857-b14a-4e15-aa94-bb49b6bd1cb8", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["\u2018 \u2018 We assume that the beneficiary of a right so to sue may not enforce it .to the prejudice of a municipal corporation by which the right is created. The intention to make such a bond a means of securing compensation to those whose labor or *112materials are to forward performance of a contract for public work is undoubtedly subordinate to the self-protection which is the first objective of the municipal corporation in taking the bond. It seems clear that a cause of action cannot be established in a case like this unless the municipal corporation has received upon a contract for public work the which the bond of its contractor is primarily intended to secure. * * *"], "id": "050fcba3-3943-43b4-9463-c91fb3c139e2", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The facts found by the referee constitute a complete delivery of the large \u25a0shipment of bottles. They were shipped as soon as possible after the receipt \u2022of the order of August 28th; and, if any unusual delay occurred in their transportation to Rochester, it would seem to have been due to the interference of the defendant in the attempt to prevent their delivery. The fact that this shipment did not complete the quantity of bottles contracted for is no defense to this action. An elaborate argument is made on the part of the defendant in support of the proposition that \u201cthe contract was entire, and called for entire performance; and that until such was made or tendered there was no liability on the part of the defendant. \u201d The proposition is quoted from the opinion of the court in the case of Catlin v. Tobias, 26 N. Y. 217; and that case, \u25a0and the cases of Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12, and Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187, are relied upon as sustaining the application of the doctrine to this ease. We find the case strongly distinguished from the cases cited, and from any other ease to which our attention has been called, in which the doctrine of. an entire contract has been applied. Aside from the fact that this was a contract for the manufacture of goods, and not for their sale merely, upon which stress is laid by counsel for respondents, we find in the particular terms of the contract ample grounds for \u2022distinguishing this from the cases referred to. In Norrington v. Wright, *442supra, the contract was for the sale of 5,000 tons of rails, and the contract: itself specified the time and the amount of each shipment, viz., about 1,000-tons each month, beginning in February, and all to be shipped before August.. The court say they are of \u201cthe opinion that the plaintiff\u2019s failure to make such, shipments in February and March as the contract required prevents his maintaining this action.\u201d So, also, in Catlin v. Tobias, supra, the contract expressly prescribed the time within which all the goods should be delivered, viz., within three months from the date of the contract; and in Champlin v.. Rowley, supra, the court held, on the terms of the contract, that the delivery of the entire quantity of the hay sold was a condition precedent to the payment of the price. In this case, on theotherhand, thegoods were, by the terms, of the contract, to be delivered only as ordered by the defendant. The language of the stipulation is: \u201cTobe delivered in Rochester, N. Y., in car-loads, free of all freight, to us, and when we direct, and within one year from this-date. \u201d This is plainly a contract for the delivery of goods by installments, the time and quantity of each delivery to be -determined by the order to be given-by the defendant. The addition of the words, \u201cand within one year from this, date,\u201d did not give the plaintiff the right to deliver thegoods faster than they were called for; but must rather be considered as a stipulation on the part of the defendant to call for all the goods within the year. This contract the-plaintiffs have fully performed. They delivered all the goods that were called for, and as they were called for, within the year; and at the close of the year, having received no further orders, notified the defendant that the remainder-of the goods manufactured were held subject to its orders; that they would, ship all goods ordered before August 30th, but, if not ordered before that date, they would be stored at the defendant\u2019s risk and charges. The order which-the defendant gave in response to this notification was impossible of execution, according to its terms. It was probably intended as a snare. F\u00edo part-of the-goods could have been shipped after the receipt of that order, on the evening of the 28th of August, so as to have reached Rochester on the 30th. The plaintiffs, however, proceeded to comply with the order as nearly as possible, and shipped nearly 4,000 gross of bottles on the 29th and 30th. It was after that shipment, and before any portion of thegoods had reached their destination, that the plaintiffs received the final communication from the defendant, to the effect that it would receive no goods delivered in Rochester after August 30th, except in such quantities as should be ordered after that time. If nothing had occurred before the receipt of this dispatch to indicate the determination of the defendant not to accept performance of the contract by the plaintiffs, this would have been quite sufficient to absolve the latter from any further attempt to perform or tender of performance. FTo further order for-bottles was ever given by the defendant. Upon this case we cannot doubt: the correctness of the findings of the referee, which in effect credit the plaintiffs with a of the contract on their part, so far as they were required or permitted to perform it."], "id": "31b189a5-6841-4ade-bff7-75ce82930d32", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Secondly. Though the literal ierms of the condition have been fully complied with according to the foregoing view, yet as we are bound to look to its substance and effect upon the rule of construction already referred to, we admit the performance fails if the estate in fee of the moiety is encumbered by annuities and legacies so as seriously to diminish the value of it. Contingent charges, however, upon this rule of construction should be laid out of consideration, if it is affirmatively shewn that they will not with reasonable certainty fall upon the estate. A literal or prima facie performance being established, it would seem to devolve upon those disputing it, to produce the evidence repelling a subtantial performance. A remote possibility of a charge, if sufficient for this purpose, may undoubtedly be rebutted. It may or may not affect the interest or value of the estate, and therefore is necessarily under the control of the facts of the particular ease. The funds of the testator may be so large and ample, that the contingent charge of the legacies and annuities in this case would not, in the market, or in fact in the slightest degree, diminish the value of the moiety. This was asserted to be the situation of the funds of\u2019 the estate in this case, and proof of it was offered by the counsel for the defendant. The evidence was proper; and if the fact could be established, looking at a of the condition upon which the estate of. the defendant depends, I am of opinion it ought to have been received."], "id": "1fac4a5e-3ac8-4bb9-836d-4b04bb5f044b", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The departures from the required thicknesses under the contract involved, so far as said forty-four slabs are concrened, were substantial. The measurements of these removed slabs indicated 1,760 feet of defective pavement. This was, in my judgment, not such a performance of the contract as to justify full recovery. It may be claimed that to hold that a deficiency of twenty-six thirty-seconds of an inch is not is a purely arbitrary action, but the line must be drawn somewhere, and, to repeat, each case of this nature must be determined according to the facts disclosed. I think that the State had the right, under this contract, to order the removal of portions of the pavement which were substantially defective, and that right is not affected by the facts that more material than necessary was placed in the entire pavement or that the average deficiency of the whole pave*344ment from the contract requirements was, as claimed, less than one-third of an inch."], "id": "fafbba3f-9afa-47e9-a003-e43f3ecb93b4", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Each case of this character, of course, has to be determined on its own particular facts. We are not attempting to lay down any general rule to govern in cases similar to this. All we desire to be understood in holding here is that we are not satisfied from the evidence before us that a sufficient amount of this concrete was laid thinner than seven inches to enable us to properly find that the work done by this claimant was not a of his contract."], "id": "a23a1735-69bf-4463-8f23-a5d5ff8abe52", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["I am of the opinion that Special Term improperly applied the test to the contract herein. Defendant\u2019s recovery of a judgment for damages to its press did not preclude plaintiff from asserting its present cause of action for the balance of the contract price. Where property is delivered in a damaged condition due to a carrier\u2019s negligence, the carrier may recover freight charges either in a separate action or by counterclaiming therefor in an action brought by the owner to recover for damages to his goods (see Schwinger v. Raymond, 83 N. Y. 192; 7 N. Y. Jur., Carriers, \u00a7 164). Where goods are destroyed there is, of course, no right to recover freight charges (Dunham v. Bower, 77 N. Y. 76)."], "id": "ccc5f305-8c60-4e3f-8de6-612ec85e9b0f", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["By no stretch of the imagination can plaintiff\u2019s track record under the separation decree be characterized as . It bespeaks of, and constitutes, substantial refusal to perform financial responsibilities under the decree. And, those responsibilities, particularly in a fragmented family, were and are of grave import to the over-all decree impact. Plaintiff has not sought to deny the defaults, instead contending that his compliance with the separate bed and board provision is enough."], "id": "3a5c9e62-5cc0-415f-86f2-cd03c65f5d4e", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The doctrine originated and is still mostly used in the context of construction contracts. See Vance v. My Apartment Steak House, Inc., 677 S.W.2d 480, 482 (Tex. 1984) ; Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex. 1982) ; RAJ Partners, Ltd. v. Darco Constr. Corp., 217 S.W.3d 638, 643 (Tex.App.-Amarillo 2006, no pet.) ; Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 844 (Tex.App.-Austin 2003, no pet.) ; see also Ten-Booms v. Obregon, No. 03-09-00713-CV, 2011 WL 2162884, *7 (Tex.App.-Austin June 3, 2011, no pet.). However, substantial performance can also be used as a defense to other breach of contract claims. See Smith v. Smith, 112 S.W.3d 275, 279 (Tex.App.-Corpus Christi 2003, pet. denied) ; see also Avnsoe v. Square 67 Dev. Corp., 521 S.W.2d 874, 874-75 (Tex.Civ.App.-Eastland 1975, no pet.) (substantial performance as defense); Cotherman v. Oriental Oil Co., 272 S.W. 616, 618 (Tex.Civ.App.-Amarillo 1925, no writ) (same); Adams v. Tri-Continental Leasing Corp., 713 S.W.2d 152, 153 (Tex.App.-Dallas 1986, no writ) (same). In determining substantial performance, there must be no willful departure from the terms of the contract and no omission of essential points of the project. Smith, 112 S.W.3d at 279 ; see Cotherman, 272 S.W. at 619 ;"], "id": "95bba89f-fad4-4e67-8527-1657b54b37cc", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The \u201c \u201d measure of disability is followed in many other jurisdictions. The United States Court of Appeals for the Fifth Circuit, in Standard Acc. Ins. Co. v. Bittle (36 F. 2d 152, 154) defined total disability as follows: \u201c A disability is total if it prevents the party suffering it from performing acts necessary to the prosecution of his business in substantially the customary and usual manner, and does not mean a state of absolute helplessness or inability to perform, at peril to health, some of the acts required in the conduct of a business or occupation.\u201d"], "id": "e3d288ed-5e1f-41c8-b63a-63e07ea3d2d5", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["A close examination of Domestic Relations Law \u00a7 170 (5) and (6) reveals that when the Legislature enacted said subdivisions, the identical requirement was imposed of \"substantial * * * performance] with all of the terms and conditions\u201d in regard to judgments of separation and separation agreements. While there is an abundance of case law on what is with all of the terms and conditions of separation agreements (i.e., Berman v Berman, 72 AD2d 425 [1st Dept 1980], affd 52 NY2d 723), there is none regarding substantial performance with judgments of separation. However, in view of the identical language and intent of the Legislature, this court concludes that the case law on substantial performance of separation agreements applies equally to judgments of separation. In discussing substantial performance with a separation agreement, the court in Berman (supra, p 428) stated: \"they are aimed at substantial noncompliance and nonperformance of major mandatory decretal duties imposed upon plaintiff as conditions of the separation *30(Failla v Failla, 81 Misc 2d 959). It is with these major provisions, such as alimony and child support, that the statute requires compliance for at least one year\u201d, and further stated (p 429): \"The inclusion of the term 'substantially performed\u2019 in the statute had a manifest purpose to insure that the essentials of the agreement were complied with. 'Substantially\u2019 plainly intends to avoid the need to prove literal compliance. However, the major undertakings inherent in the agreement, the obligation to pay alimony and child support, are manifestly terms and conditions which are the very foundation of the agreement\u201d, and further: \"The obligation to comply with the support provisions, the essentials of the agreement, must be met in order to utilize the agreement as a basis for judicial relief. A party who disregards the essence of an agreement and his obligations under it should not be permitted to use the agreement to obtain affirmative judicial relief against the other party.\u201d (See also, Bock v Bock, 121 AD2d 672 [2d Dept 1986].)"], "id": "f3d2e92e-96e1-4018-b572-b9f808a088bc", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The Court of Errors held, that the verdict was imperfect, that from the finding of the jury, it did not necessarily follow that a cause of forfeiture existed, as it did not appear but that this diminution in width was wholly immaterial in respect to the object for which the opening and drawbridge were required; nor that any private or public injury had resulted from the diminution ; nor but that there had been a of the conditions upon which the grant was made, which is all that can be required in the performance of a condition subsequent, and accordingly the court reversed the judgment of the Supreme Court, and awarded a repleuder."], "id": "0e88a166-7445-414f-9e64-b8936238e9b7", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Then again in relation to \u201c conditions annexed by operation of law,\u201d a similar reasonable latitude is given. One of those annexed to every estate in dower and curtesy is that the tenant do not waste, and by common law the estate was forfeited for breach of that annexed condition. Coke Lit. 233. But-if the waste be caused by tempest or the act of God, that is no breach. Neither does the tenant incur the penalty of waste when the amount is very small, or under the value of 40 pence. ' Coke Lit. 540. In a very recent decision of our own supreme court, this general doctrine is lucidly stated by the chief justice in delivering the opinion of the court, and is applied to corporate franchises. Speaking of corporate grants (and the rule applies with equal force to franchises granted to unincorporated individuals) he says.: \u201c There can be no great difficulty in ascertaining the principles that should govern conditions annexed to them. The analogous cases of individual conditional grants will give the rule. In these, a reasonable and according to the intent of the grantor is required.\u201d Shep. Touchstone, 133. 15 Wend. R. 291. In case of conditions subsequent, if impossible to be performed or rendered impossible by the act *586of God, the grantee is excused and the estate is absolute. 2 Bacon\u2019s Abr. tit. Condition. Shep. Touchstone, 133, 157. So if waste be committed *by a stranger, it shall not be a breach of the condi- [ *587 ] tion of the lease. 2 Bac. Abr. 652. The whole law on the subject will be found reasonable. The People v. The Kingston and Middletown Turnpike, ante,p. 193. Now in all these several cases of condition above mentioned, to give any effect to the rule of law, it must follow that no judgment can be rendered against the defendant upon verdict, unless that verdict shew to the court, at least generally and presumptively, the fact not merely of a breach of the letter of such subsequent condition, but of its intent and meaning ; or, in other words, that it was violated according to its legal construction so that judgment might be rendered \u201c according to the right of the matter,\u201d as our statute phrases it. This would be shewn by a general verdict against the defendant, where the form of action and the pleadings are such that the general finding shows positively that the cause of forfeiture or right of re-entry had been directly proved. It may also be shewn by the special finding of such facts as the court adjudge to amount to a substantial breach of condition. But if the record present only the finding of particular facts which do not shew affirmatively any certain and substantial breach of condition, but merely a possible and contingent one, such as might or might not amount to legal cause of forfeiture, no matter whether the verdict be in form general or special, whether it submits the facts in technical form to the legal judgment of the court, or is simply responsive (as here) to the issue; I do not see how, consistently with the principles and authorities above stated, such a verdict can support any judgment against the defendants."], "id": "9d2e0bf0-be3a-4475-b46f-fbeb681acd5b", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The principal exception urged on this appeal is to this refusal of the court to charge defendant\u2019s request. It is contended that the contract was an entirety, that it implied a covenant for fidelity and honesty on the plaintiff\u2019s part, and that full performance in those respects, as well as in point of time, was a condition precedent to any right of recovery against the defendant, and that hence any delinquency on the part of the plaintiff was a complete bar to the action. I do not think this position well taken. The plaintiff had served out his full term. The defendant had accepted his services for that period. While performance is a condition precedent to a recovery, it is also well settled that the of \u00e1 contract is sufficient. (Glacius v. Black, 50 N. Y., 145; Phillip v. Galliant, 62 id., 256.) I do not see why a more stringent rule should be applied to contracts of service than to others. True, it is established by authority that where a servant' is discharged for cause during his term of service, he can recover nothing, no matter how long he has served. The cases cited by defendant go to this extent and are based upon the theory that the contract of service is an entirety as to the term. But none go further. There are some contracts which are unities in all their essential elements. Such a one is a physician\u2019s attendance upon a patient during a single attack of illness. A recovery for services is a bar to an action for malpractice or vice versa. But the employment of an ordinaiy servant is an entirety in no sense except as to its term. The day\u2019s duties well done, are not affected by the performance of the duties of the next. The rule as to term is sufficiently stringent and should not be extended. The servant contracts for attention and diligence as well as honesty. He might have been discharged for injuring the harness by his carelessness, but it certainly' should not be that, having served his whole time, he should forfeit his whole wages when the master can be indemnified by recouping his loss. Nor do any of the requests do charge present the point of actual dishonesty *235or of continuous fraud upon the servant\u2019s part. The burden of the requests, though prat in many forms, is that a retention of the defendant\u2019s money was a bar to a recovery. This was not qualified by the condition that the retention of the money should be with the intent to cheat the master, nor that the servant\u2019s course of conduct was persistent. It was claimed that a single failure to pay over to the master was sufficient. It may well be that a continuous or habitual course of dishonesty should bar wholly a servant\u2019s claim, though the proceeds of his fraud are less than the amount of his wages. But none of the defendant\u2019s requests present this question, nor indeed do they \u25a0 present the question 'of any actual dishonesty."], "id": "46944828-7e65-496e-b077-a06ef96e9669", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It is claimed, however, that at the time of Mr. Rogerson\u2019s discharge as attorney by Mrs. Maharon the contract was so nearly completed that the original contract governed. This contention is based upon the language of the court in Matter of City of New York (supra) and the decisions in Matter of Krooks and Matter of Tillman (supra). In the City of New York case the court said, \u201c under our recent decision in Martin v. Camp, the client has the right to end the employment at any time before complete performance.\u201d In Matter of Tillman the attorney had a contingent contract for three per cent of the proceeds of litigation which might be recovered against several insurance companies. After the Ghent\u2019s right to recover had been established and the litigation was terminated except for computation by the referee of the amount due, the court below ordered a substitution of attorneys on condition that the client file a bond in a specified amount to pay his former attorney three per cent of such recovery as might be had. The order was reversed by the Court of Appeals and the matter remitted to Special Term with directions to fix the appellant\u2019s lien on the basis of quantum meruit. Nothing was said in the opinion upon the subject of complete or . In Matter of Krooks *862(supra) Conrad was retained by Jennie Krooks as her attorney in connection with certain condemnation proceedings and agreed to pay him all moneys in excess of $38,000, \u201c which may be paid to me or my assigns as the result of said proceedings.\u201d The attorney performed his services with such energy and skill that the justice at Special Term stated in memorandum that the sum of $46,500 was awarded by him for the Krooks property. Two days after that memorandum was published Mrs. Krooks canceled her retainer and brought a proceeding to set aside the written agreement and to determine the attorney\u2019s lien. Without taking evidence of the value of the attorney\u2019s lien it was fixed at the amount \u201c which may be paid as a result of said condemnation proceedings, over and above $38,000.\u201d The opinion in the Court of Appeals said (p. 332): \u201c Assuming that the rule were to be narrowed to the extent of allowing cancellation only in those instances where the attorney\u2019s services had not been substantially completed [Matter of City of New York, 219 N. Y. 192, 194], it would now in this case require application.\u201d The court held that the services were not shown to have been so nearly completed as to preclude the client from the discharge of her attorney and the retainer of a different one, and reversed the lower courts and remitted the matter to Special Term to take testimony as to value of the attorney\u2019s services and to fix his lien. The court further said \u201c the client\u2019s right to control her retainer does not permit her to cheat her attorney * * *. If the attorney shall be paid the reasonable value of his services, no cheating will occur. The contract has been canceled and its terms cannot establish the standard for compensation.\u201d"], "id": "7ef3dbda-247a-415e-9adb-baa80b8eabc4", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The cause was referred, and the referee by his report, \u2022dated in December, 1875, found the making of said contract between defendant and the Thorntons : That the Thorntons proceeded to do and substantially finished the work in accordance with the contract, and by reason thereof, on the *2122d of November, 1874, and on the date of the filing of liens-in the report mentioned, there was due said Thorntons from the defendant, Prigge, $1,550, being so much of the price mentioned in said contract as was then unpaid. This sum the referee awarded to-other lienors, who had filed their liens for materials furnished and work done for said Thorntons in pursuance of said contract, having precedence to that of the-plaintiffs, and he also found that these plaintiffs furnished said materials and performed' such labor for and at the-, request of said Thorntons, and that they had filed their said lien therefor on the 6th of November, 1874. Upon this report a judgment was entered substantially conforming to the report and adjudging that the entire contract work was performed by the Thorntons, and awarding the payment of said balance due of $1,550 thereon to the persons having precedence to these plaintiffs, such amount being, however, insufficient to satisfy such prior claims. This judgment so far as shown stands in full force. The plaintiffs, notwithstanding such judgment by complaint duly verified in the present action, make a personal claim again the defendant for the balance due them for said materials and work, upon evidence of one of the plaintiffs, and another witness, tending to prove that after they had commenced to- perform: their sub-contract with the Thorntons, and had furnished but a trivial part of the materials, they told defendant they had stopped work on the job; that they wouldn\u2019t trust the Thorntons and wouldn\u2019t do any work for them ; that defendant requested them.to go on and finish the work, and\" said he would pay for it; that he would accept the contract they had with the Thorntons and pay for it; that they resumed work on the job according to the contract they had with the Thorntons. Under this solemn farce of perjury, either in the former or latter proceeding, the plaintiffs present this ex-traordinary claim. They have already had a finding in their favor, in the former action against the Thorhtons, upon their claim as made therein, that they furnished the materials and performed the labor for and at the request of the Thorntons, which were of the reasonable value of $1,400, which finding *213would be available for any future action against the Thorntons. It was also therein found and judgment rendered accordingly in harmony with plaintiff\u2019s pretensions in that action, that .all the work on the building was substantially performed by the Thorntons according to the original contract with the defendant, and an award was made for payment by this defendant of the balance due for entire performance to prior lienors. This plain and patent case is but confused by the technical and elaborate but unappreciable argument of the plaintiff\u2019s counsel. The former action was, so far as this defendant and the plaintiffs were concerned, one in rem. It adjudged that the moneys now claimed by plaintiffs were due the Thorntons, the contractors, for by them of the entire contract; that plaintiffs as sub-contractors became lienors for and in respect to the present \u2022claim which they then presented and urged in the double relation of lienors and personal creditors of the Thorntons, and had judgment for it in-their favor as due on their subcontract with the latter. It needs no criticism or weighing of authorities to demonstrate that such a judgment, unreversed \u2022and in full effect, must upon every principle of justice be held conclusive upon the rights of the parties, and debar such a \u2022claim as is now presented on behalf of the plaintiffs."], "id": "bcf058a2-5833-43f6-811f-38709917de07", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["I have dwelt at much length upon this case, as it is a peculiar one, and because I feel that the case would be chargeable with injustice if we were to hold that the defendant is to enjoy the benefit of a building which cost nearly $6,000 more to erect than he has paid for it, upon the ground that the evidence shows a special contract to erect it for $19,500, or a building contracted for at $19,500, and augmented by extra work to the amount of $3,563.76, which is the defence set up by the answer. I am for adhering rigidly to the rule which holds parties to the full or of their contracts, but the terms and conditions agreed upon must distinctly appear, or the foundation is wanting for the application of the rule. If the defendant desired the advantage or security to be derived from the express stipulations of a special contract, he should have had those stipulations distinctly and clearly expressed before Naylor began to build, so that if any alterations or additions were afterwards made, they would distinctly appear upon reference being had to the original contract. If they were extra work, it could be shown at once by looking at the original agreement, or if substituted for work therein provided for, what was substituted could be compared with what was omitted, and the extent to which the contract was varied, or the effect that the change might have upon the whole contract, would readily appear. It is this want, in the case, that renders it impossible to say what was extra work or what was change or alteration, or to adopt any other rule than the one I have laid down. The defendant has had the benefit of the $1,700 worth of work and materials, furnished by the plaintiffs, in the erection of the building. He has not paid for it. He is indebted at least to that extent, and the plaintiffs having been subrogated to the rights of Naylor, to the extent of their claim, by the filing of his lien, are, in my judgment, entitled to recover that amount from the defendant."], "id": "4a8aeb25-7a6d-46de-b72c-7b61759fd671", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The defendant, however, claimed in its posttrial brief that plaintiff cannot recover any amount since it had not established , but had \u2018\u2018 in fact breached its contract by leaving the job without excuse \u201d, with 22 items of \u2018 \u2018 omitted and defective work \u2019 \u2019 totalling $40,498.50; that in any event, it, defendant, is entitled to an affirmative judgment to the extent of $17,939.10 \u2018 \u2018 representing the amount of willful exaggeration of the lien \u201d, which should be declared void for that reason, with a specification of the amount of each of the 14 items* by which such lien was willfully exaggerated. (Lien Law, \u00a7 39-a; Goodman v. Del-Sa-Co Foods, 15 N Y 2d 191, 198.)"], "id": "9ad4b592-7ae9-4e0d-b0e5-a1dd97b5b97b", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["*710It argues that since is the legal equivalent of full performance, M&M fulfilled its obligation under the Contract and American Safety owed no further duty under its bond. We do not necessarily agree with American Safety's interpretation of this evidence or that the summary judgment evidence shows that M&M achieved substantial completion as it is defined in the Contract. However, even assuming that M&M achieved substantial completion of the Contract, this did not relieve M&M of its duties under the Contract to complete the work in accord with the Contract documents and to correct or replace any defective work."], "id": "334cde36-3117-4920-b75c-d8cdeb690e66", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Applying the rationale of the Witherell decision to the present facts the plaintiff should be entitled to recover under the theory of even though he did not have the specific forms verified by an authorized dealer. The clear purport of paragraph 3 of the warranty is that the plaintiff properly maintain the engine of his vehicle. The plaintiff has submitted the repair orders to establish that the required service was performed. The plaintiff has performed his underlying obligation and the mere fact that he is able to show that the proper service was performed by copies of the repair orders in lieu of the specified forms is immaterial. The plaintiff\u2019s right to recover should not be denied for failure to comply with this mere technicality having no pecuniary im*193portance. The repair orders submitted establish that the proper service was performed."], "id": "a0644523-f302-4e79-8b70-33d200ffe5e3", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Kleberg's contends that the trial court failed to require exact performance of the Agreement and that the trial court incorrectly granted to URI. In support of its argument, Kleberg cites Kitten v. Vaughn, 397 S.W.2d 530, 533 (Tex.Civ.App.-Austin 1965, no writ), which purportedly stands for the proposition that parties to an agreement are entitled to exact performance of the agreement. However, as we held in Smith and recognized by the Austin Court of Appeals, the doctrine of substantial performance has expanded and is now available in breach of contract cases. See Smith, 112 S.W.3d at 279 ; supra ; see also Ten-Booms v. Obregon, No. 03-09-00713-CV, 2011 WL 2162884, *7 (Tex.App.-Austin June 3, 2011, no pet.). The trial court correctly found that substantial performance was available as a defense to Kleberg's breach of contract allegations. See Smith , 112 S.W.3d at 279."], "id": "31426276-35a7-43e0-9072-1edda6f51023", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It necessarily follows then that the fixed and acknowledged' principles and rules of law that invariably govern and interpret other estates upon condition, whether corporeal or incorporeal, must apply here. Now it is well settled, that precedent conditions, which, must take place before the estate can vest, must be literally performed. Conditions subsequent operate upon estates already created and vested, render them liable to be defeated if broken. Those working forfeiture are not favoured in law and must be construed strictly ; nevertheles the grantee is bound to their . \u201c The obligation between the government and the owner of such franchises as roads, bridges, and ferries, is mutual. He is obliged to provide. and. maintain facilities for accommodating the public at all times with prompt and convenient passage.. The law on the other hand provides him *585with a recompense by means of an exclusive toll. An estate in such a franchise and an estate in land rests upon the same principle, being equally grants of a right or privilege for an adequate consideration. 8 Kent\u2019s Com. 459. When then the estate in such a franchise has been legally vested by due and full performance of the precedent conditions (as in this case, by building the bridge according to the literal terms of the act) how stands the law as to the interpretation and application of the subsequent conditions ?"], "id": "8b98c795-9bd3-4695-a965-0b86d6d05098", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The effect of plaintiff\u2019s failure to strictly perform the contract herein is to render the extension illegal. There was proof that the extension as constructed does not comply to building code requirements and that the C of O was issued without inspection based upon misrepresentations by plaintiff to his architect. Accordingly, it has been shown that any request for a new or currently revised C of O from the town will be denied unless the defect of an improper crawl space is corrected. In order to correct the defect, the floor of the extension must be removed, the walls braced, excavations undertaken to remove additional earth, and the concrete and floor rebuilt. These corrections are tantamount to reconstructing the addition. The plaintiff has not therefore shown either complete or ."], "id": "dec38ddc-fc4a-44b2-8e8b-a6b49ed814a0", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Also, the \u201cno-fault\u201d ground and certain other \u201cfault\u201d grounds, specifically, Domestic Relations Law \u00a7 170 (2), (3), (5) and (6), are similar in that they each contain elements which require proof of a minimum time duration. For example, Domestic Relations Law \u00a7 170 (2) requires abandonment for a period of one year. Domestic Relations Law \u00a7 170 (3) requires confinement for a period of three or more years. Domestic Relations Law \u00a7 170 (5) requires living apart pursuant to a decree or judgment of separation for one year and the filing of proof of . Domestic Relations Law \u00a7 170 (6) requires living apart pursuant to a written agreement for one year and the filing of proof of substantial performance. Domestic Relations Law \u00a7 170 (7) requires the relationship to be broken down irretrievably for six months and a statement under oath by the plaintiff. The underlying ground for the divorce is not the statement by the plaintiff. The ground for the divorce is the irretrievable breakdown of the marriage, which must have existed for six months."], "id": "911dce54-c26d-4cea-958a-d256702f66f7", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["*861It is true that the conversation between the executor and the legatee indicates an understanding that, limited only by the judicial directions in the construction proceeding, the agreement was later to he integrated in a writing. \"Whether that one transaction, without anything more, would result in an enforceable contract (cf. Restatement, Contracts, \u00a7\u00a7 25, 26, and 1 Willis-ton oil Contracts [Rev. ed.], \u00a7\u00a7 26, 27, 28, 28A) is not decisive of the issue here because the single transaction is not the sole basis of of the conditions. Both the executor and the legatee appeared to regard the legatee\u2019s act as an assent to the conditions so far as legal, and the personal representative of the legatee affirmed his act by executing the formal contract. In the opinion of the court, the performance of the conditions was not so personal to the legatee that it could not be completed by his personal representative."], "id": "d354edff-749e-4794-b953-e45ef2c90fc1", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It is true that past arrearages in moneys owed are not per se disqualifying where they have been made up in full and the defaulting party has stayed current for a reasonable period of time. Thusly, in Rubin v. Rubin (35 A D 2d 460), a prior delinquency in alimony was corrected and the husband had been in full compliance with the separation decree for eight years. The court found (p. 462) primarily because of the \u2018 \u2018 long and continuous history of complete performance \u2019 \u2019 after the initial default. It reasoned that under the Gleason doctrine it would be an exercise of futility to forever bar a party from obtaining a divorce because of past derelictions in support payments long since corrected. See, also, Van Fort v. Fan Fort *142(62 Misc 2d 981, supra), where after initial defaults in the husband\u2019s support payments, a four-year period of compliance followed, immediately preceding the divorce action, and was found to constitute substantial performance. (1 Foster-Freed, Law and the Family, \u00a7 6:31, pp. 332-333.) Here, however, there has been no period of any real duration where compliance, rather than intransigent refusal, has characterized plaintiff\u2019s actions."], "id": "2ce493b9-0d31-4583-b09b-4855f55a6624", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The cause of action to recover for money to be paid under the contract can be sustained only upon showing that after the completion of the contract plaintiffs had demanded of the engineer, who, under the contract was to make the final certificate, that he make such a certificate, and that he had refused or unreasonably neglected to comply with that demand, or that fraudulently, corruptly, or in bad faith he made a false certificate, so that the court would be justified in setting aside the certificate as not binding upon the plaintiffs. By the contract sued on the engineer was required to certify to the aqueduct commissioners that the plaintiffs had completely performed the contract, and in his certificate was to state from actual measurement- the whole amount of the work done by the plaintiffs, and the value of such work under-and in accordance with the terms of the contract. The engineer was not to certify to the plaintiffs, but to the aqueduct commissioners, and, if he so certified to them before the commencement of this action, it is clear that the amount to which the plaintiffs were entitled was the amount which, by such certificate, should appear to be due over and above the payments theretofore made to the plaintiffs; and as it appears that the chief engineer, acting under this provision of the contract, did, on the 18th of June, 1889, certify to the commissioners the amount due to the plaintiffs under the contract in this case, that certificate is binding upon plaintiffs unless they show fraud, corruption, or bad faith. Assuming that there is evidence to sustain a finding by the jury that prior to the 18th day of June, 1890, there had been an unreasonable delay in making the certificate, such delay would not nullify a certificate actually made before an action was commenced to recover for the work done under the contract, nor entitle the contractor to proceed as though no certificate had actually been made. It is only where a party to a contract is entitled, because of his of the contract, to receive the stipulated compensation for such performance, and commences his action to recover such *525compensation, and justifies his failure to produce a certificate required by the contract to be produced as a condition precedent to his recovery, by the refusal or neglect of the person designated to make the certificate required by the contract to be made, that evidence of such refusal or neglect is material. Where it appears that prior to the commencement of the action a certificate required by the contract had been actually made by the person designated therein to make such a certificate, the time at which such a certificate was made is immaterial, and such a certificate becomes binding upon the parties unless proved to be made fraudulently or in bad faith. By the contract in question the right of the plaintiffs to receive the final payment depended upon the making of the certificate by the engineer that the plaintiffs had completely performed the contract on their part, and his certificate was to state, from actual measurements, the whole amount of work done by the plaintiffs, and the value of such work, according to the terms of the contract, and the defendants were to pay in cash the amount remaining after deducting from the amount or value contained or stated in the last-mentioned certificates such sums as should theretofore have been paid to the plaintiffs under the provisions of the contract."], "id": "e04dd42e-7230-40a8-b958-bb362bab5eb7", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Following this leading case it is well settled that a plaintiff who relies on has the burden of showing the nature of the defects and omissions, that they are not substantial, and the cost of making them good. (Nieman-Irving & Co. v. Lasenby, 263 N. Y. 91; 5 Williston on Contracts [Rev. ed.], \u00a7 1475; 2 Clark\u2019s New York Law of Contracts, \u00a7 919, p. 1403, and cases cited.)"], "id": "bd7ff7fd-a47f-43ad-b2fa-183fc651e9d0", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Although the death of the decedent terminated the relationship of attorney and client (Matter of Dunn, 205 N. Y. 398; Angelo v. Angelo, 282 App. Div. 981; Matter of Maratto, 145 N. Y. S. 2d 621), our courts have held that the attorney\u2019s right to compensation will not be affected by the death of a client where it has become vested by . (Matter of Levine, 247 App. Div. 19.) None of the fruits or avails of the attorneys\u2019 services were received prior to the death of the decedent and in the opinion of this court the decedent\u2019s death did not divest the claimants of their right to collect such amount as was due to them under the agreement of retainer as a result of the performance of their services. From the stipulation of facts submitted, it would appear, therefore, that the attorneys are entitled to receive 10% of the sum of $7,846.67 which was collected by the estate as its share of the royalties through December, 1958, or 10% of the amount collected as royalties by the estate which can be attributed to the attorneys \u2019 services rendered prior to death. The court also holds that the said attorneys have a lien against the royalty funds collected and to that extent have a priority over the claims of general creditors against this fund. The claim, however, is a general claim and not an administration claim."], "id": "68b83a40-9135-4052-9a3a-d5b228eef8fe", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["In the case of Roth v Roth (74 Misc 2d 135, 138), the court stated: \"The phrase 'all the terms and conditions\u2019 is unmistakable. It contemplates examining the entire decree, determining the component directives, and ascertaining whether they were substantially performed by the party seeking divorce. Noncompliance with an insignificant provision should not bar a finding of . Matters which are essentially organizational and optional, such as the noncustodial spouse\u2019s exercise of visitation rights, strictly speaking are not 'terms or conditions\u2019 that by their waiver would constitute nonperformance. (Van Vort v Van Vort, 62 Misc 2d 981 * * *) *963* * * But, the major mandatory decretal duties imposed upon a party seeking to rely upon the decree as a basis for divorce must nonetheless be 'all\u2019 substantially performed. Substantial noncompliance is still a disqualifying factor.\u201d"], "id": "8e204b55-55e8-4eb9-b62e-03d022c6daa6", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Even if a defendant technically breaches a contract, the breaches can be excused if the defendant has substantially performed his or her part of the contract. Dexter v. Brake, 46 Kan. App. 2d 1020, 1033, 269 P.3d 846 (2012). When discussing the doctrine of , this court has noted that it is \"'intended to protect the right to compensation of those who have performed in all material and substantive particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects.'\" 46 Kan. App. 2d at 1033 (quoting 15 Williston on Contracts \u00a7 44:52, p. 220-21 [4th ed. 2000]). But the doctrine does not apply when the parties, by the terms of their agreement, make it clear that only complete performance is satisfactory. 46 Kan. App. 2d at 1033-34. Nor does it apply if the breach was willful. First Nat'l Bank of Omaha v. Centennial Park, 48 Kan. App. 2d 714, 725, 303 P.3d 705 (2013)."], "id": "8fe38525-0a2f-4afa-8fd7-8cb092a25192", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Again, it appears without contradiction from the evidence of the entire case, that Hoffman, the contractor, in. the early part of April, 1868, ceased work, before the fifth payment' became due; that on the 10th of that month, the defendant by written notice insisted upon performance of the balance of the work then unfinished; that Hoffman did-not return-to finish the work, and that the defendant was compelled to finish it himself; that at the time of Hoffman\u2019s abandonment of the contract there were no doors hung on the basement and first or parlor floors of either house, and that a considerable part of the trimmings remained undone. It is, therefore, not \u00e1, case of imperfect performance, or of a defect in the manner of performance, but a clear case of non-performance of the contract, and consequently, the referee erred in finding, as matter of fact, a , which entitled Hoffman to the payment of the fifth installment and, as matter of law, that plaintiff is entitled to judgment against the defendant, and the judgment must be reversed,unless the further finding, that after the abandonment of the contract, the plaintiff caused the order to be presented to the defendant for payment, who waived the strict perform- \u25a0 anee of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument, to the plaintiff is not only supported by the evidence, but sufficient in law, when considered with the other real and undisputed facts of the case, to sustain it."], "id": "e6b6cdd5-d522-4716-862b-1c9e0d9b15c7", "sub_label": "US_Terminology"} {"obj_label": "Substantial performance", "legal_topic": "Business Law", "masked_sentences": [" of a contract will support a recovery of the contract price less allowances for any minor deficiencies in performance. (10 NY Jur, Contracts, \u00a7 324; Homecraft Alterations Corp. v Brill, 10 AD2d 732, affd 9 NY2d 978; Clothier v Kracko, 27 Misc 2d 920; Cordon Bleu, S.A. v BPC Pub., 451 F Supp 63; Dauchey v Drake, 85 NY 407; Porter v Traders\u2019 Ins. Co. of Chicago, Ill., 164 NY 504.) There is substantial performance of a construction contract where all the essentials necessary to the full accomplishment of the purpose for which the building has been constructed are performed with such an approximation to complete performance that the owner obtains substantially *222what is called for in the contract. (10 NY Jur, Contracts, \u00a7 328; Crouch v Gutmann, 134 NY 45; Spence v Ham, 163 NY 220.)"], "id": "7f281ab8-2b6f-46e2-86a9-9a69e04c8264", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Where there have been defects and omissions of this kind, the question whether there was or was not a is a question of fact for thd referee upon the whole evidence (Nolan v. Whitney, 88 N. Y. 648 ; Johnson v. DePeyster, 50 N. Y. 666 ; Glacius v. Black, Id. 145), with whose conclusion an appellate court will not ordinarily interfere."], "id": "2521db8f-b48e-4992-b4ba-651be771bf31", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The contract expressly specified that the down payment was to be paid \u201con the signing of the contract.\u201d The seller did not bargain for the buyer\u2019s promise to pay the down payment, but rather for payment itself. Doubtless, the seller would not have executed the contract without receiving what he believed to be the down payment. Accordingly, the buyer\u2019s nonpayment defeats her right to enforce the contract. Moreover, it constitutes a material \u201cfailure of consideration\u201d giving the seller the right to rescind the contract. (6 Williston, Contracts [3d ed], \u00a7814.) \u201cA material breach leaves less than , thus resulting in failure of the constructive condition which discharges the promisor. Also it is often said that a material breach results in failure of the consideration for the defendant\u2019s promise, and this is regarded as a defense *1032sufficient to defeat liability\u201d (Simpson & Duesenberg, 7 Encyclopedia NY Law, Contracts, \u00a7 1418)."], "id": "c1cd9c47-08e3-4c76-9a08-2af73fc2d69e", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["First, we shall find the general doctrine to be, that courts will lean against forfeiture, and will construe conditions going to defeat an estate in favor of the grantee so far as is compatible with the plain intent of the condition. Moreover a minute and literal compliance with the very letter of the condition is not required to support and preserve the estate as it is in respect to conditions precedent necessary for creating and vesting it. A [ *586 ] according *to the intent of the grant will prevent a forfeiture. Thus as to conditions in deed, it is held by - the best authorities (which I cite as condensed by Comyns) that \u201c it is sufficient if the substance of the condition be performed.\u201d 1 Roll. 426. \u201c So a condition that one deliver letters patent, and he delivers an exemplification of them; that he enfeoff, and he convey by lease and release ; that he give license to carry goods, and the party is disturbed by a stranger; that he withdraw his suit, and he discontin\u00fae. 1 Roll. 427. This is enough.\u201d Comyns\u2019 Dig. Condition, G. 14. Again, in the same title L. 1, it is said of conditions subsequent generally, \u201c If the condition is performed in substance, it is sufficient. So if it be performed^ as near the intent' of the con-' dition as can be. So as well when the intention is to defeat as to create an estate.\u201d"], "id": "f2c77411-3a05-4b54-a361-9304067847b2", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["This correspondence was such as to comply with these rules, and, therefore, to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf on the opening of navigation on the Hudson ; and it appeared, as a fact, that this navigation was open on the thirty-first of March, when the brick arrived, and that the time had also arrived when the defendant himself declared that navigation would be opened on the Rondout canal, through which it was probably designed by him to take these brick. But, as the defendant refused to accept or receive the brick which were offered, the point is presented whether they were in the condition which the contract required them to be in to subject him to the obligation of receiving and taking the brick, and paying the price for them. At the time when the brick were unladen upon the wharf they were fourteen in number short of the contract quantity, and in the warehouse receipt, which was given on the sixth of April, when they were taken in store, it is stated that about one hundred of the brick were broken. When these brick were broken in this manner does not appear otherwise than by inference from the evidence. They do not seem to have been handled, or moved in any manner, after they were unladen from the steamer on the wharf until they were taken into the warehouse; and there is ground, therefore, for inferring, either that the brick were broken when they were laden on the steamer or in her transit across the ocean, or in their delivery from the steamer on the wharf. No intervening circumstance appears to have arisen which would account for the breaking of the brick in any other 'way, and they are stated to have been in this *253condition, at the time when they were received in store. Under the contract, as the brick were to be imported by Merchant & Co., they were at their risk until their delivery to the defendant upon the wharf; and, as these brick were broken either when they were laden upon the steamer or during their carriage, or in the process of unlading them, that risk and loss was upon Merchant & Co., and not upon the defendant. That they were short in number and broken in this manner appeared by the plaintiff\u2019s evidence upon the trial, and this fact was made a ground for the support of a motion to dismiss the complaint at the close of the plaintiff\u2019s evidence. If the brick in this condition had been accepted and received by the defendant, the contract might be held to be so far performed as to subject him to liability for the price, less the reduced value of the broken brick and the value of those not delivered at all, for the case then would present the fact of a of the agreement, which would render the defendant liable to this extent. (Clapp v. Thayer, 112 Mass., 296; Dauchey v. Drake, 85 N. Y., 407, 411.) But the fact which was essential to bring this case within that rule did not exist, for the defendant at no time accepted or received the brick, or any portion of them. A delivery order was obtained for the brick, which is stated to have been indorsed and sent to the defendant when the goods were entered at the custom-house; but this delivery order was not retained by the defendant, but it was returned to the witness, Merchant, without any explanation or statement whatever with the bill which had been rendered for the brick. This bill is dated on the 1st of April, 1886, and the import of the evidence is that with the order it was returned soon after that date, and not later than April fifteenth, to Merchant. There was, therefore, no acceptance of the brick through the medium of this transaction, as there might have been if the order had been retained by the defendant. (Hayden v. Demets, 53 N. Y., 426.)"], "id": "b6f4e53c-2e9a-4759-93e7-02b79e2940f1", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Since their claim can thus be based, at best, on , the general contractors have failed to prove the *914facts necessary to sustain any recovery by them on the contract as set forth in their first cause of action, because \u201c the contractor cannot recover the entire contract price when defects or omissions appear, for he must show not only that they were unsubstantial and unintentional but also the amount needed to make them good, so that it can be deducted from the contract price and recovery had for the balance only.\u201d (Blanchard v. City of Saratoga Springs, 241 App. Div. 193, 194-195 see, also, Spence v. Ham, 163 N. Y. 220.)"], "id": "c5c8daf7-61d0-4e03-902e-865076c7e211", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The plaintiff and his assignors have a contractual right, accrued, liquidated, and in no sense contingent, to these bonus payments. The amounts were determined and the obligation to make the payments became fixed when the home office in Italy approved the recommendations of the director of the New York branch. It is plain that this was done in accordance with the custom of many years standing, and that the plaintiff and his assignors had long relied upon these semiannual bonus payments as constituting part of their compensation. I do not think it is important that the plaintiff and his assignors were prevented by the outbreak of war and by the taking of possession of the bank by the Superintendent of Banks from continuing their employment after December 11, 1941. The payments would have been made to them on or about December 15, 1941, and it seems to me that by December 11th there had *36been by the plaintiff and his assignors of the services which they were required to render for the second half of 1941. It is not as if the plaintiff and his assignors had abandoned their employment before the termination of that semiannual period, or as if they were discharged. They were simply prevented from working any more by forces beyond their control and that of their employer."], "id": "194b0b7e-83d5-4cbd-af43-dad397d9f25f", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Though the building is finished and in possession of the owner, still if the contractor, in erecting it, has materially departed from what was agreed upon\u2014if he has failed substantially to do what was specified and stipulated for in the contract\u2014he can recover nothing, and practically forfeits to the owner what is done. Smith v. Brady, 17 N. Y. R. 173. This is a stringent, but healthy and necessary rule, to secure the faithful performance of contracts; but as the penalty it imposes upon the defaulting contractor is a severe one\u2014in this case involving a loss of labor and materials valued at over four thousand dollars\u2014the court, in applying the rule, should be well satisfied that the case is one coming clearly within it, and that the contractor has utterly failed to show a of his contract."], "id": "a9114600-a19b-48a3-9177-a6a552332435", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["*395\u00ab*#*** The law does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver, nor does it deny to him the right so to occupy and still insist upon the contract. The question of waiver of the condition precedent, will always be one of intention, to be arrived at from all the circumstances, including the occupancy. To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true, that such contract embraces a variety of particulars, and that slight omissions and inadvertancies' may sometimes very innocently occur.\" These should be indulgently regarded, and they will be so regarded, by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires, nor in holding him to a ."], "id": "496e24a7-efd9-4fe4-b523-63c47940b1e6", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Thus, while it appears that by the strict rule of law, Wheeler\u2019s death would defeat the legacy to Lester, yet under equitable principles, where the condition is capable of , the decease of the first legatee, or of the party to whom he is to pay in order to obtain the legacy, will neither forfeit the legacy nor extinguish the condition. The right to perform the condition is a vested interest in the legatee, and the right to reap the benefit of performance a vested interest in the party to be paid, either of which is transmissible to executors or administrators in case of death."], "id": "c04f5d67-a01e-4399-8e28-dfe38b9e8bbd", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["To the same effect also see Nolan v. Whitney (88 N. Y. 648). This claimant is exactly within the rule as laid down by those cases. He acted in \u201c good faith \u201d and \u201c intended to comply with the contract \u201d and he did \u201c substantially comply with it.\u201d The value of the concrete as originally laid in the six slabs to all intents and purposes was the same as that laid in the second set, and so under the doctrine laid down by Judge Cardozo in Jacob & Youngs v. Kent (supra) the State would not have been entitled to deduct anything from the contract price payable to claimant upon the completion of his contract even if it had attempted to do so. But it did not attempt to do that. After taking the cores the State was fully aware that there had been a of the contract. It was thus in a position to say to the contractor, \u201cWe discover that a small portion of this concrete is thinner than seven inches and we propose to withhold a certain amount from the contract price as an allowance to the State by reason of this thin concrete.\u201d But it did not say that. It compelled the contractor to pull out the six slabs and lay them over at great expense before it would pay him any part of the sum due him. This it clearly had no right to do because the slabs as already laid were a \u201c substantial \u201d performance of his contract as we understand all the authorities in this State on that subject. The claimant is clearly entitled, therefore, to be reimbursed for the expense that he was put to in taking out the six slabs and relaying them in the amount of $1,451.02."], "id": "871ae085-a5ba-4ad1-8a49-b2dc96ea535e", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The only exception to this rule arises from the application of the principle of \u201c .\u201d This principle is of recent growth, and has been evolved by our courts to mitigate the rigors of the rule above stated. It is limited in its application, and is well defined. A party may recover for the performance of a contract not only when he is able to show exact performance, but substantial performance will suffice. In defining substantial performance, the Court of Appeals has said: \u201c It is now the rule, that *229where a builder has in good fadth intended to comply with the contract, and has substantially complied with it, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects.\u201d Woodward v. Fuller, 80 N. Y. 312, 315. Again, the court has said: \u201c It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance ; but the performance need not in all eases be literal and exact. It is sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially, and then he may recover for his work, notwithstanding slight or trivial defects in performance, for which compensation may be made by an allowance to the other party.\u201d Nolan v. Whitney, 88 N. Y. 648, 649. The italics in the foregoing quotations are ours. This principle has been defined and limited, as above, in many other decisions. Spence v. Nam, supra; People v. Tompkins, supra; Schultze v. Goodstein, supra; Easthampton L. & C. Co. v. Worthington, supra; Norton v. United States Wood Preserving Co., 89 App. Div. 237; Smith v. Ruggiero, 52 id. 382; Holl v. Long, 34 Misc. Rep. 1. So we find that the claimant could not recover, were he in this court claiming performance of the contract, under these circumstances, because he could not show exact performance, and the facts negative any contention of substantial performance. It is a fundamental essential to recovery for substantial performance, that the failure to perform exactly was inadvertent and unintentional. Here, it would have been wilful and deliberate, and after protest by the state. Furthermore, where a recovery is had for substantial performance, the claimant cannot recover the contract price, but only the contract price less the amount which it *230would cost the adverse party to secure or complete exact performance. A party can never profit by his failure to perform exactly. On the contrary, he must compensate the adverse party for his failure. The foregoing is true where the claimant is contending for compensation after alleged performance. The principle of substantial performance has no application whatever in advance of any performance at all. That is, the claimant cannot assert a positive right to omit exact performance, and to make substantial performance in advance of doing the work; much less can he predicate a demand for damages, on a refusal by the state, at that time, to accept a substituted performance in lieu of exact compliance with the contract provisions. See cases cited supra."], "id": "fa841676-c50b-40e4-b611-edb963ad8ac4", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Therefore, on this one element of plaintiffs rescission claim, breach of the agreement/warranty, it establishes as a matter of law that one occurred, and defendant fails to raise any issue of fact warranting a trial thereof. But that is only the beginning. On a claim for rescission, the breach must be shown to have substantially defeated the expectation of the parties to the bargain. Moreover, in the event of a nonfulfillment or nonoccurrence of a condition precedent thereby excusing all performance by the plaintiff, the question remains whether defendant raises an issue of fact whether such \u201cnonoccurrence of [a] condition may yet be excused by . . . forfeiture,\u201d a doctrine which holds that \u201c \u2018[t]o the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the *359non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.\u2019 \u201d (86 NY2d at 691, quoting Restatement [Second] of Contracts \u00a7 229.) This is not a question of of the condition precedent which, it was held in Oppenheimer, \u201cis not sufficient\u201d to satisfy the condition; defendant is thereby relegating to relief, if at all \u201c \u2018under the contract, [solely] through excuse of the nonoccurrence of the condition to avoid forfeiture.\u2019 \u201d (86 NY2d at 692, quoting Brown-Marx Assoc., Ltd. v Emigrant Sav. Bank, 703d 1361, 1367-1368 [1983].) The parties have briefed the matter almost entirely as a question of material breach for rescission. But it is clear that both must be addressed. It is to these issues that the court now turns."], "id": "f78ea3fb-6ccc-45b8-bf89-62148692f422", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The defendant in her answer denies with the provisions of said decree and sets forth as a first affirmative defense that plaintiff has not substantially performed; as a second affirmative defense, that subdivision (5) of section 170 of the Domestic Relations Law is unconstitutional; and, as a third defense, that plaintiff husband was required to come in with \u2018 \u2018 clean hands \u2019 \u2019. Plaintiff herein obtained a unilateral Mexican decree subsequent to separation and \u2018 \u2018 remarried \u2019 \u2019. The latter defense was presented for the first time at the time of trial and is disposed of by Tantleff v. Tantleff (60 Misc 2d 608). In Tantleff, plaintiff husband brought an action pursuant to subdivision (6) of section 170 of the Domestic Relations Law, and the court held that \u20181 subdivision (6) is clearly unconcerned with the conduct and behavior of the parties, as a condition for granting each a right to divorce. The statutory intent is that such right becomes absolute, at the expiration of the two-year period, provided only that the separation agreement has been duly performed * * * Certainly the wording of the statute itself effects no denial of the [plaintiff\u2019s] right to proceed with his newly conferred privileges *983merely because of his alleged misconduct The alleged misconduct was the procurement of a Mexican divorce unilaterally between the time of filing the agreement and the commencement of this action and remarriage. In Tantleff, the court continues (pp. 611-612): \u201c Defendant relies strongly on the doctrine of estoppel in pais, based on plaintiff\u2019s remarriage following the Mexican decree. Charging defendant [sic] with perverting the provisions of the new statute by \u00a3 asking a Court of equity to grant him a divorce against his lawful wife whom he represents to the world he has already divorced, \u2019 defendant points to plaintiff\u2019s bigamous conduct as well as the alleged humiliation sustained by defendant as bearing on his right to seek equitable relief. While the doctrine of unclean hands has occasionally found expression in matrimonial actions (Packer v. Packer, 6 A D 2d 464), it has not generally been employed so as to bar plaintiff\u2019s right to divorce solely on the basis of his prior activities in obtaining a unilateral foreign decree and re-marrying thereunder."], "id": "9f6a19ae-d03f-4bbe-88f4-2708531674dc", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Considering only the evidence and inferences that tend to support the trial court's finding that appellee substantially complied with the settlement agreement and after disregarding all evidence and inferences to the contrary, see Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002), we conclude that URI established that there was no willful and material departure from the notice provisions of the agreement that would prevent . Because there is evidence supporting the findings and conclusions of the trial court, we overrule Kleberg's fourth issue."], "id": "696974cc-8118-4153-912d-1d52ddc08d61", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["In addition, \" is in direct contrast to the concept of material breach.\" Dexter, 46 Kan. App. 2d at 1034. Thus, \"[i]f a breach is material, substantial performance has not been rendered.\" 46 Kan. App. 2d at 1034. A breach is material if one party receives something substantially less or different than he or she bargained for. 46 Kan. App. 2d at 1034."], "id": "80ebd253-f562-4dbd-b8cf-49b07122e05f", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The service requirements and verifications were conditions precedent to be performed by the plaintiff. As a general principle of law conditions agreed to by a party to a contract must be performed unless the performance thereof is waived or excused. (Noble v Higgins, 214 App Div 135, affd 243 NY 538; Witherell v Lasky, 286 App Div 533; 10 NY Jur, Contracts, \u00a7\u00a7 298, 351.) In regard to conditions precedent the courts have recognized that failure to perform a condition may be excused where there has been . (Witherell v Lasky, supra.) In Witherell the court stated *192(p 536): \"Although we recognize the harsh results which may be occasioned by a failure to perform a condition precedent are often softened by the doctrine of substantial performance (Jacob & Youngs v Kent, supra; Spence v Ham, 163 NY 220; Van Clief v Van Vechten, 130 NY 571), we cannot, on the other hand, excuse a complete failure to perform without either a valid reason for noncompliance or even an attempt to perform, the prerequisite considered by the parties sufficiently substantial to make it a condition, precedent to payment. (Schultze v Goodstein, 180 N. Y. 248; Smith v Brady, 17 N. Y. 173.) Substantial performance might make compliance with an express condition unnecessary, but only when the departure from full performance is an inconsiderable trifle having no pecuniary importance. (3 Williston on Contracts [Rev. ed.], \u00a7 805.)\u201d"], "id": "0ff7dd26-9eea-4478-a757-6ab1ae0c6b09", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Defendant contends that plaintiff is not entitled to recover any damages because plaintiff breached the contract by failing to complete the demolition and clean-up required by the contract. A contractor can recover on the theory of only where the failure of performance is relatively slight (Callanan Indus. v Smiroldo, 100 AD2d 717, 718), and we agree with defendant that plaintiff\u2019s performance did not satisfy the requirement (see, Carefree Bldg. Prods. v Belina, 169 AD2d 956, 957). It is the general rule, however, that a party to a contract cannot rely on the failure of another to perform when he has frustrated or prevented the performance (see, Kooleraire Serv. & Installation Corp. v Board of Educ., 28 NY2d 101, 106), and we agree with Supreme Court\u2019s finding that in the circumstances of this case defendant\u2019s failure to pay for the work performed by plaintiff justified plaintiff\u2019s refusal to complete the project (see, Picciano & Son v Olympic Constr. Co., 112 AD2d 604, 607, appeal dismissed 66 NY2d 854)."], "id": "770d71d2-529b-428d-b5a2-8b7ebacb6287", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["In Witherell the court denied recovery of the final payment under a building contract where the contractor failed to perform a condition precedent. The contract expressly provided that \"Before Payment, the Contractor shall submit evidence satisfactorily to the Owner that all payrolls, material bills and other indebtedness connected with the work have been paid.\u201d The rationale for the court\u2019s conclusion was that the contractor not only failed to submit evidence of payment of all the indebtedness but in fact had not actually paid all of the material bills. It appears that the court in Witherell would have allowed the contractor to recover on the grounds of if the contractor had in fact performed the underlying obligation of paying the bills and had only failed to submit the necessary proof of payment."], "id": "e27789ec-b430-4f56-89af-e3e7bd812155", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["This was a complete change of front on the part of the defendant, and a surprise to the plaintiffs. That the plaintiffs were anxious to carry out their part of the contract is apparent all through the case. They did not want to crowd the defendant, or even appear to do so, but they never intended to abandon their contract or relieve the defendant from its obligations. There was on the part of the plaintiffs, and but for the acts of the defendant there would have been literal performance."], "id": "4262c32f-8dca-45fc-a91e-81df21862b23", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["There can be no question here of acceptance and waiver of defects by the defendant. The present situation is analogous to a house constructed on someone\u2019s land; that person has no choice in accepting the performance of the contract. (See Cawley v. Weiner, 236 N. Y. 357.) Moreover, since there has been no , there can be no recovery in quasi-contract. (See Steel, Stor. & Elevator Constr. Co. v. Stock, supra.)"], "id": "e9538336-abcb-4bfe-b512-f828e642db3e", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["*1074I think the evidence here supports the promise claimed, and establishes a by the plaintiff, that evinces an acceptance of and a reliance on the promise, and is more than sufficient to constitute a good consideration in equity. (See Young v. Overbaugh, supra.) The plaintiff is, therefore, entitled to an enforcement of the parol agreement to convey the land."], "id": "bc84e6f5-7588-410d-829a-67f0788eb1e6", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The authorities cited by the petitioners for a contrary result are not in point. Strianese v. Met. Life Ins. Co. (221 App. Div. 81); Fink v. Fink (171 N. Y. 616); Matter of Schiffer (135 Misc. 830); Seavers v. Met. Life Ins. Co. (132 id. 719); Orcutt v. Modern Woodmen of America (213 App. Div. 530), and Schoenhols v. N. Y. Life Ins. Co. (234 N. Y. 24) were all cases in which identified individuals were named as the particular payees of the respective policies and the insured attempted to divest their contingently vested rights, but not only failed in the performance of the acts requisite for that purpose, but omitted even the which might have resulted in giving rights to the persons whom they desired to substitute, under the doctrine of such cases as Luhrs v. Luhrs (123 N. Y. 367); Lahey v. Lahey (174 id. 146) and Hall v. Prudential Ins. Co. (132 Misc. 162). While the policy in Matter of Bongiovanni (147 Misc. 830) was of the industrial type, neither the authorization for payment nor the policy itself were delivered to the respondent by the insured prior to her death, and, in fact, he never heard of the former prior to that event. It is, therefore, obvious that whereas the decedent in that case may at one time have had an intention to benefit the respondent by the proceeds of the policy, this intention was never consummated by any of the methods which have been demonstrated in the case at bar."], "id": "abcc7166-dc73-47c7-911e-2a1caa321215", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["There is no evidence that repairs were commenced during the period beginning in February, 1972 when the department invoked section 143-b of the Social Services Law and ending in December, 1972 when the premises were damaged by fire. Mrs. Wegner contends that performance of her part of the agreement was rendered impossible as a result of the fire and that she is therefore entitled to the funds which were reserved for repairs. In promises for an agreed exchange, a promisor is discharged from the duty of performing his promise if of the return promise is impossible because of the nonexistence, destruction or impairment of the requisite subject matter (Restatement, Contracts, \u00a7 281). Since Mrs. Wegner was prevented from making repairs subsequent to the fire, the department is discharged from its contractual duty to release the funds as required for the purpose of repair."], "id": "b720635d-28f1-4edb-957c-ecb1e0b37291", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["\"The will of the electors expressed at an election, of which legal notice has been given, may not be defeated by the failure of officials to carry out directions intended to make the machinery of election more effective. The provisions of statutes intended for the purpose are directly rather than mandatory. In such case of a statute is sufficient, and in some cases even failure to perform may be disregarded.\u201d (Burke v Kern, 287 NY 203, 218.)"], "id": "8b26768c-73c2-48ad-8402-8d8d973af83b", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["\u201c The term \u2018 \u2019, as used in connection with a building and construction contract, is a relative term, and there is no fixed formula, or mathematical rule, for determining whether or not such a contract has been substantially performed. Accordingly the question of substantial performance is one to be determined in each case with reference to the existing facts and circumstances \u201d. (17A C. J. S., Contracts, \u00a7 509, subd. b, pp. 821-822.) In Marshall v. Louron Homes (24 A D 2d 574, 575), the Appellate Division of the Second Department held that 1 \u2018 it was for the jury to determine whether the *895builder had completed the contract either fully or substantially \u201d."], "id": "107bfcd9-f25f-45da-98ec-7291165b787f", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Since this was an entire contract so far as the clearing, grading and cement work is concerned, my conclusion that defendant\u2019s breach of the contract justified plaintiff in terminating it and in hiring other contractors to complete its work, makes it unnecessary to determine the reasonable value of the work completed by the defendant. There can be no partial recovery by a breaching contractor for the reasonable value of his work unless it amounts to of the entire contract. (Steel Stor. & Elevator Constr. Co. v. Stock, 225 N. Y. 173.)"], "id": "33b3f25c-34b2-4fbb-b7b3-1e8d664bb178", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Outlining the public policy which underlies the concept of what we now call a \u201cconversion divorce,\u201d Judge Fuld noted that, if a reconciliation has not been effected within the statutory period following the separation, \u201cthe Legislature has concluded, and reasonably so, that the parties are irreconcilable and the marriage dead.\u201d (Gleason v Gleason at 35.) Judge Fuld found that the legislative design was to render separation decrees and agreements a basis for divorce, and the \u201cdeliberate failure\u201d of the legislators to provide any defenses to these grounds evinced and confirmed their intention of abandoning the traditional fault approach to divorce and permitting the termination of marriages if there was no longer a viable marriage. (Id.) The vital and operative requirement was that the parties live apart for at least the statutory period pursuant to a separation decree or agreement for which there is satisfactory proof of . As Judge Fuld noted, the real purpose of the no-fault provisions was to sanction divorce on grounds unrelated to misconduct; the separation decree or agreement was simply intended as evidence of the authenticity and reality of the separation."], "id": "48811732-3a6b-4740-be0d-8ec0feae8090", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The defense of the Statute of Frauds is thus unavailing. Nor does the circumstance that plaintiffs advanced a total sum of $62,897.45, and not the full amount of $65,000 set forth in the loan agreement, debar them from asserting a claim against defendant. That slight deficiency played no part in the corporation\u2019s and defendant\u2019s failure to perform their obligations under the agreement. Plaintiffs\u2019 up to the time of presentation of additional creditors\u2019 claims (a considerable portion of which had been personally indorsed or guaranteed by defendant) far exceeding in amount those originally represented, is a sufficient answer to Ms contention that *96he is relieved of responsibility by reason of plaintiffs \u2019 breach in that respect of the agreement."], "id": "4289bd46-58c3-4655-8177-a068adbc08ca", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Moreover, Kleberg does not challenge the evidence URI presented in support of its defense. In order to challenge URI's defense of substantial performance, Kleberg must identify those portions of the record that show URI willfully departed from the terms of the agreement or omitted essential points. See id. Kleberg fails to identify any portion of the record which shows that URI deliberately departed from a material stipulation in the agreement pertaining to the delivery of the notices. Kleberg also does not argue that URI failed to meet its burden of proof in proving that they substantially performed in accordance with the notice provision of the Agreement. See Patel, 86 S.W.3d at 307."], "id": "bf761128-94a1-4b4f-b491-7a5dce87530e", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Whether relief should be granted or denied here is a question which is addressed peculiarly to the conscience of the court, whose province in the equitable action of specific performance is to do equity and compel fair dealing and the court is free to do that which its conscience dictates. In arriving at a determination the court must consider the provisions of the lease under which 95% of the rents paid by Powderly are applicable to the purchase price of the property under the lease option, the extensive improvements made by Powderly to the real property, his of the lease covenants, and the insistence of Colonial in claiming the forfeiture for failure to pay taxes without a prior demand for their payment (Jackson ex dem. Weldon v. Harrison, 17 Johns. 66), and its attempt to take advantage of Powderly\u2019s financial predicament."], "id": "c4148592-e737-4fe8-a530-831e010cb20d", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Moreover, even if we were to find this claim within our jurisdiction, we would find no cause of action stated. Fraud in the inducement makes a contract voidable and subject to rescission by the aggrieved party. (See, e.g., Hadden v Consolidated Edison Co., 34 NY2d 88, 98-100; Mix v Neff, 99 AD2d 180, 182-183.) Claimant relies on the former case and its inoperative holding that can provide *1050a basis for retirement benefits. The reason this holding was inoperative is because the Court of Appeals specifically found that fraud concerning facts which would have been grounds for discharge (and hence termination from the subject pension plan) was a potential complete defense to a claim for pension benefits. (See, Hadden v Consolidated Edison Co., supra.) The substantial performance doctrine is based on equitable considerations and such are not applicable where fraud is present. Thus it is not important that claimant\u2019s fraud, even though material, may not have substantially impaired the value of his performance. (Cf., Hadden v Consolidated Edison Co., supra, at 97, n 9, and at 99-100.) What is decisive is Hadden\u2019s ultimate finding that if plaintiff\u2019s fraud prevented defendant from discharging him prior to retirement (and hence denying him benefits), then his would-be pension payments could legitimately be terminated when his fraud was exposed (see, supra, at 99), notwithstanding the performance and \"consideration\u201d theretofore rendered by claimant (see, supra, at 97-98). In fact, this is what eventually happened in Hadden. (See, Hadden v Consolidated Edison Co., 45 NY2d 466.) Here, Mr. Kutas\u2019 fraud did not merely prevent the State from retiring him, it induced defendant to hire him in the first place. Thus claimant\u2019s argument that his retirement benefits will cost the State less than if a younger man had filled his job is similarly beside the point. All the material authorities claimant cites on this issue suffer the same critical distinguishing feature, to wit, they all specifically make exception for fraud. (See, Hadden v Consolidated Edison Co., 34 NY2d 88, supra; Manowitz v Senter, 62 AD2d 898, 903-904; Matter of Haugh v Levitt, 33 AD2d 838, 839.)"], "id": "ceafff50-8147-4439-ab7b-5b3bfcf0c8ad", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The doctrine of is usually applied to construction contracts but is not limited to such actions (Hadden v Consolidated Edison Co., 34 NY2d 88; Lenhart\u2014 Altschuler Assoc. v Portner, 27 Misc 2d 439). What constitutes substantial performance is a subjective decision (Hadden v Consolidated Edison Co., supra, p 96). The case of Triple M. Roofing Corp. v Greater Jericho Corp. (43 AD2d 594) is particularly significant because it involves two roofs which remained respectively 15% and 30% incompleted and the court *1058held that the evidence failed to establish substantial performance by the roofer, citing Fox v Davidson (36 App Div 159) where the failure to complete only 5% of the total work did not constitute substantial performance. The court went on to say that \"the law is well settled that the party who inexcusably defaults may not recover in quantum meruit though the defendant has received some benefit.\u201d In effect the obligation to pay for the partially completed roofs was discharged. (See, also, Spence v Ham, 163 NY 220; Phoenix Hermetic Co. v Filtrine Mfg. Co., 164 App Div 424; Richardson, Contracts [5th ed], \u00a7 427.)"], "id": "a5560697-f186-4319-8c9b-bc2156bbf935", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Subdivision (5) also contains the proviso that in order to secure the divorce satisfactory proof of of all the terms and conditions of the separation decree must be submitted by the plaintiff. This language not only envisions, in the case of a successful wife, remaining separated, and in some cases complying with visitation privileges, but also an unsuccessful husband\u2019s concomitant obligations, including the payment of alimony. There is nothing repugnant to the public policy of our State in permitting the unsuccessful spouse in a separation action to obtain a \u201c conversion \u201d divorce. To hold otherwise might only serve to force such unsuccessful spouse *806to seek relief in some other jurisdiction and to continue one of the very evils which the divorce reform law intended and attempted to eliminate."], "id": "e3fc7f32-1cd5-46e6-a565-dfcd25450d72", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["I find that there was not a of the contract; but the defendant accepted the part performance made with full knowledge at the time that substantial performance could not be made and received substantial benefit from such part performance. I think under the circumstances an implied contract arose to pay the reasonable value of the part performance (Hall v. New Hartford Canning Co., Ltd., 153 App. Div. 562; McDonough v. Evans Marble Co., 112 Fed. Repr. 637; Am. & Eng. Ency. of Law [2d ed.], 152, on subject contracts) which I find to be the sum of $186.50."], "id": "f8e9ad77-9c82-4c62-b31e-b2a56c0692c9", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The answer to each question should be- adverse to the defendant.. The covenant applied t^\u00a1 the plaintiffs\u2019 land and can be performed in no other place fully. The defendant\u2019s road, with which the contract was made, was a road of very much greater scope and significance than the short road. To go from the new station by this road east, the traveler must first go to Hunter\u2019s Point, a distance of three miles, and then again start by the defendant\u2019s road. There is some proof in the case that the old station is for the special advantage of the plaintiffs\u2019 lands as against the new station. The parties had the right to contract to suit themselves, and a court should give proper weight to that fact. Finally, the defendant is not bound to the plaintiff to keep even the new station at all for any given time. It is for its interest to do so at present, but it may move it or discontinue it. A covenant with the plaintiff is not answered by a performance in another place and with no guaranty of continuance. It seems to me, therefore, that there is not only no but a complete non-performance as to this covenant. The case does not fall within the cases cited. Generally, these cases arise in actions upon contracts for building and like contracts. If the performance is substantial and the defect can be made good with money, the action is upheld and justice done by compensation for defects. (Heckmann v. Pinkney, 81 N. Y., 211; Woodward v. Fuller, 80 id., 312, and Nolan v. Whitney, 88 id., 648, are such cases.) If this covenant had fallen short in size or cost of station or m time of construction, it might have presented a case to be tried as substantially performed. The land is surrendered and all liability to keep a station on it is abandoned."], "id": "1875827a-b0b5-4e06-8e97-c2bdebc917e5", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The first defense urged by the state is not sustained. A claimant is not always barred from recovery by failure exactly, to perform his contract. An omission may be so trivial as to be wholly disregarded. Or it may be substantial, and yet be of such a character and under such circumstances as to permit a recovery on the principle of . On the other hand, it may be such as to defeat any recovery whatever. The principles applicable need not be discussed at length. We have considered them in a rcent case. Stanton v. State, 103 Misc. Rep. 221, and cases cited. This contract involved a sum in excess of one hundred thousand dollars. The failure to dip the posts perhaps might be regarded as so trivial as utterly to be disregarded, particularly in view of the circumstances and cause of the omission, but claimants have shown it would have cost about seventeen dollars and fifty cents to dip them. There can be no doubt that this omission ought not to prevent recovery for substantial performance, on deduct*302ing the sum of seventeen dollars and fifty cents from the contract price."], "id": "3b96848b-0727-4939-804c-eba07ac1e1d7", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Plaintiff raises a variety of issues in opposition to the motion and in support of the cross motion for summary judgment dismissing the first affirmative defense. She first contends that she tendered substantially completed proofs well within the 60-day period but that they were refused pending completion of three small items as to actual cash value. She contends that such tender is sufficient either under a theory or under an estoppel theory."], "id": "d40e669a-e9d1-41df-8ce8-5372e9c6b794", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The omissions or deviations in this case amounted, in value to only $380.20 in a contract where the plaintiff was to receive $12,650 for erecting the buildings, and the amount allowed was not such as to show that the finding of a was erroneous. In Phillips v. Gallant (supra), the defects were found to be of the value of $75, where the amount to be paid for the work was but $800, and it was held that the court could not say, as matter of law, that because of the allowance of that sum the contract was not substantially performed. They declared it to be a question of fact, upon which the decision of the referee was conclusive."], "id": "10df5862-8e8e-4134-80d1-797cd55db297", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["At the conclusion of the joint trial, Neptune moved to vacate the Lien and dismiss the lien foreclosure action based upon IVM\u2019s failure to establish of the steel or concrete masonry contracts and upon Lien Law \u00a7 10 (1) for failure to file the Lien within eight months after the final performance of work. The court held that, based on the testimony and evidence introduced at trial, Big Poll was off the construction site no later than April 21, 2009. Accordingly, the filing of the Lien in January of 20105 occurred more than eight months after IVM stopped performing work for Big Poll. The court vacated the Lien pursuant to Lien Law \u00a7 10 (1) and dismissed IVM\u2019s foreclosure action. As a result of the vacatur of the Lien, the court also dismissed Neptune\u2019s counterclaim for wilful exaggeration pursuant to Atlas Refrigeration-Air Conditioning, Inc. v Lo Pinto (33 AD3d 639 [2d Dept 2006]), as a claim for wilful exaggeration is precluded if a lien is found to be invalid based upon any reason other than the wilful exaggeration. Accordingly, the IVM action was dismissed in its entirety."], "id": "bfbef4f3-b4ed-4c18-9a7c-302c473b9500", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["After some period of time (in this court\u2019s view at least a full year) passes during which the husband has substantially performed the directives imposed upon him by the separation decree, he can submit satisfactory proof of . This decision in no way adjudicates his ineligibility to ever demonstrate such grounds for divorce. We are finding only that at this point in time the record is overwhelming that plaintiff has not \u2018 \u2018 substantially performed all the terms and conditions \u201d of the separation decree."], "id": "a5a46907-cbe6-48e7-a886-1724ce42a32d", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["In order for a building contractor to be able to take advantage of the doctrine of , he must not be guilty of a willful or intentional departure from the terms of his contract. (See generally, 22 NY Jur 2d, Contracts, \u00a7\u00a7 317-320; 36 NY Jur 2d, Damages, \u00a7 51, at 92, and cases cited therein.) This doctrine, however, permits compensation for all defects caused by the contractor\u2019s performance. (Supra, citing Spence v Ham, 163 NY 220.) Under this rule the party sued is protected as to any damages he may suffer due to the contractor\u2019s failure to strictly perform and is entitled to the amount of damages in an action by the contractor. (Supra.) The contractor must prove that the defects or omissions were unsubstantial. (Spence v Ham, supra.) This he has not done."], "id": "151a8ca8-739b-4b42-8a2c-53c319045f24", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It is well-established law in those jurisdictions which follow the doctrine of Hochster v. De la Tour (2 El. & B. 678) that in bilateral engagements a breach of contract occurs by the act of a party in \u201c transferring or contracting to transfer to a third person an interest in specific land, goods, or in any other thing essential for the of ids contractual duties \u201d or by \u201c any voluntary affirmative act which renders substantial performance of his contractual duties impossible, or apparently impossible \u201d (Am. Law Inst. Restatement of Law of Contracts, \u00a7 318, b, c)."], "id": "3963a8a1-6220-49cc-ac05-6c54a9428cb6", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Although plaintiff does not explore it in so many words, its strongest claim to summary judgment is on the theory that it may undo the transaction because of the nonoccurrence of a condition precedent to closing, i.e., a proper update of the review files as required by section 7.2 of the asset sale agreement. As stated above, section 7 provides in unmistakable terms for a condition precedent to closing that defendant\u2019s warranties are kept current through the closing. (Merritt Hill Vineyards v *363Windy Hgts. Vineyard, 61 NY2d at 112-113.) Plaintiff therefore establishes as a matter of law the existence of the condition and its nonoccurrence. Although the case of Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co. (86 NY2d 685 [1995]) establishes that the doctrine of is not applicable (86 NY2d at 692), the doctrine of forfeiture is on these facts clearly invoked.3 First, if the nonoccurrence of the condition is not excused, defendant will \u201c Tos[e] [its] right to the agreed exchange after [it] has relied substantially, as by preparation or performance on the expectation of that exchange.\u2019 \u201d (86 NY2d at 692 n 2, quoting Restatement [Second] of Contracts \u00a7 229, Comment b.) Second, defendant unquestionably conferred a benefit on plaintiff when it delivered the loans it sold together with an assignment to plaintiff of the collateral. (Compare 86 NY2d at 692 [\u201cundisputed\u201d that party seeking to avoid nonoccurrence of condition \u201chas not. . . conferred a benefit upon defendant\u201d]; 86 NY2d at 694 [avoidance of forfeiture rationale presupposes that the party seeking to avoid it has conferred a benefit upon the other party].) Third, \u201c \u2018a court may excuse the non-occurrence of th[e] condition unless its occurrence was a material part of the agreed exchange.\u2019 \u201d (Id., 86 NY2d at 691, quoting Restatement [Second] of Contracts \u00a7 229.)"], "id": "81c9b282-a148-49d8-b32e-245548fc5e97", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It is unnecessary to decide plaintiff\u2019s claim that this agreement was in the nature of a building contract, as to which the *12full performance rule has been somewhat relaxed, since he has shown neither nor the cost of completing the work. In the. case of Spence v. Ham (163 N. Y. 220) plaintiff fell short of full performance of a building contract, and failed to recover for substantial performance because he failed to show the cost of completing the job. The court held that the amount to be recovered for substantial performance is the contract price less a fair deduction for defects and omissions ; and that plaintiff had the burden of showing the amount of such deduction."], "id": "26c1f9ba-f824-4771-bfcc-6bb164f59854", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["The phrase \u201c all the terms and conditions \u201d is unmistakable. \u2022It contemplates examining the entire decree, determining the component directives, and ascertaining whether they were substantially performed by the party seeking divorce. Noncompliance with an insignificant provision should not bar a finding of . Matters which are essentially organizational and optional, such as the noncustodial spouse\u2019s exercise of visitation rights, strictly speaking are not \u201c terms or conditions \u201d that by their waiver would constitute nonperformance. (Van Vort v. Van Vort, 62 Misc 2d 981; 16 N. Y. Jur., Domestic Relations, \u00a7 878; see Vitale v. Vitale, 37 A D 2d 963.) Indeed, in 1968 the original wording of the statute, \u201c duly performed \u201d was changed to \u201c substantially performed \u201d in order to avoid the impression that technical but minor noncompliances might bar divorce relief. (L. 1968, ch. 700, \u00a7 1.) But, the major mandatory decretal duties imposed upon a party seeking to rely upon the decree as a basis for divorce must nonetheless be \u201call\u201d substantially performed. Substantial noncompliance is still a disqualifying factor."], "id": "84004261-a26f-48d7-ac15-21e937e84a63", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["But it is insisted on the part of the defendants below, that this issue was an immaterial one ; that as the verdict does not find any specific diminution in the statutory dimensions of the centre arch of the bridge, it might have been the smallest conceivable, and therefore immaterial; that \u201c the verdict is so vague and uncertain as to every thing touching a forfeiture of the franchise, that no definite conclusion of law can be deduced frbm it;\u201d that \u201cit is wholly insufficient to warrant or authorize a judgment of forfeiture.\u201d We have already seen that this issue was upon the performance of one of the most material conditions of the franchise. The sovereign power that made the grant of the franchise also fixed this condition, as it had a perfect right to do. In doing this, we are bound to suppose that it was influenced by no idle capvice, but by an enlightened judgment of what was mate- [ *556 ] rial to the protection and preservation of all interests *concerned in the grant. It alone possessed at once the power to make the grant, and full discretion in its exercise. Where then is the power, short of that which fixed the condition, that can cither modify its form, or dispenso with its performance ? Who, under the adage oft invoked by delinquents, \u201c de minimis non curat lex,\u201d will say the precise opening of twenty-five feet between the centre arches of the bridge, prescribed by the legislature, is immaterial; that twenty-four feet, or even some smaller-dimensions, will do as well ? that a of this condition will satisfy every requirement of law or equity ? Will this court undertake to say so ? Has it any such dispensing power ? When the legislature, which alone could make the grant, and had the exclusive right to judge of and fix its conditions, has said that that opening shall be twenty-five feet, can this court say that any thing less than the prescribed dimensions will satisfy- the- requirements of the giant, or save the grantee from the consequences of a non-per*, forinance of its indispensable conditions ?"], "id": "f3547b21-c392-4728-967f-3dc025b1607d", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Bemembering plaintiff\u2019s letter of October 2d, offering to insert the advertisement for six months, for a price \u201cpayable January 1, 1889,\" and the contract, Exhibit No. 1, which says, \u201cTerms payable in cash, January 1, 1889,\u201d it becomes material to refer to defendant\u2019s Exhibit No. 3, which reads: \u201cNov. 27, 1888. \u25a0 J. G. Wilson, dr. to Leonard Scott Publication Co., [name under which plaintiff traded:] For advertising ^ page in Nineteenth Century for month of Oct., \u201988;\u201d and then follow the names of the nine other magazines, and continues: \u201c$35. Please remit.\u201d The presentation of this bill to defendant on November 27th, with the request to \u201cPlease remit,\u201d clearly indicated that plaintiff then considered that he had two separate and distinct contracts with the defendant,\u2014one to publish his advertisement for the month of October, for which the payment-of $35 was then due; and the other to publish for six months, beginning with November, but under which no payment would become due until January following. This was the condition of the case when plaintiff rested, and defendant moved for a nonsuit; for all of these exhibits of defendant were offered and received in evidence *455while plaintiff\u2019s only witness was under cross-examination, and the subsequent proceedings did not better plaintiff\u2019s case. This second contract, to publish for six months in ten journals, for an agreed gross sum of $168, was entire and indivisible; and plaintiff was required to perform the same in its entirety, by publishing the advertisement, as agreed, for the full term of six months, beginning with and including November, 1889; and this he did not do, for the proof shows that the same was published for only five months of the term, and he makes no excuse for his failure to publish for the last month of the term. The only reason, which can be inferred from the record, for plaintiff\u2019s failure to complete the publication is that he was fearful of his pay; but, if defendant had defaulted in making payment at the time agreed upon, the plaintiff should have either discontinued the publication, and sued for what work he had already performed under the contract, and for such damages as he had sustained by reason of the breach thereof, or completed the publication as agreed, and brought his action on the contract. But he has done neither, for he brings his action on an alleged contract which his proof not only fails to establish, but shows that another and different contract existed, which his proof further shows has not been substantially performed by him; as it cannot be said that publication for five-sixths of an agreed term is any more a of the contract than would be publication for the full term in five-sixths of the designated magazines. In Dauchy v. Tutt, 19 Wkly. Dig. 490, it is said: \u201cThe advertisements were not inserted within the stipulated time, and in the full number of papers, nor published the full agreed time in a great many of the papers,\u2014nearly five-sixths of the papers published short time;\u201d and held that the plaintiff could not recover. And Judge Van Brunt says, in Hazzard v. Hoxsie, (Sup.) 6 N. Y. Supp. 295, that a contract to publish an advertisement in the programmes used at three designated theaters is not substantially performed by publication in the programmes used at two of such theaters. It would seem that justice requires that upon the whole case the judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event; and it is so ordered. All concur."], "id": "77d2fcf1-ccc6-4e52-981a-77c9f2d94e78", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["Whether a franchise creates an \u2018 \u2018 indefeasible interest in the land constituting the streets\u201d (in the language of the Ghee opinion) or whether it is an \u201c incorporeal hereditament, an easement or a right of way \u201d (as said in the case against the Empire City Subway Co.), or whether it is merely a license which matures into a property right upon (as described in Matter of New York Elec. Lines Co.), it is, in any event, either immediately or ultimately an interest \"of a proprietary nature in public land. Keeping in mind, as I must, that, in operating its business, the evidence shows beyond dispute that all of the cables and equipment located in or passing through or under the city\u2019s streets are owned and controlled by the telephone company, and also that it has been shown conclusively that all of the physical cables and equipment owned or controlled by the defendant are either located in the Hotel Americana or in the buildings serviced by the defendant, and do not stand or pass through or under the city\u2019s streets at all, it is here that the plaintiff\u2019s reasoning in support of its contention\u2014 that the defendant cannot operate by means of the telephone company facilities without the defendant itself being enfranchised by the Board of Estimate- \u2014 -falls short of the mark."], "id": "003522f4-ac5b-4901-9afe-a7595e2122ba", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["On this latter aspect, defendant raises an issue of fact also. Because the condition was stated in the controlling document, the asset sale agreement (appendix A), in generic terms, and not with the specificity of a concrete event which would trigger plaintiffs duty of performance, it is appropriate to consider the materiality question in the context of the broader question of the dynamic involved, and with respect to whether the \u201cspecific matter that is the subject of the alleged nondisclosure\u201d (Siemens Solar Indus., supra at 82), here the August 31 draft report, is itself the material part of the exchange or whether it is merely a part of the broader context of disclosure concerning CyTech\u2019s inventory valuation already in plaintiffs hands at the time of closing. The court believes that defendant at least raises an issue of fact whether, in the context of this sophisticated commercial transaction by seasoned parties, and in the context of substantial disclosure contained in the bid documents of *364CyTech\u2019s condition, including the recent declining market for its oak hardwood collateral, nonoccurrence of the condition precedent solely by virtue of the failure to include the very recently obtained draft report, less than an hour before the parties closed, \u201cwas a material part of the agreed exchange.\u201d On this record, the question is one of fact for the factfinder. (Jacob & Youngs, Inc. v Kent, 230 NY 239, 243 [1921, Cardozo, J.]; see Sahadi v Continental III. Natl. Bank & Trust Co. of Chicago, 706d 193, 199 [7th Cir 1983]; compare Oppenheimer, 86 NY2d at 695 [albeit on a issue not present here and where the inferences are not conflicting].) For purposes of this aspect of plaintiffs motion for summary judgment, the inferences on these crucial questions are conflicting. Accordingly, on a theory of summary judgment rescinding the transaction by reason of the nonoccurrence of a condition precedent, plaintiff is still not entitled to a grant of its motion.4"], "id": "77eb6f1d-af09-4cbe-a201-d1cf2f7f51b2", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["If there is not a of a contract, but one party accepts the part performance made with full knowledge at the time that substantial performance cannot be made and receives substantial benefit from such part performance, an implied contract arises to pay the reasonable value of the part performance. By the decided weight of authority, recovery may be had for the value of the services actually rendered where the performance of an entire contract for personal services is prevented by sickness or death. (See 10 N. Y. Jur., Contracts, \u00a7 336, p. 311.)"], "id": "a7405b4e-4eb7-4878-9df0-2bf627f2ea86", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["On April 19, 2016 Fistes filed a petition for a writ of mandate against the District, naming GDL as a real party in interest. On April 27 Fistes filed an ex parte application for issuance of an alternative writ of mandate and a temporary restraining order. The District and GDL opposed the application. GDL argued it had \"begun and [was] nearing completion of its performance on the Project.\" (Italics omitted.) On April 27, after hearing argument from counsel, the trial court denied the application, but set a hearing on the petition for November 15, 2016.4"], "id": "aafeaf7c-2a3a-4863-ade1-5e01325dfdfc", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["It is often stated as a general rule of law that a condition precedent to vesting of a legacy must be strictly performed. In other cases a is all that is required. It seems generally that the apparently different results are dictated largely by the intention and purpose of the particular testator as revealed in his will. (Williams on Executors and Administrators [10th ed.], p. 1013; 3 Page on Wills, \u00a7 1288; 1 Boper on Legacies [2d Amer. ed.], p. 766.) Professor Page states the rule thus: \u201c Whether substantial performance, as distinguished from literal performance, is sufficient, is a question upon which there is a conflict of authority, which can be reconciled, in part, by determining in each case from the will what degree of performance testator intended to exact \u201d (3 Page on Wills, \u00a7 1288, p. 768)."], "id": "c34501b9-a3eb-4805-afe6-05cc8190e331", "sub_label": "US_Terminology"} {"obj_label": "substantial performance", "legal_topic": "Business Law", "masked_sentences": ["However it is abundantly clear from the evidence that plaintiff could not substantially comply with the original contract due to the injury sustained by the dog. Defendant was immediately informed of the injury and knew that could not be had, that is to say, he knew the dog could not be trained in an injured condition. Yet he permitted plaintiff to keep the dog and care for him, thereby receiving benefits from such part performance as plaintiff could give."], "id": "96057a2c-8768-483f-91ad-e7ebddfd06ca", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["Applying the rationale, New York courts significantly have eroded the enforceability of waivers generally, including lease waivers of tenant\u2019s rights in summary proceedings; for example, the procedural right of asserting counterclaims and setoffs which do not necessarily have the benefit of constitutional guarantee. (Withattan Realty Co. v H. Abraham, Inc., 18 Misc 2d 239; Levine v Ehrenberg, NYLJ, June 11, 1973, p 18, col 2; Steinberg v Carreras, 74 Misc 2d 32, revd in part 77 Misc 2d 774; Eversman v Okwodu, NYLJ, Feb 25, 1975, p 15, col 4, supra; Seabrook v Commuter Housing Co., 72 Misc 2d 6, supra, [involving inability to deliver occupancy]; Coulston v Pompey Knitting Mills, NYLJ, April 22, 1975, p 17, col 8; Weidman v Tomaselli, 81 Misc 2d 328 affd 84 Misc 2d 782 [right to recover attorney fees upon tenant default]; Colgate Constr. Corp. v Hill, 70 Misc 2d 646 [involving a jury trial waiver in home improvement contract]; Harwood v Lincoln Sq. Apts., 78 Misc 2d 1097, supra; Matter of Meachem v New York Cent. R. R. Co., 8 NY2d 293, 299 [involving waiver of workmen\u2019s compensation].)"], "id": "78adcd61-b37a-4041-9a14-33155d84cffd", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In Tunkl v Regents of Univ. (60 Cal 2d 92, 98-101, 32 Cal Rptr 33, 37-38, 383 P2d 441, 445-446), the Supreme Court of California identified several characteristics helpful in determining if an exculpatory agreement is in violation of public policy as follows: \"It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public wh\u00f3 seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.\u201d While the court in Tunkl noted that all of these factors need not be present in every case it found that in that case, which involved a charity hospital, a facility similar to the one here in issue, all of the factors were present."], "id": "ea2d3b5d-bde8-41dc-a074-b6a1633f91ba", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In determining the enforceability of such clause the primary question to be considered is whether in fact such clause is a \u201cpenalty\u201d as alleged by respondent tenant. The Rockland County Court recently found a lease provision requiring a $50 late fee if the rent ($405) was not paid within the first 10 days of the month, to be unconscionable and void. (See Spring Val. Gardens Assoc, v Earle, 112 Misc 2d 786.) In addition to using the standard of Weidman v Tomaselli (supra) to find the clause unconscionable, the court found the late fee clause not within the definition of \u201crent\u201d as per in Emergency Tenant Protection Act regulations, to which this apartment was subject. The prior lease had a late fee provision of $10 and this new $50 fee had not been approved by the division of housing, as required by law."], "id": "0c40edde-6f06-4795-89ff-c295647c44ea", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In reaching the opposite conclusion, the superior court relied primarily on Cruz , supra , 155 Cal.App.4th 1270, 66 Cal.Rptr.3d 725 and Thompson, supra , 112 Cal App.4th 327, 4 Cal.Rptr.3d 905, in which the courts construed contractual fee provisions broadly enough to include additional claims. We do not find those cases to be instructive. There is no indication the contracts at issue in those cases were adhesion contracts and the provisions at issue broadly allowed for the recovery of fees associated with a \" 'civil action ... instituted in connection with this Agreement' \" ( Cruz , at p. 1277, 66 Cal.Rptr.3d 725 ) and \" 'any dispute under [the] Agreement' \" ( Thompson , at p. 333, 4 Cal.Rptr.3d 905 ). (See Cruz , at p. 1277, 66 Cal.Rptr.3d 725 [prevailing party entitled to fees incurred defending tort claims, where lease provided: \" 'If civil action is *1099instituted in connection with this Agreement, the prevailing party shall be entitled to recover court costs and any reasonable attorney's fees.' \"]; Thompson , at p. 333, 4 Cal.Rptr.3d 905 [provision in share purchase agreement stating, \" '[t]he prevailing party in any dispute under this Agreement shall be entitled to reasonable attorneys fees incurred in such dispute,' \" was broad enough to encompass tort action for fraud].) By contrast, here, the clause at issue appears in a one-sided , which must be construed against Citibank, and is expressly limited by the title to collection costs. (See MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 8, 54 Cal.Rptr.3d 724 [provision allowing fees in \" 'any collection proceeding' \" limited to a discrete legal proceeding that involves collection of the debt].) Moreover, the court in Thompson distinguished between \" 'any action' \" and \" 'any dispute,' \" acknowledging that a defense brought as a cross-complaint was not *358an \"action,\" and the provision at issue here refers to \"costs and expenses of any legal action\" such that Thompson actually supports a narrower interpretation of the Citibank clause. ( Thompson , at pp. 336, 337, 4 Cal.Rptr.3d 905.)"], "id": "a3db35cc-b32c-441a-8195-4f86ceb291e7", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The Sonic II majority opinion focused repeatedly on the need for accessible and affordable arbitration, reasoning that these were key benefits of the Berman process that parties to an arbitration agreement had decided to forgo. We stopped short of defining the requirements for an acceptable arbitration framework, however, and emphasized that arbitration can be structured in various ways \"so that it facilitates accessible, affordable resolution of wage disputes,\" without necessarily replicating Berman protections. ( Sonic II , supra , 57 Cal.4th at p. 1147, 163 Cal.Rptr.3d 269, 311 P.3d 184.) So long as the arbitral procedure is relatively \"low-cost\" ( ibid . ) and provides a forum for wage claimants \"to pursue their claims effectively\" ( ibid . ), its adoption in lieu of the Berman process will not, in itself, be considered unconscionable ( id . at pp. 1147-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184 ). In short, when an requires arbitration, \"the unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks on a wage claimant that make the resolution of the wage dispute inaccessible and unaffordable,\" thus effectively blocking every forum for redress including arbitration itself. ( Id . at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.)"], "id": "771747f7-b8c9-4c4d-9a9c-2b7f30142b1b", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The existence of the fourth element of an in this case is underscored by the fact that the parties did not sign the lease until April 15, 2010, almost a month after the lease\u2019s March 10, 2010 start date. Apparently, defendant had already moved into the apartment before she was given a copy of the lease to read and sign. Clearly, if she had raised any concerns about any particular clause, she would have been forced to move out of her apartment less than a month after she moved in."], "id": "12bb0a1f-5a46-4f21-999a-7cf8fdfcd11e", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["Courts of other jurisdictions have refused to enforce arbitration clauses in credit agreements on the grounds of, inter alia, unconscionability or public policy. In Williams v Aetna Fin. Co. (83 Ohio St 3d 464, 700 NE2d 859 [1998]), the Supreme Court of Ohio held that an arbitration clause in an agreement for a home equity loan was unconscionable and unenforceable because of the unfairness of the fees and procedures pertaining to arbitration, because the arbitration clause was found in an agreement having some aspects of an , and because the arbitration clause itself appeared to be adhesive in nature. In Patterson v ITT Consumer Fin. Corp. (14 Cal App 4th 1659,18 Cal Rptr 2d 563 [Ct App, 1st Dist 1993]), individuals who borrowed money from finance companies brought a class action based, inter alia, on alleged violations of the California Consumer Legal Remedies Act, and defendant ITT petitioned to compel arbitration pursuant to an arbitration clause in the loan agreements requiring arbitration before NAF. In denying the petition to compel arbitration, the court stated: \u201cWhile NAF\u2019s rules and fees might be fairly applied to business entities or sophisticated investors and to claims for substantial dollar amounts, those same procedures become oppressive when applied to unsophisticated borrowers of limited means in disputes over small claims.\u201d (Patterson v ITT Consumer Fin. Corp., 14 Cal App 4th, at 1666, 18 Cal Rptr 2d, at 567, supra.) The court concluded that the arbitration clause was unconscionable and unenforceable. In Aetna Fin. Co. v McGhee (1993 WL 944559 [Ct Common Pleas, Ohio, Aug. 26, 1993, Sutula, J.]), enforcement of a clause requiring arbitration of disputes before NAF was denied on the ground of unconscionability in view of NAF rules, procedures, and fees. Moreover, it was not clear to the court whether the arbitrations were conducted before genuinely neutral officials or before those who depended on the lender for a \u201clarge volume\u201d of their business. In Baron v Best Buy Co. (75 F Supp 2d 1368 [SD Fla 1999]), *418the defendant lenders moved to compel arbitration before NAF of a class action alleging, inter alia, violations of the Truth in Lending Act (TILA) (15 USC \u00a7 1601 et seq.), but the court denied their motion on the ground that the arbitration clause was unenforceable and unconscionable. The court concluded, inter alia, that the arbitrator had not been shown to be efficient, inexpensive, and neutral. In Johnson v Tele-Cash, Inc. (82 F Supp 2d 264 [Del 1999]), a borrower brought a class action against lenders, including County Bank, charging violations of the TILA and Electronic Funds Transfer Act (EFTA) (15 USC \u00a7 1693 et seq.) by, inter alia, failing to inform him of high interest rates for short-term loans. The court held, inter alia, that the arbitration clause in the loan agreement was not unconscionable under Delaware law, but the arbitration clause contained in the note could not be enforced in regard to class claims under TILA and under EFTA because enforcement would contravene legislative policy to encourage class actions under TILA and under EFTA. In Lozada v Baker Oldsmobile (91 F Supp 2d 1087 [WD Mich 2000], supra), automobile buyers brought a class action against the seller and assignee of retail installment sales contracts, alleging, inter alia, violations of TILA. The court denied enforcement of an arbitration clause in the credit agreements on the grounds of procedural and substantive unconscionability. The court concluded (at 1105), inter alia, \u201c[b]ecause the arbitration agreement prohibits the pursuit of class relief, it impermissibly waives a state statutory remedy.\u201d"], "id": "4a28bfa8-5ef9-47ea-9806-3d84517532b9", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["\"An is a form contract created by the stronger of the contracting parties. It is offered on a 'take this or nothing' basis.\" Robin v. Blue Cross Hosp. Serv. , 637 S.W.2d 695, 697 (Mo. banc 1982). There is no dispute between the parties that the lease constitutes a contract of adhesion. In contracts of adhesion the court applies the \"reasonable expectations doctrine.\" Vergano v. Facility Mgmt. , 895 S.W.2d 126, 128 (Mo. App. E.D. 1995) ; Zemelman v. Equity Mut. Ins. Co. , 935 S.W.2d 673, 675 (Mo. App. W.D. 1996) ; Progressive Nw. Ins. Co. v. Talbert , 407 S.W.3d 1, 9 (Mo. App. S.D. 2013). \"The law [ ] protects expectations objectively reasonable, as consonant with the purpose of the standard contract -- to avoid bargains over details of an individual transaction to achieve lower cost possible only by mass transaction.\" Estrin Const. Co. v. Aetna Cas. & Surety Co. , 612 S.W.2d 413, 426 (Mo. App. W.D. 1981). \"Only those provision that fail to comport with those reasonable expectations and are unexpected and unconscionably unfair are unenforceable.\" Swain v. Auto Servs., Inc. , 128 S.W.3d 103, 107 (Mo. App. E.D. 2003). \"The reasonable expectations of the parties are gathered not only by the words of the supposed contract, but by all the circumstances of the transaction.\" Heartland Health Sys., Inc. v. Chamberlin , 871 S.W.2d 8, 11 (Mo. App. W.D. 1993)."], "id": "85268a2f-8f4d-4ded-b97b-4bf3b64aaf65", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["\u201cthe modern counterpart of the seafarer who attempted to steer a course between Scylla and Charybdis. If he refuses to sign the contract, he is faced with suspension of interest after the mandated 90 day period. If he signs the contract and cannot obtain the required releases, he is faced with a suspension of interest after the 30 day period . . . .We do not find the terms of said partial payment agreement to be \u2018fair, honest and reasonable.\u2019 Furthermore, we find that said partial payment agreement, in the instance of a fee owner with tenants who either have a bona fide claim or, in what amounts to legal extortion, contend they have a claim, is a violation of the transcendent requirements that claimants shall be paid just compensation. See, McKinney\u2019s Const. Art. 1 \u00a7 7. We find the partial payment agreement entered into between the State and Bobwin Real Estate Corp., Inc. a nullity and legally unenforceable. We find said partial payment agreement in violation of the Constitution of the State of New York. We reiterate our direction that the State shall pay the interest found due upon this award by this Court.\u201d In Sydney Family Corp. v State of New York (99 Misc 2d 731 [1979]), claimant was faced with several interested parties, all *359of whom refused to cooperate with claimant and supply general releases. In Sydney, Justice Silverman held that \u201cthe contract at bar, to the extent that it is interpreted to provide for an interest suspension, is an and unenforceable\u201d (at 736)."], "id": "04c02bd8-c8f1-4451-a629-421349b88093", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["Here there are two sophisticated parties dealing with commercial matters with which each is concededly familiar. Although most provisions, including the one concerning arbitration, are predetermined and incorporated into the standard form contract, a promoter has a clear choice. He can either agree to accept the contract with all its terms or he can refuse and decline to promote the concert. The consequences to the promoter of refusal to accept the contract are not as severe as those incurred by the weaker party in a true case. Here the promoter simply foregoes his opportunity to engage in a profit-making enterprise. If he continues to refrain from these engagements, he may have to terminate his role as music entrepreneur and assume a new livelihood. Certainly, the choice of changing one\u2019s line of business is not to be taken lightly. However, it is not so severe as to be considered no real choice at all."], "id": "723ffb40-1be0-408c-a96a-bd8198b88a15", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["First, there is some dispute whether qualified nonunion musicians are available. Even assuming that petitioner is correct that nonunion musicians are virtually nonexistent, this is not an appropriate case to apply the doctrine. Adhesion contracts traditionally involve parties of vastly different bargaining positions, with the *26stronger party exercising his power in such a way as to take advantage of the weaker party\u2019s lack of sophistication in such matters. (Jones v Star Credit Corp., 59 Misc 2d 189.)"], "id": "a892423d-3a6a-44c5-bffa-3b66770dbc72", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In January 2017, Nielsen filed a complaint against Applied and its two subsidiaries (AUCRA and CIC) (collectively defendants). Nielsen sought a declaration that the RPA is void and its provisions are unconscionable, and sought damages for defendants' misrepresentations and breach of the implied covenant of good faith and fair dealing. Nielsen alleged the RPA is an with unfair and unconscionable terms; the RPA was written and structured to purposely mislead Nielsen and to intentionally avoid and circumvent California insurance laws; and the RPA is an illegal contract because it was not filed with or approved by the California Department of Insurance (Insurance Department), as required by Insurance Code section 11658 and title 10 of the California Code of Regulations section 2268.1 Nielsen alleged \"EquityComp is the brainchild of Applied,\" which caused CIC to issue an approved guaranteed-cost workers' compensation insurance policy \"to give the appearance of compliance with the California insurance regulations, although CIC is never responsible for making payment on claims using its own money.\""], "id": "23b43bdc-6f05-4d32-8c77-4e2ffc80a79a", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["This is language which is typically contained in an \u201c.\u201d The phrase \u201cadhesion contract\u201d is shorthand descriptive of standard form printed contracts prepared by one party and submitted to the other on a \u201ctake it or leave it\u201d basis. The law has recognized that there is often no true equality of bargaining power in such contracts and has accommodated that reality in construing them (see Kessler, Contracts of Adhesion, 43 Col L Rev 629)."], "id": "2cf435d3-5353-40b6-9bd6-6047f8ba722f", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In Tunkl , supra , 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, our high court identified six characteristics typical of contracts affecting the public interest: \" '[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.' \" ( Id. at pp. 98-101, 32 Cal.Rptr. 33, 383 P.2d 441, fns. omitted.) Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest. ( Id. at p. 98, 32 Cal.Rptr. 33, 383 P.2d 441.) However, in Tunkl , the Supreme Court found all six factors were implicated and, on that basis, concluded that a release from liability for future negligence imposed as a condition for admission to a charitable research hospital affected the public interest and was thus invalid. ( Id. at pp. 94, 101-102, 32 Cal.Rptr. 33, 383 P.2d 441.) In making this determination, our high court found \"hardly open to question\" the fact that \"the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity.\" ( Id. at p. 101, 32 Cal.Rptr. 33, 383 P.2d 441.)"], "id": "018a97b0-3d90-4ef2-be19-da8740755fe4", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The fact that the Public Service Law and Public Service Commission exist underscores the public interest in the relationship between Con Ed and its customers (People ex rel. Delaware & Hudson Co. v Stevens, 197 NY 1, 9). However, I must evaluate the nature and extent of that public interest in *134order to determine whether Con Ed\u2019s exculpatory clause is void because it violates the public policy of this State. The scope of such an analysis was best enunciated in the case of Tunkl v Regents of Univ. of Cal. (60 Cal 2d 92). There the court considered (pp 98-101) the following six criteria as indicators that an exemption must be declared invalid: (1) \"[The contract] concerns a business of a type generally thought suitable for public regulation.\u201d (2) \"The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.\u201d (3) \"The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.\u201d (4) \"As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.\u201d (5) \"In exercising a superior bargaining power the party confronts the public with a standardized of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.\u201d (6) \"[A]s a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.\u201d"], "id": "9c740ff6-179c-44fd-b032-fc2b2f158624", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The Legislature has a goal to foster cooperative housing; this is not in conflict with the appellate decisions to include all leases under Real Property Law \u00a7 235-b. Cooperative tenants whose leaseholds are for extended terms and whose monthly charges are based on the actual or projected costs of maintaining the building should be held to their obligations under the lease, just as the owning corporation is held to its obligations. Placing the burden to remove the violations on the owner where the tenant either refuses or insists on enforcing his or her rights is a means of enforcing the housing standards set forth in the HMC. Placing the ultimate burden of repair expenses on the party who has freely agreed to bear them is not an injustice and does not impinge on the rights of a tenant to decent housing. It is common knowledge in New York that cooperative apartments are not necessarily inexpensive. Indeed, petitioner paid over $100,000 for her apartment. It cannot be said that the lease at issue is an from which the tenant needs protection."], "id": "30af1cf3-2a87-485f-98c8-03ca5fad5d7c", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["While Bartolata calls the plan a contract of adhesion, she in *1014effect points to the more central question of its legal significance. (A finding that the plan was an would not benefit her, because even the strictest construction of the plan\u2019s terms would leave her liable for draws.) It is settled law that without a specific provision in the contract of employment a commissioned employee cannot be required to repay draws when his employment ends (see, Posner v Precision Shapes, 271 App Div 435, 439; Carter v Bradlee, 245 App Div 49, 52, affd 269 NY 664). When an employee in a negative draw position executes an agreement to repay that draw, the agreement is void as lacking consideration (Hebberd & Co. v Blake, 175 NYS 478)."], "id": "d85fa5b1-3c21-4974-860e-a49b7df88478", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The doctrine is intended to protect the innocent consumer who has no real choice but to accept terms even if unreasonable to acquire items fundamental to a decent standard of living. This does not apply to a sophisticated music promoter in a commercial situation. Here, the alternative to the contract is lost profit; in a consumer\u2019s case, the alternative is a diminished standard of living. While New York\u2019s application of the adhesion contract doctrine to invalidate a grossly unfair contract or contractual provision has been extended somewhat beyond the necessities of life\u2019s situation from which it originated, it has not reached the type of sophisticated business dealings involved here."], "id": "261b5a69-4721-44d2-b7d3-6f57717ac536", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In Chandler v Aero Mayflower Tr. Co. (supra), the court said (p 135): \"In cases where, as in the instant controversy, questions of mistake and fraud are raised in connection with the formation of contracts limiting the liability of a common carrier, relevant circumstances and policies call for a not so strict application of pertinent principles of contract law to afford reasonable protection to the shipper. This is so because arrangements limiting liability contravene a strong public policy expressed in the common law come within a carefully defined exception to the general thrust of Section 20 (11) of *999the Interstate Commerce Act placing on the carrier absolute liability for damage, and are in operation attended by characteristics of an .\u201d"], "id": "425842be-27a4-48b3-8e6f-88bec726c638", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["Finally, just as the trial court here found the carriers' form contract was not controlling on the issue of independent contractor/employment status because it was an that the carriers entered into \"on a take-it-or-leave it basis,\" the Gonzalez court noted \"there was no indication that [the carrier] had any real choice of terms of employment or contract.\" ( Gonzalez, supra , 46 Cal.App.4th at p. 1594, 54 Cal.Rptr.2d 308.) The Gonzalez court concluded: \"The totality of the circumstances substantiates the ... conclusion that [the publisher's] carrier agreement, which purported to 'disavow' an employer-employee relationship, was a subterfuge to avoid the workers' compensation laws of California. 'The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.' \" ( Ibid. , quoting Borello, supra , 48 Cal.3d at p. 349, 256 Cal.Rptr. 543, 769 P.2d 399.)"], "id": "7e5d89d9-f31c-4905-bbe7-1f33642eed8a", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["earlier form of consumer . See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 366 n.1 (E.D.N.Y. 2015). A shrinkwrap agreement differs from the four online \u201cwrap\u201d agreement types in that \u201c[a]ssent to a shrinkwrap agreement is not demonstrated at the time of purchase (like in the clickwrap context), and instead the customer\u2019s actions after receiving the product or service demonstrates his assent.\u201d Savetsky v. Pre-Paid Legal Servs., Inc., 2015 U.S. Dist. LEXIS 17591, at *8 (N.D. Cal. Feb. 12, 2015). \u201cA classic shrinkwrap agreement generally involves \u2018(1) notice of a"], "id": "c9251822-1fe9-4ff0-a5f8-62a1ab2a56ce", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["ETS adhered to its stated internal policies and procedures by offering to Brian the options provided for in their contract, but by failing to make even rudimentary efforts to evaluate or investigate the information furnished by Brian, information that was clearly relevant to a rational decision-making process, ETS reduced its contractual undertaking to an exercise in form over substance. ETS, therefore, breached its with Brian by failing to act in good faith in the course of determining whether there was reason to question the validity of Brian\u2019s SAT score. Under these circumstances, Brian is entitled to the benefit of his contract with ETS and since the subject matter of that contract is undeniably unique, specific performance is the proper remedy. The court, therefore, directs ETS to release, without comment or qualification, the November 2, 1991 SAT scores of Brian Dalton."], "id": "83950e6d-9e31-48b7-9562-edce89d30e68", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The parties have agreed that the law of the state of Washington will govern their agreement. We must ascertain whether the parties' choice-of-law provision should be given effect. A court analyzes the enforceability of a choice-of-law provision in a consumer by applying the approach adopted by the Supreme Court in Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 11 Cal.Rptr.2d 330, 834 P.2d 1148 (Nedlloyd) with respect to arm's-length negotiated contracts. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 917-918, 103 Cal.Rptr.2d 320, 15 P.3d 1071.) \"California ... has no public policy against the enforcement of choice-of-law provisions contained in contracts of adhesion where *14they are otherwise appropriate. [Citations.] More importantly, Nedlloyd's analysis contains safeguards to protect contracting parties, including consumers, against choice-of-law agreements that are unreasonable or in contravention of a fundamental California policy.\" (Id. at p. 917, 103 Cal.Rptr.2d 320, 15 P.3d 1071.)"], "id": "2712506f-7ca9-4629-9a0a-60dad0d256cd", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["In the case of the Con Ed tariff, the consumer is confronted with a contract of adhesion which makes no provision whereby a purchaser may buy additional protection against negligence (Danna v Con Edison Co., 71 Misc 2d 1029). Were such additional protection available, the evils of an would be vitiated because the bargaining positions of the parties would be equalized in a manner approved by our courts. In Weld v Postal Tel.-Cable Co. (199 NY 88, supra), the Court of Appeals held that a telegraph company could exempt itself from liability for ordinary negligence which occurs in the course of sending messages at the regular rate because the sender had the option to purchase greater protection, up to and including insurance protection for an improperly transmitted message. Weld is relied upon by defendant, and has been cited in a number of lower court cases to sustain the validity of exculpatory clauses (see, e.g., Abraham v New York Tel. Co., 85 Misc 2d 677, supra; Held v New York Tel Co., 73 Misc 2d 582; Warren v New York Tel. Co., 67 Misc 2d 348; Mortenson v New York Tel. Co., 179 Misc 289). However, the significance of Weld is better understood by an examination of the second Weld opinion (210 NY 59, 78, supra), where the court held \"The conclusions reached in this case do not tend to subject the public to the mercy of a telegraph company. While such a corporation is invested with certain privileges to be exercised by it for the public benefit, its liability must be measured by reasonable limitations. The opportunity is afforded to one doing business with it to protect himself from danger incident to error likely to arise. A failure to exercise the privilege extended at a small expense may result in a loss which might have been obviated by the injured party in the first instance.\u201d In other words, the message sender had the choice to purchase greater responsibility; the fact that he was effectively left remediless was the result of his own conscious waiver of his right to purchase greater protection and not *137because the company had unilaterally exempted itself from all liability for negligence. On the same theory, a railroad\u2019s exemption from negligence was enforced where the railroad offered a full price ticket with complete protection and a reduced price ticket with no protection (Anderson v Erie R. R. Co., 223 NY 277; cf. Lebron v New York City Tr. Auth., 44 NY2d 782; Restatement, Contracts, \u00a7 575, subd [1], par [b]; subd [2]), while an airline\u2019s attempt to limit its liability for negligence by terms printed on the purchased ticket without offering various rates with corresponding degrees of liability was held invalid (Conklin v Canadian-Colonial Airways, 266 NY 244). Another exception was recognized in Hamilton Employment Serv. v New York Tel. Co. (253 NY 468, supra), where the telephone company was charged with negligence in the preparation of its directories. Although in Hamilton the defendant offered its customers no choice of rates for listing in the telephone directory, the Court of Appeals upheld the exemption from liability on the ground that the activity involved was only a subordinate function of the public service corporation (Hamilton Employment Serv. v New York Tel. Co., supra, p 471; see, also, Santa Fe Ry. v Grant Bros., 228 US 177, 184-188). The decision then added as an analogy (p 471) that \"[c]ourts do not hold a carrier to the same degree of liability for mistakes in time tables as for negligence in operation of trains\u201d. Thus, Hamilton does not depart from Weld, which involved the primary function of a telegraph company and a choice of rates."], "id": "7eddc31f-3bcc-4e48-9126-b7339136ccb2", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["There is no evidence that the claimant complied with the 180-day clause of the contract. Although the clause does not discuss the ability of the customer to commence a cause of action against E-Z Pass, the parties can by contract incorporate into their agreement a clause that would give E-Z Pass the opportunity to investigate challenges to billings before a customer could commence a suit. The court will not deal with the issue of whether or not this \u201cAgreement\u201d is an and to what degree, if any, a customer can negotiate the terms of the agreement. Although the court somehow doubts that the customer can negotiate any of the terms of the agreement beyond what appears in the standard form."], "id": "219bbff4-aa60-4a36-a242-8a9878f355fb", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The issue of surprise is less clear-cut, but it is by no means absent. The Agreement *517seems intended as a parody of the classic . Written in a single block, without paragraphs to delineate different topics, the arbitration clause is visually impenetrable. Because the entire Agreement occupies less than two pages, there was no practical need for One Toyota to choose a small typeface. Yet the font chosen is so small as to challenge the limits of legibility. Further, the language is legalistic, and the text is complex. The second sentence of the arbitration clause manages to occupy 11 lines of text, notwithstanding the tiny typeface. Some of the language, such as the reference to Code of Civil Procedure section 1284.2, requires a specialist's legal training to understand. It cannot be said that One Toyota was attempting to hide the ball by burying the arbitration clause in an otherwise prolix agreement, since the Agreement consists almost entirely of the arbitration clause. Yet the Agreement is drafted and composed in a manner, again, to *709thwart rather than promote understanding.7 For these reasons, we conclude that the degree of procedural unconscionability was extraordinarily high."], "id": "e1f5aca9-56e1-4e67-9569-205c7cdbd493", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The Agreement indicates the parties are described as having an independent contractor relationship, and the trial court relied on this feature considerably for its decision. However, plaintiff testified he had to sign the Agreement as stated because otherwise defendant would not have provided him with a job. The Agreement was drafted by defendant and plaintiff had no say in its content. The Agreement thus has the appearance of an in that it was not the product of bargaining between the parties. There are several cases that note the mere fact the employment *773agreement characterizes the relationship of the parties in a particular way is not determinative of the actual legal status of the parties. ( Borello , supra , 48 Cal.3d at p. 349, 256 Cal.Rptr. 543, 769 P.2d 399 ; Estrada , supra , 154 Cal.App.4th at pp. 10-11, 64 Cal.Rptr.3d 327.) Rather than assume the relationship *1223from the content of an agreement that was drafted exclusively by defendant, the court was obligated to delve deeper into the parties' actual conduct and the economic realities of their relationship."], "id": "8e9cd517-d126-42d8-81ce-8047d3828399", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["The essential elements to establish a case for fraud are \u201crepresentation of a material existing fact, falsity, scienter, deception and injury.\u201d (New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995] [emphasis and internal quotation marks omitted].) \u201c[D]uress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury.\u201d (Candid Prods. v SFM Media Serv. Corp., 51 AD2d 943, 944 [1st Dept 1976].) To establish duress, a party needs to show \u201cactual or threatened violence or restraint contrary to law.\u201d (Id.) New York appellate courts do not distinguish between duress and coercion as torts. (See, e.g., Paull v First UNUM Life Ins. Co., 295 AD2d 982, 983 [4th Dept 2002]; Matter of Wilson v Jackson, 161 AD2d 652, 653 [2d Dept 1990]; Perl v Perl, 126 AD2d 91, 93-94 [1st Dept 1987].) Inasmuch as coercion is a tort distinct from duress, however, it also requires as an element that the defendant have acted illegally. (Grandonico v Consortium Communications Intl., Inc., 566 F Supp 1288, 1293 [SD NY 1983].) A claim that an agreement is unenforceable as an requires a showing that \u201cthe party seeking to *411enforce the contract has used high pressure tactics or deceptive language in the contract and [that] there is inequality of bargaining power between the parties.\u201d (Morris v Snappy Car Rental, 84 NY2d 21, 30 [1994] [internal quotation marks omitted].)"], "id": "68c5c77c-dc1b-4c9b-a0b2-ff99414deaf3", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["\u201cContracts of adhesion\u201d are contracts prepared by one party and presented to another, in a disadvantageous bargaining position, on a \u201ctake it or leave it\u201d basis. (Barrette v Home Lines, 168 F Supp 141,143, n 4; Standard Oil Co. of Calif. v Perkins, 347d 379, 383, n 5.) However, where parties voluntarily deal at arm\u2019s length or in a competitive marketplace, no exists. (Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516, 523.) Nor does the defense of contract of adhesion apply to publicity bid contracts, in the absence of extraordinary circumstances. (Meaott Constr. Corp. v Ross, 100 Misc 2d 767, 772.) Since the supplier of the services, Moran, was under no obligation to enter a bid, the City\u2019s acceptance of Moran\u2019s voluntary offer constituted a binding agreement, untainted by being one of adhesion."], "id": "d5d20633-eaa9-49c2-af82-9cf7d43453a0", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["hospital. The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract. As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called . . . .\u2019 \u201d (Wheeler, 63 Cal.App.3d at pp. 356-357.) Here, Haupt admits Dameron requires all patients it treats--or their family members--to sign the COAs. Thus, the COAs are adhesion contracts."], "id": "90c0ed4f-eb13-46de-81ec-092cae0ea8fe", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["Initially, the court rejects the petitioner\u2019s contention that the arbitration agreement is unenforceable because it constitutes a contract of adhesion. The essence of an is that it is offered on a take it or leave it basis to a consumer who has no realistic bargaining strength and cannot obtain the desired services or goods elsewhere without consenting to the identical contract terms (Matter of K. D. v Educational Testing Serv., 87 Misc 2d 657, 662). That is not the case here. The petitioner, not confronted with a medical emergency, could have obtained an elective abortion elsewhere at countless other health facilities in the metropolitan area without being compelled to arbitrate any alleged malpractice claim arising from its performance."], "id": "294d1638-ecba-49c8-ae2f-01c0533770b1", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["For this reason, the majority's assurance that an identical arbitration provision \"might pass muster under less coercive circumstances\" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 697) rings hollow. Because of the economic pressures faced by *147prospective and existing employees, the majority's finding of unconscionability will surely be the rule in the vast majority of cases in the employment context, regardless of the other circumstances the majority cites. In other words, with few exceptions, as to employees presented with a \"sign or you're unemployed\" choice, the ability to read, reflect, and understand the agreement does not make the situation *744\"less coercive\" in any meaningful sense. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 733-734, 447 P.3d at p. 696.) More broadly, because it would not be difficult for a court to find a \"relatively low degree of substantive\" unfairness in an (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693), the majority's new rule casts significant doubt on the enforceability of many contractual terms in the employment context, not just arbitration provisions."], "id": "87c08c10-0265-465f-9ca7-0a2262e66266", "sub_label": "US_Terminology"} {"obj_label": "adhesion contract", "legal_topic": "Business Law", "masked_sentences": ["This same degree of \"procedural surprise\" does not appear to exist under the circumstances of this case, and we are not convinced that California courts would agree with the Brown court's application of California law (see, e.g., Lane, supra, 224 Cal.App.4th at pp. 691-692, 168 Cal.Rptr.3d 800 [no procedural unconscionability despite referencing AAA rules but not including rules]; Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472, 162 Cal.Rptr.3d 545 [\"failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability\"]; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737, 153 Cal.Rptr.3d 78 [no procedural unconscionability despite failure to attach AAA rules, and even in earlier cases, failure to attach rules was of \"minor significance\" in analysis] ), or that the Washington Supreme Court would see the issue the same way if it were to interpret Washington law in circumstances such as those before us."], "id": "360087b7-6852-4315-be10-123574f40b2a", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The choice offered to minority shareholders in a situation should be contrasted with the \"freezeout\u201d (or \"cash-out\u201d) merger method of takeover, which eliminates the interest of minority shareholders without choice on their part. In a freezeout merger, the target corporation is merged into a wholly owned subsidiary of the acquirer and the minority shareholders in the target corporation are forced to surrender *78their shares, either for the price of a prior tender offer or for a price determined by a special court appraisal proceeding (6 Cavitch, Business Organizations \u00a7 127.10 [1], [6]). \"Freezeouts, by definition, are coercive: minority stockholders are bound by minority rule to accept cash or debt in exchange for their common shares, even though the price they receive may be less than the value they assign to those shares\u201d (Brudney and Chirelstein, A Restatement of Corporate Freezeouts, 87 Yale LJ 1354, 1357)."], "id": "8d655651-ceec-4e0a-8fb2-68e0ca23bde8", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": [". It is of no moment that in the letter and attached redemption notice, CHE and the trustee took the position that tendered bonds would remain outstanding. That was an erroneous legal position. The indenture mandates that all bonds purchased are required to be canceled, meaning that bonds purchased by CHE in a are not outstanding. That CHE and its bond counsel said otherwise in their pre-transaction written correspondence does not make it so."], "id": "752baee3-723b-4e73-a190-aa11610df829", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["It must be remembered that a is fundamentally a simple invitation by the offeror to buy the stock of a corporation within a specified period of time at a specified price (see, 8 Cavitch, Business Organizations \u00a7 166A.01; Note, The Developing Meaning of \u201dTender Offer\u201d Under the Securities Exchange Act of 1934, 86 Harv L Rev 1250-1251). Because the stockholder is under no compulsion to turn over possession of his shares in response to a tender offer, the majority shareholder\u2019s duty when making a tender offer is generally limited to full disclosure (see, Joseph v Shell Oil Co., 482 A2d 335, 341 [Del Ch 1984])."], "id": "d4e033b2-a6a4-489d-922f-0b7031233b32", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": [". The word \u201cpurchased\u201d in section 308 is not defined. However, it is not ambiguous. When CHE acquired bonds in the , it purchased them from bondholders. That a tender offer itself is not specifically discussed in the indenture is of no moment. A tender offer is simply an offer to purchase bonds at a specific price and, therefore, falls within the purview of section 308. Indeed, the legal opinion letter on which CHE relies described the tender offer as a purchase. (See document No. 17 at 35 [\u201cthe proposed implementation of the Tender Offer whereby CHE purchases the Tendered Defeased Bonds\u201d (emphasis added)].)"], "id": "53f8ee89-775d-411d-91d1-944535621f6a", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In his complaint, the plaintiff alleges that the defendants, two publicly owned corporations and various members of their board of directors, with intent to deceive and defraud him and a class of 3,000 other holders, of an estimated 300,000 shares of the common stock of Elgin National Industries, falsely and fraudulently advertised the value, and facts which affected the value, of the stock of the corporation, and thereby induced him and other stockholders to sell their shares to the corporation, at a loss to the class in the sum of 18 million dollars. Plaintiff has commenced this class action on behalf of himself and other persons who tendered their shares of stock of Elgin National Industries, Inc., in response to the aforesaid misleading on and after March, 1976. The plaintiff also claims that by disseminating the alleged false information the defendants violated sections 339-a and 352-c of the General Business Law."], "id": "3ed1edbd-18b8-4ac5-826e-11c4dc73bde8", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["This premise is erroneous. Section 308 provides that \u201c[a]ll Bonds paid, redeemed or purchased, either at or before maturity, when such payment, redemption or purchase is made, shall thereupon be cancelled by the Trustee and shall not be reissued but shall thereupon be destroyed by the Trustee.\u201d (See document No. 12 at 45 [emphasis added].) Consequently, it does not matter if CHE redeemed the bonds or purchased11 them in a . In either event, the bonds, once acquired by CHE, had to be canceled by the trustee and could not be resold. CHE\u2019s total return swap transaction with Merrill therefore violated section 308. It also does not matter that CHE technically did not sell or reissue the bonds, as opposed to retaining title while synthetically selling to Merrill via a total return swap. The indenture is clear that the bonds, once acquired by CHE, \u201cshall thereupon be destroyed by the Trustee,\u201d making the Merrill transaction impossible12 without violating the indenture."], "id": "9ddf42db-0dad-44e5-b616-af97c24ca9a4", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Turning to the plaintiff\u2019s assertions of specific proof of negligence, the only evidence which might support such a finding is the plaintiff\u2019s testimony in rebuttal that Braver, the employee of the defendant with whom the plaintiff dealt, \u2018 \u2018 spoke to me after May 13th, and he says to me, \u2018 Mr. Teichberg, your papers, your papers, were found on the floor.\u2019 This Mr. Braver said to me.\u201d When cross-examined on the point, both Braver and Miss Farhi (neither of whom is an employee of the defendant any longer), expressly denied that such an incident had ever taken place or that -such a conversation was had."], "id": "404055ec-6aa2-46a1-9968-4c96f07f294b", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Seven months after the commencement of this action, on January 26, 1976, plaintiff served an amended complaint objecting to the proposed merger between UFS and Libby, seeking compensatory and punitive damages, accounting for unjust enrichment, a rescission of sales of stock made pursuant to the and an injunction against the proposed merger. Concomitant with the amended complaint plaintiff moved for a preliminary injunction to restrain the defendants *170from taking any further steps to consummate the UFS-Libby merger."], "id": "d404f32e-2a29-4f8f-972e-4ab7194077c3", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Nestle and its affiliates began purchasing Libby shares in 1960 and have been the principal shareholders of Libby since 1967, when they acquired 36% of the outstanding common *169stock. In 1970, its holdings increased to 51%, and they stood at 61% on May 29, 1975. On that date UFS, the Nestle affiliate holding the Libby shares, announced a cash to purchase the remaining outstanding shares of Libby common stock at 8 Vs (it . was then trading on the stock exchange at 4%), and its $1,000 convertible debentures at $700 (trading about $580 at market). In the offer to purchase, UFS announced that if it acquired more than 90% of the Libby common stock, it intended, \"as soon as reasonably practicable\u201d to merge Libby into UFS, which under Maine law could then be done without any meeting or vote of shareholders. Shareholders remaining at the merger would be paid 8 Vs per share, with dissenting shareholders having the right to appraisal and judicial determination of the fair value of their shares if they thought they were worth more."], "id": "f99f0e1e-7ae8-4d43-b27c-35b7d770f8de", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": [". This, too, is essentially the converse of a question posed by CHE\u2019s counsel during oral argument. (\u00abSee document No. 43, July 28, 2015 tr at 20 [\u201cThe point is, what would (plaintiffs) have done if (CHE) followed the letter of the contract\u201d].) The answer, of course, is not lose their bonds since CHE would not have done the transaction if it thought the tendered bonds were unavailable to be used to transact with Merrill. CHE\u2019s arguments that the marginal act of redeeming plaintiffs\u2019 bonds was legal or that CHE was planning on redeeming those bonds regardless of the outcome of the are, therefore, unavailing. Had CHE not contravened the indenture, they would never have tendered or called any bonds. This renders plaintiffs\u2019 damages claim to not be speculative. In any event, as plaintiffs correctly argue, \u201c[n]ominal damages are always available in breach of contract actions.\u201d (Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993].)"], "id": "c6a6e6d8-0261-4f61-a49f-21c2c659bb53", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["By letter dated March 29, 2011 (the letter), CHE notified bondholders that it \u201chas directed the Bond Trustee to call all of the Bonds for redemption at 100% on May 18, 2011, except for those Bonds tendered to us and purchased during our , which is described in this letter and in the enclosed materials.\u201d (See document No. 15 at 2.) The letter explained that \u201cthe call for redemption is irrevocable\u201d and that \u201c[a] 11 un-tendered Bonds will be redeemed at par, and this redemption is not contingent upon the success of our tender offer.\u201d {See id. [italics removed].) The letter then sets forth CHE\u2019s tender offer, stating that all bondholders who tendered their bonds by April 26, 20115 would be paid 101% of the principal amount. Payment would .be made on May 18, 2011. All bonds not tendered would be redeemed at the price set forth in section 301 of the indenture: 100% of the principal amount. The redemption would also occur on May 18, 2011, immediately after the tender offer was consummated. Thus, the bondholders could either tender their bonds at 101% or see them redeemed at 100%. In the notice of redemption attached to the letter, the trustee made clear that"], "id": "0e2c1f60-f6d8-461b-852c-aaa618690427", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["A reverse stock split of 1-600 was arranged in October, 1976, to facilitate going private by removing the lowest 5% of the equity held by CCI\u2019s smallest shareholders. A of $3.25 was then made, a sum in excess of that recommended by the outside expert appraiser and substantially more than the market price for the two prior years. The reverse stock split was effected and 95% of CCI\u2019s shares then remained in the hands of 61 shareholders. The tender offer was a success and was accepted by all minority shareholders except Cross. On October 28, 1976, Cross wrote Shore complaining of the reverse stock split."], "id": "4bb8e289-77a8-4ed9-b399-3ac5c741bd60", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The circular sets forth the variables considered and the valuation estimates made on behalf of Montedison by financial analyst Morgan Stanley & Co. (Morgan Stanley) regarding the estimated value of Ausimont\u2019s shares under various circumstances. The different possible scenarios considered resulted in estimates ranging from the \"low $20s\u201d per share to a high of $46 per share (if the company were sold as a whole or in parts to a strategic buyer)."], "id": "11aa95ec-e841-459f-a97a-74f9c1787882", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["As mentioned previously, the defendants concede that a legal duty of reasonableness and fairness must be imposed upon Montedison (Dutch Civ Code arts 7, 8). While this court is not apprised of any Dutch case law to assist in applying that duty in this instance, I note that even the defendants cite and rely on United States case law to explain and apply the duty of reasonableness and fairness. For instance, the defendants agree that encompassed in this duty is the obligation to disclose in the any material information. By definition, material information is anything substantially likely to be considered important by a reasonable shareholder in deciding what action to take (see, State of New York v Rachmani Corp., 71 NY2d 718, 726). The omission of such material information renders the selling minority shareholder unable to make an informed decision, resulting in a fundamentally unfair sale (see, Mader v Armel, 402d 158 [6th Cir 1969], cert denied sub nom. Young v Mader, 394 US 930)."], "id": "986b7952-3098-41d9-81b1-72d5d8f3bfe7", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In Lowenschuss v Kane (367 F Supp 911 [SD NY 1973]) defendants made a for shares of stock without a \"litigation-out\u201d clause. The offer was challenged on grounds of securities and antitrust violations and defendants were enjoined by the court from proceeding with the offer. Plaintiff had tendered shares and sued to complete the transaction. Defendants urged impossibility as a defense. The District Court accepted that argument finding that the defendants committed no purposeful act to thwart the deal and vigorously defended the tender offer in the injunction proceeding. The complaint was dismissed. This was reversed by the Second Circuit Court of Appeals (520d 255 [1975]). That court concluded that an issue of fact existed, requiring discovery, concerning defendants\u2019 conduct which led to the injunction because if defendants *281made the tender offer with knowledge of sufficient facts that would result in the offer being enjoined, that knowledge might constitute fault and abrogate the defense of impossibility of performance."], "id": "85a387a5-306c-4b7a-b476-dfce7f248a17", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Thus, it would appear that plaintiff, despite the provisions of subdivision (b) of section 624, has a right under the common law to inspect Prudent\u2019s stockholder list regardless of the extent or duration of its ownership, so long as inspection is sought \"for a valid purpose\u201d. With respect to this latter point, although earlier lower court decisions had held to the contrary, the Court of Appeals has recently held in Matter of Crane Co. v Anaconda Co. (39 NY2d 14, 17) that inspection of a shareholder list by a shareholder for the purpose of ascertaining the identity of his fellow shareholders in order to inform them of a is a proper purpose. Nor does the fact that plaintiff seeks its inspection on the day the tender offer began, or that its original tender offer (which expired on March 23, 1979) gave stockholders only 10 days in which to accept it, render the inspection improper. Significantly, defendants\u2019 efforts to enjoin the offer, both in this court and in Federal court, on the ground that it was violative of both State and Federal law, have been unsuccessful."], "id": "2e6dbf43-6441-4616-882d-18917498b20b", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["On June 10, 1975, just three days before the expiration of the , the plaintiff, as the owner of 50 shares of Libby common stock purchased in August, 1973, brought this action on behalf of itself and all other common shareholders. The original complaint sought monetary damages alone, premised upon the alleged inadequacy of the tender offer, and sought no injunctive relief. In addition to this action, the court has been informed that there are seven other class actions prompted by the tender offer, four involving debenture holders and three involving shareholders. Five of the actions are pending in the United States District Court, Southern District, one in the New York State Supreme Court, Nassau County, and one in the Superior Court of California."], "id": "3d9254cb-8279-4604-9178-a812f14552eb", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In support, plaintiffs allege that, due to Wells\u2019 improving financial condition at the time of the acquisition, Wells was worth substantially more than the made. Despite this, defendants concluded the acquisition, allegedly receiving unconscionably large executive compensation arrangements of long-term employment and consultation agreements from BIS in exchange for abetting the sale. In reality, plaintiffs allege, these excessive compensation packages, also known as \u201cgolden parachutes\u201d and worth a minimum of $1,250,000 were simply vehicles of taking moneys allocated by BIS, to buy the stock of Wells, *56and payable all to Wells\u2019 shareholders, to divert such funds to the individual defendants. Plaintiffs further allege that such tender offer document itself was deceptive and misleading in that the individual defendants, in collusion with BIS, breached their fiduciary duty to the shareholders by diverting those funds to themselves and by failing to make proper disclosures in the tender offer document."], "id": "23884057-1a0f-4313-a9e6-3d601b0cdf61", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["However, the presence of the amendment prior to the *669election may be sufficiently relevant to the shareholders to strongly affect the outcome. Shareholders, aware of section 23, know that if they vote for BNY\u2019s slate and a two-thirds vote is not achieved, the directors, then elected, will not, under the amendment, have the power to redeem the rights for 10 years. Therefore, any shareholder who would desire to accept this or any future and elect a board other than the current board or those approved by it, may be deterred from doing this at the meeting for fear that a majority vote less than two thirds would position a board incapable of any future negotiations for 10 years."], "id": "c805b776-3a2f-471d-8cd5-00dd0c9f583f", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The sort of omission which meets the materiality standard is presented in Joseph v Shell Oil Co. (482 A2d 335, supra). There, the appraiser hired by the majority shareholder to estimate the value of the company\u2019s shares, although informed of the existence of certain \"probable oil reserves\u201d owned by the company, was not furnished with any of the available detailed information relating to the value of those probable reserves. Nor did the offering circular disclose this omission, but rather it merely related that the appraiser\u2019s *81estimate was based solely on publicly disclosed information. The court held that the majority shareholder\u2019s failure to disclose available data relating to the value of the probable reserves, and its further failure to disclose that this essential and necessary information had been withheld from the appraiser, violated the duty of complete and candid disclosure (Joseph v Shell Oil Co., 482 A2d 335, 341, supra). This and other troublesome failures of disclosure led the court to preliminarily enjoin a (supra, at 345)."], "id": "262426c9-cd3b-417e-8b74-8a860a24f8c6", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs alleged that Merrill tortiously interfered with the indenture because it induced CHE to couple the with a redemption (the transaction). Plaintiffs claimed (and it appears undisputed) that Merrill was the impetus for the transaction. As discussed further below, since the bonds were *1064defeased, a tender offer or redemption, on their own, had no value to CHE and, actually, cost money to effectuate. However, in light of the significant decline in interest rates between 1994, when the bonds were issued, and 2011, when the transaction occurred, the market value of the bonds had risen. CHE, allegedly acting on the advice of Merrill, sought to induce bondholders to tender their bonds by offering them 1% more than the amount they would receive in a redemption. After the transaction closed, CHE synthetically sold the bonds to Merrill through a \u201ctotal return swap.\u201d7"], "id": "b576d28b-c053-4840-98b3-6e61ce167766", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["With respect to the LIPA Act, however, Chief Judge Mun-son found no subterfuge, holding, instead, that its purposes were legitimate and that, while it \"obviously singles out LILCO * * * such a classification is closely related, and in fact necessary, to the achievement of the statute\u2019s aims\u201d. (Supra, at 425.) Those aims, as outlined in his decision, were \"assuring that dependable and affordable sources of energy exist for residents and industry in LILCO\u2019s service area, and creating a publicly owned power authority to acquire LILCO either through negotiation, a or the exercise of * * * eminent domain if such acquisition would realize ratepayer savings for residents and industry on Long Island\u201d. (Supra, at 425.)"], "id": "85b89d94-90e3-4bce-aea4-d67b7e048ba1", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Looking first at the request for preliminary injunctive relief, it is readily apparent that plaintiffs\u2019 motion is, at best, premature. Essential to any application for such a drastic provisional remedy are the likelihood of the movant\u2019s ultimate success in the action in which the motion is made and the danger that, in the event of its denial, the movant will be irreparably harmed (Matter of Town of Stony Point v New York State Off. of Mental Retardation & Developmental Disabilities, 78 AD2d 858; Matter of Nelson, 110 AD2d 535, 536). At this juncture, defendants have taken no steps which would indicate the imminence of a so as to create a basis for urgent intervention by this court. Indeed, as of the date of argument of this motion, the results of the feasibility study *748required by LIPA Act (Public Authorities Law) \u00a7 1020-h (2) as a prerequisite to LIPA\u2019s acquisition of LILCO or any of its securities or assets had not been published and the absence of urgency would appear to have been conceded by plaintiffs when, in connection with the instant application, they did not seek the issuance of a temporary restraining order. Under the circumstances, a present danger of irreparable harm has not been demonstrated and, therefore, the motion for a preliminary injunction is denied."], "id": "b88686a7-86ca-4b5f-91f3-3ecea73952fb", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Plaintiffs herein contend defendants breached their fiduciary duty by wrongfully approving subject , diverting tender offer funds to themselves and failing to properly disclose the facts in the tender offer document. Said claims are clearly typical of all claims that would be asserted by other class members in this class action (Klakis v National Leisure Corp., 73 AD2d 521)."], "id": "9276b36b-92d0-4ea5-a95f-928da79e3b10", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["On October 20, 2006, AirTran Holdings, Inc. approached MAG\u2019s board of directors with a private offer to purchase the company for $11.25 per share. MAG\u2019s board refused the offer on December 7, 2006. On January 9, 2007, AirTran New York, LLC registered with the New York State Department of State, Division of Corporations. On January 11, 2007, in its attempt to purchase shares directly from MAG\u2019s shareholders for $13.25 per share, AirTran announced a for MAG\u2019s outstanding shares, and submitted a form S-4 to the Securities and Exchange Commission (SEC) explaining the offer. The SEC form S-4 stated that AirTran intends \u201cto acquire control, and ultimately the entire interest in\u201d MAG through a two-step process. First, AirTran seeks to exchange cash and shares of Air-Tran common stock for outstanding MAG shares. Second, it seeks to merge with and into Galena or another wholly-owned subsidiary of AirTran and to convert remaining MAG shares into the \u201cright to receive the same number of shares of AirTran common stock and the same amount of cash per Midwest Share as paid in the offer.\u201d"], "id": "34f0a017-c394-42e3-88c9-42fb81d06050", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["\u201cAn attempt by an outside corporation or group, *549usually called the aggressor or \u2018insurgent,\u2019 to wrest control away from incumbent management of target corporation. A takeover bid may involve purchase of shares, a , a sale of assets or a proposal that the target merge voluntarily into the aggressor.\u201d (Black\u2019s Law Dictionary 1454 [6th ed 1990].) Petitioner argues that the transaction at issue herein is governed by article 16, despite the fact that respondents allege that the purchase of shares was authorized by Business Corporation Law \u00a7 505 (d). Section 505 (d) states:"], "id": "73c7d215-74a9-4fa4-ad13-a944d11f23f2", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["After an extensive and illuminating tracing of the rather sinuous judicial history of the Fourteenth Amendment\u2019s equal protection prohibition over the past half century, Chief Judge Munson concluded that the Used and Useful Act was in violation of the constitutional mandate. While not questioning the legitimacy of the legislative purpose adopted at the time of the act\u2019s passage, namely, the assurance to utility customers that they would not \"bear the staggering costs associated with a nuclear power plant that fails to commence or continue commercial operation by requiring the [Public Service Commission] to apply traditional used and useful rate-setting *752principles\u201d, he found the classification drawn to further that purpose to be \"so under-inclusive that it must be deemed irrational.\u201d (Long Is. Light. Co. v Cuomo, 666 F Supp 370, 423, supra.) He further determined that there was evidence that \"the articulated purpose * * * underlying the Used and Useful Act was a mere pretext for an impermissible purpose offending specific prohibitions of the Constitution\u201d (supra, at 424), namely, to cause a decline in the market value of LILCO stock to facilitate a at lower prices than would be required in the absence of the legislation. It was his conclusion that, \"under all of the circumstances, an impartial legislator could not have logically concluded that the classification drawn by the Used and Useful Act 'would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.\u2019 [City of] Cleburne [v Cleburne Living Center], 473 U.S. [432,] at 452 * * * (Stevens, J., concurring) (footnote omitted).\u201d (Supra, at 425.)"], "id": "0f27cb1e-b8e3-485c-ac7c-6768ab8e619c", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["*856On March 29, 2011, acting on the advice of Merrill, CHE sent letters to all holders of the bonds, stating that it would purchase any bonds tendered to it by April 26, 2011 for 101% of par value, plus accrued interest (id. 11 28; joint statement of material facts II 5). In the same letter, CHE announced that any bonds not tendered to it by April 26 would be redeemed on May 18, 2011, at 100% of par value, plus interest (SAC 1\u00cd1\u00cd 29-30; joint statement 11 9). CHE subsequently extended the period to May 3 (SAC 11 32). The trustee consummated the tender transactions; on May 18, approximately 34.3% of the bonds (including those owned by plaintiffs) were redeemed (id. 1111 33-34; joint statement H 14)."], "id": "06317730-cb95-4879-9996-81e76c451102", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Second, it is clear that the plaintiffs are attempting to characterize this situation, by implication, as analogous to the so-called \"two-tier tender offer\u201d or \"two-step merger\u201d. The first tier of a two-step merger involves a at a premium price in order to obtain a controlling interest in the target corporation. The second tier, which takes place once the offeror has gained control of a majority of the shares, is a freezeout merger for the minimum possible fair price \u2014 with the right to an appraisal proceeding the minority from an unfair second-tier price (see, Note, Protecting Shareholders Against Partial and Two-Tiered Takeovers: The \"Poison Pill\u201d Preferred, 97 Harv L Rev 1964, 1966; Brudney and Chirelstein, A Restatement of Corporate Freezeouts, 87 Yale LJ 1354, 1360). In many respects, Ausimont\u2019s situation is comparable to a two-step merger: although Montedison already holds a majority of the target\u2019s shares, it seeks to obtain a greater percentage of the corporate stock in order to be able to cash-out the remaining minority shareholders. In both types of two-step plans, an attempt to pressure the minority shareholders to tender their shares is an element of the plan. However, although such a two-step plan is by definition coercive (see, Note, Protecting Shareholders, op. cit., 97 Harv L Rev, at *801966), the coercive element in a two-step merger plan as a whole is not enough to render the first step, or the plan as a whole, illegal or improper. Rather, the law in this country offers its protection to the shareholders by the means previously discussed: the imposition of fiduciary obligations of fairness and the appraisal remedy (see, Weinberger v UOP, Inc., supra)."], "id": "59b1e74b-4c2c-45a8-ad17-6169448c6b02", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Ausimont N.V. (Ausimont) is a Netherlands corporation whose common stock is traded on the New York Stock Exchange. Defendant Montedison S.p.A. (Montedison) is an Ital*74ian company which currently owns 72.6% of Ausimont\u2019s shares, and which from Ausimont\u2019s inception has been its majority shareholder. Montedison now seeks, by , to purchase all the outstanding shares of Ausimont. The plaintiffs are minority shareholders of Ausimont, who have commenced this action by order to show cause seeking to enjoin Montedison from proceeding with the tender offer for Ausimont\u2019s publicly held shares. They challenge the sufficiency and propriety of the tender offer circular dated January 20, 1989 by which Montedison offers to purchase the shares at a price of $35. The plaintiffs claim that the offering price is grossly inadequate, that the tender offer circular is materially deficient, and moreover that the circular is structured so as to coerce the minority shareholders to tender their shares at an inadequate price."], "id": "70230456-9e4b-464d-ab36-e5bad82c44ae", "sub_label": "US_Terminology"} {"obj_label": "Tender Offer", "legal_topic": "Business Law", "masked_sentences": ["\u201cany Bonds tendered to [CHE] for purchase at a purchase price of 101% of their principal amount pursuant to the shall not be subject to redemption at par on the Redemption Date, shall be excluded from such redemption, shall be purchased by [CHE] at a purchase price of 1019^ and shall remain outstanding under the Prior Bonds Instrument and shall continue to be defeased pursuant to, and secured solely by, the Escrow Agreement.\u201d {See document No. 15 at 13-14 [emphasis added].) One month after the letter was issued (and four days before the deadline to tender), by letter dated April 29, 2011, Emmet wrote to the trustee objecting that coupling a tender offer with *1063a redemption is violative of the indenture. (See document No. 35.) On May 3, 2011, FMC also sent a letter of objection to the trustee. (See document No. 40.) On May 4, 2011, CHE distributed an acceptance notice, indicating that it had accepted the tender of 54.52% of the bonds\u2019 par amount outstanding. (See document No. 36.)6"], "id": "63dfaa9a-be38-427b-b335-75056ad8721f", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["About the same time, the Weinstein\u2019s engaged the underwriting firm of Shearson Hayden Stone Inc. to render an appraisal for a proposed tender-offering merger. The appraisal resulted in a figure of $3 a share. It appears that the appraiser was the son of a director of Concord. In early February of this year, a was actually made to the public shareholders of Concord by AFW. Litigation which ensued, however, forced withdrawal of the tender offer. Instead, a notice of meeting was called by Concord to approve a plan of merger at a meeting scheduled for April 10, 1975. The proxy statement, accompanying the notice, unabashedly states that the purpose of the proposed merger of AFW into Concord \"is to return the Company to the status of a privately-held corporation owned by the Weinstein family. Upon consummation of the merger, the Weinstein\u2019s will be the sole stockholders and directors of the Company, and will thus be able to *122determine all policies of the Company, such as salaries for themselves and others, dividends and business activities, without public scrutiny and solely with regard to their own interests.\u201d The plan also advised minority shareholders that they must either accept $3 per share for their stock, or resort to judicial proceedings as contemplated under section 910 of the Business Corporation Law for appraisal of their holdings. It is also stated in the plan of merger that \"AFW owns more than the percentage of the Company\u2019s Common Stock required to approve the merger and intends to vote such stock in favor of the merger. Accordingly, the other shareholders of the Company will be unable to defeat approval of the merger by voting against it and thus may either accept $3 per share in cash or exercise their appraisal rights.\u201d"], "id": "4f6e7386-cfe4-405b-8f9b-26fbe3fb7176", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["CHE is wrong. CHE conflates the concept of notifying bondholders of the redemption pursuant to section 306 and actually redeeming 100% of the bonds pursuant to section 304. While tender offers are not specifically addressed by the indenture, as discussed below, a is a common way in which companies repurchase stocks and bonds from investors. Indeed, prior to the transaction, CHE itself did not believe a tender offer to be the equivalent of a redemption. CHE was relying on there being a difference between tender and redemption, and made this quite clear in the redemption notice, which stated that \u201cBonds that are tendered to [CHE] for purchase pursuant to the Tender Offer will be excluded from the redemption of the Bonds.\u201d (See document No. 15 at 13.) Also, in the very next sentence, CHE concedes that it did not redeem 100% of the bonds since \u201cany Bonds tendered to [CHE] for purchase . . . shall not be subject to redemption at par on the Redemption Date, shall be excluded from such redemption, shall be purchased by [CHE] at a purchase price of 101%, and shall remain outstanding.\u201d (See id. at 13-14.) Hence, CHE\u2019s claim that it actually redeemed 100% of the bonds directly contradicts its statements in the redemption notice. Furthermore, as discussed below, CHE actually treated the tendered bonds differently than the redeemed bonds."], "id": "1d96d00e-0188-47f1-a38c-396e35886ef7", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["On January 8, 1988, plaintiffs brought a fraudulent conveyance action in California Supreme Court seeking, inter alia, an injunction enjoining defendants from taking any steps to use the assets or property of United to consummate the *986restructuring program. Plaintiffs did not seek a temporary restraining order (TRO). Defendants promptly moved to dismiss or stay the California action on the grounds of forum non conveniens. That motion was granted on February 29, 1988. Plaintiffs were granted leave to commence a new action in either Illinois, Delaware or New York. On March 24, 1988, nine days after the expiration of the , plaintiffs commenced this action. Plaintiffs did not seek a TRO here."], "id": "282ca567-585c-4c09-995a-8b20c2a228d1", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": [". CHE claims (and plaintiffs dispute) that the transaction is quite common and has occurred approximately 50 times without controversy. It should be noted that CHE has not cited a single example of another such transaction despite repeatedly making this representation in both this action and the prior action. The court\u2019s independent research, however, reveals that coupling a with the threat of redemption is not a new concept, *1072although the issuer\u2019s reasons for doing so are often different than CHE\u2019s motivations in this case. (See e.g. Upinder S. Dhillon et al., Bond Calls, Credible Commitment, and Equity Dilution: A Theoretical and Clinical Analysis of Simultaneous Tender and Call [STAC] Offers, Journal of Financial Economics, Vol. 60 [2-3], 573-611 [Feb. 2001], available at http:// www.researchgate.net/publication/4978548.) Moreover, even if this type of transaction has occurred up to now without challenge, it does not mean the transaction is permissible under the terms of the specific indenture at issue here."], "id": "b46d1598-c357-4e75-9895-ecf95c6dad00", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The plaintiffs challenge this on several grounds and contend that the offer must be enjoined to prevent irreparable harm to the minority shareholders. Their arguments develop as follows: (1) The price offered by the defendant is grossly inadequate; (2) By including in the circular the information that Montedison hopes to invoke the automatic transfer proceeding available under Dutch law, the circular will have a coercive effect on minority shareholders. They reason that shareholders will feel compelled to tender since if they do not and if Montedison obtains 95% of the shares, their shares will be rendered unmarketable and thus valueless during the period in which the Dutch court evaluates their shares, a period which may extend up to or beyond 18 months; (3) The plaintiffs allege that in several respects the circular omits material information that minority shareholders must have in order to evaluate the adequacy of the offer. For instance, they contend that Montedison should have included the special committee\u2019s reasons for rejecting the $35 offer, should have explained how Morgan Stanley arrived at its evaluation of each individual asset owned by Ausimont, and in particular should have elaborated on the value of Dutral, Ausimont\u2019s subsidiary, to Montedison."], "id": "69186b49-ef27-4161-80e1-e3d5c3ede57b", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Despite petitioner\u2019s contentions, it is this court\u2019s determination that Business Corporation Law \u00a7 505 (d) does not require compliance with Business Corporation Law article 16. The evidence before this court reveals that respondent Krasnicki\u2019s purchase of the subject shares arose from his employment relationship with OSC, and not as a result of a or request or invitation for tenders. Petitioner provides no authority to the contrary."], "id": "256f2c56-c806-4ef4-a8ba-25261085b7ea", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In the original , its purpose was stated very simply: \"The purpose of this Offer is to purchase all the outstanding shares of Common Stock of the Company not presently owned by the Purchaser and all the outstanding debentures. Except as stated below, the Purchaser does not have any plan or proposal to liquidate the Company, to sell its assets, to merge with any other person or make any other major change in its management or business. The Purchaser reserves the right, however, to adopt and implement any such plan or proposal or make any such change.\u201d"], "id": "14fa8c77-c34a-4771-a0f9-02139ad0fd90", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Interestingly, upon defendants eliminating this ground of *180complaint, and spelling out clearly that there would be no corporate indebtedness for the cost of acquisition, plaintiff then charged that this was evidence of Nestle\u2019s duplicity and fraud. Plaintiff argues that it was advantageous for UFS to represent in the that it would incur substantial indebtedness since the Libby stockholders, desiring not to carry the burden of the debt resulting from the acquisition of Libby\u2019s securities, were much more ready to sell their shares at the tender price. Now, it appearing that the UFS-Libby corporation will not be burdened with any such debt, plaintiff shouts \"fraud\u201d. The simple answer is that the court is confronted only with the application to enjoin the merger. The tender offer is over and done with. There was no application to restrain that. If any shareholder sold out at the tender price because he was misled to his detriment, his remedy is monetary damages. So far as injunctive relief is concerned, no remaining shareholder, such as plaintiff, is in a position to claim that the merger is a device to facilitate a raid on corporate assets when it is clear that those assets would be left undisturbed. A comparison of Libby\u2019s December, 1975 balance sheet with the pro forma post merger contemplated balance sheet indicates that except for the preferred stock and common stock, Libby\u2019s finances will remain untouched."], "id": "be24323f-46a7-4290-a882-1217b31452b3", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["This New York court must examine the \u201ctotality of factual circumstances\u201d, based upon a fully developed record to determine whether or not it can or should, having sufficient policy interest herein (see Miner v Gillette Co., supra) exercise personal jurisdiction (under the \u201cminimum contacts\u201d test, flexibly applied under procedural due process) over all or a substantial number of class members. In addition, such a fully developed record is necessary to determine whether New York is the most appropriate forum under the doctrine of forum non conveniens. Thus, the parties are directed to continue CPLR article 31 precertification disclosure to specifically ascertain: (1) the exact size of the potential class; (2) the precise number of resident and nonresident class members and the number of shares each owns; (3) whether any potential class members have sued defendants in any other class or nonclass action, and, if so, what if any, was the disposition; (4) the geographic residential locations, distribution and distance from New York of the nonresidents; (5) the number of potential class members and shares owned by individuals, corporate and institutional investors together with their principal places of business; (6) when Wells (in New York) and BIS (in Delaware) were incorporated, the location(s) and duration of their principal offices, headquarters and operations; (7) the residence of the individual defendants, the places or sites of negotiations, execution, delivery and filing of documents in connection with the ; (8) and to the extent feasible the number of nonresidents who would submit to this court\u2019s jurisdiction to participate in subject class action or be subject to an equal or more appropriate jurisdiction. (Reis v Club Med, supra; Smith v Atlas Int. Tours, 80 AD2d 762; see, also, Simon v Cunard Line, supra; Klakis v National Leisure Corp., 73 AD2d 521, supra; Spatz v Wide World Travel Serv., 70 AD2d 835; Gottlieb v March Shipping Passenger Servs., supra.)"], "id": "3eeb6d4b-2b04-4a3b-b57e-e25511a70f3c", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Similarly, in New York, the forum State, the Court of Appeals has imposed upon a majority shareholder the duty to offer a fair price in a case where minority shareholders challenged an attempted freezeout merger as unfair (see, Alpert v 28 Williams St. Corp., 63 NY2d 557). In Alpert, the Court of Appeals made clear that the majority shareholder\u2019s fiduciary duty with regard to fair price is imposed because \"the merger seeks to cancel the minority\u2019s shares in exchange for cash\u201d (see, Alpert v 28 Williams St. Corp., supra, at 571), and further that the fiduciary duty of a majority shareholder is altered depending on the nature of the corporate transaction (Alpert v 28 Williams St. Corp., supra, at 569). Thus, in the context of freezeout merger, New York law imposes on the majority, inter alia, a duty to offer a fair price. It is by no means apparent, however, that in the context of a by a majority shareholder, any duty to offer a fair price would be imposed by the Court of Appeals upon the offeror. No such case has been cited by the plaintiffs, nor has research disclosed any."], "id": "6646c8a9-6273-4933-afaa-352f39a5ad4a", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The alleged failures of disclosure raised here by the plaintiffs do not rise to the level of materiality demonstrated in Joseph v Shell Oil (supra). Montedison properly disclosed the substantial range of values estimated by its appraiser Morgan Stanley and disclosed that the special committee had rejected the $35 per share offer as inadequate. These pieces of information represent the heart of the information needed by the minority shareholders to arrive at an informed decision; its disclosure sufficed to satisfy Montedison\u2019s obligation. The specific problems ascribed to the circular by plaintiffs are either inconsequential or inappropriate to demand from a circular. For instance, the offeror need not include in the circular the reasons why the special committee rejected the offer \u2014 indeed, it does not appear that Montedison had any way of knowing the committee\u2019s reasons. Similarly, an asserted belief on the part of certain special committee members that Montedison might be willing to pay $36.25, or that during negotiation Montedison indicated it might pay that amount, does not shed additional light on the value of the shares and was irrelevant to the circular\u2019s purpose."], "id": "1409459d-f6cf-4400-978b-0f9b36c97802", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Defendants cast this action in a different light. They portray it as an attempt by the Union to obtain an economic advantage for its members which it was unable to obtain from United through the ordinary and recently concluded collective bargaining process. Defendants assert that the Union is attempting to obtain benefits in litigation which it could not achieve at the bargaining table by attacking the corporate restructuring of Allegis in which a self- for approximately 63% of Allegis\u2019 outstanding shares (at $80 per share) was completed at a cost of approximately $2.8 billion on March 28, 1988."], "id": "37100503-fdbb-4c7c-89e7-ab34a2a375fe", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["One of the indicia of possible fraud is whether the dominant stockholders are using their own funds for the acquisition of total control, or whether they are using their control of the corporation to obtain corporate funds to finance their own acquisition. In this case, as has been indicated, up to the time of the Nestle continued to use its funds in the acquisition of Libby shares. The tender offer contemplated that the cost of acquisition of the outstanding minority interests of common stock and convertible debentures would be approximately $43 million. UFS, which had no assets other than the Libby shares which were transferred to it by Nestle and its affiliates, borrowed $8,500,000 from a Swiss bank and $25,230,000 from Nestle. Nestle repaid the Swiss bank loan, so all sums are presently owed to Nestle. It was originally contemplated that the sums owed by UFS to Nestle would be treated as a long-term debt, it being anticipated that upon maturity Nestle could make a capital contribution of the sum, extend the maturity date, or place the UFS debt with a third party. In the light of the recent Federal court rulings in Green and Marshel, defendants seem to have shifted their position somewhat. In the February 26, 1976 notice to the remaining shareholders about the merger, it is now indicated that Nestle will contribute to UFS the indebtedness incurred in connection with the acquisition pursuant to the tender offer, and will make a cash capital contribution for such remaining funds as would be required. No debt, even of a long-term nature, will be carried by the UFS-Libby merged corporation, and no Libby funds or Libby credit will have been used for stock acquisition. It was clear that this would not have been possible in any event since Libby did not have sufficient cash or liquid assets available for such use. In view of Libby\u2019s previous financial difficulty, a requirement that it or the corporation into which it would merge should pay for the stock acquisition would cripple or bankrupt it and leave the defendants with an empty shell. The possibility that Nestle would ultimately make a capital contribution was not remote, and it now appears, in accordance with the merger notice, that any indebtedness of the merged corporation because of the cost of acquisition will be eliminated."], "id": "78468939-dd7d-49d2-9a61-ed812a3b2c9d", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["\u201c(a) \u2018Takeover bids\u2019 means the acquisition of or offer to acquire by an offeror from an offeree, pursuant to a or request or invitation for tenders, any equity security of a target company, if after acquisition thereof the offeror would, directly or indirectly, be a beneficial owner of more than five percent of any class of the issued and outstanding equity securities of a target company.\u201d (Business Corporation Law \u00a7 1601 [a].) Black\u2019s Law Dictionary also provides a definition of \u201cTakeover bid\u201d:"], "id": "b9eeea2f-0bb4-4e00-b06d-d59b82f0de27", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The plaintiffs, however, do not offer, from either Dutch case law or statute any such measuring standard; rather, their arguments in this regard are derived from an amalgam of standards enunciated under the case law of Delaware and New York. Upon this basis the plaintiffs advance a standard which includes a duty to offer a fair price. On the other hand, the defendants have submitted an uncontroverted expert\u2019s affidavit which explains that neither Dutch statutory law nor Dutch case law imposes on a majority shareholder a duty to offer a fair price in a for the purchase of minority owned shares. Rather, Dutch law imposes simply a duty of reasonableness and fairness (Dutch Civ Code arts 7, 8). Indeed, the prospectus filed with the SEC by Ausimont\u2019s predecessor, Ausimont Compo, N.V., specifically advises prospective shareholders that"], "id": "89301efd-f2bd-463a-b071-703fae9051a8", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["*77Under Delaware law, the fiduciary duty of a majority stockholder making a is generally limited to the duty of full disclosure (see, Lynch v Vickers Energy Corp., 383 A2d 278 [Del 1977]). In Lynch the owner of a majority of the outstanding common stock of TransOcean Oil, Inc., made a tender offer to purchase all of TransOcean\u2019s outstanding common stock at $12 per share. As a result of the offer, Vickers obtained some four million additional shares. Thereafter, the plaintiff, a former TransOcean minority shareholder, commenced a class action for money damages contending that Vickers had violated its fiduciary duty toward the minority shareholders. A dismissal of that action was reversed by the Supreme Court of Delaware which explained that \"the limited function of the Court was to determine whether defendants had disclosed all information in their possession germane to the transaction * * * [i.e.,] information such as a reasonable shareholder would consider important in deciding whether to sell or retain stock\u201d (see, Lynch v Vickers Energy Corp., 383 A2d 278, 281, supra). The court concluded that although Vickers had accurately disclosed that TransOcean\u2019s net asset value had been estimated at \" 'not less than $200,000,000 ...\u2019*** 'and could be substantially greater\u2019 \u201d, that disclosure was not completely candid as it failed to disclose a second, more optimistic estimate in Vickers\u2019 possession, which estimate fixed the net asset value at $250.8 million (supra, at 280)."], "id": "d74a4744-619f-4be9-a6a5-21fec86a4066", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The order was presented for signature to a Justice of this court, not assigned to the Commercial Division, at 8:00 a.m. yesterday, without having the papers processed either by the Ex Parte Support Office or the Commercial Division Support Office. The application was not made on notice to counsel for Starrett, even though plaintiff knew the law firm that had been representing Starrett during the negotiations. The temporary restraints preclude Starrett from taking any steps with respect to the sale of the shares to any person including but not limited to, the commencement of a on Thursday, October 23, 1997. Startt was not made a party to this action, even though its identity was known, and the effect of the temporary restraining order was to preclude the commencement of the tender offer which had already been publicly announced and that, therefore, was required to be commenced no later than October 23, pursuant to Federal statutes and regulations."], "id": "b5ad4793-13e0-44db-998f-3c79c91399bd", "sub_label": "US_Terminology"} {"obj_label": "Tender Offer", "legal_topic": "Business Law", "masked_sentences": [". It, therefore, should be noted that whether the transaction was (as plaintiffs allege) improperly coercive is beside the point. The problem here is not the level of coercion. It is that the transaction should not have occurred since it could not be effectuated without violating section 308. In this regard, it should be noted that the redemption notice stated, \u201cAll holders that elect to tender their Bonds pursuant to such . . . shall agree [to] waive any and all inconsistent provisions of the [indenture].\u201d (See document No. 15 at 13.) Plaintiffs, who did not tender their bonds, did not agree to such a waiver."], "id": "d9b60e5b-6eff-4d39-9187-9f073bb77f50", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The facts underlying this action are as follows: On July 24, 1973 Canadian Development Corporation, hereinafter referred to as CDC, made a stock to purchase 10 million shares of defendant corporation \u2019s common stock from shareholders, for $29 per share. Plaintiffs, who were holders of 2,021 shares of Texas Gulf stock, tendered such shares to CDC prior to August 17, 1973 pursuant to the tender offer. The gravamen of plaintiffs\u2019 complaint is, that defendants, by obtaining a temporary restraining order on a lawsuit they commenced in an attempt to prevent CDC from consummating its offer, hampered and delayed plaintiffs in the receipt of the purchase price due. As a result of this alleged breach of fiduciary duty by defendants, who are directors of Texas Gulf, the plaintiffs then instituted this action for the loss of the use of their money during the time the culmination of the tender was allegedly delayed."], "id": "c3d42a91-6abb-4ca2-b6ec-d6e9716fe55c", "sub_label": "US_Terminology"} {"obj_label": "Tender Offer", "legal_topic": "Business Law", "masked_sentences": ["\"Accumulation of interest can be halted by an appropriate tender, sufficient to satisfy the claims prior to commencement of the action. This common law tender must be unconditional, be actually produced and offered, be deposited in court prior to service of an answer and be asserted as an affirmative defense in the answer. Cruikshank v. Gordon, 118 NY 165 (1890); Frankuchen v. Frankuchen, 63 Misc 2d 348 (Civil Ct. New York 1970); 6 Carmody-Wait 2d, ; Payment Into Court, \u00a7\u00a7 41:1, 41:12, 41:13, 41:19, 41:24; 72 NY Jur. 2d, Interest & Usury, \u00a7 46; 83 NY Jur. 2d, Payment & Tender, \u00a7\u00a7 140, 142, 143,166. When the tender meets those standards, it stops interest accrual as of the date of tender. Affiliated Credit Adjustors, Inc. v. Carlucci & Legum, 139 AD2d 611, 613 (2d Dep\u2019t 1988)."], "id": "7c57321e-db68-49ee-9c81-98be3a13bab0", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["By 1974 Nestle\u2019s ownership of Libby common stock had increased to over 60%. In 1975 the decision was made by Nestle, which already controlled Libby for all practical purposes, to eliminate minority shareholders, and to make Libby *178a wholly owned subsidiary. Nestle then transferred all its holdings of Libby stock to UFS, one of its wholly owned subsidiaries, and on May 29, 1975 UFS announced its to acquire the remaining common stock and convertible debentures. The tender offer explicitly stated that if sufficient shares were acquired, UFS intended to merge Libby with UFS. There was a complete disclosure of all applicable information about Libby, Nestle and UFS, their relationships, the range of stock prices, the book value of Libby stock, and the source of funds to be used to acquire the additional stock. The price offered for the shares was $8,125, which was 65% above the market price, and the highest price at which any stock had changed hands for the preceding three and one-half years. The offering price of the debentures was 20% above the market price. Unlike the situation in Concord and in Green, the offered price was not substantially below what shareholders had paid. In fact, plaintiff had purchased its 50 shares of Libby common stock in August, 1973, when the market price was about $6. As a result of the tender, almost 80% of the still outstanding shares of Libby common stock were surrendered. Since the tender offer, the Libby stock has been trading at a little over $7 per share."], "id": "ef42460e-a396-4a5c-b2fb-1d0835ce96b4", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In September 1987 BNY announced its intention to com*666menee a for all of the outstanding shares of IBC. It is unnecessary here to recite in detail the intricacies of the offer, its several amendments by BNY, and its rejection by the board of directors of IBC. Suffice it to state that the board of directors of IBC believes that acceptance of the offer is not beneficial for IBC\u2019s shareholders, stemming in large part from the fact that Federal regulations limit the number of prospective tender offerors. However, these regulations have recently been modified, which modifications will slowly deregulate the banking system over the next few years. The result of the deregulation may be to allow more large banking institutions, not presently able to bid for IBC, to do so. It is asserted that this will produce an auction type bidding during which, it is believed, a higher price can be negotiated by the board of directors. This argument has presumably been communicated to IBC\u2019s shareholders in response to BNY\u2019s tender offer. On October 9, 1987 the board of IBC adopted a \"rights\u201d plan. Pursuant thereto, one right per share of outstanding common stock was made payable to shareholders of record on October 19, 1987. If an acquisition is approved by the board, the rights can be redeemed by the board at .01 per right. The right to redeem is exercisable prior to the time a person or entity obtains ownership or control of 20% or more of stock of IBC."], "id": "ab357dd7-56fe-448c-bbd2-6a704fcdec18", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In fact, the redemption notice accurately portrays CHE\u2019s intentions. It is undisputed that CHE did not want to redeem 100% of the bonds. If it did, it would simply have exercised its unconditional right to call all of the bonds. A tender was more expensive for CHE, since the tender price was 1% more than the redemption price. CHE was willing to pay more by coupling a with a redemption because it thought it could resell the bonds tendered to Merrill (albeit synthetically via a total return swap), while bonds redeemed had to be canceled *1069pursuant to section 308 of the indenture and paid out with funds from the treasury escrow account. The transaction, therefore, was premised on CHE\u2019s ability to further transact with the tendered bonds."], "id": "7161d388-c157-4fe3-9b53-1162189b60c5", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["In this action plaintiffs, Long Island Lighting Company (LILCO), a public service corporation incorporated under the Transportation Law of the State of New York, and Herbert Jaffe (Jaffe), one of its shareholders, challenge the validity of the Long Island Power Authority Act (the LIPA Act [Public Authorities Law, art 5, tit 1-A]) and seek to enjoin its implementation. Before the court at this time is their motion for a preliminary injunction, restraining defendants, pendente lite, from taking any actions to implement the act, including but not limited to any actions to make a to purchase or exchange LILCO shares of stock for cash or securities for the purpose of enabling the State-created Long Island Power Authority (LIPA) to acquire LILCO\u2019s stock or assets. Plaintiffs also sue as taxpayers pursuant to State Finance Law \u00a7 123-b 0)."], "id": "5ba69592-f41b-4e25-a6c3-e6893ae9e22d", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["As noted earlier, plaintiffs contend that CHE redeemed less than 100% of the bonds. They rely on the letter\u2019s description of the transaction, which had two steps: (1) CHE first purchasing bonds voluntarily tendered, which would remain outstanding; and then (2) redeeming the rest of the bonds. Since approximately 45% of the bonds were not tendered, they argue, CHE effectuated a redemption of less than 100% of the bonds. Therefore, plaintiffs contend, CHE did not follow the indenture which required random redemption if less than 100% of the bonds were redeemed. Stated another way, plaintiffs argue that if CHE wanted to redeem plaintiffs\u2019 bonds, which comprised less than all of the outstanding bonds, CHE was required to put its own bonds, acquired in the , up for selection by lot with the non-tendered bonds."], "id": "0cb39fcc-39d1-4414-ae24-e05545f8c413", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": [". This is essentially the converse of the question posed by CHE\u2019s counsel during oral argument (see document No. 43, July 28, 2015 tr at 16-18) \u2014 namely, if redemption was a right that CHE had, how could one take the position that redemption, regardless if coupled with a , would be worthless for CHE? The answer, in this case, is defeasance. Prior to defeasance, a redemption right is the issuer\u2019s hedge against interest rates decreasing. The issuer pays callable bondholders a higher interest rate to compensate them for the risk of redemption. However, after defeasement, there is nothing for the issuer to effectively refinance and a redemption serves no purpose. This, if anything, suggests that defeased callable bonds should trade at an even higher premium (though whether this is empirically true is not a question the court has probed). While redemption is not a right the issuer forgoes by defeasing the bonds, it becomes a right not worth exercising. That is, perhaps, why there was so much of a spread between the bonds\u2019 redemption price and the market rate for CHE to try to capture with the transaction. Nonetheless, for CHE to take the position that the transaction was a manifestation of the redemption risk plaintiffs bargained for is simply inaccurate. Prior to defeasement, the bondholders certainly accepted the risk of redemption. Defeasement was a decision made by CHE for its own benefit, but it happened to effectively devalue CHE\u2019s call option. CHE cannot evade that reality and seek to justify its breach of section 308 by claiming that but for the transaction being permissible, it was not capable of availing itself of the value of its call option."], "id": "56620013-1d97-464c-a8de-5c4899733ca2", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Krasnicki\u2019s purchase of the subject shares conformed with the requirements of Business Corporation Law \u00a7 505 (d), and *550that transaction was approved by a majority of the shareholders. Despite petitioner\u2019s contentions, there is no evidence before this court that respondent Krasnicki acquired the stock pursuant to a \u201c,\u201d as that term is used in article 16 of the Business Corporation Law."], "id": "437d7877-fded-4858-b698-fd8536c7cc30", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Miss Farhi, testifying for the defendant, stated that, at the time in question, she was employed in the collateral loan department of the defendant and had been so employed for many years; that her invariable practice, when she received an executed from a customer (and she testified to receiving hundreds every year), was to attach a memorandum to it, and immediately mail it to the proper bank; and that no tender offer was allowed to remain overnight, but that it was always mailed on the day received. Mailing, she further testified, was not done in an envelope typed at the time, but in a pre-printed envelope made from a printing plate, for any bank with whom the defendant did sufficient business to justify making a plate. Chicago Bank was one such bank, and the tender would thus have been mailed in an envelope already printed with the correct address of the bank thereon, and of its vice-president, to whose attention the letter was directed."], "id": "70d43258-a6e4-4410-8981-0ee39bbd7dd6", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["On May 13, 2011, Emmet commenced an action in this court and moved by order to show cause for an injunction enjoining the and redemption. (See Emmet & Co., Inc. v Catholic Health E., Sup Ct, NY County, index No. 651290/2011 [the prior action].) CHE removed the prior action to federal court on May 16, 2011. By order dated May 18, 2011, the federal court denied the motion. (See Emmet & Co., Inc. v Catholic Health E., 2011 WL 2015533, 2011 US Dist LEXIS 54935 [SD NY, May 18, 2011, No. 11 Civ. 3272 [RMB], Berman, J.].) Judge Berman denied the motion, inter alia, because Em-met failed to establish that it would suffer irreparable harm since, if Emmet ultimately prevailed on liability, it could recover damages. (See 2011 WL 2015533, *1-3, 2011 US Dist LEXIS 54935, *1-9.) Judge Berman further held that \u201c[p]lain-tiffs lengthy delay in requesting injunctive relief \u2014 i.e., waiting 45 days to file its complaint such that only 3 work days remained before the scheduled closing \u2014 impose [d] unnecessary hardship on Defendants and preclude [d] a grant of equitable relief in Plaintiff\u2019s favor.\u201d (See 2011 WL 2015533, *4, 2011 US Dist LEXIS 54935, *10-11 [emphasis added].) On May 18, 2011, after the injunction motion was denied, the tender offer and redemption were consummated."], "id": "e04b2a08-cd1d-473b-948c-59e8edcd284a", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["The plaintiffs also allege that the challenged is so coercive as to be improper, in that the specter of the Dutch transfer proceeding, which Montedison says it will initiate if it obtains 95% of Ausimont\u2019s stock, acts to pressure the minority to sell at the inadequate price offered rather than risk owning unmarketable stock. I reject this contention for several reasons. First, there is a good argument to be made that if Montedison failed to disclose this information the failure might be actionable (see, Missouri Portland Cement Co. v Porter Co., 535d 388, 393 [8th Cir 1976])."], "id": "8b7d4f1f-ba59-46ca-b67c-b12b742415f3", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["A second \"conform\u201d machine was then ordered by another subsidiary of Davidson, Industry Court Realty Corp. (Industry Court), which was reflected in purchase order No. M10082 dated May 1, 1984. This purchase order refers to the terms and conditions of BWE\u2019s January 20, 1984 . BWE again confirmed the purchase order by cover letter dated August 8, 1984 which once more specifically refers to BWE\u2019s conditions of contract accompanying the letter. These conditions of contract contained the same arbitration clause and choice of law clause. The second machine was subsequently shipped to Industry Court."], "id": "0f596a73-5c6e-4984-8c21-908df24fe783", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["Parenthetically, even if a duty to offer a fair price were imposed by New York law upon a majority shareholder\u2019s , and even it such law were applicable to Ausimont\u2019s shareholders, I am unable to conclude on the record before me that the $35-per-share offer is unfair, or even to find it reasonably likely that such a finding would ultimately be reached. Reasonable people may differ as to the value of property; indeed, expert appraisers generally do (see, Joseph v Shell Oil Co., 482 A2d 335, 341, supra). Moreover, a court\u2019s *79determination of whether fair value was offered in these circumstances would of necessity be \u2014 at best \u2014 a loose approximation of an actual appraisal proceeding; if the purchase price is \"reasonably related\u201d to the value that might be set by an appraisal proceeding ordered pursuant to Business Corporation Law \u00a7 623, the \"fair price\u201d duty is satisfied (see, Alpert v 28 Williams St. Corp., 63 NY2d 557, 571, supra). Upon the submissions, I conclude that the $35 offer is not necessarily violative of any fair price duty."], "id": "b8cacecb-f829-4d36-9280-2aa9014fbf7e", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["On the strength of these contentions and the supporting documentary submissions, the plaintiffs seek a preliminary injunction staying the . To obtain a preliminary injunction, the movant must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the injunctive relief, and (3) a balancing of the equities (Albini v Solork Assocs., 37 AD2d 835). The court\u2019s consideration will therefore focus first on the merits of the plaintiffs\u2019 contentions."], "id": "1e894027-d089-488c-a126-0d43be83a3d9", "sub_label": "US_Terminology"} {"obj_label": "tender offer", "legal_topic": "Business Law", "masked_sentences": ["It appears that the gravamen of plaintiffs\u2019 complaint is the breach of their fiduciary obligation by Myron Chefetz (Chefetz) and Martin Krull (Krull), the individual defendants, respectively, Wells\u2019 president and chairman of the board, during the takeover by BIS. Between them Chefetz and Krull owned approximately 210,000 shares or 32% of its stock. At the time of BIS\u2019 there were a grand total of 672,868 outstanding shares of Wells\u2019 stock, of which 552 other shareholders, including plaintiffs (23,750 shares), held the balance of the remaining 463,304 shares, of whom, according to plaintiff, 268 (48.5%) owning 102,540 (22%) Wells\u2019 shares are nonresidents. On or about January 20, 1978, after negotiations during 1977 between the individual defendants and corporate defendant BIS, the latter through its subsidiary, BIS American Corporation \u2014 a French corporation, made a tender offer for all of the outstanding stock of Wells at the price of $5 a share, or approximately $3,364,340 for the total tender offer."], "id": "f83cabee-ceda-4ba0-845a-1f74d8b3cb95", "sub_label": "US_Terminology"} {"obj_label": "reliance damages", "legal_topic": "Business Law", "masked_sentences": ["In determining the validity of a contract for sale of religious property, the court, in Church of God of Prospect Plaza (supra), promulgated a two-tier analysis of the proposed sale. This analysis was adopted by the court in Matter of Church of St. Francis De Sales (110 Misc 2d 511, 512 [Sup Ct 1981]), where the court stated that consideration must be given to (1) *471the fairness and reasonableness of the terms of the transaction, as of the \"time of the making of the contract\u201d, and (2) whether the sale is in the best interest of the congregation at the time approval of the contract is considered. The critical variable of the contract for the court was timing. The time the contract was entered into was the moment for calculating fair market value. If approval was sought a year later and there was a rise in market value, the contract could not be defeated because the sale price was below market value. The second tier of the formula would allow the court broad discretion in analyzing the terms of the contract and whether it is in the best interest of the religious society. This is determined at the time of application for approval and would allow the court to deny the application if it would not benefit the religious society. Under certain circumstances, there may be protection for the purchaser. Where a religious corporation breaches a contract before receiving court approval, a purchaser may be entitled to recover expended by him in performance of the contract. (Wilson v Ebenezer Baptist Church, supra.)"], "id": "6854505c-d6db-4814-a6d8-26b461b39a14", "sub_label": "US_Terminology"} {"obj_label": "reliance damages", "legal_topic": "Business Law", "masked_sentences": ["In their third and final issue, the Siams argue that the trial court erred in refusing to award damages for the travel expenses, which they allegedly incurred in attempting to perform the contract, in an amount totaling $3,879.89.10 The Siams contend that they presented uncontroverted evidence of those expenses, and that the trial court was therefore required to award them those expenses as . Because we believe that awarding travel expenses to the Siams in this instance would result in a double recovery, we disagree."], "id": "ddeb9dd1-30f1-4354-8509-16de1ed40d0a", "sub_label": "US_Terminology"} {"obj_label": "Reliance damages", "legal_topic": "Business Law", "masked_sentences": ["\"American law has traditionally recognized three damages measures for breach of contract: expectancy, reliance, and restitution.\" See Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) ; see also Abraxas Petroleum Corp. , 20 S.W.3d at 760 (\"Damages for breach of contract protect three interests: a restitution interest, a reliance interest, and an expectation interest.\"). entitle a plaintiff to be reimbursed for the out-of-pocket expenditures that were caused by his reliance on the contract, in order to put him in the same position he would have been in if the contract had not been made. Quigley , 227 S.W.3d at 56 n.1 (Brister, J., concurring in part & dissenting in part) (citing *516Restatement (Second) of Contracts \u00a7 344 (1981) ); Sharifi v. Steen Auto., LLC , 370 S.W.3d 126, 149 (Tex.App.-Dallas 2012, no pet.) (reliance damages reimburse a plaintiff for expenditures made towards the execution of the contract in order to restore the status quo before the contract). Under this measure of damages, plaintiffs are entitled recover the \"expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.\" Mistletoe Exp. Serv. of Oklahoma City, Okl. v. Locke, 762 S.W.2d 637, 638 (Tex.App.-Texarkana 1988, no writ) (allowing for the recovery of capital expenditures plaintiff made as reliance damages, which included purchases of vehicles, in furtherance of contract to provide freight services to the defendant, less the amounts the plaintiff recouped by selling the trucks). On the other hand, expectancy damages, similar to benefit-of-the-bargain damages, award damages \"for the reasonably expected value of the contract.\" Sharifi, 370 S.W.3d at 148 (citing Foley v. Parlier, 68 S.W.3d 870, 884 (Tex.App.-Fort Worth 2002, no pet.) ); see also SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 317 n.6 (Tex.App.-Dallas 2004, no pet.) (benefit-of-the-bargain damages seek to restore the non-breaching party to the same economic position it would have been in had the contract been performed)."], "id": "b8beb045-e050-40f3-971e-d50c1d84d7b4", "sub_label": "US_Terminology"} {"obj_label": "reliance damages", "legal_topic": "Business Law", "masked_sentences": ["In its conclusions of law, the trial court determined: the contract is valid and enforceable; the contract is not illusory; and based on the clear and unambiguous language of the contract, the parties' intent at the time of formation was for the liquidated damages provision to serve as a reasonable forecast of appellee's expectation damages in the event of breach, not as a reasonable forecast of appellee's in the event of breach. It further determined that the liquidated damages provision was not a penalty. The liquidated damages provision is enforceable because at the time the contract was signed, damages resulting from material breach were very difficult, if not impossible to determine, and the amount of damages was a reasonable estimate of the harm that would be incurred. See Murphy v. Cintas Corp. , 923 S.W.2d 663, 666 (Tex. App.-Tyler 1996, writ denied) (upholding liquidated damages provision for 50% of the weekly fees for the remainder of the 60-month *316term, noting \"[t]o forecast the actual damages to Cintas as a result of Murphy's termination of the contract sixty months in advance would be fraught with uncertainty.\"); Oetting v. Flake Uniform & Linen Serv., Inc. , 553 S.W.2d 793, 797-98 (Tex. Civ. App.-Fort Worth 1977, no writ) (focusing on anticipated profit margin, court held that 85% cancellation charge reasonable). Here, the evidence of record demonstrated 40% was a reasonable forecast."], "id": "9856143d-606e-46bc-b633-28ae40936f02", "sub_label": "US_Terminology"} {"obj_label": "reliance damages", "legal_topic": "Business Law", "masked_sentences": ["However, a plaintiff may not receive both forms of damages; thus, if a plaintiff chooses to recover his for his out-of-pocket expenses, he may not also recover damages for his expectancy damages, i.e., for the profits or benefits he would have received if the contract had been performed, as allowing for both forms of damages would result in an impermissible double recovery. See Sharifi, 370 S.W.3d at 151 ; Mistletoe Exp. Serv. of Oklahoma City, Okl., 762 S.W.2d at 638 (citing The Restatement (Second) of Contracts \u00a7 349 (1981) ). For example, in Sharifi , the plaintiff had entered into a contract with the defendant to purchase an automotive repair business, and in reliance on the contract, the plaintiff incurred expenses for undergoing a training program to prepare him to run the business. Sharifi, 370 S.W.3d at 151-52. The trial court found that the defendant had breached the contract, and awarded the plaintiff the equivalent of the profits he would have received for a year if the contract had been performed, i.e., his lost profits, as well as his out-of-pocket expenses made in reliance on the contract, including his training expenses. Id. at 139. The Dallas Court of Appeals, however, concluded that the plaintiff could not receive compensation for both, as a \"party cannot both 'retain all the benefits of the transaction and escape all of the obligations.' \" Id. at 151 (citing Foley v Parlier, 68 S.W.3d 870, 885 (Tex.App.-Fort Worth 2002, no pet.)). As the court explained, a \"party is entitled to sue and seek damages on alternative theories but is not entitled to recover on both theories; to do so is considered equivalent to a 'double recovery.' \" Id. ; see also Mistletoe Exp. Serv., 762 S.W.2d at 638 (recognizing that a nonbreaching party may recover capital investments she made in furtherance of performing a contract, but may not also recover her lost profits under the contract); Foley , 68 S.W.3d at 884-85 (recognizing that a plaintiff seeking damages for breach of contract could not recover both his lost profits for a breach of contract, as well as his reliance damages, such as the moving expenses he had incurred in performing the contract, as doing so would result in an impermissible \"double recovery\")."], "id": "0eae6627-c2a6-4e4c-a3af-a5b391600f75", "sub_label": "US_Terminology"} {"obj_label": "reliance damages", "legal_topic": "Business Law", "masked_sentences": ["The issue thus presented is whether plaintiff has set forth facts to be entitled to a trial on the claim that the City breached its obligation to act in good faith in the negotiations. In commenting on this obligation, Professor Farnsworth noted in his aforementioned article: \"Fair dealing has one meaning where negotiations have resulted in an agreement and an aggrieved party seeks to avoid that agreement for unfairness. Here the claim of unfairness goes to the means used to induce agreement. Judicial experience in dealing with unfairness in this context goes back to the earliest claims of fraud and duress. Fair dealing has a quite different meaning where negotiations have failed to result in an agreement and an aggrieved party seeks to recover . Here the claim of unfairness goes to the means used to obstruct agreement. Courts have paid little attention to the meaning of fair dealing in this context. Those that have held that the parties can impose a duty to negotiate on themselves have often * * * left the meaning of fair dealing for a lower court to determine at a subsequent trial. Scholars, too, have been more concerned with the imposition of the duty than with its content\u201d. (Op. cit., at 269.)"], "id": "534bea6b-5831-4ae6-8bdd-296c8993cc22", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The crime of murder in the second degree is perhaps a little less marked. \u201c Such killing, unless it be murder in the first degree \u201d (reading as before). When this statute was first passed it was supposed by many members of the legal profession and by many members of the community, 'that it was designed to mark a crime of murder wherein the premeditation was not so clear and distinct as that of murder in the first degree. As for example, two men meet suddenly and through words passing between them, without any other provocation, the one, suddenly fired by wrath, kills, having formed the determination to kill upon the instant and upon the spot. Mow here is a case of designed killing, but it is a killing in the heat of passion, without a sufficient provocation to bring the crime-down to manslaughter in the second or third degree. That was murder at the common law and it was this class of cases to which many persons supposed this *210statute applied \u2022; whereas, it was supposed that murder in the first degree was designed to mark that class of cases where the evidence of premeditation was clear and well defined, as for example a person administers poison to another; there you have the purchase of poison, the mixing of the dose, and its administration. Or where a person, stealthily lay in wait for another and slew him upon meeting. Ton will see for yourselves that the latter cases are more marked by deliberation than the first cases I put. This, I say, was largely the opinion of the profession and the community when this section was passed. They also supposed it referred to another case, and that was where the killing was without any design to effect death when the person was engaged in the commission of a felony of a lower grade than that of in the first degree. As if, for example, .some persons should undertake to commit a burglary in your house, and while in the act of committing the burglary, without any intent to kill, that person should slay you. This was deemed to be covered by this second section. And I should charge you, gentlemen, that this was the law were it not for a decision of the court of appeals of this state which has construed, that statute and to which decision I now desire to call your attention. It is the case of Fitzgerald agt. The People (37 N. Y., 413). I read from chief justice Hunt\u2019s opinion (p. 19) where he says:"], "id": "71cbe0be-6bef-4a8e-b2e6-8caef2cb6001", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Count one of the indictment accuses defendant of second degree , committed as follows: \u201cdefendant, on or about July 12,1983, in the County of Monroe, State of New York, intentionally damaged a building by starting a fire, to wit, the defendant set fire to a garage located at 156-158 Flanders Street in the City of Rochester, which spread to a building located at 162-164 Flanders Street * * * when another person who was not a participant in the crime was *369present in such building located at 162-164 Flanders Street * * * and the defendant knew that fact or the circumstances were such as to render the presence of such a person therein a reasonable possibility.\u201d"], "id": "49ed0218-fa43-42ba-862c-56d697e8135c", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In view of the foregoing, defendants G Holdings, LLC and Garson Management Company, LLC, as direct and indirect owners of 500A, a limited liability company, cannot be held liable to plaintiff, since there was no showing that they dominate and control 500A with respect to the matter in issue (see Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 210 [1st Dept 2005]; Limited Liability Company Law \u00a7 609)."], "id": "600b326c-4830-42f4-a537-85e8d3c1ab34", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Jessica alleges the circuit court erred in designating Jason as a third party in their dissolution proceeding and awarding him third-party custody because such an award violates section 452.375.5(5). Jessica maintains the legislature did not intend for a third party under section 452.375.5(5) to include a party to a dissolution proceeding. Jason's designation as a third party is a legal question this Court reviews de novo. Pe v. Koster , 367 S.W.3d 36, 43 (Mo. banc 2012)."], "id": "c6fa02fe-b1d4-44d1-a856-e27b039db1a4", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A determination of the question can be brought on in many ways. The commonest method is by a habeas corpus proceeding (Matter of Livingston, 151 App. Div. 1; People ex rel. Lentino v. Feser, 195 id. 90; People ex rel. Cornelius v. Cullen, 69 Misc. 187; Matter of L, 31 Hun, 539; revd., on other grounds, 96 N. Y. 381), but it has also been adjudicated in a proceeding to abrogate an adoption (Matter of Moore, 72 Misc. 644; Matter of Johnston, 76 *690id. 374; Matter of Hayford, 109 id. 480) and on an issue of status on the probate of a will (Matter of Dein, 135 Misc. 244). It may, and of course frequently is, made an issue on the initial application for allowance of the adoption (Matter of Miller, 119 Misc. 638). The proceeding instituted by petitioners is entirely appropriate for the purpose, and is analogous to an application for the reprobate of a will where a potentially interested person has not been cited in the first instance. Not only is the jurisdiction of the court clear from this aspect of the question, but the answer of respondents invokes the affirmative relief of abrogation."], "id": "09a84834-3fdf-434f-970e-6a7291c3f524", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"1. A person is guilty of in the first degree when he intentionally damages a building * * * by causing an explosion or a fire and when (a) such explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building * * * and when (b) another person who is not a participant in the crime is present in such building * * * at the time; and (c) the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility."], "id": "c32ab7eb-ab64-4a55-b6f3-37effa30c574", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The petitioner urges (1) that the law of New York applies in the determination of the nature and extent of the bequest under the will to testator\u2019s nephew, James C Agnew; (2) that the condition attached to the gift, namely, that the share passing to this nephew be held in trust so long as he is married to his present wife, and in the event the marriage relationship is dissolved that the trust terminate and the principal be immediately paid over to him, is invalid as against public policy; and (3) that in any event the trust is invalid because it violates the Statute against Perpetuities. The nephew makes the same contention and further urges that he is entitled to one fourth of the residuary estate outright, as if no condition were annexed to the gift or as if the void condition had been complied with. The special guardian on behalf of infant remaindermen, submits that the court should declare inoperative the condition for the termination of the trust based upon dissolution of the marital status, should uphold the trust as far as possible in all other respects, and should apply the law of Minnesota as to the duration and administration of the trust."], "id": "04bd59cb-5ffc-40c1-9e76-0aefe1d68cac", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1. Duplicitous \u2014 A count in an indictment can only charge a single crime. If the indictment charges in a count more than one crime, it is duplicitous and invalid (People v Keindl, 68 NY2d 410, supra). If a crime is continuous, then charging in a single count multiple acts which constitute the continuous crime is not duplicitous (People v F, 244 NY 413)."], "id": "3c61ce57-8152-45f0-b82c-b4c39966da1d", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" In support of his motion, the plaintiff submitted his uncontroverted General Municipal Law \u00a7 50-h hearing testimony which demonstrated that, while stopped for approximately five to seven seconds, his vehicle was struck by the defendants' bus, and that the defendants' bus crossed over the double yellow line and at least two lanes of traffic in the opposite direction before colliding with his vehicle. The plaintiff's testimony also demonstrated that the bus operator violated Vehicle and Traffic Law \u00a7 1126(a) by crossing the median and entering the opposite lane of traffic (see Gute v Grease Kleeners, Inc., 170 AD3d 676, 677; Pe v Northstar Limousine, Inc., 123 AD3d 991, 991), violated Vehicle and Traffic Law \u00a7 1128(a) by failing to drive, to the degree practicable, within a single lane (see Pipinias v Ferreira, 155 AD3d 1073, 1074), and violated his common-law duties to see what there is to be seen (see Peluso v Martinez, 136 AD3d 769, 770) and to keep a proper lookout to avoid a collision (see Canales v Arichabala, 123 AD3d 869, 870)."], "id": "0e7f5831-40c4-4f7f-a350-34850c153ad5", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*898Here, the WCJ found Hernandez met the three requirements set forth in Tensfeldt, and the WCAB adopted those findings. The WCJ found that Hernandez suffered a compensable injury, there was substantial medical evidence supporting an award which did not stem from his fraudulent statements, and his credibility had not been so damaged as to make him unbelievable concerning the underlying compensation case. As to the first requirement, Pe Ford does not challenge the WCAB's determination that Hernandez suffered a compensable injury. As to the third requirement, although Pearson Ford contends that Hernandez's credibility could not be restored, we are bound by what is plainly a credibility determination made by the board; that determination, made after extensive consideration by the WCJ does not appear to be wholly irrational, especially in light of the fact there is no dispute Hernandez in fact suffered a compensable injury and Dr. King stated that he relied on objective testing."], "id": "6c439982-2d7c-4f6f-bbc4-c677fe31beed", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When Justice G consented to act as an attorney-in-fact, he became a fiduciary. A power of attorney creates a fiduciary relationship between principal and agent (Matter of Roth, 283 AD2d 504 [2d Dept 2001]; Mantella v Mantella, 268 AD2d 852 [3d Dept 2000]; Matter of Kent, 188 Misc 2d 509 [Sup Ct, Dutchess County 2001]). As such, Justice Garson had a duty to act with the utmost good faith in accordance with the principles of moral fidelity, loyalty and fair dealing (Semmler v Naples, 166 *850AD2d 751 [3d Dept 1990], appeal dismissed 77 NY2d 936 [1991]). That duty, as far as it relates to this proceeding, includes accounting for all of the withdrawals made from Ms. Gershenoff s accounts (Matter of Kent, supra)."], "id": "93642d38-be12-4b67-9a58-372df6476c2e", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A response cost is \" 'necessary' \" if \"there is a threat to human health or the environment and ... the response action is addressed to that threat.\" ( C Harbor, supra , 270 F.3d at p. 872 ; see Alcoa, supra , 12 Cal.App.5th at pp. 327-328, 219 Cal.Rptr.3d 474.) The necessity requirement may be met \"if it is shown that any release violates, or any threatened release is likely to violate, any applicable state or federal standard, including the most stringent.\" ( Amoco Oil Co. v. Borden, Inc. (5th Cir. 1989) 889 F.2d 664, 670-671 ; see Alcoa , at p. 328, 219 Cal.Rptr.3d 474 [\"The presence of VOC contamination at significant levels was a threat to human health and the environment.\"].) \"Investigatory costs incurred 'in order to assist with and help plan the eventual remediation and cleanup efforts' are necessary under CERCLA [citation] and ' \"are recoverable even absent any subsequent recoverable response costs\" ' [citation].\" ( Alcoa , at pp. 327-328, 219 Cal.Rptr.3d 474.)"], "id": "9801bbe3-9559-479c-b62d-1728cc351c39", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The idea that the board of police may try and convict persons charged with perjury or murder, , or other legal offence, is simply preposterous. Those offences can only be tried by a jury, and in the mode provided by law. Neither an act of the Legislature, or the consent of the accused, will justify a trial for these offences in any different manner."], "id": "514f6fd6-1053-45ef-b4ed-988c5c3a9e42", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*1026\u201c Fourth. After the death of my said wife, I give, devise and bequeath all the Rest, Residue and Remainder of my Personal Property and Real Estate as follows: one-sixth part thereof, to my daughter, Henrietta Lemken * * * absolutely and forever; another one-sixth part thereof, to my daughter, Carrie G, Schroder * * * absolutely and forever; another one-sixth part thereof, to my daughter, Meta F. L * * *; another one-sixth part thereof, to my son, Albert E. Schroder * * * another one-sixth part thereof, I give, devise and bequeath to my executors hereinafter named, in Trust, however, * * * to' * * * collect the rents * * * therefrom, and after the payment of all necessary * * * expenses thereon to pay the balance thereof to my son, Martin F. Schroder, during his natural life; and upon the death of my said son * * * I direct my Executors or Trustees, to pay the said one-sixth part * * * to the children of my said son * * * absolutely and forever.\u201d"], "id": "ac096293-7a66-4f60-9eb2-44190e7f6812", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["JONES, Judge: Petitioner, John M. L, along with two other individuals, Robert A. Pfaff and David Amir Makov, promoted a fraudulent tax shelter transaction known as Bond Linked Issue Premium Structure (BLIPS). Mr. Larson was convicted of tax evasion for his involvement in BLIPS, but the central issue in this case concerns the use of a restricted stock agreement to defer recognition of income earned from these transactions."], "id": "6d971cc8-0620-470f-897f-55ad82d4f432", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Offenses which are the \"individual manifestations of a general plan\u201d which has motivated the offenders to commit them, of necessity, constitute aspects of a single conspiracy (see, e.g, United States v Varelli, 407d 735, 742, supra; cf. Blumenthal v United States, 332 US 539, 557 [1947]). This is *196apparent from comparison of the cases used in Fiore (supra) to demonstrate the rule of evidence. On the one hand, in People v Grutz (212 NY 72) the court held that evidence of uncharged arsons would be inadmissible to prove the charged, because they were \"separate, independent transactions, separately planned and effected, albeit due to an initial overall agreement between the two culprits\u201d to insure, and then to destroy, the property insured, by fire (34 NY2d, at p 86; emphasis added). On the other hand, in People v Duffy (212 NY 57) evidence of a series of periodic payments by a group of gamblers to the defendant police sergeant and to his predecessor was held to be admissible to prove the single bribe charged, since there was proof that all of the bribes were made in the course of a \"single inseparable plan encompassing both the charged and uncharged crimes\u201d. (34 NY2d, at p 85; emphasis added.) A common scheme or plan in the evidentiary context is, therefore, defined by that singularity of purpose which also characterizes a single conspiracy."], "id": "9f7d8b7d-36cd-4002-815b-11a3b1eb7c06", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to the determination of the respondents, the testimony and evidence submitted by community residents with respect to the effect the operation of the cabaret had on the surrounding neighborhood, particularly in connection with the use by cabaret\u2019s patrons of a Town-owned parking field located across the street therefrom, was insufficient to sustain a determination that the operation of the cabaret, in and of itself, was the primary source of the noise, disturbances, trespassing, and littering with which the residents voiced displeasure (see, Matter of Lee Realty Co. v Village of Spring Val. supra; see, e.g., Matter of Texaco Ref. & Mktg. v Valente, supra; Matter of C & B Realty Co. v Town Bd., supra; Matter of Old Ct. Intl. v Gulotta, supra; cf., Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of Penny Arcade v Town Bd., 75 AD2d 620). There was evidence that noise and vibrations emanating from the cabaret posed somewhat of a disturbance to residents of dwellings located adjacent to the Town-owned parking field. However, the respondents are empowered to impose reasonable conditions to minimize disturbances which are both directly associated with and incidental to the operation of the cabaret, to ensure the comfort, peace, enjoyment, health and safety of the surrounding area (see, Matter of St. Onge v Donovan, 71 NY2d 507, 515-516; Matter of Pe v Shoemaker, 25 Misc 2d 591, 592; see also, Building Zone Ordinance of Town of Hempstead \u00a7 267 [D] *688[3]). Accordingly, we reverse the judgment, annul the respondents\u2019 determination as to the special exception permit, and remit the matter to the respondents for the purpose of issuing the special exception permit requested, subject to appropriate conditions and restrictions as it may find necessary."], "id": "cbcea14e-096d-49ce-9c73-9b4116f0efa8", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201c Such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereafter provided, shall be murder in the first degree, in the following cases: \u201c 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.\u201d It is under this subdivision I suppose the prosecution will insist (if under any), that the prisoner is to be convicted. \u201c 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. \u201c 3. When perpetrated in committing the crime of in the first degree.\u201d *206These are the statute definitions of this crime, of which I shall have occasion presently to speak when I shall have read to you the various definitions of murder in the second degree, of justifiable and excusable homicide and manslaughter in its degrees. Murder in the second degree is thus defined:"], "id": "950abc79-417d-4cee-b7aa-d43d598e55dd", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In his Rule 37 petition, Guthrie alleged that his trial counsel was ineffective because, among other things, counsel did not question or strike venireperson Garland *462Pe when counsel was advised by Guthrie that Pearson's uncle had brought criminal charges against Guthrie. Guthrie further alleged that Pearson had lied under oath when he said that he did not know Guthrie because he (Guthrie) had been married to Pearson's first cousin, Laurie. Guthrie further alleged that Pearson became jury foreman, which put him in a position to influence and manipulate the other jurors."], "id": "572344b3-c84b-491b-a9e2-0a1871835cf0", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*653Similarly, the New York Court of Appeals stated in a case that involved a Form U-4 that incorporated NASD rules: \u201cThe reasoning is that \u2018by adopting the NASD Code of Arbitration Procedure as the rules governing their dispute, [the parties] agreed to give the arbitrators discretion via section [10324] of [the] Code to interpret section 15\u2019s time limitation\u2019 \u201d (Matter of Smith Barney She v Sacharow, 91 NY2d at 47 [citation omitted]). There, of course, the question of arbitrability turned on the timeliness of the claim."], "id": "9bb3a908-9e0b-4c32-bb63-fc687d495938", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Darcy v. Presbyterian Hospital (202 N. Y. 259) involving the right of a mother to maintain an action for damages resulting from the mutilation of the remains of her deceased son through an unauthorized autopsy on the body, the court stated its approval of the rule adopted in the case of L v. Chase (47 Minn. 307) \u2014 as the Massachusetts courts previously had done."], "id": "b3a41ad2-700a-46b4-ac4d-be8995e77a3d", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Donald J. Mark, J. This is an application by the defendants, Jannie Dudley and Linda Washington, who have been charged with the crimes of murder, second degree (two counts), burglary, first degree (two counts), attempted , second degree, and unlawful imprisonment, first degree (two counts), pursuant to CPL 710.20 (subd 3), to suppress statements made by them to the police and an Assistant District Attorney upon the ground that they were obtained by means of a promise in violation of CPL 60.45 (subd 2, par [b], cl [i]).1"], "id": "75fcf61a-4171-4cc7-ae90-dc24ed318344", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["An examination of the petition reveals that it does not set' forth the exception to the Office of Price Administration Regulations upon which the landlord relies. While the contention of the tenant has merit, and while it is desirable to set forth the exception, the Appellate Division, Second Department, has held that the absence of such an allegation does not constitute a fatal defect. (Ellenbogen v. Caldwell, 270 App. Div. 946, and Matter of Hollis v. Gelbach, 270 App. Div. 1063.) These cases indicate that the procedure has not been changed by the- Federal housing regulations, that it is not necessary to plead conformity with the National Housing and Rent Act, and that compliance with the Federal restrictions can be established upon the trial. (See, also, L v. Grady, City Court of New Rochelle, Dec. 9, 1946, Fasso, J.*)"], "id": "794ebefb-6ac4-4d6f-bbca-d0d5c85a88ad", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court is unable to concur in the construction that the gift to Mrs. Pe is absolute and that the words \u201c to be used by her in promoting the welfare of her children \u201d are merely precatory. The words used by the testatrix are not precatory in character. She did not attempt to express a wish, desire, hope, request or recommendation. Her words are imperative in character. Title indeed is given to Mrs. Pearson but the bequest is coupled with the clear mandate that the money \u2018 \u2018 be used'by her in promoting the welfare \u201d of her three named children. She is granted a broad discretion in using the money, limited only by the general standard fixed by testatrix, but she plainly has no authority to use it for any purpose unconnected with the welfare of her children."], "id": "360305e5-163e-4be4-a488-69f37387fc73", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The ACCA applies to defendants who have at least three prior convictions for \u201cviolent felonies.\u201d \u00a7 924(e)(1). To qualify, the crime of conviction is judged categorically by its elements, not by the defendant\u2019s conduct. Taylor v. United States, 495 U.S. 575, 600 (1990). The crime must have as an element the use, attempted use, or threatened use of force, or be comparable to common law burglary or certain other crimes. \u00a7 924(e)(2)(B). Parker\u2019s pre-sentence report listed eight prior felonies: Four for Illinois burglary; two for Illinois residential burglary; one for Illinois ; and one for Illinois aggravated battery. The court did not note which of them qualified as violent felonies under the ACCA. At his sentencing, Parker did not dispute that he had at least three prior violent felonies, nor did he take a direct appeal."], "id": "e0520bc0-7cbc-45af-b2d4-9dabc66ba5c3", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Confinement of prisoners in excess of a facility\u2019s rated capacity is a violation of inmates\u2019 constitutional rights. (Ambrose v Malcolm, 414 F Supp 485; Pugh v Locke, 406 F Supp 318, supra; Miller v C, 401 F Supp 835; Costello v Wainwright, 397 F Supp 20, affd 525d 1239, vacated 539d 547, revd 430 US 325, supra; see, also, Detainees of Brooklyn House of Detention For Men v Malcolm, 520d 392, supra; Valvano v Malcolm, 18 Crim L Rep 2394.)"], "id": "d7b04b5c-540a-4952-aea9-8611846fc22b", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The contract provision invoked by Rotterdam requires snow removal by Blay, as quoted above, but the quoted sentence goes on to say, \u201cat the direction of the Site Supervisor or an authorized representative.\u201d The contract also provides that Blay is to plow only when notified that two inches has fallen at the mall. According to Mr. DiMarco\u2019s deposition testimony, it was the responsibility of the site supervisor or the chief of security to contact Blay when two inches of snow had fallen at the mall. No deposition testimony has been offered on this motion from the site supervisor, listed in the accident report concerning Mrs. Yansak\u2019s fall as Steven Pe, or of any other \u201cauthorized representative\u201d who may have directed Blay\u2019s activities during the time frame in question. It is not clear on the record thus far whether the phrase \u201cat the direction of the Site Supervisor\u201d simply refers to notifying Blay when the requisite two inches of snow has fallen at the mall, triggering his duty to plow, or whether it also includes particulars such as which areas to plow."], "id": "1f06f6c0-004a-4e39-9701-74ca5f1641ed", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["These are two of the most solemn declarations a man could make, one in his will and the other in an acknowledgment to a deed, where the law required him to state whether he was married or not; the latter, made in a most public and solemn manner before a commissioner of the state of Washington authorized to take such acknowledgments. How are these declarations to stand against the uncertain evidence of persons who are brought here to say that decedent said that he was married or that petitioner was his wife, or words to that effect? Are a man\u2019s solemn declarations in instruments of that kind of less avail than such transient testimony? The authorities cited in Pe v. Pearson say that they are most important in such matters."], "id": "441eece9-2d6d-4817-92d3-88400c0f6fed", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Nicholas A. Clemente, J. The defendants were indicted on six counts of murder in the second degree and one count of in the second degree. The People maintain that on February 7,1980 the defendants set fire to premises located at 695 Sackett Street, Brooklyn, New York, in an attempt to burn out one Hannah Quick. A consequential result was that six people, residing in another apartment, died."], "id": "0f32371b-2e1c-41f9-befd-1095338d7baa", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is claimed on part of the contestants that the note was executed entirely without consideration \u2014 an attempted hub ineffectual testamentary provision \u2014 in other words, that it was intended purely as a gift; if such contention is sustained by the evidence, the claimant is not entitled to recover. Pe v. Pearson, 7 Johns. 26; Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 id. 64."], "id": "12c1775f-48b6-4898-8622-b419d27adf78", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The general doctrine, that a delivery is necessary to con*311summate a gift, is reiterated through a long series of decisions in this state, and is not controverted by the counsel for the plaintiff. (See Goodrich v. Walker, 1 Johns. Cas. 252; Noble v. Smith et al., 2 Johns. Rep. 52; Pe v. Pearson, 7 Ib. 26; Grangiae v. Arden, 10 Ib. 292; Cook v. Husted, 12 Ib. 187, and cases there cited and in notes.)"], "id": "27a44d12-80d3-4c83-bf41-9fddf1bdd481", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On this type of motion the function of the court is to determine whether factual issues exist \u2014 not to determine them. Here the allegations in the affidavits with respect to the nature and extent of the contacts the City had with She and Merrill Lynch & Company relating to the subject property during the period in which the City was to negotiate exclusively with plaintiff are alone sufficient to raise triable issues as to whether the City breached its obligations under *879the designation agreement. Hence, its motion for summary-judgment is denied solely to the extent that the complaint seeks the recovery of plaintiffs out-of-pocket expenditures incurred in connection with the designation agreements."], "id": "46a3122c-1c00-49c8-8390-0ec8e75f12bf", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cThe term [motor vehicle], which is defined here in essentially the same manner as in the Vehicle & Traffic Law \u00a7125, is then added in each of the four sections defining the various degrees of the crime of . \u201cThese amendments were part of a larger enactment establishing a State Office of Fire Prevention and Control to coordinate statewide efforts directed at the arson problem. The inclusion of\u2018motor vehicles,\u2019 in addition to \u2018buildings,\u2019 as subjects of the crime of arson seems to reflect the conclusion that arson-for-profit is not limited to the torching of buildings but extends to the destruction of automobiles and trucks. Since the definition of\u2018building\u2019 (subd. 1) already included such vehicles as house trailers and mobile field offices, the addition of \u2018motor vehicles\u2019 essentially *864brings automobiles, trucks and buses within the scope of arson crimes.\u201d The memorandum of the State Executive Department (NY Legis Ann, 1979, p 152) states:"], "id": "c71a1b6f-1fed-4012-a6d8-402ab6a182b3", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant contends that suppression is required because the police began searching the apartment before arrival of the warrant on site, even as to items seized after he came in with the warrant. While there are two cases which held that evidence seized after a warrant has been signed, but before it has arrived at the place to be searched, should be suppressed (People v Okun, 135 AD2d 1064 [3d Dept 1987]; People v C, 99 AD2d 664 [4th Dept 1984]), Fourth Amendment jurisprudence in the Supreme Court has fully abrogated them. There is as yet no separate state constitutional rule in this area. (People v Martinez, 187 AD2d 992 [4th Dept 1992].)"], "id": "edc92586-f6df-498c-8756-469e87d12074", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["First. If the parol agreement was made prior to the execution of the deeds, in the absence of any averment of mistake in respect to the deeds, and in the absence of any reformation of them, it must be held that the deeds are controlling evidence in respect to the intentions of the parties; and that if any parol agreement existed at the time of the execution of the deeds it was the intention of the *108parties that the same should be abandoned and their several undei*etandings in respect to the boundary line merged in the written conveyance. If the parol agreement was made subsequently to the execution of the deeds, then the same was void under the statute of frauds as it related to an interest in real estate. (Marie v. G, 13 Abb. N. C., 210.)"], "id": "da91523b-324a-47fd-b461-4a56519311b1", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Act thus recognizes that a party to an arbitration agreement may elect to initiate a civil action, rather than an arbitration proceeding, and it specifically protects the party's right to do. Our Supreme Court recently explained why the Legislature wrote such protection into the Act: \"According to its legislative history, [ section 1281.12 ] prevents 'parties from being either forced to abide by arbitration agreements of dubious validity instead of seeking court evaluation, initiating costly and duplicative proceedings, or being unfairly deprived of any forum for resolution of the dispute. Supporters observe that there are many legitimate reasons why a party might file a lawsuit in court, rather than demanding or pursuing arbitration . Among these are the following: (1) the plaintiff may believe the claims are not subject to arbitration because the arbitration agreement is unenforceable on grounds of unconscionability or similar concepts; (2) there may be a dispute about whether the particular claims at issue do or do not fall within the scope of an arbitration agreement; (3) the plaintiff may contend that one or more of the statutory grounds for denying a petition to compel arbitration set forth in Code of Civil Procedure section 1281.2 exist, assuming the defendant does file a petition to compel arbitration in response to the plaintiff's filing of the lawsuit; (4) the plaintiff may prefer a court trial or jury trial and simply be hopeful that the defendant will not assert any right to arbitrate the claims, for whatever reason [indeed, the defendant may decide that it prefers a court *768proceeding as well]; and (5) the plaintiff might not *601even be aware that there is an arbitration agreement governing the controversy.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1553 (2005-2006 Reg. Sess.) for hearing Apr. 5, 2005, p. 3, underlining and extra capitalization omitted.)\" ( Pe Dental , supra , 48 Cal.4th at pp. 673-674, 108 Cal.Rptr.3d 171, 229 P.3d 83, italics added.)"], "id": "1aceb17c-db02-46ac-b24d-dd51b719a372", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There not being the evidence required by law,\"to authorize the marriage of Ann C with the prisoner in the bar, it is clearly the opinion of the court that it was, to all intents and purposes, null and void. This being the case, it follows that she was guilty of adultery vrith Smith ; that the rights of Smith, as a third person, have no legal foundation or existence; that Carson had an undoubted right to proceed at law against his wife for a divorce, and to settle with her, and withdraw the suit, whenever he thought, proper, without the consent of the prisoner, or any other person. The law now1 under consideration supposes a case of this very kind, by enacting, that in any suit for a divorce on the ground of adultery, if the defendant shall prove that the plaintiff admitted the defendant into conjugal embraces after he knew she had been guilty of adultery, it shall operate as a perpetual bar to his obtaining a divorce."], "id": "a893342d-9b95-4db8-9a93-b7e2d2152de6", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The courts have discussed the meaning of the word \u201c abandoned \u201d as used both in relation to an adoption and in relation to section *295133 of the Decedent Estate Law (See Matter of L, 31 Hun, 539; Matter of Davis, 142 Misc. 681; Matter of Hess, 143 id. 335; Matter of Schriffrin, 152 id. 33, and Matter of Cohen, 155 id. 202), and from said decisions there would seem to be analogy between the meaning of the word as used in relation to adoptions and in relation to inheritance of moneys recovered in cases of death by negligence, and as stated in Matter of Davis (142 Misc. 681, at p. 691), \u201c It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.\u201d"], "id": "57ca9242-5c77-4813-9610-c42cf608dd13", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Respondents argue that the alleged wrongful forwarding of appellants' tax returns comes within the litigation privilege because it was \"in anticipation of the civil action\" appellants \"would surely (and did in fact)\" file if State Farm denied their claim despite Dennis Strawn not having been convicted of . Respondents maintain that Wood was acting to protect his client in anticipated litigation and that appellants demonstrated they also anticipated litigation by retaining legal counsel before the present case was actually filed. Respondents also argue that the alleged wrongful forwarding of the tax returns had \"some connection or logical relation\" ( Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365 ) to both the present suit and the criminal prosecution because the fact Dennis Strawn was prosecuted shows there was at least probable cause to believe he had intentionally caused the fire ( Lee v. Crusader Ins. Company (1996) 49 Cal.App.4th 1750, 1759, 57 Cal.Rptr.2d 550 ); the *1097financial condition of the insured is \"relevant and material\" where an insurer \"has reason to suspect arson\" ( *225Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 1001, 106 Cal.Rptr.3d 26 ); and the fact that the criminal case did not result in conviction does not mean State Farm had no basis for continued suspicion, given the higher standard of proof required for proof of a criminal offense. ( Ibid. ; see Suggs v. State Farm Fire and Casualty Co. (10th Cir. 1987) 833 F.2d 883, 891 [denial of claim not in bad faith denial despite arson charges having been dropped].)"], "id": "4bbb693c-0450-4c3c-b2c7-937d29a4e376", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Under CERCLA and the HSAA, \" '[t]o prevail in a private cost recovery action, a plaintiff must establish that (1) the site on which the hazardous substances are contained is a \"facility\" under CERCLA's definition of the term, Section 101(9), 42 U.S.C. \u00a7 9601(9) ; (2) a \"release\" or \"threatened release\" of any \"hazardous substance\" from the facility has occurred, 42 U.S.C. \u00a7 9607(a)(4) ; (3) such \"release\" or \"threatened release\" has caused the plaintiff to incur response costs that were \"necessary\" and \"consistent with the national contingency plan,\" 42 U.S.C. \u00a7\u00a7 9607(a)(4) and (a)(4)(B) ; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [ 42 U.S.C. \u00a7 9607(a) ].' \" ( C Harbor Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 870-871 ( Carson Harbor ) [en banc].)"], "id": "58427ec5-e5c4-4bf5-bf2e-b6b0ea7c53e0", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The cases below cited go to the length of asserting that a testamentary provision to a widow in lieu of dower is not subject to abatement, in the first instance, and before other legacies have been exhausted, *625for the satisfaction of her husband\u2019s debts; but they go no further (Heath v. Dendy, 1 Russ., 543 ; Burridge v. Bradyl, 1 P. Wms., 127 ; Blower v. Merret, 2 Ves. Sr., 420; Norcott v. Gordon, 14 Sim., 258; Davenhill v. Fletcher, Ambl., 244 ; Reed v. Reed, 9 Watts, 263 ; Hubbard v. Hubbard, 6 Met., 50 ; Pollard v. Pollard, 1 Allen, 490; Gaw v. Hoffman, 12 Gratt., 628; Howard v. Frances, 30 N. J. Eq., 444; Potter v. Brown, 11 R. I., 232; Lord v. Lord, 23 Ct., 327; Loocock v. Clarkson, 1 Dess., 471 ; Williamson v. Williamson, 6 Paige, 298; Stuart v. C, 1 Dess., 500)."], "id": "5b95b3f4-06bd-4a3a-930c-796d27e7d7d7", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by virtue of a November 21, 2011 judgment which had been entered against plaintiff in a declaratory judgment action in the Supreme Court, Nassau County. Plaintiff cross-moved for summary judgment. By order dated April 23, 2014, the Civil Court (Robin S. G, J.) denied defendant\u2019s motion and granted plaintiff\u2019s cross motion, directing plaintiff to enter judgment in the principal sum of $556.78, plus statutory interest and attorney\u2019s fees. In July 2014, plaintiff submitted a proposed judgment in the total sum of $988.34. A judgment was ultimately entered on September 19, 2014 in the sum of $993.34."], "id": "1046c9cd-a27f-44c9-b70a-da7ef507c411", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiff\u2019s claims are without merit. The Electronic Signatures and Records Act provides that \u201can electronic signature may be used by any person in lieu of a signature affixed by hand\u201d and that such a signature \u201cshall have the same validity and effect as the use of a signature affixed by hand\u201d (State Technology Law \u00a7 304 [2]; e.g. Naldi v Grunberg, 80 AD3d 1, 10-11 [2010]; People v Johnson, 31 Misc 3d 145[A], 2011 NY Slip Op 50933[U] [App Term, 9th & 10th Jud Dists 2011]). Plaintiff does not deny that his electronic signature was placed on an initial brokerage agreement which contained an arbitration clause, at his direction, in lieu of his handwritten signature (cf. Adler v 20/20 Cos., 82 AD3d 918, 920 [2011]). Plaintiff did not object at trial to the sufficiency of defendant\u2019s proof of this signature and of the validity of the initial brokerage agreement (see CPLR 4518 [a]; 4539 [b]; State Technology Law \u00a7 306), nor did he deny that the parties\u2019 initial agreement bound the parties. Indeed, the parties\u2019 initial agreement is the basis of plaintiff\u2019s claim of overcharge. The Civil Court determined that the initial agreement contained an arbitration clause, that the clause was enforceable and applied to the subject matter of plaintiff\u2019s cause of action, and that plaintiff\u2019s electronic signature thereon was valid. Such determinations are properly for a trial court to make (Matter of Smith Barney She v Sacharow, 91 NY2d 39, 45 [1997]; Zachariou v Manios, 68 AD3d 539, 539-540 [2009]), and there is nothing in the available record that requires a different result. We note that, as there is no dispute that the electronic signature on the initial brokerage agreement was valid, the issue of whether subsequent documents allegedly executed by the parties contained unauthorized signatures is academic for purposes of the enforceability of the initial brokerage agreement\u2019s arbitration clause, and the documents\u2019 relevance, if any, to the merits of the parties\u2019 dispute is a matter for the arbitrator to resolve."], "id": "0a44de5e-74bd-439a-b859-4e5bd93e548d", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["in the third degree and in the third degree by a jury in a trial conducted before Mr. Justice Samuel S. Leibowitz. After the imposition of sentence the defendant appealed to the Appellate Division, Second Department. On September 15, 1964, upon application by the defendant, that court made an order (N. Y. L. J., Sept. 17, 1964, p. 16, col. 7) holding the defendant\u2019s appe\u00e1l in abeyance and remitting \u201c the action to the trial court for the purpose of holding a hearing and determining, in accordance with the recent decision of the Supreme Court of the United States (Jackson v. Denno, 378 U. S. 368), the voluntariness of the appellant\u2019s confession which had been adduced at the trial.\u201d"], "id": "077ab545-66dc-465f-be55-6600ca2e2131", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It was Mr. Mellusi\u2019s membership in an organization such as the IAAI that gave him some of the necessary training to even hold himself out as an expert in the field of investigation. Therefore, he should comply with their training and their generally accepted published standards or he should have explained, when given the opportunity by this court, why they are not relevant. Mr. Mellusi\u2019s conclusion that the fire was \u201csuspicious\u201d is not a recognized classification of a cause of a fire by his peer group. In fact, Mr. Mellusi\u2019s conclusions are indeed undetermined, which does not satisfy the insurance carrier\u2019s burden of proof by a high degree of probability."], "id": "160d74cc-70a4-455c-8d11-734abe338239", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [".An obligation valid in its inception is not invalidated by an-usuripus agreement for the extension of the time of payment; but the sum paid on the agreement for forbearance will in equity be applied as payment (Real Estate Trust Co. v. Keech, 69 N. Y. 248. See also Bush. O. Livingston, 2 Cai. Cas. 66; Pearsall v. Kingsland, 3 Elw. 195. S. P., Lovett v. Dimond, 4 Id. 22; C v. Ingalls, 33 Barb. 657; Lesley v. Johnson, 41 Id. 359; Williams v. Fitzhugh, 44 Id. 321; partly affirmed on other grounds in 37 N. Y. 444)."], "id": "609ff3e7-d4b9-46c4-907e-aabd12824c60", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The trial court's ability to weigh the evidence and consider witness credibility distinguishes a motion for judgment from a motion for nonsuit during a jury trial, which also challenges a plaintiff's evidence at the close of the plaintiff's case-in-chief. When considering a motion for nonsuit, a trial court must deny the motion \"if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor.\" (C v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, 206 Cal.Rptr. 136, 686 P.2d 656.) In other words, to avoid a nonsuit, a plaintiff must introduce evidence sufficient to establish a prima facie case. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 694, 209 Cal.Rptr. 682, 693 P.2d 261 ; Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266, 132 Cal.Rptr.2d 855.) If a plaintiff makes out a prima facie case, a motion for nonsuit must be denied. When considering a motion for judgment during a bench trial, a trial court is not so limited. Even if a plaintiff introduces evidence sufficient to establish a prima facie case, the trial court may still conclude the plaintiff has not carried his or her burden of proof and grant judgment in favor of the moving defendant. For example, on a motion for judgment, the trial court may disbelieve the plaintiff's evidence, draw adverse (rather than favorable) inferences therefrom, and credit contrary evidence introduced through cross-examination or otherwise."], "id": "6a79cb61-8977-46c4-82ff-55c912cbc4dd", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judg*708ment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Once the movant meets this burden, it becomes incumbent upon the party opposing the motion to come forward with proof in admissible form to raise a triable issue of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980].) When determining a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmovant. (See Dorival v DePass, 74 AD3d 729 [2d Dept 2010]; Pe v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009].) Since the granting of summary judgment deprives a litigant of his day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. (See Andre v Pomeroy, 35 NY2d 361 [1974]; Dorival v DePass, supra.) \u201cEven the color of a triable issue forecloses the remedy.\u201d (See Rudnitsky v Robbins, 191 AD2d 488, 489 [2d Dept 1993].) In any event, if the proponent of a summary judgment motion fails to make a prima facie showing of its entitlement to judgment as a matter of law, the motion must be denied. (See Alvarez v Prospect Hosp., supra.)"], "id": "df1e2c60-dca7-447d-8c2b-73dbd6d22e80", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["She further discussed her and Jonathan's relationship with the DHS caseworker, Karen Pe. She stated that she had requested a new caseworker because Pearson is disrespectful to them and initiates fights in the children's presence. She testified about an incident in which Pearson had critiqued how she fed one of the children during a visitation and she became aggravated with Pearson. Whitney acknowledged that she had responded inappropriately, and she apologized for her actions."], "id": "732effb9-2fb6-48ee-97ea-b35143ac8a69", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Because defendant committed multiple and divisible acts with distinct objectives, the trial court did not violate section 654 by sentencing him for both the count one animal cruelty conviction and the count four attempted offense. (See, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036, 1047, 216 Cal.Rptr.3d 13 [the defendant was properly sentenced for both torture and criminal threats because a reasonable *359trier of fact could conclude the criminal threats were in furtherance of a separate criminal objective, even if, in part, the threats were intended to break or beat the victim down emotionally and to discourage her from attempting to flee]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022, 109 Cal.Rptr.2d 464 [the defendant was properly sentenced under \u00a7 654 on both arson and criminal threats convictions]; People v. Phan (1993) 14 Cal.App.4th 1453, 1466, 18 Cal.Rptr.2d 364 [robbery of mother and threat to cut off her young son's hand if she did not give more money were separate and divisible acts that could be punished separately under \u00a7 654].) Defendant's due process rights, moreover, were not violated as his sentence was properly calculated."], "id": "6a9df1ca-95c8-44a9-89d2-e4d89b0eb417", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiff has sufficiently alleged injury in his own right in the cause of action set forth in the complaint (Weiner v Bank of King of Prussia, 358 F Supp 684, 690-696, and cases cited therein), and while the amount of his damages are stated to be presently unknown, specification of the amount of damages is not mandatory (Daukas v She, Hammill & Co., 26 AD2d 526; Silvestris v Silvestris, 24 AD2d 247, 250; Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C3017:l). The amount of damage to plaintiff Gilman has been calculated by defendant to be I8V2 cents per day. While this damage is small, it is, nevertheless, real. The fact that plaintiff claims personal damage differentiates this case from Weitzman v Bache Halsey Stuart (NYLJ, Nov. 4, 1977, p 5, col 1)."], "id": "fd230f77-9b3b-48b7-bea7-d1ed6bcdf0fa", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["[Appellee] waived his right to a jury trial and proceeded to a bench trial, where the trial court convicted him of [, possessing instruments of crime, criminal mischief, resisting arrest, robbery, theft, and receiving stolen property]. On June 19, 2014, the trial court imposed an aggregate term of ten to twenty years\u2019 imprisonment[, which included a mandatory minimum ten year term per 42 Pa.C.S.A. \u00a7 9714 (governing second strike offenses for crimes of violence)]."], "id": "a6343cc6-1078-4f5e-a23a-9e3b21ce522a", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Because the District is not a State under CERCLA, it must also prove its response costs are \"consistent with\" the NCP, including *540its requirements for meaningful public participation, cost-effectiveness, and adequate planning for any remedial action. (42 U.S.C. \u00a7 9607(a)(4)(B) ; see C Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260, 1265-1266 (Carson Harbor II ).) For reasons we will explain, we conclude the District has not shown its claimed response costs were consistent with the NCP."], "id": "8fa06e0d-1fbb-4ba7-bad9-98db02053727", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The United States Supreme Court has not required a probation or parole search condition be \"closely tailored\" when it infringes on an expectation of privacy. Instead, it has evaluated the condition under the general balancing test just described to determine whether the intrusion was reasonable under the circumstances. In Knights, supra , 534 U.S. 112, 122 S.Ct. 587, the court upheld the constitutionality of searches made pursuant to the probation condition commonly used in California requiring the probationer to submit his \" 'person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant[.]' \" ( Id. at p. 114, 122 S.Ct. 587.) Affirming the investigative search of a probationer's home and vehicle who was suspected of , the court ruled the search was reasonable under \"our general Fourth Amendment *137approach of 'examining the totality of the circumstances,' [citation], with the probation search condition being a salient circumstance\" ( id. at p. 118, 122 S.Ct. 587 ), an approach the court called its \"ordinary Fourth Amendment analysis[.]\" ( Id. at p. 122, 122 S.Ct. 587.) The balance of the state's interest in rehabilitating the probationer and protecting the public from additional harm by him outweighed the probationer's limited interest in privacy. ( Id. at p. 121, 122 S.Ct. 587.)"], "id": "d0f72a5a-aa90-433a-9945-f9e14dd8c072", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiffs argue that the Legislature failed to provide standards and safeguards to guide the Department in exercising its delegated authority. Again, we disagree. Plaintiffs are correct that, in delegating authority, the Legislature must *308provide \"adequate direction for the implementation of [its] policy.\" ( C Mobilehome Park Owners' Assn v. City of Carson (1983) 35 Cal.3d 184, 190, 197 Cal.Rptr. 284, 672 P.2d 1297 ( Carson ).) However, \"standards for administrative application of a statute need not be expressly set forth; they may be implied by the statutory purpose.\" ( People v. Wright (1982) 30 Cal.3d 705, 713, 180 Cal.Rptr. 196, 639 P.2d 267, citing Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 168, 130 Cal.Rptr. 465, 550 P.2d 1001 ; see also Carson , at p. 190, 197 Cal.Rptr. 284, 672 P.2d 1297.)"], "id": "32537369-a210-43ea-84e2-ca14858f379a", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By another proposed conclusion of law we have been asked to determine that plaintiff is entitled to interest from May 12, 1959, date of death, upon any amount found to be due here, that is prejudgment interest, pursuant to the provisions of section 132 of the Decedent Estate Law of the State of New York. We have denied that request. Only by finding sanction therefor under said section which is contained in article 5 of our Decedent Estate Law could we make such a conclusion, for that section provides, among other things, that \u20181 When final judgment for the plaintiff is rendered \u201d in a wrongful death action, \u2018 \u2018 the clerk must add to the sum so awarded, interest thereupon from the decedent\u2019s death, and include it in the judgment.\u201d It has been held that section 132 of the Decedent Estate Law must be read with sections 130 and 131 and cannot be severed therefrom. {Davenport v. Webb, 11 N Y 2d 392, 395.) The West Virginia death statute makes no provision for such prejudgment interest. In the light of our conclusion as to plaintiff\u2019s proposed conclusion of law numbered six immediately hereinbefore discussed and refused, we have determined that plaintiff is not entitled to such interest. (Davenport v. Webb, supra-, see, also, Pe v. Northeast Airlines, supra.)"], "id": "c6a7222d-b2d3-453d-ab52-0aacd63ec19b", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Since section 1170.18, subdivisions (a) and (b) expressly includes certain theft related offenses (\u00a7\u00a7 459.5, 473, 476a, 490.2, 496, & 666 ), we determine that the intent of the voters was to exclude theft related offenses not mentioned in the statute from reclassification and resentencing under Proposition 47. (See, e.g., Sanchez, supra, 52 Cal.App.4th at p. 1001, 60 Cal.Rptr.2d 880.) The offense of buying or receiving a stolen motor vehicle is set forth in section 496d, which is a statute not included in section 1170.18, subdivisions (a) and (b). Therefore, under the maxim expressio unius est exclusio alterius, a conviction of violating section 496d is excluded from reclassification and resentencing under Proposition 47. (See People v. Peacock (2015) 242 Cal.App.4th 708, 712, 195 Cal.Rptr.3d 344 (Peacock ) [violation of section 496d, subdivision (a), is not an offense eligible for reclassification as a misdemeanor].) Moreover, to construe section 1170.18 as including section 496d would be inconsistent with our Supreme Court's instruction that we may not \"add to the statute or rewrite it to conform to some assumed intent not apparent from that language.\" (Pe, supra, 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)"], "id": "1d06fe11-b3de-4fb3-948e-30132cb0216e", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Those defendants sentenced by this court to A-III felonies for which applications to resentence have been received are Albert Pe, indictment No. 78-249; Richard La Barbera, indictments Nos. 78-123, 78-124; John McCray, indictment No. 76-137, all of whom were originally sentenced to a term of one year to life, and Gibbs Hodges, indictment No. 78-55, who was sentenced to one and a half to life. This court has reviewed the probation report and the sentencing minutes of each of these defendants, and in each case the court had indicated at the time of sentencing that the defendants had nonviolent backgrounds. It recommended they be considered for early release by the State Division of Parole. Accordingly, this court *756determines that each of the above-named defendants shall be resentenced to the new maximum of three times the minimum sentence originally imposed. The new sentences are: Albert Pearson, indictment No. 78-249, 1-3; Richard La Barb-era, indictment No. 78-123, 1-3; Richard La Barbera, indictment No. 78-124, 1-3 (con. with 78-123); Gibbs Hodges, indictment No. 78-55, I-V2 \u2014 4-V2\\ John McCray, indictment No. 76-137, 1-3. This sentencing is effective September 1, 1979."], "id": "d0d439df-30b5-4128-bfa8-609ae44e4e0e", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Defendant agreed that the present violation was his fourth and that he had been on community corrections for ten years. He agreed that his conviction was related to his \u201cnot getting a check on time\u201d and \u201cset[ting] a mattress on fire inside a house.\u201d He agreed that he had completed drug and mental health treatment after previous violations."], "id": "7d7eefba-1f16-4fdf-8e38-128341c6ac32", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Based on uncontroverted information set forth by the People, the defendants were both aware that they were charged with the several offenses on an \"acting in concert\u201d theory. This with respect to each count of the indictment. Clearly both defendants are named in the indictment caption, and the document is otherwise sufficient to fulfill its statutory purpose not simply by virtue of said designation, but by identification of the defendants in the plural throughout its body (see, General Construction Law \u00a7 35; see also, People v Brothers, 66 AD2d 954 [3d Dept 1978]); moreover, the indictment specifies \"acting in concert\u201d respecting all charges required to be answered (see, People v Armlin, 6 NY2d 231 [1959]; People v F, 244 NY 413 [1927]; People v Barton, 51 AD2d 1044 [2d Dept 1976])."], "id": "bf755f20-bcd2-4a00-b368-6cda94bece02", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Nor are we persuaded that the sentence is grossly disproportionate to defendant's individual culpability based on his personal characteristics. Here, defendant had turned 15 years old just 12 days before committing the offense, which could be a positive in defendant's favor. However, although defendant did not have a long history of criminal activity at that point, he showed serious signs of rebelliousness and unwillingness to abide by the law, or by rules at home. Defendant had already been on juvenile probation for , been arrested twice for drug possession, had been brought home by the police at age 14 after running away from home, and had began using drugs at a young age. Defendant indicated his relationship with his mother was \"on and off\" because she would not let him go out to parties and established rules in her home about him having adult women over. More important in terms of culpability, the probation officer noted in the probation report that defendant showed no remorse, stressed how the shooting had impacted him and his family, and expressed anger at the victim rather than sorrow at the injury he had caused her. Regarding the victim, the defendant told the probation officer, \"I'm not mad but I think she should have thought who she was sending to jail for his whole life.\" Defendant was angry about the possibility of paying restitution to the victim, commenting \"I would be especially mad. I heard that her family is a drug family, so them taking money from my family, I'd be more than mad.\" Defendant also blamed his girlfriend for testifying against him. Defendant's complete failure to take responsibility for having committed this horrific crime that only by a miracle3 failed to cause the victim's death increases his individual culpability for the crime."], "id": "7098e294-b3b0-4dfc-a4e4-5a140717db0d", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Here, the Board essentially found that claimant was on a special errand at the time the accident occurred and awarded claimant benefits on that basis. In our view, however, the record before us simply does not contain substantial evidence to support the Board\u2019s finding in this regard. Even assuming, as the Board contends, that it may be inferred from the stipulated facts that the employer \"derived significant benefit from the polished appearance of its guards\u201d, there is no indication in the record that claimant was required to have his uniforms drycleaned (compare, Matter of Gray v Lyons Transp., 179 AD2d 985, supra [claimant injured following employer\u2019s request that claimant report to work early]; Matter *947of Pe v New York City Tr. Auth., 146 AD2d 849 [claimant directed by employer to report to medical clinic and injured en route]; Matter of Junium v Bazzini Co., 86 AD2d 690, supra [claimant\u2019s decedent directed by superior to attend meeting and suffered heart attack]; Matter of Augustine v New York State Elmira Correctional Facility, 64 AD2d 340 [claimant injured while returning from medical examination required by retirement system]) or, having elected to do so, was compelled to use a particular cleaning establishment for that purpose. As noted previously, although claimant apparently was required to properly maintain his uniforms, the uniforms provided by the employer were machine washable and, hence, drycleaning was but one of the options available to claimant (compare, Matter of Watson v American Can Co., 23 AD2d 423, affd 18 NY2d 758; Matter of Goldberg v Gold Medal Farms, 18 AD2d 951). In short, although it may be inferred from the record that claimant was encouraged to avail himself of the drycleaning option, there is nothing in the record to suggest that he was required to do so (cf., Matter of Costa v New York State Workmen\u2019s Compensation Bd., 34 AD2d 585). Accordingly, the Board\u2019s decision must be reversed."], "id": "738e12d5-d3ef-4568-a1fd-ef36de3c08c2", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["(1) whether the party opposing the testimony had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue; (2) the nature of the two proceedings\u2014both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities). [People v Farquh, 274 Mich App 268, 278; 731 NW2d 797 (2007) (quotation marks and citation omitted).]"], "id": "0be7f2c9-9233-4e58-85af-1e8a2ae76811", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201c[admissibility of opinion testimony pertaining to an ultimate question within the jury\u2019s province turns on whether, given the nature of the subject, \u2018the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.\u2019 \u201d (People v De Sarno, 121 AD2d 651, 654 [2d Dept 1986], quoting Noah v Bowery Sav. Bank, 225 NY 284, 292 [1919]; Van Wycklyn v City of Brooklyn, 118 NY 424, 429 [1890].) Thus, the Second Department held that it was proper in an case for an expert witness to give his opinion that the fires the defendant was charged with intentionally setting were not \u201cchemically, mechanically, electrically or naturally caused, thus eliminating all nonsuspect causes.\u201d (People v Maxwell, 116 AD2d 667, 668 [2d Dept 1986]; see also People v Rivera, 131 AD2d 518, 518 [2d Dept 1987] [approving fire marshal\u2019s testimony that \u201cbased upon his investigation, he had eliminated \u2018to a reasonable degree of scientific certainty\u2019 all possible \u2018natural\u2019 and \u2018accidental\u2019 causes of the fire\u201d].) For the same reason, the Court of Appeals has permitted expert witnesses in rape and sexual abuse cases to testify concerning rape trauma syndrome and abused child syndrome in order \u201cto explain behavior of a victim that might appear unusual or that jurors may not be expected to understand.\u201d (People v Carroll, 95 NY2d 375, 387 [2000]; see also People v Taylor, 75 NY2d 277 [1990]; People v Keindl, 68 NY2d 410, 422 [1986].)"], "id": "dd25e532-75c9-490b-9b50-b3ca9b6a62db", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mr. Pe stated that other than the accident involving the claimants and the accident which occurred in 1980 three or four miles away, he was not aware of any accident involving a collision between a motor vehicle and a pedestrian or bicyclist. Over the five-year period, there were no reported accidents of any kind at the specific location of the subject accident (exhibit O)."], "id": "87774a46-6306-4366-b7af-2e2ff39efe0d", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*383The issues raised by the defendants in this case were similarly involved in People v. P (supra). The defendant there was charged with the violation of section 953 of the Penal Law dealing with manipulation of prices of securities. The indictment charged him with the commission of the crime from April 29,1919 to July 17, 1919. The defendant demurred to the indictment on the ground, amongst others, that the indictment which was a single count charged more than one crime. The question there raised is the identical question with that raised by the defendants herein although in somewhat different form. The court upheld the indictment pointing out that the crime might be committed by a single transaction or by a continuous series of acts. The defendant urged there (and the argument is implicit in this case) that the indictment was invalid for the reason that it did not sufficiently identify the specific acts during the period covered by the indictment so as to bar a further prosecution for such acts following a conviction or acquittal of the single continuous crime charged in the indictment. The court there rejected the argument pointing out at page 419 that \u201c [t]he principle is well settled that an acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to another prosecution for a like offense for another specified time which includes any part of the time named in the first charge.\u201d"], "id": "c888b667-3fe2-4477-8f98-c0cbdeea7541", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Lance Robson, a licensed civil engineer, was retained by claimants in October 2002, and was provided with the police accident report, photographs of the site and transcripts of the depositions of Mr. Tarry and Mr. Pe. He went to the site on November 2, 2002, and took photographs (exhibit 1) and measurements. He measured the distance between the edge of the roadway and the edge of the bicycle path in the subject area as nine feet six inches, and the width of the path as ten feet nine inches. The edge of the right travel lane is separated from the path by grass, and there is no curb between the travel lane and the adjoining grassy area."], "id": "6db024b3-1d8b-4cb5-b1e3-82514d2fe660", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Counsel for petitioner, in his opening argument, referred to the case of Pe v. Pearson, reported in 51 Cal. 120, in which it was held that Laura Pearson, a mulatto woman, was the widow of Richard Pearson, a white man. That whole case hinged upon the fact that Richard Pearson, in his will, designated Laura as his wife and her children as his children, and devised his whole estate to them. The same case reported in 46 Cal. 609, establishes a doctrine favorable to the contention of the respondent in the case at bar."], "id": "5eafab5e-0639-4aa6-8504-4164f1503bef", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The entire record of the proceedings in the felony-murder case, from indictment to judgment, including the trial-evidence, exhibits, jury instruction (but not the summation) and the proceedings upon and after the verdict, was, considered in deliberation upon these motions. Financial difficulties caused delay in defendants\u2019 compliance with the court\u2019s direction that the trial record be submitted. Also considered, was the record in the case, from indictment to date. The content of the Grand Jury minutes in each ease is known to the court, through prior motions to inspect and dismiss. Both indictments were found upon the same evidence, recorded in a single set of Grand Jury minutes."], "id": "ee871665-7005-4fb4-8cb9-057d0383211b", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant insurer, in moving for a trial order of dismissal pursuant to CPLR 4401, claimed that it was entitled to conduct an investigation for suspected and could not, under any circumstances, settle the claim on the business auto policy without waiving its rights under the multi-peril policy which insured the physical plant and assets of the business and provided business interruption coverage."], "id": "c9cc1427-a825-4ffc-911e-46a750574941", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["So in Woodford v. The People (62 N. Y., 117). The principle, that where there is in fact, but one transaction sought to be described, it may be done in different counts, is recognized and the case of Regina v. Trueman (8 Carr & P., 727), is referred to, where an indictment consisted of five counts for , charging the burning of five houses belonging to different persons. It was stated in the opening, that the houses were in a row of adjoining houses, and upon an application to compel the prosecution to elect, Ekskine, J\"., says : \u201cAs it is all one transaction, we must hear the evidence. * * * I shall take care, that as the ease proceeds, the prisoner is not tried for more than one felony,\u201d and in the same case there is a reference to a case in 20th Pickersgill (356) of an indictment held good, charging burglary with an attempt to commit larceny, and also larceny as distinct offenses, and various other illustrations of the rule, adopted by our courts in the cases before cited."], "id": "a5bd7ff2-5120-4c32-a1b5-3c09a544548e", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Nicholas A. Clemente, J. In a three-count indictment filed September 11, 1980, defendant was charged with one count of in the second degree and two counts of reckless endangerment in the first degree. The second and third counts, both relating to the same act, charged that the defendant, on August 29, 1980, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person. They differed in that the second count contended that the defendant started a fire in an occupied building, while the third count alleged that the defendant started a fire in a building to which New York City fire fighters responded and entered."], "id": "05d75003-d6e5-4777-92b3-621b5774f1b2", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Likewise, Jones & Co. (supra, 957d at 514), a case that predates First Options, is readily distinguishable. In Jones & Co., the objectants claimed from the beginning that the NASD did not have jurisdiction to arbitrate some claims based on section 15 of the NASD Code, which provided that \u201c[n]o dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy\u201d (emphasis added). Based on settled Seventh Circuit precedent and the particular language and history of the NASD Code provision, the court concluded that section 15 was an \u201celigibility requirement,\u201d not a statute of limitations, and that the NASD absolutely did not have the power or authority to consider claims that arose from transactions that were over six years old. The Seventh Circuit further concluded that there was no \u201cevidence in the record demonstrating that the parties intended to allow the arbitrators to define their own jurisdiction\u201d and that it was for the court to decide arbitrability notwithstanding the parties\u2019 submission of arguments on the issue to the panel. (Id. at 514; contrast, Matter of Smith Barney She v Sacharow, supra, 91 NY2d at 46-47 [based on NASD Code arbitrators could decide arbitrability].)"], "id": "4778dd33-6694-426b-885a-2c49993bbd86", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A \u2018 quotient verdict \u2019 \u2019 is nothing more than a verdict by chance, is illegal, and must be set aside. (North Tex. Producers Assn. v. Jenkins, 342 S. W. 2d 192, 195 [Tex. Civ. App.].) It is one resulting from agreement whereby each juror writes down amount of damages to which he thinks party is entitled and such amounts are then added together and divided by number of jurors. (Index Drilling Co. v. Williams, 242 Miss. 775. See, also, Haarberg v. Schneider, 174 Neb. 334.) However, as an essential element of \u201c quotient verdict,\u201d jurors must agree to be bound by the quotient. (Wilson v. Gardner, 10 Utah 2d 89.) It is not the setting down of an amount by each of the jurors as to what he thought was fair and reasonable to award plaintiff under the circumstances as damages that is objectionable or improper. (See Killion v. Dinklage, 121 Neb. 322; Hoffman v. City of St. Paul, 187 Minn. 320, Ann. 86 A. L. R. 203; Zook v. State Highway Comm., 156 Kan. 79; Balkwill v. City of Stockton, 50 Cal. App. 2d 661; State ex rel. Senter v. Cowell, 125 Mo. App. 348; Murphy v. Cordle, 303 Ky. 229; Harris v. State, 241 Ala. 240.) It is rather the advance agreement to be bound by average and adherence to such agreement after a quotient is arrived at that renders the verdict illegal. (See Klein v. Swift & Co., 248 Iowa 563. Also, Zanos v. Great Northern Ry. Co., 60 Mont. 37; Stadium Cab Co. v. Shawd, 12 Ohio Law Abstract 106, 36 Ohio Law Rep. 456; Harris v. State, supra; Kelly v. Rainelle Coal Co., 135 W. Va. 594; Killion v. Dinklage, supra; Hoffman v. City of St. Paul, supra; Moses v. Central Park, etc. R. R. Co., 3 Misc. 322; Spain v. *6Oregon & Washington R. & N. Co., 78 Ore. 355; City of Dothan v. Hardy, 237 Ala. 603; L v. Wisconsin Ry., Light & Power Co., 138 Minn. 158; St. Louis & San Francisco R. R. Co. v. Brown, 45 Okla. 143; Miller v. Blue Ridge Transp. Co., 123 W. Va. 428; Benjamin v. Helena Light & Ry. Co., 79 Mont. 144, 52 A. L. R. 33.)"], "id": "4a4d1724-53be-40d3-b005-8f71925d6d08", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As we have discussed, the HSAA provides that a plaintiff \"may seek contribution or indemnity from any person who is liable pursuant to this chapter.\" (Health & Saf. Code, \u00a7 25363, subd. (d).) The elements of a private *305HSAA claim are the following: \" '(1) the site on which the hazardous substances are contained is a \"facility\" under CERCLA's definition of the term, Section 101(9), 42 U.S.C. \u00a7 9601(9) ; (2) a \"release\" or \"threatened release\" of any \"hazardous substance\" from the facility has occurred, 42 U.S.C. \u00a7 9607(a)(4) ; (3) such \"release\" or \"threatened release\" has caused the plaintiff to incur response costs that were \"necessary\" and \"consistent with the national contingency plan,\" 42 U.S.C. \u00a7\u00a7 9607(a)(4) and (a)(4)(B) ; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [42 U.S.C. \u00a7 9607(a) ].' \" (C Harbor I, supra , 270 F.3d at pp. 870-871.)"], "id": "e142d06d-6db9-4499-a875-5247deffc47c", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The record on this motion speaks more forcefully than the phraseology of any judicial condemnation. Ernest L and defendant Milton Margulies were the remaining partners in a firm with which Larson has been associated for several decades, and defendant since 1970. Larson \u2014 the managing partner, with a substantially larger account equity capital \u2014 suffered a heart attack last summer. Upon his return to work there was a dispute over shares, and defendant withdrew from the partnership. Thereafter plaintiff\u2019s papers reveal \u2014 and it is not denied \u2014 that defendant, through stealth and in the dead of night, entered the partnership offices (which concededly were lawfully being operated by Larson after defendant\u2019s resignation) and helped himself to everything; he cleaned out the partnership, its books and records, its files, its accounts, its time sheets, even its furniture, its library, and its office supplies. Plaintiff has pointed out, without contradiction, that the vast bulk of the partnership clientele was not attributable to defendant, but rather to Mr. Larson, who had either acquired them or succeeded to them in the course of the partnership. Defendant\u2019s limited involvement with the clientele did not deter him from his all-out raid. His ransacking has destroyed the business as an on-going operation; it absolutely cannot function without these records. Plaintiff cannot service its clients in any way nor can it bill them and maintain the cash flow necessary to pay its expenses, including wages for employees. Accordingly it brings on this motion, seeking a preliminary injunction for the recovery of the purloined records, papers, and other assets, without which its demise as a viable enterprise is immediately inevitable."], "id": "0227ef2c-f65c-4154-a65a-0b2312eb9b82", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We discern no necessity to justify the performance of autopsy herein. Such unauthorized autopsy, and burial of decedent\u2019s dismembered body, invaded the private rights of decedent\u2019s widow and children, causing them to suffer injured feelings. (See Darcy v. Presbyterian Hospital, 202 N. Y. 259, citing L v. Chase, 47 Minn. 307, to which the Court of Appeals refers as outlining the most elaborate consideration-of the question ever passed upon by the courts of this country.)"], "id": "f07089d7-93fb-4532-b809-aa2b6661851c", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The proper remedy for The Dime Savings Bank of Brooklyn to pursue under the existing circumstances, is to institute a foreclosure action and have a receiver appointed for its benefit. Until this is done or until the mortgagor consents to the assumption of possession by the mortgagee, no claim may be made by The Dime Savings Bank of Brooklyn for rent from any of the tenants occupying portions of the mortgaged premises herein. (B v. Mulligan, 191 N. Y. 306.)"], "id": "b0068090-e78b-4fb7-8e78-0e96c2ae8338", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["common law it was held, that not only the dwelling-house, but also out-houses, that are parcel of the dwelling-house, and within the curtilage, although not contiguous, were the subjects of . 1 Hale, 56. And it has always been held to be arson, to burn a barn filled with hay or corn, even where it stood a great distance from the house. 3 Inst. 69. To set fire to one\u2019s own house, whereby another is consumed, is arson. Cro. Car. 377, In the definition of arson, the mansion house is not only included, but it extends \u201c to the outset also, as \u201c barn, stable, cow house, sheep house, dairy house, mill house and a\u201c the like parcel of the mansion house.\u201d But they must be parcel of the mansion, although it is not necessary they should be under the At *239same roof. 1 Hale, 5G0. 1 Hawk. Ch. 38. If the out houses be adjoining to the mansion house, though there be no common enclosure or curtilage, they are still considered as parts of the mansion. 1 Hale, 559. The indictment need not alledge the burning'of a mansion house, but only of a house. East. C. L. p. 1020. 4 Blac. Commj 221. It must be the house of another, although it is unnecessary he should have the legal title or entire interest; a lawful possesion is sufficient. Cro. Car. 376. Chi tty, C. L. vol. 3, p. 532. It has been decided that arson cannot be committed by setting fire to premises which a man enjoys under a lease for years. Cro. Car. 376. Or even as tenant under an agreement for a lease. 1 Leach, 220. Nor can he be guilty of arson of the premises while tenant from year to year. But one entitled to dower, out of a dwelling house let to another person, if she burns it through malice, she will be guilty of arson. Fost. 113, And where a pauper was suffered to reside in a house free of rent it was held he might be guilty of arson in burning it, notwithstanding his possession. 1 Leach, 246, in notis."], "id": "4603db4b-749e-42cf-961f-ac9da2664bf7", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["However, the New York rule cannot apply to the extent it is preempted by the Federal Arbitration Act (FAA) (9 USC \u00a7 1 et seq.) which Congress adopted to overcome and preempt state *691restrictions on or resistance to arbitration of disputes involving commerce. (Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193 [1995].) Thus, where an arbitration agreement relates to commerce, the FAA overrides and preempts the New York law. (Matter of Smith Barney She v Sacharow, 91 NY2d 39 [1997]; Progressive Cas. Ins. Co. v C.A. Reaseguradora Nacional De Venezuela, 991d 42 [2d Cir 1993].)"], "id": "8f726cde-f0e5-4226-8664-19e37e95d1a0", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Early on the morning after the fire, depositions were taken of Miss Cleveland and Miss Stickel outlining the facts previously recited. A deposition of one Alan Emerson, investigator for the New York State Bureau of Criminal Investigation, was prepared. That deposition opined that the fire at No. 3 Maple Avenue on the morning of September 8, 1984 was the result of arson. The foregoing package of depositions together with an application for a search warrant by Investigator Hayes of the Bureau of Criminal Investigation were presented to Franklinville Town Justice James Burrow who signed a search warrant on September 8, 1984. The defendant contests the sufficiency of the information presented to the Justice for the issuance of the search warrant."], "id": "851e7109-c74d-448e-9569-f79aa6be8319", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["assault with a deadly weapon, as well as multiple prior misdemeanor convictions, including false imprisonment. The trial court further noted the probation report indicated defendant had \u201cattack[ed] another inmate . . . without provocation\u201d while at the jail. The trial court then noted defendant was 32 years old at the time of the current offense and provided a brief overview of the facts of this case, noting \u201ca common element\u201d shared by the current offense, defendant\u2019s jailhouse conduct, and two of his prior convictions, i.e., \u201cviolence against someone else.\u201d The trial court then stated: \u201cThe flip side of this, as you know, and it\u2019s entitled to some consideration is that [defendant] is a relatively young person and we like to think that anyone can change over time.\u201d The trial court then noted the loss suffered by the victim and his family and concluded: \u201cThe Court can\u2019t find that in the interest of justice that the enhancement should be stricken, so the Court\u2019s going to deny that motion.\u201d \u201c \u2018 \u201c[A] court\u2019s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is\u201d reviewable for abuse of discretion.\u2019 [Citation.] \u2018In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, \u201c \u2018[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.\u2019 \u201d [Citation.] Second, a \u201c \u2018decision will not be reversed merely because reasonable people might disagree. \u201cAn appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.\u201d \u2019 \u201d [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.\u2019 [Citation.]\u201d (People v. Pe (2019) 38 Cal.App.5th 112, 116.) Defendant argues the trial court\u2019s decision declining to strike his firearm enhancement amounted to an abuse of discretion because \u201cthe fight precipitating the"], "id": "175e42ee-eb50-4e2e-971d-0abf2cc376d1", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The rule that all \u201clegal offenses,\u201d which, as Mr. Justice Potter correctly shows, are all grades of criminal offenses triable by courts (Code of Criminal Pro., \u00a7 63), cannot be investigated or acted upon till after a conviction has been had in a court of justice, necessarily springs out of the provisions of the Constitution, if it has any existence at all. That he so regarded it may be seen by his *117opinion. He says: \u201c By legal offenses are meant crimes and misdemeanors enacted by tbe legislature or existing at the common law. When a policeman bas been convicted of any of these offenses, by the tribunal and in the manner prescribed by law, the respondent (the board) may remove for such conviction. The idea that the board of police may try and convict persons charged with perjury, murder, or other legal offenses, is simply preposterous. Those offenses can only be tried by a jury and in the mode provided by law. Neither an act of the legislature or the consent of the accused will justify a trial for these offenses in any different manner.\u201d"], "id": "5ec3e88f-5171-4b93-9d54-17ac401101f0", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the first of the cases cited (People v. Winant, supra) it was held that a bribe taker was to be considered as an accomplice of the bribe giver. In the next case cited People v. Vedder, supra) it was held that a woman upon whom an abortion was committed was not an accomplice of the abortionist. In the third case cited People v. Smith, supra, it was held that a purchaser of liquor from one who sold it without license was not an accomplice of the seller, and in the last case cited (People v. Zucker, supra) it was held that one who, without intent to aid in the commission of the crime of , in point of fact did an act which aided another in committing such crime, was not an accomnlice of the incendiary."], "id": "df12e24d-792d-4eb0-9d08-e728a0eee7fa", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The circuit courts have upheld the constitutionality of 18 USC \u00a7 922 (g), because of the presence in the statute of the jurisdictional element \u201cin or affecting commerce,\u201d despite the Supreme Court\u2019s recent decisions holding that various laws were unconstitutional as having no substantial effect on interstate commerce (e.g. United States v Jones, 529 US 848, 859 [federal statute did not reach arson of owner occupied residence that is not used for any commercial purpose because such property could not be \u201cused in * * * any activity affecting commerce,\u201d as required by statute]; Morrison, 529 US 598 [Congress\u2019 creation of a federal private cause of action in tort for spousal abuse or domestic partner battering is an invalid exercise of its power under Commerce Clause as conduct does not have a substantial impact on interstate commerce]; Lopez, 514 US at 562 [the Supreme Court held inter alia that neither 18 USC \u00a7 922 (q) \u201cnor its legislative history contain(s) express congressional finding regarding the effects upon interstate commerce of gun possession in a school zone\u201d])."], "id": "6d963269-ec10-499c-a4d0-577e4456fab5", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The successor executor, Bathkopf, in 1959 obtained a surcharge against Harlow S. Pe, the former executor, in the amount of $63,560.33. It appeared that Harlow was unemployed and in debt and had no assets other than a life estate in a trust established in Connecticut under the terms of his father\u2019s will which produced income of $20,000 to $30,000 per year. He had made two assignments of this trust interest, one as security for a $50,000 bank loan, and the second (subject to \u25a0the first) to Helen Bidgeway (now Pearson, Harlow\u2019s second wife) to the extent of one third of the income accrued and to accrue after December, 1957."], "id": "153baa3d-5861-4ed2-ae18-d97c0cdce15b", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (see Pe v Dix McBride, LLC, 63 AD3d 895 [2009]; Sillman v Twentieth *1098Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a motion for summary judgment has the burden of demonstrating \u201ca prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case\u201d (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). \u201c[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient\u201d (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v County of Monroe, 77 AD2d 232, 236 [1980]). Accordingly, \u201c[i]f there is any doubt about the existence of a triable issue of fact or if a material issue of fact is arguable, summary judgment should be denied\u201d (Celardo v Bell, 222 AD2d 547, 548 [1995])."], "id": "9c25f13e-f48c-489a-9a15-b9558b0001a9", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["prisoner\u2019s motion for compassionate release for an abuse of discretion. United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021). Jacobs argues that the district court treated U.S.S.G. \u00a7 1B1.13, p.s., as binding and limited its consideration of extraordinary and compelling reasons to those listed in Application Note 1 of the Guideline\u2019s commentary, even though the policy statement does not apply where a motion for compassionate release is brought by a prisoner and not the Bureau of Prisons. See United States v. Shkambi, 993 F.3d 388, 391\u201392 (5th Cir. 2021). He also argues that the district court erred in balancing the 18 U.S.C. \u00a7 3553(a) factors, especially with respect to his post-sentencing rehabilitative efforts. We need not resolve whether the district court\u2019s consideration of the policy statement and its commentary constituted legal error because the court also concluded that Jacobs had failed to establish that the \u00a7 3553(a) factors weighed in favor of modifying his sentence. See Ward v. United States, 11 F.4th 354, 360\u201362 (5th Cir. 2021). Despite Jacobs\u2019s assertion to the contrary, the district court gave due consideration to his post-sentencing rehabilitative efforts, but it permissibly found that the seriousness of Jacobs\u2019s offenses, solicitation of murder for hire and attempted , tipped the scales against modifying his sentence. Although Jacobs may disagree with the court\u2019s balancing of the \u00a7 3553(a) factors, \u201cthat is not a sufficient ground for reversal.\u201d United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020). AFFIRMED."], "id": "ccdb790a-5b32-4854-998d-8b20dee600c4", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In brief, an indictment should contain such specifications of the acts and description of the criminal offense and enable a defendant to adequately defend himself and bar further prosecution arising out of the same facts (People v Bogdanoff, 254 NY 16; People v Bruno, 43 NYS2d 942; see CPL 200.50). As expressed in People v F (244 NY 413, 417): \"The indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case. (Code Crim. Pro. \u00a7\u00a7 284, 285; People v. Williams, 243 N.Y. 162.)\u201d"], "id": "dfdc3194-460c-4a92-8e5f-bf0abf600563", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded for a new trial. L v. Cactus Util. Co. , 730 S.W.2d 640, 641 (Tex. 1987). If appellees file a remittitur within twenty days from the date of this opinion, we will modify the trial court's judgment accordingly and affirm the judgment as modified. If the remittitur *579is not timely filed, we will reverse the trial court's judgment in part and remand this case for a new trial on the claims of Daniel and Mr. and Mrs. Cuevas. Tex. R. App. P. 46.3 ; see Tex. R. App. P. 44.1(b) (\"The court may not order a separate trial solely on unliquidated damages if liability is contested.\")."], "id": "9808cdce-28b0-40d6-a576-40c3227c7bd9", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendants also cite Catellus Dev. Corp. v. U.S.(9th Cir. 1994) 34 F.3d 748, 750, for the proposition that disposal refers \" 'to an affirmative act of discarding a substance as waste, and not the productive use of the substance.' \" Even assuming their conduct was not affirmative, the Ninth Circuit has since \"reject[ed] the absolute binary 'active/passive' distinction.\" (C Harbor I, supra, 270 F.3d at p. 879.)"], "id": "f8faa093-35ec-4a02-81e3-6d5ac7f54552", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*201Joseph was drafted into the Army in early 1968, and moved to Fort C, Colorado after basic training. He and Marline married and lived together in Fort Carson. Joseph worked part-time at a Chevron service station in Fort Carson in 1968 and 1969, doing the same type of work he had done at the Enco station. Joseph testified that Marline came to visit him at that service station as well. After Marline and Joseph moved back to California in 1970, *278Joseph worked part-time at another Enco station for a year or slightly longer. Joseph did the same type of service work there that he did at the other service stations. During this time period, Marline washed Joseph's clothing."], "id": "ab39a3e2-ea35-4d1f-84f9-70a71c12d9b0", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Co-operative library systems are creatures of the State Legislature which authorizes their establishment through the Education Law. Section 255 of the Education Law (\"Establishment of a public library\u201d) provides in subdivision 2 that a cooperative library system may be established upon the request of two or more libraries chartered by the Board of Regents when it appears to the commissioner that such a system \"will result in improved and expanded library service to the area\u201d. All 52 member libraries in the Suffolk system are either public or free association libraries and the trustees are elected by vote of their boards of trustees. The principal source of revenue is State aid. Clearly, co-operative library systems are public institutions (1972 Opns Atty Gen 24) and not private eleemosynary organizations (see Matter of C v Nyquist, 59 Misc 2d 577). Since the trustees are the officers of the cooperative library system, the position of trustee is a public office (23 Op St Compt, 1967, p 767)."], "id": "4ba670cb-7c51-4697-b4bb-679b7491e8fc", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"1. A person is guilty of in the first degree when he intentionally damages a building or motor vehicle by causing an explosion or a fire and when (a) such explosion or fire is caused by an incendiary device placed inside such building or motor vehicle; or when such explosion or fire is caused by an explosive; and when (b) another person who is not a participant in the crime is present in such building or motor vehicle at the time; and (c) the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility."], "id": "c9c92560-27ed-49f6-aa1f-a91250521e2c", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["11 NYCRR 216.6 (c) provides that: \u201cWithin 15 business days after receipt by the insurer of a properly executed proof of loss and/or receipt of all items, statements and forms which the insurer requested from the claimant, the claimant, or the claimant\u2019s authorized representative, shall be advised in writing of the acceptance or rejection of the claim by the insurer. When the insurer suspects that the claim involves , the foregoing 15 business days shall be read as 30 business days pursuant to section 2601 of the Insurance Law. If the insurer needs more time to determine whether the claim should be accepted or rejected, it shall so notify the claimant, or the claimant\u2019s authorized representative, within 15 business days after receipt of such proof of loss, or requested information. Such notification shall include the reasons additional time is needed for investigation. If the claim remains unsettled, unless the matter is in litigation or arbitration, the insurer shall, 90 days from the date of the initial letter setting forth the need for further time to investigate, and every 90 days thereafter, send to the claimant, or the claimant\u2019s authorized representative, a letter setting forth the reasons additional time is needed for investigation. If the claim is accepted, in whole or in part, the claimant, or the claimant\u2019s authorized representative, shall be advised in writing of the amount offered. In any case where the claim is rejected, the insurer shall notify the claimant, or the claimant\u2019s authorized representative, in writing, of any applicable policy provision limiting the claimant\u2019s right to sue the insurer.\u201d"], "id": "319be5c5-aa2e-4b39-ab87-f3d55433faca", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Massachusetts Death Act was punitive, not compensatory, irrespective of the pecuniary loss (see Pe v. Northeast Airlines, 309 F. 2d 553, supra). The court continued (pp. 635-636): \u201c The legislative history of \u00a7 1404 (a) certainly does not justify the rather startling conclusion that one might \u2018 get a change of law as a bonus for a change of venue.\u2019 * * * We conclude, therefore, that in cases such as the present, where the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under \u00a7 1404 (a) generally should be, with respect to state law, but a change of courtrooms.\u201d (p. 639)."], "id": "fd009bd3-d38c-4b81-94fe-2635ededb9ea", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As a threshold matter, we conclude defendant forfeited his claim that the proffered evidence was admissible under Evidence Code section 356 because counsel did not raise that basis for admissibility below. (People v. Pe, supra, 56 Cal.4th at p. 460, 154 Cal.Rptr.3d 541, 297 P.3d 793.) In any event, Evidence Code section 356 has no application here. Defendant acknowledges that Kerr's statement to Peet regarding her husband's physical abuse of her did not occur in any of the conversations, presented by the prosecutor, in which Kerr said she feared defendant. By its terms, Evidence Code section 356 applies \"[w]here part of an act, declaration, conversation, or writing is given in evidence by one party ....\" (Evid. Code, \u00a7 356, italics added.) Nor does defendant persuade that the proffered statement was necessary to the jury's understanding of the prosecution's evidence regarding Kerr's fear of defendant. (See People v. Farley (2009) 46 Cal.4th 1053, 1103, 96 Cal.Rptr.3d 191, 210 P.3d 361 [trial court was not required under Evid. Code, \u00a7 356 to grant the defendant's request to admit numerous additional letters from the defendant to the victim when several such letters that had been placed into evidence were \" 'independently comprehensible' \" on the relevant topics of intent to kill and premeditation].)"], "id": "fb31966f-bae6-402d-b5bb-4da739a83607", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Y. Decisions of other jurisdictions likewise uphold, without question, the validity of such an agreement 1. Sir William Scott declared in Lindo v. Belisario (161 Eng.Rep.530-535; 1 Hagg. Consist. 216, 230): \u201c According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents and purposes, wherever two persons of different sexes engage, by mutual contracts, to live together. Our first parents lived not in political society, but as individuals, without the regulation of any institutions of that kind. * * * A marriage is not every casual commerce; nor would it be so even in the law of nature. * * * But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation, \u2014 That, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes, might safely be presumed to be, as it is popularly called, a marriage in the sight of God.\u201d (See testimony of John J. Dillon.) 2. Likewise in Dalrymple v. Dalrymple (2 Hagg. Consist. 54, 69) the same judge stated: \u201c In the latter case of Collins and Jesson (3 Anne) it was said by Holt, Chief Justice, and agreed to by the whole Bench, that \u2018 if a contract be per verba de prcesenti, it amounts to an actual marriage, which the very parties themselves cannot dissolve by release or other mutual agreement, for it is as much a marriage in the sight of God as if it had been in facie ecclesice.\u2019 \u201d 3. In Hutchins v. Kimmett (31 Mich. 126; 18 Am. Rep. 164) the court declared: \u201c Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated.\u201d 4. Marriage per verba de prcesenti is thus referred to in the note to Grigsby v. Reib (L. R. A. 1915E, 23): \u201c Where express present consent is clearly shown, marriage is in most instances, held to have been constituted. To constitute a marriage de. prce*138send, the parties must be in the presence of each other when the agreement is entered into, and there must be an agreement to become husband and wife immediately from the time when the mutual consent is given; but it need not be made in the presence of a witness, though without a witness it might be difficult to establish it.\u201d Lord Cranworth in Campbell v. Campbell (L. R. 1 H. L. Sc. App. Cas. 182) said: \u201cThe parties may express the agreement by parol; they may signify it by whatever ceremony their whim or their taste or their religious belief may select; it is the agreement itself and not the form in which it is couched which constitutes the contract; and the words used or the ceremony performed are mere evidence of a present intention and agreement of the parties. The agreement may be written or oral, with or without witnesses and may be proved like any other contract.\u201d 5. Judge Sanborn in Adger v. Ackerman (115 Fed. 124, 126) declared: \u201c Marriage is a civil contract. It is the agreement of one man and one woman, competent to contract, to then become and thereafter to be husband and wife so long as they both shall live. It differs from ordinary civil contracts in the fact that it may not be revoked or dissolved by the mutual consent or act of the parties. Like other agreements, however, it may be made without ceremonies, civil or religious, and it may be either express or implied. It may consist of a formal written instrument signed by the parties or of an express parol agreement between them. But neither documents nor spoken word is indispensable to its existence. An implied contract of marriage is as binding and effective as one expressed in words or spread upon parchment, and such a contract comes into being whenever the minds of the' parties meet in a common understanding of and consent to the present and future existence of the relation of husband and wife between them.\u201d (See, also, Sharon v. Sharon, 75 Cal. 1; 16 Pac. 345; Meister v. Moore, 96 U. S. 76; Askew v. Dupree, 30 Ga. 173; Vincennes Bridge Co. v. Vardaman, 91 Ind. App. 363.) VI. The validity of the agreement is not impaired by reason of the fact that the decedent, barred by the divorce decree from marrying in New York during the lifetime of his former wife, went with the contestant to New Jersey to evade the inhibition that restricted him from marrying in this State. 1. The Court of Errors and Appeals of New Jersey (1890), passing upon a so-called interstate marriage, declared as follows (Smith v. Smith, 52 N. J. Law, 207, 213): \u201cIt having been thus shown, that by the law of Massachusetts this was a valid marriage between the demandant and Hezekiah B. Smith, the next question presented by the exceptions is, will this marriage be recognized in New Jersey where the demand of dower is made. It was said by this court, in Harral v. Harral (39 N. J. Eq. 279, 287) that ' the doctrine generally adopted and supported by *139reason and public policy is, that a marriage celebrated according to rites and ceremonies recognized by the laws of the country where the marriage takes place, is valid everywhere.\u2019 * * * Certainly it is a law of comity between the different states of this country. This is the case even where the parties, being residents of one State, for the sake of evading the law, go into another State, where such a marriage is valid, are there married and immediately return and continue their place of residence; the marriage is valid there, and after the husband\u2019s death his widow is entitled to dower in his estate. (Putnam v. Putnam, 8 Pick. 433; Medway v. Needham, 16 Mass. 157; Van Voorhis v. Brintnall, 86 N. Y. 18; Moore v. Hegeman, 92 id. 521; Meister v. Moore, 96 U. S. 76; Ross v. Ross, 129 Mass. 243; Pe v. Howey, 6 Halst, 18, 21; 2 Kent Com. 87, 91, 92; Story Confl. Law, par. 123, etc.; 2 Greenl. Ev. \u00a7 460.) There is nothing in our law or any statute of this state which would make such a marriage as this invalid, if performed here, and there is no reason why it should not be here recognized, as entitling the demandant to dower in her deceased husband\u2019s land.\u201d (It is interesting to note here that in this decision twelve judges of said court concurred.) 2. The Court of Appeals in an opinion by Judge Kellogg (Fisher v. Fisher, 250 N.Y. 313, 318) declared: \u201cIt is well settled that the provisions of our statute forbidding the remarriage of a party who has been divorced for adultery have no extraterritorial effect; that a subsequent marriage of the guilty party, during the life of the innocent party, in a sister State if valid in that State will be recognized here as a lawful marriage. (Moore v. Hegeman, 92 N. Y. 521.) \u201d 3. The same court previously in Cunningham v. Cunningham (206 N. Y. 341, at p. 349) held: \u201c We do recognize the remarriage of a former husband or wife who has been divorced and has been forbidden to again marry, where such remarriage took place in a state in which it was authorized, but this is upon the ground that the forbidding to remarry was in the nature of a penalty which had no effect outside of this state.\u201d (See, also, Thorp v. Thorp, 1882, 90 N. Y. 602, revg. 47 N. Y. Super. Ct. 80; People v. Chase, 1882, 23 Hun, 310; Matter of Eichler, 1901, 34 Misc. 667; Reid v. Reid, 1911, 72 id. 214; Haviland v. Halstead, 1866, 34 N. Y. 643; Roberts v. Ogdensburgh, etc., R. Co., 1884, 34 Hun, 324; Bolmer v. Edgall, 90 N. J. Eq. 299, 306; Horton v. Horton, 198 Pac. 1106; Matter of Seymour, 113 Misc. 421; Matter of Briggs, 138 id. 136; affd., 232 App. Div. 666; Miller v. Amalgamated Laundries, Inc., 257 N. Y. 70; Matter of Schmidt, 42 Misc. 463; Matter of Garner, 59 id. 119; Earle v. Earle, 141 App. Div. 611; Fuller\u2019s Administrator v. Fuller, 40 Ala. 301.) No support for their contention nor strength for their conclusions can be derived by proponents from the two decisions which they. *140stressed in oral argument and have emphasized in their briefs (Collins v. Voorhees, 47 N. J. Eq. 555, and Matter of Pratt, 233 App. Div. 200), and which they try to make the basis of their attack upon the marriage declaration and acquiescence of the parties in the boardwalk wedding-ring episode. (A) They construe the Collins v. Voorhees decision to require where the relations of the parties have been meretricious, proof of an actual marriage subsequently to the lifting of the impediment that has prevented a valid marriage; and then they endeavor \u2014 futilely indeed \u25a0 \u2014 to argue that here the marriage has not been proven and to support the latter proposition they rely upon the Pratt case. In the face of the convincing proof of the agreement of the parties during the first week of November, 1927, adduced upon the trial and above carefully outlined, it seems academic to dwell at length upon the Collins v. Voorhees decision, but it may contribute to the force of our conclusions herein if a clear view be presented of the authorities in New Jersey respecting so called \u201c impediment \u201d cases, viz., where either or both of the parties cohabiting and desiring matrimony are under some inhibition due to failure of divorce, a former spouse still living, barrier of divorce decree, etc. Before discussing these authorities it should be clearly understood that in the present case the actual marriage agreement has been proven and the change in the relationships of the parties clearly shown. Proponents\u2019 assertions are as follows (p. 90 of the brief): \u201c Particularly clear must be the proof that there were indeed two such promises, where, as here, the parties are shown long to have lived together meretriciously (Bates v. Bates, 7 Misc. 547; Collins v. Voorhees, 47 N. J. Eq. 555; Arnold v. Chesebrough, 58 Fed. 833 (affg. 46 Fed. 709). A meretricious relationship having been (once) established, the authorities agree that its continuance must be presumed until proof of a change and of a marriage, and that in such a case marriage will not be presumed from cohabitation and reputation, but proof of a subsequent actual marriage is necessary. This may be shown by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and to satisfactorily prove that it was changed into that of actual marriage by mutual consent (Bates v. Bates, supra).\u201d The facts in the Collins v. Voorhees case were, briefly, as follows: In 1867 Voorhees sued for divorce in Connecticut for desertion. The proceeding was a fraud from the beginning and under New Jersey authorities the decree a nullity. He married a second time. Subsequently the first wife obtained a divorce from him. Thereafter Voorhees cohabited with the second wife and treated her before the world as though he was married to her. It was urged upon the court *141that such cohabitation formed the basis of an inference that there had been an interchange of consent. This inference was rejected by the Court of Errors and Appeals, Beasley, Ch. J., writing the opinion, which held that Voorhees knew that his divorce in 1867 was fraudulent and ineffective and that, therefore, he could not give the necessary consent to a common-law marriage, and further that that cohabitation, with habit and repute being accompaniments of the original status, could not per se be taken as proof that a new status had been agreed to by the parties. Chief Justice Beasley erroneously asserted that the Breadalbane decision, reported in Law Reports (2 H. L. Sc.), 269, was the only authority opposed to the conclusion of the court. Two facts should at this point be recorded: (1) Judge Garretson of this court dissented in a striking opinion in which he, destroying the conclusions of his colleagues, declared: \u201cWhere parties are cohabiting matrimonially but unlawfully because of an impediment to their marriage, matrimonial consent may be presumed to have been interchanged as soon as the parties were enabled by the removal of the impediment to enter into the contract,\u201d and \u201cIt may, I think, be safely asserted that no case can be found in the New York Reports from 1809, when Fenton v. Reed was decided, down to Gall v. Gall, decided in 1889, in which any different doctrine had been held or even intimated.\u201d Concluding he states concerning the doctrine adopted by his court: \u201c It stands, as it appears to me, as an innovation upon established law upon a most important branch of jurisprudence, and is radically destructive of the principle of public policy to which I have alluded, the uniform application of which is illustrated amongst others by the distinguished authorities to which I have referred.\u201d The decision and dissenting opinion were handed down in June, 1890. In the October term, 1904, the same court, with many new members and with Judge Garretson still a member, decided the appeal in Chamberlain v. Chamberlain (68 N. J. Eq. 737), affirming a remarkably scholarly opinion of Vice-Chancellor Stevenson in the court below (Chamberlain v. Chamberlain, 68 N. J. Eq. 415), in which he adopts views in harmony with the uniform decisions of New York courts such as Fenton v. Reed (supra), Rose v. Clark (supra), Matter of Crandall (supra). Confirmation of this principle is found also in Jackson v. Jackson (113 Atl. 495); Robinson v. Robinson (83 N. J. Eq. 150, 156; 90 Atl. 311); Bey v. Bey (83 N. J. Eq. 239; 90 Atl. 684); Schaffer v. Krestovnikow (88 N. J. Eq. 192; 102 Atl. 246; affd., 89 N. J. Eq. 549; 105 Atl. 239); Schuchart v. Schuchart (60 Pac. 311); Sorenson v. Sorenson (219 App. Div. 344); Matter of Haffner (254 N. Y. 238); Sheedy v. Riley (189 App. Div. 582); Applegate v. Applegate (118 Misc. 359); Hynes v. McDermott (91 *142N. Y. 451); Dodge v. Campbell (135 Misc. 644); Matter of Terwilliger (Hopkins, S., 63 id. 479); Townsend v. Van Buskirk (33 id. 287); Matter of Wells (123 App. Div. 79); Adger v. Ackerman (115 Fed. 124); University of Michigan v. McGuckin (62 Neb. 489; 87 N. W. 180)."], "id": "7ef1d345-9a7f-41ac-96b9-53f9be2e81d3", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["6 Given these conclusions, we reject Garcia\u2019s argument about the timeliness of plaintiffs\u2019 appeal. Plaintiffs served notice of entry of the December 4, 2019 judgment on February 27, 2020, triggering the 60-day appeal period per California Rules of Court, rule 8.104(a)(1)(B). Because the 60-day deadline fell within a period covered by a Covid-19-related order applying to deadlines occurring between April 19, 2020, to and including May 18, 2020 (see April 15, 2020 Implementation Order for the Renewed Order Pursuant to Rule 8.66 of the California Rules of Court at ), the deadline to file an appeal was extended until May 27, 2020. Plaintiffs timely filed their notice of appeal on May 27, 2020. We accordingly informed the parties on September 28, 2020, that the appeal of the December 4, 2019 judgment as to FPS and Garcia could proceed but dismissed the appeal as to City as untimely. mandatory language giving them an opportunity to challenge the abatement costs. They further contend the court ignored a provision stating that the Municipal Codes were not the exclusive remedy to address a code violation, and as a result it erred by concluding they had failed to exhaust administrative remedies. In response, FPS asserts plaintiffs\u2019 opposition to its motion was filed late. Even if a late filing justified disregarding the opposition papers, it would not be dispositive of plaintiffs\u2019 appeal. A trial court\u2019s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion even though no request to amend is made. (Code Civ. Proc., \u00a7 472c, subd. (a); Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 144-145; Mercury Ins. County. v. Pe (2008) 169 Cal.App.4th 1064, 1072.) And a plaintiff can make a showing how amendments would cure defects for the first time on appeal. (Smith, at p. 145.) FPS\u2019s other arguments relating to exhaustion are made without required citation to any authority or reasoned"], "id": "d4f7f78c-2105-4556-a230-17e3241a6d6b", "sub_label": "US_Terminology"} {"obj_label": "arson", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In January 1987, defendant was indicted in Rensselaer County on one count of in the first degree and four counts of murder in the second degree. The charges arose out of a fire which took place on September 1, 1986 in the City of Troy. Two young girls, who were sleeping in the dwelling at the time of the fire, were killed and Donald Gilbert, who lived in the building, suffered serious burns."], "id": "6fb387c1-bb4a-4aa5-904a-bbee6b225ddd", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" As to the merits, \"[w]here, as here, a youth has been convicted of an armed felony offense, he or she is eligible to be found a youthful offender if the sentencing court determines that one or more of the factors set forth in CPL 720.10 (3) are present \u2014 namely, whether there are that bear directly upon the manner in which the crime was committed or, if the defendant was not the sole participant in the crime, whether the defendant's participation was relatively minor, although not so minor as to constitute a defense\" (People v Jones, 182 AD3d 698, 699 [2020] [internal quotation marks, brackets and citations omitted]; see People v Meridy, 196 AD3d 1, 6-7 [2021], lv denied 37 NY3d 973 [2021]; People v Colon, 173 AD3d 1255, 1256 [2019]). \"If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist[s] and states the reason for that determination on the record, no further determination by the court is required\" (People v Jones, 182 AD3d at 699 [internal quotation marks and citation omitted])."], "id": "d7c62c6f-bdb7-4afc-9516-f89b87136348", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When reviewing the legal propriety of penalty phase instructions addressing , we must consider whether the instructions, considered together as a whole, fairly and accurately state the applicable law and \"whether a jury could have been misled into not considering certain mitigating circumstances that, by law, should have been considered.\" Gleason II, 305 Kan. at 820 (Stegall, J., concurring); see also In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d 791 (2021) (\"When reviewing jury instruction challenges, we consider '''jury instructions as a whole . . . to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.\"'\")."], "id": "6572514d-cd4f-455a-8096-3cf82cfd6255", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"Perhaps most important, plea negotiation serves the ends of justice. It enables the court to impose 'individualized\u2019 sentences, an accepted ideal in criminology, by avoiding mandatory, harsh sentences adapted to a class of crime or a group of offenders but inappropriate, and even Draconian, if applied to the individual before the court [citation omitted]. Obviously no two defendants are quite alike even if they have committed, in legal definition, identical offenses. The negotiation process often brings to light unknown when the defendant was charged [citation omitted].\u201d"], "id": "23e2d90e-2f71-451b-bd77-4257fb651837", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*299To prove the prejudice prong of Strickland , \"the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.\" Id. at 695 , 104 S.Ct. 2052. When the issue is whether to grant a new trial on the imposition of a sentence of death the Court determines \"whether there is a reasonable probability that, absent the errors, the [jury] ... would have concluded that the balance of aggravating and did not warrant death.\" Id."], "id": "2d41573c-5ec7-4059-8492-afba13725f5c", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The record is unclear as to whether this occurred. After stating its reasons for imposing consecutive sentences on Counts Two through Five (\u00a7\u00a7 664/187), the trial court stated it would run one 25-years-to-life firearm enhancement, i.e., that attached to Count Five, concurrently \"in light of the constitutional scheme argued by defense.\" Thus, it appears the trial court considered the constitutional arguments raised by Adam and Isaac and agreed the probation officer's recommendation would amount to cruel and unusual punishment. However, running one of the firearm enhancements concurrently did not reduce the sentence below that of a functionally equivalent LWOP. As a practical matter, there is no difference between the sentence recommended by probation (170 years to life plus 37 years 4 months), the sentence the trial court would have imposed without running one firearm enhancement *846concurrently (145 years to life plus 9 years 4 months), and the sentence actually imposed (120 years to life plus 9 years 4 months). In other words, if an individualized consideration of \"all attendant in the juvenile's crime and life\" (Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 ), would have rendered the functional LWOP sentence recommended by the probation department a violation of the Eighth Amendment, then the sentence imposed by the trial court-also a functional LWOP-was also a violation of the Eighth Amendment. At the same time, if the trial court did consider \"how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison\" (Miller, supra, 132 S.Ct. at p. 2469 ), but nevertheless concluded these particular juveniles were deserving of spending the rest of their lives in prison without possibility of parole, there would be no such violation. The problem is the record does not reveal which occurred."], "id": "fe04988b-76f8-4204-a86f-3349a8f08fff", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thereafter, Johnson filed the present action seeking a writ of mandate. She argued that the pre-termination notice violated her due process rights because it did not adequately inform her of the allegations against her so she could prepare a defense with rebuttal evidence. She also argued that the hearing officer failed to proceed in a manner required by law by terminating her section 8 voucher without recognizing its discretion to consider ."], "id": "5e5fa5b1-b630-43f4-a6cd-4c3c9fcf2f10", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The homeowner\u2019s policy issued by the plaintiff to the parents of the Darby youth contained the usual general provision that notice be given \u201cas soon as practicable\u201d after an occurrence takes place. Such a provision has been construed to require that such notice must be given within a reasonable time in the light of all of the facts and circumstances of a particular case. (Deso v. London & Lancashire Ind. Co. of Amer., 3 N Y 2d 127.) The reasonableness of a delay in giving such notice, where are present, is ordinarily a question to be resolved by the triers of fact. (Deso v. London & Lancashire Ind. Co. of Amer., supra; Gluck v. London & Lancashire Ind. Co. of Amer., 2 A D 2d 751, affd. 2 NY 2d 953; Marcus v. London & Lancashire Ind. Co. of Amer., 6 A D 2d 702, affd. 5 N Y 2d 961.) Although the court in the Deso case held that on the facts of that case the notice was not timely as a matter of law, it distinguished p, situation such as that present in the Gluck case where the insured had testified that the reason for the delay was his unawareness that the contract of insurance covered the accident, indicating that \u201c once the insured was alerted to contract coverage he gave prompt notice \u201d. (Deso v. London & Lancashire Ind. Co. of Amer., supra., p. 131.)"], "id": "506b9e13-00c2-451a-880e-d7751377bd26", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*844There can be no doubt the sentences imposed in this case, i.e., 120 years to life plus 9 years 4 months, are the functional equivalent of LWOP.7 (See Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 [sentence of 110 years to life amounted to functional equivalent of LWOP].) This being a murder case, Graham 's categorical ban on imposition of an LWOP sentence on a juvenile nonhomicide offender does not apply. (Graham, supra, 560 U.S. 48, 130 S.Ct. 2011.) However, under Miller, the trial court was still required to \"take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.\" ( *836Miller, supra, 132 S.Ct. at p. 2469.) This required the trial court to consider \"all attendant in the juvenile's *837crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development....\" (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) The question we must resolve is whether the trial court took these circumstances into consideration before imposing such a harsh penalty."], "id": "e676bc71-b454-45e8-93d8-d41dbe4d8461", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Appellate Division in People ex rel. Newcomb v Metz (64 AD2d 219, 222) found \"the interests of fundamental fairness mandate a consideration of a person\u2019s mental competency\u201d at a parole revocation hearing. It has also been held by the Appellate Division that a defense of justification can be a bar to prison disciplinary charges. (See, Matter of Burgos v Coughlin, 108 AD2d 194.) \"[E]vidence of * * * is [also] relevant in a prison disciplinary proceeding\u201d. (Matter of De Mauro v LeFevre, 91 AD2d 1156, 1157.)"], "id": "40fec92d-97fe-4296-acf3-d01b1dc4281b", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Alan D. Marrus, J. The District Attorney, after having secured an indictment *675against the defendant for murder in the first degree and related charges, elected not to seek the death penalty. On January 30,1997, following a jury trial, the defendant was convicted of murder in the first degree and robbery in the first degree. This court now has the power to sentence the defendant to a minimum term of imprisonment of from 20 to 25 years, with a maximum term of life imprisonment, or to sentence the defendant to life imprisonment without parole. (CPL 400.27 [1]; Penal Law \u00a7 70.00 [3] [a] [i].) Should this court now conduct a special fact-finding hearing to consider aggravating and before making this determination?"], "id": "bc704aab-b7cf-4a26-9f2a-902a626ea442", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Were it not for the presented herein as to the difficulty of plaintiff\u2019s attorney in ascertaining the whereabouts of the defendant, insured, so as to effect service of process upon him, the court would be constrained to hold the plaintiff to have no greater rights than the insured and to dismiss the complaint because notice would not then have been given as soon as was reasonably possible."], "id": "558d4a34-c8c0-4cb7-8e60-969c2824cfeb", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cI must thus conclude that Mr. Bonamo refused to submit to a random drug test and under the DOT\u2019s recent zero tolerance drug policy the DOT normally would have the right to terminate an employee. However, given the fact that the Union was unable to examine the circumstances under which the testing was done, I have found that there were that warrant reduction of the penalty of termination to that of a suspension\u201d (emphasis added). In short, the arbitrator concluded that Bonamo had indeed refused to submit to a random drug test, but nullified the City\u2019s decision to terminate him pursuant to DOT\u2019s zero tolerance policy. Instead, the arbitrator ordered Bonamo\u2019s reinstatement or \u201creduction of the penalty,\u201d to use his words."], "id": "193bb5db-4d64-4eda-9b4f-c634c6d6f38f", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thus a look at CPL 180.75 (subd 4, par [b]) as it relates to removal of actions involving murder in the second degree is in order. CPL 180.75 (subd 4, par [b]) states: \"[T]he court may, with the consent of the district attorney, order removal of an action involving a complaint charging a juvenile offender with murder in the second degree, or an armed felony as defined in subdivision forty-one of section 1.20 of this chapter, to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter provided, however, that a determination that such an action should be removed to the family court shall be based solely upon one or more of the following factors: (i) that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant\u2019s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the crime\u201d."], "id": "032c5b7f-804c-4749-a7b2-c638d2d71e71", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Given the enormity of the State's evidence supporting aggravating circumstances, the isolated nature of the comments in question, and the correcting influence of the jury instructions, we cannot see any reasonable possibility these two errors affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. Sherman, 305 Kan. 88, Syl. \u00b6\u00b6 6-8."], "id": "f39f3d81-0133-46f6-9a6f-f9c477b769d6", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As for CPL 210.43 (subd 2, par [c]), the court has examined the Grand Jury minutes and finds the proof to be sufficient for indictment. (CPL 200.50, 210.30.) On the basis of all the proof and allegations presented, the court is unable to conclude that existed, or that the defendant was a minor participant, as opposed to sole actor."], "id": "d4b3539f-2d65-4764-90fc-00ba063f6ca9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The instructions viewed together as a whole correctly and clearly informed the jurors of the law governing their consideration of . Accordingly, we find no error in the instructions as given. See State v. McDaniel, 306 Kan. 595, 616, 395 P.3d 429 (2017) (\"The trial court did not err by failing to instruct the jury with the additional language [defendant] request[ed] because the instruction given fairly and accurately stated the law and accordingly was legally appropriate.\")."], "id": "86fc67c8-aa47-404c-a877-a67ddf59d629", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*731The Miller court thus reasoned that \"Graham, Roper [v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (Roper ) ] [[5] and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment.\" (Miller, supra, 132 S.Ct. at p. 2475, italics added.) Thus, the Miller court extended the Eighth Amendment imperative for individualized sentencing inquiry to juveniles sentenced to LWOP and added the attributes of youth as a specific consideration for such cases."], "id": "a3b3cb6b-052d-44d0-b6cb-e0114ef8564d", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["of the crime or the aggravating or .\u201d [Citation.]\u2019 [Citation.] The evidence must not be unreliable [citation], incompetent, irrelevant, lack probative value, or solely attack the legality of the prior adjudication [citations].\u201d (Hamilton, at p. 912.) McClain sought to present testimony from severed codefendants Bowen and Bailey about their plea agreement and McClain\u2019s purported lack of involvement in the murders. He argued these men could tell the jury whether he was present or not at the shooting scene and \u201cif they [had] seen [him] at any time during the night.\u201d The court denied the request, explaining it was not appropriate evidence for the penalty phase. This ruling was within the court\u2019s discretion. It was clear from McClain\u2019s offer of proof that he was merely speculating about the evidence Bowen and Bailey might provide. He made no specific offer of proof. Neither man testified in the guilt phase trial, and McClain did not claim he was aware from any source that they were present at the crime scene. He apparently based his speculation on the men\u2019s negotiated dispositions, but, as the prosecutor noted, they had steadfastly refused to admit guilt. Because McClain offered no basis for the court to conclude Bowen and Bailey would provide admissible evidence about the circumstances of the crime, the court did not err in excluding their testimony. (See Hamilton, supra, 45 Cal.4th at p. 912.) The analysis is different for eyewitness expert Kathy Pezdek. McClain sought to present Pezdek\u2019s testimony to refute Gabriel Pina\u2019s identification of him as the driver of the lead car on Wilson Street. The trial court denied the request, reasoning that identity was not an issue at the penalty phase and the evidence would be irrelevant. To the contrary, the proffered testimony was relevant as to lingering doubt, and section 190.3"], "id": "243edefd-cb7c-4bfc-a718-307fcf751cb9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The majority reasons that the following quote from Caballero supports its conclusion that trial courts must still engage in *733an Eighth Amendment compelled individual sentencing inquiry post-S.B. 260: \" 'Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.... [T]he sentencing court must consider all attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time *1510when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison \"based on demonstrated maturity and rehabilitation.\" ' ( [Caballero, supra, 55 Cal.4th] at pp. 268-269 145 Cal.Rptr.3d 286, 282 P.3d 291, quoting Graham, supra, 560 U.S. at p. 75 130 S.Ct. 2011.)\" (Maj. opn., ante, at pp. 715-16, italics added.)7"], "id": "3df50fea-50e3-4985-9ed8-8b0b7aadd70e", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Again: Under the provisions of section 165 of the Code, a defendant is entitled to allege in his answer, both the truth of the matter charged as defamatory, and any . The portion of the answer complained of, is alleged both by way of justification and mitigation. If not good as a justification, it certainly contains matter proper to be taken into consideration as mitigation.\u2020 And if proper to be pleaded for any purpose, the matters contained in the allegation cannot be considered as irrelevant or redundant. I am therefore in favor of affirming the order of the Special Term, with costs."], "id": "792d1788-9028-429f-a329-333097be6bf5", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court then proceeded to recite some circumstances it thought were mitigating, such as Shell's difficult childhood, mental and physical health, remorse, and his not brandishing or using a gun when fleeing from police. It was at this point in the hearing that the court briefly mentioned the sentences of similarly situated defendants and offered its view of the relevant statistics. But after making that remark, the court abandoned its short detour and returned to the main subjects of its reasoning\u2014the aggravating and of the case. It said, \"I can't get over the relative seriousness, the aggravating aspects of the specific offenses of conviction here\" and Shell's significant criminal history. The court said that it could not reconcile those considerations \"with a sufficient justification to vary downward from the guideline range.\" It added, \"If anything, I could make a really good case for imposing sentence at the upper end of the guideline range\" but decided otherwise in light of the mitigating circumstances. \"So for those reasons,\" the court concluded, it sentenced Shell to 262 months. The record therefore shows that the court fixed Shell's sentence by focusing in a determined way on the aggravating and mitigating circumstances of his case, not on the sentences that other 924(c) career offenders received."], "id": "e59b49de-513d-4c98-878d-93a126e07404", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cSanctions of attorneys convicted of misdemeanor tax offenses have ranged from private reprimand to censure to suspension. Public censure has been deemed appropriate in tax avoidance cases where the behavior is aberrational or marked by substantial or factors. When less substantial evidence in mitigation has been presented, or when aggravating factors exist, attorneys have been suspended\u201d (Matter of Eppner, 62 AD3d 151, 155 [1st Dept 2009] [internal citations omitted])."], "id": "706a4589-f84a-461f-8c34-bc209ff038b2", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It contains what may be considered a justification of the alleged slander, with tending to disprove malice, and although the plaintiff may desire more particularity, yet I do not understand how she can be gratified. Certainly, it will be a sufficient defence if the defendant proves a justification as full and as broad as the charge; and if she should fail in so doing, under the decisions in Bush a. Prosser (1 Kern., 347), and Bisbey a. Shaw (2 lb., 67), the evidence offered for the purpose may be relied on to disprove malice. The answer seems to me sufficiently definite and certain to permit defences of the kind suggested, and is not open to the plaintiff\u2019s objection. (Code, \u00a7 160.)"], "id": "765fee3d-13a5-41bd-ad5e-3e8810dd975a", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Grand Jury minutes reveal that the defendant also shot himself twice in the head and received similar serious injuries. The language of the indictment alleges that both counts were committed under the influence of extreme emotional disturbance. Ordinarily such is an affirmative defense reducing the gravity of the crime from attempted murder to attempted manslaughter (Penal Law \u00a7 125.25 [1] [a]), which the defendant, and not the People, must prove to secure the benefit of the statutory mitigating defense (Penal Law \u00a7 25.00 [1]). However, the minutes show the Grand Jury itself was divided and refused to indict the defendant for attempted murder, even though it obviously resulted from the deliberate use of a deadly weapon. The People candidly have disclosed here that the language in the indictment relating to the defendant\u2019s emotionally disturbed state at the time of the offense was included at the express direction of the Grand Jury. Considering such, and that the defendant did not testify before it, I find that the unsolicited extraneous conclusion by the Grand Jury as to the existence of extreme emotional influence is itself indicative of the exceptional nature of the involved."], "id": "37952b74-ce2d-4484-94a3-ca6f29411d53", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*380The provisions of the policy relative to notice stem from the language of section 167 (subd. 1, par. [d]) of the Insurance Law. The Court of Appeals in Deso v. London & Lancashire Ind. Co. (3 N Y 2d 127) in construing an identical clause as in the instant policy, held that a failure of the insured to give timely notice to the insurer is a breach of the conditions of the policy calling for notice as soon as practicable, unless a satisfactory explanation or , such as absence from the State, lack of knowledge of the occurrence or its seriousness, is presented and that the reasonableness of such delay under such circumstances is one of fact and for the court or jury (see Mason v. Allstate Ins. Co., 12 A D 2d 138; Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 302, 304; Melcher v. Ocean Acc. & Guar. Corp., 226 N. Y. 51; Gluck v. London & Lancashire Ind. Co., 2 A D 2d 751, affd. without opinion 2 N Y 2d 953; Lukin v. Mass. Bonding & Ins. Co., 28 Misc 2d 876). It is the court\u2019s opinion that the facts pleaded sufficiently fall within the ambit of these authorities. The reliance of the plaintiff on Reina v. United States Cas. Co. (228 App. Div. 108, affd. without opinion 256 N. Y. 537) in support of its contention is clearly distinguishable. There the court stated: 1\u2018 The only excuse or explanation offered is that through his inadvertence and mistake notice was sent to the wrong company. No claim is made that he did not know of the change of coverage \u201d (p. 110; emphasis supplied)."], "id": "cbd856f2-7a9d-49b1-88cc-a4c85587b5ef", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant\u2019s claim that his sentence was harsh and excessive is also unavailing. Our review of the record reveals no extraordinary circumstances or abuse of County Court\u2019s discretion warranting modification of the sentence (see People v Butler, 111 AD3d 1024, 1025 [2013]; People v Iadicicco, 100 AD3d 1147, 1147 [2012]). In fact, County Court granted defendant\u2019s application for a violent felony override and the sentence for each count of the indictment was only six months more than the allowable minimum sentence for each conviction (see Penal Law \u00a7 70.02 [3] [b]).2 Thus, the sentence reflected an appropriate measure of leniency, presumably in consideration of defendant\u2019s ."], "id": "9b39d2b6-9aa9-45d5-b001-54145544c8a2", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The plaintiff also invokes section 241 of the Civil Practice Act, which provides that a \u2018 \u2018 pleading shall contain a plain and concise statement of the material facts, without unnecessary repetition, * * * but not the evidence by which they are to be proved \u201d. It is well, on the issue thus raised, to direct attention to two other pertinent provisions of the Civil Practice Act \u2014 sections 338 and 339. Under the latter section, \u201c the defendant may prove, at the trial, facts [although] not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff\u2019s damages, if they are set forth in the answer \u201d. And since, under section 338, \u201c the defendant may prove [emphasis supplied] , including the sources of his information and the grounds for his belief \u201d, it is obvious to me that he may plead such circumstances in his answer. In my opinion, section 241 must be read in the light of the nature of the action and the nature of the defenses pleaded thereto. With these factors in mind, I do not find that the defenses as pleaded are vulnerable to the attack now being-considered."], "id": "6e95a702-56be-46ff-9495-955395a80cb6", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Here, with respect to imposing consecutive sentences for Counts Two through Five (\u00a7\u00a7 664/187), i.e., the four attempted murders, the trial court stated: \"The Court finds that each of those offenses was a separate act of violence, and I will articulate this factual finding as it relates to each of them. [\u00b6] This is not a situation where there was only one or two shots fired. Factually in this case, multiple guns were basically unloaded. [\u00b6] And it is quite clear that it is appropriate, in the Court's view, to recognize the imposition of a separate sentence as it relates to each of the individual victims in this case.\" We do not dispute these are appropriate reasons for imposing consecutive sentences. (See People v. Thurs (1986) 176 Cal.App.3d 448, 451-453, 222 Cal.Rptr. 61 [trial court may impose consecutive sentences for separate acts of violence against multiple victims].) However, as previously explained, where the defendant is a juvenile, and the result of imposing consecutive sentences is an aggregate prison term that is the functional equivalent of LWOP, the Eighth Amendment requires the trial court to specifically consider \"all attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development,\" before imposing such a harsh sentence. (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) Thus, while rule 4.425 provides circumstances in mitigation \"may be considered,\" the circumstances of this case required the trial court to consider such mitigating circumstances, separately with respect to each juvenile offender, as a matter of constitutional law."], "id": "27b53047-5158-424a-b75d-bea6d36fe227", "sub_label": "US_Terminology"} {"obj_label": "Mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["subdivision (h) allows the court to, \u201cin the interest of justice pursuant to Section 1385 . . . , strike or dismiss an enhancement otherwise required to be imposed by this section.\u201d Defendant argues the trial court abused its discretion in refusing to strike the enhancements or impose lesser uncharged and unfound enhancements pursuant to sections 12022.53 and 12022.5. \u201c \u2018[A] court\u2019s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is\u2019 reviewable for abuse of discretion.\u201d (People v. Carmony (2004) 33 Cal.4th 367, 373.) A \u201c \u2018 \u201cdecision will not be reversed merely because reasonable people might disagree. \u2018An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.\u2019 \u201d \u2019 [Citations.]\u201d (Id. at p. 377.) \u201c \u2018A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.\u2019 [Citation.]\u201d (People v. Stuart (2007) 156 Cal.App.4th 165, 179.) Absent an indication to the contrary, we presume the trial court considered all relevant facts and arguments. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 447; People v. Myers (1999) 69 Cal.App.4th 305, 310.) In determining whether to strike enhancements, a trial court is to consider the factors enumerated in the California Rules of Court5 relating to general sentencing objectives and aggravating and mitigating factors. (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) General sentencing objectives include protecting society, punishing the defendant, deterring future offenses by others, preventing defendant from committing new crimes, and achieving uniformity in sentencing. (Rule 4.410(a)(1), (2), (4), (5) & (7).) Aggravating circumstances include: the crime involved threat of great bodily harm, and the defendant was armed with or used a weapon during the commission of the crime. (Rule 4.421(a)(1) & (2).) include: the victim"], "id": "b44b8b01-258c-40af-89f8-43f0b64d2dc9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["rejected similar claims. The instruction is legally sound and provides appropriate guidance on how the jury should approach its task in determining the appropriate penalty. \u201c \u2018[T]he instruction is \u201cnot unconstitutional for failing to inform the jury that: (a) death must be the appropriate penalty, not just a warranted penalty [citation]; (b) [a sentence of life without the possibility of parole] is required, if it finds that the outweigh those in aggravation [citation] or that the aggravating circumstances do not outweigh those in mitigation [citation]; (c) [a sentence of life without the possibility of parole] may be imposed even if the aggravating circumstances outweigh those in mitigation [citation]; [and] (d) neither party bears the burden of persuasion on the penalty determination.\u201d \u2019 \u201d (People v. Garton (2018) 4 Cal.5th 485, 523; see also People v. Linton, supra, 56 Cal.4th at p. 1211.) b. Failure to Define Life Without the Possibility of Parole McClain and Holmes argue the trial court had a sua sponte duty to instruct the jury on the meaning of life without the possibility of parole. We have previously rejected similar claims, explaining \u201cthe term has a plain meaning that does not require further explanation.\u201d (People v. Watson (2008) 43 Cal.4th 652, 700.) Defendants do not persuade us to hold otherwise."], "id": "ebb08e60-7947-435d-95ec-ebc4f6f847f9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant claims that the trial court failed to consider relevant mitigating factors. \"The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]\" (People v. Kelley , supra , 52 Cal.App.4th at p. 582, 60 Cal.Rptr.2d 653.) No contrary showing has been made here. The mitigating factors that the trial court allegedly failed to consider were set forth in the Defense Sentencing Statement and the probation report. At the sentencing hearing, the trial court declared that it had \"read and considered\" the probation report \"with all attachments and letters.\" It had also \"read and considered the [D]efense [S]entencing [S]tatement.\" In addition, it had \"considered aggravating and .\""], "id": "2c558a82-afc6-4aad-a7d8-aaecc69fb2ac", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The prosecutorial error concerning the jury's weighing equation and the error on the verdict forms instruction are related in that they both recited incorrect standards for determining how the relative weight of aggravating and impacted its verdict. The prosecutor told the jury to impose the death penalty if aggravating factors were outweighed by mitigating factors. The instruction told the jury to use a verdict form rejecting a sentence of death if one or more jurors was not convinced the aggravating circumstances did not outweigh the mitigating circumstances."], "id": "e2ab2e53-de71-447c-9035-4579530631c5", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Applying this rule, we will conduct a Chapman harmless-error review. We clarify that when conducting a Chapman harmless-error review of multiple errors in a capital penalty-phase proceeding, we ask whether we are persuaded there is no reasonable possibility the errors' cumulative effect, viewed in light of the record as a whole, affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. See Cheever II, 306 Kan. at 800-01."], "id": "31f0583e-d388-4b74-86d0-490fdfd137c5", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["If, however, the restrained property is held in the name of someone other than the judgment debtor, or if the judgment creditor is aware or should have been aware that the said property is OAvned by another, then, in that event the judgment creditor is proceeding at his oavh risk and should be held responsible for his acts. The trial court taking into account any and all ."], "id": "b0d4484e-9b88-448a-ae76-df9d1ff9110c", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To the contrary, in my view, for a trial court to simply ignore that a directive of this court is itself error. See State v. Clark, 313 Kan. 556, 565, 486 P.3d 591 (2021) (\"'[P]oints of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.'\"). And the majority does not hold the directed instruction would misstate the law. Instead, it determines \"[t]he instructions viewed together as a whole correctly and clearly informed the jurors of the law governing their consideration of .\" R. Carr II, 314 Kan. at ___, slip op. at 56. Granted, we often hold a court does not err when it refuses to give a requested instruction that provides additional information to a jury even if the instruction would properly explain the law. But we often tell trial judges that giving the jury added information would be a better practice. See, e.g., State v. Barlett, 308 Kan. 78, 86, 418 P.3d 1253 (2018). And in Kleypas, 272 Kan. at 1078, this court took the added step of directing judges to give the instruction."], "id": "279202c9-e988-481f-8c0a-146a522661e1", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The recall provisions in section 1170, subdivision (d)(2), are substantively different from the mandatory parole consideration provisions in section 3051. Under subdivision (d)(2)(A)(i) of section 1170, a person who was under age 18 at the time of the commission of the offense and sentenced to LWOP may petition to have the sentence recalled after serving at least 15 years. Nothing happens if the prisoner does not file a petition. Certain defendants are statutorily excluded, regardless of the . Those excluded include prisoners who tortured their victims and where the defendant's victim was a public safety official. (\u00a7 1170, subd. (d)(2)(A)(ii).) Also, to qualify, section 1170, subdivision (d)(2)(B), requires that defendant's petition state: (1) the defendant had been convicted of felony murder or aiding and abetting murder; (2) the defendant did not have prior juvenile felony adjudications for assault or other felonies \"with a significant potential for personal harm to victims\"; (3) the defendant committed the offense with at least one adult codefendant; and (4) \"The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.\" (\u00a7 1170, subd. (d)(2)(B)(i)-(iv).) If the petition does not include all of this information, the trial court shall return the petition and advise that it cannot be considered without the missing information. (\u00a7 1170, subd. (d)(2)(C).) If the trial court finds by a preponderance of the evidence that statements in the petition are true, then the court must hold a hearing to consider the recall. (\u00a7 1170, subd. (d)(2)(E).) In addition to the facts required for the petition, in deciding whether to grant the petition, the court \"may consider\" the following facts: (1) prior to the commitment offense, the defendant had \"insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress\"; (2) the defendant \"suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant's involvement in the offense\"; (3) the defendant has performed acts that tend to indicate rehabilitation or show evidence of remorse; (4) the defendant has maintained family ties or connections; and (5) the defendant has no disciplinary actions for violent activities in the last five years in which the defendant was the aggressor. (\u00a7 1170, subd. (d)(2)(F)(iv)-(viii).) If the sentence is not recalled, the defendant will have three more opportunities to petition for recall-at 20 years, 24 years, and 25 years of incarceration. (\u00a7 1170, subd. (d)(2)(H).) If the sentence is recalled, the trial court shall have the discretion to resentence the defendant \"in the same manner as if the defendant had not previously been sentenced.\" (\u00a7 1170, subd. (d)(2)(G).)"], "id": "b7b99bc0-3bc6-48f0-b66b-9db6d79bda08", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Despite the foregoing qualification, we will assume the contested evidence in this case is subject to the Confrontation Clause based on the statements and rationale set forth in the court's prior decision. On the facts of the case, however, we hold any Confrontation Clause violation was harmless because there is no reasonable possibility the assumed error affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. See Ward, 292 Kan. at 565 (providing degree of certainty in outcome required to hold an error that implicates federal constitutional rights was harmless)."], "id": "9cd6a225-fea8-4aa2-9b17-b1a3e3281a4a", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["R. Carr asserts the prosecutor was arguing he had no right to offer mitigating evidence and, rather than consider it, the jury should be angry and insulted. J. Carr argues this passage \"implore[d] the jury not to consider any relating to the character and record of the defendants because the victims did not have a chance to have their characters and records considered in mitigation.\" The State contends this was a proper appeal for a just sentence."], "id": "b9cb8abf-df7c-4678-9150-0d0a86174771", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Attempted murder, the lead charge in this case, carries an offense gravity score (OGS) of fourteen, and [Appellant\u2019s] prior record score (PRS) is a two. Thus, under the deadly weapons used matrix, the guideline sentence is one hundred [and] fourteen months up to the statutory limit of confinement, plus or minus twelve months for aggravating or . As such, this court\u2019s sentence of ten to twenty years of confinement is within the aggravated guidelines range.[6]"], "id": "a77d7d93-76e6-406e-8824-5f5b90003e24", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In R. Carr II, we held the prosecutor's errors, endorsing Pay's credibility and misstating the jury's weighing test, did not cumulatively deprive R. Carr of a fair trial. R. Carr II, 314 Kan. at ___, slip op. at 132 (\"Given the enormity of the State's evidence supporting aggravating circumstances, the isolated nature of the comments in question, and the correcting influence of the jury instructions, we cannot see any reasonable possibility these two errors affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict.\"). The additional error in J. Carr's case\u2014the prosecutor's improper reference to a fact not in evidence, which was quickly remedied and added little to the well-established fact that J. Carr fully participated in the murders\u2014does not require a different result. We hold there is no cumulative prosecutorial error."], "id": "4cb42627-0117-4f4b-8d93-f370ca311c3a", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Notwithstanding such , this court would be powerless to prevent an injustice if in fact the gross miscalculations resulted solely from a failure to compute the freight charges in accordance with the scheduled tariff carefully spelled out and understood by all those affected thereby. On the other hand, relief could and should be granted if the language contained in the tariff schedule was equivocal and/or ambiguous. Jn that instance the language would be strictly construed as against the draftsman (in this instance, the plaintiff) and in favor of the shipping public (defendant). (See Calcium Carbonate. Co. v. United States, 256 F. Supp. 99, 102; Atlantic Coast Line & Southern Ry. Co. v. Atlantic Bridge Co., 57 F. 2d 654; Union Wire Rope Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 66 F. 2d 965; United States v. Missouri Pacific R. R. Co., 250 F. 2d 805, 808; United States v. Missouri-Kansas-Texas R. R. Co., 194 F. 2d 777; United States v. Strickland Transp. Co., 200 F. 2d 234, 235; Chicago, Rock Is. & Pacific R. R. Co. v. Furniture Forwarders of St. Louis, 267 F. Supp. 175, 177.)"], "id": "24bab5d5-ee92-457b-93cb-a9c2f1423a47", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"(3) Notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense is an eligible youth if the court determines that one or more of the following factors exist: (i) that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant\u2019s participation was relatively minor although not so minor as to constitute a defense to the prosecution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance with the provisions of subdivision three of section eight hundred thirty-seven-a of the executive law.\u201d (CPL 720.10; emphasis added.)"], "id": "1ef8ae00-aa00-41d0-8dca-dec9208ba602", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["29. When reviewing cumulative error in a capital penalty-phase proceeding, the court's focus is on the errors' cumulative effect on the jury's ultimate conclusion regarding the weight of the aggravating and . In other words, we are looking for the errors' effect in their aggregate, recognizing errors can differ in their individual or cumulative effect. Ultimately, the court must determine whether there is a reasonable possibility the errors' cumulative effect, viewed in light of the record as a whole, affected the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances, i.e., the death sentence verdict."], "id": "4e4f2d3d-cbd5-42ae-a6c6-c4334600d152", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". During the period from the effective date of New York\u2019s first degree murder statute through October 10, 1997, 21 defendants charged with murder in the first degree have pleaded guilty. Thirteen have been sentenced to life imprisonment without parole. Although this court is not aware of any plea discussions in the instant case, it would seem essential that defense counsel be aware of the existing evidence respecting both aggravating and in the case in order to responsibly counsel a teenaged defendant on the advisability of pleading guilty in exchange for a sentence of life imprisonment without parole."], "id": "b84d6637-d8c1-4682-9956-4fb09ac5cc2f", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["likelihood that the stun belt had at least some effect on defendant\u2019s demeanor\u201d meant that \u201cthere [wa]s a reasonable probability that the error affected the outcome of defendant\u2019s trial.\u201d (Mar, supra, 28 Cal.4th at p. 1225.) Here, the court imposed the stun belts during the penalty phase retrial after the first penalty jury hung, and the second penalty jury deliberated for nine days before reaching death verdicts. The jury\u2019s perception of the defendants, one of whom was representing himself, would have been critical in weighing aggravating and . (See People v. Jackson (2014) 58 Cal.4th 724, 777 (Jackson) (conc. opn. of Liu, J.) [\u201cWearing a stun belt carries a substantial risk of altering a defendant\u2019s demeanor, and a defendant\u2019s demeanor is often one of the most important considerations for the jury in deciding whether a capital defendant deserves to live or die. (See Riggins v. Nevada (1992) 504 U.S. 127, 143\u2013144 (conc. opn. of Kennedy, J.) . . . .\u201d].) A stun belt is \u201ca device that . . . delivers an eight-second- long, 50,000-volt, debilitating electric shock when activated by a transmitter controlled by a court security officer.\u201d (Mar, supra, 28 Cal.4th at p. 1204.) \u201c \u2018The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt\u2019s metal prongs may leave welts on the wearer\u2019s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures.\u2019 \u201d (Id. at p. 1215.) The trial court read to defendants a form that explained the device\u2019s capability \u2014 that \u201cwhen activated [it] is capable of"], "id": "75241c13-a458-4d49-95b3-51c4eca027fe", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Despite Collings's argument to the contrary, it is clear his two trial counsel conducted a thorough investigation into possible prior to trial. They hired a total of eight experts with experience related to mental disorders and development before ultimately deciding to call only Dr. Draper as an expert witness to testify during the penalty phase of trial. As explained above, Collings's counsel also made a strategic decision not to focus on evidence of his drug and alcohol use as they believed such evidence and argument would antagonize the jury."], "id": "7cff3cac-427a-4280-a10a-898ebfd27424", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After careful review and consideration of the entire record, we conclude that \"the evidence supports the findings that\" one or more aggravating circumstances \"existed and that any were insufficient to outweigh the aggravating circumstances.\" K.S.A. 2020 Supp. 21-6619(c)(2). Having confirmed that Reginald Dexter Carr Jr. received a fair trial and the jury's sentence was not \"imposed under the influence of passion, prejudice or any other arbitrary factor,\" K.S.A. 2020 Supp. 21- 6619(c)(1), we affirm Reginald Dexter Carr Jr.'s death sentence for the capital murder of H.M., J.B., B.H., and A.S."], "id": "b807a6bb-65a5-4564-8695-17288b66e0c8", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant\u2019s argument that banning relitigation of the aggravating factors is constitutionally impermissible misinterprets the role of aggravating factors as articulated by the Supreme Court in Lowenfield v Phelps (supra). There the Court upheld Louisiana\u2019s sentencing scheme which provided that an aggravating factor which duplicated an element of the offense of which the defendant had been convicted could form the basis of eligibility for a death sentence determination. In so holding the Court said: \u201cHere, the \u2018narrowing function\u2019 was performed by the jury at the guilt phase * * * The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process * * * [The State statutory] scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of and the exercise of discretion. The Constitution requires no more.\u201d (Supra, at 246.)"], "id": "41b7b0ec-acef-457c-8f46-5e824f227da6", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is my view, however, that the present plea of justification is not adequately pleaded. Section 338 of the Civil Practice Act provides in part, that \u2018 \u2018 the defendant may prove , including the sources of his information and the grounds for his belief \u201d. Specifically alleging sources of information and grounds of belief appears to be permissive because of the use of the word \u2018 \u2018 may \u2019 \u2019. In 1931 the Appellate Division, Third Department, in Goodrow v. New York American (233 App. Div. 37) so held, although the court stated that the plaintiff was entitled, if he so desired, to be informed of such sources and grounds \u2014 presumably by means of a bill of particulars. A later ruling by the Appellate Division, First Department (Meyers v. Huschle Bros., 273 App. Div. 107) held, however, that a statement in the answer of the sources of information and the grounds of belief was essential, in order to show absence of actual malice (see, also, as to the Second Department, Weisberger v. Condon, 285 App. Div. 827, motions for reargument or leave to appeal denied 285 App. Div. 894)."], "id": "604d6221-a3b3-44c8-be23-86802c50ab17", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In connection with that ruling and in excluding the proffered testimony I pointed out that the relevant statute (Penal Law, \u00a7 1045-a, subd. 3) provides that in the sentencing proceeding \u201c evidence may be presented by either party on any matter relevant to sentence including, but not limited to, the nature and circumstances of the crime, defendant\u2019s background and history, and any aggravating or \u201d and that \u20181 Any relevant evidence, not legally privileged, shall be received regardless of its admissibility under the exclusionary rules of evidence \u2019 \u2019 but I then concluded that in this case \u2018\u2018 we have heard the defendant\u2019s background and history on the witness stand through him and through the members of his family. We have heard the circumstances of the crime during the trial proper, and we are now going into any aggravating or mitigating circumstances. The District Attorney has introduced proof to show what he considers to be aggravating circum*507stances. You are permitted to introduce any proof showing mitigating circumstances. The defendant\u2019s mental condition is not before us now; that\u2019s already been passed upon by the jury\u201d."], "id": "e1b9fc84-1c97-4912-81d7-cd4321d2c531", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant\u2019s conduct, in compelling sexual intercourse, sodomy by the admitted use of a knife, implicit or explicit threats of violence and cutting of plaintiff and her clothing are reprehensible, whatever the subject which this court finds, in fact and law, quite incredible and plaintiff\u2019s version substantially credible. No one for a moment much less hours has the right to forcibly attack, intrude upon and injure the personal, emotional, psychic, sexual and physical dignity and integrity of any other human being, however naive, foolish or even sexually provocative in behavior or suggestion. A clear \"No!\u201d, by words and/or acts, must be accepted as \"No!\u201d in a democratic and lawful country. It is a nuclear part of every person\u2019s inalienable rights to life, liberty and the pursuit of happiness articulated in the American Declaration of Independence, adopted July 4, 1776, by the Representatives of the 13 Colonies, that became the basis of these United States of America, at the birth of this country. It is the core of any civilized society or democracy, under due process of law so that its violation cannot be tolerated by a court of law."], "id": "f2da1653-0bf3-484e-bfb7-d323d35ee8ba", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Caballero , supra , 55 Cal.4th at page 268, 145 Cal.Rptr.3d 286, 282 P.3d 291, our Supreme Court applied Graham to nonhomicide juvenile offenders who receive a sentence that is so long it amounts to a de facto LWOP sentence. The court held that the sentence must provide a \"meaningful opportunity [for the juvenile offender] to demonstrate [his or her] rehabilitation and fitness to reenter society in the future\" and must take into consideration all , including the juvenile's age, role in the crime, and physical and mental development. ( Id. at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.)"], "id": "d11f17c6-1c95-40a0-8d08-5896a9858766", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Turning to the merits, we conclude the failure to give the instruction was not error under Kansas law. Granted, under the first component of the four-part framework, both R. Carr and J. Carr preserved this challenge by requesting the burden-of-proof instruction at trial. See State v. Perez, 306 Kan. 655, 667-68, 396 P.3d 78 (2017) (holding first step satisfied when defendant challenged on appeal district court's failure to give requested instruction)."], "id": "56e13a6f-acc8-4729-a654-689ed0ece2a3", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Typically, in these exceptional cases, an analysis of whether a sentence constitutes cruel and unusual punishment involves *575an objective evaluation whereby the gravity of the offense is weighed against danger the offender poses to society (People v Broadie, supra). This type of inquiry considers the particular of the defendant\u2019s commission of the offense to determine whether the punishment imposed was grossly disproportionate to the severity of the crime (see, e.g., People v Rivera, 128 Misc 2d 593, revd 119 AD2d 705 [2d Dept 1986]; People v Alvarez, 65 AD2d 146, 154 [1st Dept 1978]; People v Hooks, 96 AD2d 1001 [3d Dept 1983]; People v Dowd, 140 Misc 2d 436)."], "id": "bce4c29c-d924-4081-979a-1d4c0e26b748", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the trial court's instructions do not inform the jury as to a contrary standard for determining . The jury is left to speculate as to the correct standard. Under these circumstances, we conclude there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances.\" 286 Kan. at 107."], "id": "9675add1-b7b7-4fac-943b-b2356115607d", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["J. Carr also points to several remarks made in closing that he characterizes as improper for similar reasons. He asserts prosecutors not only told the jury not to consider any but also to disregard defendants' mitigation evidence as truly mitigating because it could not excuse or justify the crimes or was not causally related to them. J. Carr places the following comments in this category:"], "id": "76aa64a3-a192-4b5d-8cc1-2c78c1d35e64", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Finally, defendant's theory that a good faith and reasonable belief under section 278.7, subdivision (a) operates as a complete defense to child custody deprivation under section 278.5 does violence to Neidinger 's definition of malice. As noted, Neidinger concluded that section 278.5 incorporates the definition of malice set forth in section 7, subdivision (4), which provides: \"The words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.\" Our Supreme Court has explained that section 7, subdivision (4) describes two types of malice: \"malice in fact,\" which \"consists of actual ill will or intent to injure\" and \"malice in law,\" which \"may be 'presumed' or 'implied' from the intentional doing of the act without justification or excuse or .\" ( In re V.V. (2011) 51 Cal.4th 1020, 1028, 125 Cal.Rptr.3d 421, 252 P.3d 979.) As the Supreme Court explained in People v. Atkins (2001) 25 Cal.4th 76, 85-86, 104 Cal.Rptr.2d 738, 18 P.3d 660, \"the term 'malicious,' as used in section 7, subdivision (4), does not transform an offense into a specific intent crime.\" \" 'Rather, the requirement of malice functions to ensure that the proscribed conduct was \"a deliberate and intentional act, as distinguished from an accidental or unintentional\" one.' \" ( People v. Rodarte (2014) 223 Cal.App.4th 1158, 1170, 168 Cal.Rptr.3d 12.)"], "id": "0f25559d-8a3c-4e1d-a923-af5286064499", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After hearing argument by the prosecutor, the court announced its ruling finding that the aggravating circumstances outweighed the , and denying the motion to modify sentence. In explaining the reasons for its ruling, the court described the aggravating and mitigating evidence the court had independently reweighed as it related to each of the 11 sentencing factors provided in section 190.3, including the circumstances of the crime, defendant's prior violent conduct, whether defendant was acting under extreme mental or emotional disturbance, and other circumstances that extenuated the gravity of the crime or aspects of defendant's character on which a sentence less than death could be based. (See \u00a7 190.3, factors (a), (b), (d), (k).)"], "id": "1d160bba-a4ff-4b60-a149-e32a7b29ce45", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" Contrary to defendant's further contention, the court did not err in concluding that defendant was not eligible to be adjudicated a youthful offender. Where, as here, a defendant is convicted of an armed felony (see CPL 1.20 [41]), he or she may be adjudicated a youthful offender only where he or she was not the sole participant in the crime and his or her participation was relatively minor (see CPL 720.10 [3] [ii]), or where there exist \" that bear directly upon the manner in which the crime was committed\" (CPL 720.10 [3] [i]), i.e., circumstances that \"bear directly on defendant's personal conduct in committing the crime\" (People v Garcia, 84 NY2d 336, 342 [1994]; see People v Middlebrooks, 25 NY3d 516, 519 [2015])."], "id": "87e0e6b1-ff25-4580-8256-2110dc9ea2cb", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" Having considered the parties' joint affirmation, the parties' stipulation of facts, respondent's conditional admissions, the parties' summation of aggravating and relevant and the recitation of the parties' agreed-upon disciplinary sanction, we grant the joint motion. Moreover, upon review of the stipulated [*2]misconduct and relevant circumstances, we find that, while the charges of professional misconduct are serious, the maximum recommended sanction is appropriate under the circumstances and is not inconsistent with prior precedent (see e.g. Matter of Andrews, ___ AD3d ___, ___, 2021 NY Slip Op 07064, *2 [2021]; Matter of Shmulsky, 186 AD3d at 1880; Matter of Scudieri, 174 AD3d 168, 173 [2019]; Matter of Aber, 283 AD2d 767, 768 [2001]). Accordingly, we hold that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent is suspended from the practice of law for a six-month period, effective 30 days from the date of this decision."], "id": "08b0ddac-2ca4-47ab-8c16-25ae4e09cb21", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The overwhelming majority of cases, on the other hand, recognize that a party normally gets but one trial. So long as the proponent has had a \u201cfull and fair opportunity to either prosecute or defend an action, but has, without , failed to do so\u201d, the resulting adjudication is \u201con the merits\u201d (Greyhound Lines v Pamtours, NYLJ, Feb. 27, 1978, p 11, col 2, and cases cited therein)."], "id": "be19dd8f-a1ec-4168-a37b-6e78a0bf84ba", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Despite the absence of absolving the school boards, as in Matter of Gilbert v. German (supra), such as reliance upon any prior opinions by their attorneys, the affidavits of the two presidents who urge merely against any action resulting in delay, and the architect who persists in arguing as an advocate that the local licensing law is superseded by the *28Education Law, the court, in the exercise of its discretion, will not, at this time, enjoin the school boards. The motion is, therefore, denied as to these defendants, without costs, but without prejudice to a renewal of the application in the event the school board officials fail to act. Submit order on notice."], "id": "2a726bd5-d6bd-4d60-8895-e5533bb08ee0", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Furthermore, when petitioner pleaded guilty, 9 NYCRR 8005.19 (b) required the ALJ to \u201cdirect the presentation of evidence, if any, with respect to mitigation of the violations and restoration to parole.\u201d As set forth above, the ALJ never made any evidentiary finding relating to the curfew violation or any inquiry of petitioner as to the facts supporting the violation. Then, after perfunctorily accepting his plea, she also failed to provide him any opportunity to present evidence of the surrounding his delay in arriving home. Respondent has never challenged this proffered evidence, as much of it derives from the Division itself: the length of the delay, only 15 minutes; his explanation that he encountered unavoidable traffic; his advance notice to his parole officer; and the parole officer\u2019s assurances that the lateness would not be considered important."], "id": "d5937a79-da0f-40cb-acad-7bf9b3cd7f10", "sub_label": "US_Terminology"} {"obj_label": "Mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\" under the law as you remember are those that reduce the degree of moral culpability. How has anything that they have said done that? Under the law, the Legislature said these things may be considered. That they have no significant history of prior criminal activity. Is that what you heard? That this crime was committed when the defendants were under the influence of extreme mental or emotional disturbance. The foundation of all, if any, this brain trauma. The foundation of all their experts, all the evidence that you heard . . . was based on a manipulated picture, an altered picture. A picture of a PET scan that does not accurately reflect, does not accurately reflect their brains and this picture does not accurately reflect who they are."], "id": "c35d5074-6009-4ea6-8d71-715631a19dfb", "sub_label": "US_Terminology"} {"obj_label": "Mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Another grave objection to the receipt of the proposed evidence in this action is, that even if its sufficiency as a subsequent legal appropriation to plaintiff\u2019 s use, as well as its competency, be assumed, it is not pertinent to any of the issues raised by the pleadings, because not pleaded. Defendant\u2019s counsel, it is true, strenuously argued that it should have been received, at least in mitigation of damages, and that for that purpose it did not require being pleaded. But on a critical examination, this claim will also be found to be untenable. do not, and never did amount to a defense to any part of plaintiff\u2019s claim. They may diminish the nominal claim made by him, but do not diminish the real claim, or reduce it below what it was originally. A defense, as understood in law language, on the other hand, is a full answer to whole or to some part of plaintiff\u2019s de*149maud. Under the old practice, both were admissible under the general issue, without being pleaded, and this fact led to a frequent confusion of the distinction, to some extent at least, between partial defenses and circumstances of mitigation (Harter v. Crill, 33 Barb., 283)."], "id": "ccc478f5-3b61-4df8-8ce0-826cb63032bb", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Were we to apply the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), harmless error standard to the facts before us, we are convinced there is no reasonable possibility the omitted instruction affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. Based on the amount and quality of guilt-phase evidence, which the"], "id": "e4ea1648-fddd-4cc0-9a59-a9f2fed43673", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["AlIDID. 7. 2-- V Z-13 ( tO) 1947A As to the RPC 1.15 violation, we conclude that clear and convincing evidence supports the panel's findings. In re Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995) (recognizing the State Bar's burden of proof in a disciplinary matter). As to the discipline, Jimmerson violated a duty owed to his clients (safekeeping client funds), and the record supports the panel's conclusion that he should have known not to make four of the transfers, given that he acknowledged that he did not verify whether his clients had actually paid their bills before making three of the transfers and that he made the fourth transfer before earning the fee, albeit with the client's permission. The record likewise supports that Jimmerson made a clerical error and thus acted negligently as to the fifth transaction. The panel found and the record supports that no actual injury occurred but the transfers from the trust account had the potential to injure clients.' Suspension generally applies as a baseline sanction for Jimmerson's misconduct. See Standards for Imposing Lawyer Sanctions, Compendium of Professional Responsibility Rules and Standards, Standard 4.12 (Am. Bar Asen 2017) (providing that suspension is appropriate when a lawyer should know that he is dealing improperly with client property and causes potential injury to clients). But based on the evidence supporting the weight of (free and full disclosure to the disciplinary authority and cooperative attitude in the proceedings; personal"], "id": "af141f82-e9fd-4190-bfa9-09163365f6a9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Garcia (supra), the Court addressed the scope of the analogous provisions of Penal Law \u00a7 70.25 (2-b), requiring a sentencing court to impose consecutive sentences where a defendant is convicted of a violent felony offense committed after *756arraignment and while released on recognizance or bail but committed prior to sentencing on the pending felony charge, unless the court determines that there exist \u201c that bear directly upon the manner in which the crime was committed.\u201d There the Court observed that the provision for consecutive sentences was designed to circumscribe, rather than eliminate, the court\u2019s sentencing discretion. (Garcia, supra, at 341.) It also observed that factors \u201c \u2018directly\u2019 flowing from and relating to defendant\u2019s personal conduct while committing the crime qualify [as mitigating circumstances].\u201d (Id., at 342 [citations omitted].) In rejecting the trial court\u2019s finding that the defendant\u2019s age, prior criminal history and drug abuse problem constituted such circumstances, the Court observed that such factors \u201cgenerally * * * do not pertain to defendant\u2019s direct manner in the commission of the crime.\u201d (Id.)"], "id": "986488a6-362a-4713-85c2-79ca7d646f53", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation to publicly reprimand James J. Jimmerson for violating RPC 1.15 (safekeeping property) by making five transfers from his trust account to his business account and a personal account. Jimmerson made three of the transfers before clients paid bills for earned fees, one transfer from a client's retainer before earning the fee, but with that client's permission, and one transfer through a clerical error. The State Bar does not contest the panel's conclusions as to Jimmerson's violation of RPC 1.15, his mental state, or potential injury to clients, but it argues that the recommended discipline is too lenient. In that regard, the State Bar asserts that two of the mitigating factors found by the panel (absence of dishonest or selfish motive and personal or emotional problems) are not supported and that, regardless of the other mitigating factors, discipline short of a suspension is not proper in a case involving misappropriation of client funds. Jimmerson does not contest the RPC 1.15 violation but asserts that the weight of , his mental state, and the level of harm, which all factor into a discipline determination, support the panel's recommendation."], "id": "61789bbc-c229-47b3-8514-cfddac12774e", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There can be no doubt the sentences imposed in this case, i.e., 120 years to life plus 9 years 4 months, are the functional equivalent of LWOP. (See Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 [sentence of 110 years to life amounted to functional equivalent of LWOP].) This being a murder case, Graham's categorical ban on imposition of an LWOP sentence on a juvenile nonhomicide offender does not apply. (Graham, supra, 560 U.S. 48, 130 S.Ct. 2011.) However, under Miller, the trial court was still required to \"take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.\" (Miller, supra, 132 S.Ct. at p. 2469.) This required the trial court to consider \"all attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development....\" (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) The question we must resolve is whether the trial court took these circumstances into consideration before imposing such a harsh penalty."], "id": "c1dbae60-d623-47bd-a4d8-1f8c91e361bb", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Removal, in accordance with legislative intent, may be ordered only in the \"exceptional case\u201d (Matter of Vega v Bell, 4(1 NY2d, at p 553). The Legislature promulgated statutory criteria. There may be no removal in the absence of either concerning the commission of the alleged crime, limited and minor complicity by the defendant, or deficiencies in proof. (CPL 210.43, subd 1, par [b], cls [i], [ii], [in].) If one or more features exist, the court must weigh eight factors that bear on the issue of removal (CPL 210.43, subd 2, par [a]-[h]) in the interests of justice."], "id": "b79a0ab3-6d3b-49e0-80b0-aa48bab8dc39", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By failing to challenge the court\u2019s instruction on the permissive inference connected with defendant\u2019s recent and exclusive possession of stolen property, defendant has failed to preserve *345the claim for review (People v Hoke, 62 NY2d 1022). Since the court\u2019s instructions, as a whole, adequately conveyed to the jury that the defendant must be proven guilty beyond a reasonable doubt as to each element of each offense, we decline to review in the interest of justice. Finally, considering the brutality of the crime and the lack of , we find no basis to disturb the sentence imposed. Concur\u2014Ellerin, J. P., Wallach, Kupferman, Asch and Mazzarelli, JJ."], "id": "6cc0805f-a7af-48f1-8ad2-35941f1c54b6", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Hearing Panel concluded that respondent should be suspended from the practice of law for nine months for his admitted neglect and more importantly for his evasion and lack of cooperation with the Committee and the complaining clients. The misconduct involving the false acknowledgment of clients\u2019 signatures was considered a separate basis for serious discipline. His prior clean record and the lack of venal or financial motive were considered to be , but the psychiatric evidence was not."], "id": "145bfdfb-c1d1-46aa-8a9d-7286eb78a4bc", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"Under these circumstances, we are convinced there is no reasonable possibility the identified errors, deemed harmless in isolation, cumulatively affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. To borrow again from the United States Supreme Court, given the State's evidence '[n]one of that mattered.' 577 U.S. at 126. We are satisfied the jury correctly understood its charge and was not swayed by the aggregate impact of these identified defects.\" 314 Kan. at ___, slip op. at 144."], "id": "6783aa29-b908-43e5-be1c-bb230f09e56c", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["3 The statute applies equally to convictions resulting from guilty pleas and those following jury verdicts. RCW 9.94A.640(1). We agree with Johnson and the State that the 2019 amendments to RCW 9.94A.640 apply to Johnson\u2019s 1997 conviction. See LAWS OF 2019, ch. 331, \u00a7 3. 4 In exercising its discretion, the court may consider \u201cthe facts of the crime\u201d and any other relevant aggravating or . See Kopp, 15 Wn. App. 2d at 287-88."], "id": "53883989-2a2a-4fc2-bf6f-c724e9be1516", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Even in the absence of a constitutional imperative, trial courts should consider whatever mitigating information is presented to them by the parties and the probation department. Indeed, it is incumbent upon defense counsel to present to the trial court at the time of sentencing, and there are already mechanisms in the law providing such opportunities. (\u00a7 1204 [defendant entitled to sentencing hearing to present mitigating circumstances, including the introduction of sworn testimony]; Cal. Rules of Court, rule 4.437 [allowing defendants to file statements in mitigation prior to the sentencing hearing].) Thus, when trial attorneys do their jobs-a job that is no different whether individualized sentencing inquiry is constitutionally mandated or not-trial courts will be required to consider what has been proffered."], "id": "0b62fa86-6126-4da2-b0f9-209efa05d770", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"2. In any prosecution under subdivision one, it is an affirmative defense that: \"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant\u2019s situation under the circumstances as the defendant believed them to be.\u201d In so doing, the Legislature clearly provided for a court or jury, upon a proper showing of in a consummated killing, to reduce what would otherwise be a murder in the first degree charge to manslaughter in the first degree. Quaere, however, does the same opportunity exist for one whose attempt proves unsuccessful? Prior to the above-noted Lanzot decision (supra), the few cases dealing with the issue of extreme emotional disturbance were all consummated murders. (People v Patterson, 39 NY2d 288, affd 432 US 197; People v Lyttle, 95 Misc 2d 879; People v Shelton, 88 Misc 2d 136.) However, in Lanzot (67 AD2d 864, supra), where the central issue involved the trial court\u2019s error in charging that a *162fire marshal was a police officer as a matter of law, the First Department, in dicta and without discussion, also unanimously agreed that the affirmative defense of extreme emotional disturbance should have been submitted upon the top count of attempted murder in the first degree."], "id": "cb829d20-c43f-4d65-b49c-758bec8f0d81", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["That said, the erroneous statement was isolated; the prosecutor's argument correctly described the weighing process elsewhere, as did the judge's instructions. There is no reasonable possibility the misstatement standing alone affected the jury's ultimate conclusion regarding the weight of the aggravating and , i.e., the death sentence verdict. See Kleypas II, 305 Kan. at 316; Sherman, 305 Kan. 88, Syl. \u00b6\u00b6 6-8."], "id": "a70edca1-346c-4cc2-b9ad-87dbcf853d40", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In view of the now presented, which offer some explanation for but do not excuse respondent\u2019s professional misconduct, we grant her motion to the extent of considering such circumstances and reducing the sanction previously imposed from disbarment to a six-month suspension. Respondent\u2019s reinstatement to practice will be conditioned upon her submission of medical opinion that she has the mental and emotional capacity to resume the practice of law and upon her payment of the stenographic fees and all attorney registration fees due and owing (see, e.g., Matter of Farley, 205 AD2d 874; Matter of Kent, 182 AD2d 157; Matter of Relyea, 175 AD2d 949)."], "id": "0a367c01-64cf-472a-a8f0-71855e8b3f4f", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Prevailing professional standards for capital defense work require trial counsel to \"discover all reasonably available mitigating evidence.\" Wiggins v. Smith , 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003) ; Johnson v. State , 388 S.W.3d 159, 165 (Mo. banc 2012). This evidence includes \"medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.\" Id. Section 565.032.3 outlines , including extreme mental or emotional disturbance, extreme distress or domination by another, and substantial impairment of capacity to appreciate the criminality of his or her conduct or to *602conform it to the requirements of law, which can be submitted to the jury in an effort to avoid a death sentence."], "id": "0e1f6fe7-f236-499a-be26-e911b7dde762", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The only excuse for the delay in giving notice of loss is that plaintiff thought that the discrepancy may have been due to short shipment and not short delivery. This court finds from *518all the evidence that plaintiff knew, no later than September, 1954, that there were shortages of bags of coffee and such losses were \u201capt to be a claim\u201d under the policy. Plaintiff failed to give notice \u201c as soon as may be practicable \u201d. Furthermore, there has been no showing of any to justify or excuse the delay. This was a default under the policy and voids the contract (Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127, 129; Bazar v. Great Amer. Ind. Co., 306 N. Y. 481; Haas Tobacco v. American Fid. Co., 226 N. Y. 343; Greater N. Y. Mut. Ins. Co. v. Powers, 25 Misc 2d 393)."], "id": "5ac68469-6d6f-488e-a3ed-15aeb29e912b", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I then advised the parties that with respect to the issue of whether or not defendant\u2019s prior sexual victimization constituted within the meaning of CPL 720.10 (3) (i) for the purpose of determining his eligibility for youthful offender status, I would be considering, and would entertain their views on, the information and conclusions contained in Earl F. Martin and Marsha Kline Pruett, The Juvenile Sex Offender and the Juvenile Justice System (35 Am Grim L Rev 279 [1998] [hereinafter Martin and Pruett]).2"], "id": "d38709d1-e83a-456a-9561-6faa626e05c3", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["All employees are expected to conduct themselves in accordance with department/division policies, Administrative Regulations of the Department of Personnel, Civil Service Rules and Regulations, Ordinances, the Charter of the City of St. Louis, and generally acceptable work behaviors including the City's Employee Code of Conduct. Employees in supervisory positions should set an example by their own conduct, work habits, and commitment to the City Service. ... Disciplinary actions include: A. Written reprimand; B. Suspension (up to 28 calendar days in a 12 month period); C. Temporary reduction in pay for a period not to exceed 13 bi-weekly pay periods; D. Disciplinary demotion (to a vacant position in lower pay grade for which the employee is qualified within the division/department); E. Dismissal ... VII. PRE-TERMINATION WRITTEN NOTICE AND REVIEW When corrective discipline has failed to correct the employee's actions or the employee commits an act(s) which is (are) so serious that corrective discipline is inappropriate, dismissal from the City Service shall be considered. The Department of Personnel and/or the City Counselor's Office should be consulted prior to dismissing an employee. The following steps must be adhered to when dismissing an employee for cause from the City Service: A. Pre-termination Written Notice. A pre-termination review is required prior to the imposition of a dismissal of a permanent employee. The pre-termination review is an informal procedure in which the appointing authority or his/her designee advises the employee of the charges against him/her, gives an explanation of the charges and evidence, allows the employee and/or his/her representative an opportunity to review the evidence, and then allows the employee and/or his/her representative an opportunity to present facts to mitigate the proposed penalty. This review is not a formal hearing, nor is it an extended procedure at which the employee is afforded the right to present witnesses, cross-examine individuals, etc. The employee shall also be informed of his/her right to have a representative present and, if the employee chooses to exercise the right, every effort should be made to schedule the pre-termination review so that a representative can attend and represent the employee.... The written notice shall be hand-delivered to the employee or sent by certified mail and include the following: That dismissal is being considered; The specific charges/reasons; The place, date and time of review; The right to have a representative; If the employee's prior work record is being considered; Failure of the employee to appear shall waive the employee's right to a pre-termination review. B. Pre-termination Review. The pre-termination review should be conducted before the employee's last day at work or within thirty (30) days of being placed on forced leave (see below), unless the forced leave has been extended with the approval of the Director of Personnel. The appointing authority should provide employees with sufficient notice to obtain representation if so requested or otherwise prepare for the pre-termination review. Typically three (3) to five (5) working days (excluding weekends) should suffice although other time frames may be agreed upon by the parties. The following should occur: State purpose of review (to consider employee's dismissal); Advise employee of charges; Allow the employee and/or his/her representative an opportunity to review the evidence; Give the employee the opportunity to verbally respond to the charge; present and submit any written witness statements; Maintain record of review, list of those present, the date, the proceedings, and any relevant facts presented. The appointing authority shall make a determination regarding the employee's employment status within fourteen (14) calendar days from the pre-termination review and notify the employee of the decision in writing within (14) fourteen calendar days from the date of review. This decision may be: (1) no disciplinary action is required; (2) dismissal is too severe, but a lesser form of disciplinary action is required; or (3) dismissal is warranted. Exceptions to Progressive Discipline. There are some actions which are so serious that progressive discipline is inappropriate or insufficient and, therefore, immediate dismissal is warranted. Listed below are some examples of actions which may be exceptions to progressive discipline. These examples are not intended to be all inclusive: The commission of any act while on duty or off duty which would be a violation of Federal, State or local law, other than minor traffic violations. This does not mean that a conviction or even an arrest need have occurred for such a violation...."], "id": "80ceb491-257d-4553-9545-2e6f3cccfd2f", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Fourth, CPL 400.27 (11) (a) further safeguards a defendant\u2019s constitutional rights. The New York statute permits a jury to decide that the aggravating circumstances, substantially and beyond a reasonable doubt, outweigh the , but, nevertheless decline to impose the death penalty. (See, CPL 400.27 [11].) This court sees nothing wrong with permitting \u2014 for a defendant\u2019s benefit \u2014 a narrow window through which human mercy can fit."], "id": "43eb88f4-ca2e-4567-986a-921210c7d4a0", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The executive, however, cannot be indifferent to an appeal for clemency coming from so high a source as the judge of a court which has so signally manifested its own respect for our rights, and has so firmly and effectually exerted its official influence and authority for the protection of one who was exposed to danger for obedience and regard to the rights of our citizens and the vindication of our laws. Strongly impressed with a desire to yield to such an appeal, from such a source, and relying upon the and other considerations stated by you, and especially on the assurance from you that the proceedings against the captain were instituted, not by Lane, but by others in his name, and hoping that the interposition of executive clemency, under the circumstances of this case, may exert a salutary moral influence on the public feeling in the Northern States, on subjects of this kind, the governor has granted a pardon to the prisoner."], "id": "3a0b637d-7c57-4d47-9a8c-b3da343a930e", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["But R. Carr defines this right broadly to preclude capital punishment, even where a jury has convicted a defendant of capital murder and determined beyond reasonable doubt that one or more statutory aggravating circumstances exist and outweigh , as prescribed under Kansas' capital sentencing scheme. R. Carr's argument is premised on the assumption that the right to life guaranteed within section 1 is absolute, meaning the law cannot limit or infringe upon this right in any circumstance. See Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam- webster.com/legal/absolute%20right (defining \"absolute right\" as \"a legally enforceable right to take some action or to refrain from acting at the sole discretion of the person having the right\")."], "id": "24543fc5-8fca-4b4a-bc98-3e36bb3b7b66", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" Here, the record establishes that defendant was the only person who possessed the handgun at issue. Furthermore, although \"lack of injury to others and nondisplay of a weapon [constitute] qualifying mitigating circumstances\" (Garcia, 84 NY2d at 342; see People v Lindsey, 166 AD3d 1565, 1565 [4th Dept 2018], lv denied 32 NY3d 1206 [2019]), the record establishes that, during an argument, defendant procured the weapon from a hidden location in a [*2]vehicle, purposely displayed it, and activated the slide on the weapon to chamber a round into the gun. Thus, although there were no injuries, we perceive no basis to disturb the court's determination that defendant is not an eligible youth because, based on defendant's display of the weapon and his implicit threat to use it, there are insufficient to support such an adjudication (see People v D.M., 168 AD3d 879, 880 [2d Dept 2019], lv denied 33 NY3d 947 [2019]; People v Stewart, 140 AD3d 1654, 1655 [4th Dept 2016], lv denied 28 NY3d 937 [2016]; People v Henry, 76 AD3d 1031, 1031 [2d Dept 2010])."], "id": "b1d8abf9-dafb-4b0a-8d6d-40a418e66f63", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The probation report indicates that the defendant comes from an emotionally volatile, although concerned family background. This was his first arrest and it appears, without condoning defendant\u2019s actions, that the defendant was not acting alone but was acting in concert with another who was armed. The defendant was subject to intense peer pressure in engaging in the conduct which was the basis of this conviction. It further appears that the defendant is an individual who would be greatly aided by the supervision inherent in a term of probation which would have been available to him if he were at least 16 years old but less than 19 years of age and this court found such as required by CPL 720.10 (subd 3)."], "id": "bf614c43-7b58-45ef-9725-a0e731b7ee28", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["and that any were insufficient to outweigh the aggravating circumstances.\" K.S.A. 2020 Supp. 21-6619(c)(2). Having confirmed that Jonathan D. Carr received a fair trial and the jury's sentence was not \"imposed under the influence of passion, prejudice or any other arbitrary factor,\" K.S.A. 2020 Supp. 21-6619(c)(1), we affirm Jonathan D. Carr's death sentence for the capital murder of H.M., J.B., B.H., and A.S."], "id": "2d69696a-ed55-41c9-856d-a69e80811b33", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant\u2019s demands that the Grand Jury be instructed regarding mitigating factors relevant to first degree murder charges, including \"a full recital of all statutory as defined in [CPL] 400.27 (8)\u201d are also denied. Under the statutory framework applicable to murder in the first degree, mitigation applies to the penalty phase, and is irrelevant to a determination whether the People have presented sufficient evidence to establish a prima facie case that the defendant has committed the crime. (See, People v Franco, 86 NY2d 493 [1995]; People v Heard, Sup Ct, NY County, May 6, 1996, Rothwax, J.)"], "id": "d1afdf47-1b31-44cc-8ab7-25c2db8d8089", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Consistent with these decisions, in People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 (Caballero ), our Supreme Court held \"sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy,\" i.e., the \"functional equivalent\" of an LWOP sentence, \"constitutes cruel and unusual punishment in violation of the Eighth Amendment. Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.... [T]he sentencing court must consider all attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison 'based on demonstrated maturity and rehabilitation.' \" (Id . at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291, quoting Graham, supra, 560 U.S. at p. 75, 130 S.Ct. 2011.)"], "id": "088d174b-5d9f-4705-accd-5da607f71fd2", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As we explained in our original opinion, despite the fact SB 260 provides what may be considered a \"safety net,\" providing a juvenile offender the opportunity for a parole hearing during his or her lifetime, the new legislation does not substitute for the sentencing court's consideration of all individual characteristics of the offender. In Miller, supra, 567 U.S. ----, 132 S.Ct. 2455, 183 L.Ed.2d 407 the United States Supreme Court held imposition of an LWOP sentence for a homicide committed as a juvenile constitutes a task \"demanding individualized sentencing\" and requiring \"that a sentencer have the ability to consider the 'mitigating qualities of youth. ' \" (Miller, supra, 132 S.Ct. at p. 2467, quoting Johnson v. Texas (1993) 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290, italics added.) Caballero, which extended Graham 's prohibition of an LWOP sentence for juveniles convicted of nonhomicide offenses to sentences that are the functional equivalent of LWOP, also emphasized: \"[T]he sentencing court must consider all attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the [Board ].\" (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291, italics added.) As we have already explained, while Graham 's categorical ban on an LWOP sentence or its functional equivalent does not apply in this homicide case, under *839Miller, supra, 132 S.Ct. 2455, the sentencing court was still required to consider all mitigating circumstances of *848youth before imposing a sentence the functional equivalent of LWOP. Thus, the penalty selection that comports with Miller must be undertaken in the first instance by the sentencing court. Regardless of whether the new statutory scheme enacted by SB 260 may eventually convert an LWOP sentence to one with possibility of parole, the sentencing court must consider the factors of youth and maturity when selecting the initial punishment ."], "id": "4b3942de-e26e-4ae0-be11-29a1c5878ad9", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A different question might arise if the testimony of psychiatrists, or other testimony bearing upon the defendant\u2019s mental condition and background, were offered as , where that very issue had not been litigated at the trial proper, but under the circumstances of this case I do not see that evidence with respect to the defendant\u2019s alleged mental condition should be received at the second stage of the trial."], "id": "30324103-9750-46a2-b8c4-67704f664f2b", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to defendant\u2019s contention, a keen distinction can be drawn between the unlimited discretion available to the jury in Witherspoon and that instilled in a New York sentencing jury. That distinction rests on the context within which the discretion is exercised. The Witherspoon jury was vested with complete unfettered discretion in reaching a sentence. Only those jurors \u201cwho would never vote for a death sentence or who would not impartially judge guilt\u201d were properly excluded. (Witt, at 421-422.) Under the New York statute the jury\u2019s discretion is much more circumscribed. Only after the jury has found defendant guilty of a crime enumerated in Penal Law \u00a7 125.27 and has reviewed the (CPL 400.27 [9]), and unanimously found that the aggravating circumstances substantially outweigh any mitigating circumstances (CPL 400.27 [11] [a]), are the jurors given what defendant characterizes as \u201cunbridled discretion\u201d to exercise their \u201cmercy function\u201d in determining whether a sentence of death should be imposed (CPL 400.27 [11] [a])."], "id": "a24cd34f-b035-4b98-917f-adfe4d5107d5", "sub_label": "US_Terminology"} {"obj_label": "Mitigating Circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["From the above stated colloquy, it is apparent that Rodriguez asserted to the district court that she had reviewed the PSR with defense counsel, she understood that the court would consider the PSR in determining her sentence, and she did not request additional time to review the PSR. Thus, the record affirmatively refutes this claim of ineffective assistance of counsel and, where the record refutes a claim of ineffective assistance of counsel, no recovery may be had. See State v. Liner, 24 Neb. App. 311, 886 N.W.2d 311 (2016). This argument fails. (b) Rodriguez next alleges that trial counsel was ineffective for failing to properly investigate the circumstances of the case and failing to disclose mitigating issues for the prosecution to consider. Specifically, Rodriquez contends that, although trial counsel was aware of facts surrounding the victim\u2019s prior contact with her, trial counsel"], "id": "7a969f92-aa4f-4ca6-93d9-4c2f9b3ba041", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*519\"\u00a7 210.43. Motion to remove juvenile offender to family court. \"1. After a motion by a juvenile offender, pursuant to subdivision five of section 180.75 of this chapter, or after arraignment of a juvenile offender upon an indictment, the superior court may, on motion of any party or on its own motion: \"(a) except as otherwise provided by paragraph (b), order removal of the action to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter, if, after consideration of the factors set forth in subdivision two of this section, the court determines that to do so would be in the interests of justice; or \"(b) with the consent of the district attorney, order removal of an action involving an indictment charging a juvenile offender with murder in the second degree as defined in section 125.25 of the penal law; rape in the first degree, as defined in subdivision one of section 130.35 of the penal law; sodomy in the first degree, as defined in subdivision one of section 130.50 of the penal law; or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20, to the family court pursuant to the provisions of article seven hundred twenty five of this chapter if the court finds one or more of the following factors: (i) that bear directly upon the manner in which the crime was committed; (ii) where the defendant was not the sole participant in the crime, the defendant\u2019s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in the proof of the crime, and, after consideration of the factors set forth in subdivision two of this section, the court determined that removal of the action to the family court would be in the interests of justice.\u201d (CPL 210.43.) The question, therefore, is whether there is an encroachment on the separation of powers, under a statutory grant enabling the prosecutor to position himself as a barrier to removal, in one of the expressly enumerated crimes."], "id": "c7aaad1f-22b2-42d9-9e3b-7271ccba1142", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In this case, defendant was convicted of robbery in the first degree, which is an \u201carmed felony\u201d for purposes of the youthful offender statute (CPL 720.10 [2] [a]; see CPL 1.20 [41]; Penal Law \u00a7\u00a7 70.02, 160.15 [4]). Defendant therefore is \u201celigible to be adjudicated a youthful offender only if the court determined that there were \u2018 that bear directly upon the manner in which the crime[s were] committed; or . . . [, inasmuch as] defendant was not the sole participant in the crime[s], [that] defendant\u2019s participation was relatively minor\u2019 \u201d (People v Lugo, 87 AD3d 1403, 1405 [2011], lv denied 18 NY3d 860 [2011], quoting CPL 720.10 [3]). Here, defendant offered no evidence of mitigating circumstances relating to the manner in which the robberies were committed, nor did he specify any facts indicating that his participation in those crimes was \u201crelatively minor\u201d (CPL 720.10 [3]). Defendant did not dispute the circumstances of the crimes as alleged and, given that defendant\u2019s DNA was found on the duct tape used to restrain at least nine victims and the handcuffs used to restrain another *1447victim, there was no basis for the court itself to conclude that defendant was a minor participant in the crimes. Because defendant was not eligible for youthful offender treatment, the court did not err in failing to make a youthful offender determination (see People v Frontuto, 114 AD3d 1271, 1271-1272 [2014]; see also People v Watts, 91 AD3d 678, 679 [2012], lv denied 18 NY3d 963 [2012]; Lugo, 87 AD3d at 1405; cf. Rudolph, 21 NY3d at 499)."], "id": "2206769b-448e-4058-ab1b-d1141bc5fdf1", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Having reconsidered our decision in light of Contreras , we again affirm the convictions, order modifications, and direct the trial court on remand to hold a hearing on ability to pay. In addition, we remand the matter for resentencing of Mr. Moreland. The trial court is directed to consider, in light of Contreras , any of Mr. Moreland's crimes and life and the impact of any new legislation and regulations on appropriate sentencing. ( Contreras , supra , 4 Cal.5th at p. 383.) The court is further directed to impose a time by which Mr. Moreland may seek parole, consistent with Contreras . 1 (Ibid .) We express no view on whether the sentence to be imposed on resentencing must differ materially from the *175current sentence Mr. Moreland is serving. Rather, we leave the impact of Contreras to the trial court in the first instance."], "id": "ad543183-f196-433b-9dc0-90751d7869ba", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When reviewing cumulative error in a capital penalty-phase proceeding, our focus is on the errors' cumulative effect on \"'the jury's ultimate conclusion regarding the weight of the aggravating and .'\" Cheever II, 306 Kan. at 799 (quoting Kleypas I, 272 Kan. at 1087). In other words, we are looking for the errors' effect in their aggregate, recognizing errors can differ in their individual or cumulative effect. See, e.g., Gleason II, 305 Kan. at 816 (while identifying two instructional errors, the court did not \"perceive they had the effect of intensifying one another\"); Kleypas II, 305 Kan. at 346- 47 (\"As to errors in the penalty phase, we have found several but concluded none individually require us to vacate the penalty verdict. . . . Turning to the cumulative effect of these errors, none of these incidents were related, so none had the effect of intensifying another.\"). \"This 'task is undoubtedly more subtle than simply counting up the number of errors discovered.'\" R. Carr, 300 Kan. at 251."], "id": "73bb5dd3-6018-40f3-ab95-0b9d031bfb9e", "sub_label": "US_Terminology"} {"obj_label": "mitigating circumstances", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The challenged instruction was patterned after this court's then-controlling interpretation of K.S.A. 21-4624(e). See Kleypas I, 272 Kan. 894, Syl. \u00b6\u00b6 45-58 (holding equipoise weighing equation favoring State unconstitutional, reformulating language to require aggravating circumstances outweigh mitigating circumstances), overruled by Marsh, 278 Kan. at 544-45. Thus, the instruction properly and fairly stated the law governing in Kansas. Cf. State v. Woods, 222 Kan. 179, 183, 563 P.2d 1061 (1977) (generally, \"an instruction patterned after the statute is valid\")."], "id": "47408ff3-b117-4a88-bdf7-f268facc2c53", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the case under consideration, the bill of complaint alleges \u201c that George Feitner, together with Elsie, his wife, did duly execute under their hands and seals a certain indenture of mortgage, conveying the tenements, hereditaments, etc., etc., and also all the estate, right, title, interest, dower, property whatsoever of them, the said George and Elsie.\u201d It further alleges that the mortgage was acknowledged in due form of law by said George and Elsie, and was recorded. It prays that all the defendants be foreclosed of and from all equity of redemption, and claim of, in, and to the mortgaged premises. These allegations were, in my judgment, sufficient to call upon the defendant Elsie to *475defend her right of dower. The validity of the mortgage as made by her is asserted, and because it is valid as against her, the prayer is that she be barred and foreclosed. There can be no doubt that the validity of her act in joining in the mortgage is something that could, would, and should, have been tried under. the complaint in that suit, if Mrs. Feitner had chosen to plead infancy, as she might have done."], "id": "a7260b22-a096-4431-8dcc-d485c48b13ff", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The equitable issue presented where statutory commissions increased was that the Legislature had obviously concluded that just as all other aspects of our inflationary society required increases in compensation, fiduciary duties justified enlarging the compensation above that which previously existed. The legal rationale upon which this equitable result was reached seems to rest on the concept that commissions are and accordingly are not payable until allowed by the court, coupled with the concept that remedies will be applied in accordance with the law which prevails at the time when relief is sought, rather than at the time when the injury arose."], "id": "3292cd8c-2bdb-4a3d-8345-ba42079a652f", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Whatever an right of dower may be, it is not included in the kinds of property specified in section 1, chapter 90, Laws 1860. Nor can it come within the provisions of section 7 of that act as amended by chapter 172, Laws 1862. It is a right which a married woman has always had ; and there is nothing in these acts which has changed its character, or has made it any more her sole and separate property than it always was."], "id": "f9045307-373b-4588-8681-0487628cacc0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Kane Co. v. Kinney (174 N. Y. 69, 73) it is stated: \u201c The object and purpose of the Mechanics\u2019 Lien Law was to protect a person who, with the consent of the owner of real property, enhanced its value by furnishing materials or performing labor in its improvement by giving him an interest therein to the extent of the value of such material or labor. The filing of the notice of lien is the statutory method prescribed by which the party entitled thereto perfects his right to that interest. That is the manner and mode of procedure in which the right is asserted. A certain time is allowed in which the lien may be asserted or lost. During that time there is a preferential statutory right in the nature of an unperfected equitable lien in favor of the laborer, mechanic, materialman or sub-contractor. And when a notice of lien is filed that right is perfected. But until the ninety days allowed by the statute within which the lien may be filed have elapsed the right cannot be defeated by the voluntary act of the party against whom it might be asserted, such as a general assignment for the benefit of creditors. If such were the effect of the assignment no laborer or material-man\u2019s claim would be secure, and the beneficial purpose of the statute could be defeated unless a lien was filed at the time the work was commenced and from day to day thereafter.\u201d (Emphasis mine.)"], "id": "dc73a570-3e2b-4d01-aa40-27f9a736bed4", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["First. Let this cause be considered as presented upon the obligation of that covenant against incumbrances. In my opinion, the action cannot be maintained for a breach of the covenant. Is an accruing installment of rent an incumbrance ; the obligation for which, already incurred, will ripen into a perfect claim ; and is it within the legal effect of such a cove*199nant ? A covenant against incumbrances is broken by the existence of any debt which is a lien- upon the land; and an usual instance is: when taxes are assessed at the time of, not after, the execution of a deed (Hutchings v. Moody, 30 Vt., 657; Spring v. Tongue, 9 Mass., 28). An incumbrance, strictly speaking, must exist at the date of the deed ; and it is one of those covenants where a breach accrues, except in the instance, perhaps, of dower, instanter (Jones v. Gardner, 10 Johns., 266: Powell v. Monson, &c., 3 Mas., 355; Shearman v. Ranger, 22 Pick., 447). A tax has no existence until it is laid; it is the act of the law, not of the vendor; its object, its amount, and rate, rest in possibility ; it does not, unlike an inchoate dower, have a legal existence before being assigned and fixed. Rent comes within the proper office of a covenant, when the parties so agree ; for it is the act of the lessee ; it is created by his own action ; its time of payment is set; its conditions known, and the obligation to pay rent is for the whole term. Taxes, when assessed, are a lien by law. Rent, whether in arrear or accruing, is of a different, and it will be seen, peculiar nature."], "id": "ec42cd8e-af26-4a15-bad6-aa44f7c0bcc0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["So much for the authorities bearing upon the question. From them it appears that the wife, notwithstanding the divorce, is entitled to the dower interest of which she became vested during coverture. The prohibitory clause of the statute preventing remarriage of the other party, still continues the marriage to the extent that the person may be convicted of bigamy in case of remarriage in this State. But as to everything else, the tendency of the authorities is to the effect that the decree of divorce entirely dissolves and terminates the marriage relation, and that this term*158inates also the property rights of one in the estate of the other. That the marriage, with all its incidents, rights and duties, except as preserved by the statute referred to, is severed and terminated. That this is so would appear to be the legislative construction, as appears from recent enactments. It is now provided that a judgment dissolving the marriage does not affect the plaintiff\u2019s inchoate right of dower in the real property of which the defendant is or was theretofore seized. (Code Civil Pro., \u00a7 1759.)"], "id": "caa44c1d-a9bb-4133-9178-31aec16ecb7e", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is more proper to say, that this right of subrogation, and not such a covenant, is the true source of claim for indemnity. Chief Justice Shaw seems to have treated it as a subrogation, when he says, 1 \u2018 When a paramount title exposes the grantee to the loss of his whole estate by eviction, the sum which he pays to extinguish such incumbrance is the measure of damages ; \u201d and the instance, which he says this of, is one wherein an right of dower was already assigned and fixed."], "id": "b7982a45-cc34-4b7d-9cea-b5f12cf2892c", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Again, in the case of Haile v. Leillie, (3 Hill, 149), Leillie, an infant, sued Haile for work, &c. On the trial evidence was given tending to show that a settlement had taken place between the parties, but the defendant insisted that no such settlement had taken place, and offered to prove the fact by the admission of the flaAntiff. The testimony was rejected, but *113the judgment was reversed; Chief Justice Nelson declaring \u201c that the admissions of the plaintiff were evidence against him, though the admissions of an infant may frequently be controlled by the infant\u2019s incompetency to bind himself by contract;\u201d\u2014and again, that \u201c the only privilege of an infant who has arrived at years of discretion, even in civil cases, is an exemption at common law from liability upon most of his contracts. Independently of this privilege, he stands in court upon the footing of an adult.\u201d This is undoubtedly the correct doctrine. The admissions of an infant are evidence against him for certain purposes, although such admissions do not create any liability. The mere admission of the correctness of the account would establish only that the plaintiff and defendant had transactions together, and that the result of such transactions left a balance due to the plaintiff without increasing the defendant\u2019s liability to pay it. Without a promise to pay after maturity the admission would be wholly immaterial for any purpose. There is no difference in.principle between an admission of the correctness of an account and any admission affecting a material fact, such as the denial of a settlement by the infant between him and his employer, the only object of which would be to show that the balance struck was not agreed upon. I can discover no reason why an admission by an infant of discreet years of the correctness of an account should not be admitted, to show the debt which became absolute by promise after maturity. The referee\u2019s finding, therefore, on that question, must not be disturbed."], "id": "34351aa4-6895-4050-958a-9cd6a23683ac", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*118A distribution in shares, on the other hand, is a stock split when there has been a watering down of stock without the use of surplus, while a transfer of surplus to the capital account will produce income in whatever form the distribution takes (Matter of Lissberger, supra). Again, a stock dividend has been declared when there has been a capitalization of earnings from profits together with the distribution of added shares which evidence the assets thus transferred to capital (Matter of Lawrie, 119 N. Y. S. 2d 906). Stated otherwise, a distribution without infringement upon the capital of the corporation is a distribution of income and the rule of apportionment gives to the life tenant the earnings thus distributed. Those earnings, accrued after the establishment of the trust, are always an incident of stock ownership although until there is a distribution by capitalization in whatever form (United States Trust Co. v. Heye, supra). The test is whether, by the particular transaction, the earnings have been permanently retained by the corporation, as distinguished from a division occurring where the capital and surplus accounts remain unaffected (Matter of Davis, supra). The life tenant\u2019s benefit from income capitalization cannot be defeated by the device of destroying potential income by turning surplus into capital (Equitable Trust Co. v. Prentice, 250 N. Y. 1, supra). Nor is the market value of the stock at the time of the transaction relevant (Matter of Osborne, 209 N. Y. 450, supra)."], "id": "301047c0-279b-4b47-b95b-65489a92c79a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["And an action for that purpose may be maintained by' the wife during the lifetime of her husband. (Petty v. Petty, supra; Scribner on Dower, vol. 2, 152.) If it could not be, her right would be in danger of being altogether defeated by a conveyance of the property by the grantees to a purchaser in good faith for value. The right itself arises from the marriage; and, according to Swan v. Canaday (supra), it then becomes sufficiently complete to render it the subject of vindication by action. In that respect it is analogous to the right of a creditor against the property of his debtor. Upon the solemnization and consummation of the marriage, her right to dower in her husband\u2019s real estate is brought into existence, and the only obstacle in the way of its attachment is the fraudulent conveyance made to avoid it. A present right of action for its removal at once accrues. The wrong has been done, and its vindication is an immediate necessity. Both together would seem to be sufficient to justify the maintainance of an action for the correction of the wrong."], "id": "e40632c3-3348-43e8-8cc4-bd2677e7b1ea", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Of course it is true, as the plaintiff insists, that mere inadequacy of consideration is not a defence to a promissory note ; that is asv between parties fully competent to contract with each other. But husband and wife are not fully competent. Originally they could not contract with each other at all at law. Now their additional rights to contract with each other are only such as necessarily arise from the separate ownership of property by the wife. In regard to this right of dower, we think it remains on the former footing; by which the wife will be protected against loss by reason of her release, induced by the husband's promise."], "id": "907a18bd-61eb-4222-a81d-cf58b377d132", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["If Read had obtained the first order for the appointment of a receiver, and had neglected to perfect the appointment by the filing of security, the decision of'the referee would be right, for though an lien upon the equitable assets is obtained by the institution of supplementary proceedings, it is essential that the creditor should go on and perfect the lien by taking all the necessary steps to consummate the appointment of a receiver; or creditors, who are more vigilant, will obtain priority over him. The appointment of a receiver is not perfected until he has filed the requisite security, and when that is done his appointment operates by relation, from the time that an order was made for the appointment of a receiver. (1 Smith\u2019s Chancery Practice, 802, 497 ; Fairfield agt. Weston, 1 Sim. & Stewart, 96; Lottimer agt. Lord, 4 E. D. Smith, 183; Wilson agt. Allen, 6 Barb., 543; In the matter of the Eagle Iron Works, 8 Paige, 383; West agt. Fraser, 5 Sandf. R., 653; Voorhees agt. Seymour, 26 Barb., 581.) By the practice which existed before the Code, the order for the appointment was to the effect that the master, unless the court appointed the receiver, should take from the person appointed by him the usual security, which was his own bond, with two sureties, for the performance of his trust, and file it in the proper office ; and that upon filing the report of the master, and of such security, that the person appointed should be vested with all the rights and powers of a receiver, according to the practice of the court. (2 Barbour\u2019s Chancery Prac., 522, precedents Nos. 277, 280; Mead agt. Lord Orrery, 3 Atk., 237.) But the court in a proper case might dispense with the giving of sureties, and when the order was to that effect, the appointment was complete by the filing of the receiver\u2019s own bond, which, however, was indispensable, as the court would not, even with the consent of the parties, sanction the appointment unless the re*472ceiver\u2019s own bond was filed. (Carlisle agt. Berkley, Amb. 599 ; Ridout agt. Earl of Plymouth, 1 Dick., 68; Manners agt. Fruze, 11 Beav., 30; Connelly agt. Codd, 1 Hay. & J., 624; Hibbert agt. Hibbert, 3 Mer., 681.) When several bills were filed by different creditors to reach the effects of a debtor, the same person was appointed receiver in all the suits, and was required by the 193d rule of the court of chancery to give security sufficient to cover the whole property or effects of the debtor which might come into his hands; and if another bill was filed after the appointment of a receiver was made, the same person was appointed, and was required by the 194th rule to give 11 such further security \u201d as the master to whom the order for the appointment was referred might direct. This additional security was intended to cover any property of the debtor discovered or acquired since the last appointment. (Cagger agt. Howard, 1 Barb. C. R., 370 ; 1 Barb. Ch. Prac., 673.)"], "id": "d1cfdcf9-cb1d-482d-a67e-c8fab3eafbd8", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiff has no claim under the Lien Law for he filed no notice within the statutory period as required by section 10 (as amd. by Laws of 1916, chap. 507) to constitute a lien. (Stevens v. Ogden-130 N. Y. 182.) Therefore, no lien, , equitable or other, *502wise, exists (Tisdale Lumber Co. v. Read Realty Co., 154 App. Div. 270; Deane Steam Pump Co. v. Clark, 84 id. 450), and no personal judgment can be recovered thereunder. (Maneely v. City of New York, 119 App. Div. 376; Deane Steam Pump Co. v. Clark, 87 id. 459; Masons\u2019 Supplies Co. v. Jones, 58 id. 231; Nussberger v. Wasserman, 40 Misc. 120.)"], "id": "92a76145-c0e5-4ce1-b5c6-47c7f7658191", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It follows from this toll concept of the tax that there never passed into the ownership of any legatee any share in the fund excised \u2014 in legal theory \u2014 from the property formerly owned by deceased and appropriated at the instant of death by the sovereign as its toll or tax on the privilege to pass on the balance. In con*434sequence there neYer- accrued any legal right in any beneficiary to the interest on the fund so excised. To the extent that such interest is needed to pay in full the.interest demands of the sovereign the appropriation of the interest to such a purpose by a fiduciary does no legal wrong to any beneficiary. While in an ordinary administration the beneficiary may hope that the income earned on the whole body of the property in the management of the fiduciary will be distributed as if earned on assets unburdened by the taxi, the opportunity to receive income on the toll exacted by and at all times remaining the property of the sovereign is due to the grace of the sovereign. When withdrawn, the loss of the opportunity is merely a deprivation of a gratuity \u2014 not a wrong. If the tax is paid on or before the due date the interest is waived finally by the sovereign. Indeed if the tax due New York State is paid within six months even a part of the toll itself is waived. If, however, the tax is not paid on time the waiver of the interest never becomes effective and the interest from date of death (the date when the toll was taken) is applicable to the payment of the penalty, at least to the extent required by the sovereign\u2019s demand for penalty."], "id": "07c4bc71-e04b-4127-a102-6519192fc849", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Moultrie v. Hunt, 23 N. Y. 394, the Court of Appeals, referring to a will, say: \u201c It is of the essence of a will that until the testatrix\u2019s death it is ambulatory and revocable. No rights of property or powers over property were conferred upon any one by the execution of this instrument, nor were the estate, interest or rights of the testator in his property in any way abridged or qualified by that act. The'transaction was in its nature and provisional; it prescribed the rules by which his succession should be governed, provided he did not change his determination in his lifetime.\u201d See also Obecny v. Goetz, 116 App. Div. 807, and cases therein cited, and also Matter of Tone, 186 id. 363."], "id": "bceb3872-0992-48f9-9262-0c6d873a3cff", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court will summarily dispose of the threshold issue presented that the respondent Lorenz has no standing to defend this dispossess action as he is not a resident or occupant of the subject premises by virtue of his wife\u2019s order of protection. While technically accurate, such an order does not change the character of Lorenz\u2019s interest in the subject premises. Even if Lorenz was not a deed holder, New York Domestic Relations Law recognizes a whole host of ownership/possession rights in the marital premises. Additionally, orders of protection are of limited duration and can be and often are vacated or amended by the issuing court for a myriad of reasons. Similarly, Lorenz\u2019s possession rights only conflict with his wife\u2019s and he could immediately and legally retake possession of the premises upon his wife\u2019s relocating from same."], "id": "9ad3fed4-35a3-490d-b8a7-8723f31dce4a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the opinion of this court, the purchaser\u2019s obligation to \u201cpreserve the muniments upon which the validity of title depends\u201d, is as applicable to the county as to an individual purchaser. (Real Property Tax Law, \u00a7 1006, subd 2.) Therefore, a tax sale certificate issued in compliance with section 1006 of the Real Property Tax Law is as necessary to the county as evidence of its right in the property as it would be to an individual purchaser. Without a tax sale certificate, there cannot be a valid tax sale relative to the properties here at issue."], "id": "0e6df797-fa75-4dff-850f-0ff22f9b7126", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Neither does any other act effected in the course of this litigation either constitute or waive the valid service of a summons. Defendant\u2019s opposition to the motion to confirm, and his own motion to vacate the attachment, do not amount to an appearance. (CPLR 6223, subd [a].) (Indeed, since no action has been commenced, defendant\u2019s time in which to appear has not yet begun to run. See CPLR 320, subd [a].) Similarly, defendant\u2019s attorneys\u2019 request for the papers upon which the attachment was granted, is authorized by CPLR 6212 (subd [d]) and is not an appearance conferring jurisdiction. Plaintiff\u2019s responsive transmittal of papers, including a summons, to defendant\u2019s counsel by return mail is certainly not service; nor is the acknowledgement of their receipt an admission of service of a summons. (Given the absence of any evidence that defendant\u2019s counsel is a duly appointed agent for service of *175process under CPLR 318, such a contention is necessarily untenable.) The demand for papers of CPLR 6212, like the discovery provisions of CPLR 6220, permits the defendant to inform himself in order to prepare a defense to the attachment. The availability of these devices is therefore essential to the proper adjudication of motions to confirm or vacate. Such motions are the only available means of attacking the attachment, and thereby removing a jurisdictional predicate for the action. It would thus be anomalous, unfair and contrary to the statute\u2019s intent to hold that exercise of these statutory rights be deemed a waiver of service."], "id": "a4218c65-0fbe-4001-aae7-a76cfa1feb8a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["But the \"validity of the sale does not necessarily depend upon the just application and apportionment of the fund raised by it. The latter, though an important part of the duty of the court, may be carelessly or erroneously performed, or its performance may be waived by the negligence or the acquiescence of the parties; but in neither case ought the sale and the conveyances under it to be disturbed. When such a sale has been decreed .without fraud or collusion, that equitable doctrine, so lucidly stated byLord Redesdale, applies in full force : \u201c The general impression of all the cases is, that a purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of parties, and that it has on investigation properly decreed a sale. Then he is to see that this is a decree binding the parties claiming the estate, that is to say, that all proper parties to be bound are before the court; and he has further to see that taking the conveyance, he takes a title which cannot be impeached aliunde. He has no right to call for protection from a title not at issue in the cause and no way affected by the decision ; but if he gets a proper conveyance of the estate, although the decree may be erroneous, and therefore to be reversed, the title of the purchaser ought not to be invalidated.\u201d 2 Sch. & Lef. 577. The vice chancellor\u2019s great difficulty in coming to this conclusion seems to be, that as the law now stands the wile cannot be compelled to accept a settlement from her husband in lieu of dower, and that our statutes are explicit that no act or deed, without the assent of the wife, legally evidenced, shall prejudice her right to dower. \u201c How then,\u201d he asks, \u201c can the courts say that the act of the husband in subjecting his wife to a partition suit, or that a judgement or decree rendered therein without her assent evinced, is to have the effect of barring her right or that she shall accept a pecuniary or any other provision in lieu of her dower?\u201d But the policy of the law is clearly only the protection of the wife\u2019s dower against the abuse of *519the husband\u2019s power and his acts. Now a sale in partition cannot be the mere act of the husband. It must be shewn to be necessary for the general benefit of all interested in the lands. To such a necessity, when allowed by the court, the husband\u2019s right of property gives way, either with or without his consent; then the right of dower being but an incident, must follow. It does so, not only in this case, but in many analogous ones, where private property is taken for public use and pecuniary compensation allowed, as in lands taken for streets in cities, for roads or for canals. In this instance of a partition sale, the sale is not allowed to be made for the purpose of divesting the wife\u2019s dower, but it is made because the interest of numerous joint owners demands it. The wife\u2019s future claim of dower is then divested, not by act of her husband but by the necessary operation of law; and the only question that then remains is, how shall the value of that interest be best ascertained, and when so ascertained, secured. The chancellor has, in my judgment, shown conclusively how this can and ought to be done."], "id": "b40f5dff-95a5-4b53-b4e6-ae90301679f4", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The parties in this case at the start of their union (a second marriage for both) were faced with a choice. Where would they live? The choices were the wife\u2019s abode, the husband\u2019s or a new abode. They chose hers and have lived there for over five years. At the time of the marriage, the apartment was a nonassignable leasehold interest. It was only upon receipt of the \u201credherring\u201d (offering plan for co-op conversion) that the right of possession became valuable property. In effect, it became an property right."], "id": "de5ffab7-d0f3-462c-bf58-8557b7e6148e", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When the document is considered in the light of its recitals, it must be held that it states the intention and agreement of each party thereto for himself to surrender all choate and rights in the property of the other party thereto not only in respect of what each then owned but also in respect of what each might thereafter acquire. While it is said that recitals in a contract form no part of it (Ross v. Ross, 233 App. Div. 626, 635) such recitals may be resorted to as indications of the intentions of the parties and the scope and meaning of the agreement (Maloney v. Iroquois Brewing Co., 173 N. Y. 303, 307). Here the last recital is in form an agreement. There is no reason why it cannot be so considered. If it and the other recitals are regarded merely as declarations of intention and scope such declarations leave no doubt as to the coverage intended for the renunciations and releases which are interchanged by the text. At the time the document was signed the right to elect against a will had long been the established law of the State. There is present therefore no such problem in the interpretation of the paper as that discussed in Matter of McGlone (284 N. Y. 527, affd. sub nom. Irving Trust Co. v. Day, 314 U. S. 556). The document is held to be sufficiently broad in its text to operate as a renunciation and surrender by petitioner of all interests in the property of his now deceased wife; unless some provision of subdivision 9 of section 18 of the Decedent Estate Law requires the court to hold the paper inoperative according to its tenor."], "id": "0a3f674b-3776-43bc-ae09-a6f946699955", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Sections 6, 7, 8, 9, and 10, are also supposed to be applicable. They are consistent with sections 117 and 118 of the Code; perhaps what is directed in them, as to parties, would be necessary, at least proper, under those sections. In Ripple v. Gilborn, before cited, much reliance was placed upon sections 5 and 6, as requiring that the wife of a plaintiff should be made a party, as entitled to an right of dower."], "id": "d3baae14-a266-4e5d-bfa3-a2bb03577aba", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The testator never parted with control and dominion over the account. On the contrary, there is indication here that he intended to preserve control in himself, for, in his letter, he directed that \u201c all future balances to my credit for dividends or sale \u201d be immediately paid to the Chase National Bank to the credit of his individual account in that bank. The transaction was and incomplete. There was no present and absolute transfer. (Farmers\u2019 Loan & Trust Co. v. Winthrop, supra; Matter of Ludlam, 158 Misc. 283.) The gift was executory and prospective, as is evidenced by his letter to the brokers in which he stated that he \u201c would also like this account of mine with you to be considered a joint account with Mrs. B. M\u00f6sch * * * and please let me know if there are papers to be filled in this connection.\u201d The situation here is similar to that in Farmers\u2019 Loan & Trust Co v. Winthrop (supra), where Judge Cardozo, in referring to a letter from the testatrix to her attorney in fact, said: \u201c Words of present transfer are conspicuously absent. What we have instead is a request or at best a mandate, incompetent without more to divest title or transfer it, serving no other purpose than a memorandum of instructions from principal to agent as a guide to future action.\u201d Nor has there been shown any consideration for the transfer, which would operate to vest the account in the claimant under the doctrine of equitable assignment. (Matter of Smither, 30 Hun, 632; Matter of Ludlam, supra.)"], "id": "9ee077c3-ecc3-41c7-979f-65bbea88fe2f", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I cannot yield to the argument, that the legislature intended to destroy rights of dower without providing for compensation. If any such innovation upon the rights of married women had been designed, it would, I think, have been expressed in unequivocal terms ; and besides, if these rights are taken away, all other contingent estates must fall with them, for the statute has made no distinction. We cannot hold that inchoate rights of dower are destroyed by the sale, without virtually deciding that a contingent remainder, or executory devise in fee, would also be destroyed. That would, in effect, be giving the whole property to the tenant for life, or other owner of the first estate, for he would take the whole proceeds of the sale. If such an interpretation of the statute involves no question of power, it amounts at least to an impeachment of the justice of the legislature. It may well be provided by law that a particular description of estate shall not be created in future, but it is quite a different question whether a legal estate already existing can be takers from one and given to another."], "id": "7731d755-3b34-439f-a2d8-c6aa1c81f64a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In United States v. Crest Finance Co. (291 F. 2d 1) it appeared: that a subcontractor taxpayer entered into a subcontract with the prime contractor for hauling and compacting dirt providing that progress payments were to be made based on weekly reports predicated on the number of loads carried, same being subject to revision as to exact quantity by the section engineer; that Crest Finance made certain loans to the taxpayer, said loans being evidenced by the taxpayer\u2019s notes and secured by concurrent assignments of the taxpayer\u2019s right to payment from the prime contractor up to the date of each assignment; that after these assignments were made, but before final computation of the amount due to the taxpayer took place, there were filed certain Federal tax liens. The United States Court of Appeals held that the Federal tax liens were superior to the prior assignment of the amounts due to the petitioner, Crest Finance, stating (p. 5): \u201cWe must and do hold that Crest\u2019s lien was not choate and perfected as those terms have been defined by the Supreme Court.\u201d In that matter, in *464December of 1961, the Solicitor General filed with the Supreme Court a memorandum in the nature of a concession which stated, among other things: \u201c Just as a mortgage on real estate is not made because the value of the property (or even the mortgagor\u2019s title to it) is uncertain, so the petitioner\u2019s lien on the taxpayer\u2019s contractual right to payment for work performed is not made inchoate because the amount payable on the assigned right has not been finally ascertained. The requirement of definiteness of amount goes only to the debt secured by the lien, not to the property (otherwise specifically identified) that is subject to the lien.\u201d On December 18, 1961, the United States Supreme Court rendered a unanimous decision in said matter stating: \u201c In the light of the Solicitor General\u2019s concession that petitioner\u2019s lien is choate, and the Court agreeing therewith, certiorari is granted, the judgment is vacated and the case is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.\u201d (368 U. S. 347.)"], "id": "560a243a-3275-4db1-ab14-160c65b500e1", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This \u201c right of choice \u201d which is available to the innocent spouse is of considerable significance. While it is clear that religious considerations, a spouse\u2019s inheritance rights, and other related economic benefits such as those under social security, pension and group health plans, are neither \u201cvested rights\u201d (see Newman v. Dore, 275 N. Y. 371; Irving Trust Co. v. Day, 314 U. S. 556; cf. Flemming v. Nestor, 363 U. S. 603) nor otherwise constitutionally protected for purposes of defeating\" divorce legislation, such considerations are nonetheless recognized to have great meaning and importance in a practical sense (see, for example, Report of Special Committee on Matrimonial Law, N. Y. County Lawyers\u2019 Assn., 24 Bar Bull. 62, 66-67 [1966]). The Legislature has manifested its sympathetic recognition of these practical considerations by drafting section 170 in a manner which gives the innocent spouse, if so disposed, an opportunity to preserve the various rights contingent upon continuation of the marital state by permitting such party to choose a course of action which will effectively preclude any recourse to subdivision (5) by the guilty spouse. That such alternative choice is meant to be available to an innocent spouse in a real, and not merely a theoretical, sense becomes apparent when viewed in light of the Legisla*417ture\u2019s prior enlargement of the services and jurisdiction of the Family Court."], "id": "0a2877b5-5d42-4a7a-b662-6845f1c808fa", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Abandoned Property Law \u00a7 1221 requires that the court conduct a hearing and take testimony in order to determine the facts alleged in the escheat petition, and thereafter make and enter findings and a final order. This proceeding, notwithstanding its pendency for eight years, never progressed to the point of a hearing; no findings and order were ever made. Therefore, in this regard, petitioner\u2019s rights, if any, never matured beyond being . Under the circumstances, the enactment of 26 USC \u00a7 6408 may validly be applied to cut off whatever inchoate rights petitioner may have had under that section."], "id": "2a0e3dbf-0b31-43f3-a00a-944dfab1b595", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*45promise or contract by an infant is void ; and again Derby v. Boucher, 1 Salk. 279, it was expressly decided by the court that inflmey might be given in evidence under the general issue, \u201c non assumpsit,\u201d because the infant\u2019s promise was absolutely void, and not merely voidable, as a deed, which, taking effect by delivery, is a more deliberate act. The case in Stone v. Withipol, Cro. Eliz. 126, is to the same point. In Van Winkle v. Ketchum, 3 Caines\u2019 R. 323, the decision of the supreme court is on the same principle; and in Swasey v. Adm. of Vanderheyden, 10 Johns. R. 33, the decision is express, that a negotiable note, given by an infant, even for necessaries, is void. In Conroe v. Birdsall, 1 Johns. R. 127, it was held that a bond executed by an infant is void, though he fraudulently alleged, at the time of making it, that he was of full age. Many other cases might be adduced; where the acts or contracts of an infant are adjudged void, especially in respect to parol promises. And an authority to this point, of greater weight than any single case, and perhaps than many cases, is to be drawn from the entries or precedents of pleading. Lord Coke says, \u201c One of the best arguments or proofs in law is drawn from the right entries or course of pleading.\u201d Now all treatises of pleading, both English and American, admit that infancy may be proved under the general issue of non-assumpsit, which would be contrary to all analogy, if the contract-were merely voidable at the act of the party ; and in England, the practice and the precedents are uniform to show, that a joint contract by an infant and an adult must be treated as though it were the sole contract of the adult; and therefore, if the suit be against the adult alone, and he plead in abatement the non-joinder of his co-contractor, the plaintiff may reply his infancy. As a consequence of this principle, the English courts hold that if the action be brought against both, and the infancy of one is alleged the plaintiff shall be nonsuited. But this position, and as I understand the case, this only, was overruled by the supreme court in Hartness v. Thompson, 5 Johns. R. 160, where it was decided that in such a case the plaintiff might enter a nolle prosequi as to the infant and take his judgment against the adult. The decision, however, amounts only to a rule of practice, and does not necessarily overturn the main proposition laid down by Sergeant Williams, Ohitty and other great authorities, that the plaintiff may treat the contract of the infant as a nullity, and proceed against the adult as though he were the sole contractor. Now if this position be correct, and I have no doubt of it, it necessarily subverts, or rather qualifies two propositions, 'frequently, and I apprehend sometimes loosely given out; first, that certain contracts by an infant are merely voidable ; and second, that no one can avail himself of the fact of infancy but the infant himself. With great diffidence I will suggest, that possibly, what has led to so much difficulty in construing the contracts of infants, and produced so many conflicting adjudications, is mainly the wrong use of terms, or the application of words having a general legal moaning, to a case where the general meaning does not express the exact idea intended. When the law terms a contract merely voidable, it means that it is valid and effectual unless and until the party does something, which he may do, to avoid it, and the term therefore is applied with great propriety, to certain consummated acts of an infant, as where he has paid money, delivered property in exchange, &c., &c.; but it is improperly applied, I apprehend, to every case of a prospective act agreed to be performed by an infant, for in respect to such, the affirmative action of the infant to disannul them is not required. On the contrary, they are null and unenforcible against the infant except he does something to ratify them. All executory agreements, therefore, by an infant, except for the payment for necessaries, should be termed, what in truth the law deems them to be, contracts, capable of being completed by the infant by a subsequent act, but not capable of being enforced against him without such subsequent act. In other words, it is in no proper sense a legal contract, though it may be a foundation or legal inducement upon which the party by his own act may complete a *46legal contract. Sir James Mansfield, in Burgess v. Merril, 4 Taunt. 468, ridicules the idea of a contract that, does not bind the parties to it; that \u201c it is inseparable from the idea of a contract that it should be binding,\u201d and sheer nonsense to talk of avoiding a contract by pleading that it is not a contract."], "id": "dfa79161-2c9b-4ada-b432-6aa6c807460b", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A will is ambulatory not only in being subject to revocation and alteration, but in being incomplete and . Before rights can he acquired under it the testator must die, and at the time of his death the will must be valid under the laws then existing. Moultrie v. Hunt, 23 N. Y. 398. And this I suppose to be true whether a change in the law has occurred by legist lation or by removal to another State where different laws exist."], "id": "5e194ca9-240e-43b9-b9c6-d2c46c15a717", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["If this court were to decide the issue of disqualification solely on the basis of the current affidavits, the court would be choosing between two versions of the facts and crediting one version or the other\u2014simply put, it is a \u201cclient says, attorney says\u201d conundrum. Traditionally, when faced with different versions of the contested facts, this court would deny both applications and refer the matter to a hearing, as apparently other New York courts have done. (Olmoz v Town of Fishkill, 258 AD2d 447 [2d Dept 1999]; Poli v Gara, 117 AD2d 786 [2d Dept 1986]; Matter of Weinberg, 132 AD2d 190 [1st Dept 1987].) The Court of Appeals, albeit almost a century ago, suggested that issues involving attorneys\u2019 disqualification should not be decided on the basis of conflicting affidavits, but instead a hearing is required. (Matter of Weitling, 266 NY 184 [1935].) However, the prospect of a hearing in this instance leads to a difficult multi-faceted dilemma: how can the court conduct a hearing on the husband\u2019s claim that he made confidential or privileged communications to the wife\u2019s attorney during her representation of him without requiring him to disclose those otherwise confidential and privileged communications to the court and his prior counsel? Any hearing in this case would require the husband to set forth the dates and times of confidential communications and describe those communications in detail. The wife\u2019s attorney\u2014the exact person to whom *888those confidential communications would be most informative in the pending matter\u2014will be present in the court room and could presumably cross-examine the husband. The cross-examination would be nearly legally incomprehensible, with the wife\u2019s counsel arguing that the husband never told her confidential information and the husband swearing that he did. In addition, the wife\u2019s counsel would then be required to take the stand, testify to her version of events and be subjected to cross-examination to test her veracity on her claims that she was never told anything confidential. This court would be faced with ascribing veracity either to the husband or the wife\u2019s attorney, a frequent counsel in cases before this court. The notion of an attorney being cross-examined about allegedly confidential communications between the attorney and her prior client\u2014when her current client with diametrically contrary interests to her former client sits in the courtroom\u2014is almost surreal. A number of courts have noted the intrinsic dangers of holding a hearing on confidential disclosures between clients and their attorneys. In a California case, Pemstein v Pemstein (2004 WL 1260035, 2004 Cal App Unpub LEXIS 5450 [Ct App, June 9, 2004, No. G029394] [ordered not published]), the court declined to require proof that confidential information had passed between attorney and client as a result of prior representation and simply invoked the \u201cappearance\u201d rule."], "id": "a94bb423-bdab-4a80-8081-43c16cdfecd2", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["What was the effect of that document? Counsel for petitioner argue that this paper is a receipt, and not a release, and cannot be interpreted a surrender or abandonment by *498the wife of the community rights, and they claim that the signer was not properly protected by legal advice when the instrument was executed, and rely upon the testimony of a subscribing witness, an attorney, to point its meaning merely to the expenses attendant upon the divorce litigation. It is argued that it could not possibly have referred to an right, a mere expectancy, dependent upon the prior decease of her husband; something that might not occur in the order of nature anterior to her own demise, and that it has no reference to anything but the main issue. It could not have altered her legal relations to the property, and she is here demanding her due. As heir at law she cannot be devested of her rights by any instrument so meager and restricted as this receipt, which is not a relinquishment. It is insisted by her counsel that petitioner has a substantial claim upon the estate of decedent, and is entitled to the consideration of the court in a meritorious manner. She is not estopped by any act of hers in evidence from asserting her spousal rights; her conduct throughout has been \u25a0 consistent with her claim. Furthermore, it is insisted that the relations of the spouses must always be borne in mind; so long as the law had not severed their status, although separated by agreement, they occupied toward each other confidential and fiduciary relations."], "id": "7dbfa380-079b-4fe0-8ed2-3331c463fcb9", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The plaintiff\u2019s claim, under the most favorable view, was . Defendant had no option open to it to dispose of the proceeds, except to do so at its peril. Clearly, not having received the proof of prior death of the beneficiary, it could not pay the proceeds to the plaintiff. It could not pay the money into court, as a stakeholder, no action having been instituted by the plaintiff against it, nor could it commence an action against the plain*122tiff and seek to interplead the beneficiary since concededly, it had no knowledge of the whereabouts of the beneficiary."], "id": "b0fb982c-e78d-4d43-a331-4fd661dc04fb", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The constitutional provision of 1875, above referred to, placed important restraints upon the power of the legislature to authorize the construction of railroads upon the streets, and imposed conditions to enable the city and property owners to protect their own interests against the improvidence of the State, or the rapacity of the railroad company. The grant of the franchise originates with' the State as before, but power of the State to complete its grant, so as to vest it in the possession and enjoyment of the grantee, is made dependent upon the consent of the city and of the property owners; until this consent be given the grant is only , a mere tender upon conditions, and the conditions may never be performed by the city and property owners, or the grant be accepted by the grantee. The city and the property owners are thus brought in as parties whose consent is necessary. Some of the terms which the ciiy may impose, as the price of its consent, are prescribed in chapter 252, Laws 1884. Section 7 provides that: \u201c The local authorities of any incorporated city or village, to whom application under the provisions of this act may be made for consent to the construction, maintenance, use, operation or extension of a street surface railroad upon any street, * * may, at their option, provide for the sale of, and sell at public auction the franchise, subject to all the provisions of this act.\u201d Thus the legislature expressly makes the franchise purchasable property. It may be observed that a franchise, purchasable in the first instance at public auction, is obtainable upon other considerations than the gracious favor of the sovereign and special personal confidence and trust in the grantee, which form the basis of a tenure for life."], "id": "5b867e06-4bd2-41cc-b78a-8ac432f7cdac", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As soon as this arrangement was perfected the deed or first mortgage was canceled or superseded by the mortgage in su-it which she did not sign, and her right of dower was restored t,o her free and clear of any incumbrance. (Elmendorf v. Lockwood, 57 N. Y., 325; Hammond v. Pennock, 61 id., 145; Malloney v. Horan, 49 id., 111.) Reference is made to numerous cases to show that in other' states the rule is that a- deed from the holder of an equitable mortgage to the owner of the fee operates as a satisfaction of the mortgage. (Hunt v. Hunt, 14 Pick., 374; Cole v. Edgerly, 48 Me., 112; Collamer v. Langdon, 29 Vt., 32.) Also, that in this State such a transaction operates as an assignment of the mortgage interests in the premises or as a cancellation by the mortgagee. (Miner v. Beekman, 50 N. Y., 344; Winslow v. Clark, 47 id., 261; Bostwick v. Frankfield, 74 id., 214; Millard v. McMullin, 5 Hun, 572.) But it is unnecessary to discuss whether the deed-mortgage was assigned, satisfied or merged. So far as .Mrs.- Post\u2019s rights are concerned it was canceled. \u2022 It no longer stands in the way of her claim to dow\u00e9r in the whole fee. The plaintiff, moreover, claims that the mortgage in suit purports to be a \u201c purchase-money mortgage,\u201d and, therefore, she having signed the first deed, dower cannot be claimed. The answer to this consists in the fact that it was not a purchase-money mortgage. It was properly shown upon the trial, and found as a matter of fact, that it was given to secure past and future indebtedness, precisely the same as the previous, deed-mortgage had been given,-for which it was given in *455exchange. Again, it was not the premises or fee of the land that Collingwood was selling to Post, for Post already had that, and Mrs. Post held her dower in it subject to the deed-mortgage, but he was canceling his mortgage and taking a new one in stead. There was nothing therefore in the transaction upon which the words \u201c purchase-money \u201d in the new mortgage could have any legal bearing or effect. The conclusion seems irresistible from reason as well as authority, that Mrs. Post is entitled to an inchoate right of dower in the whole premises. We are also of the opinion that the claim of the plaintiff must be confined to the amount stated in the mortgage trust, $4,000 and interest. The decree may be amended accordingly, and judgment of affirmance entered thereon, without costs to either party in this court."], "id": "ac17dd66-4f2c-40d7-b7ef-bf5149023096", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A view more consonant with fair dealing and which carries into effect the intendment of the parties, as expressed in the language employed by them, is that which holds that while the monthly installment became due on November first, there was no default until the expiration of the month of arrears. Then on December 1, 1929, the installment remaining unpaid, the contract became *37automatically canceled pursuant to its provision for cancellation, and the \u201c preceding month \u201d must be taken to mean November. Up to December first the mutual rights and obligations of the parties, as agreed upon in case of cancellation, had not taken form; they were and unenforcible; the power to continue or terminate the contract during the month of arrears was entirely with the plaintiff. Therefore, the default occurring on December 1, 1929, and the market bid price of November 15, 1929, having been twenty-eight dollars, there is nothing due plaintiff from defendant."], "id": "e50b5f89-38f4-4e17-8468-f7a68375bb47", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Professors Wechsler, Jones and Korn of Columbia Law School were intimately and extensively involved in the drafting of the MPC. In their extraordinary and elaborate two-part article in the Columbia Law Review (61 Col L Rev 571, 957), which Justice Nathan R. Sobel correctly characterizes as \"the standard work on the subject of anticipatory or crimes\u201d (32 Brooklyn L Rev 257, 260), they set forth among other matters, the rationale for and explain the meaning and application of the unilateral approach as found in the MPC. Since, as hereinabove indicated, our conspiracy statutes are substantially predicated upon and follow that approach (although in somewhat different language), it behooves us to note what these experts say, in part:"], "id": "eaa13097-11f9-4cc4-8eaf-8a2458ba88e0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Counsel for petitioner contend that inasmuch as the property was agreed to be sold, not sold, by testator to the corporation, the whole subject of the bequest passes to petitioner and the two other legatees, subject only to such remedies as the corporation is entitled to upon said agreement of lease and sale. Section 1301 gives the petitioner and his colegatees not the claim against the v\u00e9ndee but the property itself, in specie, limited only by the right of the vendee to complete the purchase."], "id": "b159066d-e578-43ca-8bf8-e10fcf222fef", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*330It will be perceived that the debts themselves were not released, and that the property conveyed was to be employed in discharging them, as already mentioned, to such an extent as its proceeds would permit. The defendant was not a purchaser, therefore, for value, and took the deed subject to all existing equities. One of these equities was the right of dower in the premises in favor of the plaintiff. That right was a subsisting and valuable one, if it had not been conveyed, to protect and preserve which she could maintain an action (Simar v. Canaday, 53 N. Y., 305), and it is one which the law creates on the instant of marriage for the benefit of the wife, and for which she is not indebted to the husband except by the mere act of union. She does not acquire it by assignment, or deed or conveyance from him directly or indirectly."], "id": "3781cfbe-c2f3-457d-90a1-e38fc7fc00ee", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Unquestionably, as the proposed contract itself indicated, there could be no firm or fixed deal until the proposed terms in the contract received the approval of the sales manager. Up to that time, the proposed contract remained an deal with no legal force or effect. It would be a revolutionary change in the law if we were to hold that a failure to agree on a contract created a new cause of action, or that a party to a negotiation could change the proposed terms or conditions only at the peril of being subjected to a lawsuit for \"deceptive *128practices\u201d. The State Legislature, in authorizing remedies for \"deceptive practices\u201d, and the courts, which have a broad range in construing such generalized terms, surely have not been empowered to change the time-honored law that a suit on a contract will be upheld only upon a showing of \"offer\u201d and \"acceptance\u201d."], "id": "ba7f11e0-664a-47b0-8ac9-0ac8be443c30", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A release, conveyance or covenant with the committee of the husband is not valid, unless it would have been valid if executed to *230and with the husband. The fact, that the instrument runs to the-children of the husband, does not effect a conveyance. or release of her right to dower. An right to dower is not an estate,, nor is it an interest in real estate, and it is not the subject of grant or assignment. (Moore v. The Mayor, 8 N. Y., 110; Marvin v. Smith, 46 N. Y., 571, 574; 1 Wash. R. P. [4th ed.], 301, p. 1.). \u201c During coverture, the wife\u2019s inchoate right of dower is incapable-of being transferred or released, except to one who has already had, or by the same instrument acquires an independent interest in the-estate.\u201d (Elmendorf v. Lockwood, 57 N. Y., 322, 325; Marvin v. Smith, supra) An inchoate right to dower not being the subject of a grant, the granting words in the conveyance do not carry the-inchoate right to the persons described as grantees. A release is-the only mode by which a wife can bar her inchoate right to dower. A naked release to one not in possession of or having a vested interest in the premises is void. (3 Wash. R. P. [4th ed.], 380, p. 21; 4 Greenl. Cruise, 110, 115, pp. 21 to 40; Elmendorf v. Lockwood, supra.) It is recited in the instrument that the childr-en are the-prospective heirs of the husband, and it is urged that their interest as apparent heirs was sufficient to make the instrument to them oper-ative as a release. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor, as the eldest son, who must, by the common law in England, become the-heir of his father on his death. An heir presumptive is one who, if the ancestor should die immediately, would succeed to the estate,, but .whose right of inheritance may be defeated by the birth of a nearer heir. (2 Black. Com., 208; 3 Pres. Abs., title 5.) Neither definition describes the interest of persons whose right to inherit, may be defeated by conveyance or devise. Neither heirs apparent nor heirs presumptive have a legal estate or interest, though they \u2022may, in equity, bind this possibility by way of estoppel as against themselves. (3 Pres. Abs., title 6.) The children of the husband had no vested interest or estate in or possession of the land, and the instruments did not operate as a release of the plaintiff\u2019s right to dower. Neither do the instruments, and the transactions out of which they arose and of which they form a part, create an estoppel in favor of the children and against the plaintiff. The consideration was paid by the committee of the estate of the husband. The *231children paid nothing, nor did they surrender anything, nor were their legal rights in anywise affected. At the date of this deed a married woman was authorized to sell and transfer her real a.nd personal estate and enter into contracts and covenants in respect thereto; but an inchoate right to dower is not a part of her separate estate. It cannot be sold or taken by creditors. It is a mere right arising out of the marital relation which may or may not ripen into an estate.' Chapter 381, Laws 1884, was passed after the execution of the deed. The statutes existing at the date of this deed were not broad enough to authorize a married woman to contract in respect to this right, except in the manner pointed out by the Revised Statutes. (Bertles v. Nunan, 92 N. Y., 152, 160.) Before the statute of 1848 and subsequent statutes enlarging the rights and powers of married women, they could not estop themselves by covenants. (Jackson v. Vanderheyden, 17 Johns., 167; Big. Est., 276.) But since these statutes, they may by such covenants as they are authorized to enter into. This not being a subject which the statutes authorize them to contract in respect to, the plaintiff is not estopped by the deed and contract from recovering her dower. To bring the ease within section 12 of title 3, chapter 1 of the second part of the Revised Statutes (1 R. S., 741), the provision in lieu of dower, must take effect on the death of the husband. (McCartee v. Teller, 2 Paige, 511; affirmed, 8 Wend., 267; Crain v. Cavana, supra; Guidet v. Brown, supra.)"], "id": "24a3ed85-1a42-4f77-be07-b19e596d9e42", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Logan v. Whitley (129 App. Div. 666) the prospective husband and wife entered into an antenuptial agreement by which the wife, if she survived the husband, should accept from *752his estate the sum of $10,000 in lieu of dower and of her distributive share of the personal property and that the husband\u2019s estate should hold all the real estate which he then owned or might thereafter acquire free from any claim of dower, or otherwise, and the $10,000 was made a charge upon the entire estate. Thereafter the parties intermarried and within a few years the husband shot and killed the wife and then committed suicide. The wife\u2019s personal representative brought action against the husbdnd\u2019s estate to recover the sum of $10,000. Actually the wife did not survive the husband, but recovery was permitted the court saying (pp. 669-670): \u201c In this case the happening of the contingency upon which the payment was to be made was prevented by the wrongful act of the promisor, and hence neither he nor those claiming under him can defeat an action on the promise by showing that the contingency did not happen. A party may not profit by nor take advantage of his own wrong.\u201d"], "id": "5a968333-145f-490f-8d2d-23ed4fda339d", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On the trial the plaintiffs offered in evidence a deed from George Webster and Eleanor Webster, dated April 30, 1859, to Simeon D. Webster, through whom plaintiffs claim as a part of their chain of title. This was objected to and the referee held it inadmissible under the pleadings, except to show a release of Eleanor\u2019s right of dower, and confined its force and effect to that alone."], "id": "b808caad-1856-401b-93b1-abe3dd055a7a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Since the execution by Mrs. Tinkle of the mortgage, and while it remains unsatisfied, her right of dower is in the equity of redemption only, which she can make available by redemption, when by surviving her husband that right shall become a vested one. The defendant purchased that equity of redemption, and it must here be assumed that he paid what it was worth and is entitled to all the benefits and rights which the title to it gave him. He purchased subject to the mortgage in question. To the extent of that\" incumbrance on the premises this inchoate right of dower was then released. By the enlargement of that right the estate purchased by the defendant Brick would be proportionately diminished. If the premises be sold under the decree, subject to her inchoate right of dower, it may be assumed that a portion of the equity of redemption purchased by him will be exhausted to satisfy the mortgage; and when so satisfied this contingent right of the wife will apply to the entire premises. The defendant Brick does not then get what he purchased. To protect his right, and to restrict the inchoate right of the wife to that which she had when he purchased, the defendant Brick desired and sought to pay the amount to which the plaintiff was entitled, and obtain an assignment of the mortgage."], "id": "f7faee61-a44f-433c-bdfd-1d2222c48b6e", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["First. The dismissal of the complaint, as against Edward D. Merritt, on the 9th of February, gave him a right to recover costs, which was perfected on the fifteenth. But until these costs were liquidated and adjusted and judgment entered, his right had not matured into a debt or personal obligation against the plaintiff,- for which a suit might be maintained, nor had it become available as a judgment in which the court had jurisdiction to adjust or make a set-off of the respective claims of the parties; as, for instance, where, in a recovery for less than fifty dollars, costs are allowed to defendant, in such case no assignment of the recovery, before judgment, would debar the defendant from a set-off of his costs, and the court would direct such set-off and order execution for any balance due to one party from the other. But the dismissal of the complaint in this case, as to Edward D. Merritt, was, in its consequences, no greater in preventing or interfering with the complete operation of the assignment of the verdict in question, than if he had obtained such dismissal on the same day of another action in which Wood had been plaintiff. In either of the two latter cases the right to the costs, as a debt that could be set off, was .and subject to future judicial action in liquidating its amount (Supervisors of Onondaga agt. Briggs, 2 Den., 26), and only became perfect on the subsequent entry of judgment therefor."], "id": "21189ae0-c9e9-4377-bb44-cba6b0aa08ba", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The question as to what portion of the real estate the children are entitled is not to be determined so readily for the reason that the amendments to sections 82 and 83 of the Decedent Estate Law and section 190 of the Real Property Law, which went into effect September 1, 1930, abolished the right of dower and gave the widow, in lieu of her dower, one-third of the real estate of deceased outright. These statutes, as amended, apply to the estate of a person dying intestate after August 31, 1930, and to the estate of a testator leaving a will executed after that date. It is perfectly apparent from sections 82 and 83 of the Decedent Estate Law that these provisions were intended to be in lieu of any and all rights of dower. Section 82 specifically so .provides and the note of the Commission thereunder expressly states: \u201c It is intended that no surviving spouse shall have a right to dower in addition to the greatly increased participation provided under section 83.\u201d"], "id": "541c3df0-7d9e-4f65-bad0-2d6df855eaed", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["His right to give protection to and preserve the estate he purchased in the premises seems clear. That can be done only by taking an assignment of the mortgages. No reason appears by the record why he was not entitled to them. The deeds import the purchase by him of the entire equity of redemption, and the evidence tends to show that he expected to have that relieved from, the right of dower of the mortgagor\u2019s wife, but he learned before the conveyances were made to him that she declined to release it. And although lie may, under the circumstances, have refused to complete his purchase, that fact has no importance here. \u2022 Her possibility of dower in the equity of redemption remains. So far as the facts are disclosed by the evidence before us it appears *128that the duty of the plaintiff to assign to the defendant Brick the bond and mortgages was produced by the tender and offer of payment by the latter to him of the amount due on them, with the request to make the assignment, and the defendant ws;s entitled to that relief. There are no other questions requiring consideration."], "id": "eaba081d-21e8-4e47-8499-fb715b8a095b", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [".So strong is the current of authority that it would not be overstating the matter to say that a presumption in favor of subrogation attaches as a consequence of this type of loan. In Matter of Kelley (251 App. Div. 847) and Matter of Lamport (71 N. Y. S. 2d 414) where enforcement of the beneficiary\u2019s claim against the estate was denied there were very strong indications of the insured\u2019s intention to charge repayment of his indebtedness exclusively to the policies. In the Kelley case, when the bank loan was negotiated the borrower revoked the designation of his wife as beneficiary, redesignating her as secondary beneficiary subject to the assignment of the policy to the bank, thus evidencing the insured\u2019s intention that only the *470equity in the policy above the amount of the loan should be received by the beneficiary. Here, there was no such revocation by Mr. Cummings, the deceased, nor was there such redesignation of the widow as secondary beneficiary. The Kelley case is zz therefore inapplicable. Nor is Matter of Lamport (supra) controlling. In that case, an outstanding loan with the insurance company was replaced by a bank loan for the sole purpose, as the court pointed out, of effecting a saving of four percent annually in interest charges for the benefit of the beneficiaries as well as the insured. In the case at bar, the widow, at decedent\u2019s request, joined in the assignment of the policies to the bank and also became a joint maker of the note, thus rendering herself personally obligated to the bank as an accommodation maker, the estate of the deceased remaining as to her primarily liable. Moreover, inasmuch as decedent had full power to assign the policies his request that petitioner join with him was a recognition of her right to the full amount of the insurance proceeds. These facts evidence deceased\u2019s intention that payment of the note should not be exclusively charged to the policies but that the beneficiary should receive the full proceeds of the policies assigned by her, and if the proceeds be employed to pay the note the beneficiary should be subrogated to the bank\u2019s claim on the note against the estate. The claim is allowed."], "id": "49098e23-1f20-4922-a628-3dcddd4591af", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The fiduciary contends that assessing poundage is unfair; that it is intended only for \"collecting\u201d money; and, in effect, that the policy of insurance never had any separate, merchantable or economic value on which to assess poundage fees. In his concurring opinion in Simpson v Loehmann (supra) Judge (now Chief Judge) Breitel did make some statements which tend to support this argument. He stated (p 315) that \"these contemporary statutes are designed to reach every kind of marketable and assignable* property, and every kind of right that is reducible to marketable or assignable economic value. They refer to debts and property, and in the case of causes of action they must be assignable. But they are not intended or designed to reach every obligation created by contract, however , conditional, contingent, or personal. The obligation to defend and, even more, the obligation to indemnify are just such inchoate, conditional, contingent, and personal obligations. Before they come into play, there must be an external event (usually an accident) within the coverage of the policy, performance of conditions precedent by the insured, and co-operation by the insured. Even then, if the insurer\u2019s obligation to defend is fully performed, there is nothing of economic value to which the insured may make claim, receive, or assign. As to the obligation to indemnify, that does not ripen until accident, defense, and defeat resulting in judgment against the insured."], "id": "38a55626-4d75-4231-92e0-130187721224", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"I believe that Seider should be overruled. Doubtless the obligation to defend and indemnify is a valuable right but the 'debt\u2019 of the insurer it represents is and conditional and attachment is thereby precluded. (See CPLR 5201, subd [a].) The law prior to Seider was clear that contractual rights which were not yet translatable into a present duty were too inchoate to be attached. (E.g., Sheehy v Madison Sq. Garden Corp., 266 NY 44.) After Seider, in all other spheres, the law was equally adamant: absent a present duty, there is no debt. (Glassman v Hyder, 23 NY2d 354, 359.) The obligation to defend and indemnify is an important right. The duty to defend may even be more important than the duty to indemnify, at least where the action is for more than the policy limits. However, neither duty is severable from the insurance"], "id": "33ada5c7-6e90-4401-875a-0adff3c2141a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Widow held not entitled to dower when during her husband\u2019s lifetime, he having been declared a lunatic and a committee of his estate having been appointed, she. entered into a contract with the committee and her husband\u2019s children and executed to them a deed by which in consideration of the receipt by her of about one-third of her husband\u2019s property, she released all interest in his estate, including her right of dower in specific terms stated, and covenanted to execute proper release in the future. Jones v. Fleming, 104 N. Y. 418."], "id": "281925e2-ba07-4f57-a190-5631979107b3", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The assignment to plaintiff of the April rent was dated_ April 15th, 1870; but it does not appear whether that trial or judgment was before or after such assignment, and even if the \"decision in Allen v. Blath could have had any effect upon the other subsisting or rights of Helen A. D\u2019Orsay,. it could not prejudice those of the plaintiff which he might have acquired by a previous assignment."], "id": "858f7984-505f-4fce-b927-73b3879460c9", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In respect of this lien the Court of Appeals said (295 N. Y. 510, 517-518): \u201c The interest which passed to the trust company here by reason of the assignment was the right to receive the proceeds when they became available after the payments enumerated supra. \"When they became available, the lien attached. * * * The lien of the trust company here was an equitable lien which did not become perfected under the circumstances disclosed until the proceeds of the sale of the seat became available after the claims of the exchange and its members were satisfied.\u201d (Italics in original.)"], "id": "f30fdf81-6003-44b9-a568-80a7cac0a6f9", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A seizure requires a law enforcement officer to have reasonable suspicion of criminal activity. Our Supreme Court has defined reasonable suspicion as \"a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence.\" State v. Johnson, 293 Kan. 1, Syl. \u00b6 4, 259 P.3d 719 (2011). When reviewing an officer's belief that he or she possesses reasonable suspicion of criminal activity, appellate courts must determine whether the detention is justified by the totality of the circumstances with \"deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances . . . . However, the officer must be able to articulate more than an and unparticularized suspicion or hunch of criminal activity.\" 293 Kan. 1, Syl. \u00b6 4."], "id": "c96249c5-3f6e-4f28-aa60-9c87fc5de03c", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The effect of such assignment, as relates to the right of dower referred to, would be to continue it in the same condition as when the defendant purchased the equity of redemption. He *126would, for the pui\u2019poses of his protection in that respect, be treated as a mortgagee in possession, and the remedy of Mrs. Finkle for her dower in the equity of redemption would be in equity and by way of redemption. (Jackson v. De Witt, 6 Cow., 316; Bell v. Mayor, 10 Paige, 49 ; Van Dyne v. Thayre, 19 Wend., 162; Swaine v. Perine, 5 Johns. Ch., 482.) The defendant was entitled to the assignment of the bond and mortgage from, the plaintiff on payment of the sum due him, unless the wife of the mortgagor had some superior equity which should defeat it."], "id": "7cb36479-5b08-4672-a37a-d0bfca7044c3", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*416The rale seems to be well settled, that if a person undertakes an employment or trust, and begins the performance of it, he is liable for any injuries which may result from his neglect, even though he may not have received any consideration for the promise. If he omit to do what he has thus agreed to accomplish, the failure of consideration excuses his omission. This is called a nonfeasance. If he begin the execution of his engagement and fail to complete, his failure is a misfeasance, and he becomes responsible. (Wilkinson v. Coverdale, 1 Esp., 75; Thorne v. Deas, 4 Johns., 84; Smedes v. Bank of Utica, 20 id., 372.) The distinction thus recognized and applied, rests, doubtless, upon the proposition that an injury to one party or a benefit to another is a sufficient consideration for a promise. (Miller v. Drake, 1 Caines, 45; Foster v. Foster, 6 Mass., 58; Smedes v. Bank of Utica, 20 Johns., 380, supra) In Wilkinson v. Coverdale, the defendant undertook, voluntarily and without consideration, to get a policy of insurance renewed on account of the plaintiff, but did it so negligently that no benefit was derived from it, and the action against him was allowed to proceed. In the case of Thorne v. Deas, a case which was cited and approved in the Court of Errors in Smedes v. Bank of Utica, (supra), the doctrine of misfeasance was considered, and the cases stated and reviewed. It was not questioned that a voluntary undertaking, which the promissor undertook to carry out, entailed upon him the penalty of neglect in the performance of this promise. The rule is founded in common sense, in equity, and in good faith. The defendant was bound by virtue of his engagement, to keep the policy alive, or to notify the plaintiff that he would not, and thns enable her to protect herself against his default. The fact that her husband is living is not a bar to the action. It.affects the measure of damages only. (Hawkins v. Coulthurst, 5 Best & Smith, 343.) There is no force, either, in the proposition that the plaintiff had no interest in the policy because her husband was living. She had an right to the amount secured by it, which would become absolute upon the death of her husband, and the value of that fight would, doubtless, be the measure of damages."], "id": "ee257095-12b2-4ea1-a39e-a9385eadd58b", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the case of the 11 Howard, the action did not concern the separate estate of the defendant\u2019s wife. The object of the action *402was to set aside a conveyance executed by the defendant, the wife having only an right of dower. In Youngs a. Seeley and wife, the action was brought to set aside a conveyance to her as fraudulent and void. Her husband was united with her, and put in an answer which was not verified by her. It was held that the answer should have been verified by her; that if the deed was valid, the plaintiff had no claim in the premises, and that her right under it would amount to a separate estate, which she would have a right to dispose of, under the statutes of 1848 and 1849, independently of her husband. The statutes of 1848 and 1849 have enlarged the rights of married women in reference to the ownership and possession of real estate ; but, by the usages and laws of the colony and State of Hew York, a married woman could convey her lands, or any interest therein, by deed, although her husband \u2018did not join therein. (Albany Fire Insurance Company a. Bay, &c., 4 Cow., 1.) And she was regarded in equity as a feme sole, in reference to her power over her separate estate. Taking into consideration the independent position of a married woman in this State, as to her separate property, there seems to he no reason for adhering to the rule in equity which requires leave of the court to be obtained before a separate answer can be put in by a feme covert, where the action is not based upon any instrument jointly executed by herself and husband, and where, as in this case, she claims an exclusive right to the estate sought to be appropriated to the payment of her husband\u2019s debts. Having the power to hold her separate estate as a feme sole, she should be permitted to defend her title in that capacity, and to enjoy, as other suitors, all the privileges and rights pertaining to courts of justice\u2014 not as a favor, but as an absolute right. In one case, in this district, the right of a married woman, sued' in reference to her separate estate, to demur separately without leave of the court, has been decided. (Arnold, &c., a. Ringgold, &c., supra)"], "id": "750cc525-23d3-4d14-b84c-0a44a42adbc3", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["RPAPL 1311 (2) requires that every person having a right of dower or an right of dower in the real property be named a party. The right of dower, of course, was abolished as to all estates in real property acquired after August 31, 1930 (Real Property Law \u00a7 189). In effect, the plaintiff, Arbor National Mortgage, Inc., contends that Kathy Goldsmith, by virtue of her claim of an interest in the real property superior to that of the plaintiff mortgagee, is attempting to resurrect the right of dower by asking to intervene in this foreclosure action. Thus plaintiff asserts that a spouse with an inchoate right of equitable distribution is not covered by RPAPL 1311 (2)."], "id": "6660931a-3f95-4a1e-b888-0f4a017bb56c", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Mygatt v. Washburn (15 N. Y., 316, 319), Dbnio, Oh. J., says: \u201c The period for ascertaining the names of the taxpaying persons it is thus seen includes the months of May and June, and is limited to those months.\u201d And the same *271learned judge, in the same case, further says (p. 320): \u201c Evidently, there must be some day in the course of the proceeding in which the assessment may be said to be made. The fixing of this day cannot depend upon the degree of diligence with which assessors perform their duties, for in that case it would be different in different towns. * * * In my opinion, the assessment should be considered as made at the expiration of the time limited for making the inquiry, namely, on the first of July. If there is any change of residence or property after that day, it does not affect the assessment roll. The inquiries are then completed. Any changes which the assessors are authorized to make after that time are such as may be required to correct mistakes. Ho earlier day can be assumed, because what is done by one or all of the assessors prior to the first of July is and preparatory, arid liable to be altered according to their final judgment in the matter. When the statute speaks of the time \u00a3 when the assessment is made \u2019 it refers to the binding and conclusive act which designates the tax-payers and the amount of taxable property. If I am correct in what has been said, it follows that the time referred to in the statute is the first of July. It cannot be an earlier or a later day without involving incongruities which we cannot suppose that the legislature would have permitted to exist.\u201d"], "id": "7e66546e-3080-4439-81a9-291bfe93964a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Qn the trial it was established that the decedent in his lifetime and on the 5th day of June, 1869, conveyed certain lands of which he was then the owner in fee simple, to his son Miles M., the father of the plaintiff Francis, and that the value of the same at that time was $1,000. In this conveyance the widow joined releasing her right of dower in the premises. The defendant Allison called as a witness in his behalf the defendant Lydia, the widow, and offered to prove by her that the conveyance mentioned was executed without consideration, and as a deed of gift and was intended as an advancement to the grantee, Miles M. Oviatt, out of *218the real estate of the ancestor. The plaintiffs objected on the ground that the witness is a party to the action and interested in the event, and the testimony proposed would be in her own interest and against the heirs of Miles M. Oviatt; that the plaintiff Francis Oviatt is a survivor of Thomas V. Oviatt and Miles M. Oviatt, and that the witness is a survivor of Thomas V. Oviatt and a party to this action and is incompetent under the provisions of section 829 of the Code of Civil Procedure."], "id": "4c480eba-5303-4c3c-ab6d-3f196b3b62f2", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["If the facts touching the ages of the husband and wife, the value of her right of dower in the lands conveyed to Holt, and the value of the house and lot conveyed to the defendant Juliet Douglas, were before us, we could proceed and pronounce the proper decree upon the facts found by the court below. But they are not, and it becomes necessary to ascertain those facts before a proper judgment can be pronounced."], "id": "c4f42e0f-4943-43c7-a6e8-4103b3b658af", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On the other hand, to accept the defendant\u2019s thesis and proceed to denominate a breach of section 7 to be an offense is, in effect, to hold such breach to be no offense at all; for as suggested above, a statute defining a prohibited act without a covering penalty must fall as and abortive. (Penal Law, \u00a7 2; People v. Freres, 5 A D 2d 868.) However, it would be absurd to assume that twice, the Legislature performed a vain and empty act, namely, first, in passing and then, in amending section 7 with the intent to make it self-defeating by omitting classification of and terms of punishment for a breach thereof, or that the law-making body sought to meet positive conditions at the waterfront with an act of negation, i.e., to warn against loitering and in the same breath to cancel the warning by leaving it unenforcible. Accordingly, were section 7 open to two constructions, one sustaining it and the other destroying it, then the life-preserving sense should obtain (McKinney\u2019s Cons. Laws of N. Y., Book 1, Statutes, \u00a7 144; Matthews v. Matthews, 240 N. Y. 28, 34-35)."], "id": "25534fd7-2193-4fc3-8ff5-00a4f9e57432", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["* And so it has come to be regarded by courts of equity. The right of the wife to dower in her husband\u2019s property is considered, as it should be, as one entitled to protection. That has been held in general terms in repeated instances. (Mills v. Van Voorhies, 20 N. Y., 412; Mathews v. Duryee, 3 Abb. Ct. Appeals, 220; Simar v. Canaday, 53 N. Y., 298.) In the last case the author*199ities were fully reviewed and the conclusion adopted as the settled law, that \u201c an inchoate- right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.\u201d (Id., 304.) - And, conformably to that conclusion, the courts have protected her against conveyances made before marriage, for the purpose of placing the husband\u2019s property beyond the reach of that right. Its existence is one of the resulting consequences of marriage \u2014 a right arising out of its relation. And it is as much a fraud for the husband to place his property out of his hands for the purpose of avoiding it, as it is for a debtor who contemplates the contraction of debt, to voluntarily dispose of that owned by him, in order to defeat the efforts of future creditors to secure their payment. The latter, it has been-held, cannot be successfully accomplished. (Savage v. Murphy, 34 N. Y., 508; Case v. Phelps, 39 id., 164.) And the same principle should maintain the action of the wife to vindicate herself against the success of a similar device. It has been applied in that manner in several instances, and expressly sanctioned in others. (Smith v. Smith, 2 Halst. [N. J. Chy. R.], 515 ; Cranson v. Cranson, 4 Mich., 230; Swaine v. Perine, 5 Johns. Ch., 482; Thayer v. Thayer, 14 Vermont, 101.) In the last of these cases the authorities were fully collected and reviewed; and it was held, as the wife during the treaty for marriage, would not be permitted, without the knowledge of the person intended to become her husband, to make a voluntary disposition of her property to defeat his marital rights, that the husband should be subjected to the same disability; and, accordingly, such a disposition of his property was not allowed to stand. This case is important, and entitled to great weight in disposing of the one now before* the court. Substantially to the same effect, also, was the decision in Petty v. Petty (4 B. Monroe, 215). And they are not in conflict with Holmes v. Holmes (3 Paige, 363), which related only to the disposition of personal property, in which the wife can have no such interest as she has in her husband\u2019s real estate."], "id": "08c040ee-5515-4436-92a3-e8d7ff689c71", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In my opinion, rent, not accrued, is not an incumbrance ; and does not fall within the effect of the covenant referred to. Rent, before it is due and payable, is not a debt, essentially and certainly, as between landlord and tenant. It is unlike the usual cases of money payable on a precedent condition. For the purpose of illustrating this point of view, it may be likened to the right of dower which is not determinately an incumbrance until assigned and fixed. I, of course, here refer to executed contracts ; wherein the grantee has no right of action until actual breach, and when he, as it were, becomes subrogated to the claim of the incumbrancer and he enforces it in *200the way of indemnity through the obligation of the covenant. As to executory contract, when the land is subject to liens, the doctrine, as we have seen, appears to be different (See Jones v. Gardner, already cited). Besides, rent, by an actual or constructive eviction, might be defeated; or by the death of the owner go to the heir at law, and not to the personal representatives. It even when due does not become a lien, in any accurate sense of that word, upon the land or the demised interest. Landlords, to be sure, can evict the tenant, can forfeit the lease, because of non-payment of rent in arear ; but this is an incident' peculiar to the very relation of landlord and tenant; and not because rent in arrear is an incumbrance or lien. Eviction is an ouster, by the paramount title reviving by condition of forfeiture ; and hence it is that an assignee of a leasehold can pay the arrear-rent to protect his right of tenancy, and thereby become subrogated to the personal claim of the landlord."], "id": "f78845b1-9668-49fb-94a8-b415d9ca2e02", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is contended on behalf of the children, however, that the Legislature, by the changes in the Decedent Estate Law which became effective on September 1, 1930, in effect abolished the right of dower, or at least altered the presumption in its favor which had previously existed. That it possessed the power to make such alteration in the rights of a wife in so far as the right of dower was seems incontrovertible. As was pointed out by the Supreme Court of the United States in Randall v. Kreiger (23 Wall. 137, at p. 148): \u201c During the life' of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive before the death of the ancestor.\u201d (See, also, Scaife v. McKee, 298 Penn. St. 33, 38; appeal dismissed, 281 U. S. 771; Moore v. Mayor, etc., of City of N. Y., 8 N. Y. 110, 113; Rumsey v. Sullivan, 166 App. Div. 246, 247; Jackson v. Edwards, 22 Wend. 498, 519; Boyd v. Harrison, 36 Ala. 533; Hamblin v. Marchant, 103 Kan. 508; Noel v. Ewing, 9 Ind. 37; Magee v. Young, 40 Miss. 164; Chouteau v. Missouri P. R. Co., *763122 Mo. 375; Thornburg v. Thornburg, 18 W. Va. 522; Wooton v. Keaton, 168 Ark. 981; Ruby v. Ruby, [W. Va.] 163 S. E. 717; Starr v. Pease, 8 Conn. 541; McNeer v. McNeer, 142 Ill. 388; Barbour v. Barbour, 46 Me. 9; Ligare v. Semple, 32 Mich. 438.)"], "id": "80f13a23-548d-47cf-a1a5-ce13d8cdee1e", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*383On the basis of the holding and reasoning in these cases, I am of the opinion that the State\u2019s common-law right of priority is in the nature of an equitable or lien, which can be defeated by a lien arising in favor of a third party and perfected prior to the assertion or enforcement of the priority of the State. I am of the view, further, that by the docketing of her judgment and the issuance of an execution and by the levy consequent thereon, the petitioner had perfected her lien prior to the State taking action to enforce or assert its lien. (See Davis and Warshow v. S. Iser, Inc., 30 Misc 2d 528, 533-535.)"], "id": "fd5d2b83-6646-4dd6-8c07-6b62285497ca", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["With that claim disposed of, it is necessary to consider the disposition of the proceeds as between the public administrator, representing the estate of the husband, and the ancillary administrator of the father\u2019s estate. The public administrator relies on the provision of the policy reciting that \u201c in the case of death of any individual named as beneficiary, the interest of such beneficiary *49shall vest in the employee by whom he was designated.\u201d At most, the beneficiary had a contingent interest which lapsed on her death and the death of the insured in the common disaster. (Dunn v. New Amsterdam Casualty Co., supra; Matter of Hammer, supra.) The beneficiary never had any property right in the proceeds, and if her interests as presumptive beneficiary can be said to have vested in the assured there could not be acquired by the transfer any greater property right in the proceeds than the beneficiary herself had. The plain intendment of the applicable terms of the policy is that if the named beneficiary did not take, the proceeds were payable to the next of kin of the assured, who in this case was the father."], "id": "0247b407-71f3-42cc-ae43-6f03d1c023af", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A right is vested if it is one which is complete and consummated (Sochor v International Bus. Machs. Corp., 90 AD2d 442, 445 [2d Dept 1982], revd on other grounds 60 NY2d 254 [1983]), i.e., that it is \"fixed or established and no longer open to controversy\u201d. Rather than being such a fixed or settled right, \"contribution or indemnification may be characterized as contingent and * * * for if the defendant is not found to be liable and pays no money to an injured plaintiff, there is no obligation to which a party must contribute or indemnify\u201d (Majewski v Broadalbin-Perth Cent. School Dist., supra, 169 Misc 2d, at 431-432)."], "id": "92f542c1-2e0c-4fc7-839d-b1e9675fe443", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*361The language of the statute is unequivocal. The right qf an employee member of the retirement system in respect to the rate of payment of annuity benefits becomes fixed upon retirement and not at the time he becomes a member of the system, or even when he has attained eligibility. The contractual relationship created by section 7 of article V of the Constitution imposes upon the Teachers\u2019 Retirement System the obligation to pay to the members upon retirement, a pension as additional compensation for services rendered in the past, and an annuity based upon the member\u2019s contributions. Prior to retirement for superannuation the member\u2019s rights are . (O\u2019Dea v. Public School Employees\u2019 Retirement Bd., 66 Dauphin County Reports [Pa.] 58.)"], "id": "73d8c3b7-10ce-4d97-a6cd-c6f56def0b3f", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To the contra, the most that can be spelled from the letter itself is an understanding that the loans are to be paid back and that the commissions are to be applied to the advances. \u201c Any loans * * * shall first be paid back to us out of any commissions coming to you. * * * You will not get any commissions until these commissions are first applied to what you owe us, and then you get the difference.\u201d But the absence of these words is not fatal, for any language, however informal, if it shows the intention of the owner to transfer the property therein to the assignee, will be sufficient. (See 5 C. J. 906.) However, if the letter lacks the language of assignment in law, can the defendant maintain its claim on the theory that its right to these future earnings had become vested?"], "id": "bf36bc9b-15be-4794-ab76-dd276b7a38a4", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Both the Board of Land Commissioners and federal courts regularly considered claims based on interests less than perfected titles from the Spanish or Mexican government. The Alviso case in this respect is hardly unique. Although not all provisional or claims were confirmed, the Board and the courts regularly entertained them. (See, e.g., United States v. Garcia (1859) 63 U.S. 22 How. 274, 16 L.Ed. 338 ; De Haro v. United States (1866) 72 U.S. 5 Wall. 599, 18 L.Ed. 681 ; United States v. Pico (D.Cal.1870) 27 F.Cas. 537, 538 ); United States v. Chaboya (N.D.Cal.1862) 25 F.Cas. 371 ).)"], "id": "87fa3cb0-6fcb-4eb3-aca1-5421d583b0da", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The statue is a remedial one, and must be liberally construed to advance the remedy. It was intended to give a lien where none existed before. The lien attaches from the moment the horses enter the stable ; it is-waived if the statutory notice be not given, and it ripens-the moment the notice is given into a complete statutory lien relating back and embracing all the charges due."], "id": "e47bc944-6843-4f99-b4b4-a6ee555b12d0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We reverse. \u201c[T]he burden is upon the landlord to establish that during the specified period of 150 to 120 days prior to the expiration of the lease (when landlord would otherwise have been obligated to offer tenant a renewal lease pursuant to section 60 of the [Rent Stabilization] code) the exception to the section 60 renewal requirement relied upon by the landlord was indeed extant. Where a landlord fails to sustain that burden, the tenant\u2019s right to an offer of renewal is deemed to have vested during the period 150 to 120 days prior to the expiration of the lease, and that right may not thereafter be abrogated.\u201d (Short v Graves, 109 Misc 2d 672, 674, affd 88 AD2d 796.) It is apparent from this record that Caine\u2019s intent to take over tenant\u2019s apartment was not formulated until sometime in September, 1981, after the initial holdover proceeding had been commenced on Beattie\u2019s behalf and discontinued, and well past the time when landlords would have been obligated to tender a renewal lease. The effect of the decision below is to impute Beattie\u2019s good-faith intention to recover tenant\u2019s apartment to Caine, resulting in an unwarranted extension of the scope of subdivision B of section 54 of the Rent Stabilization Code. Considering that the right to a renewal lease is one of the cornerstones of the rent stabilization system (subject to the limited exceptions set forth in section 54 of the Code), multiple co-owners of property should not be treated as an entity with interchangeable or fungible parts in these situations."], "id": "4024545b-5368-4386-98c1-42fe11d6b707", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When Peter Moriarta, conveyed the rent in both the lots, without having his wife join in the conveyance, she remained entitled to an *566 right of dower in the defeasible fee of the rents. And that fee might at any timo.have been defeated by the payment of the gross sum by the owner of the land charged to the holder of the estate in the rent. That such payment was to be made to the holder of the estate in fee is plainly expressed in the deeds. There was no actual payment of this gross sum, but an equivalent transaction took place. The owner of the rent became by purchase the owner of the property on which the rent was charged. This was a merger. And, furthermore, it became absurd to say that Andrews, the owner of the land, was to pay to himself, as the owner of the rent, the gross sum, upon the payment of which the rent was to be defeated The plaintiff might take the position that this transaction had rendered the redemption impossible, because Andrews could not pay to himself. But this would not be reasonable, for the parties could easily have arranged that the owner of the land should first redeem and then convey. The result would be practically the same with the present condition of things. \u00a5e may illustrate this by supposing that the' value of the first lot, as agreed between Andrews and Mallery, the owner of the land, if free of rent, was $1,000. Now the sum needed to redeem the rent of that lot was $250. Therefore Andrews would pay the owner for the land $750. This would be the same as if the owner Mallery had first redeemed and then received from Andrews $1,000."], "id": "168b6871-c994-4d44-9751-330e3ca066e5", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1. Both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. Even a brief traffic stop constitutes a seizure of a vehicle\u2019s occupants. However, under Terry v Ohio, 392 US 1 (1968), a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. A brief, on-the-scene detention of an individual is not a violation of the Fourth Amendment as long as the officer can articulate a reasonable suspicion for the detention. Colloquially, a brief detention of this sort is referred to as a Terry stop. Whether an officer has a reasonable and articulable suspicion to briefly detain an individual is a fact-specific inquiry that is determined on a case-by-case basis, using commonsense judgments and inferences about human behavior. Although reasonable and articulable suspicion is a lesser showing than probable cause, it still entails something more than an or unparticularized suspicion or hunch, because an officer must have had a particularized and objective basis for the suspicion of criminal activity."], "id": "a5fdaa85-5a6a-4d9f-9973-9288dc4edcd3", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*138\u00bfFt is also urged that the wife\u2019s title should be protected to her, inasmuch as the consideration of the purchase of the property conveyed to her was the sale of other real property, in which she had an right of dower which she released. But the transfer to her was not made as a condition of her releasing her inchoate right of dower in the other property. That release was voluntarily made. Nor aught that can be seen she surrendered her inchoate right without any condition whatever. Then the title to the property in controversy was made to her ; and this was, as has been seen, fraudulent as to the creditors of her husband. But on the trial it was admitted by the defendants\u2019 counsel that they did not attempt to support the deed by any consideration for it coming from her. This may, perhaps, have been intended to apply only to an actual payment by her of a money consideration. However this may be, it does not appear that the conveyance to Mrs. Breese was made to secure to her the value of her inchoate right of dower in the other real estate, which right she had released, or had agreed to release. We find no error affecting the merits in the admission or rejection of evidence. Nor do we think there is any inconsistency between the general and special findings of the referee which require notice. On the whole, we are of the opinion that the judgment directed by the referee must be affirmed."], "id": "0731885c-be36-48b7-8a81-d68745976ed5", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This is far different than the case sub judiee. Here, after trial, it is found that there is no basis for any claim of fraud resulting in damage to defendant. Defendant obtained precisely what it sought, stock purchases in a quantity and at a time and at prices which it had agreed to and wished to pay, for a proper corporate purpose. The fact that later events made the transaction unprofitable has no bearing on the events as they occurred. If there was a fraud, it may well have been in the failure of Gilbert, De Sousa and Polivy to recognize that their loyalty to Bruce raised serious questions as to their right to set up the transaction for the benefit of Coraloc as against Bruce. The transaction, if performed as planned, could not have injured Coraloc. It might have been to the detriment of Bruce."], "id": "048a79b5-d434-4156-a456-3413b95cc210", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["According to the face of the decree, the court upon the pleadings alone, and upon the defendant\u2019s admissions therein, without any proof of the present or probable prospective income derivable from the defendant\u2019s real estate, and without any reference to its possible increase in value and productiveness on the further .acquisitions of the defendant, arbitrarily require the plaintiff to relinquish all claim to dower therein. And to this the court left her no alternative, unless it be to refuse to take the divorce itself. No doubt the court deemed three thousand dollars a year of more value to the plaintiff, beginning from the commencement of this action, than her right of dower, but even the option to decline the alimony ordered, and retain her right to dower, does not appear to have been tendered to her. As the judgment stands, the divorce is decreed, and she is peremptorily required to relinquish her right of dower. How her release, mentioned in the decree, is to operate, whether she has such an interest or right as would pass to the plaintiff by a mere release to him, so as to exonerate the land, we need not inquire. The object of the decree was clearly to require such a release as should forever preclude any claim of dower in future.."], "id": "15be5bfd-5a67-47b8-bae7-532018670373", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There'are many cases where persons having contingent interests in the property may be concluded- by proceedings in partition,- without working any injustice. When- partition is actually made, a contingent interest in an undivided share may attach to the part, assigned in severalty t-o the owner of the particular estate on- which- the contingent fm terest was limited. For example, if \u00c1. have' an estate for life in a moiety of the lands, with a contingent remainder in his share to B.: and C. have an estate for life in another moiety, with a contingent remainder in his share to D.: in such case, the remainder-men may be made' parties to the proceedings, and be concluded by the partition between the tenants for life. They lose nothing by it. Their contingent interests are neither destroyed nor impaired1. The effect of the partition upon their estates is the same, substantially, as it is Upon the estates of the tenants for life\u2014their undivided interest in the whole property becomes a several interest in a particular parcel. So here, if partition had been made, the rights of dower of the two married women would have ceased to be an incumbrance on the whole property, and would attach to the portions allotted, to their husbands respectively."], "id": "64813c27-795d-4070-93b8-84ef5112727b", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Nothing of any legal import occurred in the conversation at the office of Mr. Nichols. The only material question, therefore, is, whether Mrs. Ebbs was a competent witness to prove the conversation which took place at Mr. Ward\u2019s house. The Code* provides that no party to an action, nor any person interested in the event thereof, shall be examined as a witness, in regard to any personal transaction or comndunication between the witness and a deceased person. The fact that Mrs. Ebbs was the wife of the co-defendant, on whose behalf she testified, was not sufficient to exclude her.\u2020 Nor did the facts, that she was a party to the suit, and interested in the event thereof, render her incompetent.\u2021 She was a competent witness, but it was not permissible to examine her, as to the \u201c personal transaction or communication \u201d prohibited by section 399 of the Code. That the conversation related by her, comes within this prohibition, we think satisfactorily appears. She went with her husband to negotiate the loan, and participated throughout in that negotiation. She is one of the parties to the only instrument taken as security for the loan. It is not probable that the loan would have been made, unless she had executed the mortgage. Although, therefore, her interest in the mortgaged premises was *440only an right of dower, and her execution of the mortgage operated only as a release of that interest, yet the security would not have been perfect, if she had not participated in the transaction, by executing the mortgage. The principle would not be changed by considering that her husband was the actual borrower. The test of the prohibition, contained in section 399 of the Code, is not whether the interests of the witness were the subject of the transaction or communication. Oases will often arise, when a witness cannot be permitted to testify to a transaction or communication, in which he had at the time no interest. For example, when an admission has been made, respecting property of which the witness afterward became the owner; or when the witness acted for another in a transaction, in the subject of which he afterward acquired an interest; or when a loan is negotiated by A, in a conversation between him and the lender, in which B participates, and the negotiation is consummated at the same time, by A\u2019s giving the lender his note, indorsed by B for A\u2019s accommodation; or, as in the case before us, when the transaction and communication were personal ones between the witness, who had some interest in them, and another person, more directly and specially interested."], "id": "b09ad4e8-57cc-4cc1-bfa1-31cbbc4c762a", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*457This principle of practice is absolutely settled, and would not be further discussed, except for a misapprehension which seems to have existed as to the meaning of section 452 of the Code, which provides for the bringing in of additional parties, \u201c where a complete determination of the controversy cannot be had without the presence of other parties. \u201d This section has reference more particularly to equity suits, partition foreclosure suits, etc., where the parties sought to be brought in have some interest, fixed or contingent, in the subject-matter of the controversy, such as that of the right of dower of a wife of whose existence nothing was known until the trial; and the rights as tenant by the curtesy of a husband whose existence was first discovered at trial, and whose interest formerly was of some substance, but is now shadowy, and subject to be defeated by the wife\u2019s conveyance, either by deed or will; or where an injunction is sought, say against a copartnership firm, and where, at the trial, it is discovered that a person not a party is a member of such firm; and so illustration after illustration could be given showing that section 452 has application only to conditions entirely different from those existing in the case now under consideration. It must be confessed that this plaintiff\u2019s case was not as fully presented as it could have been, for a half dozen well-directed questions, addressed to the defendant while on the witness stand, must have brought forth statements of the true conditions attending his entry into possession and his continued occupancy of the premises. The exhaustive brief of plaintiff\u2019s counsel has, however, treated her meager case in such an able manner as to convince the court that the trial judge was justified in directing the verdict; for, eliminating the testimony of the plaintiff herself from the case, sufficient is left to establish, as an undisputed fact, that the defendant was a hold-over tenant of the premises, under the same\" conditions as to rent,.etc., as those under which he held-possession of and occupied the premises for the previous year ending May 1, 1891; for, as above stated, he will not be allowed to defeat plaintiff\u2019s recovery because of the nonjoinder of his partner as a defendant. The defendant does not deny the evidence of the witness Slattery that he occupied the premises under a yearly letting for the year ending May 1, 1891, at the yearly rental of $2,200, payable monthly; but simply denies that he made the verbal agreement testified to by Mrs. Garrick as made in April, and expressly admits that he held over under the old lease, under which he had occupied the premises for the previous year; for his testimony is: \u201cI did not make any verbal lease with Mrs. Garrick; simply held on according to the old lease we had. I never made any personal agreement. \u201d If he had informed the plaintiff by his answer that he had a partner liable with him for the rent, she would have undoubtedly amended her complaint accordingly. The firmly established law of this state is that a tenant occupying premises under a letting from May to May, who holds possession after the expiration of the term, can, at the election of his landlord, be held liable for another year\u2019s rent at the same rate and under the same conditions of the previous letting. Schuyler v. Smith, 51 N. Y. 309; Ackley v. Westervelt, 86 N. Y. 448; Laugbran v. Smith, 75 N. Y. 205; Coudert v. Cohn, 118 N. Y. 309, 23 N. E. Rep. 298. The plaintiff\u2019s judgment must be affirmed, with costs. All concur."], "id": "a50d56d5-9fbd-4c8c-995a-bdb97f70ee96", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The facts of the case, as stated by the referee and disclosed by the \u25a0evidence, are as follows: On the 15th of July, 1872, after having been married for more than fifteen years and having, during that time, lived together as husband and wife, Justus Tale and Emily Yale separated, and after having lived apart for about two months and a-half, in the first days of October of that year, came to an agreement between themselves to live apart during the remainder of their lives, and that the said Justus should provide for the support of the said Emily and should secure her in such support during her lifetime, .and that the said Emily should release her dower in the lands of which the said Justus was seized and should secure and indemnify him against any charge for her support further or differently than as then agreed, and to save him harmless from any debts of her contracting on his account. In pursuance of this agreement, the said \u2022Justus and Emily Yale, together with the plaintiff, Abram S. Mann, and others, executed the writing embodying the said agreement set out in the complaint, and as collaterial security for the faithful performance of the conditions thereof by the said Justus Yale, he, at the same time, executed and delivered to the said Mann, as trustee for said Emily Yale, the mortgage in suit. At the same time, or immediately thereafter, the said Justus Yale made executed and delivered to one Thomas B. Yale, a quit-claim deed of the lands described in the mortgage, in which deed the \u2022said Emily Yale joined, thereby releasing her right of dower in the lands. This deed contained the following provision: \u201d All the premises above referred to, however, are subject to a mortgage bearing even date herewith, executed by the said Justus Yale to Abram S. Mann, trustee, and nothing herein contained shall impair or affect the security by the said mortgage created.\u201d At the same time, by a declaration of trust executed by said Thomas B. Yale to said *29Justus Yale, bearing tbe same date as the mortgage, after reciting-the conveyance to him of the lands mentioned in the deed, said Thomas B. Yale declared and agreed that he held and would hold said lands in trust for said Justus Yale, and would, on request, deed and convey the same to such person or persons as the said Justus should elect or direct. Said agreement, mortgage, deed and declaration of trust all bear date July 15, 1872, although they were, in fact, executed as late as, and after, October first of that year."], "id": "ae76f41f-9718-402e-aa94-31c290877a20", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When the testator died, the sheriff primarily possessed an claim or lien against the attached property for his poundage, and secondarily, a contingent claim against the decedent. Ordinarily the amount of the sheriff\u2019s poundage and the source from which or by whom to be paid cannot be determined until the termination of the litigation by settlement between the parties (Morowitz v. Dadourian Export Corp., 179 Misc. 373), discontinuance of the action (Duffy v. Burton, 20 App. Div. 51, affd. 164 N. Y. 608; O\u2019Brien v. Nat. Conduit & Cable Co., 43 Misc. 327), operation of law (Zarski v. Wohl & Cie, 186 Misc. 824), judgment (Matter of Dempsey v. Lynch Co., Inc., 175 Misc. 710, affd. 261 App. Div. 829; Gimenez v. Great Atlantic & Pacific Tea Co., 242 App. Div. 485) and vacatur of attachment (Bruskin v. Diamond Trading Co., 182 Misc. 444; Upton v. Electric Construction Co., 89 Hun 502)."], "id": "b4345b7b-ef45-426d-8a3f-0752e10c7e8c", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We find People v. Bland (2002) 28 Cal.4th 313, 325, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ) to be helpful in explaining how defendant's single act and single bullet could produce two victims: \"The conceptual problem ... arose even where the deadly force missed the intended victim completely but the State nonetheless sought to charge the assailant with the crime of intent to murder or assault with intent to murder. If the mens rea were in limited supply, to which of two crimes should it be allocated? How could a single mens rea be made to do double duty?\""], "id": "951a2101-057d-41d7-848d-87ba414158c0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant was convicted, after a nonjury trial, of witness tampering in the fourth degree (Penal Law \u00a7 215.10) and aggravated harassment in the second degree (Penal Law \u00a7 240.30 [1]), in connection with a single telephone call that he made to the complainant, an attorney and long-time acquaintance. The defendant\u2019s telephone call, made on February 16, 1998 and tape-recorded by the complainant, was prompted by the complainant\u2019s then recent action in reporting to police a series of incidents involving one Polansky, a former girlfriend of both disputants, in which Polansky allegedly made \u201cphony,\u201d \u201cloveydovey\u201d telephone calls to the complainant. The audiotape of the telephone conversation initiated by defendant, which spans just over one minute in duration, reveals that defendant told the complainant that he (defendant) had \u201ctwo letters written to the grievance committee that [the complainant] used the legal system to harass people\u201d and that defendant \u201ccan have [the complainant] arrested\u201d based on \u201ctwo witnesses that said that [the complainant] assaulted [defendant] in Southampton\u201d; that *64defendant stated several times that he did not \u201cwant to go this way,\u201d and indicated that he was calling as a \u201ccourtesy\u201d to try to \u201cwork something out\u201d; and that defendant once referred to the complainant dropping the criminal charges against Polansky (\u201c[I]f you could drop the charges, I don\u2019t have to do that\u201d)."], "id": "b8a68874-96e0-4614-8aee-1cbda698c978", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["She cannot be treated as the surety of her husband because she joins with him in a mortgage of his lands, so as to have any charge against his estate by way of or for reimbursement for the injury she-may sustain by reason of the extinguishment in that manner of dower, and she can only take her dower in the equity of redemption of the mortgaged premises. (Hawley v. Bradford, 9 Paige, 200.) It is otherwise when she joins with him in a mortgage of her property to secure the payment of his debt. Then she is in fact his surety and entitled to all the rights incident to that relation. (Id.; Vartie v. Underwood, 18 Barb., 561; Erie Co. S. Bank v. Roop, 80 N. Y., 591.) The assignment of the mortgage to the defendant Brick cannot abridge any right which the wife of the mortgagor is at liberty at law or in equity to assert in respect to the premises, nor will it impair any rights which she had at the time the defendant took his title. And there is no principle applicable to the situation of the parties which equitably requires him to sacrifice any portion of the estate he purchased in the mortgaged premises, for the benefit of the mortgagor\u2019s wife, or to protect or restore the right of dower released by the mortgage."], "id": "12a6bb45-0862-41eb-ad26-79a6095b79b7", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This position of the plaintiff is clearly untenable, and the authorities cited by the counsel have no application to the facts conceded in this case. The intention of the parties to the bond and mortgage is obvious. The wife of the plaintiff\u2019s intestate refused to unite with him in a deed of certain premises of which he had the fee. To protect the purchasers against any loss from and on account of the dower right of his wife, a certain portion of the purchase-money or price was reserved and this bond and mortgage given. This sum so kept back and reserved was simply to protect and secure the grantee under his deed, by leaving one-third of the purchase-price unpaid upon the mortgage and bond, from and against any interest of his wife in said premises, in the event that 'she outlived him. The language of the bond, so far as it affects this action, is as follows : \u201c The sum of $1,400 is set apart and to be considered a standing indemnity, on interest, against said claim of dower, the interest to be paid to the said Benham (the intestate) anually during his life. In case he outlives his wife, the whole sum to to be paid to him or his heirs, executors and administrators twelve months after her decease.\u201d In the event that the wife survived her husband and should elect to have one-third of the premises set apart for her use, instead of taking the interest on the sum so reserved, then no interest was to be paid on the sum secured by the bond and mortgage during her life, but the principal sum and interest from her death to be due and payable twelve months thereafter, \u201cto the heirs, executors and administrators of John P. Ben-ham,\u201d the intestate. But in the event that she should take the interest on the $1,400 so secured, \u201c and this she did, having outlived her husband,\u201d then in that event, upon her death the unpaid interest and the principal sum were, by the terms of said bond, made due and payable, \u201c to the heirs, executors and administrators of the said *107intestate \u201d twelve months after Ms death. The intestate assigned all Ms interest in the bond and mortgage in Ms lifetime, as be bad a right to do. Its conditions, so far as the wife\u2019s interest was concerned, bad been complied with, and before this action was commenced the bond and mortgage had been fully paid to the owner and holder thereof. It would be manifestly unjust to the obligors to be obliged to pay twice, unless some principle of law requires it, and from a careful examination I am satisfied such is not the ease."], "id": "95c24c3b-4323-492a-88af-48eeb4bc6438", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The question raised is not free from doubt. On the part of the creditors, it is claimed that, as a consequence of the original making and delivery of the mortgage by her, in which it was provided that the overplus of the purchase money, if any there should be, should be rendered to her husband, Iris heirs, or assigns, and the sale having taken place according to the terms of the mortgage, the surplus became personal property, and should be paid to him or to those who claim in his right, and this view seems to be supported by Titus v. Neilson (5 Johns. Ch. 453) ; Bell v. Mayor, etc. (10 Paige 55) ; Frost v. Peacock (4 Edw. Ch. 678) ; Sickman v. Harsen (98 N. Y. 186); Moore v. Mayor, etc. (7 N. Y. 110). On behalf of the wife, it is claimed that right of dower attaches to the surplus, which pro haC vice is still to be deemed real estate, and 6ntiti.es her to claim her interest therein, under the rule laid down in Jackson v. Edwards (7 Paige 408) ; and this contention seems to be supported by Denton v. Naum (8 Barb. 618); Mills v. Van Voorhis (20 N. Y. 412); Simar v. Canady (53 N. Y. 298); Douglass v. Douglass (11 Hun 406); Matthews v. Duryea (4 Keyes 525)."], "id": "bf6b8a92-7941-4640-9ab8-1baca7545335", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It purports to have been made \u201cfor value received,\u201d but in what form or to what amount is not expressed, and the question presented is whether the proof of the oral agreement under such circumstances, on an issue like the present, violates the elementary rule of evidence before referred to. The principle established by the authorities seems to be, that if no consideration be expressed in a written agreement, or if it *425purports to have been made on divers good considerations, that the true consideration may be proved aliunde (see the various cases on the subject collated in Sugden on Vendors [8th Am. ed), vol. 1, p. 238, note b, and see 6th ed., 3d vol., R. S., p. 672, sec. 124, and cases cited), and it is said by judge Huston in Bollinger v. Eckhert (16 Serg. & R., 424: \u201cWe have settled down in this: Whatever material to the contract was expressed and agreed to when the bargain was concluded and the article drawn may, if not expressed in the article, be proved by parol, unless it is expressed contrary in the writing.\u201d Upon this principle parol evidence of what passed at the execution of a deed was held admissible in Pennsylvania, to show that the conveyance, though nominally absolute, was in fact for the purpose of enabling the grantor to institute an ejectment in the name of the grantee in the circuit court of the United States (Ingham agt. Crary, 1 Penrose & Watts, [Penn)., 389). In declaring the law in our own state justice Cowen, in McCrea agt. Purmont (16 Wend., 460), after a review of many of the leading authorities in England and in the United States, says in conclusion: \u201c Looking at the strong and overwhelming balance of authority, as collected from the decisions of the American courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, except for the purpose of giving effect to the operative words of conveyance. To that end, and that alone, it is conclusive. Such effect, I have no doubt, has long been ascribed to it by conveyancers and dealers in real estate. It is a construction that violates no rule of law, but harmonizes with well-settled . principles, and should be steadily maintained and applied whenever the ends of substantial justice may require it\u201d (McCrea agt. Purmont, supra). This acknowledgment of consideration estops the grantor from alleging that the deed was executed without consideration, prevents a resulting trust in him and forever debars him from denying the deed for the uses therein mentioned; but for every other purpose it is open to explana*426tion, and may be varied by parol proof (see cases cited in Sugden on Vendors [8th Am. ed.], p. 238, note b). There seems to be nothing in the rule referred to, which conflicts with the plaintiff\u2019s right to prove the oral understanding upon which the assignment was executed and delivered. He did not prove that the written assignment made by him to Fullerton was executed without consideration, but was allowed to prove what the consideration was as matter of fact. Ho trust, by implication or otherwise, resulted from the assignment, because it was drawn in form absolute on its face, so as to enable Fullerton to prosecute in his own name an action upon the claims assigned; nor did the verbal understanding impress any trust upon the assignment in Henderson\u2019s favor, because all his interest in the claim, as against Chapman, irrevocably passed by that assignment, and the verbal understanding did not operate as a reservation of any part of it. It created an right of action, however, in Henderson\u2019s favor, as against Fullerton, which matured and became complete upon the collection of the judgment. The distinction here pointed out is observable in the authorities. Henderson does not impeach the assignment, and does not deny the validity-of the transfer. He merely seeks to enforce, as against Fullerton, the agreement which was the consideration for the transfer, which agreement became efficacious when the transfer produced its results."], "id": "019152ad-75d0-432e-b779-33278a1d5ce0", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201c In the Capitol Distributors case the assignment was not one of a fund to come into existence in the future, but was of a present interest and for a present consideration; it was not, as here, a refund of a partly used-up license fee but a return to an unsuccessful license applicant of the deposit which he had made as against the issuance of a license applied for but never issued (see Alcoholic Beverage Control Law, \u00a7 54, subd. 2; \u00a7 63). \u201c Since the bank had in the Capitol Distributors case a legal assignment of an existing fund owned by its assignor, it got its priority over later creditors even when the latter were armed with judgment liens. But here appellant had only an or equitable claim on a yet to be created fund (see Matter of Strand v. Piser, 291 N. Y. 236, supra) and so it must yield priority to judgment lienors.\u201d (Italics supplied.) In the eir*529cumstances here and in the light of what the prevailing opinion in Bedford does state, the following statement in the dissent therein is nevertheless valid (p. 435): \u201cWe have held, in a wide variety of circumstances, that where the fund is to arise out of an existing relationship between the assignor and the potential source of the fund, such an assignment is valid as against creditors of the assignor ivho acquire liens after the fund comes into existence \u201d (italics supplied). It is here urged by one of the defendants that the Bedford case is distinguishable from the instant case for the reason that in Bedford the statutory lien was created by a subpoena in supplementary proceedings, whereas here there was no judgment at the time of either attachment by the Sheriff. In this connection the attachment creditor urges that the Civil Practice Act expressly provides that an attachment lien and a judgment lien are of equal effect, with priority going to the one first attaching, whether it be an attachment lien or a lien of exclusion. In support of this contention, the attachment creditor relies on sections 680 and 681 of the Civil Practice Act. They are, however, wholly unrelated to the problem here presented as between the assignees and the attachment creditor. Even so, those sections referred to priority with respect to the property of the judgment debtor, and it is a fact that at the time of the levies pursuant to the attachment the debtor had available no property applicable to the levy."], "id": "67a67429-3963-491d-9250-151fc58994ca", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["My conclusions upon this branch of the case are, that the omission, during a year from the filing of the claim, to notify the clerk that legal steps have been taken, did not operate to discharge the lien,\u2014the only object or necessity of such a notice, in any case, being to prevent the clerk from making the entry discharging the lien. That the lien created by the filing of the claim (no entry having been made by the clerk), continued after the year and until the judgment, which judgment became and is now a valid and subsisting incumbrance upon the premises; and the application to vacate the judgment upon the ground that the lien had ceased to exist when the judgment was rendered, is denied."], "id": "0fba09a4-8a68-4008-81b5-00d1381dab32", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As Mrs. Feitner might have pleaded infancy in the foreclosure, the decree in the suit is binding upon her, notwithstanding the fact that she was an infant at the time it was entered, and the failure to have a guardian ad litem appointed for her.g The Court of Chancery had jurisdiction of. the subject-matter and of the parties. Its decree was therefore not void, but voidable only, and might have been opened and set aside upon motion of this plaintiff seasonably made. It was not necessary to serve her with the subpoena. Service upon her husband for her was sufficient in an action of the character of that under consideration. In an action for the foreclosure of a mortgage, where the wife has no interest in the property except an right of dower, service against the husband and wife on the husband alone is a good service on both (Ferguson v. Smith, 1 Paige 421). On a bill to foreclose a mortgage executed by husband and wife the subpoena may be served upon the husband only. Service upon the wife is only necessary where the proceeding is against her in respect of her separate estate and her husband is only a nominal party; not where the estate is. in the husband in right of the wife (Leavitt v. Conger, 1 Paige 421, citing 9 Vesey 486 and 2 Johns. Ch. 139; see, also, to the same effect, Eckerson v. Vollmer, 11 How. Pr. 42, citing 3 Chitty Gen. Pr. 263)."], "id": "b81c7308-5314-4768-bb48-062893c9f929", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The next question to be determined is whether the effect of his marriage to the respondent subsequent to the making of the will should be determined by the laws of his domicile at the time of his death, or at the time of making the will. It has been strenuously argued by the petitioner that under the law of the Commonwealth of Massachusetts the deceased\u2019s *1003marriage to respondent after making the will acted as a revocation thereof for the reason that it did not expressly state that it was made in contemplation of marriage. This is undoubtedly true under the law of Massachusetts as is indicated by the cases of Ingersoll v. Hopkins (170 Mass. 401) and Sughrue v. Barlow (233 Mass. 468), in both of which cases the person who is named in the will as a beneficiary later married the testator; but it was held that she was unable to recover for the reason that there was nothing to show that the will was made in contemplation of the marriage. The petitioner further claims, however, that the marriage acts as an immediate revocation and that since the deceased\u2019s marriage to respondent was made while he was domiciled in Massachusetts, there was no valid will in existence when he became domiciled in Hew York State. A will is ambulatory and wholly ineffective for any purpose until the death of its author. (Brundage et al. v. Brundage et al., 60 N. Y. 544.) Ip the case Matter of Lavine (167 Misc. 879) it is stated that a will is an instrument and the rule is that the devolutionary effect of a will is solely determinable in accordance with the law in existence at the time of testator\u2019s death. Section 47 of the Decedent Estate Law provides as follows: \u201c The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.\u201d"], "id": "bb3be392-c8c1-40e8-9a95-42f70d834350", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A conspiracy exists where two or more people agree to commit a crime, they specifically intend both to agree and to commit the crime, and one of them performs an overt act in furtherance of their agreement. ( \u00a7\u00a7 182, subd. (a)(1), 184.) \"Conspiracy is an crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime.' \" ( *84People v. Swain (1996) 12 Cal.4th 593, 599-600, 49 Cal.Rptr.2d 390, 909 P.2d 994.) A \"conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.\" ( People v. Prevost (1998) 60 Cal.App.4th 1382, 1399, 71 Cal.Rptr.2d 487.)"], "id": "ff7073af-1e11-4263-b530-c233ab028127", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Third. That the defendant George \"W. Douglas induced the . plaintiff to unite with him in a conveyance of the first-mentioned premises to said Alfred L. Holt, by representing that she would have the same rights in the premises in Fifty-second street that she had in the premises to be conveyed by him to said Holt; that such representations were made with the intention of defrauding the plaintiff of her right of dower in said premises described in schedule A."], "id": "bd9e211a-b188-48f9-93f5-e0629d936bfe", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Tinker National Bank is in a different position. While it has no lien upon the surplus moneys, it claims another status. It loaned the sum of $7,500 to Enrico\u2019s Rest., Inc., on May 8, 1958 at which time Enrico Pucillo indorsed the note and transferred to Tinker, as collateral security, all of the issued and outstanding stock of Nino\u2019s Continental, Inc. It is now in a position to take judgment in the amount of $6,750 against Enrico Pucillo, but has apparently done nothing to execute on the collateral. Tinker claims to be the equitable owner of the equity of redemption, a status which would entitle it to participate in the proceedings and test the validity or superiority of liens of other claimants. (Raynor v. Selmes, 52 N. Y. 579; Matter of Attorney-General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 279; Davison v. MacDonald, supra.) It is, however, without the claimed status. At best, it has an right to execute upon the stock and a contingent right to become owner of all of the issued capital stock of the corporate defendant and thereby become enabled to take steps to enforce whatever rights that corporate defendant may have as owner of the equity of redemption. (Cf. York Props. v. Neidoff, 10 Misc 2d 439; Murrin v. Archbald Cons. Coal Co., 232 N. Y. 541.) Inchoate, contingent rights such as these, do not confer upon Tinker the equitable ownership of the equity of redemption of the foreclosed real estate. Since it has no such status, and since it has no lien against the surplus money, legal or equitable, it has no standing in this proceeding."], "id": "c5bf4c9f-7892-4128-8d58-01790498a018", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The existence of such right of a designated beneficiary to recover from the estate, upon payment of the indebtedness secured by the policy, is wholly inconsistent with the apparent contention of the respondent that such portion of the proceeds of the policy in question as are subject to the assignment is receivable by the executor and not by the named beneficiary. While it *794has been held that wher\u00e9, as here, the insured reserves the right to change the beneficiary, the rights of an assignee to whom the policy has been assigned for a valuable consideration are superior to those of the named beneficiary (Davis v. Modern Ind. Bank, 279 N. Y. 405), such holding is consistent with a recognition of all of the rights of the beneficiary, as against the estate. It follows, therefore, that although the decedent\u2019s power to revoke the designation of his wife made her interest as designee during his lifetime (Davis v. Modern Ind. Bank, supra), such interest became vested upon the occurrence of his death subject only to the lien of the assignee."], "id": "a9f7f036-300d-4153-9ea3-c3ad2a9c447f", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Under the Appellate Division\u2019s order, the plaintiff\u2019s means will clearly be an issue at the hearing. Her financial disclosure form reflects no cash assets, a checking account balance of $675 and no income. Nevertheless, she has $24,000 in stock, drives an expensive though not new vehicle and lives in a $200,000 residence. These facts are hardly enlightening as to her financial means and given the latitude permitted married taxpayers filing separately on one return under New York tax law, one column on such *894a return adds little. Moreover, given the new \u201cequitable distribution\u201d statute (Domestic Relations Law, \u00a7 236), the court is entitled to consider a spouse\u2019s equitable, if , interest in property and income acquired during marriage. (Matter of Felisa L. v Allen M., 107 Misc 2d 217.) The plaintiff and her present husband have elected to avail themselves of the benefits of filing joint tax returns. They cannot thereby prevent disclosure, but must share the burden of the policy favoring liberal financial disclosure in matrimonial actions. (See Angelo v Angelo, 74 AD2d 327, 331.)"], "id": "fff87d8c-ba0a-42f8-ab4b-b7957b333532", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1. Plaintiffs have a vested right to a pension under the supplemental plan and that right may not be abrogated by the *103LIRE or MTA. When any one of the plaintiffs attains the age of retirement, as fixed in the supplemental plan, he becomes entitled to the sum fixed in the supplemental plan as his pension, determined by his earnings, age, and years of service. 2. Defendants LIRR and MTA have a right to modify the supplemental plan so long as the modification is reasonable and does not interfere with plaintiffs\u2019 right to a pension upon reaching the age fixed in the supplemental plan. 3. If plaintiffs wish to become eligible under the noncontributory new plan, they must opt to withdraw from the supplemental plan and take a return of 106% of their contribution. There is no showing that the fixing of the sum of 106% of contributions, to be returned by the managers, is arbitrary. 4. Plaintiffs are not entitled to remain members of the supplemental plan and also become members of the new plan."], "id": "00c59982-69fe-4d2d-905a-0f585b60ee58", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The husband of the witness is not now seized of the real estate to which the present contention in part relates. And he may never become seized of the same or of any part of it. For aught that has yet appeared, it may hereafter be necessary, indeed, to devote the entire estate of the decedent to the payment of his debts. How, there are three things necessary to consummate a right of dower\u2014marriage, seizin and survivorship. A wife\u2019s dower interest attaches when the husband becomes seized of real property, and not before. It cannot be said with propriety that she has, until then, even an right. She simply enjoys the possibility of being thereafter endowed (Wait v. Wait, 4 N. Y., 99). If any interest may be aptly described as \u201cuncertain, contingent and remote,\u201d it would seem to be the interest *45of Mrs. Scherrer in the present controversy. In view of these considerations, I must deny the motion to strike out her testimony."], "id": "8b32be15-0f93-4411-8e3e-5442ab30957d", "sub_label": "US_Terminology"} {"obj_label": "inchoate", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Section 176 of the Domestic Relations Law bears the catch-line \"Property rights in action by wife\u201d and provides as follows: \"If, in an action for divorce brought by the wife, when final judgment is rendered dissolving the marriage, the plaintiff is the owner of any real property, or has in her possession or under her control any personal property or thing in action which was left with her by the defendant or acquired by her own industry or given to her by bequest or otherwise, or if she is or thereafter may become entitled to any property by the decease of a relative intestate, the defendant shall not have any interest therein, absolute or contingent, before or after her death. Where final judgment in such an action is rendered dissolving the marriage, the plaintiff\u2019s right of dower in any real property of which the defendant then is or was theretofore seized is not affected by the judgment.\u201d"], "id": "9279a830-6543-4446-bb6c-0d0eb7390411", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v. Aguilar (1997) 16 Cal.4th 1023, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ( Aguilar ), the California Supreme Court explained why-\"except in those cases involving an inherently dangerous weapon\" ( id. at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204 )-the determination of whether an is committed under section 245(a)(1)'s deadly weapon clause or force-likely clause is \"functionally identical.\" ( Aguilar , at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204.) The Aguilar court reasoned a noninherently dangerous object becomes a deadly weapon (thereby satisfying section 245(a)(1)'s deadly weapon clause) only when it is used in a manner likely to produce death or great bodily injury (thereby also satisfying the force-*691likely clause). ( Aguilar , at p. 1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204.)4"], "id": "61ebd72c-caf3-49f7-ba8f-40d73cbb4170", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed in part and affirmed in part. Jason M. Howell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. ____________________ Denis Vasquez was convicted following a jury trial of simple assault (Pen. Code, \u00a7 240)1 as a lesser included offense of assault with a deadly weapon (\u00a7 245, subd. (a)(1)), first degree burglary (\u00a7 459) and assault by means of force likely to produce great bodily injury (\u00a7 245, subd. (a)(4)), with a true finding that Vasquez had personally inflicted great bodily injury during the commission of the burglary and . On appeal Vasquez contends, and the Attorney General agrees, that the simple assault conviction should be reversed because that offense was necessarily included within the aggravated assault for which Vasquez was also convicted. We also agree with Vasquez and reverse the simple assault conviction. FACTUAL AND PROCEDURAL BACKGROUND 1. The Information Vasquez was charged in an information filed July 5, 2017 with assaulting Ramiro Avila with a deadly weapon, a knife, on April 4, 2016 (count 1); first degree burglary on that date by entering a home occupied by Avila with the intent to commit a felony (count 2); and assaulting Avila by means of force likely to produce great bodily injury (count 3). The information specially alleged as to counts 2 and 3 that Vasquez had personally used a deadly or dangerous weapon in the commission of the offenses (\u00a7 12022, subd. (b)(1)) and as to all three counts that Vasquez had personally inflicted great bodily injury upon Avila in the commission of the offenses (\u00a7 12022.7, subd. (a))."], "id": "f785f90e-4f5f-460d-b2df-a7cb8e7907e6", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Crumpton , the Court of Criminal Appeals held that the trial court properly entered a deadly weapon finding because the jury, in finding the defendant guilty of criminally negligent homicide, necessarily found that he used a vehicle as a deadly weapon. 301 S.W.3d at 664. The court reasoned: \"If a deadly weapon is anything that is capable of causing death or serious bodily injury, and the indictment alleges that the defendant caused death or serious bodily injury [by striking the complainant's vehicle with her vehicle], and the jury finds the defendant guilty as charged in the indictment, the verdict is necessarily a finding that a deadly weapon was used.\" Id. at 665 ; see also Blount v. State , 257 S.W.3d 712, 714 (Tex. Crim. App. 2008) (holding that allegation of by causing serious bodily injury with weapon or instrument \"necessarily implies the use of a deadly weapon,\" which is anything that in the manner of its use or intended use is capable of causing serious bodily injury)."], "id": "f5402f4c-3465-4caa-b765-047963cf2770", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On February 25, 2019, [Appellant] was arrested on the following charges: (18 Pa.C.S. \u00a7 2702(a)(1)); conspiracy to commit aggravated assault (18 Pa.C.S. \u00a7 903); robbery-inflict serious bodily injury (18 Pa.C.S. \u00a7 3701 (a)(1)(i)); conspiracy to commit robbery-inflict serious bodily injury (18 Pa.C.S. \u00a7 903); firearms not to be carried without a license (18 Pa.C.S. \u00a7 6106 (a)(1)); and person not to possess, use, manufacture, control, sell or transfer firearms (18 Pa.C.S. \u00a7 6105(a)(1)). On March 1, 2021, [Appellant] filed a motion in limine to exclude forensic firearm and toolmark testimony which the [trial c]ourt denied on March 9, 2021. The Commonwealth provided [Appellant\u2019s] counsel with the report, photographs, notes, and curriculum vitae of the Pennsylvania State Police firearm and toolmark examiner, David A. Krumbine. On March 29, 2021, the [trial c]ourt denied [Appellant\u2019s] motion to dismiss for lack of speedy trial. Prior to the start of trial, on March 29, 2021, the Commonwealth withdrew both conspiracy counts. Following a four-day jury trial which ended April 1, 2021, [Appellant] was found guilty of aggravated assault and carrying a firearm without a license and not guilty of robbery. Immediately following the verdict, a bench trial was held on the charge of a ____________________________________________"], "id": "822c3d26-a0d1-4f9b-bdb2-9742257f4597", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It wasn't a brand new fact pattern; it was a continuation of the same fact pattern. The alleged occurred, the shooting occurred, and then there was a subsequent effort alleged--alleged subsequent effort of retaliation against the complainant[.] The trial court then took the expunction request under advisement and issued an order the following day denying Appellant's request for the expunction of his records and files related to his acquitted aggravated assault offense."], "id": "ac075f10-40bb-4ef8-85f2-88c3b8d34e2a", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["PER CURIAM: Davino Marquan Daniels timely appeals, arguing the district court abused its discretion by denying his motions to withdraw his pleas and that provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., violate his constitutional rights. Daniels pled guilty to one count of aggravated robbery and one count of in 19CR656 and one count of violating the Kansas Offender Registration Act (KORA), K.S.A. 2020 Supp. 22-4901 et seq., in 19CR796. Prior to sentencing, Daniels moved to withdraw his guilty pleas in both cases. Upon our extensive review of the record, we find the district court did not abuse its discretion when"], "id": "07880ed6-1cdd-4e4e-827b-32cc13ab33cc", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The trial court\u2019s charge was in accord with Commonwealth v. Spencer, 263 A.2d 923 (Pa. Super. 1970). Appellant does not argue that counsel should have objected to the Spencer charge. The record reflects that the jury commenced further deliberations at 11:15 a.m. N.T. Trial, 2/2/16, at 14. Shortly thereafter, they returned to the courtroom with two questions, and returned to deliberations at 11:45 a.m. Id. at 14-15. At 1:45 p.m., the jurors entered the courtroom with a unanimous verdict. Id. at 16-18. The foreperson represented that all twelve jurors agreed. Id. at 16. They found Appellant not guilty of attempted murder of Robert Edwards, guilty of conspiracy to murder Robert Edwards, guilty of of Robert Edwards, not guilty of attempted murder of Aaron Douglass, guilty of"], "id": "557ba76a-aa6f-4211-89cf-30caa28ed1cd", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On September 30, 2016, the State filed an amended felony information charging Hill as a habitual offender with aggravated robbery, aggravated residential burglary, and . Before trial, the State filed a motion in limine to exclude testimony pursuant to Arkansas Rules of Evidence 404(a)(2) and 405. In its motion, the State requested that the circuit court grant the motion to prevent the defense from calling witnesses to provide testimony regarding specific instances of Dillard's conduct. The circuit court granted the motion."], "id": "438a488c-b3e4-44fd-99f7-ed5442a465c6", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After completing the remaining United States Sentencing Guidelines Manual (\u201cGuidelines\u201d) calculations, the district court found Lopez-Castillo had a total offense level of 25 and a criminal history category of VI, resulting in a recommended sentencing range of 110 to 120 months of imprisonment. The district court then sentenced Lopez-Castillo to 102 months of imprisonment. Lopez-Castillo appeals, challenging only the district court\u2019s conclusion that under Ariz. Rev. Stat. \u00a7 13-1204(B) qualifies as a crime of violence."], "id": "bd9af31b-f823-47c9-b82c-de6adaa3e8e5", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This is not the first time our court has relied on Simons when concluding a instrument *682that is not inherently deadly was used as a deadly weapon. In Page , supra , 123 Cal.App.4th 1466, 20 Cal.Rptr.3d 857, the defendant and his female accomplice robbed the victim and, after rifling the victim's pockets for his wallet, the female accomplice held a sharp pencil to the victim's neck and told him not to call the police. ( Id . at pp. 1468-1469, 20 Cal.Rptr.3d 857.) The defendant *332challenged his conviction for assault with a deadly weapon contending the pencil was not a deadly weapon. ( Id . at p. 1470, 20 Cal.Rptr.3d 857.) Relying on Simons and similar cases, this court concluded the accomplice used the pencil in such a manner that it was capable of producing serious bodily injury and, therefore, that under the facts of that case the pencil was a deadly weapon as a matter of law. ( Id . at pp. 1470-1473, 20 Cal.Rptr.3d 857.) We rejected the suggestion that Simons was distinguishable simply because it did not address the statute. \" '[N]o sound reason appears to define a \"deadly weapon\" for purposes of [Penal Code] section 245 differently than it is defined in other contexts under other statutes.' [Citations.] Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes. [Citations.]\" ( Page , at p. 1472, 20 Cal.Rptr.3d 857.)"], "id": "a8b94bec-284b-45e0-b1c1-feb2c2765888", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Hernandez is mistaken. Unless the legislature expressly defines an allowable unit of prosecution for a particular criminal offense, the gravamen or gravamina of the offense best describe the allowable unit of prosecution. Garfias v. State , 424 S.W.3d 54, 61 (Tex. Crim. App. 2014). The legislature has not expressly defined the unit of prosecution for with a deadly weapon, but we have determined that the offense is result oriented and that the gravamina of the offense are the victim and the bodily injury that was inflicted. Johnson , 364 S.W.3d at 298, n.45. Consequently, because the manner and means by which an aggravated assault is effectuated is not a unit of prosecution for aggravated assault, nor does it describe a unit of prosecution for aggravated assault, the manner-and-means allegation is not included in the hypothetically-correct jury charge and should be disregarded in a legal-sufficiency analysis. We reaffirm our conclusion on original submission that, assuming that the State had to prove two offenses, under Johnson , the variance between the manner-and-means alleged in the aggravated-assault-with-a-deadly-weapon count and the proof at trial is only an immaterial non-statutory allegation.1"], "id": "3739fde0-cfbd-41f4-8411-634692aaed35", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"The concept of proportionality is central to the Eighth Amendment.\" Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Embodied in the Constitution's ban on cruel and unusual punishments is the \"precept of justice that punishment for crime should be graduated and proportioned to [the] offense.\" Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910) (sentence of 15 years to hard and \"painful\" labor for submitting false invoice held cruel and unusual). But when a punishment falls within a legislatively prescribed range, the judge or jury's selection of a particular sentence is generally unassailable, subject only to \"exceedingly rare\" circumstances when the sentence is grossly disproportional. Barrow v. State , 207 S.W.3d 377, 381 (Tex.Crim.App. 2006). And there is no doubt here that the forty year sentence fell within the punishment range for this crime. Tex.Penal Code Ann. \u00a7 22.02(b) (West 2011)( is generally a second degree felony); Tex.Penal Code Ann. \u00a7 12.42(b) (West Supp. 2016)(second degree felony punished as first degree felony when defendant has prior felony conviction); Id. at \u00a7 12.32(a)(West 2011) (\"An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.\")."], "id": "7615a042-bf6e-43ae-a43f-80a65b687752", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A debate arose at sentencing as to whether the firearm used in connection with another felony must be the same firearm that was the subject of the felon-in-possession charge. After a brief recess, Dexter\u2019s attorney conceded that the firearm need not be the same. Dexter appears to have forfeited that argument, but in any event, the district court concluded that the weapon used in connection with the was the same weapon subject to the felon- in-possession charge. Dexter does not argue that the alleged conduct\u2014firing a shotgun into Sesley\u2019s apartment\u2014would not be, if true, a felonious aggravated assault. We therefore assume that the conduct qualifies as a felony."], "id": "f4189b46-9e92-49ac-9b1c-449be71d0ce7", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On review before this Court, the majority has concluded that the court of appeals erred by failing to consider all of the evidence presented at trial that might have supported the offense alleged in the indictment when conducting its legal sufficiency analysis. Specifically, the court of appeals failed to consider the evidence supporting what the majority views as the second assaultive event-evidence showing that Appellant used one hand to choke Melanie while simultaneously using the other hand to pour water down her throat."], "id": "2bd03183-294d-4f5c-8c63-860dd642f5e1", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A. Flores argues that his conviction is not an aggravated felony because he was not sentenced to a \u201cterm of im- prisonment\u201d of at least one year. We disagree. Flores\u2019s sentence to five years confinement, to be served on probation, was a qualifying \u201cterm of imprisonment\u201d under Section 1101(a)(43)(F). We have held that, for the purpose of defining \u201caggravated felony\u201d under the INA, a \u201cterm of imprisonment\u201d includes \u201call parts of a sentence of imprisonment from which the sentencing court excuses the de- fendant,\u201d including those parts probated under state law. United States v. Ayala-Gomez, 255 F.3d 1314, 1316\u201317 (11th Cir. 2001). Flores\u2019s term of imprisonment thus included the entire five-year confinement term to which he was initially sentenced. Accord- ingly, on remand, the BIA need not revisit the \u201cterm of imprison- ment\u201d issue. B. Flores also argues that his aggravated assault conviction is not an aggravated felony because it does not qualify as a crime of violence. A crime of violence is \u201can offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.\u201d 18 U.S.C. \u00a7 16(a). Importantly, decisions analyzing the definition of \u201cviolent felony\u201d in the Armed Career Criminal Act\u2019s elements clause \u201cprovide substantial guid- ance\u201d in analyzing the definition of \u201ccrime of violence\u201d under 18 U.S.C. \u00a7 16(a) because the two provisions are practically identical. United States v. Gonzalez-Lopez, 911 F.2d 542, 546 n.4 (11th Cir. USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 7 of 10"], "id": "8589134e-6332-41c0-a3fb-4667ac41cc09", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Pursuant to Penal Law \u00a7 120.11, a person is guilty of on a police officer when \u201cwith intent to cause serious physical injury to a person whom he knows or reasonably should know to be a police officer . . . engaged in the course of performing his official duties, he causes such injury by means of a deadly weapon or dangerous instrument.\u201d In contrast, a person is guilty of assault on a police officer \u201cwhen, with intent to prevent a . . . police officer . . . from performing a lawful duty, he causes serious physical injury to such . . . police officer\u201d (Penal Law \u00a7 120.08). The element of intent with respect to the crime of aggravated assault upon a police officer relates to the causing of physical injury, while the element of intent with respect to the crime of attempted assault of a police officer \u201crelates not to the result proscribed by the statute \u2014 causing the injury \u2014 but to the circumstances which make that result one for which defendant is strictly liable\u201d (People v Campbell, 72 NY2d 602, 605 [1988]). Since \u201cthe lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met\u201d (Green, 56 NY2d at 431, citing People v Graham, 44 NY2d 768 [1978])."], "id": "bae1a3ba-7f3d-4314-ab5c-7c81d71f8176", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["20. The Accused posted the videos online \u201cas re- venge\u201d because he believed SPC [V.G.] might be ro- mantically involved with members of his unit. The Accused told [agents of the Criminal Investigation Command] that he posted the videos \u201croughly be- tween 30 April and 5 May 2018.\u201d The Accused\u2019s con- duct had a reasonably direct and palpable connec- tion to a military mission or military environment. In conjunction with the Accused\u2019s profile name, \u201ccbhiser02\u201d other Soldiers could have reviewed the video and known SPC [V.G.] was depicted, particu- larly as her distinctive, military-style bun was visi- ble. At the time of the offenses, SPC [V.G.\u2019s] legal [last] name was . . . Hiser. She was, and is, an active duty Soldier. SPC [V.G.] and PFC Hiser were well- known as a dual-military couple within the Fort Drum military environment. Based on the entirety of the stipulation of fact and Appel- lant\u2019s answers during the providence inquiry, a military judge sitting as a general court-martial found Appellant guilty of the three specifications of wrongfully broadcasting intimate visual images quoted above, in violation of Article 117a, UCMJ, 10 U.S.C. \u00a7 917a, and also of one specification of dis- respecting a superior commissioned officer, one specification of , one specification of assault consum- mated by a battery, and one specification of communicating a threat, in violation of Articles 89, 128, and 134, UCMJ, 10 U.S.C. \u00a7\u00a7 889, 928, 934 (2018). The military judge sentenced Appellant to a reduction to the grade of E-1, confinement for thirty-nine months, and a dishonorable discharge from the service. In accordance with the terms of the pretrial agree- ment, the convening authority approved only so much of the adjudged sentence as provided for a reduction to the grade of E-1, confinement for three years, and a dishonorable dis- charge. The ACCA affirmed the findings of guilty and sen- tence. United States v. Hiser, No. ARMY 20190325 (A. Ct. Crim. App. Feb. 10, 2021). We granted review of the following question: \u201cWhether the military judge abused her discretion by accepting Appellant\u2019s guilty plea to a violation of Article 117a, UCMJ, when Appel- lant posted intimate videos of a person under circumstances where the person was not readily identifiable and there was no reasonable connection to the military environment.\u201d"], "id": "6ee49a04-a4e6-4afc-9e62-b23b40541307", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Sufficient evidence supported the conviction. We thus reject Mitchell's contentions that (1) he lacked the requisite mental *787state to be found guilty of because \"he did not intend to harm the deputies,\" and (2) the State did not prove beyond a reasonable doubt that the officers were in fear of imminent bodily injury. We address each in turn."], "id": "6a86630c-6178-4a65-b715-2645fd0163d3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant alleges that Federal law enforcement officers are not included in the list of police or peace officers in CPL 1.20 (34) and 2.10, which name 72 separate State and local law enforcement officers and agencies. He argues that that omission suggests that the Legislature intended to exclude them as subjects of (Penal Law \u00a7 120.11), and moves to dismiss counts 4, 5 and 6, which charge violations of section 120.11."], "id": "d29b5c9b-c064-484a-9e54-5129a76ac439", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Before Smith, Elrod, and Oldham, Circuit Judges. Per Curiam: On remand from the Supreme Court, this case asks us to reconsider whether Gomez Gomez\u2019s conviction for in Texas qualifies as an \u201caggravated felony\u201d under 8 U.S.C. \u00a7 1326(b)(2). We agree with the parties that, in light of Borden v. United States, 141 S. Ct. 1817 (2021), it does not. Accordingly, we REMAND to the district court to REFORM the judgment. Case: 17-20526 Document: 00516170143 Page: 2 Date Filed: 01/18/2022"], "id": "b809daac-efec-46b0-ae2a-2fdd4b4dc16e", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["intimidation[ ]\u201d which involved previous charges. The State also elicited testimony at trial that Reyes was on probation on the night in question, and therefore was prohibited from consuming alcohol and being present in a bar, which Reyes had been prior to the incident with Marina. After the State rested, the district court dismissed count four of the information\u2014malicious injury to property. The jury convicted Reyes of domestic battery, attempted strangulation, and . The district court imposed an aggregate sentence of five years fixed, followed by five years indeterminate. Reyes appealed to the Idaho Court of Appeals, which affirmed his convictions. See State v. Reyes, No. 46439, 2020 WL 3496329 (Idaho Ct. App. June 29, 2020). This Court granted Reyes\u2019 petition for review. II. STANDARD OF REVIEW \u201cWhen reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court.\u201d State v. Chernobieff, 161 Idaho 537, 539, 387 P.3d 790, 792 (2016) (quoting State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)). \u201cThis Court is not merely reviewing the correctness of the Court of Appeals\u2019 decision; rather, this Court is hearing the matter as if the case were on direct appeal from the trial judge\u2019s decision.\u201d Gilpin-Grubb v. State, 138 Idaho 76, 79, 57 P.3d 787, 790 (2002). Marsalis v. State, 166 Idaho 334, 458 P.3d 203, 208 (2020). \u201cThe question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion.\u201d State v. Hall, 163 Idaho 744, 781, 419 P.3d 1042, 1079 (2018) (quoting State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)). To determine if a trial court abused its discretion, this Court considers whether the trial court (1) perceived the issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted consistently with the legal standards applicable to the specific choices available to it, and (4) reached its decision by an exercise of reason. State v. Abramowski, 164 Idaho 857, 860, 436 P.3d 678, 681 (2019) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). III. ANALYSIS On appeal, Reyes contends that multiple errors occurred during his trial, two of which were conceded by the State. Because these multiple errors rendered Reyes\u2019 trial unfair, we vacate his convictions under the cumulative error doctrine."], "id": "30e85bf0-8518-481f-8734-2917979d5861", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant was originally indicted for on a family member with a deadly weapon. The indictment alleged that Appellant caused serious bodily injury to Rene Caso. Testimony would later reveal that Caso lost his right eye as a result of the assault. The original indictment identified the deadly weapon as either a vase, a tissue box, or Appellant's hand. The State later struck the deadly weapon language from the indictment. But the State also enhanced the punishment range by claiming that Appellant had previously been convicted of another felony offense some seven years before the date of the aggravated assault."], "id": "286863d4-2f4e-4020-8769-1dd206136ef8", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The United States Probation Office recommended classifying Lawson as a career offender because he had two prior state court convictions\u2014one for a crime of violence (a 2011 Florida conviction for of a law enforcement officer with a firearm) and another for a controlled substance offense (a 2004 Florida conviction for possession, sale, or delivery of cocaine within 1000 feet of a place of worship). See U.S.S.G. \u00a7 4B1.1(a). As USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 4 of 17"], "id": "3151531a-971b-4a57-aafd-bb2662e7700a", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In January 2021, Cooper's probation officer reported that he had violated the conditions of his probation in several ways. The alleged violations included committing the crimes of criminal damage to property, , and aggravated battery against his wife; failing to provide proof of completing an anger-management class, as recommended by his domestic-violence assessment; failing to provide proof of a job search; and not making scheduled court payments. The court prohibited Cooper from having contact with his wife and scheduled an evidentiary hearing. In late March, before the evidentiary hearing, Cooper's probation officer filed an additional probation-violation warrant, stating Cooper committed the crimes of driving while suspended and possession of marijuana and alleging Cooper had violated the court's no-contact order on various occasions."], "id": "adadcf6c-91a9-4891-8ee7-85af01388db3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant was convicted by [a] jury on September 12, 2002, of first-degree murder, conspiracy to commit homicide, kidnapping, conspiracy to commit kidnapping, [unlawful restraint, false imprisonment, , tampering with or fabricating physical evidence, and persons not to own or possess firearms. 2] Appellant was sentenced that [same] day to life imprisonment for the murder conviction, but sentenc[ing] was deferred on the remaining convictions. On November 22, 2002, Appellant was sentenced to an aggregate sentence of [46] to [92] years[\u2019] ____________________________________________"], "id": "73864c60-0031-4313-bf78-dfed1ea38ab3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The First Court of Appeals, in an opinion authored by Chief Justice Radack, disagreed. \"[O]nce the trial court included self-defense in the abstract portion of the charge,\" the court said, self-defense became \"law applicable to the case.\"10 This meant that \"the trial court was required to apply that defensive issue properly\" to the entire case-including the lesser offense of .11 Analyzing a number of factors, the court went on to determine that the omission of a self-defense instruction on aggravated assault was egregiously harmful, and reversed Mendez's aggravated-assault conviction."], "id": "33dbee83-4ad7-41bd-8d5d-232b8c2f0ba0", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Although both the indictment and the jury charge listed two potential complainants\u2014\u201c[Jane] and/or [Kyle]\u201d\u2014Wahl did not object to the charge on this basis and he does not raise the issue on appeal. We decline to address the issue sua sponte. Cf. Mohler v. State, No. 02-15-00024-CR, 2016 WL 5442066, at *2 n.3 (Tex. App.\u2014Fort Worth Sept. 29, 2016, pet. ref\u2019d) (mem. op., not designated for publication) (implying that defendant was convicted of two offenses under one count of one indictment but declining to address the issue sua sponte). The indictment is ambiguous regarding which subsection of the harassment statute each factual allegation of harassment relies upon, but the trial court charged the jury using the definition of harassment in Section 42.07(a)(2). Wahl interprets the indictment\u2019s reference to \u201cbodily injury\u201d as an implicit reference to assault or , and the State does not appear to challenge this interpretation We therefore assume without deciding that the indictment implicitly identified assault or aggravated assault as one of the relevant offenses Wahl threatened to commit against Kyle."], "id": "27eca8be-7504-4691-9a0b-95670168884a", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On appeal, Venegas raises four issues: (1) the computer-generated animation of the accident was unreliable because it was based on estimates and not actual measurements; (2) the trial court erred in denying Venegas's motions for continuance; (3) the evidence was legally insufficient to support the jury's verdict of based on Venegas's driving \"too fast;\" and (4) the trial court erred in pronouncing sentence, a critical stage of the trial, without providing Venegas assistance of counsel."], "id": "60a7689f-a3d7-416e-95d7-dc37addd4d2b", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["At the close of evidence, appellant requested an instruction on deadly conduct as a lesser-included offense to the charged offense of on a public servant. See TEX. PENAL CODE \u00a7\u00a7 22.05(a) ; 22.02(a)(2), (b)(2)(B). The trial court denied the request. The jury found appellant guilty of all three charges and the enhancement paragraphs true, and the trial court assessed punishment at eighteen years' confinement for both the evading arrest and aggravated assault on a public servant charges, and ten years' confinement for possession of heroin."], "id": "54b11243-27d4-4fb4-adf0-d3681b916274", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It appears from appellant's brief that he contends the evidence is insufficient because the State failed to prove the conduct alleged in the information: \"striking the complainant with his hand.\" However, the State was not required to prove the manner and means of causing the injury alleged in the information. See Johnson v. State , 364 S.W.3d 292, 298-299 (Tex. Crim. App. 2012) (holding that the State was not required to prove the allegation in the indictment for that the defendant hit the victim with his hand or twisted the victim's arm with his hand because any variance between the allegation and proof at trial would be immaterial); cf. Phelps v. State , 999 S.W.2d 512, 518 (Tex. App.-Eastland 1999, pet. ref'd) (holding that the hypothetically correct jury charge for injury to a child would not include the descriptive phrase \"with his hand\" because the phrase unnecessarily increased the State's burden of proof). Regardless, the evidence is sufficient to support the pleaded manner and means of the cause of the injury because the complainant said during the 911 call that appellant \"beat\" her with his \"fist.\""], "id": "216bfc4f-be51-4601-a8f2-613468aaec0c", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I agree with the majority's decision to reverse the judgment of the court of appeals and reinstate Appellant's conviction. The evidence was sufficient to support the jury's verdict of with a deadly weapon. I write separately, however, because I arrive at that conclusion via a different route than the majority. In holding that the evidence was sufficient to support the conviction, the majority opines that the variance between what was alleged in Count 2 of the indictment and what was proved at trial is immaterial. I would instead hold that there was no variance at all."], "id": "d12ec9f3-f3eb-4cdb-baaa-600aa8745aea", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["For example, felony murder can be based upon the underlying felony of , which can be a result-oriented offense. Lawson v. State , 64 S.W.3d 396, 396-97 (Tex. Crim. App. 2001) (holding that intentional and knowing aggravated assault can serve as the predicate felony for felony murder); see also Landrian , 268 S.W.3d at 537 (noting that aggravated assault is a result-oriented offense). But it can also be based upon the offense of felony DWI which is not. Lomax v. State , 233 S.W.3d 302, 309 (Tex. Crim. App. 2007) (holding that felony DWI can serve as the predicate offense for felony murder); see also Ex parte Benson , 459 S.W.3d 67, 81 (Tex. Crim. App. 2015) (noting that the gravamen of the offense of felony DWI is either a conduct-oriented offense or a circumstances-oriented offense). The dissent argues that treating the offense of engaging as a circumstance-oriented crime would abrogate Ngo v. State , because it would treat credit-card-abuse as a circumstance-oriented crime rather than a conduct-oriented crime. But the dissent's interpretation is vulnerable to the same criticism. Treating engaging as a conduct-oriented crime, as the dissent argues, would have the effect of treating result-oriented predicate offenses as conduct-oriented offenses. Using the dissent's logic, this would abrogate precedent such as Landrian, for example, which holds that jury unanimity is not required regarding the different manner and means of committing a result-oriented offense. 268 S.W.3d at 541-42. Ultimately, this cautions us against treating engaging in organized criminal activity as either a conduct-oriented crime or a result-oriented crime."], "id": "1246c13c-22aa-40d9-b118-06bbe15ea2ee", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is [] clear that [trial counsel\u2019s] advice that [Appellant] should not testify at trial was based upon an erroneous legal conclusion that [Appellant\u2019s] conviction was admissible at trial if [Appellant] testified. The conviction was not for a crime of falsehood nor was it admissible for any other reason (both of which were conceded by [trial counsel] and not rebutted by the Commonwealth). In fact, the Commonwealth in its[] cross- examination of [trial counsel] only attempted to imply that the conviction may have become admissible if [Appellant] had opened the door to it by testifying that he was not a violent person. Such an implication is a theory at best and in no way can serve as evidence that it would have been a basis for [Appellant] to not testify. [Trial counsel] in his testimony explicitly denied that this was even a consideration. Based upon the foregoing it is not possible for counsel's advice for [Appellant] to not testify to be advice that was reasonable and designed to effectuate [Appellant\u2019s] best interest."], "id": "6025dccb-5b0e-484b-b443-397877996237", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1 The shooting occurred on July 2, 2017. In August 2017, a Barrow County grand jury indicted Appellant for malice murder, felony murder, , aggravated cruelty to animals, and two counts of possession of a firearm during the commission of a felony. In August 2019, a jury found Appellant guilty on all counts. The trial court sentenced Appellant 1. The evidence presented at trial showed that Appellant"], "id": "136ee7c9-96d6-4771-965b-8db9dff85428", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Arkansas Department of Human Services (DHS) took a seventy-two-hour hold on the children on June 30, 2016, after learning that appellant had threatened to \"shoot the whole place up\" while under the influence of drugs and, at one point, pointed a gun at S.S. Although the incident began as a domestic situation between Madison and appellant, Madison did not want a protection order. Therefore, the children were removed due to abuse, neglect, and parental unfitness. An arrest warrant was subsequently issued for appellant for on a family or household member and terroristic threatening. DHS filed a petition for emergency custody and dependency-neglect on July 5, 2016. An ex parte order for emergency custody was filed the same day."], "id": "ec7ba302-5b46-4acd-a584-09d8bad6fac3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On appeal, Sampson argues there was insufficient evidence to support his aggravated-assault convictions. A person commits if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. \u00a7 5-13-204(a)(2) (Repl. 2013). Sampson further argues he was acting in self-defense, and the provisions of section 5-13-204 do not apply to a person acting in self-defense or the defense of a third party. Ark. Code Ann. \u00a7 5-13-204(c)(2). Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State , 2011 Ark. App. 700, 2011 WL 5562803. The circuit court instructed the jury on justification. Sampson contends the State failed to disprove his justification defense beyond a reasonable doubt. Neither of these sufficiency arguments is preserved for appellate review."], "id": "d1096068-5520-4fbd-8a24-b392392311eb", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The jury was unable to reach a verdict on kidnapping, and the court declared a mistrial on that charge. The jury found appellant guilty of aggravated residential burglary, on a family or household member, and first-degree terroristic threatening. They further found that he had employed a firearm to commit each of these three felony offenses. As noted above, appellant received an aggregate sentence of life plus fifteen years' imprisonment, as well as a fine. This appeal followed."], "id": "1f1b7b9d-6d9b-4e81-a499-72e3636dc688", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The more serious crime of in violation of Penal Code section 245 can be committed in a number of ways. Three types of aggravated assault are relevant here: (1) by means of force likely to produce great bodily injury, (2) by means of an inherently deadly weapon, and (3) by means of an object not designed to be a weapon but alleged to be a deadly weapon as used . The first and third type require a *685showing of the amount of force the defendant used during the assault. \"[T]he jury's decisionmaking process in an aggravated assault case ... is functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force [the defendant] used .\" ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204, italics added.) Only the second variety, assault with an inherently deadly weapon, requires no showing of force. Merely using the weapon to attempt an injury is enough."], "id": "1f93d793-4967-460e-906c-6b20fab6dfeb", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["B. Appeal and Discretionary Review *551On appeal, Mendez complained that the trial court's instruction on self-defense was \"erroneous and incomplete.\"4 Mendez pointed out that the application paragraph permitted the jury to acquit Mendez on self-defense grounds only if it first determined that he \"did cause the death of Jacob Castillo, as alleged.\"5 This instruction, Mendez argued, necessarily suggested that self-defense could serve to justify the offense of murder, but not the lesser offense of . Candidly acknowledging that he had failed to object to the charge at trial, Mendez observed that, in Almanza v. State , we said that even un-preserved jury-charge error may \"call for reversal,\" so long as the appellant can show that the error caused \"egregious harm.\"6 Mendez undertook to demonstrate egregious harm by arguing that, had the jury been fully and correctly instructed on self-defense, he likely would have been acquitted of both crimes."], "id": "c3d47553-905b-47af-9420-5e7fb3d0b6d4", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In 2011, however, the two variants of under former section 245, subdivision (a)(1), were placed in separate paragraphs of subdivision (a). (Stats. 2011, ch. 183, \u00a7 1.) The reason for the change was to make it easier going forward to determine whether a defendant's prior convictions for aggravated assault under section 245, subdivision (a), involved conduct subjecting the defendant to certain recidivist provisions, because enhancements such as the Three Strikes law applied to prior assault convictions only when those convictions involved the use of a deadly weapon. ( Jonathan R. , supra , 3 Cal.App.5th at p. 971, 208 Cal.Rptr.3d 159 ; see *1029People v. Banuelos (2005) 130 Cal.App.4th 601, 604-607, 30 Cal.Rptr.3d 315.) There was no need to similarly amend section 245, subdivision (c), because an aggravated assault against a peace officer is a serious felony and qualifies as a \"strike\" regardless of whether a deadly weapon was used. (\u00a7 1192.7, subd. (c)(31); People v. Semien (2008) 162 Cal.App.4th 701, 709-710, 75 Cal.Rptr.3d 880.)"], "id": "94f964cb-df7e-4335-931b-0585de7edaaf", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Boorman v Deutsch, after a remand to reassess as excessive compensatory and punitive damages of $5,000,000 awarded upon default (152 AD2d 48, 55 [1st Dept 1989]), a second inquest or assessment of damages was held on August 13, 1990 in Supreme Court, New York County (index No. 29609/84), in iA Part 2, before Justice Eugene L. Nardelli. Justice Nardelli thereafter awarded $1,000,000 past compensatory damages; $750,000 future compensatory damages plus $1,000,000 punitive damages for sexual and over an evening and a night for which defendant was convicted of two felonies in New Jersey, following testimony by plaintiff and a psychologist. The plaintiff and defendant had renewed a prior social and sexual dating relationship which turned violent."], "id": "32638c4b-42f0-4a2f-a808-043999c25651", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1 The crimes occurred on September 5, 2004. In December 2004, a Fulton County grand jury indicted Terrell, along with Kelvin Gilliam, Dwight Parks, and Michael Stinchcomb, for malice murder (Count 1), felony murder predicated on (Count 2), aggravated assault with a deadly weapon (Count 3), aggravated assault against Tamara Ross, D. R., G. R., Anthony Taylor, Michael Mitchell, Keretesha Hines, Unita Hines, Lisa Johnson, A. H., Charlene Thompson, Charlie Nixon, and Orlando Wimbley (Counts 4-15), and possession of a firearm during the commission of a felony (Count 17). Terrell was separately indicted on one count of possession of firearm by a convicted felon (Count 18), and Stinchcomb was separately charged with an additional count of aggravated assault against Janet Lymon (Count 16). Prior to trial, Parks pleaded guilty to Count 3. A joint trial of Terrell, Gilliam, and Stinchcomb was held from April 4 to 14, 2005. The trial court entered a directed verdict of acquittal on Counts 12, 13, 14, and 15. The jury found Terrell guilty of Counts 2, 3, 5, 6, 8-11, and 17, but not guilty of Counts 1, 4, 7, and 18. The jury also found Gilliam guilty of Counts 5, 6, and 8- 11 and Stinchcomb guilty of Counts 5, 6, 8-11, and one count of simple battery as a lesser included offense of Count 13; their convictions are not at issue in to a new trial based on the inordinate delay of his appeal, the State\u2019s"], "id": "7318db19-0466-4e83-966d-7999bc8cae69", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Navarro was fifteen years old when he was charged with murder and two counts of . He was at a party. When the party got too large, the host told a group of people, including Navarro, to leave because he did not know them. An altercation ensued during which three people were stabbed, including the host, who died at the scene. Navarro fled in a car with his friends and returned to his home later that night. The next morning, detectives showed up at Navarro's home after they were told that he may have stabbed the people at the party. Navarro was eventually taken into custody."], "id": "bf4f9d50-3681-4a36-bc59-42b45c844b4d", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We determine the basis of a jury's verdict for Dunn purposes by applying our variance law, as Hernandez alludes to in his brief. In line with that jurisprudence, and as applied to Dunn , a non-statutory allegation that does not describe a unit of prosecution does not constitute a basis for the jury's verdict because it is not part of the legal or factual theory submitted to the jury, even if it is included in the jury charge. The State's legal theory was that Hernandez committed with a deadly weapon. The State's factual theory was that Hernandez exhibited or used water as a deadly weapon while he caused Molien bodily injury, and the evidence *330supported that theory. The State was not bound to prove how Hernandez assaulted Molien or how he exhibited or used water as a deadly weapon as part of its factual theory. There might be a Dunn problem if, for example, the State had alleged that Hernandez caused a specific bodily injury, and the jury convicted him on that basis, but an appellate court revised the basis of that conviction because, while there was insufficient evidence to support the pled injury, there was sufficient evidence of another injury to support the conviction. This is because the allegation would be a non-statutory allegation that describes a unit of prosecution for aggravated assault, and in that scenario, Hernandez's conviction would have been sustained based on a factual theory not alleged in the indictment. Similarly, if Hernandez had been indicted for aggravated assault with a deadly weapon, and the jury convicted him of that offense, but the evidence showed only that he caused the victim serious bodily injury, not that he used a deadly weapon, an appellate court would err in upholding the conviction based on the serious bodily injury because that \"legal theory\" was not presented to the jury."], "id": "cc8e28cd-25d4-45ae-a52d-a9c209ea0399", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["THE COURT: Back on the record. Mr. Reyes, we have been off the record, and the Court has attempted to explain to you what an is, that if there is an allegation of serious bodily injury, that makes the assault aggravated. Now, the State has stricken the language concerning a deadly weapon. THE DEFENDANT: Yes. THE COURT: But because you have a prior felony conviction, that elevates your offense to a first-degree punishment range of from 5 years to 99 years or life imprisonment. THE DEFENDANT: Yes. THE COURT: Knowing that, would you like to continue with this open plea today? THE DEFENDANT: Okay. Yes. The court then heard testimony from Rene Caso (the victim), Claudia Rodas (the fianc\u00e9 of Mr. Caso), and Julia Castellanos (Rene Caso's mother). The trial court also took testimony from Appellant. After argument of counsel, the trial court assessed a forty year prison sentence and a $5,000.00 fine."], "id": "4031a9dd-cb5f-4c11-b2e0-2515b590b6bf", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Examining the elements and descriptive averments in the charged offense of as compared to the elements of deadly conduct, we observe at the outset that the offenses employ different terminology. Whereas the charged offense requires proof that appellant threatened another with \"imminent bodily injury\" while using or exhibiting a motor vehicle as a deadly weapon, the offense of deadly conduct requires proof that the actor engaged in conduct that placed another in \"imminent danger of serious bodily injury.\" The State maintains that these differences in terminology show that deadly conduct is not, as a matter of law, a lesser-included offense of aggravated assault as charged, but appellant argues that the elements are functionally equivalent because the proof required to establish aggravated assault as alleged here necessarily includes all the proof necessary to establish the elements of deadly conduct. To resolve this dispute, we next turn to this Court's holding in Bell ."], "id": "0a74303f-c80c-40a1-85db-c94c35661ec3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*868State v. Allen , 346 S.W.3d 713, 716 (Tex. App.-Austin 2011, pet. ref'd) ; see also Ex parte Smith , 185 S.W.3d 887, 889, 893 (Tex. Crim. App. 2006) (noting indictment for that did not mention more specific crime of hazing was \"valid on its face\"). Likewise, the Court of Criminal Appeals has held that when the charging instrument was unobjectionable on its face, it was only after the State's evidence disclosed the statutory provisions purportedly at issue that the basis for an in pari materia challenge became manifest. See Azeez, 248 S.W.3d at 194."], "id": "05318434-4646-44f1-9a7a-03af2736bf40", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Reynolds appealed the judgment at issue here, which reflected his convictions for and kidnapping and imposed an aggregate sentence of life imprisonment. This court affirmed. Reynolds v. State , 2016 Ark. 214, 492 S.W.3d 491. The mandate issued on June 7, 2016, and under Rule 37.2(c)(ii), Reynolds's Rule 37.1 petition had to be filed within sixty days of that date. Jackson v. State , 2018 Ark. 209, 549 S.W.3d 346. The petition was marked as filed on November 28, 2016, or 143 days after the mandate issued. Reynolds's petition included an affidavit that stated he was incarcerated and identified the unit *871where he was incarcerated; stated that he was proceeding pro se; and indicated that the petition had been placed in the unit's legal-mail system on July 3, 2016, with first-class postage prepaid and addressed to the circuit clerk for filing. July 3, 2016, was twenty-six days after the mandate issued and well within the sixty-day limit in Rule 37.2(c)(ii)."], "id": "1f68bb41-3346-4aa2-9c72-d72be69d65ab", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In response to the terrorist attacks of September 11, 2001, effective December 21, 2005, the New York State Legislature, in an extraordinary session, enacted the Crimes Against Police Act.2 The act (L 2005, ch 765, as amended) supplemented the Penal and Criminal Procedure Laws by establishing the crimes *427of menacing of a police officer (Penal Law \u00a7 120.18), upon a police officer (Penal Law \u00a7 120.11), aggravated criminally negligent homicide (Penal Law \u00a7 125.11), aggravated manslaughter in the first degree (Penal Law \u00a7 125.22), aggravated manslaughter in the second degree (Penal Law \u00a7 125.21) and aggravated murder (Penal Law \u00a7 125.26), and increased the minimum sentences of imprisonment for certain offenses involving the assault of police officers."], "id": "e4067a21-3b0c-498a-a2e5-4d94b23661b7", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["4 The State also argues that Miller\u2019s attorney reasonably may have elected to purse an all-or-nothing strategy by arguing self-defense rather than seeking an aggravated-assault instruction. The State reasons that if Miller had been successful on his self-defense claim, he would have been acquitted rather than potentially convicted of . However, Miller is not arguing that his attorney should have pursued aggravated assault rather than self-defense. Miller appears to argue that this is the unusual case where the evidence potentially supported both theories. If this were true, we would see no strategic reason to foregoing pursuing an aggravated-assault instruction. In such a case, the jury would have the option to find sudden passion or a fit of rage and serious provocation and to convict Miller of aggravated assault rather than felonious assault if it rejected self- defense. We see no potential downside to Miller in such a scenario. Here, however, Miller\u2019s testimony does not support a finding that he acted out of sudden passion or in a fit of rage. Therefore, there simply was no basis for an aggravated-assault instruction."], "id": "bae78325-8031-4b5d-86ac-30338ed87bed", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["[T]hat a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. For instance, depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA \u00a7 16-5-23, a misdemeanor; aggravated battery, OCGA \u00a7 16-5-24, a felony; simple assault, OCGA \u00a7 16-5-20, a misdemeanor; , OCGA \u00a7 16-5-21, a felony; and malice murder, OCGA \u00a7 16-5-1, a felony. In such a circumstance, a defendant may be prosecuted for more than one crime. OCGA \u00a7 16-1-7 (a). However, the injustice that must be avoided is sentencing the defendant for more than one crime following his conviction of multiple crimes based upon the same act. When a defendant is so prosecuted, the principle of factual merger operates to avoid the injustice."], "id": "a7daa038-386d-43a5-9461-7970fe029532", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When the trial court charged the jury on the issue of self-defense in the abstract, it thereby declared that issue to be law applicable to the case. The jury was informed under what circumstances it should convict Mendez of . Self-defense being law applicable to the case meant that the trial court should also have informed the jury under what circumstances it should acquit him of that offense. We affirm the court of appeals' judgment."], "id": "8dc088d0-17a0-4f45-a9e9-12f1ad6402d5", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The charged corporal injury and counts arose from events in August 2014. The police arrived at Amezcua's residence in response to a domestic violence call. Amezcua, who was crying, told the responding officer that she and defendant had argued after she refused to let him use her cell phone. He pushed her onto the couch, got on top of her, and grabbed her throat with his hand. Defendant choked her for a minute. She could not breathe, and she lost consciousness for a few seconds. When she regained consciousness, he told her not to say anything. She pushed him off her and tried to run away, and after a struggle with defendant, she escaped his grasp, left the residence, and called 911. She asked the officer to obtain a protective order for her, and he did so. Amezcua's neck was red and had a small abrasion, and she reported pain in her neck."], "id": "81c0c8b8-5615-4055-b065-fa81e50a48ec", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Details about the and robbery that resulted in his imprisonment are not in the record; however, it appears that Curtis has changed little while in prison. Curtis testified that while incarcerated, he has incurred several infractions including insolence to staff members, three refusals to obey orders, refusal of assignments, and two unexcused absences. Also, Curtis continued to fail to support or communicate with B.H. It is with this extensive background that Donna Posey, his mother, testified that it was her hope that when Curtis gets out of prison Curtis can step up to the plate and step into B.H.'s life and be a good person."], "id": "4a235e14-beac-4adf-bee6-8006e193e31b", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*419The defendant was first charged with the crimes of burglary in the first degree, assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and was released on bail. While these matters were pending on the Trial Calendar, the defendant was allegedly involved in a shoot-out with police officers. As a consequence of this incident, the defendant is now charged with the crimes of attempted upon a police officer, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree."], "id": "25fa99f4-8195-4d70-8af2-248af4ed9af5", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court of appeals rejected the State's argument that assault is a continuous offense, instead holding that the State was bound to prove that Hernandez exhibited or used water as a deadly weapon either before or while he struck her on her head or body with his hands. Hernandez v. State , No. 06-15-00167-CR, 2016 WL 4256938, at *1 (Tex. App.-Texarkana Aug. 5, 2016), rev'd , 556 S.W.3d 308, 2017 WL 4675371 (Tex. Crim. App. Oct. 18, 2017). Finding that the evidence did not support those allegations, it further held that Hernandez's conviction for with a deadly weapon could not stand. Id. According to the court of appeals, because the evidence was insufficient, the proper remedy was to reform Hernandez's conviction for aggravated assault to reflect a conviction for simple assault and to remand the case to the trial court for a new punishment hearing. Id. at *9."], "id": "5d2d0633-316d-4a98-91e9-81b2d7a0faa0", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u00b66 The State charged Jones with one count of attempted murder, a class 2 felony and dangerous crime against children (Count 1), one count of attempted murder, a class 2 felony (Count 2), one count of kidnapping, a class 2 felony (Count 3), three counts of kidnapping, class 2 felonies and dangerous crimes against children (Counts 4 through 6), three counts of sexual assault, class 2 felonies (Counts 7 through 9), three counts of , class 4 felonies (Counts 10 through 12), and three counts of aggravated assault, class 6 felonies (Counts 13 through 15). The State alleged that all counts constituted domestic violence offenses, and listed Mary and all three children as victims."], "id": "f3b73b78-17f7-493a-a8b0-23bfda9632a0", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["the video titled \u201cquickie with the wife\u201d shows SPC [V.G.\u2019s] wedding ring on her left ring finger. 20. The Accused posted the videos online \u201cas re- venge\u201d because he believed SPC [V.G.] might be ro- mantically involved with members of his unit. The Accused told [agents of the Criminal Investigation Command] that he posted the videos \u201croughly be- tween 30 April and 5 May 2018.\u201d The Accused\u2019s con- duct had a reasonably direct and palpable connec- tion to a military mission or military environment. In conjunction with the Accused\u2019s profile name, \u201ccbhiser02\u201d other Soldiers could have reviewed the video and known SPC [V.G.] was depicted, particu- larly as her distinctive, military-style bun was visi- ble. At the time of the offenses, SPC [V.G.\u2019s] legal [last] name was . . . Hiser. She was, and is, an active duty Soldier. SPC [V.G.] and PFC Hiser were well- known as a dual-military couple within the Fort Drum military environment. Based on the entirety of the stipulation of fact and Appel- lant\u2019s answers during the providence inquiry, a military judge sitting as a general court-martial found Appellant guilty of the three specifications of wrongfully broadcasting intimate visual images quoted above, in violation of Article 117a, UCMJ, 10 U.S.C. \u00a7 917a, and also of one specification of dis- respecting a superior commissioned officer, one specification of , one specification of assault consum- mated by a battery, and one specification of communicating a threat, in violation of Articles 89, 128, and 134, UCMJ, 10 U.S.C. \u00a7\u00a7 889, 928, 934 (2018). The military judge sentenced Appellant to a reduction to the grade of E-1, confinement for thirty-nine months, and a dishonorable discharge from the service. In accordance with the terms of the pretrial agree- ment, the convening authority approved only so much of the adjudged sentence as provided for a reduction to the grade of E-1, confinement for three years, and a dishonorable dis- charge. The ACCA affirmed the findings of guilty and sen- tence. United States v. Hiser, No. ARMY 20190325 (A. Ct. Crim. App. Feb. 10, 2021). We granted review of the following question: \u201cWhether the military judge abused her discretion by accepting Appellant\u2019s guilty plea to a violation of Article 117a, UCMJ, when Appel- lant posted intimate videos of a person under circumstances"], "id": "c270319d-423c-48c8-ab4f-0cd1a5773930", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On February 27, 2014, Appellant filed an amended motion requesting the expunction of his arrest records of the offense pursuant to Article 55.01 of the Texas Code of Criminal Procedure. In his motion, Appellant argued that he was entitled to the mandatory expunction under Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure despite the fact that he was still facing prosecution for a retaliation offense related to the acquitted aggravated assault offense."], "id": "5a5bef74-4db1-4a8a-92d8-70a55b792b1f", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant was subject to a maximum fine of $10,000 for his conviction for and a maximum fine of $2500 for his conviction for domestic assault. See Tenn. Code Ann. \u00a7\u00a7 40-35-111(b)(3), (e)(1). In the instant matter, the jury imposed fines of $1000 and $1500, respectively. When a criminal offense is punishable by a fine in excess of $50.00, the jury is responsible for setting a fine, if any, within the ranges provided by the legislature. Tenn. Code Ann. \u00a7 40-35-301(b). \u201cWhen imposing sentence, after the sentencing hearing, the [trial] court shall impose a fine, if any, not to exceed the fine fixed by the jury.\u201d Id. However, \u201cthe trial court may not simply impose the fine as fixed by the jury.\u201d State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997). Rather, the trial court\u2019s imposition of a fine, within the limits set by the jury, must be based upon the factors provided in the statutory sentencing act, including \u201cthe defendant\u2019s ability to pay that fine, and other facts of judgment involved in setting the total sentence.\u201d State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002) (citation and quotation omitted). Although the defendant\u2019s ability to pay should be considered, it is not a controlling factor. State v. Butler, 108 S.W.3d 845, 854 (Tenn. 2003). The trial court \u201cmust also consider other factors, including prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, overall sentence.\u201d Taylor, 70 S.W.3d at 723 (citing Blevins, 968 S.W.2d at 895). \u201cThe seriousness of a conviction"], "id": "ec748817-9b00-4de5-900b-64372e1cee31", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The juvenile court found that appellant's \"record and previous history\" weighed in support of discretionary transfer. The court found that appellant had a \"lengthy history\" of referrals to the Harris County Juvenile Probation Department, which started when he was 12 years old. In support of its findings, the court described the circumstances leading to five prior referrals to the Juvenile Probation Department, including an assault on his mother, criminal mischief, assault and harassment of a public servant, and burglary of a habitation. The order also noted that appellant had been placed in the Harris County Youth Village, the Burnett-Bayland Rehabilitation Center, and the Harris County Leadership Academy. The court found that after the referral for burglary of a habitation, appellant violated his probation, and he was transferred to the Texas Juvenile Justice Department. It noted that appellant was released in November 2016, and he was on parole when he allegedly committed capital murder and ."], "id": "f438bf4d-8d78-43d2-9cff-40973e1e8f06", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"[I]n Texas, as in many other jurisdictions, a defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as contact) that is demonstrably and inextricably part of that single sexual assault.\" Aekins , 447 S.W.3d at 281 (citing Castaneda v. State , 315 Ga.App. 723, 727 S.E.2d 543, 544-45 (2012) (explaining child molestation *847involving touching a child's vagina by defendant's hand merged into by penetration with finger) ); see also Patterson , 152 S.W.3d at 92. In other words, \"[w]here the evidence shows the defendant committed only one act that could be used to prove both a greater inclusive and a lesser included offense, the defendant cannot be convicted of both offenses.\" Martinez , 524 S.W.3d at 347. \"Indecency with a child by touching the child's genitals can be a lesser-included offense of aggravated sexual assault of a child by penetrating the child's sexual organ if the same act is used to prove both the touching and the penetration.\" Id. Because the offenses are considered the same under the Blockburger Test, prosecution for such is barred by double jeopardy. Aekins , 447 S.W.3d at 281 ; accord Martinez , 524 S.W.3d at 347. cf. Banks v. State , 494 S.W.3d 883, 890-92, 898-99 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (examining evidence of break in events, including evidence that complainant left between indecency and sexual assault, creating different acts at different times); Loving v. State , 401 S.W.3d 642, 649 (Tex. Crim. App. 2013) (concluding exposure of defendant's penis to masturbate, indecency by exposure, was a separate and distinct act from indecency by contact, causing the victim to touch his genitals)."], "id": "2d52eefd-c0b8-4c2f-b97a-1586b0c52e65", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Defendant testified that he understood his constitutional right to remain silent. The Defendant said that he was satisfied with trial counsel and that counsel reviewed discovery materials with the Defendant and discussed the strengths and weaknesses of the State\u2019s case. The Defendant said that counsel explained the defenses and that he understood that by pleading guilty he was waiving any factual or legal issues related to his case. The Defendant said counsel advised him that he could proceed to a jury trial if he wished. The Defendant said that counsel advised him of his potential punishment range and that he understood he faced the possibility of a much longer sentence if he proceeded to a jury trial. The court asked the Defendant if he knew that he faced a ten-year sentence on the charge alone, and the Defendant replied, \u201cThat convinced me, sir.\u201d The Defendant said that no one threatened or forced him to plead guilty, and he acknowledged that pleading guilty was in his best interest and that he desired to do so. The Defendant said that he was not under the influence of alcohol, drugs, or prescription medication and that he had never been diagnosed or treated for any mental disease or defect. He agreed he was pleading guilty knowingly, freely, and voluntarily. He acknowledged that he had pleaded guilty previously and that those experiences helped him understand the constitutional rights he waived by pleading guilty. The court explained the process of a jury trial, including the Defendant\u2019s presumption of innocence and the State\u2019s burden of proving guilt beyond a reasonable doubt. The Defendant said that he knew he had an \u201cabsolute right\u201d to proceed to a jury trial. The Defendant said that he had reviewed the waiver of rights packet with counsel and that he understood all of the information. The"], "id": "6639ceb8-c612-4a78-8bca-3aa09887b8d6", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["At the hearing, the court questioned counsel whether appellant's admission to a probation violation and receiving an ESS sentence was a matter within the scope of section 1473.7. While appellant purportedly indicated he would have gone to trial had he known the immigration consequences of modifying his probation after his arrest in case No. SC194804, the trial court noted as a result of the probation modification, appellant avoided the consequences of a possible guilty finding in the more serious *879drug offense, which was dismissed under section 1385. Also, appellant was told by the same court, when he pleaded to the , the plea potentially would have immigration consequences. He still chose to proceed. The court noted the assault was possibly gang-related, which heightened its seriousness. Because the crime pleaded to was a strike, appellant may have been probation ineligible, yet he received probation. As a juvenile he had a prior assault and was on probation for receiving stolen property at the time of the assault plea. The temporal space between the section 496 probation and the new strike felony was but five months. Afterwards, appellant became a fugitive and had to be arrested on a bench warrant."], "id": "123e37a9-f888-4fce-b6dc-efbb43083050", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We conclude that deadly conduct, as a matter of law, is a lesser-included offense of the charged offense of by threat where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon. Because the court of appeals held otherwise, we reverse the judgment of the court of appeals and remand this case to that court for it to conduct the second step of the two-step lesser-included offense analysis."], "id": "40e4d121-eb83-4c04-a4e9-8fe1917e4d2a", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Here, the court of appeals reasoned that, because is not a continuing offense, the on-going incident split into two discrete assaultive episodes when Appellant left the room to retrieve the water. The court of appeals believed it was the first assaultive episode, before Appellant left the bedroom, that was the assault pled in the indictment because it was during that first assault that Appellant struck Molien with his hands. Focusing thus on the initial assaultive conduct, the court of appeals concluded that, in order to justify a deadly weapon finding, a fact-finder would have to find the deadly weapon had been used or exhibited even as Appellant was striking Molien with his hands. Because there was no evidence that appellant used water at the same time that he was striking her with his hands, the court of appeals concluded, the evidence failed to show that the deadly weapon alleged was actually used \"during the commission of the offense,\" as required by Section 22.02(a)(2)."], "id": "2fcc7712-9b97-49bf-885d-1a69f0f102c2", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I have found only one case where the everyday item held to have been used as a deadly weapon never made contact with the victim , and that case is easily distinguishable. In In re Jose R. (1982) 137 Cal.App.3d 269, 186 Cal.Rptr. 898, the defendant stuck a metal pin inside an apple and gave it to his teacher, but fortunately another student warned the teacher before she could eat it. ( Id. at p. 274, 186 Cal.Rptr. 898.) At trial, a medical expert testified about the severe injuries and infections that could have resulted from ingesting that particular pin. She also opined ingestion could have been fatal. ( Id. at p. 276, 186 Cal.Rptr. 898.) Based on that evidence, the court held the defendant had used the pin as a deadly weapon because, had the teacher ingested it as planned, she would have suffered grave injury. ( Ibid. ) Here, in contrast, the record *941contains no testimony about what could have happened had Koback's swing landed. Unlike ingesting a metal pin, which is sharp enough to draw blood upon slight contact, the type of the injury, if any, that would result from being hit in the midsection with a key like the one Koback used depends entirely on the force behind the swing."], "id": "58569ef9-718b-4591-bb9d-c7a3340879da", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The real party in interest, Angelica Hernandez, is charged by indictment in cause number 20130D02077 with three counts of of a child and one count of indecency with a child. The indictment alleged that Hernandez, acting in concert with Osvaldo Araiza, provided alcohol to her sixteen-year-old biological daughter, B.P., and to another child, and Araiza penetrated B.P.'s sexual organ with his finger and penis, contacted her sexual organ with his mouth, and touched her breast."], "id": "675e6fc3-c2cd-4097-9970-6d95cc494ad4", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In two counts of a three-count indictment, Appellant, Teodoro Hernandez, was charged with with a deadly weapon and family-violence assault by strangulation. The aggravated-assault-with-a-deadly-weapon count alleged that Hernandez struck the victim on her head or body with his hands while he exhibited or used water as a deadly weapon. The evidence showed that Hernandez struck the victim on her head or body and that he strangled her, but it showed that he poured water down her throat while he was strangling her, not while he was striking her. The court of appeals held that the evidence was insufficient to sustain the aggravated-assault-with-a-deadly-weapon conviction, but on original submission, this Court reversed the judgment of the court of appeals and ordered Hernandez's aggravated-assault-with-a-deadly-weapon conviction reinstated."], "id": "1ac5f866-7520-4408-8445-ddd088c33d3a", "sub_label": "US_Terminology"} {"obj_label": "Aggravated Assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["MY BELIEF IS BASED UPON THE FOLLOWING FACTS: D. Arnold (Affiant) was assigned to investigate and reviewed offense report #161435712D written by Officer A. Deleon. Affiant was dispatched to 10500 Northwest Freeway, Houston, Harris County, Texas. Affiant learned from Officer A. Deleon that Cindy Davis (Witness) reported that on December 24, 2012 she observed two men (Complainants) lying injured on the side of the roadway with their hands tied and mouths duct taped. Affiant learned from HPD Officer A. Deleon that Complainants had apparent gunshot wounds to their bodies and had been transported to Ben Taub Hospital for treatment. Affiant spoke to Diane Deyoung who witnessed Complainants coming out of a white van license plate AV5-0784 before the [sic] continued down the road without stopping. Affiant learned from hospital personnel that Moses Glekiah (Complainant Glekiah) was recovering from gunshot wounds and Richard Merchant (Complainant Merchant) was in critical condition for his gunshot injuries. Affiant spoke with Moses Glekiah (Complainant Glekiah) and learned he and his friend Richard Merchant (Complainant Merchant) had agreed to engage in [sic] business transaction at 2501-C #2 Central Parkway Houston, Harris County, Texas with a male known as \"Jerry.\" When Complainants arrived on December 24, 2012 at the business that they describe as an autoshop, they are grabbed by several males and held against their will. Complainant Glekiah reported that Suspects also stole their cash money $400 that Complainants had in their possession, wallets, cell phone and a suitcase/briefcase container belonging to Complainant Merchant. Suspect 1 poured gasoline on Complainants and held lighter near Complainants threatening to set them on fire. Suspect 1 then called two other Suspects who put Complainants in truck at gunpoint. Complainant Glekiah says that he felt in fear for their lives. Complainants jumped out of the van because they believed they were going to be killed. As Complainant [sic] leaped out of the vehicle they were shot by Suspects. Complainant Glekiah directed Affiant to autoshop where this Aggravated Assault and Robbery occurred at 2501-C *227#2 Central Parkway Houston, Harris County, Texas. Affiant researched the location and found the owner to be Charese Foreman. Affiant review computer databases and discovered that Charese Foreman is married to Nathan Ray Foreman. Affiant reviewed criminal history of Nathan Ray Foreman and found that he had been charged with autotheft, possession of prohibited weapon and delivery of cocaine. Affiant showed Complainant Glekiah a known photograph of Nathan Ray Foreman along with five other photos of similar looking males. Complainant Glekiah positively identified Nathan Ray Foreman as Suspect 1 who participated in punching Complainants, told other suspects what to do, poured the gasoline on Complainants and contacted 2 suspects to drive Complainant away from business. Affiant knows that gasoline and lighter are deadly weapons that can kill a person. Affiant believes that Complainants and Suspects DNA will be inside the Target Location along with property belonging to Complainant such as money, suitcase/briefcase, wallets, cell phone, identification cards. Also instrumentalities of the crime such as white van that transported Complainants, guns used to shoot Complainants, zip ties used to tie complainants may also be inside Target Location. The trial court denied appellant's motion to suppress."], "id": "3e34a899-3d03-486a-88dd-2a712d2a7463", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["But this analysis fails to consider all of the evidence. When focusing properly on all of the evidence presented at trial that might have supported the guilty verdict, we must also consider the evidence demonstrating the second assaultive event-during which Appellant actually used water. With a proper focus on all of the evidence that might have supported a guilty verdict, it becomes clear that the variance between the pleading and proof in this case is immaterial. If sufficiency of the evidence is measured against the second rather than the first assaultive event, then there does indeed appear to be a variance, but it is a variance that stems from the allegation in the indictment that Appellant struck Molien with his hands. The language of the count alleges \"striking with the hands,\" but the testimony at trial showed that when Appellant returned to the bedroom with the water, he used one hand to choke Molien while simultaneously using the other to pour the water down *316her throat, and the evidence does not show that he \"struck\" her at that point in time."], "id": "fff17225-e88a-416a-9d1a-5f42f85a0faf", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Viewing the evidence in the light most favorable to the verdict, sufficient evidence allowed a rational jury to find, beyond a reasonable doubt, that Mitchell intended to threaten or knowingly threatened Deputy Shike with imminent bodily injury. Thus, the evidence is legally and factually sufficient to support Mitchell's conviction. See Carr v. State , No. 14-09-00322-CR, 2010 WL 2835663, at *5 (Tex. App.-Houston [14th Dist.] July 20, 2010, pet. ref'd) (mem. op., not designated for publication) (sufficient evidence supported intent for of peace officer where appellant pointed gun in officer's direction and gun was one foot from officer's face); Barnes v. State , Nos. 14-05-00144-CR, 14-05-00145-CR, 2006 WL 2548186, at *7-8 (Tex. App.-Houston [14th Dist.] Sept. 5, 2006, pet. ref'd) (mem. op., not designated for publication) (evidence that appellant wrestled for officer's gun, retrieved it, and shot it was sufficient to support requisite intent for conviction for aggravated assault of police officer, even though some evidence existed that appellant harbored suicidal thoughts)."], "id": "eef9d1b6-d569-4b1e-82bd-ca189c5ca3dc", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Here, the two offenses at issue--the acquitted offense and the still-pending retaliation offense--clearly fit within Section 3.01 of the Texas Penal Code's definition of \"criminal episode.\" The record reflects that the criminal episode began with the aggravated assault offense and shortly thereafter Appellant committed the retaliation offense in an attempt to intimidate the witnesses involved in the aggravated assault offense. The trial court properly recognized that proving the pending retaliation offense necessarily required putting on evidence of the acquitted aggravated assault offense. We agree with the trial court that the retaliation offense did not constitute a brand new fact pattern; but, rather, that it was a continuation of the same fact pattern."], "id": "23aa8837-1ad2-483f-aa9b-c711b5338c70", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The majority pays lip service to Aguilar's force-used test by citing it in their analysis, but they don't actually apply it. Instead, they rely on an opinion involving the offense of exhibiting a deadly weapon to evade arrest in violation of Penal Code section 417.8. ( People v. Simons (1996) 42 Cal.App.4th 1100, 50 Cal.Rptr.2d 351 ( Simons ).) But because that crime does not \"turn[ ] on the nature of the force used\" ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ) like an as-used does, it provides no support for their holding. Aguilar is binding California Supreme Court precedent we are required to follow. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456, 20 Cal.Rptr. 321, 369 P.2d 937.) The majority cannot escape this duty by applying a different test from a nonbinding lower court opinion that predates Aguilar ."], "id": "69bf2f2c-828c-41c5-a2bd-37bd3d11837b", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. .... (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. .... (ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to: (3)(A) Have subjected any juvenile to aggravated circumstances. (B) \"Aggravated circumstances\" means: (i) ... [A] determination has been made by a judge that there is little likelihood that services to the family *599will result in successful reunification. At the termination hearing, it was established that Steven had been incarcerated for a total of nine or ten months during the fifteen months since emergency removal of the children. Most recently, Steven was in prison between December 14, 2016, and May 23, 2017, for violating the terms of his probation related to a 2012 conviction for committed against Kathy. For the probation violations, Steven was sentenced to three years in prison followed by a three-year suspended imposition of sentence. He was paroled on May 23, 2017. After his release, Steven moved into his father's house where he continued to reside as of the termination hearing held on July 10, 2017."], "id": "de71cf3a-b695-4d84-8db9-76012786f82d", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The added likelihood inquiry for everyday objects makes sense. While \"all aggravated assaults are ultimately determined based on the force likely *337to be applied against a person\" ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204, italics added), we infer or assume a likelihood of great bodily injury in the case of inherently dangerous weapons because they are specifically designed to inflict such injury. In other words, the mere use of a deadly weapon while attempting to injure someone is sufficient to constitute . The same is not true, however, for golf clubs, car keys, and other generally innocuous objects. For these, we must look to the specifics to determine whether the defendant's actions were culpable enough to warrant the harsher punishment aggravated assault carries. That additional, factual analysis is clear cut: Was the force with which the defendant used the object likely to produce death or great bodily injury? ( Ibid . )"], "id": "bf0dbdc7-45b6-4bec-937d-c9a2ffac552f", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mother\u2019s husband testified that he is retired from the military and works as an independent contractor, taking occasional jobs facilitating military trainings. He said that he has been diagnosed with Post-Traumatic Stress Disorder (\u201cPTSD\u201d), for which it is unclear if he has received treatment, and takes prescription medications for certain medical conditions, including tremors and chronic pain due to injuries from his military service. He answered affirmatively when asked if he and Mother stopped spanking the children \u201cafter Preston said something to his counselor at school and DCS came . . . out to [their] house.\u201d He acknowledged that he may have on occasion told the children that he would \u201cbeat [their] butt.\u201d He also explained that in 2017, he was charged with ,4 but the charge was ultimately dismissed and he has no criminal record. He said that he and Mother participated in marriage counseling to work through their issues. He further testified, inter alia, that he helps Blake and Preston with their schooling, working extensively with Blake."], "id": "2506e747-8497-4c82-a9dd-a7f5ae83dda8", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*367The law raises a presumption of an intent to kill, in a case where the means used by the assailant were such as, in all human probability) would have produced death ; and where had it ensued, such killing would have been murder. City Hall Rec. vol. 3, p. 73 But where an and battery was committed under such ciroumstances that had death ensued, it would have been murder on the part of the assailant; still, if it does not positively appear that any dangerous weapon was used, or that the means or manner employed in the commission of the offence, were such as were calculated to produce death, the jury are not bound to imp\u00fatelo the defendant an implied intent to kill. Ibid. \"*"], "id": "106bd10b-b927-4e83-8ee4-cb45d016403a", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*625At the hearing, defense counsel argued that Belden's performance was deficient in two ways. First, Beldan's bare advisement going through the Tahl form and stating that defendant could be deported was insufficient. Defendant pled guilty to an , which meant mandatory deportation. The evidence clearly showed Belden did not explain that pleading guilty to violating Health and Safety Code section 11378 meant certain deportation unless defendant could prove that he would be tortured in his home country. Moreover, Beldan failed to attempt to negotiate for a plea to a crime with less severe immigration consequences. In arguing the motion, defense counsel stated that if defendant \"doesn't get this conviction vacated, he's going to get deported. The immigration judge has told us as much. The only reason he's still here is because of the infamous backlog in the immigration courts.\""], "id": "d29dc8f5-97a1-40ad-8166-5a8ae1815325", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To determine \u201cwhether an offense is a crime of violence, \u2018we apply a categorical approach, looking to the elements of the offense to determine whether the conviction constitutes a crime of violence.\u2019\u201d United States v. Smith, 928 F.3d 714, 717 (8th Cir. 2019) (quoting United States v. Furqueron, 605 F.3d 612, 614 (8th Cir. 2010)). To qualify as a crime of violence under the force clause, the question is \u201cwhether a conviction necessarily had \u2018a physical-force element.\u2019\u201d United States v. Quigley, 943 F.3d 390, 394 (8th Cir. 2019) (quoting United States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018)). 2 Physical force is \u201cviolent force\u2014that is, force capable of causing physical pain or injury to another person.\u201d United States v. Parrow, 844 F.3d 801, 802 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). Lopez-Castillo\u2019s conviction had such a physical force element."], "id": "6e7acf53-316b-4806-bb9e-9ed526b25175", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force. .... Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Adrian Aaron Mendez, Jr., did cause the death of Jacob Castillo, as alleged, but you further find from the evidence, as viewed from the standpoint of the defendant at the time, that from the words or conduct, or both of Jacob Castillo it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jacob Castillo, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jacob Castillo's use or attempted use of unlawful deadly force, he stabbed Jacob Castillo, then you should acquit the defendant on the grounds of self-defense ....3 Mendez did not object to this charge. The jury acquitted Mendez of murder, but convicted him of the lesser-included offense of . Mendez was sentenced to seven years' imprisonment and assessed a $10,000 fine."], "id": "d0873a71-1da8-4aca-97f2-3daf1941fd1b", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant Sayantan Ghose appeals judgments of conviction for murder and with a deadly weapon. Appellant presents two identical issues in both appeals. First, he argues that the trial court erroneously omitted from the jury charge certain instructions limiting the right of a citizen to make an arrest, which appellant contends deprived him of the correct application of the self- defense statute. Because appellant concededly did not object to the jury charge on this basis, we hold the issue is waived. Second, appellant contends that legally insufficient evidence supports the jury\u2019s rejection of his self-defense theory. Concluding that the evidence is legally sufficient, we overrule this issue."], "id": "41e7c018-9adb-4cfe-b86c-c31574d65b4b", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["For several reasons, I would have avoided that approach. First, the evidence that Appellant's hands impeded Melanie's breathing is arguably slim. Although it is true that portions of Melanie's testimony could be interpreted as evidence that Appellant's hands were impeding her breathing, the greater weight of the evidence supports the finding that the impediment to her breathing was caused by the water being poured down her throat, not by pressure from Appellant's hands. Second, the jury acquitted Appellant of the choking/strangulation charge in Count 3. Although we must ignore inconsistencies in the jury's verdicts, the fact that Appellant was found not guilty of the choking assault as alleged in Count 3 is troublesome. That acquittal undermines the strength of an conviction if we say that the underlying assault supporting that conviction is the same act of choking for which Appellant was acquitted. Finally, I disagree with the majority's conclusion that \"exactly how Appellant used his hands to cause the bodily injury is inconsequential to the legal sufficiency analysis.\" A criminal defendant has the right to fair notice of the specific charged offense in order to be able to prepare a defense.19 It is bad precedent to uphold Appellant's conviction for Count 2 on the basis that it is supported by the same evidence that was used to support the charge Appellant was acquitted of. If, in evaluating sufficiency, we must view the verdict under Count 2 independently of the other verdicts, then shouldn't we view the evidence supporting the offense charged in Count 2 independently of the evidence supporting the offense charged in Count 3-at least under the unusual circumstances of this case?"], "id": "5120ac45-48ae-4ddf-9b20-06a93d77d742", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["At a minimum, after reviewing the record, we conclude that defendant in this case was a direct or active aider and abettor. He actually delivered serious blows with his fists and feet to the victim at the urging of Roberts, and in one statement expressed fear that he may have killed the victim. His hands were swollen when he arrived in Imperial Beach, consistent with a beating by fists. Even if the jury believed defendant's testimony-that after his own beating of the victim he left the scene when Roberts began beating the victim with a deadly or dangerous weapon-the killing would have been the result of defendant's committed while directly aiding or abetting Roberts' assault with a deadly weapon."], "id": "9a5480aa-d314-4de7-94c2-838037502d55", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We provided an example of an immaterial variance in Johnson . There we gave a hypothetical involving a prosecution for the result-oriented offense of murder in which the indictment alleges death by stabbing. Id. at 296. If the proof at trial shows that the victim was instead bludgeoned to death, we said, this would not constitute a material variance because the manner in which the murder was perpetrated does not affect how many murder offenses occurred. Id. at 297. Because the different means of causing death do not result in separate offenses, the variance in pleading and proof would not be material and would not inform the hypothetically correct jury charge or implicate legal sufficiency. Id. at 298. Similarly, we reasoned, in a prosecution for under Section 22.02(a)(1) of the Penal Code, the gravamen of the offense is causing serious bodily injury. Id. at 298 (citing Landrian , 268 S.W.3d at 537 ). How that serious bodily injury was caused does not \"help define the allowable unit of prosecution for this type of aggravated assault offense, so the variance at issue [in Johnson ] cannot be material.\" Id."], "id": "fd7facb1-0cec-46f6-a5a5-195bcd9aca42", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The record demonstrates that the court considered the totality of the circumstances and found that defendant did not deserve relief from his original sentence, only after the court balanced defendant\u2019s extensive criminal history, defendant\u2019s denial of any responsibility at trial and sentencing, and the circumstances of the underlying offenses, against the evidence of defendant\u2019s postincarceration rehabilitation. Defendant\u2019s extensive criminal record in New York and New Jersey, including five felonies, is replete with crimes of violence that were very serious, regardless of whether they would technically qualify as New York violent felonies. Among other crimes, defendant has been convicted of possession of a loaded handgun and ammunition, with a deadly weapon, and home invasion robbery and burglary of another drug dealer\u2019s home, during which defendant covered a 12-year-old boy\u2019s head in a pillow case. This last offense was committed after defendant absconded after being released on bail on drug charges in New York. Defendant also has prior convictions for possession of large quantities of drugs, including near a school, and drug selling paraphernalia. The instant crimes not only involved a large quantity of drugs, but also a reckless high-speed car chase that resulted in injuries to innocent persons, property damage, and the complete sealing off of the West Side Highway for hours."], "id": "cf4ec245-de6d-4be6-8f7e-f8209d99a505", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The State petitioned this Court to review the court of appeals' conclusion that, by failing to apply the law of self-defense to the lesser-included offense of , the trial court committed jury-charge error. We do not understand the State to object to the court of appeals's harm analysis, but only its ruling that the trial court \"erred\" at all.12"], "id": "dd40339d-5027-4be1-b48c-c82825d994dc", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The district court denied McIntyre's motion, pointing out that the Kansas Supreme Court overruled Murdock I in Keel. The district court found Keel established that pre- KSGA convictions were to be classified based on the comparable Kansas offense in effect at the time of the current crime of conviction. Under this framework, the district court reasoned that the Missouri robbery conviction was a person felony. The district court also reasoned that McIntyre's prior Missouri conviction for exhibiting a dangerous weapon was comparable to the Kansas crime of , a person felony. This court affirmed the district court's decision. State v. McIntyre, No. 116,004, 2016 WL 7324508, at *1 (Kan. App. 2016) (unpublished opinion) (McIntyre II)."], "id": "c25f0f0f-940b-4914-9884-bed425858c0c", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A Madison County grand jury indicted the defendant, Johnny Jackson, Jr., for aggravated kidnapping, by strangulation, and domestic assault. After a trial, a jury convicted the defendant of aggravated assault by strangulation and domestic assault and acquitted the defendant on the charge of aggravated kidnapping. Following a sentencing hearing, the trial court imposed concurrent terms of fifteen years for aggravated assault and eleven months and twenty-nine days for domestic assault to be served in the Tennessee Department of Correction. The trial court also affirmed the total effective fine of $2500 imposed by the jury. On appeal, the defendant contends the trial court erroneously relied on an inapplicable enhancement factor and failed to find any mitigation, and therefore, erred in sentencing the defendant to the maximum term of fifteen years. Additionally, the defendant claims the trial court erred in affirming the fine imposed by the jury without conducting the proper analysis and review. After reviewing the record and considering the applicable law, we conclude the trial abused its discretion in applying one enhancement factor, failing to find any mitigation despite proof of the same in the record, and failing to conduct the proper analysis of the fine imposed by the jury. Therefore, we modify the defendant\u2019s sentence for aggravated assault to thirteen years and remand the matter to the trial court for the limited purpose of properly reviewing the jury imposed fine."], "id": "bffe14d5-c854-4fea-8517-83bbdd0c1f49", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*344A jury found appellant, Claudia Kristine Esquivel, guilty of the offense of murder1 and assessed her punishment at confinement for twenty-seven years and a fine of $10,000. In her second issue on appeal, she argues that the trial court, in its charge, erred in submitting to the jury the felony-murder application paragraph because it authorized her conviction for murder based on a spurious allegation of , which, as alleged, constituted \"a cleverly disguised form of manslaughter\" and is \"a lesser-included offense of manslaughter by any other name.\" The panel reasoned that \"[i]ntentional and knowing aggravated assault is not includable in manslaughter and is not a lesser-included offense of manslaughter.\" And, relying on the Texas Court of Criminal Appeals' opinion in Lawson v. State , 64 S.W.3d 396 (Tex. Crim. App. 2001), it concluded that the trial court's jury charge did not contain an invalid legal theory of felony murder."], "id": "818f63c7-5787-446f-9e41-89622ee707d3", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I. Flores, a native and citizen of the Philippines, is a lawful per- manent resident of the United States. Last year, the Department of Homeland Security served him with a notice to appear, which charged him as removable under INA \u00a7 237(a)(2)(B)(i), 8 U.S.C. \u00a7 1227(a)(2)(B)(i), for being a noncitizen who was convicted of an of- fense related to a federally controlled substance. Flores had also previously entered a guilty plea in Georgia state court for aggra- vated assault under O.C.G.A. \u00a7 16-5-20(a)(2), for which he was sen- tenced to five years confinement which he was allowed to serve on probation. Flores filed an application for cancellation of removal. He argued in support of that application that he was eligible for relief, in part, because his Georgia conviction was not an aggravated felony for immigration purposes. That was so, he argued, because it could be committed with the mens rea of reck- lessness, and he was not sentenced to incarceration for a year or more. The government argued that Flores was convicted of an ag- gravated felony for immigration purposes because aggravated as- sault is a crime of violence for which Flores was sentenced to five years\u2019 confinement. The government provided the judgment and conviction documents for Flores\u2019s prior convictions, which re- flected that Georgia had charged him with aggravated assault be- cause he had assaulted someone with an object likely to cause seri- ous bodily injury. The immigration judge agreed with the USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 4 of 10"], "id": "3eb4f386-b040-42b3-b544-fa2919bbd2eb", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant was charged with kidnapping, aggravated residential burglary, possession of firearms by certain persons,2 on a family or household member, and first-degree terroristic threatening for events that took place at his former girlfriend's residence in Jacksonville on August 22 and 23, 2013. At trial in November 2016, Roshandra Nwozuzu (formerly Wesley) testified that appellant is her former boyfriend and had lived with her and her two children. On August 4, 2013, after an incident in which he held a boxcutter to her neck, appellant was given a trespass warning by the Jacksonville Police Department, advising him to stay off Ms. Nwozuzu's property. On the night of August 22, Ms. Nwozuzu returned home with her children and went to her master bathroom to shower. When she exited the shower, appellant was pointing a gun at her. Ms. Nwozuzu testified that appellant threatened to kill her, her children, and himself if she screamed, and she spent the next several hours trying to calm him. Early the next morning, she was able to convince him to let her leave for work. She took her nine-year-old daughter with her but was unable to wake up her teenage son, who was taking medication that made him sleep deeply. After leaving the house, Ms. Nwozuzu immediately called the police and met officers at a nearby park. The special-response team was able to use Ms. Nwozuzu's key to get into her residence and get her son out before alerting appellant to their presence. Appellant came out of the master bedroom and was placed under arrest. The State presented the testimony of officers who found a gun and a magazine under the bed in the master bedroom and a broken window. Ms. Nwozuzu's son, Rashaad Nelson, also testified at trial."], "id": "87812cba-cd6e-4231-a9eb-ff39f556e0e8", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Per Curiam. On December 15, 1994, the respondent was convicted, upon a jury verdict in the New Jersey Superior Court, of the crimes of in the second degree, in violation of New Jersey Statutes Annotated \u00a7 2C:12-1 (b) (1); simple assault, in violation of New Jersey Statutes Annotated \u00a7 2C:12-1 (a); and possession of a weapon for unlawful purposes in the third degree, in violation of New Jersey Statutes Annotated \u00a7 2C:39-4 (d)."], "id": "b8675767-fcbc-4e18-af00-22125d494a7e", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Finally, Appellant compares the sentence here with the sentences imposed in other cases. But we would engage in that kind of comparison only if Appellant overcame the first Solem test. Harmelin , 501 U.S. at 1005, 111 S.Ct. 2680 ; Lackey , 881 S.W.2d at 420-21. Accordingly, there is no reason to compare Appellant's sentence to those in other reported assault cases in Texas or elsewhere. Simpson , 488 S.W.3d at 323."], "id": "ebb9638e-4b81-4f7f-a60b-a3dfc5cf5be0", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I realize comparison to cases with stronger facts can be of limited value in a substantial evidence review, however I believe these cases demonstrate what constitutes sufficient evidence of force in cases of with everyday objects. In each, the object was actually used in a manner likely to produce great bodily injury. And in most, the victims sustained injuries. Given Koback swung once at Agustin's clothed torso from a few feet away, he would have had to use quite a great deal of force to seriously injure Agustin with the short portion of the ignition end that protruded from his knuckles. The trial testimony is simply insufficient to show he did (or even could ) swing with such force."], "id": "2e0b0031-cf2c-477e-ab26-2a3fea5e7229", "sub_label": "US_Terminology"} {"obj_label": "AGGRAVATED ASSAULT", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["COUNT 1-A [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and in the course of the same criminal episode the defendant attempted to cause the death of Melanie Molien by strangulation and waterboarding. COUNT 1-B & C [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and [Hernandez] did then and there by acts or words threaten to cause, or place, Melanie Molien in fear that death or serious bodily injury would be imminently inflicted on Melanie Molien, and said acts or words occurred in the presence of Melanie Molien. COUNT 1-D [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration *326of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and in the course of the same criminal episode [Hernandez] used or exhibited a deadly weapon, to-wit: water. COUNT 2 [ WITH A DEADLY WEAPON] [Hernandez] [d]id then and there intentionally, knowingly, or recklessly cause bodily injury to Melanie Molien by striking the victim's head or body with [his] hands, and the defendant did then and there use or exhibit a deadly weapon, to-wit: water, during the commission of said assault. COUNT 3 [ASSAULT FAMILY VIOLENCE/STRANGULATION] [Hernandez] [d]id then and there intentionally, knowingly, or recklessly cause bodily injury to Melanie Molien, a person with whom the defendant has or has had a dating relationship, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of Melanie Molien by applying pressure to the throat or neck and blocking the nose or mouth of Melanie Molien. The jury found Hernandez guilty of aggravated assault with a deadly weapon \"as alleged in the indictment\" and guilty of the lesser-included offense of sexual assault, but it acquitted him of family-violence assault by strangulation. The jury recommended that Hernandez be placed on community supervision for 10 years for the sexual-assault offense, but it sentenced him to seven years' confinement for the aggravated-assault-with-a-deadly-weapon offense."], "id": "98d28317-b302-4c09-bf16-bc6d9bdae4fb", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Petitioner was arraigned on a felony information with two counts of inflicting corporal injury to a cohabitant ( Pen. Code, \u00a7 273.5, subd. (a) ; counts one and three), one count of ( Pen. Code, \u00a7 245, subd. (a)(4) ; count two), one count of making criminal threats ( Pen. Code, \u00a7 422, subd. (a) ; count four), and one count of stalking ( Pen. Code, \u00a7 646.9, subd. (a) ; count five). The information alleged personal use of a deadly weapon ( Pen. Code, \u00a7 12022, subd. (b)(1) ) with respect to count three, two prior serious felony convictions ( Pen. Code, \u00a7 667, subd. (a)(1) ), prior strikes ( Pen. Code, \u00a7 1170.12, subd. (c)(2) ), and eight prior prison terms ( Pen. Code, \u00a7 667.5, subd. (b) )."], "id": "a5bab51c-5b32-469f-aee9-113001f2b1ca", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*309Evidence was introduced to show that on March 20, 2017, appellant had pleaded guilty to second-degree battery and was sentenced to sixty months' probation. However, her probation was subsequently revoked, and on July 17, 2017, she was sentenced to serve forty-eight months' incarceration. In a separate case, appellant pleaded guilty to and second-degree battery and was sentenced on June 13, 2017, to serve sixty months' incarceration. In yet another case, appellant pleaded guilty to second-degree battery and possession of drug paraphernalia to ingest, inhale, etc., and was sentenced on October 30, 2017, to serve sixty months' incarceration."], "id": "fd8c46f2-304c-4944-8db4-316dc3274b75", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Although it is listed as his second argument on appeal, Mr. Harris argues that there was insufficient evidence to support his conviction for . When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Cogburn v. State , 2016 Ark. App. 543, 2016 WL 6609490. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585."], "id": "4e070025-c9fd-43df-894f-dcdee16cf808", "sub_label": "US_Terminology"} {"obj_label": "aggravated assault", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To allow this would make murder out of every that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such a *345result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. Id. In support of his position, Odom quoted then Chief Judge Cardozo:"], "id": "1910629a-2dbc-4917-b86a-ff85818efea0", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In my determination of the \u201c materiality \u201d of the false testimony which was permitted to stand uncorrected, I am not influenced by my 1962 findings that Lococo committed perjury not alone in particular details but in his total testimony concerning the part played by petitioner Yamin in this crime. Nor am I influenced by the previous finding that Lococo suborned the perjurious testimony of the only non witness in the case (see pp. 41-45 of 1962 opinion)."], "id": "a75373b9-ceee-4329-972d-389f96329365", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The similarity of the tactics used by Scott support that joinder was proper as a matter of law. Several other cases support this conclusion. See State v. Vinson , 834 S.W.2d 824, 827 (Mo. App. E.D. 1992) (finding it proper to join two offenses when both offenses involved the robbery of a service station/food mart in St. Charles within a two-month period where defendant drew a resolver on the cashier, walked behind the counter, removed the case drawer, and fled from the store to a waiting vehicle); State v. Forister , 823 S.W.2d 504, 510 (Mo. App. E.D. 1992) (finding joinder proper where all four robberies were committed in St. Louis County within a three-week period and in each instance defendant drove a red 1963 Chrysler as a getaway car for the same who displayed a gun and demanded money); State v. White , 755 S.W.2d 363, 367-68 (Mo. App. E.D. 1988) (concluding joinder of two separate robberies was proper where in both robberies the robber was a thin, black male, who displayed a handgun and announced a robbery; ordered the victims to put their things onto the table; herded the victims into the bathroom(s) at gunpoint; and ordered one victim to hand over his automobile keys before fleeing in the that vehicle); State v. Sims , 764 S.W.2d 692, 696 (Mo. App. E.D. 1988) (finding joinder of twenty counts arising out of ten separate criminal episodes proper where the crimes all occurred in south St. Louis within a three week period and in each incident a man entered a business, drew a handgun, produced a bag from his waist area and demanded the employee fill the bag with money)."], "id": "5dda40e2-2bc8-45aa-b423-0f58253a56ec", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the context of two accomplices who testify at trial, we have held that \"it is a fundamental principle that the testimony of one witness cannot corroborate another accomplice witness' testimony,\" although we never explained the legal basis for that rule. Chapman v. State , 470 S.W.2d 656, 660 (Tex. Crim. App. 1971) (citing 24 Tex. Jur. 2d 331, 331 (1965) ); see Roberts v. State , 44 Tex. 119, 123 (1875) (citing 1 Waterman's Archbold on the Practice, Pleading and Evidence in Criminal Cases \u00a7 154 (1853) (in turn citing Rex. v. Noakes , 5 Car. & P. 326 (1832) ) ) (\"If ... two or more accomplices be examined, the evidence of one is not deemed confirmed by that of the other, but the evidence of both requires to be confirmed by other testimony.\"). In Noakes , a proceeding of the Old Bailey, Justice Littledale explained that \"[t]wo of [the defendant's] accomplices speak directly to him. If these statements were the only evidence against him, I should not advise you to convict upon their testimony.\" Noakes , 5 Car. P. at 328."], "id": "f8f3c17b-c93f-45fd-bede-56dfcc21d960", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v. Goodman (170 App. Div. 30), the court held that the requirement of the statute is that corroboration must be by evidence tending to connect the defendant with the commission of the crime and facts claimed to be in corroboration of the testimony of an have no significance as establishing or tending to establish the commission of a crime if consistent with lawful conduct."], "id": "12bede88-5020-457a-b57c-2b4b7945337c", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Hall\u2019s case, 1 C. H. Rec. 57, 59, it was said, a conviction may follow, though, the testimony of the stands uncorroborated. Quers. And See U. S. v. Tom Jones, 2 Wheeler\u2019s Crim. Cas. 451 to 461 *750Although the satne rule is recognized in Englahd, it ha\u00e1 beeii s\u00f3 much meliorated i\u00f1 th\u00e9 practice, it may now h\u00e9 said, that unless the testimony o\u00ed an accomplice is corroborated, id some material part by unimpeachable evidence, the judge should advise the jury to acquit the prisoner, and if ho should neglect so to* advise th\u00e9 jury, dr th\u00e9 jury disregard stich advice, and a conviction followed) the conviction would be in either case at variance with the authorities, Mid be regarded as illegal. See 1 Phil. Ev 30, et. seq."], "id": "9361c90f-6cc1-4a77-8f24-b7c4cd1d4f1d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Snider v. State , 2010 Ark. App. 694, 378 S.W.3d 264. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence supporting the verdict. Id. A jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal-that is a job for the finder of fact, not the appellate court. Foster v. State , 2017 Ark. App. 63, 510 S.W.3d 782. Arkansas law is clear that a conviction cannot be had in any case of felony on the testimony of an unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Procella v. State , 2016 Ark. App. 515, 504 S.W.3d 686."], "id": "5b3ad484-f09a-4444-9828-0dd2185701f1", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the present case, as in People v Smith (supra), the court delivered a charge on liability. The court also charged the jury that, \"in this case, the handgun which it is alleged that the defendant displayed is the handgun which was allegedly displayed by * * * the coperpetrator in this case\u201d. This was the theory of liability presented to the jury, even though the first count of the indictment specified that it was \"the defendant [who] displayed what appeared to be a handgun\u201d."], "id": "16ce4ae7-6ab1-4548-85a4-34e557351e8b", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The corroboration requirement in both statutes refers to \"other evidence,\" but the statutes do not refer to each other. The \"other evidence\" requirement makes sense when there is testimony at trial from only an or a \"jail house\" informant, but what if there is-as in this case-testimony from an accomplice and a \"jail house\" informant? Can the accomplice's testimony corroborate the \"jail house\" informant's testimony and vice versa? The language of the statutes indicate that they could, but I am not convinced that is what the legislature intended because such an interpretation would seem to undermine the policy reason for the existence of both statutes. If the statutes exist to ensure that a person is not convicted on only unreliable testimony, why would it be okay to allow that so long as two unreliable witnesses testify instead of only one?"], "id": "9e16cca1-c29e-4577-aac5-9e17a5d54013", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The primary issue is whether, in an enterprise corruption trial, each criminal act alleged in the pattern of criminal activity must be corroborated pursuant to CPL 60.22. This issue arose throughout the course of this trial in the context of the statutory mandate of CPL 300.10 (6),1 defendants\u2019 motion for a trial order of dismissal pursuant to CPL 290.10, and in connection with my jury instructions, and requires close scrutiny of the application of New York\u2019s corroboration requirement to the enterprise corruption statute."], "id": "f45f7341-7906-49cb-8ce5-71e46fd134b8", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is apparent that a court confronted with the facts in Teal (supra), would reach a contrary result under the revised Penal Law. The defendant who solicited perjured testimony would be culpable regardless of the legal impossibility2 of commission due to immateriality of the testimony solicited. (Hechtman, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 39, Penal Law \u00a7 110.10, p 320). Moreover, as anticipated by the court in Teal (196 NY, at p 382), the revised Penal Law emphasizes the intent of the accused as much as the result of his conduct, so that what formerly may have constituted subornation of perjury is now subject to prosecution as criminal solicitation, attempted perjury or perjury as an , depending upon the proximity of the defendant\u2019s conduct to his intended objective to offer false testimony (see, People v Mohammed, 122 Misc 2d 504, 505 [Sup Ct, NY County 1984]; Sobel, supra, at 271-272; compare, Hammer v United States, 271 US 620, 628 [1926])."], "id": "483d55f6-b695-4e5f-98e2-560521fa70ad", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This implied promise arises from the consideration, that - the witness, who is not bound to \u00bfriminate himself, does so in order to discover greater offenders; and upon performance of the condition to the satisfaction of the court, he acquires an equitable title to a pardon. The practice in England is, where the is in custody, for the counsel for the prosecution to move that the accomplice be taken before the grand jury, pledging his own opinion .after *748a perusal of the facts of the case, that his testimony is . , t- . \u2019 essential. It, however, an accomplice be taken before the r grand jury by means of a surreptitious order, the indictment will still be valid, as it seems to be a general rule, that the means by which evidence'was obtained will be no objection to the evidence itself. And in the case of the King v. Lee, (Northamp. Ass. 1818,) where .the question was, whether the accomplice who had been taken before the grand jury could legally be convicted, the judges were of opinion that \u25a0he might, but some doubted. (Leach\u2019s L. 184. 2 Starkie on Evid. 22, 3.)"], "id": "68a5c746-de0b-4493-9234-5bb1251f3b34", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The attorneys' arguments further helped to cure any instructional error. ( Young , supra , 34 Cal.4th at p. 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487.) The prosecutor did not reference Martinez's burden to prove that Smith was his . And he reiterated that he had the burden to prove each element of the charged crimes beyond a reasonable doubt. Counsel for Martinez argued CALCRIM No. 334 did not apply because he committed no crime; Smith alone assaulted M.C. She also argued that Smith was not a credible witness and that the jury should view his testimony skeptically based on his guilty plea. Considered in light of the whole record, we see no reasonable likelihood that the jury misunderstood and misapplied the trial court's instructions."], "id": "c9b08f9d-f9e1-4980-8601-d97c8758fb95", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["For the foregoing reasons, this court holds that the testimony of an must be corroborated by such other evidence as tends to connect the defendant with the commis.sion of the crime (Code Crim. Pro., \u00a7 399 ; People v. Gibson, 301 N. Y. 244) regardless of whether the accomplice is under or over the age of 16 years, and this corroboration must be done even in the proceedings before the Grand Jury (People v. Nitzberg, 289 N. Y. 523)."], "id": "e7dddb6e-ed77-454d-83b8-2c962c845822", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Donald J. Mark, J. This was an application by the defendant who was charged with two counts of murder, second degree, intentional murder and depraved indifference murder, pursuant to People v Gonzalez (68 NY2d 424) and its progeny, for a \"missing witness\u201d charge, because of the prosecutor\u2019s failure to produce at trial as his witness an of the defendant."], "id": "7b5348a4-680f-47e7-9d0f-c39cde8a1a19", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In fact, in cases which involve street encounters, but which come to a different result from those cited above, the deter*708mining factor appears to be such a perceived danger. In People v Jenkins (87 AD2d 526) the police were engaged in arresting a man whom they had more than probable cause to believe to be an armed bank robber in a high crime area. Defendant was the suspect\u2019s sole companion and the police suspected that he may have been an . The court stated that: \"Quite apart from that suspicion, in the circumstances of this case, the police had a right to assure their own safety during the arrest they were making and to prevent possible interference with the arrest. To that end they were justified in frisking the defendant (as well as the identified robber) to determine whether defendant was armed, and if armed, to disarm him. As it turned out, both men were armed with loaded pistols. In the exigent circumstances with which they were confronted, the police acted reasonably.\u201d (Supra, at 526.)"], "id": "479e6317-55c3-447f-9070-3af5cb9afe70", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". Of course, the level of corroboration varies according to its purpose. Corroboration of testimony requires evidence tending to connect defendant with the commission of the crime. Unsworn witness testimony must be corroborated both by evidence tending to link the defendant to the crime in addition to evidence tending to establish that the crime was committed (People v Groff, 71 NY2d 101, 109)."], "id": "f3753bc1-1491-4244-a230-0e64ca659609", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Sharon M.J. Gianelli, J. The defendant is charged with one count of assault in the third degree, in violation of Penal Law \u00a7 120.00 (1), and one count of petit larceny, in violation of Penal Law \u00a7 155.25, based on allegations that the defendant assaulted the complainant and stole his cell phone. More specifically, the People allege that on June 9, 2008, in front of 28 Felton Avenue, Valley Stream, New York, the defendant and another, having followed the complainant home after an apparent road rage incident, exited a car, approached the complainant, and struck him numerous times about his body. Further, when the victim tried to call 911, the defendant and his unidentified took the complainant\u2019s cell phone and threw it away. According to the complainant, \u201cI was left with a swollen jaw, bruised chest and ribs, cuts and scrapes to both legs and pain and swelling to both my arms and substantial pain in my whole body due to the beating.\u201d"], "id": "ee26106a-7415-45da-966c-6c1136cc7048", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The rule of law uniformly followed is that a conviction cannot be had on the testimony of an unless his testimony be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. (Code Grim. Pro., \u00a7 399.) After reading a substantial part of the testimony given before the Grand Jury it is clear to this court that the evidence produced was legal and sufficient in depth to justify the finding of the indictments herein. Therefore, this motion to examine the minutes of the Grand Jury be and is hereby denied."], "id": "2f07cf1f-e61d-445d-b434-648b64392610", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant was convicted of robbing a taxicab driver after the defendant and an unapprehended were driven as passengers to a desolate area at night. In this single eyewitness case, in which the record is barren of any other evidence connecting the defendant to the crime, a review of the complainant\u2019s testimony reveals that he did not have a good opportunity to view the perpetrator at the time of the crime, and that his degree of attention towards the perpetrator was not high. Additionally, the complainant\u2019s description of the perpetrator did not accurately describe the defendant, and his level of certainty at the initial police identification procedure was, by the complainant\u2019s own admission, only \u201d80%\u201d. Further, there was evidence that the complainant was under pressure by his employer to prosecute this case upon *255pain of losing his job, and that the complainant had offered to drop the charges in return for money. The length of time between the crime and the police lineup was almost two months, and during the trial the complainant hesitated in identifying the defendant in court. The complainant, who had testified that the perpetrator weighed 175 or 180 pounds, stated at trial that the defendant looked much thinner than he had remembered. This contrasted with credible evidence at trial that the defendant had never weighed more than 125 pounds. In addition, the defendant had no prior criminal record, was a high school graduate with a part-time job, was engaged to be married, and had a stable family history. He presented a character witness who had known him since he was a child, and presented a credible alibi defense."], "id": "cee1f188-b9f9-4d9b-bf7f-38f68571483c", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In sum, I find that the confluence of factors \u2014 the telephone calls between Jack Buccafusco, Michael Giammarino and defendant Macklowitz where Macklowitz is referred to as \"Duane\u201d, the undercover\u2019s purchases from the Romanos and the accurate documentation of those sales in the records, and the interrelationship between the computer records of \"MIM\u201d and \"Mike M\u201d and the ledger book entries of \"Duane\u201d\u2014 corroborate the accomplice\u2019s testimony and tend to connect the defendant to the possessory crimes with which he is *248charged. The ledger books and computer records, although prepared by Giammarino at the behest of the codefendants, do not depend on him for their interpretation. Accordingly, I find that the dictates of the corroboration statute are satisfied. Defendant\u2019s motion to dismiss the possessory counts is denied."], "id": "f618c73a-f906-492d-9f35-18137de552f9", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The People\u2019s theory of the case highlighted the actual conflict. The prosecutor\u2019s theory was that the boyfriend was a prime mover in the conduct that resulted in the commission of the crime charged. While he was not charged as an , his testimony was crucial in explaining how it was that the defendant\u2019s allegedly false statements came to be known by the police and whether the defendant\u2019s conduct caused the events that occurred. When called by the People as a witness, the boyfriend would have been subject to cross-examination to impeach his credibility. To represent the defendant, counsel would have necessarily questioned the boyfriend about his prior criminal record, any underlying information about that record, and any prior bad acts."], "id": "44557fec-b2e6-4701-8d21-fa2f7ae2f22e", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["How far must the corroborative evidence go ? It is not necessary that the corroborative evidence should of itself be sufficient to show the commission of a crime, nor that the whole case should be proved outside of the evidence of the nor that the corroborative evidence should be wholly inconsistent with the defendant\u2019s innocence. It is sufficient if it tends to connect the defendant with the commission of the crime and comes from an independent source and goes to some material facts tending to show the commission of the crime, and that the defendant was implicated in it and that it consists of something more than suspicious circumstances. See People v. Hooghkerk, 96 N. Y. 149; People v. Plath, 100 id. 590; People v. Ogle, 104 id. 415; People v. Elliot, 106 id. 292; People v. Mayhew, 150 id. 346, 353; People v. Winant, 24 Misc. Rep. 361."], "id": "00891177-09f5-4aa9-b158-5f479a931003", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is axiomatic that \"no trial can commence until a defendant is properly represented\u2014and therefore until any conflict of interest has been resolved\u201d (People v Sydney, supra, at 764; see also, People v Cortes, 80 NY2d 201). Thus, the People should not be charged with causing a delay over which they had no control, nor with the time it took to have an attorney appointed for the defendant\u2019s pursuant to County Law article 18-B (see, People v Cortes, supra; People v Sydney, supra). I find People v McIntosh (173 AD2d 490), cited by my colleagues, distinguishable in that, there, the People had exclusive control over the delay occasioned by their filing and subsequent withdrawal of an appeal."], "id": "465b4cf4-0c46-4979-b524-893411208512", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A declaration against penal interest is in the nature of a confession (see, People v Brensic, 70 NY2d 9 [a custodial confession of a nontestifying may be admitted as a declaration against penal interest against a defendant]), and in this analogous situation either side is allowed to proffer such evidence.4 Thus, a declaration against the penal interest which tends to exculpate the defendant is admissible on the part of the defendant (People v Brown, 26 NY2d 88). Conversely, a declaration against the penal interest may be offered by the People to incriminate a defendant (People v Maerling, 46 NY2d 289)."], "id": "7478cef0-e38f-44ea-ae07-ecd4d23790d9", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There is nothing improper in a plea agreement that requires an to testify truthfully. (People v. Gurule (2002) 28 Cal.4th 557, 616-617, 123 Cal.Rptr.2d 345, 51 P.3d 224.) Moreover, there is nothing improper in advising a jury that one condition of a plea agreement is that the accomplice must testify truthfully and that the plea agreement will not be honored if he or she does not. (People v. Bonilla (2007) 41 Cal.4th 313, 335, 60 Cal.Rptr.3d 209, 160 P.3d 84.) This is not a case where the plea agreement either required that an accomplice testify in a certain substantive manner (see People v. Gurule (2002) 28 Cal.4th 557, 615, 123 Cal.Rptr.2d 345, 51 P.3d 224 ) or the prosecutor in any manner vouched for the credibility of the accomplice based on information outside the record (see Bonilla , at p. 337, fn. 9, 60 Cal.Rptr.3d 209, 160 P.3d 84 )."], "id": "504d4d48-f9f1-4237-aeeb-fc2b4d406518", "sub_label": "US_Terminology"} {"obj_label": "Accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u2022 Teamer admitted his role in the robbery and identified Steward as One and Bailey as Accomplice Two. Over the course of two habeas hearings, which were conducted three years apart from each other and over a decade after the robbery, Teamer steadfastly testified that Miles was not involved despite withering cross-examination. While Teamer had nothing to lose by claiming Miles was not involved, it was not shown that Teamer had anything to gain. \u2022 Steward admitted his role in the robbery as Accomplice One and said that he committed the crime with Teamer (Little K.O.) and Bailey (Baby K.O.). Steward remembered that day specifically because it was his 19th birthday. Steward was not clear on several details of the robbery, but neither was Teamer, who we know for sure was present. Steward *794also steadfastly testified that Miles was not involved despite withering cross-examination during the course of two habeas hearings. While Steward had nothing to lose by admitting his involvement in the robbery (due to the statute of limitations), he also appears to have absolutely nothing to gain. Further, years later, Patlan and Gomez tentatively identified Steward as Accomplice One. \u2022 Bailey admitted his role in the robbery in a declaration. His account was largely consistent with Teamer and Steward. In an interview conducted by the Fullerton detective in a Texas prison, Bailey repeatedly and emphatically stated that Miles was not involved. Bailey was also not clear on all of the details of the robbery, but neither were Teamer and Steward. The detective observed Bailey with Teamer days after the robbery. Teamer was apparently Bailey's mentor in the gang. \u2022 Several eyewitnesses testified that Miles was in Las Vegas on the day of the robbery. Miles was arrested in Las Vegas. The testimony of Miles' mother, father, and son, regarding the date of his arrival in Carson and his subsequent phone calls to Las Vegas were corroborated by flight and telephone records. However, the jury did not get to consider those records because they were not admitted into evidence, and the prosecutor argued the lack of \"hard evidence\" during her closing argument while questioning the validity of Miles' alibi witnesses. Further, it would not make sense to fabricate such a complex story. \u2022 While Miles is five feet, nine inches tall, and fits the initial height description of Accomplice Two, Gomez later told the detective that she thought the two robbers were close to the same height. Further, it appears likely that Gomez and Patlan may have had some effect on each other's descriptions, at least to some extent. For instance, when the 911 operator asked Gomez the color of the suit that Accomplice One was wearing, Gomez said to Patlan, \"Was it a brown color ..., the suit? What color suit was ... green? A dark green.\" \u2022 The witnesses described all of the robbers as being in their 20's. On the date of the robbery, Teamer was 25 years old, Steward was 19 years old, and Bailey was 20 years old. Miles was 32 years old on the day of the robbery, which also tends to corroborate the habeas testimony that Miles was never a close confidant of either Teamer, Steward, or Bailey. \u2022 Miles' testimony about how he learned of the identity of Steward was very detailed and identified multiple witnesses, among them: Dungey, Prince, and Steward. If Miles and Steward deliberately fabricated this story, it would defy logic to name multiple other witnesses. Further, the corroborative testimony was particularly compelling because of each witness' level of detail and the fact that Dungey and Prince had apparently nothing whatsoever to gain by testifying. In sum, we find it more likely than not that the confessions of Teamer, Steward, and Bailey would have changed the outcome of the trial; that is, either an acquittal or a deadlocked jury."], "id": "3e1001ae-57e5-4d9c-bcc7-8c0d4bdb5633", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant is charged under indictment No. 2841/09 with, inter alia, criminal possession of a controlled substance in the third degree (Penal Law \u00a7 220.16 [12]). It is alleged in this case that on July 3, 2009, at about 11:10 p.m., the defendant was seated in the driver\u2019s seat of a 1998 Lincoln Town Car in the vicinity of University Avenue and West Tremont Avenue, in Bronx County, and that a bag of crack cocaine, which had an aggregate weight in excess of one eighth of an ounce, along with a small amount of marihuana were inside the car. Another individual in the car was indicted as the defendant\u2019s . About a month later, on August 9, 2009, the defendant and three other individuals were arrested and charged with criminal sale of a controlled substance in or near school grounds. (Penal Law \u00a7 220.44 [2].) In that case, indictment No. 3320/09, the defendant is alleged to have handed a bag of heroin to an undercover police officer in exchange for money in front of 1895 University Avenue in Bronx County. It is also alleged that several accomplices directed the undercover officer to the defendant; one told the officer to \u201ctry the car\u201d to see if the defendant was there. The defendant exited 1895 University Avenue just prior to the alleged sale; he also lives in that building."], "id": "0e8bc11d-3ddb-4a92-8ce5-a4594afb5e64", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court properly declined to give an corroboration charge regarding one of the People\u2019s witnesses. There was no evidence that she was involved in any of the facts or conduct constituting the offenses charged (see People v Sweet, 78 NY2d 263 [1991]), and no basis on which to submit to the jury the issue of whether she was an accomplice. The witness was only defendant\u2019s accomplice in the commission of separate criminal *567activity that preceded the crimes at issue (see e.g. People v Cruz, 291 AD2d 1 [1st Dept 2002], lv denied 97 NY2d 752 [2002]). We perceive no basis for reducing the sentence."], "id": "f889416d-822f-42c6-8e34-020fc4f09d95", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After asking Juror No. 8 a few more questions, the court said, \"There was a concern that at least as to one jury instruction that you indicated that you couldn't follow that particular instruction.\"22 Juror No. 8 replied that he had never said such a thing. The court then asked whether Juror No. 8 knew which instruction the court was referring to, and *31Juror No. 8 responded, \"It was just mentioned. And I said that is not what I'm doing. I believe I'm following the law.\" The court then asked, \"And in particular the instruction that we were apprised or I was just apprised of was the instruction regarding testimony requiring corroboration. Has that been discussed?\" Juror No. 8 responded that it had been discussed several times, and he believed that he had expressed his opinion."], "id": "0505e7f9-bee9-44ff-aadb-44c734a0ada6", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*969Here, the defendant was convicted of multiple counts of robbery in connection with three commercial establishments in April of 2008. He was also convicted of possession of a gun recovered upon his arrest the following month. At issue on this appeal are robberies relating to a mini market. The defendant\u2019s convictions were based on a theory of liability, as it was undisputed that the defendant was not present in the store with his accomplices. The defendant was found guilty of acting as an accomplice with regard to the robbery involving property taken from the store, but was acquitted of robbing an employee at that location."], "id": "1196c82e-d42e-4993-b45a-29dd47c18c61", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mr. Booker was charged with and pleaded guilty to acting with four others in committing assault in the first degree. A person is guilty of assault in the first *529degree if the person \"attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.\" Section 565.050. A person is an , and therefore criminally responsible for the conduct of another, when \"[e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.\" Section 562.041.1(2)."], "id": "b6f28a24-33f7-474d-8afb-fda2f47ee5ab", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The State charged Rainey with one count of the class A felony of child abuse in violation of \u00a7 568.060.2 The State alleged that Rainey had recklessly caused Victim to suffer serious physical injury resulting in her death. Following trial, the jury found Rainey guilty of the lesser-included offense of assault in the third *919degree on a theory of liability. At the sentencing hearing, the trial court granted Rainey's Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury."], "id": "82893b84-5e92-4bd8-a3b4-8698bb5b2e7a", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Before analyzing this evidence with a view to testing its sufficiency in the light of the quantum of the proof required and the points to which that proof must go, time will be saved by considering at the threshold whether or not on the felony charge Cartwright is to be considered as an of the defendant, for upon the decision of that question depends in part the quantum of proof, if any, required outside of the evidence of Cartwright. \u201c An accomplice is an associate in crime, a partner or partaker of the guilt, any participant in an offense.\u201d People v. Winant, 25 Misc. Rep. 361, 363, Dickey, J. \u201c One culpably implicated in the commission of the offense.\u201d People v. Vedder, 98 N. Y. 630. \u201c An accomplice is a person involved, either directly or in*120directly, in the commission of a crime. To render him such he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction.\u201d People v. Smith, 1 N. Y. Crim. Rep. 72, 75, Daniels, J. \u201c To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of or preparation for the crime, with intent to assist in the crime.\u201d People v. Zucker, 20 App. Div. 363."], "id": "06784c5f-352c-42db-a7fe-ebd51ba2594d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In our case, there is neither claim nor proof that Boyce was an . Additionally, there is no allegation that she is receiving any favorable treatment, nor that the District Attorney will forego prosecution should evidence be developed that she was actually involved in the commission of the crimes. Consequently, the need for confidentiality far outweighs the necessity for disclosure here."], "id": "654ca765-2426-4f82-94dc-15f429a6427e", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v. Vedder (98 N. Y. 630, 632) our Court of Appeals clearly held: \u201c It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in the 294th section [Now Penal Law, Section 80] and that she could not, therefore, be indicted under that section. Even though there may be no difference in a moral point of view as to the guilt imputable to the respective participators in the act of abortion, yet the statute has made a distinction in the eases, and the one cannot be punished as a *460principal or in the crime which is attributable by the statute to the other \u2019 \u2019."], "id": "d5fffef8-33f5-4433-8125-f9897082c9c7", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When we consider that Mr. Perkins had been the assistant district attorney in charge of grand jury matters for a great many years, and that he was personally and favorably known to the jurors and highly regarded by them for his excellent work, it must be admitted that this testimony was extremely damaging to the defendant. It also tended to corroborate Low by a reference to statements made by him on a previous occasion. It was not claimed that Low was an ; and in *142my opinion, there was a plain violation of the legal rules referred to by the Court of Appeals in the case of People v. Jung Hing (312 N. Y. 393)."], "id": "fac41b42-cb96-4fca-b8e3-922df7b49808", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It will be noticed that none of the cases cited relates to offenses such as it is claimed were committed by Cartwright and Acritelli. It will also, however, be noticed that while the cases cited differ widely from each other in character, they lay down the same determining tests to ascertain whether or not a given witness is to be regarded as an of a defendant. These tests it therefore seems proper to apply by analogy to the case at bar. First, then, the test is not whether both parties have been guilty of the identical crime. Bribing a juror or offering to *121bribe a juror is a crime by itself under section 71 of the Penal Code, and the acceptance of a bribe by a juror is a separate offense, made so by section 72 of the Penal Code. The separate nature of the offenses (if they are separate) does not prevent one party from being the accomplice of the other. People v. Winant, supra. Second, the reason why the victim in the abortion case does not stand legally in the position of an accomplice is that she could not be indicted for abortion. People v. Vedder, supra, and cases cited. Though guilty of an offense, she was punishable by a different penalty. In the liquor case (People v. Smith, supra) the criminal act was the sale. It was not a crime to huy, and the purchaser incurred no criminal relation to the act of selling. In the arson case, the act of the alleged accomplice was itself innocent, and while, as stated, it tended to assist in the perpetration of the crime, the incentive or motive for it was not to aid in its commission. If under the evidence produced before the grand jury it can be said with respect to the felony charge that the defendant committed a crime it was a crime suggested to him by the witness Cartwright. The criminal purpose, if conceived at all by the defendant, had its inception in the first, or September, conversation between Cartwright and the defendant. That conversation was initiated by Cartwright and that which it is claimed may have involved the suggestion of an offense came from Cartwright to the defendant. The conversation had been solely about Italian banking methods, when Cartwright, without suggestion by the defendant, asked to be allowed to have a room in the defendant\u2019s house at 186 Lafayette street, he, Cartwright, having at the time in his mind a registration from such house in the event of the defendant\u2019s assent to his taking a room. Cartwright thus conceived, according to his testimony, a purpose to commit a crime, and the indictment has been found upon the theory that he suggested to the defendant the commission of a crime, which crime was to be consummated by the concurrent act of Cart*122wright and the defendant, the defendant\u2019s part being, as charged in the indictment, to aid, assist and abet Cartwright in his, Cartwright\u2019s criminal act. Cartwright thereafter performed the criminal act, and because he performed the criminal act (to wit, the act of illegal registration) the defendant has been indicted, charged by reason of his alleged connection with such act, as having aided, assisted and abetted in its commission. How can it then be said that Cartwright was not, if his evidence is to be believed, an associate in the crime, a partner or partaker of the guilt, a participator in the offense, one culpably implicated in its commission, one both directly and indirectly involved in its commission, one who has aided or participated or assisted in it with intent to assist in the commission of a crime, one'equally involved in its guilt, one indictable for it under section 29 of the Penal Code, but for the immunity given him from the circumstances under which he testified by section 41q of the Penal Code ? It is not deniable that if Cartwright\u2019s evidence is to be believed he was also guilty of another crime, to wit, a violation of subdivision 2 of section 41a of the Penal Code. It is also not to be denied that subdivision 5 of section 41a of the Penal Code defines a separate and distinct offense. It is not to be denied, moreover, that such an offense is one which may be committed by one person alone, and thus under circumstances where there is- no accomplice. It- is so committed where the crime consists of commanding \" or \" advising \u201d another to violate any of the preceding subdivisions of the same section, for the \u201c command \u201d may not be obeyed, or the \u201c advice \u201d followed, and therefore no one may became a participator in an offense which itself has been fully consummated by the mere giving of the \u201c command \u201d or \u201c advice,\u201d but where the alleged crime under this subdivision consists, as charged in the indictment in this case, and as supposed to be supported by the evidence herein in \" aiding, assisting and abettingit becomes consummated only by the guilty act or attempt to commit- a guilty *123act by another and that other thereupon becomes an accomplice. For both there is an identity of penalty."], "id": "bd5ba106-8684-4492-8bbc-1c3c0ecf3933", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The police properly relied on defendant\u2019s accomplice\u2019s sister\u2019s apparent authority to consent to the search of the apartment that defendant occasionally shared with his , and which resulted in recovery of the gun that defendant seeks to suppress (People v Adams, 53 NY2d 1). Defendant\u2019s challenges to the prosecutor\u2019s comments are for the most part not preserved for review as a matter of law (People v Balls, 69 NY2d 641), and in any event without merit. The prosecutor\u2019s characterization of this murder by a shotgun blast to the head as a \"cold-blooded\u201d killing was proper (see, People v Perez, 165 AD2d 658, 660, lv denied 76 NY2d 989), as was his call for the jury to give the victim\u2019s family justice (People v Perez, 176 AD2d 165, lv denied 79 NY2d 862)."], "id": "c1a22c2c-2380-4fa9-8a49-987d55b955e3", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After the oral decision was announced, the United States Court of Appeals for the Second Circuit decided United States v Naranjo (14d 145 [2d Cir 1994]). The court held that telephone calls from outside the Southern District of New York by Naranjo\u2019s to an undercover narcotic agent\u2019s beeper in Manhattan, in the Southern District of New York, were sufficient for venue if a conspiracy charge in the Southern District, \"at least in the absence of unfairness or hardship to the defendant arising from trial in that district, or artificial creation of venue in that district by the Government\u201d (at 146). That decision does not require a finding of venue on the basis of Kaiser\u2019s telephone call."], "id": "05865e61-4cf8-4be0-a545-b5a25a82b60c", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This is not the first time our court has relied on Simons when concluding a instrument *682that is not inherently deadly was used as a deadly weapon. In Page , supra , 123 Cal.App.4th 1466, 20 Cal.Rptr.3d 857, the defendant and his female robbed the victim and, after rifling the victim's pockets for his wallet, the female accomplice held a sharp pencil to the victim's neck and told him not to call the police. ( Id . at pp. 1468-1469, 20 Cal.Rptr.3d 857.) The defendant *332challenged his conviction for assault with a deadly weapon contending the pencil was not a deadly weapon. ( Id . at p. 1470, 20 Cal.Rptr.3d 857.) Relying on Simons and similar cases, this court concluded the accomplice used the pencil in such a manner that it was capable of producing serious bodily injury and, therefore, that under the facts of that case the pencil was a deadly weapon as a matter of law. ( Id . at pp. 1470-1473, 20 Cal.Rptr.3d 857.) We rejected the suggestion that Simons was distinguishable simply because it did not address the aggravated assault statute. \" '[N]o sound reason appears to define a \"deadly weapon\" for purposes of [Penal Code] section 245 differently than it is defined in other contexts under other statutes.' [Citations.] Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes. [Citations.]\" ( Page , at p. 1472, 20 Cal.Rptr.3d 857.)"], "id": "2f8a36ab-3bcd-4600-86f6-f83a3e925d23", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The testimony [from the accomplices] reveals that Pitts received a telephone call from Leslie Murphy, stating that she and Pitts's former girlfriend were in San Antonio and would be coming through Bruceville-Eddy that afternoon and wanted to meet with him. Pitts agreed to meet them outside a movie rental shop in Eddy. Pitts did not have transportation, so he called Kussmaul to pick him up. While waiting for Leslie Murphy to arrive, Pitts and Kussmaul went to the Frontier Lounge for an hour or two. They then went to the movie rental store where they picked up Leslie Murphy and her companion, Steven Neighbors. Pitts' former girlfriend was not with them. They all then rode in Kussmaul's pickup to a mobile home in a rural area near Moody. On their way they picked up another friend of Kussmaul's, James Long. Kussmaul lived at the mobile home with Michael Shelton and two girls. The two girls, however, were not present during any of the events that happened at the mobile home that evening. Michael Shelton was at the mobile home when Kussmaul left to pick up Pitts and was still there when the group returned. They only stayed at the mobile home a short period of time while they loaded up an ice chest with beer and left for Poor Boys, a nightclub in Eddy. They stayed at Poor Boys until nearly closing time and shot pool. All were drinking beer except Pitts and the victims, who were all underage. There was also some evidence that Kussmaul went outside Poor Boys at one point in the evening and smoked some marijuana. From Poor Boys they all rode back to the mobile home in Kussmaul's pickup truck. Shelton and others were still drinking beer, which was being passed from the coolers in the pickup bed through the rear sliding-glass window to those in the passenger cab. Shelton admitted to drinking 18 to 20 beers during the course of the evening. After being at the mobile home a short while, the testimony is that Kussmaul began \"harassing\" and making \"sexual advances\" on Leslie Murphy by placing his hands on her breasts and between her legs. Murphy *611apparently tried to discourage Kussmaul verbally and ultimately slapped him on his face. Kussmaul then hit her in the face with his fist, knocking her to the floor. Kussmaul then \"hollered\" at Pitts, Long, and Shelton to hold Murphy down while he took his lock-blade knife from the holster on his belt and cut the crotch out of her jeans and panties. According to the testimony, Leslie Murphy was screaming for help during this time. Kussmaul began raping her on the carpeted living room floor, but apparently due to her continued resistance, he and the accomplices forcibly carried her into the bedroom where she was \"thrown\" onto a bed which had a flowery yellow sheet on it. Prior to carrying Murphy into the bedroom, James Long hit Steven Neighbors in the face with his fist and knocked him \"almost unconscious\" on the floor. Pitts was trying to hold Murphy down on the bed, but she looked up and Kussmaul hit her in the face again and tied a \"gag\" around her head and over her mouth. After that, she was described as \"not moving much,\" and Kussmaul then raped her and left the bedroom. Long, Shelton, and Pitts then raped Murphy, during which occurrence a gunshot was heard from outside. Kussmaul returned to the bedroom with a rifle. Neighbors was dragged from the living room into the bedroom where Kussmaul kicked him in the face and he fell to the floor. Kussmaul then stated he was going to \"kill the fucking bitch\" and shot her once in the back. He then turned the rifle toward Neighbors and stated that he was \"going to kill him, too\" and shot him in the back, also. Kussmaul, Shelton, Long, and Pitts then wrapped the victims in sheets and placed them in the back of Kussmaul's truck. They drove around for awhile and eventually dumped the bodies beside a gravel road. They returned back to the mobile home and cleaned up the blood and vacuumed the floors. During the cleaning, Kussmaul was still in possession of the rifle, which was described as being bolt-action.2 B. The Corroborating Evidence"], "id": "9c145cb5-32a8-4b63-b0b2-0e79e13dca57", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Under the facts alleged here, the middleman\u2019s participation was integral to the success of the corrupt commercial bribing *824transaction, but this does not transform the middleman\u2019s conduct to that which is \"necessarily incidental\u201d. Bribe giving is directed at the bribe giver; bribe receiving is directed at the employee. When a third person is added to the calculus, that person\u2019s conduct may create criminal liability simultaneously as both an to the bribe giver and the bribe receiver. Of course, the separate crimes of commercial bribing and commercial bribe receiving would be concurrent counts for sentencing purposes. (See, Penal Law \u00a7 70.25 [2]; see also, CPL 300.30 [3].)"], "id": "747f5217-643a-49d1-bbb5-062f827ce687", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*371To conclude, this is a four-eyewitness case. The question for the jury was whether defendant\u2019s actions made him an (lookout) in aid of the self-confessed actual robber. The fact that defendant\u2019s culpable mental state in aiding the main perpetrator is shown circumstantially does not require, under prevailing law, a full-blown circumstantial evidence charge. Defendant was convicted under the applicable reasonable doubt standard, and he cannot properly demand more."], "id": "6303d837-494f-4c61-9eb1-1d60308c7b57", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In order to make these challenges on appeal, however, appellant was required to strictly comply with Arkansas Rule of Criminal Procedure 33.1 (2017), which mandates the content and timing of directed-verdict motions at trial. Appellant failed to comply with Rule 33.1. First, appellant's initial motion was too general and lacked any specific challenge to the State's proof, as required by Ark. R. Crim. P. 33.1(a) and (c). Second, appellant's motion did not mention credibility of witnesses, nor did it mention the requirement of corroboration of testimony.1 An appellant is bound by the scope and nature of the arguments raised at trial. Stewart v. State , 2012 Ark. 349, 423 S.W.3d 69 ; Brewer v. State , 2017 Ark. App. 119, 515 S.W.3d 629. And third, even if the initial motion contained the necessary specificity and included these arguments, appellant failed to renew the motion for directed verdict at the appropriate time, as required by Ark. R. Crim. P. 33.1(a) and (c) (at the close of the State's case and renewed at the close of all the evidence). Appellant's attorney admittedly waited until it was too late, presenting the renewal after the jury had begun deliberating on his sentence, which was after the jury had already found him guilty of first-degree murder. See Cathey v. State , 351 Ark. 464, 95 S.W.3d 753 (2003). We are therefore precluded from reaching appellant's sufficiency-of-the-evidence arguments on appeal."], "id": "c3b2ea4e-ffff-4aa1-a39e-db892fa7868f", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Administrative Code \u00a7 14-140 (b) provides in pertinent part: \u201cCustody of property and money. All property * * * taken from the person or possession of a prisoner * * * all property * * * suspected of having been used as a means of committing crime or employed in aid or furtherance of crime * * * shall be given, as soon as practicable, into the custody of and kept by the property clerk.\u201d Administrative Code \u00a7 14-140 (e) (1) provides in relevant part: \u201cWhere * * * property * * * ha[s] been used as a means of committing crime or employed in aid or in furtherance of crime * * * a person who so * * * used, [or] employed * * * any such * * * property or permitted or suffered the same to be used, [or] employed * * * or who was a participant or in any such act, or a person who *362derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to * * * such * * * property.\u201d"], "id": "62b65180-24d6-4dea-9c05-92c0d78608d7", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The law of this State with respect to pretrial inspection begins, and insofar as it is pertinent to the issue before me ends, with People ex rel. Lemon v. Supreme Ct. (245 N. Y. 24 [1927]). The defendant was accused of murdering her husband by poisoning his food. The defendant was granted an inspection of the Grand Jury minutes. She thus obtained all the medical testimony concerning the cause of death. The *804defendant was not satisfied with this disclosure. She also sought written documents not submitted to the Grand Jury. Included were a confession by her ; complete memoranda of the post mortem examination, and all other reports of chemical analysis of the organs of the deceased. All of these additional requests were granted. The District Attorney petitioned for an order of prohibition."], "id": "b9a1ea3d-1e55-4408-932c-14b487706e55", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We disagree and hold that the circuit court did not err by denying appellant's motion for directed verdict. A defendant is an so long as he or she renders the requisite aid or encouragement to a principal irrespective of whether the defendant directly commits the crime. Atkinson v. State , 347 Ark. 336, 347, 64 S.W.3d 259, 266 (2002). The accomplice-corroboration statute, enacted in 1883, remains virtually unchanged since its enactment:"], "id": "7f48b05b-d044-4fe6-8e28-e4656367dbf1", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Because K.F. was not \"charged with supervision of a minor\" as set forth in the statute, she is not in the class of persons who can commit the offense of first-degree endangerment.1 As a result, K.F. cannot be principally culpable for committing the offense of first-degree endangerment. The circuit court recognized this point at trial, noting that K.F. was \"correct in that the [endangerment statute] requires that somebody be a parent/guardian or otherwise legally charged with [the minor's] well-being.\" The court, however, accepted the State's argument *328that it was proceeding against K.F. as an to MaKayla, who was the person charged with supervision of the minor. We must therefore consider the matter of accomplice liability under Arkansas's statutes."], "id": "9b5d4e4f-2c0c-4a00-9694-cc4d8be63dee", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant moves, inter alia, for in camera inspection of the Grand Jury minutes, for disclosure of the minutes and of the prosecution\u2019s charge, and for dismissal or reduction of the indictment or the counts thereof. In particular, defense counsel questions the adequacy of the People\u2019s charge concerning sexual performance, and questions whether there was any evidence in support of what he assumes was testimony. The prosecution has not opposed inspection of the Grand Jury minutes, and this branch of the motion is therefore granted. The Court has read the minutes, and now turns to the remaining branches of defendant\u2019s motion."], "id": "ce2b6cf1-e6cf-40bf-ab92-de13c911a7d1", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court charged the jury regarding Mancini as follows: \u201c The People claim that among other witnesses they have corroborated what Daniello said, and have shown the defendant\u2019s connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places; that he heard some of the talk as to the planning of this shooting in Navy street; and that he went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to have been outside of or near the restaurant with Daniello at the time that the two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an ; that he was a party to the same undertaking, and was just as guilty as Daniello. An accomplice, very briefly, is anyone who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in question. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But *653as to Mancini, he does not say that he was a member of the gang, or had any hand at all in this killing. That he knew the others; that he went with them more or less and met them here and there is not denied, but whether or not he was an accomplice in the eyes of the law I am going to leave to you as a question of fact. It will be determined, as I have already indicated to you, by your decision as to whether or not you find on the proof in this case that he, Mancini, could himself have been properly and legally prosecuted for this particular crime. If he could have been, he is an accomplice; if he could not have been, he is not an accomplice. If he is not an accomplice, and you believe what he says, then you might \u2014 I do not say you would \u2014 find in his testimony corroboration of what Daniello said, at least as to some part, tending to connect the defendant with the commission of this crime.\u201d"], "id": "419f3674-707b-470c-abfa-1ab39bda06c9", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While the principal justification for the venue requirement is to protect the accused from the hardship and unfairness of being charged in a remote county, it also protects the interests of the community in which a crime or related activity occurs. ( Chavarria, supra , 213 Cal.App.4th at p. 1371, 153 Cal.Rptr.3d 378.) The flow of drugs into Yolo County was an effect of the phone calls that initiated the transactions in which defendant involved himself. Like the residents of Ventura County in Chavarria , the residents of Yolo County undoubtedly have a legitimate interest in the local prosecution of individuals who are *151responsible for the influx of illegal drugs into their community. ( Ibid . ) We conclude that Yolo County was a proper venue because defendant aided and abetted an who engaged in preparatory acts and whose conduct had preparatory effects in that county."], "id": "4efa6f88-ebe6-4d56-b98f-aa55ad9bd7ac", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The testimony was adequately corroborated by non-accomplice testimony that defendant had a motive for the robbery, as well as the opportunity to plan for it, and was observed immediately prior to the robbery in possession of a gun (later found secreted in defendant\u2019s apartment) that appeared to be the same gun used during the robbery, while utilizing a telephone near the robbery location at the time *406reported by the accomplice to be the occasion defendant chose to convey to the accomplice instructions regarding the robbery (see, People v Dory, 59 NY2d 121, 129)."], "id": "dfd9d741-5827-4abc-8f24-6a69d233f97d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the instant proceeding, the Property Clerk seeks to have *675the car forfeited pursuant to the Administrative Code of the City of New York. Section 14-140 (b) provides, in pertinent part, that the Property Clerk may take possession of \"all property * * * suspected of having been used as a means of committing crime or employed in aid or furtherance of crime\u201d. Where the seized property has \"been used as a means of committing crime or employed in aid or in furtherance of crime * * * a person * * * who so used, [or] employed * * * any such * * * property or permitted or suffered the same to be used, [or] employed * * * or who was a participant or in any such act * * * shall not be deemed to be the lawful claimant entitled to any such money or property\u201d (Administrative Code \u00a7 14-140 [e] [1]). The cases hold that this statutory scheme permits the Property Clerk to seek forfeiture of items used \"in aid or furtherance of crime\u201d (Property Clerk, N. Y. City Police Dept. v Hyne, 147 Misc 2d 774, 777, affd 171 AD2d 506; Moreno v City of New York, 69 NY2d 432, 435-436; Property Clerk, N. Y. City Police Dept. v Seroda, 131 AD2d 289, 295)."], "id": "252007db-6b23-4032-874c-7378bc8fbcb9", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Having concluded therefore that the books described in the foregoing exhibits violate the statute, the question presented is whether the defendant\u2019s connection with the publication, possession and hiring of others to assist him in the commission of the crime charged against him, has been established beyond a reasonable doubt. In the main, the testimony against the defendant was given by witnesses who, under the law, are deemed accomplicesl' However, we find that such testimony was amply corroborated by independent proof. It must be borne in mind that corroboration need not extend to every element of the crime charged. Testimony in corroboration as to some material fact is all that the law requires. (People v. Oglo, 104 N. Y. 511, 515; People v. Kress, 284 N. Y. 452, 460; People v. Swersky, 216 N. Y. 471, 480; People v. Patrick, 182 N. Y. 131, 157.) The evidence must be such as tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the triers of the facts that the is telling the truth. (People v. Crum, 272 N. Y. 348, 353; People v. Patrick, supra, p. 157; People v. Malizia, 4 N Y 2d. 22, 27; People v. Lashkowitz, 257 App. Div. 518; People v. Dixon, 231 N. Y. 111, 116, 117.)"], "id": "955a2b09-72e9-4d73-b7bd-237b8de5224d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The argument that the likelihood of success by the People has been diminished is not sustained. The case against these defendants is predicated on the testimony of an who minutely detailed the plan and operation of the conspiracy to rob and kill the victims and is corroborated by the identification of the respective defendants by eyewitnesses. All these witnesses are still available and, as heretofore mentioned, gave testimony upon which another codefendant, Robert Rice, was convicted."], "id": "08fc0235-15c6-46f4-b84b-81007d625746", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Further, although Smith's statements may have, as a legal matter, implicated her not only in the robbery/burglary, but in Kelley's murder as well, as a result of the felony murder rule, the exception for statements against interest focuses on whether a \"reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true.\" (Evid. Code, \u00a7 1230.) A \"reasonable\" person would not necessarily recognize the full legal import of the felony murder rule; rather, such a person would likely believe that it was in her penal interest to minimize her role and place the blame for an unintended death on an ."], "id": "92a65af4-9936-4907-88d3-ef4835cc63b6", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Corroborative evidence need tend only to connect defendant with the crime in such a way that the jury may be reasonably satisfied that the is telling the truth (see, People v Breland, 83 NY2d 286, 292-293; People v Steinberg, supra, at 683; People v Glasper, 52 NY2d 970, 971; People v Daniels, supra, at 629). The corroborative evidence, however, \"must be independent of, and may not draw its weight and probative value from, the accomplice\u2019s testimony\u201d (People v Steinberg, supra, at 683; see also, People v Moses, 63 NY2d 299, 306). Tapes of telephone conversations intercepted through the use of legal wiretaps can corroborate the testimony of an accomplice (see, People v Jewsbury, 115 AD2d 341, 342; People v Potenza, 92 AD2d 21, 28). If the incriminating nature of the conversations can be ascertained only by reference to the accomplice\u2019s testimony, however, the conversations are insufficient to corroborate the accomplice\u2019s testimony (see, People v Rosica, 199 AD2d 773, 775-776, lv denied 83 NY2d 876; People v Argueta, 192 AD2d 538, 539, lv denied 81 NY2d 1069; People v Pynes, 170 AD2d 981, lv denied 78 NY2d 972; cf., People v Weaver, 157 AD2d 983, 985-986, lv denied 76 NY2d 744). Here, as in Rosica, Argueta, and Pynes, the conversations, standing alone, are not incriminating. Only when they are referenced to the testimony of the accomplices, who explain what was \"actually\u201d being discussed, do the conversations become incriminating. Consequently, the conversations fail to corroborate the testimony of the accomplices, requiring reversal of the conviction and dismissal of the indictment. In light of that determination, it is unnecessary to reach defendant\u2019s remaining arguments. (Appeal from Judgment of Cayuga County Court, Corning, J.\u2014Criminal Sale Controlled Substance, 3rd Degree.) Present\u2014Green, J. P., Wesley, Callahan, Doerr and Davis, JJ."], "id": "0e2d6624-ead0-4d9e-af43-37995bcb8419", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To support his argument, Jackson relies on Henderson v. State , 279 Ark. 435, 437, 652 S.W.2d 16, 18 (1983), for the general proposition that in Arkansas, a \"full cross-examination\" should be allowed in order to show bias. However, Henderson is distinguishable from the case at bar. The disputed testimony in that case was from Henderson's admitted who was questioned about the type of deal he was getting from the State in exchange for his testimony against Henderson. See Henderson , 279 Ark. at 438, 652 S.W.2d at 18. Our supreme court held that the testimony should have been allowed because it was a direct evidentiary link between Henderson and the murders. See id. There was no such direct link here. The circuit court is allowed wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, waste of time, confusion of issues, or interrogation that is repetitive or only marginally relevant. E.g. , Green v. State , 2018 Ark. App. 38, at 2, 2018 WL 523256."], "id": "6a3a55bb-5f1f-415d-9fe8-aa64a29bbfea", "sub_label": "US_Terminology"} {"obj_label": "Accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There are many troubling aspects to this ad hoc photo identification procedure. In the first place, it had none of the reliability protections that come with a properly executed six-pack photographic lineup utilizing one suspect and five fillers as discussed earlier. The prosecutor essentially conducted a photographic lineup with only one photograph. There was also presumably *802no formal admonition. Further, the prosecutor's showing of the booking photo to Gomez during the period of her uncertainty gave Gomez precisely the type of positive feedback that experts in the field feel should be avoided. That is, the booking photo undoubtedly signaled to Gomez that she had correctly identified Miles as Two; she could plainly see from the booking photo that Miles was, in fact, the person that had been arrested near the time of the robbery. Moreover, the entire episode appears to have reduced or eliminated any doubt that she may have had. This undoubtedly engendered a false sense of confidence, and Gomez's confidence in her identification was undoubtedly communicated to the jury."], "id": "e4f77874-def5-42d3-b753-31f914817cbc", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In determining whether to hold a person criminally liable for the acts of another, the \u201cultimate question\u201d for the jury is whether the defendant, acting with the state of mind required for the commission of the crime, intentionally aided another person as an . (People v Roldan, 211 AD2d 366, 370 [1st Dept 1995].) Proof of an accomplice\u2019s mental state may be inferred from his actions and the circumstances surrounding the commission of the offense. (Id.)"], "id": "9a6f9e37-dafb-44f2-8f12-065265f7d3ef", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1 All statutory references are to the Penal Code. of voluntary manslaughter. Accordingly, we shall reverse the trial court\u2019s order denying appellant\u2019s petition and remand the matter for further proceedings in accordance with section 1170.95 as amended. STATEMENT OF FACTS AND PROCEDURAL HISTORY Appellant pleaded no contest prior to a preliminary hearing. The relevant facts, therefore, are derived from the probation report. On November 16, 2015, appellant\u2019s codefendants Raul Hidalgo and Luis Gomez entered a liquor store, grabbed several items, and attempted to leave through the rear exit. One of them was detained by a store employee. Employees Brian Jaime and Alfredo Alvarado followed the other man out of the store until he reached a vehicle driven by appellant. When someone in the vehicle pointed a gun at Jaime and Alvarado, they retreated and returned to the store. The detained told them \u201c[y]ou\u2019ll regret this, this is 18 Street, this is our hood and you\u2019ll regret this. You don\u2019t know who you\u2019re fucking with.\u201d He was tragically prophetic. The vehicle driven by appellant began circling the store. An unidentified individual got out of the vehicle, entered the store, and repeatedly shot Jaime and Alvarado. Alvarado was killed and Jaime was seriously injured. The shooter and detained accomplice fled in the vehicle driven by appellant. Appellant was charged with murder (\u00a7 187, subd. (a)), attempted murder (\u00a7\u00a7 187, subd. (a), 664) robbery (\u00a7 211), assault with a semiautomatic firearm (\u00a7 245, subd. (b)), dissuading a witness by force or threat (\u00a7 136.1, subd. (c)(1)), and voluntary manslaughter (\u00a7 192, subd. (a)), with gang and firearm use allegations. In June 2018, appellant pleaded no contest to voluntary manslaughter and admitted the crime was committed"], "id": "4880403b-922d-4f2e-837f-baab70878991", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The retrial commenced on March 15, 1993, and concluded on March 30, 1993, when defendant was again convicted of murder in the second degree. On May 24, 1993, he was sentenced to no less than 20 years to life imprisonment and his appeal to the Appellate Division, Second Department, is pending. At that trial the prosecution presented evidence beyond that offered at the first trial. Specifically, in addition to two eyewitnesses who testified at the first trial, an \u2014 one Michael Hodge \u2014 testified that the defendant had participated in a robbery and the homicide which resulted. As noted above, Ronald Holloway also testified for the first time that the defendant had confessed to him while both were in custody."], "id": "2f0711f8-baf6-41e8-9706-a3f62ce0203d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant argues that she meets none of the requirements of an under Ark. Code Ann. \u00a7 5-2-403, claiming that no evidence was presented that she aided, agreed to aid, or attempted to aid Butler in robbing or killing Scroggins. She maintains that she was simply present before and after Butler killed Scroggins and that she drove the vehicle to meet up with a guy who owed Butler money."], "id": "cf5343fa-3583-4e0b-9117-c907cd9f357f", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["section 12022.53(j) authorizes the court to impose an enhancement under section 12022.53(b) or (c) after striking a section 12022.53(d) enhancement. To answer that question, we must determine whether the existence of facts required by section 12022.53(b) and (c) were alleged and found true. Those requirements were met here. In connection with the robbery count, the information alleged that defendant \u201cdid personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an . . . within the meaning of Penal Code section 12022.53(d).\u201d This charging language referred to facts necessary to prove allegations under section 12022.53(b) and (c) as well. Firing a gun as alleged would meet the use requirement of section 12022.53(b) and the discharge element of section 12022.53(c). Likewise, the jury\u2019s findings established that these same facts were proven true. To summarize: When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j),"], "id": "003a96b6-696d-49fe-9115-75e703b75e7c", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Arkansas law makes no distinction between the criminal liability of a principal and an . Starling v. State , 2015 Ark. App. 429, at 4, 468 S.W.3d 294, 296 ; see Ark. Code Ann. \u00a7 5-2-402(2). Appellant's argument fails to acknowledge that death was inflicted on Scroggins during the commission of a robbery. See Ark. Code Ann. \u00a7 5-12-103(a)(3). Because the evidence established that appellant participated or aided in the commission of an aggravated robbery in which death was inflicted on the victim-regardless of her knowledge of whether a gun might be used in the commission of the offense-Scroggins's death made the offense an aggravated robbery; accordingly, appellant was an accomplice to that crime."], "id": "31e67ee6-f9f4-4e08-96dd-3725996714c6", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On April 19, 1991, at approximately 10:00 p.m., the defendant and an unapprehended , each armed, entered the Jamaican Food Restaurant at 1135 Flatbush Avenue in Brooklyn. The defendant held a gun to the head of the cashier and demanded money. When the cashier responded that she did not know where the money was, the defendant pointed the gun at the chef and again demanded money. The chef placed money from the register into a bag at the defendant\u2019s command. A struggle ensued between the defendant and the chef, and the chef knocked the gun from the defendant\u2019s hand. The defendant then called to his accomplice, who was guarding the door, and told him to kill the chef. The accomplice fired a shot at the chef, but the chef escaped uninjured. The defendant and the unapprehended accomplice fled, leaving the bag of money inside the restaurant."], "id": "e3da8f8b-9e72-4f9d-a537-8bad76bd8384", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The instant case is somewhat distinguishable from Aviles (supra) since there is no mention in that case of a misleading entry sign. In any event, in our view the question should not be whether the plaintiff is trapped on all sides by physical barriers. (As alluded to above, a knife-wielding male, with an , intent on robbery is often more than enough of a barrier for a surprised and cornered female in a subterranean setting.) Rather, the question should be whether NYCTA\u2019s allegedly negligent acts and/or omissions were undertaken in a proprietary or a governmental capacity. We hold today that in the instant case NYCTA\u2019s alleged acts and/ or omissions were well within the proprietary sphere."], "id": "3865eaae-af80-4460-871c-702c71580739", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendants assert the trial court erred in upholding a codefendant attorney's claim of work-product privilege in declining to turn over a report of an interview the codefendant's attorney and the attorney's investigator had conducted with a jewelry store victim. The codefendant had pleaded guilty to reduced charges by the time defendants requested the interview midtrial or, alternatively, requested to call the codefendant's attorney to testify about the interview. Defendants assert the interview was relevant to the provocative acts doctrine because it naturally would touch on why the victim shot at the unarmed (Desmond Brown) whose death formed the basis of the murder charge against defendants. In particular, if the victim stated in the interview that he shot Brown because of Brown's aggressive conduct, rather than because of another robber's violent acts, that would aid the defense theory that Brown was solely responsible for his own death, relieving them of vicarious liability under the provocative acts doctrine. As our Supreme Court has explained, however, the Penal Code does not provide for discovery among codefendants. ( People v. Thompson (2016) 1 Cal.5th 1043, 1095, 210 Cal.Rptr.3d 667, 384 P.3d 693 ( Thompson ).) This is consistent with the general rule in litigation that each party is responsible for his or her own investigation and trial presentation. Thompson recognized exceptions exist to ensure the defendant's right to a fair trial. ( Id. at p. 1096, 210 Cal.Rptr.3d 667, 384 P.3d 693.) But none apply here, particularly where defendants' chief claim of the value of the codefendant's interview-that it was conducted entirely in the shopkeeper victim's native language *118-turned out to be inaccurate, and where neither defendant suggested he could not secure an interview with the shopkeepers. In these circumstances, there was no infringement of defendants' right to a fair trial. *168Defendants also challenge the sufficiency of the evidence to support their murder conviction under the provocative acts doctrine, but there is no merit in that claim and we therefore affirm the judgment."], "id": "85bec747-508b-415d-9e2f-2b7ae25a83c6", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is conceded that the only proof offered to sustain the serious charges made against all these petitioners was the uncorroborated oral testimony of one Harry Gross, a claimed alleged , who by his own admission is a man whose sole activity for many years was widespread commission of crimes; one who confessedly made crime his business and lived on its proceeds by, he claims, widespread bribery and corruption on his part of public officials. He had no memoranda or records; he said he always destroyed his records shortly after they were made; he used no notes and his testimony involved not only the present petitioners but many others in the police department *395against whom no charges appear. A reading of the record indicates that he did not testify \u2018 \u2018 forthrightly \u2019 \u2019 as the Trial Commissioner found, but glibly and apparently even boastfully enjoying the important position that he conceived himself to occupy from which, merely by his oral say-so, he could strike down any policeman against whom he saw fit to make charges of taking bribes from him. Thus he testified to bribery of patrolmen, captains, lieutenants, inspectors and \u201c divisions \u201d. Not as a penitent criminal seeking sincerely to make amends for a confessed life of crime did he appear before the Trial Commissioner. The reason that he first gave for refusing previously to testify, namely, regard for the families of the accused, was destroyed by his own later admissions. When asked to tell why he.had repeatedly refused to testify before Judge Riekind and at the request of the Corporation Counsel, he answered as follows: A. \u201c Counselor, I was never talked to; I was \u2014 nobody come to see me. Nobody said a word. I was taken out of Rikers Island; I was put in a van; I was brought down here; my name was called out; I took the stand, and in my own knowledge I thought I was doing what I \u2014 I was protecting myself for. Whatever plan the District Attorney might have had, or the Corporation Counsel, I didn\u2019t know. It wasn\u2019t discussed with me. Nobody told me what could be done for me or what \u2014 how I could help myself or anything else.\u201d He then added that the only time he found out he \u20186 could help myself \u2019 \u2019 was at his sentencing when he was assured that he would get \u201c consideration \u201d if he testified \u201c in these police trials \u201d. In answer to a question as to whether he was told a recommendation would be made for leniency for him if he did so testify, he answered that the Corporation Counsel would make the recommendation and go along with the District Attorney\u2019s recommendation \u201c which he had said at my sentencing.\u201d He was then asked and answered as follows: \u201c Q. What prompted your talking now? A. That, yes, I hope to get consideration.\u201d"], "id": "f3cb6b21-d9ed-439d-9158-7bc5a92d3158", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Here, the Grand Jury\u2019s reconsideration was clearly not sua sponte, but the result of prosecutorial overreaching. The prosecutor\u2019s affirmation demonstrates that he unilaterally intervened in the proceedings in a manner which caused or contributed to the Grand Jury\u2019s decision to reconsider their action by (1) entering the chamber and engaging in an \u201coff the record\u201d conversation with grand jurors about their vote, (2) specifically inquiring as to the other 10 charges not true billed, including four counts of attempted murder, after he was initially informed that they only true billed the misdemeanor assault charge, all of which occurred after his second charge, at their request, on liability, assault in the second degree and assault in the third degree as to one complainant, (3) discussing \u201cacting in concert\u201d for the third time, now \u201coff the record\u201d, and (4) discussing their deliberative process while witnessing the ensuing passionate debate."], "id": "868d5879-bda9-4681-a4f2-a5c6bc4deba0", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Murder committed in the perpetration of, or attempt to perpetrate, robbery is deemed by statute to be first degree murder. (Former \u00a7 189, now \u00a7 189, subd. (a).)4 Subdivision (a)(17) of section 190.2 provides for a penalty of death or LWOP for a defendant found guilty of first degree murder committed \"while the defendant was engaged in, or was an in, the commission of, attempted commission of, ...: [\u00b6] (A) Robbery in violation of Section 211 ....\" ( \u00a7 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A).)"], "id": "8293eb0f-685c-49c7-8b77-71ff7d725f76", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Santa Clara County District Attorney charged Bedolla by information filed on January 11, 2017, with attempted first degree burglary, a felony, committed on October 31, 2014 ( Pen. Code, \u00a7\u00a7 664, 459, 460, subd. (a) ;1 count 1). The information also alleged a special circumstance within the meaning of section 667.5, subdivision (c)(21), that a person not an (A.D.)2 was present in the residence during the commission of the attempted burglary."], "id": "87a72eb6-9497-452b-8208-930fab0f0148", "sub_label": "US_Terminology"} {"obj_label": "Accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is not necessary at this point to fully review the entirety of the evidence. In short, the prosecution relied on the eyewitness testimony of Patlan and Gomez who identified Miles as Two at the scene of the Fidelity office in Fullerton on June 29, 1998. Without that testimony, which can now fairly be characterized as \"false\" within the meaning of the habeas corpus statute, there is a reasonable probability that the jury would not have convicted Miles. Thus, in my opinion, the false identification evidence was \"material\" and therefore would have been dispositive for the purposes of granting Miles habeas corpus relief."], "id": "dc9ae6e5-7920-4f57-a0e1-5d21c48445ff", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Cona (49 NY2d 26 [1978]), defendants appealed on the theory that the evidence at trial was legally insufficient based on the absence of corroboration of an accomplice\u2019s testimony. The Appellate Division reversed the convictions. The Court of Appeals reinstated the convictions despite the lack of corroboration based on defendants\u2019 failure to preserve the issue through a specific objection: \"To create and preserve a question of law amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction * * * In the instant case, no objection was made to that portion of the court\u2019s charge which dealt with the application of the corroboration rule * * * hence, under settled rules of law and statutory construction, these defendants failed to preserve a question of law as to the correctness of that portion of the charge\u201d (People v Cona, supra, at 33 [citations omitted])."], "id": "d96afef3-f952-4dcc-919c-f7d34efaa865", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By amended information, defendant was charged with two counts of robbery in the first degree ( \u00a7\u00a7 211, 212.5, subd. (a) ; count 1 (victim J.T.)), robbery in the second degree ( \u00a7\u00a7 211, 212.5, subd. (c) ; count 2 (victim J.N.)), burglary in the first degree (\u00a7\u00a7 459, 460 subd. (a); count 3 (victims J.T. & I.A.)), possession of a controlled substance ( Health & Saf. Code, \u00a7 11350, subd. (a) ; count 4), two counts of petty theft with a prior conviction (\u00a7\u00a7 484, subd. (a), 488, 666, subd. (b); counts 5 & 6), possession of controlled substance paraphernalia (former Health & Saf. Code, \u00a7 11364.1 ; count 7), and two counts of impersonating an officer (\u00a7 146a, subd. (a); counts 8 & 9). In connection with count 3, the information alleged that, during the commission of the first degree burglary, another person not an to the crime was present in the premises within the meaning of section 667.5, subdivision (c)(21). The information further alleged that defendant had two *714prior strike convictions within the meaning of section 667, subdivision (e)(2), that he was previously convicted of a serious felony within the meaning of section 667, subdivision (a)(1), and that he served a prior prison term within the meaning of section 667.5, subdivision (b)."], "id": "8675dc44-839a-4c4a-8b68-7e7487c03279", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The principal witness against the defendant was Maria Bodine, on whom it is charged the abortion was produced. The defendant\u2019s counsel objected to her admissibility as a witness, on the ground that she had been the principal in, and instigator of, the offence charged in the indictment. The law is well settled that a principal is a competent witness against an accessary. So also are accomplices against their copartners in crime. The principle is founded on rules of public policy. In many cases there is but little other evidence; and it is better that an should be punished than that all should escape. Besides, the practice has a tendency to prevent dangerous combinations under which the worst crimes are perpetrated. In the case of David Conkling, tried for murder, in Orange county, before Van Ness, J., in 1819, Jack Hodges, who shot the deceased, and was therefore a principal, was admitted as a witness, and Conkling was convicted, partly upon his testimony. The case of The People v. Whipple, (9 Cowen\u2019s Rep. 707,) is an authority in favor of the rule, and not against it, as was *224supposed by the defendant\u2019s counsel. The court there refused to admit Strang as a witness, not because he was incompetent, but because it was discretionary to admit or* reject him, and it would have defeated the ends of public j\u00fcstic\u00e9 to allow him to testify. In the case of The People v. Costello, (1 Denio, 83,) it was expressly decided that the woman on whom an abortion was produced was a competent witness. There can be no doubt on this point."], "id": "432d3351-9b19-480d-b74e-a97684b4e4a2", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Additionally, at the plea hearing, Mr. Booker also pleaded guilty to two other offenses-second degree robbery and misdemeanor assault-for which he was charged in a separate case under a theory of liability. During the plea, Mr. Booker expressed some confusion that he could be charged for robbery when he assaulted the victim but it was his codefendant who removed money from the victim. The plea court called a recess for Mr. Booker to talk with his attorney. After the break, the plea court went through the evidence of the offense again and inquired whether his attorney explained to him what it meant to be \"acting with another.\" The plea court then asked if he understood this, and Mr. Booker answered affirmatively. When questioned regarding his guilty plea in this case, Mr. Booker did not equivocate in admitting he \"acted with\" others in committing the assault on A.A. The record, therefore, refutes Mr. Booker's assertion that his plea was unknowing and involuntary because he was unaware whether he was being charged as a principal or an accomplice."], "id": "52a5b6c3-594b-4809-9129-960ec5d54016", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On Whittaker's argument the State failed to produce sufficient evidence showing he appropriated the lawn mower because it was attached to the truck via a bungee cord, taking the evidence most favorably to the State, the police officer testified he was told by Victim and Victim's girlfriend that Whittaker was pushing the lawnmower away from the truck when Victim approached him. This would allow the trier of fact to reasonably infer a bungee cord was no longer attached to the lawn mower. But even if a bungee cord was attached, the State still produced sufficient evidence showing Whittaker appropriated the lawn mower and he admitted as much at trial, testifying that he took the lawn mower from the truck and placed it on the ground. See State v. Escoe , 78 S.W.3d 170, 174 (Mo. App. W.D. 2002) (noting that crime of robbery is consummated when the robber gains control of the property, even for a moment); State v. Hackney , 750 S.W.2d 621, 622 (Mo. App. E.D. 1988) (finding sufficient evidence to show the defendant exercised complete dominion over victim's purse despite the defendant ultimately leaving purse behind in victim's car as he fled because victim released it to him in the car and the duration of the dominion is immaterial); State v. West , 629 S.W.2d 429, 433 (Mo. App. W.D. 1981) (concluding sufficient evidence was presented to establish the defendant and his \"assumed control over the camper shell by removing it from the place where they found it and this taking, inconsistent with the owner's rights, was an appropriation.\"). Whittaker's bungee cord argument is too much of a stretch. There is no doubt Whittaker appropriated the lawn mower by removing it from the truck and placing it on the ground, whether a bungee cord was attached to it or not. Point I is denied."], "id": "27420759-8702-4c76-b9a8-7414064c6817", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There is no merit to the defendant\u2019s claim that the testimony of his was insufficiently corroborated. The nonaccomplice evidence presented by the People, if credited by the jury, was legally sufficient to meet the standard of CPL 60.22 (1), which provides that a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense. Accordingly, the trial court did not err in submitting the murder count to the jury."], "id": "779825f3-a571-499c-827f-55e1b90117d8", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["under the accomplice-witness rule, we eliminate the testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Malone, 253 S.W.3d at 257. To meet the requirements of this rule, the corroborating evidence by itself need not prove the defendant\u2019s guilt beyond a reasonable doubt. Id. Rather, the evidence simply must link the defendant in some way to the commission of the offense and show that rational jurors could conclude that this evidence sufficiently tends to connect the defendant to the offense. Id. Thus, when there are two permissible views of the evidence, one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense, appellate courts should defer to the view of the evidence chosen by the fact-finder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The issue is not how an appellate court independently would assess the non-accomplice evidence but whether a rational fact-finder could conclude that the non-accomplice evidence tends to connect the accused to the offense. See id. at 509."], "id": "aa005c7d-6752-4b13-9b50-59278c5ddb10", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["juvenile bound over to adult court under the mandatory-bindover provisions because the juvenile committed a crime with a firearm, the charged juvenile had to have actually had possession of the firearm. The statute provides that a child is eligible for mandatory bindover when \u201c[t]he child is alleged to have had a firearm on or about the child\u2019s person or under the child\u2019s control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.\u201d R.C. 2152.10(A)(2)(b). Therefore, the statute requires that to be eligible for mandatory bindover based on an aggravated robbery, a juvenile must have himself possessed the firearm. {\u00b6 88} In State v. Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059 (2000), paragraph two of the syllabus, this court held that the complicity statute does not apply to the juvenile-bindover criteria set forth in former R.C. 2151.26 (now R.C. 2152.12, see Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447, 9549). That is, in the context of a bindover proceeding, the element of controlling a firearm cannot be satisfied by the activity of an . {\u00b6 89} But the determination by the juvenile court in this case that there was no probable cause to believe that Smith had the firearm himself did not end the inquiry as to whether he and the case should be transferred to the adult court. That finding meant only that Smith was not subject to a mandatory transfer. The juvenile court then had to decide whether transferring Smith and his case to the adult court was proper based on the statutory requirements of discretionary bindover. Conclusion {\u00b6 90} Today the majority creates an outcome by inserting its own policy- making preferences into the language of the statute. The majority therefore elevates its policy preferences over the will of the people and the people they elected to serve in the General Assembly who are entrusted on behalf of all Ohioans to make policy decisions through the enactment of laws."], "id": "29017018-eb4d-4211-b34a-30e041136806", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The leading case on the subject in this State is People v. Evans ([1869] 40 N. Y. 1, 3), where it was held that the jury could not convict for subornation of perjury upon the uncorroborated testimony of a single witness \u2014 the admitted perjurer. This decision was rendered prior to the time when it was necessary to corroborate the testimony of an , and held in effect that the necessity for corroborating the testimony of the perjurer in prosecutions for subornation of perjury was an exception to the general rule. The question involved in these motions was raised directly on the appeal in the foregoing case. Upon the trial of the defendant for subornation counsel requested the court to charge that if the evidence of the perjurer were not corroborated, the jury could not convict upon the perjurer\u2019s unsupported testimony and the court declined so to charge. This was held to be error, and the conviction was reversed. Judge Mason, writing the opinion, states: \u201c I am of opinion, that in the case at bar, the judge should have advised the jury, that if they found Near uncorroborated, they should acquit the defendant. There must be some exceptions to all general rules, and I would make this case an exception to the general rule, that a prisoner may be convicted on the uncorroborated testimony of an accomplice.\u201d"], "id": "e89296ac-951a-4312-a112-f59630dc775d", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The information charged Bedolla with attempted first degree burglary and alleged that a person not an was present in the residence during *541the commission of the attempted burglary, within the meaning of section 667.5, subdivision (c)(21). The jury found the allegation to be true. Bedolla argues the section 667.5, subdivision (c)(21) allegation must be stricken because the evidence at trial showed that neither Bedolla nor Mariscal gained entry to the house. The People agree that section 667.5, subdivision (c)(21) does not apply to attempt crimes and must be stricken."], "id": "a2b17586-b9b0-4db3-a267-41b9aee93dfc", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"The following constitutional provisions and statutes require evidence that corroborates a witness's testimony: Cal. Const., art. I, \u00a7 18 [treason]; Pen.Code, \u00a7\u00a7 1111 [ testimony]; 1111.5 [in-custody informant]; 653f [solicitation of felony]; 118 [perjury]; 1108 [abortion and seduction of minor]; 532 [obtaining property by false pretenses]. \"Give the bracketed phrase 'if you decide (he/she) is an accomplice' and CALCRIM No. 334 if the jury must determine whether a witness is an accomplice.\""], "id": "ea51b09a-c29d-456c-8579-8a255e3d7fc7", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The property clerk contends that the $8,605 is the proceeds of, and is derived from, the sale of a controlled substance and is therefore subject to forfeiture pursuant to section 435-4.0 (subd e, par 1) of the Administrative Code of the City of New York. Section 435-4.0 (subd e, par 1) provides that: \u201cWhere moneys or property have been unlawfully obtained or stolen or embezzled or are the proceeds of crime or derived through crime * * * or derived through the use of [sic] sale of property prohibited by law from being held, used or sold * * * a person who so obtained, received or derived any such moneys or property, or who so used, employed, sold or held any such moneys or property or permitted or suffered the same to be used, employed, sold or held, or who was a participant or in any such act, or a person who derives his claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to any such moneys or property\u201d."], "id": "dff053b0-38f2-4770-8325-27649fffe224", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The predicate in the Ultramares case is misrepresentation\u2014 misrepresentation, negligent or otherwise, that causes economic loss to a third party even though there be lack of privity between the injured party and the one making the misleading representation. That element is missing here. \"When the bank certified the check it accurately represented a fact \u2014 the fact that the drawer of the check had sufficient funds on deposit to pay the amount certified. The subsequent alteration of the check by the drawer or the drawer\u2019s did not convert into misrepresentation by the bank a representation,,that was truthful when made by the bank."], "id": "6c8017c9-df03-45e3-91e3-23b8956c2d9a", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["2 The State argued the federal felony conviction for conspiracy to commit murder in aid of racketeering was comparable to Washington\u2019s conspiracy to commit murder or first degree murder under theory. These offenses are both class A felonies. RCW 9A.28.040(3); RCW 9A.32.030(2); RCW 9A.08.020(3). As a \u201cviolent offense\u201d either crime would contribute 2 points to Escobar\u2019s offender score. Former RCW 9.94A.030(55)(a)(i) (2018); RCW 9.94A.525(8). If the federal felony conviction is not comparable to a Washington offense, it is scored as a class C felony and scores as 1 point. RCW 9.94A.525(3), (8); former RCW 9.94A.030(34) (2018)."], "id": "9bfa8153-5d0c-4b4b-a58e-dd13441e91e3", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thereafter, the District Attorney appeared in County Court on June 9, 1993, while there on another matter, and on the record, without the presence of the defendants or their attorneys, moved to dismiss the indictment based upon the pleas in Town Court, and made the following statement: \"May it please the Court, in the matter of the People against Cummings, Curcio, Hartle, Pistolesi and Streeter, the People respectfully move the Court to dismiss the indictments. These defendants have recently plead to separately filed Informations charging them with sexual misconduct. The reason I\u2019m moving to dismiss the indictments is the evidence before the grand jury, any evidence that we could garner to take these matters to trial would be insufficient, in my estimation, even to get to the injury on the basis of not being able to prove a corpus delicti. Granted we have a confession or statement from three of them, but under 60.50 of the Criminal Proce*1121dure Law, they cannot be convicted solely upon those statements. If they were called to testify individually in seven [sic; probably should read 'separate\u2019 or 'several\u2019] trials, they would be entitled to take their 5th Amendment right, and the only thing that could be done is they could be confronted with their previous statement, and under, I believe it\u2019s 60.35 of the Criminal Procedure Law, that cannot be used as direct evidence, but only to discredit your own witness, and each one would be considered accomplices, and under another section of 60 point, I can\u2019t remember that section, but they cannot been [sic] convicted solely upon testimony. We have no independent evidence that a crime was committed. We have a complaining witness who cannot even testify that she was at the scene of the crime, any remembrance whatever of any incident that happened. There is no forensic evidence, no clothing, no possibility of doing any DNA testing, because there was [sic] no specimens, no rape kit done. I feel that justice has been done by the pleas in local court, and we respectfully move to dismiss the indictment pending against these five defendants.\u201d The court then and there dismissed the indictment on application of the People. The court made no findings and stated no other reasons."], "id": "86d6eae6-cf53-41b8-988b-0caff9ec30fd", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is urged on argument of this motion, however, that while Autuori and Loffredo might be accomplices so far as each was suborned, that, although all the transactions and conversations alleged to have taken place between the defendant and themselves were at the same times, that Loffredo was not an of defendant in the subornation of Autuori and vice versa. On argument I expressed dissent to this contention. I am now fortified in my opinions by the decision in People v. Batt, (165 Misc. 540; affd., 253 App. Div. 718.)"], "id": "b0806f3a-b9f5-43be-ab04-dd10741080ff", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"As used in this section, 'serious felony' means any of the following: ... (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an ....\" The Three Strikes law (\u00a7\u00a7 667, subd. (b)-(i), 1170.12, subd. (b)) provides for enhanced penalties for those previously convicted of a serious felony (\u00a7\u00a7 667, subd. (e), 1170.12, subd. (c)), and defines serious felony by reference to section 1192.7, subdivision (c). (See \u00a7\u00a7 667, subd. (d), 1170.12, subd. (b) [\"Notwithstanding any other provision of law ... a prior serious ... conviction of a felony shall be defined as: (1) ... [A]ny offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state\"].)"], "id": "6e7f4036-62ec-46a2-9dfe-1edb758179ff", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["But as to incest, our statutes are silent in so far as corroboration is concerned. It may well be that if the prosecutrix-were over the age of consent and had been a willing participant in the crime charged, that then corroboration would be required, not because of the sexual nature, of the crime but on the theory that she was a criminal . However, that question is not involved here. In each count charged in this indictment the prosecutrix is under the age of consent and in the absence of statutory provision to the contrary, the common-law rules of evidence will apply. No corroboration is required in the present case."], "id": "086e863e-96b7-45c2-826f-eb24fa029fba", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The results of re-testing of the items will not prove the defendant innocent, and viewing all possible results in a light most favorable to defendant would merely muddy the waters. The denials were appealed and affirmed.7 The court of appeals noted in Kussmaul's case that, even if identity were an issue, exculpatory results would not matter: an exculpatory inference \"would not outweigh the three witnesses' testimony, the evidence corroborating such testimony, and Kussmaul's jailhouse confession.\"8 In Long's case the court said that \"Long does not challenge the court's finding concerning identity.\" So even if the convicting court applied the wrong standard to the issue of \"whether Long would have been prosecuted or convicted if DNA testing yielded exculpatory results, we would not reverse the court's decision.\"9 In Pitts' case, the court said: \"Had DNA results revealed the presence of Pitts's DNA at the scene, this could indicate guilt. If DNA results revealed the absence of Pitts's DNA at the scene, this neither negates his participation nor disproves his culpability as a party to the offense.\"10"], "id": "5d1e67b5-fe69-410a-8a1f-8aeb176f9ff3", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant seeks an order dismissing the indictment on the grounds that the Grand Jury presentation was defective since the grand jurors lacked proper guidance and constitutionally sound legal instructions when they reached their charging decision. The defendant claims that the Grand Jury proceedings were impaired since there is no guarantee that 12 grand jurors concurred when they voted on the first degree murder charges as to the defendant\u2019s status as principal or ."], "id": "b8160093-7483-43f1-ae47-467a588101c7", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Where there is no conflict in the evidence or it is not susceptible of two different constructions, the court must determine as a matter of law whether a witness is or is not an ; *246but, if the testimony raises a question of fact as to whether a witness is or is not an accomplice of the defendant in the commission of a crime, that question must be submitted to the jury for determination. People v. Sweeney, 213 N. Y. 37, 46. It is well settled that in order to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and a person who directly or indirectly counsels, induces or procures another to commit a crime is a principal, as defined by section 2 of the Penal Law, and is therefore an accomplice. The failure to disapprove or the mere approval of a crime after the event, or even before the event, may not of itself be sufficient to constitute one an accomplice. Some act or word of counsel, inducement, encouragement, participation or procurement must be added to passive acquiescence. It is clear that one cannot be made an accomplice from the mere fact that he is asked by another for a bribe, but his subsequent conduct upon the making of such suggestion may indicate that he is or is not an accomplice. As was stated by Justice McLaughlin in People v. Hyde, 156 App. Div. 618, at page 625: \u201c the person to whom the officer is made, if he rejects it, is clearly not an accomplice.\u201d If, on the other hand, he undertakes negotiations or by counsel or act furthers the suggestion, with intent to participate in the crime, he would be an accomplice."], "id": "37771ac8-36e7-4c28-a7de-ac9cf46333ed", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant argues on appeal that the State failed to present sufficient evidence to corroborate the testimony *278of Jorge Chirinos. Appellant specifically argues that the State failed to present evidence to connect him with the commission of the crimes in addition to proving the occurrence of the crime. Appellant further argues that his statements to law enforcement, if considered, establish only his mere presence at the crime scene, which is insufficient. Additionally, appellant argues that the State failed to present sufficient evidence to show that appellant was an accomplice to the alleged crimes because the evidence showed only his mere presence at the crime scene and did not show the requisite criminal intent. We disagree."], "id": "2d597430-b8e3-4335-8e99-43bf6723b77c", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Count V also alleged Defendant \"rummaged through [Patel's] pockets,\" and it appears there was no evidence presented at trial that this specific conduct took place. Defendant does not argue on appeal that the State was required to prove the conduct because it was alleged in the substitute information. Nevertheless, we find sua sponte that the alleged conduct of rummaging through Patel's pockets is mere surplusage the State was not required to prove in order to convict Defendant of attempted second-degree robbery. This is because, (1) the language of the charging document informed Defendant of the offense charged and, as explained below, the facts ultimately proven fell within the definition of the offense of attempted second-degree robbery under a theory of liability; and (2) Defendant does not argue or demonstrate his defense was impaired by any variance between the substitute information and the evidence presented at trial. See State v. Edwards , 510 S.W.3d 374, 379-80 (Mo. App. E.D. 2017) and State v. Bradshaw , 411 S.W.3d 399, 402-03 (Mo. App. S.D. 2013) and State v. Nelson , 334 S.W.3d 189, 195-98 (Mo. App. W.D. 2011) (finding language in an indictment was mere surplusage under similar circumstances)."], "id": "1ca2d732-b7d4-480c-b194-fba0228542bd", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Two police officers observed the alleged , Otis McFall, near a telephone booth. They then observed the defendant emerge from a driveway, call to McFall and hand to McFall what appeared to be an electric cord and a handkerchief. The officers stopped the defendant and McFall and, in response to questioning, the handkerchief containing some money rolled up in it was produced by McFall. The officers subsequently learned that a nearby apartment had been broken into. The defendants were arrested, the cord and handkerchief were seized from McFall and a radio and cassette tapes were seized from the defendant Johnson. Defendant Johnson sought to suppress all the seized property including the handkerchief, money and the cord taken from McFall upon the grounds his (Johnson\u2019s) Fourth Amendment rights were violated."], "id": "d1487faf-88d9-4657-b8bb-d829f6662a7f", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" The defendant further contends that the Supreme Court erred by failing to submit a jury instruction for an as a matter of law pursuant to CPL 60.22 with respect to Lovell, who testified against the defendant at trial pursuant to a cooperation agreement with the People. This contention is unpreserved for appellate review because the defendant did not request an accomplice corroboration jury instruction pursuant to CPL 60.22, and he did not object to the final charge as given for failing to include the instruction (see CPL 470.05[2]; People v Darby, 196 AD3d 643). In any event, while the court should have instructed the jury that the subject witness was an accomplice as a matter of law (see CPL 60.22; People v Montello, 197 AD3d 575), the error was harmless because the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the error affected the verdict (see People v Crimmins, 38 NY2d 407; People v Montello, 197 AD3d 575). The defendant failed to establish the absence of a strategic reason for defense counsel not requesting an accomplice charge pursuant to CPL 60.22 and, therefore, contrary to the defendant's contention, defense counsel was not ineffective in failing to request one (see People v Thorpe, 141 AD3d 927; People v Anderson, 120 AD3d 1549)."], "id": "b5649a73-c2b9-4a2c-a831-f75e671decc5", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A person commits murder in the first degree if, acting alone or with one or more other persons, the person commits or attempts to commit a felony and, in the course of and in the furtherance of the felony or in immediate flight from the felony, the person or an causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. \u00a7 5-10-102(a)(1)(A) & (B)."], "id": "b1207950-47eb-4aec-9bf5-6f012cf15ea0", "sub_label": "US_Terminology"} {"obj_label": "accomplice", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On appeal, appellant contends that the evidence was insufficient to corroborate Easter's testimony as to either the commission of the offense or his involvement in it. He argues that the elements were not proved because no one, other than Easter, testified that a theft occurred or that weapons were used. He contends that the circuit court should not have allowed Officer Jones to testify about what Pickens told him because it was hearsay and violated his rights under the Confrontation Clause. The test for corroborating evidence is whether, if the testimony of the were totally eliminated from the case, the remaining *174evidence independently establishes the crime and tends to connect the accused with its commission. MacKool , 365 Ark. at 430, 231 S.W.3d at 688. When reviewing the sufficiency of the evidence supporting a conviction, we consider all the evidence introduced at trial, whether correctly or erroneously admitted, and disregard any alleged trial errors. Williams v. State , 2018 Ark. App. 277, at 4, 550 S.W.3d 42, 46."], "id": "d0b54a60-c87c-410a-b284-a0c67cfc03c3", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["to forfeiture, rather than the amount that was received by the entire criminal enterprise. We therefore conclude that the DHS can meet its burden of demonstrating a loss in excess of $10,000 to the victims of an offense involving fraud or deceit under section 101(a)(43)(M)(i) by showing that a respondent was subject to criminal forfeiture for such an amount and that the forfeiture ordered was traceable and sufficiently tethered to the conviction. See Chiao Fang Ku v. Att\u2019y Gen. U.S., 912 F.3d 133, 140 (3d Cir. 2019) (considering a forfeiture allegation contained in the information and holding that a conviction under 18 U.S.C. \u00a7 1343 constituted an aggravated felony under section 101(a)(43)(M)(i)); Eversley-MacClaren v. Holder, 578 F. App\u2019x 664, 666 (9th Cir. 2014) (determining that the Board appropriately relied on a forfeiture order, along with other sentencing documentation, to find the loss to the victims exceeded $10,000 under section 101(a)(43)(M)(i)); cf. Barikyan v. Barr, 917 F.3d 142, 146\u201347 (2d Cir. 2019) (holding that an order of forfeiture showing a respondent laundered more than $10,000, established that he was convicted of aggravated felony pursuant to section 101(a)(43)(D) of the Act). In the instant case, the respondent was convicted of conspiracy to commit wire fraud under 18 U.S.C. \u00a7\u00a7 1349 and 1343. He agreed in his plea agreement that he was subject to forfeiture for his offense under 18 U.S.C. \u00a7 981(a)(1)(C) (subjecting to forfeiture all property derived from proceeds traceable to the offense, or a conspiracy to commit the offense). See Thompson, 990 F.3d at 683 (involving a defendant convicted under 18 U.S.C. \u00a7\u00a7 1349 and 1343 who was subject to forfeiture under 18 U.S.C. \u00a7 981(a)(1)(C)); United States v. Day, 524 F.3d 1361, 1375\u201376 (D.C. Cir. 2008) (describing when a forfeiture order is appropriate under 18 U.S.C. \u00a7 981(a)(1)(C)). The sentencing judge applied the Supreme Court\u2019s decision in Honeycutt in determining the forfeiture amount, specifically linking this amount to proceeds directly traceable to the respondent. See Thompson, 990 F.3d at 689 (determining Honeycutt applies to forfeiture under 18 U.S.C. \u00a7 981(a)(1)(C)); see also Honeycutt, 137 S. Ct. at 1632\u201335 (holding that forfeiture is limited to property or proceeds in the defendant\u2019s possession that are directly traceable to his or her conduct). According to the amended judgement, the respondent was ordered to pay \u201c[f]orfeiture traceable to the offense, in the amount of $346,717.08.\u201d The amended judgment and the letter from the Federal prosecutor both explicitly state that the $346,717.08 forfeiture amount was traceable to the respondent\u2019s criminal conduct of conspiring to defraud cell phone customers. 3 This amount is thirty-four times greater than $10,000. The respondent asserts that the prosecutor\u2019s letter is not sufficiently reliable to establish that he agreed to the $346,717.08 forfeiture amount. However, as we previously noted,"], "id": "2d9f6ed3-a160-44e8-bfa0-05a6cb135200", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The PATRIOT Act is an important piece of legislation containing directives to the insurance industry concerning many aspects of the procurement of policies, revealed through the regulations which have been promulgated thereunder. Despite the paucity of specifics provided by MetLife as to what aspect of the PATRIOT Act would permit it to void the subject policies on the ground that the premiums were paid by Stanley rather than by decedent, this court finds that MetLife has put forth sufficient evidence to show that it may have had reason to revoke the policies, or at least to investigate the situation with regard to Stanley, under its legislatively-required anti- program, adequate to forestall summary judgment at this time. Whether MetLife\u2019s decision to void the policy was a reasonable exercise of its rights under the PATRIOT Act is a factual question."], "id": "dc554c56-10eb-447a-a91c-43a1d83f62fc", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant Jedadiah Ray Bolding was convicted of one count of grand theft and eight counts of . On appeal, he challenges his money laundering convictions, in part, on the ground that the prosecution failed to offer sufficient evidence tracing the illegally obtained money to the monetary transactions involved in each of the money laundering counts. We conclude there was sufficient evidence supporting defendant's money laundering convictions based on the language of Penal Code section 186.10, subdivision (a), and current analogous federal law on money laundering."], "id": "0ee08f32-b1b8-4cf6-b96a-83602057f3b0", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Kenneth L. Gartner, J. A published news article recently reported that an investiga*10tion into possible being conducted through the racetracks operated by the defendant New York Racing Association was prompted by a small-time money laundering case in which a Queens bank robber used stolen money to purchase betting vouchers and then exchanged the vouchers for clean cash. (Newsday, Sept. 28, 2000, at A33, col 1.) The instant case does not involve any such question of wrongdoing, but does raise a novel legal issue regarding the negotiability of those same vouchers when their possession is obtained by a thief or finder. The defendant concedes that \u201cthere are no cases on point.\u201d"], "id": "b8da3b46-513c-4643-80ee-688ae2234d51", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["O'Brien , 482 S.W.3d at 607 (\"The indictment states that Kelvin committed the enumerated offense of theft 'by acquiring and otherwise exercising control over property ... owned by' Karat 22 and the enumerated offense of 'by purchasing a house, by purchasing a pool, by purchasing motor vehicles,' etc.\"). The application paragraph of the jury charge adopts this construction."], "id": "bda9432b-5d5d-4a66-b5f5-6cb65400f384", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant was tried on one count of engaging in organized criminal activity. That count alleged that Appellant, with the intent to establish, maintain, or participate in a combination3 or in the profits of a combination, committed second degree theft or second degree .4 The theory was that Appellant was part of a criminal ring that committed multiple jewelry store heists. The biggest heist, and the focus of the trial, was that of a Houston store called Karat 22, which was owned by Aku Patel. As the name might imply, Karat 22 specialized in high-quality gold jewelry."], "id": "ea94af49-1dac-4277-b38c-816130b002dc", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["MetLife contends that the payment of the premiums by Stanley may have been a form of illegal speculation in insurance, which is disallowed under its underwriting practices, in con*959junction with, and mandated by, the federal \u201cUSA PATRIOT Act,\u201d2 in order to avoid potential in furtherance of terrorism. It claims to have a \u201cstrict policy\u201d of not accepting third-party checks without knowledge of the source of the funds, especially where payment of the premiums is made by a party who is not closely related to the insured. MetLife argues that decedent falsely represented that he would be paying the premiums, and that plaintiffs actively concealed the identity of the true payor.3 It claims that it would not have issued the policy had it known that the decedent would not be paying as represented. MetLife maintains that \u201cat minimum, MetLife would have postponed issuing the policy while it conducted an investigation with respect to whether the intended premium payor had an acceptable explanation for paying the premiums\u201d so that it could \u201cproperly estimat[e] the degree and character of the risk it was assuming.\u201d (MetLife\u2019s mem of law in opposition at 2.)"], "id": "45334a47-c59b-43f5-a595-d94c0f2473df", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["prison hanging o\ufb00 the skids of a helicopter.1 He was convicted in the Southern District of Illinois for drug and criminal en\u2010 terprise o\ufb00enses and in the Southern District of Florida for racketeering, and $60 million and $50 million forfeiture judg\u2010 ments were entered against him, respectively, as part of his sentences.2 Over a decade later, Kramer filed a motion for an accounting in the Southern District of Illinois of the amounts collected by the government to satisfy his $60 million forfei\u2010 ture judgment. The district court granted the motion but, given the complexity of his case, limited the accounting to what was collected in the Southern District of Illinois toward that judgment. On appeal, Kramer argues that the district court should not have credited to his judgment the amounts forfeited un\u2010 der a 2003 settlement agreement. He also claims that the dis\u2010 trict court abused its discretion in limiting the accounting only to the amounts that were collected in the Southern Dis\u2010 trict of Illinois. We disagree and a\ufb03rm the district court\u2019s judgment. In the 1980s, Kramer and his associates oversaw a nation\u2010 wide drug smuggling operation. The venture was lucrative, generating about $180 million in profits. To keep their ill\u2010got\u2010 ten gain, they sought the help of Sam Gilbert, who devised an elaborate international scheme. As"], "id": "23814cc2-a77e-4375-9e4a-1abe2d8c9013", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Additionally, even though the majority already holds that the jury does not need to be unanimous as to the predicate offenses, it nevertheless engages in Schad analysis to reach the holding that the theft and in this case are both morally and conceptually equivalent. The majority's analysis in this regard is hedging its bets: in case it is wrong about whether the predicate offenses need unanimous verdicts as a general rule of law, at least the predicates in this case do not. As far as the actual analysis about why the offenses are morally and conceptually equivalent, I am unsure if the majority's reasoning is sound. Essentially, the reasoning is: (1) the offenses are connected because the money laundering is laundering the proceeds of the theft; (2) they are both first degree felonies in this case. This is nowhere near the same as the kill-and-burn/burn-and-kill example given by Justice Scalia."], "id": "3671a8b9-1fd5-437d-bc6a-274c737b3a04", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Lastly, DeskSite posits that is a \"known concern\" within the automobile industry, especially with high-end exotic cars. Even if we accept this to be true, the use of a third party's check to pay for a car by itself is still not a red flag of money laundering, particularly where, as here, the check contains a memo line with the customer's initials on it. Further, courts have refused to fashion new duties to deal with similar endemic problems such as identity theft and have justified that refusal with reasoning that is equally applicable here: \"Given the scope of the problem and the consequences to the community of imposing a noncontractual duty with resulting liability for breach, a decision to shift the burden of loss from the actual victim to a third party duped by the thief is one to be made, if at all, by the Legislature, not the judiciary.\" ( Rodriguez , supra , 162 Cal.App.4th at p. 466, 75 Cal.Rptr.3d 543.)"], "id": "a24c8a2b-fe35-4837-aea1-1fc403d658b4", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain or participate in a combination or in the profits of a combination, said combination, consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of theft in that the defendant on or about February 6, 2011 did unlawfully appropriate by acquiring or otherwise exercising control over property, namely, gold, jewelry, gems and watches owned by C. Patel or Karat 22 Jewelers of the value of over two hundred thousand dollars with the intent to deprive C. Patel or Karat 22 Jewelers of the property then you will find the defendant guilty as charged in the indictment; or If you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of , namely in that he heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, knowingly transfer, invest or expend funds which constituted the proceeds of criminal activity, of the value of at least two hundred thousand dollars by purchasing a house, by purchasing a pool, by purchasing motor vehicles, by purchasing a boat, by purchasing a watch, by purchasing heavy equipment, by moving funds from one bank account to another or by paying bondsmen's fees, then you will find the defendant guilty as charged in the indictment. The word \"unanimously\" appeared in the section of the jury charge dealing with selection of the jury foreman:"], "id": "f036092b-a744-4ac8-8c67-e79172b4b5ea", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In 2010, the BLP collapsed and Plaintiffs lost their investments. An FBI investigation revealed that Sigillito operated the BLP as a Ponzi scheme. Unsealing the indictment in May 2011, the United States charged Sigillito with , wire fraud, and mail fraud. The federal indictment asserted that, inter alia , Sigillito and Brown retained unauthorized placement fees after transferring their clients' assets. A jury found Sigillito guilty, and the federal district court sentenced him to forty years in prison. Sigillito's convictions and sentences were affirmed. United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014)."], "id": "c9765b36-d8c6-483d-972d-85b14196c441", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiff claims she provided money to defendant in several ways. Much of it she gave to him in the form of \u201cinvestment\u201d checks. These checks were paid in increments of $10,000, $12,000 or $13,000. Plaintiff signed, dated and wrote the amount on these checks, but left the payee portion blank. She provided these checks to defendant multiple times throughout any given month. Apparently, defendant cashed many of these checks in money exchange houses in South America and in the United States, including the Beacon Hill Service Corporation in New York. That company was later the subject of a criminal *352investigation for and for transmitting funds without a license. Plaintiff claims that between 1992 and 2004, she wrote checks to defendant for \u201cinvestments\u201d in the amount of $7,579,500."], "id": "1655dd3b-b87e-4ad0-a3c2-3c5519b6c454", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the unpublished portions of this opinion, we conclude that (1) there was sufficient evidence of in count 25 of the operative charging document; (2) defendant forfeited an issue regarding the jury instructions for the money laundering counts; (3) the sentencing enhancements for white collar crime must be reversed; (4) the trial court did not err by imposing consecutive rather than concurrent sentences on the money laundering counts; and (5) the minute order and abstract of judgment must be amended to reflect the correct amount of defendant's custody credits."], "id": "3069cc93-4d8f-4241-b55c-dd144dd24a21", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The trial court sentenced defendant to 10 years in state prison: an aggravated term of three years on count 1; a consecutive five-year term for the Penal Code section 186.11, subdivision (a) enhancement; and a consecutive two-year term for the Penal Code section 12022.6, subdivision (a)(2) enhancement on count 1. The court imposed a three-year aggravated term on each of the charges, and ordered that those sentences be served concurrently to the sentence on count 1. The Penal Code section 186.10, subdivision (c)(1)(A) enhancements on counts 20 through 27 were stricken for purposes of sentencing. In addition to other fees and fines, the court ordered defendant to pay $ 1,115,396 plus interest in restitution."], "id": "ea27256f-79ad-4f9e-b5aa-32b36064dcde", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The majority view, as summarized by the Fourth Circuit Court of Appeals, is: \"Money is fungible, and when funds obtained from unlawful activity have been combined with funds from lawful activity into a single asset, the illicitly-acquired funds and the legitimately-acquired funds (or the respective portions of the property purchased with each) cannot be distinguished from each other [citation]; that is, they cannot be traced to any particular source, absent resort to accepted, but arbitrary, accounting techniques [citation]. As a consequence, it may be presumed in such circumstances, as the language of section 1957 permits, that the transacted funds, at least up to the full amount originally derived from crime, were the proceeds of the criminal activity or derived from that activity. [Citations.] A requirement that the government trace each dollar of the transaction to the criminal, as opposed to the non-criminal activity, would allow individuals effectively to defeat prosecution for by simply commingling legitimate funds with criminal proceeds.\" ( U.S. v. Moore (4th Cir. 1994) 27 F.3d 969, 976-977 ; see U.S. v. Silver (S.D.N.Y. 2016) 184 F.Supp.3d 33, 51-52.)"], "id": "d203724a-34eb-4c5d-bc8f-6575e4291e68", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In September 1994 the United States Attorney for the Southern District of New York informed petitioner of an investigation her office had conducted in 1990, which implicated respondent in narcotics trafficking and . Respondent\u2019s alleged involvement in these activities was through her relationship with one Selwyn Wilson, a young man whom her firm had represented in a criminal matter in the mid-1980\u2019s. Charged with assault and robbery, Wilson had pleaded guilty to reduced charges and received a sentence of probation, on condition that he maintain lawful employment. Respondent developed a \"warm familial relationship\u201d with Wilson (counsel describes him as respondent\u2019s \"surrogate son\u201d), employing him briefly as an office clerk and then as her personal assistant and driver. According to Wilson, he escorted respondent in the latter capacity to meetings and social functions, and on those occasions he often spent the night at her homes in the Bronx or in Brookville, Long Island."], "id": "83534846-df67-456e-a5c7-bfc882cb9d86", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["An additional dubious inference regards the amounts of money involved. As the court\u2019s December 17, 2007 decision shows, 19 of the larceny and insurance fraud counts had to be reduced because of a failure of proof to meet the monetary thresholds. It is true that in that same decision the court implicitly allowed the grand jury to infer that a significant portion of the clinic\u2019s revenues could be considered proceeds subject to . However, it is one thing to extrapolate from the revenues of the \u201cstaged\u201d accident victims and the overtreated patients to reach larger threshold sums; it becomes quite another to do so using \u201cprofits.\u201d When the amounts of money are limited to \u201cprofits,\u201d and here I refer back to my decision to follow Santos, and the defense has rightly argued that a \u201cprofit analysis\u201d was never done in the grand jury, the inference drawn from these calculations to reach the required threshold monetary amounts becomes too speculative and untenable."], "id": "5fc33fac-f71c-4074-8467-9da7d4a119d4", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Applying the capable-of-ascertaimnent test objectively, the facts alleged by Plaintiffs demonstrate that their damages were capable of ascertainment by May 2011, The parties agree that the BLP collapsed after an FBI investigation in 2010 and that Plaintiffs received notice of their extensive investment losses shortly thereafter. The parties acknowledge that Sigillito's federal indictment was unsealed in May 2011. Sigillito's indictment revealed the charges of , wire fraud, and mail fraud arising from BLP operations. The federal indictment exposed the wrongful nature of the BLP venture, linking Plaintiffs' investment losses to, and unveiling the damage caused by, the BLP's administration. The federal indictment also established that Sigillito, in managing the BLP, retained numerous unauthorized placement fees before directing the distribution of his clients' assets to overseas borrowers and committed improper self-dealing in these transfers."], "id": "1b8d49e8-4d42-4bc9-a5d7-320b72361876", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The remaining counts of in the second degree are based upon the defendant\u2019s demand that McCormack International deposit $50,000 in an Irish bank account in his wife\u2019s name. This deposit, according to the victims of *1012the extortion, was a direct result of Capparelli\u2019s threats. Credit in an account in a financial institution is a form of \"[equivalent property\u201d (Penal Law \u00a7 470.00 [2]), and a deposit of money into a bank account is a \"[transaction\u201d (Penal Law \u00a7 470.00 [3]) within the meaning of the statute. However, not every transaction involving the proceeds of specified criminal conduct is money laundering. (See, e.g., United States v Sanders, 928d 940, 944-947 [10th Cir 1991].) The evidence must establish that the transaction involved an \"exchange\u201d of proceeds of criminal conduct for other monetary instruments or equivalent property. Had the defendant attempted to withdraw these funds, the withdrawal would have constituted a \"[t]ransaction\u201d (Penal Law \u00a7 470.00 [3]) in which the proceeds were exchanged, and would have established money laundering. (See, e.g., United States v Jackson, supra, 935d, at 841.) Here, the $50,000 deposit was the product of the crime. Accordingly, only the first part of the required exchange occurred. Nonetheless, the evidence justifies the inference that the defendant intended by this deposit in his wife\u2019s name, to conceal the source of this money and to benefit from his extortion. Only the further requirement of his wife\u2019s personal presence to complete forms, prevented culmination of the exchange. Since the evidence showed that the McCormacks\u2019 deposit of the $50,000 put it within the defendant\u2019s power to complete the exchange, which he apparently failed to do only out of fear of detection, these counts are reduced to an attempt to commit money laundering in the second degree. (People v Mahboubian, 74 NY2d 174, 191-192 [1989].)"], "id": "bdd0f32f-a443-4ede-96e0-1f894e023634", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A jury convicted defendant of one count of grand theft ( Pen. Code, \u00a7 487, subd. (a) [count 1] ), and eight counts of (id. , \u00a7 186.10, subd. (a) [counts 20 through 27] ). The jury found defendant not guilty of 18 counts of fraudulently falsifying records. (Id. , \u00a7\u00a7 470, 471 [counts 2 through 19].) The jury found true the sentencing enhancement allegations that the conduct in counts 1 and 20 through 27 involved the taking of more than $ 500,000 (id. , \u00a7 186.11, subd. (a)(1), (2)); that the transactions represented by counts 20 through 27 involved more than $ 50,000 but less than $ 150,000 (id. , \u00a7 186.10, subd. (c)(1)(A)); and that the value of the property loss in count 1 was in excess of $ 200,000 (id. , \u00a7 12022.6, subd. (a)(2))."], "id": "1e69b553-ab20-44de-93ba-3ac227815d22", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, , and tax evasion all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government."], "id": "366ceb9a-2c7c-455d-b003-716c7d3634c4", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Second, the prosecutor proffers an assertion that \u201cthe charge in the SCI was supported by the facts in the complaint.\u201d Even if true, this is immaterial. The People likewise asserted in Zanghi that the felony complaint supported the information charge, but, as noted, the Court dismissed the point as insignificant because the judge who held the defendant for grand jury action \u201cneed never have . . . considered\u201d whether they did so. (79 NY2d at 818.) Likewise here, there was no necessity, in holding Baez for grand jury action, to determine whether the felony complaint\u2019s allegations supported probable cause to believe he had committed promotion . Thus, even if the allegations did so, this would not alter the fact that, under Zanghi, he was held on a different offense. (Cf. Kohl, 19 AD3d at 1155-1156 [defendant held on credit card theory of grand larceny not held on credit card theory of felony possession of stolen property despite \u201ccommon elements of fact and law\u201d].)"], "id": "f140a693-4300-47e3-8b02-c30edd3056bd", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201c[a]t a minimum, the program required by paragraph (b) of this section shall: \u201c(1) Incorporate policies, procedures, and internal controls based upon the insurance company\u2019s assessment of the and terrorist financing risks associated with its covered products. Policies, procedures, and internal controls developed and implemented by an insurance company under this section shall include provisions for complying with the applicable requirements of subchapter II of chapter 53 of title 31, United States Code and this part, integrating the company\u2019s insurance agents and insurance brokers into its anti-money laundering program, and obtaining all relevant customer-related information necessary for an effective anti-money laundering program.\u201d 31 CFR 103.137 also provides for the appointment of a compliance officer ([c] [2]), ongoing training ([c] [3]), and independent testing to see if the company is in compliance with the regulations ([c] [4])."], "id": "9d85e1df-b146-41e3-a640-66cbb9620873", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Finally, there are two other items that indicate that Money Center was not duped into participating in the scheme but was a knowing participant. First is the reference to Money Center in the DEA summaries of the wire taps monitoring the conversations between Skymit\u2019s principal, Tayo Ayeni, and Steve\u2019s principal, Steve Wangboje. The summary states: \"They discuss the guy with the Money Center, Mr. Ogbege [sic] and Skymit.\u201d Second is the conclusion stated in the \"Letter Of Request for the Apprehension of Funds\u201d from the Criminal Investigation Court of Macau which states, inter alia, referring to the Money Center BONY account, \"upon the holder[s] of those accounts exist strong suspicion of having received such funds, being well aware were originated of criminal activities\u201d. Taken as a whole there is enough to rebut a motion to dismiss."], "id": "1af39703-27f0-4452-b877-63d149fd124d", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Capparelli\u2019s stated purpose in obtaining these checks was to make a down payment on the Queens house. With the aid of the checks, Capparelli was able to purchase the house, enabling Capparelli to benefit from the extortion by investing the cash derived from that crime and further aiding Capparelli to commit and profit from that crime by providing opportunity for the use of labor and materials extorted from McCormack International and its subcontractors on the Tudor project. (Penal Law \u00a7 470.10 [2]; see, e.g., United States v Saget, 991d 702, 712 [11th Cir 1993].) It is important to note that the purchase of the house with the proceeds of the crime is not under our statute, since real estate is not \"[equivalent property\u201d as defined by section 470.00 (2). The purchase of the house is relevant only insofar as it proved that the defendant\u2019s intent in converting the cash to checks, was to enable him to benefit from the proceeds of the crime, and to facilitate its commission. (See, e.g., United States v Montoya, 945d 1068, 1076 [9th Cir 1991] [applying 18 USC \u00a7 1956 (a) (1) (A) (i) defendant\u2019s deposit of bribe check sufficed under statute requiring proof that defendant engaged in the transaction with \" 'inten(t) to promote the carrying on of specified unlawful activity\u2019 \u201d].) Accordingly, these counts are sustained."], "id": "1131eb84-2f1a-4054-849e-9d4e4f5bee4f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["However, an allegation of fraud may be based on \"an act or conduct by defendant\u201d that is intended to deceive plaintiff. Concealment of facts one has an obligation to disclose with the intent to defraud has the same legal effect as an affirmative misrepresentation. (See, Quadrazzi Concrete v Mastroianni, 56 AD2d 353 [1977].) Here, the complaint alleges that Money Center was part of the conspiracy to defraud BNU which began in Macau with Chan\u2019s misappropriation of the $6.5 million. The heart of the allegation is that Money Center willingly took part in a phase of the conspiracy. Money Center\u2019s financial links to Steve\u2019s, Keymon and Skymit are clear. There is a strong indication that those three entities were involved in a scheme that included the purloined BNU funds."], "id": "96e30afa-70dd-47e2-92e2-c3954dc36dee", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On March 20, 2013, the Supreme Court sentenced the respondent to concurrent indeterminate terms of imprisonment of 2 to 6 years for each of the grand larceny convictions, 3 to 9 years for the conviction, 2 to 6 years for the scheme to defraud conviction, and 1 to 3 years for the conspiracy conviction. The respondent was also directed to pay a crime victims\u2019 assessment fee of $25, a DNA fee of $50, and a surcharge of $300. The respondent failed to notify the Court of his convictions."], "id": "12066b4a-8766-4f3c-8f7f-b31f26f8c69f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["consecutive terms of 60 months and 84 months that were required for his two 18 U.S.C. \u00a7 924(c) convictions. Lewis was also convicted of one count of conspiracy to interfere with commerce by threats or violence, a violation of the Hobbs Act; eleven counts of ; one count of money transactions in property derived from specific unlawful activity; seven counts under the Hobbs Act for interference with commerce by threats or violence; and one count of possession of a firearm by a felon. Lewis first challenges the district court\u2019s application of the five-level enhancement under U.S.S.G. \u00a7 2B3.1(b)(2)(C) to two robberies. The enhancement applies if a firearm is brandished during a robbery. With respect to the robbery in Strongsville, Ohio, the district court did not clearly err in determining that it was reasonably foreseeable to Lewis that a firearm would be brandished. See United States v. Jordan, 945 F.3d 245, 263-64 (5th Cir. 2019), cert. denied, 140 S. Ct. 2698 (2020), and cert. denied, 141 S. Ct. 606 (2020). Although Lewis did not commit the Strongsville robbery himself, the evidence sufficiently connected him to the robbery and the unknown person who brandished the firearm while committing the robbery. The evidence showed that Lewis entered the jewelry store about two weeks before the robbery and discussed the availability of high-priced diamonds with the manager. The unknown person later stole diamonds from the same case of large diamonds where Lewis spoke to the manager. Lewis also stayed at a hotel near the store, and he later possessed diamonds that were consistent with ones taken in the robbery. He also had personal knowledge that brandishing a firearm was one way to commit a robbery because he earlier provided a different accomplice with a firearm and that accomplice brandished the firearm during two other robberies. Lewis also challenges the application of the \u00a7 2B3.1(b)(2)(C) enhancement to the robbery of Wright Pawn and Jewelry Company. Contrary to Lewis\u2019s argument that the Government failed to rebut the"], "id": "55d53ed8-f9b0-4a1a-bd4f-bad2081ec3bd", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["DOE arbitrarily and capriciously concluded that the crime and facts surrounding petitioner\u2019s plea bore a \u201cdirect relationship\u201d to the license\u2019s requirement of working with *392children. According to DOE, as part of her licensing investigation, petitioner revealed that she was convicted of petit larceny for stealing merchandise while employed at Best Buy. DOE proffers no evidence demonstrating how such conduct would be relevant to petitioner\u2019s potential employment as a school bus attendant, where she would not be in charge of sales, handling cash, or taking in orders and processing returns (see Matter of Gil v New York City Dept. of Bldgs., 107 AD3d 632 [1st Dept 2013] [holding that respondents arbitrarily concluded that petitioner\u2019s conviction for mail fraud and bore a direct relationship to the duties and responsibilities attendant to a stationary engineer]). DOE\u2019s argument that petitioner would be responsible for the \u201cconfidential information\u201d of children during the performance of her duties is unpersuasive. DOE does not specify what, if any, \u201cconfidential information\u201d of children petitioner would be responsible for in her capacity as a school bus attendant. Had the potential for a financial benefit been shown here, DOE could have established a link between petitioner\u2019s prior offense and the license she now seeks. No such connection was established. Indeed, DOE has not shown that a situation could emerge wherein petitioner would use the \u201cconfidential information\u201d of children for the purpose of inuring a financial benefit to herself. Instead, DOE\u2019s denial appears to be based on supposition unsupported by facts."], "id": "d7102930-c51f-4ca9-a741-e2dc93c5beac", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["First, only a portion of the 69 counts in the operative indictment involve aggregation of multiple acts into single counts. Notably, counts 2 through 19 for insurance fraud in violation of Penal Code section 550, subdivision (a)(6), explicitly allege that \"the aggregate amount of claims and amount at issue exceeded Nine Hundred Fifty dollars ($950) ....\" Counts 20 through 37 for violations of Insurance Code section 1871.4, subdivision (a)(1) (the workers' compensation claims as defined in Lab. Code, \u00a7 3207 ), do not overtly use the term \"aggregate\" regarding multiple acts, but the counts are based on such multiple acts. Further, petitioner argues as much in the petition and in his traverse, contending that the insurance and workers' compensation fraud claims are improperly aggregated, violate the due process requirement of adequate notice of the charges against him (discussed in the next section), and that the other counts against him (e.g., conspiracy, capping, etc.) must fall if the fraud claims are improper. Counts 38 through 66 for ( Pen. Code. \u00a7 186.10, subd. (a) ), addressed solely against this petitioner, do not aggregate claims, nor do the remaining counts. Accordingly, we will only address the aggregation issue with respect to counts 2 through 19 and 20 through 37."], "id": "98d20b18-49c4-4235-b083-b4fc255556df", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cA person is guilty of in the second degree when that person exchanges or receives in exchange, in one or more transactions, one or more monetary instruments which are the proceeds of specified criminal conduct and have a total value exceeding ten thousand dollars for one or more other monetary instruments and/or equivalent property when that person knows that the monetary instrument or instruments exchanged or received in exchange are the proceeds of any criminal conduct and that person: \u201c1. intentionally makes the exchange to conceal or disguise the nature, the location, the source, the ownership, or the control of such proceeds; or \u201c2. intentionally makes the exchange to aid himself or another person to commit or profit or benefit from specified criminal conduct\u201d. (Penal Law \u00a7 470.10.) As set forth in the Practice Commentaries to Penal Law article 470, the essential conduct involved in money laundering is the exchange of certain forms of ill-gotten money for other forms of money or equivalent property. (Donnino, Practice Commentaries, McKinneys Cons Laws of NY, Book 39, Penal Law art 470, at 582.) Usually, cash is the medium of money laundering, but it need not be. Here the allegation is that credit with *471American Express was obtained, through which American Express would give checks and electronic deposits to the limousine companies, which would then give checks to defendant Carlyle, the escort service. The defendants\u2019 point is a technical one, that checks are not monetary instruments within the meaning and intent of the statute. The People argue that the statutory definition of \u201cmonetary instrument\u201d includes \u201ccoin and currency of the United States or of any other country; bank checks; traveler\u2019s checks; money orders; and investment securities and negotiable instruments in such form that delivery is sufficient to pass title.\u201d (Penal Law \u00a7 470.00 [1].) Here, however, the checks at issue were none of these; they were personal business checks. The equivalent Federal statute tracks the State definition almost precisely (see, 18 USC \u00a7 1956 [c] [5]), except the Federal statute explicitly includes \u201cpersonal checks\u201d. While the People assert that this was a mere oversight and the Legislature intended to include personal checks, the court cannot agree. The inclusion of bank checks, which are independent obligations of the bank issued on behalf of, in some instances, an anonymous remitter, shows that the Legislature focused on the issue of checks, but deliberately excluded personal checks. The instruments here are not bank checks."], "id": "d0abac9c-42c0-42e4-b68a-3f620c2268f3", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is true that punitive damages are not normally granted unless there is a wrong to the public (Walker v Sheldon, 10 NY2d 401). However, punitive damages can be awarded for a breach of contract where there is bad faith or a dishonest failure to carry out a contract (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427). Although punitive damages in contract actions are relatively rare, they can be awarded where the defendant\u2019s conduct is deemed by the court to be truly egregious. For example, in Aero Garage Corp. v Hirschfeld (185 AD2d 775 [1st Dept], lv denied 81 NY2d 701), in which a landlord deliberately prevented a tenant from obtaining a permit needed to operate the tenant\u2019s business, the Court awarded the tenant punitive damages against the landlord. In the instant case, if plaintiff\u2019s allegations are assumed to be true, as they must be for present purposes, DLJ dismissed plaintiff by reason of his attempt to report serious violations of securities laws and regulations designed to prevent . Certainly there is a strong public policy in favor of encouraging persons such as plaintiff to report violations of these laws without fear of retaliation by the employer. Thus, the claim for punitive damages in the first cause of action shall be sustained."], "id": "ff1b4478-28b9-403a-b89f-14e98a8e6f11", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Rye Funds entered into two substantially similar administrative services agreements\u2014a July 1, 2007 agreement between Rye Select Broad Market Fund LP and Rye Select Broad Market Prime Fund LP and BNY-AIS (Mehta aff, exhibit D); and a September 1, 2006 agreement between Rye Select Broad Market XL Fund LP and BNY-AIS. (Mehta aff, exhibit E.) The agreements provided for BNY-AIS to furnish the administrative services listed on schedule I, which include: establishing and maintaining accounts in the name of the Rye Funds; receiving and disbursing subscription payments in connection with the sale of the Funds\u2019 shares; receiving and paying fees and expenses on behalf of the Funds; acting as registrar and transfer agent with respect to the Funds\u2019 shares and, in that capacity, processing subscription applications and maintaining subscriber registers and ledgers; preparing and maintaining customary financial and accounting books and records; acting as liaison with the Rye Funds\u2019 independent public accountants; computing the net asset value of the Funds\u2019 shares; and providing specified anti- services involving subscribers."], "id": "79f010e7-b096-4f81-b60e-90ea6dcaa7f7", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendants request the court to revisit the viability of the counts against these defendants (count 44 [originally 54 \u2014 Penal Law \u00a7 470.15 (1) (b) (ii) (A); (iii)];1 count 45 [originally 55 \u2014 Penal Law \u00a7 470.15 (1) (b) (ii) (A); (iii)]) and for a dismissal of those counts or an order precluding proof of them by the prosecutor at trial, based upon United States v Santos (553 US \u2014, 128 S Ct 2020 [2008])."], "id": "d06091ff-c54f-426e-9bd3-12f48e4ec59e", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This was not the only fraud in this matter, but was the only one discussed in the affidavit. Nyamekye was tried on charges of conspiracy to commit , 18 U.S.C. \u00a7 1956(h), and engaging in monetary transactions in property derived from specified unlawful activity, \u00a7 1957(a). The District Court had jurisdiction under 18 U.S.C. \u00a7 3231 and we have jurisdiction under 28 U.S.C. \u00a7 1291."], "id": "bb44c24c-9998-45a1-9091-578f6799aabc", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After you retire to the jury room, you should select one of your members as your Foreman. It is his or her duty to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify to your verdict by using the appropriate form attached hereto and signing the same as Foreman. *382Without objection, the prosecution explained at closing, as it had in voir dire, that the jury did not have to agree on whether Appellant committed the predicate offense of theft, or that of . Appellant was convicted and punishment was assessed at life in prison."], "id": "203a1ae2-514c-459b-9ebc-dcd8fe0f41f8", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Even before Rutgard was decided, a majority of other courts had employed an analysis when tracing in cases recognizing that money is fungible. As explained by the Tenth Circuit Court of Appeals: \"The government had the burden of showing that the criminally derived property used in the monetary transactions was in fact derived from specified unlawful activity. This does not mean, however, that the government had to show that funds withdrawn from the defendant's account could not possibly have come from any source other than the unlawful activity. Once proceeds of unlawful activity have been deposited in a financial institution and have been credited to an account, those funds cannot be traced to any particular transaction and cannot be distinguished from any other funds deposited in the account. The 'tainted' funds may be commingled with 'untainted' funds, with the result being simply a net credit balance in favor of the depositor. The credit balance gives the depositor a claim against the bank and allows him to withdraw funds *767to the extent of the credit. In the context of a withdrawal, the portion of \u00a7 1957 requiring a showing that the proceeds were in fact 'derived from specified unlawful activity' could not have been intended as a requirement *1046that the government prove that no 'untainted' funds were deposited along with the unlawful proceeds. [Citation.] Such an interpretation would allow individuals to avoid prosecution simply by commingling legitimate funds with proceeds of crime. [Citation.] This would defeat the very purpose of the money-laundering statutes.\" ( U.S. v. Johnson (10th Cir. 1992) 971 F.2d 562, 570.)"], "id": "46d801d9-f48d-4286-93c5-ce29257d3fac", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We hold that, in a prosecution for under Penal Code section 186.10, subdivision (a), when the prosecution proceeds on the theory that the defendant conducted money laundering activities \"knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity,\" the prosecution must demonstrate that the amount of the illegally obtained funds equals or exceeds the amount of the monetary transaction. Acknowledging the fungibility of money, we also hold that, whether or *762not the illegally obtained funds have been commingled with legally obtained funds, the prosecution need not prove full or dollar for dollar tracing between the illegally obtained funds and the monetary transaction, as Mays held. Because the statutory basis on which Mays rested its holding has changed, we publish our opinion to clarify the current state of the law."], "id": "f2ca1ce8-aada-4b8f-b42d-2836e2ed1af5", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Martin Marcus, J. The defendant was indicted by the grand jury of Bronx County and charged with 21 counts of grand larceny in the second degree (Penal Law \u00a7 155.40 [1]); eight counts of grand larceny in the third degree (Penal Law \u00a7 155.35 [1]); and two counts each of in the first degree (Penal Law \u00a7 470.20 [1] [b] [i] [A]; [ii] [A]) and scheme to defraud in the first degree (Penal Law \u00a7 190.65 [1] [a], [b]). The defendant is also charged with two counts of fraudulent practices in respect to stocks, bonds and other securities (General Business Law \u00a7 352-c [5], [6] [hereinafter the Martin Act counts]). In essence, the defendant allegedly operated a \u201cPonzi scheme\u201d in which he fraudulently induced 29 people to place with him some or all of their retirement savings or other funds, totaling millions of dollars. Promising to invest their money either in a real estate project or in various financial instruments, and assuring them that they would receive a (more or less) guaranteed rate of return, he did not invest their funds as promised, and instead used their money to make some payments due to earlier investors and to pay airlines, casinos, restaurants and others for personal expenses. Some of the investors received none of the *566payments their agreements called for. A few initially received the monthly payments they were due, but soon those payments came in lesser amounts and then stopped altogether."], "id": "5fc25e3d-a07f-4235-ada1-10038c5e2d43", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cThe MetLife Enterprise is firmly committed to complying with all applicable anti- laws, rules, and regulations. Specifically, the USA PATRIOT ACT requires MetLife to verify the identity of its customers and understand the source of all funds that it receives for the purchase of financial products. The task of certifying the source of funds for financial product purchases and subsequent payments is extremely difficult when we receive monetary instruments or funds from other than the owner of an account or policy.\u201d Consequently, MetLife has, as applicable here, devised procedures to track, among other things, third-party checks \u201cwritten on a checking account, annuitant, or insured of the MetLife account or policy.\u201d (Id.)"], "id": "31657ae9-f62b-4b7d-816b-27f1fbdbf362", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In asserting the applicability of this doctrine (although not referring to it by name), plaintiffs contend that BNY Mellon had superior knowledge about Madoff from three principal sources: First, they claim that BNY Mellon\u2019s predecessor, The Bank of New York, \u201cundoubtedly conducted substantial due diligence\u201d in acquiring Ivy, a subsidiary that had evidence that Madoff was a fraud risk, and that BNY Mellon therefore \u201cknew or should have known about the evidence that Madoff was misusing client funds.\u201d (See amended complaint \u00b6\u00b6 72-82.) Second, plaintiffs claim that BNY Mellon was obligated to maintain business records reflecting purchases of its own stock and, based on these records, \u201cwould have actual and/or constructive knowledge that Madoff had not actually purchased the numbers of shares\u201d he claimed. (Id. \u00b6 69.) In response to BNY Mellon\u2019s point that the shares were held in street name, plaintiffs argue that the Bank acted recklessly in not checking its own data. (Plaintiffs\u2019 mem in opp at 20-21.) Third, plaintiffs argue that because Madoff maintained a BMIS account at BNY Mellon, the Bank had obligations under the Bank Secrecy Act to identify and report suspicious activities to the government. (Amended complaint \u00b6\u00b6 59-64.) Plaintiffs assert that the Bank therefore \u201ceither was or should have been suspicious of Madoff\u2019s money laundering operations through the BMIS account,\u201d and \u201crecklessly overlooked or ignored evidence that something was wrong with the cash flows to and through the BMIS account.\u201d (Id. \u00b6 65.)"], "id": "d22d5917-815a-4751-8e4a-3ffefef3b47e", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The complaint alleges that BNY Mellon had an obligation under the Bank Secrecy Act (31 USC \u00a7\u00a7 5311-5332) to conduct due diligence on BMIS in order to report transactions to the government; that BNY Mellon had a duty to avoid conflicting loyalties to Madoff and the Rye Funds; and that it failed to disclose its \u201cconflict of interest arising from Madoff s suspicious banking activities,\u201d thereby breaching both its duty of due care and its fiduciary duties. (Amended complaint \u00b6\u00b6 59-65.) In opposing defendants\u2019 motion to dismiss, plaintiffs acknowledge that the Bank Secrecy Act did not impose any obligation on BNY Mellon to report to the Rye Funds about the BMIS account. Without withdrawing, or specifically addressing, the pleaded allegations, plaintiffs represent that they do not assert that BNY Mellon breached a duty under the Bank Secrecy Act, and assert generally that their claim is that the Bank breached its fiduciary and common-law duties as cash custodian and administrator to the Rye Funds. (Plaintiffs\u2019 mem in opp at 21.)"], "id": "146be414-d41c-4e43-9988-4d494982cbc3", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Attorney General argues that Mays was incorrectly decided and should not be followed by this court. To determine whether tracing was required for a Penal Code section 186.10 violation, the court in Mays looked to the federal statutes: sections 1956 and 1957 of title 18 of the United States Code (hereafter \" section 1956\" and \" section 1957,\" respectively), and to federal cases interpreting those statutes."], "id": "58f91531-22cd-4064-a4b2-4538d2a49950", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On or about December 3, 1996, J&J presented the first of the four checks. It was dishonored. On or about December 10, 1996, J&J learned that Infinity had commenced bankruptcy proceedings. At the first meeting of creditors, Dilmanian learned from the testimony of Nathan Itzchaki, a principal of Infinity, that Republic had closed the account on October 10, 1996 (four days before Dilmanian\u2019s second conversation with Perkins) and had been investigating Infinity for ."], "id": "3443b85b-932d-4d88-9bae-1df7eeba6719", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Though Appellant did not object to the jury charge at trial, he argued on appeal that the jury instructions permitted a non-unanimous verdict. Specifically, he argued the application paragraph did not require the jury to be unanimous regarding which predicate offense had been committed by Appellant and his criminal combination. According to Appellant, the predicate offenses of theft and were essential elements of the offense of engaging in organized criminal activity rather than alternate manner and means."], "id": "797fd3ec-0d1d-4b68-840f-d15d4197b046", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Compare Tex. Penal Code \u00a7 31.03(e)(7) (listing theft as a first degree felony if the value of the property stolen is $300,000 or more) with Tex. Penal Code \u00a7 34.02(e)(4) listing as a first degree if the value of the funds is $300,000 or more); see also White , 208 S.W.3d at 469 (holding that the state-jail-offenses of unauthorized use of a motor vehicle and evading arrest or detention in a vehicle were morally and conceptually equivalent)."], "id": "dc7ade2d-bf5c-4517-9600-2def2ca8f218", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Before Owen, Chief Judge, and Clement and Engelhardt, Circuit Judges. Edith Brown Clement, Circuit Judge: Adrian C. Hammond, Jr. pleaded guilty to bank fraud, , and obstructing the administration of internal revenue laws in 2017. At sentencing, the district court granted him a U.S.S.G. \u00a7 5K1.1 downward departure and a downward variance. It then sentenced him to one year and one day of imprisonment with three years of supervised release. Hammond was released in August of 2019. On March 29, 2021, the United States Probation Office (USPO) filed to revoke Hammond\u2019s supervised release, alleging two Class C violations. Case: 21-30433 Document: 00516191695 Page: 2 Date Filed: 02/04/2022"], "id": "cc71f266-4c9b-476e-9adb-0b08d4f022ef", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As is relevant to the theory pursued by the prosecutor, Penal Code section 186.10, subdivision (a) provides: \"Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars ($ 5,000) ... through one or more financial institutions ... knowing that the monetary instrument represents the proceeds of, or is directly or indirectly from the proceeds of, *764criminal activity, is guilty of the crime of .\""], "id": "f284f7eb-b023-45bc-9616-8ac8648c651d", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e. the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific intent regardless of the date alleged). Generally, adverbial phrases, introduced by the preposition \"by,\" describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.36 In this case, the indictment and the jury charge used the preposition \"by\" to describe the manner in which the predicate offenses were alleged to have been committed rather than as a way to differentiate between the two predicate offenses of theft and .37 According to Appellant, this indicates that predicate offenses are elements rather than manner and means."], "id": "e172f951-7d4c-4231-a119-349899b85e8f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The magazine article, entitled Power Play, describes itself as an exclusive report revealing how the Russian mob has muscled its way into the National Hockey League. One of the subjects of the article is Slava Fetisov, who was questioned by the author, Mr. Friedman, in connection with the article. Mr. Fetisov is said to be linked to the mob, and a close associate of Vyacheslav Ivankov. The article quotes a confidential FBI report as describing Mr. Ivankov \u201cas a shrewd and respected leader over a group of ruthless members knowledgeable in business, financial, legal and government operations * * * In addition to extortion, , drug trafficking, Ivankov is suspected of not only arranging numerous murders but bragging about them.\u201d (Details, at 146.) Plaintiff Komarov is mentioned in the article in connection with the author\u2019s interview of Fetisov, as follows:"], "id": "e9e5c935-6936-4ade-b1a5-fd8f00d0be72", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It follows that Baez was never held for grand jury action on the charge named in his indictment waiver, and alleged in the superior court information. Baez was held under a felony complaint the accusatory part of which alleged concealment . The determination to hold him for grand jury action required a judicial determination of probable cause to believe he committed \u201cthe crime charged in the accusatory part,\u201d and it is for this crime exclusively that he could validly have been held, irrespective of whether the complaint\u2019s allega*914tions would have supported holding him on the promotion theory which \u201cneed never have been considered.\u201d (Zanghi, 79 NY2d at 818.) Nor may Baez be deemed to have been held on the promotion theory on the supposition that any finding of probable cause to believe a defendant committed concealment money laundering necessarily implies a finding of probable cause to believe he committed the promotion variety too. (Cf. Menchetti, 76 NY2d at 474-477 [defendant held for grand jury action with respect to offense deemed held likewise on its lesser included offenses].) Simply put, one may knowingly hide the spoils of crime without intending to promote future criminal ventures. Thus, a defendant who commits concealment money laundering will not necessarily commit promotion money laundering concomitantly. (Cf. United States v Jackson, 935d 832, 842 [7th Cir 1991] [opining that \u201conly in the unusual case\u201d will one transaction support both theories].)"], "id": "0799435f-13a7-4b0f-aeda-8478b90ca164", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is true, as the People argue, that checks are negotiable instruments, but this is irrelevant because mere delivery of such a check is not sufficient to pass title, as the statute requires. The purpose of the statutes is to prevent criminals from moving the profits of criminal activity into one or more anonymous forms of consideration. Each of the items included in the statute qualifies as anonymous financial consideration, but a personal check does not. Not only is its provence traceable, but it may not be converted to cash without endorsement, literally a signature. (UCC 3-202.) A personal check (except perhaps one drawn to \u201ccash\u201d) may not be effectively passed without such identifying endorsement. Accordingly, these counts must be dismissed."], "id": "847e36e4-a5f4-4fac-b8a8-718de6060e43", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["If the specific enumerated offense was an essential element of the offense of engaging in organized criminal activity, then the use of the term \"one or more\" would be meaningless, because the commission of each enumerated offense would constitute a separate instance of the offense of engaging in organized criminal activity.8 Appellant petitioned this Court to determine whether the court of appeals erred in holding that unanimity is not required with respect to the predicate offenses of theft and . As he points out, his case is unique in that he was charged with committing two different predicate offenses rather than multiple instances of the same predicate offense. We therefore granted review."], "id": "ea9b29d6-b549-48b7-a999-ea7584a394e5", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Hammond admitted to the first violation and the district court found him guilty of the second violation. The district court calculated Hammond\u2019s guideline range at 5 to 11 months. It then upwardly departed pursuant to \u00a7 7B1.4 cmt. n.4 and imposed a 24-month sentence, stripping him of the previous benefits afforded to him. Hammond timely appealed, claiming that the district court failed to put him on notice that it might upwardly depart under \u00a7 7B1.4 cmt. n.4. We affirm the district court\u2019s sentence. I. On November 6, 2016, a federal grand jury returned an indictment against Hammond. The indictment was superseded on May 23, 2017. Following the superseded indictment, Hammond pleaded guilty on August 23, 2017, to bank fraud, , and obstructing the administration of internal revenue laws. His white-collar scheme included the following: (1) he knowingly and intentionally defrauded a bank when he provided it with falsified documents to obtain a loan; (2) he then laundered some of the proceeds from that loan; and (3) he did all this while attempting to subvert IRS\u2019 efforts to collect taxes by filing false court documents and engaging in business transactions intended to conceal his earnings. After pleading guilty and initially refusing to cooperate with law enforcement, Hammond eventually provided the authorities with some information. As the government describes in its brief, however, that information \u201cwarranted only a \u2018very modest benefit.\u2019\u201d The government accordingly recommended a one-point reduction under U.S.S.G. \u00a7 5K1.1. On August 22, 2018, the district court held Hammond\u2019s sentencing hearing. According to his presentence report, Hammond initially faced 41 to 51 months of imprisonment as a Level 20, category III offender. The district court then granted Hammond a \u00a7 5K1.1 one-level reduction for his"], "id": "0dd4b280-a724-4006-a0c7-cf4bcedef2bb", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cThe legislature deems it necessary, in order to enhance consumer protection, reduce fraud and ensure the public welfare, that mortgage loan originators who originate mortgage loans on residential real property be subject to regulation by the superintendent and that such regulation be consistent with Title V of The Housing and Economic Recovery Act of 2008, also known as the S.A.F.E. Mortgage Licensing Act, as it may be amended from time to time, and regulations thereunder or interpretations thereof, that may be adopted from time to time by the Secretary of the U.S. Department of Housing and Urban Development.\u201d In memoranda supporting the new legislation, it is specifically noted that no longer will applicants who have been convicted of a felony involving fraud, dishonesty, breach of trust or be eligible for an MLO license, absent a pardon. (Rampolla aff, exhibit F, at 1.)"], "id": "e6cae777-8075-4e7b-bc4d-4760bb13682a", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The People originally filed a criminal complaint, but later dismissed it in favor of *721a grand jury hearing. On May 16, 2016, a Riverside County criminal grand jury returned an indictment against petitioner and codefendants Cary Abramowitz, Ana Solis, and Gladys Ross3 in Riverside County case No. RIF1670175. The indictment charges count 1 for conspiracy (\u00a7 182, subd. (a)(1) ), for conspiring to knowingly make or causing to be made any false or fraudulent claims for payment of health care benefits, in violation of section 550, subdivision (a)(6) (Heidary, Abramowitz, Solis, and Ross); counts 2 through 19 for false or fraudulent claims for payment of health care benefits to 18 different, named insurers (\u00a7 550, subd. (a) ) (Heidary, Abramowitz, Solis, and Ross); counts 20 through 37 for willfully and unlawfully making and causing to be made a knowingly false and fraudulent material statement and material representation to 18 different named insurers for payment of workers' compensation ( Ins. Code, \u00a7 1871.4, subd. (a)(1) ) (Heidary, Abramowitz, Solis, and Ross); counts 38 through 66 for ( Pen. Code, \u00a7 186.10, subd. (a) ) (Heidary); count 67 for unlicensed practice of medicine ( Bus. & Prof. Code, \u00a7 2052, subd. (a) ) (Heidary); count 68 for \"capping\" ( Pen. Code, \u00a7 549 ) (soliciting, accepting or referring any business with the knowledge that, or with reckless disregard for whether, the individual or entity intends to violate Pen. Code, \u00a7 550 or Ins. Code, \u00a7 1871.4 ) (Heidary, Abramowitz, and Solis); and count 69 for the unlicensed practice of law ( Bus. & Prof. Code, \u00a7 6126, subd. (a) ) (Heidary and Abramowitz). The indictment also alleges a white-collar crime enhancement ( Pen. Code, \u00a7 186.11, subd. (a)(2) ) (Heidary, Abramowitz, Solis, and Ross)."], "id": "d395a184-0704-46c1-ad42-e7bd4cb7d226", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A forensic accountant identified a total of 524 unauthorized checks written against the law firm's payroll account that were made out to defendant, totaling $ 1,115,396. The unauthorized checks had all been signed by defendant. The forensic accountant also charted deposits into and expenditures from defendant's personal Wescom Credit Union account from 2007 through October 2013. In analyzing the transactions from defendant's credit union account, the forensic accountant identified the following, which comprised the basis for the counts:"], "id": "edcc935f-87ae-463a-86c2-afb272b25966", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Significantly, the defendants in Paul for Councilconceded that their conduct was illegal, but argued that despite the illegality, their conduct was nevertheless entitled to the protections of the anti-SLAPP statute. (Paul for Council, supra, 85 Cal.App.4th at p. 1366, 102 Cal.Rptr.2d 864[\"Defendants contend their campaign activity was taken 'in furtherance ' of their constitutional right of free speech, and therefore such activity comes within the parameters of section 425.16's protection, even though such activity was found to be illegal\"].) The same is not true here. Defendants do not concede that all of the conduct underlying Sweetwater's complaint was illegal. As a result, Paul for Council is not as similar to this case as Sweetwater suggests, and it is clearly not controlling."], "id": "82f68710-c8a1-48cb-b6bb-dcec12d3d826", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Renee A. White, J. On June 2, 1992 the defendant was convicted, after a jury trial, for the crimes of grand larceny in the second degree, two counts of criminal possession of stolen property in the second degree, two counts of criminal possession of a forged instrument in the second degree and in the second degree. Following the verdict, the People requested that bail be set. The court set bail in the amount of $25,000 and adjourned the matter to July 13, 1992 for sentence. On June 3, 1992 the defendant\u2019s wife, Gloria R. Mosesson, posted the bail and the defendant was released."], "id": "ba168e54-29df-4383-9878-5072adbe9530", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Concurrent with the diversion of funds from BNU an investigation of Steve\u2019s operations by the United States Department of Justice was underway. Two weeks after the hearing before this court on BNU\u2019s motion for a TRO on the funds in the accounts in New York City, the United States Attorney filed an indictment against Steve\u2019s principals, Steve Wangboje and Azie Guice, in the United States District Court in New Jersey. The indictment charged that they had engaged in \"money laundering\u201d of funds from narcotic operations, wire fraud and conspiracy. The affidavits of the United States Drug Enforcement Agency personnel in support of the orders for the interception of wire communications among the defendants indicated that the scheme was related to drug trafficking activities by car dealerships located in Nigeria. One such dealership was Skymit Motors, Ltd. in Lagos, Nigeria, to which Steve\u2019s shipped luxury vehicles and parts. Communications intercepted from Wangboje\u2019s home with the other defendants \"reflect that the Subject[s] themselves are actively involved in fraudulent schemes * * * and have customers who were/are engaged in drug trafficking.\u201d The wiretaps also revealed that Skymit attempted to impede the investigation in Nigeria by, inter alia, instructing Steve\u2019s to manufacture and alter documents, and \"stonewall\u201d the investigators."], "id": "a7d3ff55-900b-4d3e-9e44-cf3a76d1e53f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Court of Appeals amended the order of the Appellate Division which dismissed the plaintiffs\u2019 entire proceeding against the bank since it determined that plaintiff had sufficiently pleaded a cause of action for commercial bad faith. The court held that the plaintiff pleaded \"not merely a lapse of Vary vigilance\u2019 * * * or even 'suspicious circumstance which might well have induced a prudent banker to investigate\u2019 \u201d but, instead, the plaintiff portrayed a scheme of massive dimension accomplished in part through a pattern of conducted on a near daily basis by a single individual concentrated within a few months at one branch (Prudential-Bache Sec. v Citibank, supra, at 276). The court held that using these facts prior to discovery the court was required to view plaintiffs\u2019 assertion favorably and as such they were sufficient to form the basis for a cause of action for commercial bad faith."], "id": "bbdb3402-ae4a-44a4-b99e-1f4744215632", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant essentially argues that permitting a conviction for engaging in organized criminal activity without requiring unanimity as to the predicate offense seems \"contrary to due process\" given the broad range of enumerated predicate offenses (e.g. , gambling to capital murder). There are two flaws with appellant's position. First, as this Court's majority opinion points out, here the two offenses that were pleaded in the alternative were both first-degree felonies involving the unlawful treatment of property-theft and . Second and perhaps more importantly, appellant fails to consider the statute as a whole, as required by this Court's precedent. See Yazdchi v. State , 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). The punishment range for engaging in organized criminal activity is dependent on the punishment classification of the highest predicate offense found by the jury.3 Given the plain statutory language *397prescribing the punishment range for engaging in organized criminal activity, it is clear that the jury must unanimously determine any predicate offenses on which it relies as alternative manner and means if they are not the same grade misdemeanor or felony. Here, the two predicate offenses that the jury was permitted to find in the disjunctive were both first-degree felonies and thus, under the plain language of the statute, appellant would be sentenced to the same punishment range regardless of which predicate offense had been found by the jury. Appellant has made no argument to explain how there could be a due process violation under the circumstances here where the two predicate offenses alleged are both first-degree felonies involving property.4"], "id": "15e98075-9197-4e87-928e-dd274ca24a9b", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mays, supra, 148 Cal.App.4th 13, 55 Cal.Rptr.3d 356 was the first, and remains the only, published case in California addressing tracing under Penal Code section 186.10. In Mays , the defendant was convicted of pimping and . The money laundering counts involved checks written for rent on the office through which the defendant ran his prostitution business, rent on a residence at which the prostitutes lived, and bills for cell phones used in the business. ( Mays, supra, 148 Cal.App.4th at pp. 18, 20, 55 Cal.Rptr.3d 356.) The trial court concluded that a prosecution, based on the same theory employed here, namely that a defendant conducted \"a transaction through a financial institution with a monetary instrument of $ 5,000 or more based on the knowledge of criminal proceeds theory, requires proof that (1) the defendant's entire business was illegal, (2) there were deposits of $ 5,000 or more in criminally derived funds, or (3) there was a transfer of all funds out of the account.\" ( Id. at p. 32, 55 Cal.Rptr.3d 356.)"], "id": "120bd730-16e0-4330-9e0b-73809f191128", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There is no evidence that defendant left California during the period of the alleged conspiracy. Relying on People v Carvajal (6 NY3d 305 [2005]), defendant moves to dismiss the substantive counts of the indictment on jurisdictional grounds. The essence of his argument is that because he was never in New York, this state has no jurisdictional predicate for charging him with selling and possessing drugs or with in New York.1 For the reasons that follow, this court rejects defendant\u2019s claim."], "id": "d378cd58-d363-4623-a1bd-7b96805b475a", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the first cause of action, the amended complaint alleges that \u201c[b]y virtue of its superior knowledge, BNY MELLON owed a common law duty of care to the Rye Funds to disclose material adverse facts affecting assets under BNY MELLON\u2019s administration.\u201d (Amended complaint \u00b6 100.)1 It further alleges that BNY Mellon acted with gross negligence, and breached its common-law duty of care, in the following respects: First, the Bank allegedly failed to disclose that Madoff reported bogus trades on the Rye Funds\u2019 behalf of BNY Mellon\u2019s own shares, and calculated the Rye Funds net asset value (NAV) as if the trades in such shares were \u201creal.\u201d (Id. \u00b6 101.) The amended complaint alleges that the Bank had business records reflecting *891the purchase and sale of its own shares and therefore had \u201csuperior knowledge of the true facts.\u201d (Id. \u00b6\u00b6 69-71.) Second, the Bank failed to disclose suspicious activities in the BMIS account that was also maintained at the Bank. (Id. \u00b6 102.) The amended complaint alleges that the Bank was required by the Bank Secrecy Act (31 USC \u00a7\u00a7 5311-5332) to conduct due diligence on accounts maintained with it and to report transactions to the government. The amended complaint further asserts that BNY Mellon therefore had superior knowledge about the BMIS account, and acted with gross negligence in not disclosing to the Rye Funds \u201cthe conflict of interest arising from Madoff s suspicious banking activities\u201d involving the BMIS account. {Id. \u00b6\u00b6 59-65.) Third, the Bank ignored \u201cred flags\u201d that should have alerted it to the fact that the Funds\u2019 assets were at risk for fraud. {Id. \u00b6 97.) The amended complaint catalogs red flags that included suspiciously consistent returns and patterns of purchases, suspect trading volumes, Madoff s role as both broker and custodian for all of the assets he managed, public reports questioning his operations, Madoff s use of paper trade confirmations, and the Rye Funds\u2019 lack of electronic access to their accounts at BMIS. (Id. \u00b6\u00b6 9, 66-68.) Fourth, the Bank\u2019s predecessor acquired a subsidiary, Ivy Asset Management LLC (Ivy), which purportedly limited its investments with Madoff due to concerns about his operations. The amended complaint alleges that the predecessor \u201cundoubtedly conducted substantial due diligence on Ivy\u201d before acquiring it, and the Bank therefore knew or should have known that Mad-off was misusing client funds. (Id. \u00b6\u00b6 72-82.) Fifth, as cash custodian for the Rye Funds, the Bank had common-law and fiduciary duties to \u201cmonitor and protect any and all cash and cash equivalents of the Rye Funds,\u201d and should have discovered and disclosed the inadequacy of Madoff s sub-custodial records of cash and cash flows. (Id. \u00b6\u00b6 56-58.)"], "id": "efacc91a-337a-4ae0-b2f0-6a2d56795556", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This is an action alleging libel based on an article written by Susan Edelman which contained a photograph by Devlin Barrett. The article was published on December 11, 2000 in the New York Post, which is published by NYP Holdings, Inc. The article reported that Boris Kotlyarsky was under a federal indictment charging him with conspiracy and for organized crime. It also described the alleged scheme, and reported that the government had stated that Reliable, a medical clinic run by the plaintiffs, was a \u201cmedical mill set up to defraud insurance companies.\u201d On December 12, 2000, Boris Kotlyarsky left a message for Susan Edelman, which she returned on December 19, 2000. During the course of the conversation, Boris Kotlyarsky requested a retraction, after advising Susan Edelman that the contents of the article were false, and that his reputation, his wife\u2019s, and that of his business, had been damaged. On January 3, 2001, he pleaded guilty to one count of conspiracy to money launder. Thereafter, Boris Kotlyarsky attempted to contact Susan Edelman between January 20, 2001 and March 18, 2001. However, a meeting between the two parties was not convened until April 20, 2001 at the New York Post office. At this meeting, Boris Kotlyarsky brought court documents from his criminal case, attempting to prove the falsity of the article. During the course of the meeting, photographs were taken with either the expressed or implied promise that they would be used in a retraction. On May 29, 2001, Boris Kotlyarsky began serving his sentence. While he was incarcerated, he received no news of the retraction, so he wrote a letter to Susan Edelman requesting a copy of the retraction. Susan Edelman responded in a letter dated February 12, 2002 that she had left messages with his criminal attorney about a possible article, and that since she did not receive a response, the requested retraction article was withdrawn. Plaintiffs Boris Kotlyarsky, Alla Kotlyarsky, and Reliable Rehabilitation Center, Inc., commenced this action against defendants New York Post, Susan Edelman, Devlin Barrett, and NYP Holdings, Inc., by filing the complaint on August 12, 2002. On September 4, 2002, plaintiff served defendant NYP Holdings, Inc. with the summons and complaint. Neither Susan Edelman nor Devlin Barrett was served. Issue was joined on September 24, 2002. Defendants now move for *152summary judgment dismissing the complaint based on grounds that it was time-barred."], "id": "80065449-3f2d-4919-94cb-44e0a269df48", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As we explain more fully below, engaging in organized criminal activity is a \"circumstances of the conduct,\" offense, the circumstance being the existence or creation of a combination that collaborates in carrying out criminal activities.23 Consequently, the jury was not required to be unanimous regarding the individual predicate offenses because they are a different manner and means of committing the same offense. Moreover, treating the predicate offenses as manner and means in this case does not run afoul of due process because the offenses at issue are morally and conceptually equivalent. Consequently, the trial court properly instructed the jury in the disjunctive with regard to the predicate offenses of theft and ."], "id": "c2c86631-cc2c-4d34-a169-5e839919c269", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant argues, however, that engaging in organized criminal activity is one of those crimes. We need not decide that question in this case because it is enough to say that the two predicate offenses alleged here-theft and money laundering-are morally and conceptually equivalent.85 Significantly, the statute requires proof of a temporal connection or nexus between the transferred money and some criminal activity, in this case the theft of the jewelry.86 So the jury was required to determine, when reaching its verdict, whether the \"proceeds of criminal activity\" came from the alleged theft in order to convict Appellant under a money laundering theory of engaging. In this way, the different predicate offenses are tied together similar to the way the underlying felonies are tied together in the felony murder statute.87 Moreover, the degree of offense for both theft and money laundering is tied to the same value ladder rendering both offenses first degree felonies.88 Consequently, the Legislature's decision to treat these predicate offenses as alternate manner and means of committing the same offense did not run afoul of due process.89"], "id": "6c2bcaf9-d474-457f-8ffe-d0fea5a35189", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Subsequently, respondent was convicted in the United States District Court, Middle District of Florida, of one count of conspiracy to launder money in violation of 18 USC \u00a7 371 and one count of in violation of 18 USC \u00a7 1956 (a) (1) (B) (i). By order and decision entered November 15, 1994 (Matter of Stern, 205 AD2d 162), this Court determined that respondent\u2019s convictions constituted \"serious crimes\u201d within the meaning of Judiciary Law \u00a7 90 (4) (d) and 22 NYCRR 608.12 (b), suspended respondent from the practice of law pursuant to Judiciary Law \u00a7 90 (4) (f) and referred the matter to the Disciplinary Committee for a hearing as to sanction."], "id": "d45c2be4-be59-4d12-a689-5c61b93ea491", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["524 U.S. at 351 (Kennedy, J., dissenting). Additionally, the dissent noted that because and drug smuggling are so difficult to prove, and \u201c[o]ne of the few reliable warning signs of some serious crimes is the use of large sums of cash,\u201d Congress made a strategic decision to punish all cash smuggling or nonreporting with heavy fines, so long as the conduct was \u201cwillful.\u201d Id. at 353-54. State v. Grocery Mfrs. Ass\u2019n, No. 99407-2 (Gordon McCloud, J., dissenting)"], "id": "c8936d07-5081-4121-979c-1d0e143dadf4", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is impossible for a trial court, faced with the imminent trial of an indictment for violations, inter alia, of a statute modeled on and very similar to its federal counterpart, to ignore the Santos decision. The Santos holding is that the rule of lenity requires that \u201cproceeds\u201d means and is limited to \u201cprofits\u201d in the context of the federal criminal money laundering statute (18 USC \u00a7 1956 [a] [1] [A] [i]).21 have decided to apply that holding to the instant Rozenberg indictment. Not only was the New York statute modeled on the federal statute, but it has been authoritatively stated that \u201cfederal case law to date should guide the interpretation of these [New York] stat*237utes.\u201d3 The New York statute is identical to the federal statute in many important respects \u2014 notably in failing to define \u201cproceeds\u201d within the four corners of that statute. I have found that the references submitted by the Attorney General to legislative history and other statutes, such as ones concerning civil forfeiture, are insufficient to overcome the United States Supreme Court analysis and application of the rule of lenity in the money laundering context.4 Federal and New York State civil forfeiture statutes have their own more expansive definition of proceeds \u2014 not found in the criminal statutes \u2014 and traditionally have had broader reach."], "id": "a4f49015-201c-4322-92a8-5ac1aae29fca", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We hold that, when a defendant is charged with \"knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity,\" the prosecution must demonstrate that the amount of the illegally obtained funds equals or exceeds the amount of the monetary transaction, whether or not the illegally obtained funds have been commingled with legally obtained funds. ( Pen. Code, \u00a7 186.10, subd. (a).) The prosecution need not trace every illegal dollar to the monetary instrument. In this case, there was sufficient evidence that the amount of money defendant embezzled from the law firm and placed in his Wescom Credit Union account was greater than the amount of the monetary transactions charged in the money laundering counts. Therefore, defendant's convictions for money laundering must be affirmed."], "id": "a6a292ab-5b45-4eec-a6c0-c1277aed8792", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Baez\u2019s prosecution then underwent an immediate and significant change in theory. In Supreme Court proceedings before me that same day, the prosecution requested that Baez waive indictment and consent to be prosecuted by a superior court information charging in the second degree exclusively under the promotion theory set forth in Penal Law \u00a7 470.15 (1) (b) (i) (A) and (iii). Under that theory, the prosecution is not required to prove that the defendant acted with knowledge that the transaction was designed to conceal the nature, location, source, ownership, or control of proceeds of past criminal conduct. However, it must prove, in pertinent part, that the defendant conducted one or more financial transactions \u201c[w]ith intent to . . . promote the carrying on of specified criminal *909conduct.\u201d (Id.) The variance from the felony complaint theory struck me as unusual, and I inquired of the prosecutor whether it was intended. I was told that it was. I allowed it, and Baez waived indictment by a document naming money laundering in the second degree exclusively under the statutory provisions defining the promotion theory."], "id": "28b12da0-e8d0-4811-84e5-26d819ce1327", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the present case, the Wall Street Journal article, after briefly describing the nature of the arbitration proceeding and indicating that plaintiff had received an award of $114,668, set forth DLJ\u2019s position as follows: \"Donaldson Lufkin said it fired Mr. Mulder for poor performance unrelated to his report. 'The fanciful tale of intrigue and cover-up Mulder made regarding money laundering in DLJ\u2019s Miami office * * * is without basis in fact and is irrelevant to Mulder\u2019s termination,\u2019 the firm said in papers filed with arbitrators.\u201d"], "id": "5f975b7e-f3c4-4ded-950e-70ff8d9cbad6", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The prosecution\u2019s theory that Dr. Rozenberg\u2019s endorsements to the management companies of checks received by AR Medical amount to is too dependent on a string of inferences about which I now believe I was too deferential in allowing the grand jury to draw. (See People v Deegan, 69 NY2d 976 [1987].) The inferences are: (1) that all or at least a large portion of these receipts were the proceeds of specified criminal conduct, which is contradicted in part by evidence that bona fide patients with real injuries were being treated at the clinic; (2) that all or a substantial number of such endorsements themselves constituted discrete illegal financial transactions; and (3) that Rozenberg by such endorsements intended to conceal the source of these receipts. Both inferences (2) and (3) *238are contradicted by the circumstances under which it was obvious that the management companies used much of these funds to pay expenses to run the clinic."], "id": "2510752a-7b4a-4ed0-af1a-f1d888007937", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Tex. Penal Code \u00a7 34.02(a)(1) ; see also Deschenes v. State , 253 S.W.3d 374, 381 (Tex. App.-Amarillo 2008, pet. ref'd) (\"In order for a conviction for under \u00a7 34.02(a)(1) to be upheld, there must be direct or circumstantial evidence of a temporal connection, or nexus, between the money and some criminal activity.\"). Arguably, the State could have even chosen to charge Appellant with theft of money rather than money laundering, making this case conceptually identical to the different thefts at issue in Renteria . This would further suggest that the underlying brute facts of the two alleged predicate offenses were morally and conceptually equivalent."], "id": "59b8b868-a028-4ce9-948a-2baddbbdfb5f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mark Dwyer, J. Defendant Pinchuk and five others have been indicted on multiple counts of conspiracy in the second and fourth degrees, for in the second degree, and on 37 counts of sale and possession of controlled substances. The People\u2019s theory is that between March 2009 and June 2010 defendant, based in California, supplied amphetamines, alprazolam, hydrocodone, and oxycodone to codefendant Pinchas Goldshtein and others in Brooklyn. Defendant would ship pills via Federal Express from Los Angeles to Brooklyn, often supplying Goldshtein with a tracking number in a text message. To pay for the pills Goldshtein would deposit money into a bank account in Brooklyn, and defendant would withdraw that money in Los Angeles. Over the course of their dealings, defendant and his California and New York accomplices exchanged numerous text and cell phone messages, many of which were intercepted pursuant to court order and were highly incriminating."], "id": "d651414e-5352-4767-8b4a-2bebc39452d7", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There are two distinguishing factors which make Feathers (supra) inappropriate and inapplicable in the view of this court. First, assuming the truth of the allegations, Money Center is accused of having committed an affirmative act in New York, , via instructions conveyed to BONY. (See, Pilates, Inc. v Pilates Inst., 891 F Supp 175 [SD NY 1995].) Second, to allow a defendant to conspire and direct tortious activities in New York, in furtherance of that conspiracy, and then avoid jurisdiction because it directs those activities from outside the State or country, is to ignore the reality of modern banking and computer technology in the end of the 20th century! A defendant with access to computers, fax machines, etc., no longer has to physically enter New York to perform a financial transaction which may be criminal or tortious, i.e., conversion. He may secrete himself and/or direct activities from locations where jurisdiction may be impossible to acquire, including a boat beyond the three-mile limit. Thus, the emphasis should be on the locus of the tort, not whether defendant was physically here when the tortious act occurred. Once the court finds that the tort occurred within the State, it should look at the totality of the circumstances, to determine if jurisdiction should be exercised under CLPR 302 (a) (2) (see, Parke Bernet Galleries v Franklyn, 26 NY2d 13 [1970] [which held that a telephone call during an auction from a buyer outside New York was sufficient to create an agency relationship to the gallery\u2019s employee]). Having found that the tort occurred within New York the court concludes that defendant\u2019s bodily presence is not an indispensable requirement for long-arm jurisdiction. It would be a travesty to permit the use of our institutions to channel stolen funds and/or the proceeds from *189heroin sales by those who impudently claim they are beyond our borders! It would be a gross violation of common sense and reality to shelter such activities."], "id": "06262566-58bd-4192-87ac-0199a223013c", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201c1. Findings. Notwithstanding any other law, the superintendent shall not issue a mortgage loan origination license unless he or she makes, at a minimum, the following findings: . . . \u201c(b) No felony conviction. That the applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court: \u201c(i) During the seven-year period preceding the date of the application for licensing; or \u201c(ii) At any time preceding such date of application, if such felony involved an act of fraud, dishonesty, or a breach of trust, or , provided *168that for purposes of this subdivision, the superintendent may, in his or her discretion, disregard a conviction where the felon has been pardoned.\u201d These provisions are identical to those set forth in the Act."], "id": "50004169-3398-408d-b814-1f273eaf96df", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["DOE considered all the requisite elements. However, DOE erroneously concluded that the crime, and the facts which surrounded petitioner\u2019s plea, bore a \u201cdirect relationship\u201d to the license\u2019s requirement of working with children and failed to give effect to the presumption to which petitioner was entitled. This conclusion is arbitrary and capricious as there is no evi*313dence in the record concerning this \u201cdirect relationship\u201d nor does DOE ever articulate how petitioner\u2019s crime or his prior acts bear a \u201cdirect relationship\u201d with the job duties of a paraprofessional.3 Instead the denial appears to be based simply on supposition unsupported by facts. Such decision-making does not comport with the Correction Law, and runs athwart to the presumption of rehabilitation afforded by Correction Law \u00a7 753 (2) (see e.g. Matter of Dellaporte v New York City Dept. of Bldgs., 106 AD3d 446 [1st Dept 2013] [denial of the renewal of a stationary engineer license was arbitrary and capricious because the conviction for theft of funds bore no direct relationship to the duties of a stationary engineering license and respondent failed to afford petitioner with the mandatory presumption of rehabilitation attendant to petitioner certificate of relief from disabilities]; Matter of Gil v New York City Dept. of Bldgs., 107 AD3d 632 [1st Dept 2013] [respondents arbitrarily concluded that petitioner\u2019s convictions of mail fraud and bore a direct relationship to the duties and responsibilities attendant to a stationary engineer]; compare with Matter of Bonaventure v Perales, 106 AD3d 665 [1st Dept 2013] [direct relationship existed between petitioner\u2019s crimes including convictions for assault and larceny and his employment as a security guard whose duties consisted primarily of the protection of persons and property])."], "id": "868cbf3d-faeb-452c-ab4c-eef8cf980c16", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the present action, MetLife\u2019s affiants have made reference to the existence of an anti- program, as required by the PATRIOT Act, by providing the court with internal policy statements apparently meant for its employees\u2019 edification and use in evaluating insurance practices and risks. MetLife has not produced any specific documentary evidence of its underwriting practices, although it has offered the affidavit of an underwriter reiterating that MetLife\u2019s decision to void the policies was made under the mandates of the PATRIOT Act."], "id": "5406633e-c9e4-487f-891a-deb5cac4342e", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The November 5, 2016 article noted Flater's relationship to Gallaher and that Flater had spent \"nearly $192,000 on mailers and canvassing in support of three of the six candidates for City Council.\" That spending \"accounts for more than a third of the total in the race, including spending by candidates' campaigns.\" The article observed, \"The record-breaking infusion of private cash into the race has highlighted the inequity between the $500 limits Santa Rosa puts on individual contributions to local campaigns and the unlimited amounts state law allows donors and groups to spend on independent expenditures not associated with candidates' campaigns.\" The article also reported that \"Gallaher was cleared earlier this year of a similar complaint alleging\" one of his companies \"`engaged in campaign by making contributions in the name of'\" persons who received reimbursement from the company."], "id": "3574b7e5-7f3f-44a9-b6fd-912dfe2eca07", "sub_label": "US_Terminology"} {"obj_label": "Money Laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Title III of the PATRIOT Act (Pub L 107-56, 115 US Stat 272) is entitled the \u201cInternational Abatement and Anti-Terrorist Financing Act of 2001,\u201d and is, as its name suggests, concerned with the problem of money laundering within financial institutions. Pursuant to title III, as reflected in 31 USC \u00a7 5312 (a) (2) (M), an insurance company is a \u201cfinancial institution.\u201d 31 USC \u00a7 5318 (h) requires financial institutions, such as insurance companies, to \u201cestablish anti-money laundering programs,\u201d with particular attention toward *964\u201cthe development of internal policies, procedures, and controls\u201d (31 USC \u00a7 5318 [h] [1] [A]). 31 CFR 103.137, entitled \u201cAnti-money laundering programs for insurance companies,\u201d provides the regulatory framework for the insurance industry with regard to the creation of \u201canti-money laundering\u201d programs, with emphasis on possible money laundering through the purchase of insurance products. 31 CFR 103.137 (b) provides that \u201ceach insurance company shall develop and implement a written anti-money laundering program applicable to its covered products that is reasonably designed to prevent the insurance company from being used to facilitate money laundering or the financing of terrorist activities.\u201d Paragraph (c) sets forth the minimum requirements for the anti-money laundering programs, as applicable, as follows:"], "id": "47ac6755-44b9-4f67-beb7-a75a482efabc", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Upon further review of the grand jury presentation, prompted by this defense application under Santos, I have concluded that there was legally insufficient evidence to support the \u201cintent to conceal\u201d element of by Rozenberg. There was not a scintilla of direct evidence before the grand jury that Rozenberg knew what Polack and Kucherovsky did with those monies other than to run the clinic, which circumstance negates an intent to conceal. To impute knowledge to Rozenberg of concealment and money laundering by Kucherovsky and/or Po-lack was therefore too speculative and unwarranted."], "id": "940391b5-482e-449d-9e38-6623a755057e", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". Federal prosecutors have been permitted to allege both theories conjunctively in support of a single count, yet seek to convict on proof of either (Garda-Torres, 341d at 64-67; Bolden, 325d at 486-487 & nn 19, 20; United States v Booth, 309d 566, 571-573 [9th Cir 2002]; cf. United States v Jackson, 935d 832, 842 [7th Cir 1991] [trial court erred in supposing proof of both required]). Indeed, one federal court of appeals has concluded that it would be improperly multiplicitous to allege in one count that a defendant committed concealment , and in another, by the same conduct, promotion money laundering. (United States v Stewart, 256d 231, 246-249 [4th Cir 2001]; but see United States v Sierra-Garcia, 760 F Supp 252, 255-257 [ED NY 1991].) I take no view here concerning analogous pleading questions under the New York statutes."], "id": "75f6e078-ceac-4bad-abd9-ef6d677133f0", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is the contention of the plaintiff that the moneys attached in the brokerage accounts maintained by the various defendants in Panama and Miami, Florida, are proceeds of stemming from the activities of narcotics sales by the Cali Cartel in the State of New York. The defendants argue that the attachments must be vacated because the situs of the accounts are in Panama and Florida and are thus beyond the court\u2019s attachment power. Moreover, the cross-moving defendants claim that they are in no way involved in drug activity, that they are legitimate business people in Columbia and that their acquisition of the claimed tainted moneys coming from the United States was innocent of any criminality or knowledge of its source."], "id": "9a5c79aa-ea11-4858-b8bb-90582cb2cbe6", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Second, since both Rutgard and Mays were decided, section 1957 has been amended to include a definition of \"proceeds.\" In U.S. v. Santos (2008) 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912, the Supreme Court held that the word \"proceeds\" in section 1956 was ambiguous and could mean profits or receipts. ( U.S. v. Santos, supra, 553 U.S. at p. 511, 128 S.Ct. 2020.) Under the rule of lenity, the court interpreted proceeds as meaning profits because to trace the transaction to the defendant's profits would require more from the prosecution in order to obtain a conviction. ( Id. at pp. 513-514, 128 S.Ct. 2020.)"], "id": "e1d68037-9f33-41cb-a732-bb701c1152c1", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". By written decision and order of December 17, 2007 the court dismissed this previous count 54 because the one and only predicate felony for this count, enterprise corruption (Penal Law \u00a7 460.20 [1] [a]) was dismissed on the Attorney General\u2019s motion. For the first time after that decision, on July 16, 2008, the Attorney General moved orally for that count to be restored and reduced to in the second degree on the ground that only this count included Mighty Management, L.L.C., as distinguished from the different management company charged in count 55, Mighty Management Group, Inc. I originally sustained count 55. Despite the delay I would grant the application were I not to dismiss all the money laundering counts."], "id": "9949fe00-3135-47a8-bafd-b1d577323c4d", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On the night of November 19, 2007, State Police investigators watched Baez carry a black bag into 80 Bennett Avenue in Washington Heights. The bag was seized and found to contain more than $500,000 in cash, claimed by the Special Narcotics Prosecutor to be the proceeds of narcotics traffic. By a one-count felony complaint filed November 20, 2007, Baez was charged based on these events with in the second degree."], "id": "7c33d2bd-5912-4da2-ab54-c1cff06b1514", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"(a) A corporate account was apparently controlled by three lawyers, who were listed as officers of this corporation. One of these persons was linked with a scheme in *700the Pablo Escobar indictment proceeding in April, 1990. Shortly after the public release of the Pablo Escobar information, the salesman in charge of the account * * * [agreed] that this account * * * would leave DLJ and come back repackaged as an offshore trust. Subsequently, this account came back with the same [government-backed $10 million] securities, not as a trust but as an offshore corporation. However, the papers at DLJ did not disclose (in violation of SEC and New York Stock Exchange rules) any of the persons in control of the corporation because the officers listed for this corporation were not individuals, but three other offshore corporations. \"(b) Money was being taken in from third parties and sent out to other third parties who had no apparent relationship to the accounts. Many of these accounts in which this occurred had no security transactions. The wiring of funds to third parties and the receipt of third party checks violated DLJ\u2019s rules * * * \"(c) Trades were done in apparently unrelated accounts, in a manner indicating that the salesman involved was using discretion without written authorization as required by DLJ rules * * * \"(e) Money was wired overseas to third parties, in large amounts, to accounts in countries generally regarded as secrecy countries. In three instances, funds were wired in such a manner as to conceal the true name of the DLJ customer wiring the funds. \"(f) Many accounts did not contain proper documentation for trading authorizations or disclose the individuals who actually controlled these accounts, in violation of DLJ and New York Stock Exchange rules.\u201d After his discharge, plaintiff maintained that he had been dismissed because of his reporting of the alleged violations of rules and regulations to, among others, the defendant Robert Albano, DLJ\u2019s compliance director. Thereafter, plaintiff brought an arbitration proceeding before the New York Stock Exchange. In the arbitration proceeding, plaintiff filed a statement of claim indicating DLJ\u2019s alleged motivation for his discharge. DLJ filed a response to statement of claim which vigorously denied plaintiff\u2019s allegations of violations of rules and regulations related to money laundering and maintained the plaintiff had been discharged because of poor job performance. In May 1993, the New York Stock Exchange issued an *701arbitration award in favor of Mulder in the amount of $114,668, and costs of $1,000. The decision did not specify the basis of the award. However, the award recited the following case summary: \"Ex-employee, Internal Auditor vs. Member Firm and Officers alleging that when he uncovered and brought to senior management\u2019s attention, by way of an audit report, a drug money laundering scheme within the firm, he was wrongfully terminated and his professional reputation was damaged. Claimant also alleges false reporting to the NYSE and seeks back pay and benefits, payment for his consulting services, future earnings and exemplary damages.\u201d"], "id": "59551ce5-ca7e-4602-88fb-4af1e4cfa434", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["New York\u2019s statutes are substantially modeled on their modern federal counterparts {see Donnino, Supp Practice Commentary, McKinney\u2019s Cons Laws of NY, Book 39, Penal Law art 470, 2008 Pocket Part, at 192), and, like their *908chief federal analogue, allow for the prosecution of money laundering under what are sometimes termed \u201cconcealment\u201d and \u201cpromotion\u201d theories (see generally United States v Garcia-Torres, 341d 61, 65 [1st Cir 2003] [contrasting theories in the federal statute]; United States v Bolden, 325d 471, 486-487 & nn 19, 20 [4th Cir 2003] [same]).1 The felony complaint charge against Baez, brought under Penal Law \u00a7 470.15 (1) (b) (ii) (A) and (iii), rested exclusively on the concealment theory. That is, it alleged, in pertinent part, that Baez conducted one or more financial transactions \u201c[k] no wing that the transaction or transactions in whole or in part [were] designed to . . . conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified criminal conduct.\u201d (Id.)"], "id": "5c0f557e-76a2-476c-879e-2725cfec441f", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["John A.K. Bradley, J. Among the many mundane cases that pass through this courtroom, occasionally a case more likely found in Hollywood than in New York Supreme Court arises. This is such a case, involving, among other things, high-priced call girls and a tony *468escort service, an allegedly corrupt senior police officer, a vengeful gun dealer and lover, relationship abuse, bigamy, alleged prosecutorial persecution, and much more. Before the court are a number of motions designed to parse through this exciting fact pattern and have this court rule on the efficacy of this prosecution for falsifying business records, , and promoting prostitution."], "id": "ad92b992-861a-4003-bc5f-a2ad104eaa6d", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On February 7, 2011, a 107-count indictment was filed with the Nassau County Court Clerk charging 14 defendants, each with a count of enterprise corruption, conspiracy in the fourth degree and scheme to defraud in the first degree. Each defendant was charged with additional differing counts, including in various degrees, falsifying business records in various degrees, identity theft in the first degree and grand larceny in various degrees."], "id": "67e8a259-0963-4573-a3fc-8462599d3a80", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When Triggs\u2019s employer confronted her about the payments, she said another employee was responsible and had threatened her. Triggs quit her job in May 2015, and she told her employer her husband had died. Triggs later admitted her husband was alive and she was responsible for the fraudulent payments. She promised to pay back the money she took. On January 2, 2018, the People filed an information charging Triggs with identity theft (\u00a7 530.5, subd. (a); count 1), false personation for a written instrument (\u00a7 529, subd. (a)(2); count 2), three counts of grand theft (\u00a7 487, subd. (a); counts 3\u20135), and (\u00a7 186.10, subd. (a); count 6). As to the grand theft charges, the People further alleged that Triggs engaged in a related pattern of felony conduct resulting in the loss of more than $100,000, within the meaning of section 186.11, subdivision (a)(3). On January 7, 2020, Triggs pleaded no contest to the charges and admitted the section 186.11 allegation. The court postponed sentencing because Triggs agreed to make scheduled restitution payments to her employer. Specifically, she agreed to make a $14,000 payment within a week, an $11,000 payment by June, and $2,000 payments each month beginning in February. The court noted if Triggs \u201cfall[s] short on restitution, this is clearly a [state] prison case\u201d and it would not \u201chesitate to send her to prison . . . .\u201d Triggs had not made any payments to her employer as of early February 2020. On February 13, 2020, the employer received an envelope from Triggs, but it was empty. It appears Triggs claimed she mailed a check, but someone took it out of the envelope before it got to the employer. The prosecutor believed Triggs was lying."], "id": "77d87348-d330-4611-bf37-a61ec0a0c6e7", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Baez relies on this rule. As noted above, the felony complaint charged the concealment theory of in the second degree, and it was with respect to the offense as so charged that I held Baez for grand jury action. As further noted, Baez thereafter waived indictment by a document naming the distinct, promotion theory of money laundering in the second degree, and the promotion theory underlay the sole count of the superior court information, to which Baez pleaded guilty. Baez therefore contends that he impermissibly waived indictment with respect to, and pleaded guilty under a superior court information charging, a crime other than that for which he had been held for the action of the grand jury."], "id": "7f1ef716-d9fe-4cbd-bf8d-c0c45c10b179", "sub_label": "US_Terminology"} {"obj_label": "money laundering", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Per Curiam. On February 8, 2013, in the Supreme Court, Kings County (Chun, J.), the respondent pleaded guilty to 13 felony counts: 10 counts of grand larceny in the second degree, a class C felony, in violation of Penal Law \u00a7 155.40 (1); in the first degree, a class B felony, in violation of Penal Law \u00a7 470.20 (1); scheme to defraud in the first degree, a class E felony in violation of Penal Law \u00a7 190.65 (1) (b); and conspiracy in the fourth degree, a class E felony, in violation of Penal Law \u00a7 105.10 (D."], "id": "0ab42ff7-c0d4-481b-88e8-e16e4647cc12", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The kidnapping charges did not merge into the attempted escape charge since the continued restraint of the officers after other correction officers discovered that the inmates had taken over the facility constituted a discrete crime (see, People v Steel, 207 AD2d 744). In any event, the is not applicable to this case since the detention here was unusually brutal. All of the officers were bound, beaten and gagged; two were threatened with a razor or a knife; one was used as a \"shield;\u201d and defendant threatened to kill the \"hostages\u201d since he \"had nothing to lose\u201d (People v Taylor, 184 AD2d 218, lv denied 80 NY2d 897)."], "id": "e4e57f70-1f05-4671-838e-3f9107d4dc94", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The principle underlying the de facto is that a purchaser cannot escape the assumption of liabilities ordinarily attendant with a merger by labeling the transaction something else. Whether fair value is paid for the assets acquired has no bearing on whether a New York court will look at a transaction or series of transactions and deem them \u201cin substance a consolidation or merger of seller and purchaser.\u201d (Cargo Partner AG, 352d at 45 [internal quotation marks omitted].) Thus, BAC\u2019s argument that its payment of \u201cfair value\u201d defeats MBIA\u2019s successor liability claim fails.18"], "id": "2b805332-632a-4462-9286-be3a9f7b40ed", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Gonzalez (80 NY2d 146) the Court of Appeals held the inapplicable to the facts of that case. The victim, four months pregnant, was taken by automobile for about two hours, during which time she was terrorized. She was verbally and physically abused, which included punching and hitting about the face and head, both with fists and with a gun. When the vehicle stopped at a vacant lot, she was taken out of the automobile, whereupon defendant punched and kicked her and, while she was on the ground, told her he was going to rape her. Complainant lost consciousness and was unable to say if she actually had been sexually assaulted, although she did conclude that she had been raped. Her legs, stomach and vagina felt sore and her legs were \"sticky.\u201d She found her clothing strewn about the lot. Defendant was acquitted of attempted rape but was convicted of kidnapping in the second degree. The Appellate Division concluded that the kidnapping conviction should be merged in the attempted rape acquittal and dismissed that charge. The Court of Appeals reversed, holding, under the facts of that case, that merger did not preclude a kidnapping conviction since the kidnapping had already been completed when the sexual attack took place: \"The abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted. The restraint was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. It was a crime in itself\u2019 (supra, 80 NY2d, at 153)."], "id": "95fc1611-2987-40a0-9dff-973ebef9fa76", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This substandard lot was created by the zoning ordinance. Therefore and ordinarily, a subsequent variance would be mandatory so as to prevent a confiscation (Matter of Long Island Land Research Bureau v. Young, 7 Misc 2d 469; Matter of Waldorf v. Coffey, 5 Misc 2d 80; Matter of Macchia v. Board of Appeals, 7 Misc 2d 763). On the other hand, a can be validly invoked to prevent distortion of such continuing preordinance rights (Matter of Chasanoff v. Silberstein, 6 A D 2d 872; Matter of Bonan Realty Corp. v. Young, 16 Misc 2d 119; cf. Matter of Pappalardo v. Michaelis, 28 Misc 2d 808). The amended section here applies such doctrine and to that extent must be respected. But, in the first place, it is difficult to visualize what might be categorized as separate ownership in bad faith. Though we accept respondent\u2019s argument that the law to be applied here is that existing at the time of our review, we find no indication of petitioner\u2019s ownership of property in other than good faith."], "id": "e0acb35e-2a43-468b-afbb-20c99ed75932", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Although the harshness of the prior kidnapping statute was somewhat ameliorated by the enactment of the present Penal Law \u00a7 135.00 et seq., the Court of Appeals sustained the continued viability of the in People v Cassidy (supra) wherein it held that, if it was the intention of the Legislature to require an extensive period of detention in order to constitute a kidnapping, or to abolish the merger principle by dividing kidnapping into various degrees, this could have been readily accomplished by clear, explicit legislative provision. In the absence of such language, it should be presumed that the Legislature intended the statute to be interpreted consistent with the merger doctrine (supra, 40 NY2d, at 766)."], "id": "c04f3d2e-6615-4562-9122-cc6cc91837ac", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It appears to us that plaintiff's argument about the misses the critical point, and that the merger doctrine is not relevant in this case. To explain: The merger doctrine refers to the principle that \"an easement usually is extinguished when the same person acquires the fee *610title to both the dominant and servient tenements.\" (6 Miller & Starr, Cal. Real *188Estate, supra , Easements, \u00a7 15:75.) Here, when plaintiff recorded the Lenope roadway easement, she (or her alter ego) owned both the dominant tenement (the Friese property) and the servient tenement (the Lenope property), so she was effectively granting an easement to herself. However, \"[e]ven in circumstances where there might otherwise be a merger, whether or not there has been a merger depends on the actual or presumed intention of the person who holds both interests, and there will be no merger if it would be inequitable.\" (Ibid. )"], "id": "d87386d5-cc32-41ea-b7f0-f108c5fd67b7", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["What plaintiff All Brands Fork Lift Corporation fails to comprehend is that the aforementioned has no application to this case. This is because the principle of merger addresses the obligations between the vendee and vendor of real property. With the aforementioned exceptions, a deed entered between the vendor and vendee would have the effect of extinguishing unfinished obligations of the vendor or vendee arising from a prior contract of sale. (See e.g., Dourountoudakis v Alesi, 271 AD2d 640 [2d Dept 2000]; West 90th Owners Corp. v Schlechter, 165 AD2d 46 [1st Dept 1991].) In other words, the delivery and acceptance of an executed deed is considered prima facie evidence of a merger superseding the provisions of the antecedent contract which had imposed obligations upon the parties. (Id.)"], "id": "5db7fda2-21e8-44e4-96eb-9aef714c0e48", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court is aware that literal application of McSparron\u2019s language is extraordinarily difficult, without either running afoul of McSparron\u2019s injunction against double counting of the license and the professional practice or creating another version of the now discredited . There is little doubt that a computation of the value of the license using the actual earnings of Husband as of the valuation date and the traditional methodology would result in a value which will nearly always be far greater than and duplicative of the practice value. That result is inherent in the traditional method of using the difference between actual earnings and a college graduate\u2019s earnings and multiplying the result by the remaining work-life expectancy. A college graduate\u2019s earnings are obviously going to be far less than the \"reasonable compensation\u201d figure for a comparable attorney used in an \"excess earnings\u201d formula, and the remaining work life is, except in cases of 62- to 65-year-old persons, far in excess of the one to three multiple used by experts in law practice valuations. In addition, since the same actual earnings are used in both computations the resulting value results in combining the values of the license and the practice, thereby effectively merging the practice value into the greater, more inclusive, license. Obviously that result was not intended by the Court of Appeals."], "id": "e6549392-3536-4eb3-bc24-cad33e9c3acd", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While, on the surface, the argument has some simplistic appeal, under the facts of this case, it would exalt form over substance and would be inconsistent with an individual\u2019s right to be dealt with fairly, especially in terms of governmental prosecutions. At issue is whether a prosecutor may properly \"juggle\u201d the charges in the indictment in relation to the victims to eliminate certain charges vis-\u00e1-vis certain victims and thereby avoid the legal consequences of the ."], "id": "c1c802c1-dea7-4d54-a94c-3d9ec56c5f5e", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"The is thus a means of effectuating the Legislature\u2019s intent by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping. Moreover, despite the parity of punishment, the merger doctrine prevents multiple convictions for conduct that, in fairness, should result in a single conviction. * * * \"The guiding principle is whether the restraint was 'so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them\u2019 (People v Cassidy, 40 NY2d, at 767, supra; see also, People v Cain, 76 NY2d 119, 125; People v Geaslen, 54 NY2d 510, 516-517) * * * where the restraint and underlying crime are essentially simultaneous, separate punishment may not be appropriate, depending on the circumstances (see, People v Cain, 76 NY2d 119, 125 [asportation and restraint of victim incidental to and inseparable from over-all scheme of robbery]; People v Dolan, 40 NY2d 763, 768 [sexual advances made while driving around]; People v Geaslen, 54 NY2d, at 517, supra [restriction of victim\u2019s movements incidental to simultaneous commission of attempted rape])\u201d (emphasis added). In terms of the applicable law, it has also been held that the merger doctrine is inapplicable to kidnapping in the first degree and only applies to kidnapping in the second degree (see, People v Pellot, 105 AD2d 223, 230-231; see also, People v Rivers, 150 AD2d 736, 737). In People v Pellot (supra, at 230-231) Justice Lazer, writing for a unanimous Appellate Division, in a careful, incisive analysis, held the merger doctrine inapplicable to \" 'traditional\u2019 \u201d or \" 'conventional\u2019 \u201d kidnappings, as prescribed by Penal Law \u00a7 135.25 (1) (citing People v Cassidy, 40 NY2d 763, 766, supra; People v Miles, 23 NY2d 527, 539; People v Lombardi, 20 NY2d 266, 271; People v Levy, 15 NY2d 159, 164-165), nor to those defined in section 135.25 (2), dealing with abductions for certain purposes, which last more than 12 hours, nor to those under subdivision (3), involving the death of the victim. In so holding, the Court recognized that criminal responsibility under subdivision (1) \"focuses on the intent of the abduction and is applicable when*115ever the objective is to effectuate an extortion.\u201d (People v Pellot, supra, at 232.)"], "id": "7d9cdaf5-df5c-4425-a9e4-8d2d4f579934", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant\u2019s claim that his conviction for kidnapping in the second degree should be reversed because of the is unpreserved for appellate review (see, People v Sage, 204 AD2d 746). In any event, the defendant\u2019s restraint of his victim was of the sort which the Legislature intended to punish separately from the other crimes which he committed (see, People v Gonzalez, 80 NY2d 146, 152). Contrary to the defendant\u2019s claim, the abduction was discrete from the burglary as the latter crime had been fully completed when the defendant forced the victim at knifepoint into a car and drove for 30 minutes before she was able to make her escape (see, People v Smith, 47 NY2d 83, 87)."], "id": "cdc27ff7-5644-4290-96dc-ec7e8308a192", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["David Goldstein, J. These are motions by defendants, made initially at the close of the People\u2019s case and renewed before submission to the jury, inter alla, to dismiss the first two counts of the indictment for kidnapping in the first degree.* Although the defendants were acquitted of these charges and the lesser included counts of kidnapping in the second degree, in my view, the importance of the issue in relation to the improper conduct by the District Attorney in attempting to foreclose application of the warrants consideration of the motion on the merits."], "id": "105edc42-b6b3-4ef9-9d19-1947de5dd56b", "sub_label": "US_Terminology"} {"obj_label": "Merger Doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Other decisions appear to treat a merged trust as merely suspended during the lifetime of the sole trustee/sole income beneficiary: \u201c[D]uring the period of the merger the trust is not wholly destroyed but merely suspended, and upon the death of the [life beneficiary] it is revived, at which time the obligation of distribution falls upon her personal representatives. Final distribution upon the termination of the trust is as much a part of the duties of a trustee as the administration of the fund *766prior to the arrival of such time\u201d (Matter of Lott, 148 Misc 1, 4 [Sur Ct, Queens County 1933]). Matter of Sackler (145 Misc 2d 950 [Sur Ct, Nassau County 1989]) is often cited to support the contention that a merged and suspended revocable living trust can spring back up on the life tenant\u2019s death to become a proper receptacle for a pour-over (see, Schumacher, Sole Beneficiary I Sole Trustee: New York\u2019s , NY St Bar Assn, Trusts and Estates Law Section Newsletter, summer 1993, at 4-9). The trust in that case, however, did not actually involve a merger, since individuals in addition to the life beneficiary/ trustee held present interests, and the notion of a continuing trust after the termination of the first estate was articulated in dictum. Nevertheless, Sackler is indicative of a judicial inclination, now codified in the amended EPTL 7-1.1, to mitigate the effects of merger on a trust\u2019s viability, particularly at the death of the settlor, if possible. And indeed, in Matter of Howard (supra), we found that the trust, even if merged or suspended during the settlor\u2019s lifetime, came back to life on his death to become an appropriate receptacle for the pour-over. The estate and trust assets could then be distributed by the successor trustee to the decedent\u2019s daughters and nieces and nephews."], "id": "0d4e7dfd-8ae6-4db6-916d-0ef6d4b339eb", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Notwithstanding, the wide latitude and discretion accorded to the prosecutor in terms of the charges to be presented to a Grand Jury, in my view, it is improper to withhold from the grand jurors\u2019 consideration certain crimes in relation to certain victims in order to avoid the legal consequences which flow from application of the . This, to some degree, impinges upon the function and prerogative of the Grand Jury, both in terms of its investigatory role and in determining which charges are to be included in an indictment."], "id": "20c5c569-50db-4dca-a727-04d7a0465d7e", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A similar analysis was approved in People v Miller (32 NY2d 157, at pp 159-160): \"Under [Penal Law of 1909 \u00a7 1044] any felony, including assault, could be the predicate for a felony murder. Since, a fortiori, every homicide, not excusable or justifiable, occurs during the commission of assault, every homicide would constitute a felony murder.\u201d Obviously, an assault occurs during the commission of every assault. The created to cure the same defect in the prior felony murder statute must necessarily be imposed here for the same reason."], "id": "f7ae5c8d-e95f-4627-a5d2-6ae827f515a2", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I am of the opinion that the Legislature by making kidnapping in the second degree one of our most serious crimes, intended that it apply to situations where the threat of deadly physical force was real and not merely apparent. The recent history of the kidnapping statutes and judicial interpretation of them has been to limit the application rather than broaden the application of kidnapping. Thus, although detention and asportation actually occur and even though the threat of deadly physical force may be used, where the intent of the criminal is to commit another crime, such as robbery (People v Levy, 15 NY2d 159) or rape (People v Lombardi, 20 NY2d 266), \"the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.\u201d (People v Lombardi, supra, p 270.) As Judge Breitel pointed out in People v Miles (23 NY2d 527, 540) \"the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.\u201d Again, as pointed out in People v Cassidy (40 NY2d 763, 765-766) \"[t]he [merging the kidnapping into the underlying offense of robbery or rape] was of judicial origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where a period of abduction was brief * * * and there was lacking a genuine 'kidnapping\u2019 flavor\u201d."], "id": "3241cebb-3ffa-422e-a24a-8b05107fef6c", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["New York law recognizes de facto merger \u201cwhen a transaction, although not in form a merger, is in substance a consolidation or merger of seller and purchaser.\u201d (Cargo Partner AG v Albatrans, Inc., 352d 41, 45 [2d Cir 2003] [internal quotation marks omitted].)9 A de facto merger occurs \u201cwhen the acquiring corporation has not purchased another corporation merely for the purpose of holding it as a subsidiary, but rather has effectively merged with the acquired corporation.\u201d (Fitzgerald v Fahnestock & Co., 286 AD2d 573, 574 [1st Dept 2001].) Underlying the de facto is the concept that \u201ca successor that effectively takes over a company in its entirety should carry the predecessor\u2019s liabilities as a concomitant to the benefits it derives from the good will purchased.\u201d (Id. at 575.) De facto merger is aimed at avoiding the \u201cpatent injustice which might befall a party simply because a merger has been called something else.\u201d (Cargo Partner AG, 352d at 46.)"], "id": "86dcd95e-317c-4c06-8ec1-4e6aa3f0651e", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As a self-trusteed revocable living trust that terminates on its creator\u2019s death, the instrument before us is an example of a type of will substitute widely promoted in many States, the effectiveness of which in New York has been problematic because of the . The respondents argue that because, according to the terms of the trust agreement, the decedent was the sole lifetime trustee and beneficiary, the legal and beneficial interests merge in him, which terminates the trust. They then urge that because there is no valid trust to govern the disposition of assets on the decedent\u2019s death, the trust corpus passes according to the will. And, because estate assets cannot pour into a failed trust, and because the trust\u2019s terms cannot be incorporated into the will, the decedent\u2019s entire estate must be distributed to them by intestacy. Both the petitioner and the guardian ad litem take issue with such an argument, contending that any merger of interests does not wholly invalidate the trust and that its dispositive provisions must govern the distribution of the decedent\u2019s property."], "id": "b4d304c5-92e3-434b-ab4c-b03473dc0996", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The does not apply to the case at bar since \"the rule has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitute and should constitute a separately cognizable offense.\u201d (People v Miles, 23 NY2d 527, at p 539.) The facts of the instant case clearly fall into this exception. The crimes of kidnapping and robbery were certainly not incidental to the crime of intentional murder, but were independent crimes which, due to the particular fact pattern here, should clearly constitute separate offenses from that of intentional murder, as well as felony murder. In fact, consecutive sentences for the intentional murder and the robbery are permitted by case law (People v Tanner, 30 NY2d 102, 108)."], "id": "64f77568-036a-4758-92ae-edcf4885f801", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The was a judicially created response to the harsh consequences of former Penal Law \u00a7 1250 (1), which, in substance, defined kidnapping as confining another against the victim\u2019s will and provided for a minimum sentence of 20 years to life. To prevent this harsh result in cases which, actually, amounted to a robbery, a rape, or some other underlying crime, but which did involve some degree of restraint, the Court of Appeals held that, where the restraint was part and parcel of some underlying crime, usually a robbery or rape, it would not escalate the crime to kidnapping, which *113would merge with the underlying crime (see, People v Cassidy, 40 NY2d 763; People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159, cert denied 381 US 938)."], "id": "f79dd6af-7e61-42c2-82bb-61d84a6e08cc", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is observed, at the outset, that similar legislation had passed the State Assembly in 1993 as \"an act to amend the estates, powers and trusts law, in relation to validity of trusts when the same person is trustee and beneficiary\u201d (1993 NY Assembly Bill A 8158; emphasis supplied). As approved by the Assembly, the legislation would have been effective \"immediately\u201d (id., \u00a7 2) and would have applied to all \"trusts whether created before or after the effective date\u201d (ibid.). In other words, when legislators had focused specifically on the merger issue, in 1993, they had found no reason to preserve the for purposes of some trusts, while eliminating it for purposes of others."], "id": "59c1941a-5ce7-41f8-883b-01f7119d8da5", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The trial court cited plaintiff's testimony \"that she has been to her ranch property on a daily basis since 1996.... She boards her own horses and also leases out space for boarding and training of horses for private individuals. The ranch has had as many as thirty (30) to fifty (50) horses for boarding and training.\"10 The court found that \"equity bars the application of the to prevent the granting of an express easement to the Plaintiff. There was no testimony that Plaintiff intended a merger.\" (This refers to the Lenope roadway easement plaintiff granted to her alter ego as owner of the Friese property.)"], "id": "a9cc509e-1bf7-458e-9177-5e5022b6a96d", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["However, \u201c[u]nder the well-established doctrine of merger, provisions in a contract for the sale of real estate merge into the deed and are thereby extinguished absent the parties\u2019 demonstrated intent that a provision shall survive transfer of title\u201d (Hunt v Kojac, 245 AD2d 858, 858-859 [3d Dept 1997]). Here, the plain language of the contract clearly and unambiguously expresses the parties\u2019 intention that \u201cthe terms of this contract shall not survive the closing of title but rather shall be merged by delivery of the deed by [defendant]\u201d (see Arnold v Wilkins, 61 AD3d 1236 [3d Dept 2009]; cf. Cerand v Burstein, 72 AD3d 1262 [3d Dept 2010]). Accordingly, it is clear that the parties intended the limited home warranties to constitute plaintiffs\u2019 exclusive remedy for post-closing defects in the contracted work. Moreover, while collateral undertakings fall outside the (Hunt at 859), the contractual provisions relied upon by plaintiffs are by no means collateral to the transaction (see Cerand, supra [zoning code violations existing at time of clos*707ing]; CGM Constr. v Miller, 263 AD2d 831 [3d Dept 1999] [extra work claim on construction contract]).1"], "id": "f82b8e09-b3f4-4989-82c6-8ab2018240aa", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["doubt that appellant \u201cintentionally or knowingly committ[ed] or attempt[ed] to commit a felony, namely, . . . Aggravated Assault.\u201d Accordingly, the charge is consistent with Penal Code section 19.02(b)(3), does not violate the , and is not erroneous for the reasons appellant contends. See Lawson, 64 S.W.3d 396, 397; Esquivel v. State, No. 01-16-00301-CR, 2017 WL 3910793, at *6 (Tex. App.\u2014Houston [1st Dist.] Sept. 7, 2017, pet. ref\u2019d) (mem. op., not designated for publication) (\u201cWe thus conclude that the jury charge\u2019s application paragraph regarding felony murder was not erroneous, and the jury charge did not contain an invalid legal theory of murder.\u201d); cf. Keen v. State, No. 03-19-00744- CR, 2021 WL 4819078, at *7 (Tex. App.\u2014Austin Oct. 15, 2021, pet. ref\u2019d) (mem. op., not designated for publication) (error in charge when submission of felony murder \u201cdid not differentiate between an aggravated assault committed intentionally or knowingly and one committed only recklessly\u201d)."], "id": "262af128-8223-4b7d-9627-3f4bf1a532d6", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Jerome L. Reinstein, J. Since neither precedent nor reason requires application of the so-called to a kidnapping-attempted escape situation, defendant\u2019s trial motion to dismiss the three kidnapping counts of the indictment was denied. Moreover, the State\u2019s public policy should preclude its employment where, as here, three unarmed correction officers were overpowered, bound, gagged, blindfolded, punched, kicked and their very lives placed in jeopardy during an unsuccessful escape attempt."], "id": "952ef7a8-c4e6-400c-b023-d74292645537", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In McSparron v McSparron (supra), the Court of Appeals rejected the line of cases which had held that a license to practice law \"merges\u201d into the resulting practice (e.g., Marcus v Marcus, 137 AD2d 131; Duffey v Duffey, 198 AD2d 581; Maher v Maher, 196 AD2d 530; cf., Finocchio v Finocchio, 162 AD2d 1044). The Court held that \"[t]he should be discarded in favor of a commonsense approach that recog*814nizes the ongoing independent vitality that a professional license may have and focuses solely on the problem of valuing that asset in a way that avoids duplicative awards\u201d (McSparron v McSparron, supra, 87 NY2d, at 285). The Court emphasized that the determination in each case must be individualized to account for the \"harvesting\u201d of a portion of the award prior to commencement of the matrimonial case. The Court also noted that methods must be adopted to insure that there is no duplication between the award for the value of the license and other distributive and maintenance awards in the same case."], "id": "20c586e8-0ae4-4964-9b35-6ba25650960c", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Prior to People v Cassidy (40 NY2d 763) it was uncertain whether the judicially created , first enunciated in People v Levy (15 NY2d 159) and followed in People v Lombardi (20 NY2d 266), survived the 1967 revision of the Penal Law\u2019s kidnapping provisions (People v Rodriguez, 52 AD2d 781). Cassidy held that it did. \u201cThe merger doctrine is [still] intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may. not fairly be attributed to them.\u201d (People v Cassidy, supra, p 767; see, also, People v Geaslen, 54 NY2d 510, 516-517.)"], "id": "ea73cf58-00c7-4a66-8660-0727545d0fd5", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["One of the reasons for the problems resulting from the use of actual earnings is that it measures a combination of several factors: the license, the use to which it is put, the individual characteristics of the holder and the practice in which it is *816used. Patently, if the purpose of the exercise were solely to value the \"license\u201d itself, then the individual use to which it is put would be irrelevant. The result would be that all licenses issued at a particular date in a particular locality would have the same value. The cases which had adopted the were in part attempting to avoid this anomaly (see, Finocchio v Finocchio, supra; compare, Procario v Procario, 164 Misc 2d 79, 83-86). Wife\u2019s expert attempted to deal with this question by ascribing a value to the \"license\u201d itself and a separate value to the \"enhanced earnings\u201d that result from it. Husband\u2019s expert in one of her alternate scenarios also valued the license itself without regard to the enhanced earnings."], "id": "8107c4bb-0f3f-4c6f-b173-a5dd6560750f", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We are also extremely troubled by the operation of the on the continued existence of this trust and its eligibility as a pour-over receptacle. Most of the early cases dealing with merger (see, discussion, supra) held that the merger of interests in the life beneficiary caused the trust to fail, leaving a legal life estate and \u00e1 legal remainder. Underlying such determinations is the conceptualization of the remainder as a legal interest to take effect after the termination of the trust rather than as an equitable interest under the trust itself. According to this reasoning, because the trust\u2019s only beneficiary was the life beneficiary/trustee, the trust ceased to exist (13 Warren\u2019s Heaton, Surrogates\u2019 Courts \u00a7 209.02 [1] [b] [6th ed]). But later courts recognized the problems inherent in the life estate/remainder arrangement, in particular the issue of adequate protection for the interests of the remaindermen during the life estate and sought to promote continuation of the trusts. The Court of Appeals in Matter of Phipps (2 NY2d 105 [1956]) held that if the governing instrument evidenced any intention that the trust should continue, such as the designation of a successor trustee, the Court would appoint the denominated successor a cotrustee with the life beneficiary to forestall the merger and the termination."], "id": "e73eed89-cff4-40a8-a9cd-109adca8d337", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Levy (supra), the Court of Appeals, establishing the , concluded that restraints, sometimes accompanied by asportation, which are incidents to other crimes, should not be treated as kidnappings. Thus, \u201cIt was held in Levy that under the kidnapping statute then in effect (Penal Law, former \u00a7 1250) * * * the detention or asportation of a victim for a relatively short time as an incident to robbery should not normally be prosecuted as kidnapping.\u201d (People v Lombardi, 20 NY2d 266, 271.)"], "id": "aefeb188-afa4-4c9d-9ff3-d651fe9f29af", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant\u2019s argument that the compels *259dismissal of his convictions for kidnapping in the first degree and felony murder based upon kidnapping is unpreserved (CPL 470.05 [2]), and we decline to review it in the interest of justice. In any event, the merger doctrine is inapplicable to a first degree kidnapping conviction under Penal Law \u00a7 135.25 (3) (People v Pellot, 105 AD2d 223). Furthermore, since defendant was not formally charged with second degree kidnapping, the alleged predicate for one of his felony murder convictions, the merger doctrine has no application."], "id": "99ed1743-b480-4fa9-aa11-ca1747c591dd", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Dianne T. Renwick, J. *603This is an action for partition of certain real property jointly owned by plaintiff All Brands Fork Lift Corp. and defendant Yetish, Inc. Defendant Yetish, Inc. now moves for partial summary judgment on its counterclaim for partition and dismissal of plaintiff\u2019s complaint. Plaintiff All Brands Fork Lift Corp. cross-moves for partial summary judgment on its claim for partition. The outcome of these motions depends on whether the extinguishes a clause in the buyers-prepurchase agreement allocating their respective percentage of ownership of real estate where such clause conflicts with a similar provision in the deed of conveyance that provides a different percentage of ownership."], "id": "76fe499c-4256-4a38-a3df-4c2de2e3c350", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Under Business Corporation Law \u00a7 901 (a) (1), a merger is defined as a transaction leading to the formation of a single surviving corporation. (See, Danziger v Kennecott Copper Corp., index No. 21941/1977, Sup Ct, NY County, Kirschenbaum, J, affd 60 AD2d 552.) The fact that the corporation whose shares are acquired continues to exist means that there is no requirement for shareholder approval under Business Corporation Law \u00a7 903 (a) (2). (Danziger v Kennecott Copper Corp., supra.) Effectively, said case stated that in circumstances similar to the instant case the de facto will not be applied. The de facto merger doctrine has been applied in this State, but only where it is apparent that the acquired corporation was quickly to be dissolved."], "id": "e51f8278-9827-4c99-8e62-de5c85013099", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cTraditionally, once the buyer accepted the deed, he absolved the vendor of all duties under the sales contract. Under the , all contract obligations \u2018merged\u2019 into the deed when the seller delivered it to the buyer. If the vendor intended to fulfill additional obligations, the parties had to list the obligations in the deed\u201d (McDaniel, The New York Housing Merchant Warranty Statute: Analysis and Proposals, 75 Cornell L Rev 754, 756 [1990]). The effect of the merger doctrine was to extinguish claims based upon defective home construction once the buyer accepted title to the underlying real estate. Consequently, because of the perceived unfairness and inequity of this result, the merger doctrine, at least in the context of new residential home sales, had long been under frontal attack by the legal academy and incremental erosion by the courts when the Court of Appeals decided Caceci (72 NY2d 52)."], "id": "ac1bdd9f-949d-4d82-a20c-faaeeae655ac", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Caceci, the Court placed its imprimatur upon a rule that in a home construction contract, \u201cthere is an implied term in the express contract between builder-vendor and purchasers that the house to be constructed would be done in a skillful manner free from material defects\u201d (72 NY2d at 56). This alone would have broken no new ground, but the Court went on to hold that the applicable upon transfer of title, whether derived from the parties\u2019 contract or otherwise by operation of law, would not extinguish the implied warranty (id. at 56-57). This was central to the case, because the plaintiffs\u2019 contract with the builder called not only for home construction but conveyance of the underlying real property *741upon which the home was built. \u201cTo hold, in a case such as this, that the closing itself, the very act which triggers the claim, also served to extinguish it is self-contradictory, illusory and against public policy\u201d (id.)."], "id": "a9e38e41-ec91-4192-96c3-1eb6c7f0191a", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["homicide.\u2019\u201d Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (quoting Garrett, 573 S.W.2d at 546). Instead of a general , the court stated that the doctrine exists only to the extent consistent with Penal Code section 19.02(b)(3). Thus, Garrett stands only for the proposition that \u201ca conviction for felony murder under section 19.02(b)(3) will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter.\u201d Id."], "id": "a4c5f94e-561a-4c40-b4f6-5a05213a58d3", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is offered as a possible explanation that some textbooks refer to the fact that the Penal Code of 1881 did away with the doctrine of merger in this State. If that be the fact, the refers to mergers between misdemeanors and felonies and not to mergers between two felonies. Both an attempt to commit a crime and assault with intent to commit a crime, although misdemeanors under the common law, had long before 1865 been made felonies in this State."], "id": "08dd54e7-ee1a-43e6-8edd-9978ace5ff05", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thus, in such a situation, the duration of the restraint is without dispositive effect. The observation and holding by the Appellate Division in People v Pellot is most instructive (supra, 105 AD2d, at 232): \"So viewed, application of the to either subdivision 1 or subdivision 3 is patently inappropriate. This is so because the element which distinguishes these crimes quite simply has nothing to do with either the complexity of the asportation or the duration of the confinement, whereas the merger doctrine turns upon those very considerations (see People v Cassidy, 40 NY2d 763, 765-766, supra; People v Miles, 23 NY2d 527, 539, supra). To sustain a conviction for kidnapping in the first degree in violation of either subdivision 1 or subdivision 3, there must be an abduction consisting of the requisite act of restraint accompanied by either the isolation of the victim or the threat or actual use of deadly physical force. Once these technical elements are proven, however, a separately cognizable violation of subdivision 1 is shown by proof that the purpose of the abduction was extortion. If that be the case, the duration of the confinement is immaterial, and the defendant is guilty of kidnapping in the first degree, even if the victim manages to escape after only a few moments of confinement\u201d (emphasis added)."], "id": "89208e65-585b-471b-96ce-97698d331eb3", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The only basis for sustaining this factual scenario as representing a burglary-robbery vis-\u00e1-vis the father and a separate kidnapping, insofar as concerns the mother and son, is the imaginative manner by which the indictment was created to pose, in two neat, tidy packages, a burglary-robbery as to the *117father, and a kidnapping as to the mother and son. This approach, however, overlooks the actual facts as they unfolded. It also fails to perceive that, while the situation might have escalated into an actual kidnapping, the arrival of the police intervened. Clearly, under the facts of this case, there was no extortion at the time the police arrived. Inasmuch as, at that time, the extortion and the robbery were one and the same, we do not have two separate, independent crimes. (See, People v Pellot, supra, 105 AD2d, at 232.) Moreover, as stated, the manner by which the indictment was crafted, in avoidance of the legal and equitable principle underlying the , is improper and transcends the prosecutorial role, which does carry with it a degree of fairness in terms of the public."], "id": "6d6ac377-e8b6-4d17-b636-b946d1010fb5", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u00b623 Thompson does not offer any compelling reasons to overturn these cases. For the most part, he refuses to acknowledge our holdings that premeditated murder and burglary with the intent to murder are separate offenses. See State v. Styers, 177 Ariz. 104, 112 (1993) (\u201cAlthough the jury findings in this case clearly demonstrate that the kidnapping was pursuant to a plan to kill, that does not mean that only one crime was committed. Thus, the would not apply here.\u201d). Thompson seeks to distinguish Kuhs and Hardy because the defendants in those cases forced their way into their victims\u2019 homes while he did not. STATE V. THOMPSON Opinion of the Court"], "id": "7220d9a5-0360-4487-9dae-3b41956f99cd", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In this case, the does not come into play. Plaintiff is really saying that in 2010, she intended to grant an easement over the Lenope roadway to her ranch property, not to the Friese property. If she had done so, the applicability of the merger doctrine, and her intent not to merge the \"the fee title to both the dominant and servient tenements\" would be relevant. But she did not grant the easement to her ranch property. The easement she granted is quite clear. Plaintiff, then owner of the servient tenement (the Lenope property) granted an easement \"running with the land\" for the benefit of the Friese property at 22590 Fern Ann Falls (the dominant tenement). She now says she intended to do something else - to grant an easement to her ranch property as the dominant tenement.30 But her intent does not matter if the easement grant was not ambiguous."], "id": "98364e23-1eab-4307-bd6e-b03b2aa09a66", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To support a murder conviction under a felony-murder theory, the predicate felony must be one \u201cother than manslaughter.\u201d Id. \u00a7 19.02(b)(3). In 1978, the Court of Criminal Appeals interpreted this provision and held that, in a felony- murder case, the felony had to be felonious conduct other than the assault causing the homicide. See Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim. App. [Panel Op.] 1978)). \u201cThis limitation on the felony-murder rule\u201d became \u201cknown as the .\u201d Murphy v. State, 665 S.W.2d 116, 119 (Tex. Crim. App. 1983). But the court subsequently disavowed its \u201coverly broad statement\u201d in Garrett that, in order to support a conviction under the felony-murder provision, \u201c\u2018[t]here must be a showing of felonious criminal conduct other than the assault causing the"], "id": "534df805-27fa-48b2-9ac6-eb1d41ca6b65", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*649\"The felony- never existed in the United States. Nevertheless, American courts followed the English rule, as stated in Baker v. Bolton, and it was uniformly established in the United States that there was no right of action for wrongful death, Moragne v. States Marine Lines, supra, at pages 382-388.\u201d (Brief of Plaintiff/Appellee, pp 6-7 in Matter of Paris Air Crash, supra.)"], "id": "dc9f622f-c18e-4def-9b38-fcba79ccd4d2", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Renee R. Roth, S. At issue is whether this application by the sole trustee and income beneficiary of a testamentary trust, established under a will admitted to probate on May 29, 1997, is governed by the recent legislation affecting this State\u2019s \"merger doctrine\u201d (L 1997, ch 139, \u00a7 2, amending EPTL 7-1.1). At common law, such doctrine basically provided that no trust in New York (whether testamentary or inter vivos) could exist where the sole present income beneficiary was, or became, the sole trustee (Matter of Reed v Browne, 295 NY 184). An outgrowth of the Statute of Uses, and thus deeply embedded in the history of trusts, the was codified in 1896 as Real Property Law \u00a7 92, which became EPTL 7-1.1 (L 1966, ch 952), and applied with equal force to all types of trusts. The harsh effect of the merger doctrine, however, could be avoided by the appointment of an additional trustee (Matter of Phipps, 2 NY2d 105). In 1997, adding six new sections to the Estates, Powers and Trusts Law and amending four others in an omnibus enactment (L 1997, ch 139, \u00a7\u00a7 1-7) entitled \"an act to amend the estates, powers and trusts law in relation to lifetime trusts\u201d (emphasis supplied [the Act]), the Legislature (L 1997, ch 139, \u00a7 2) replaced the original provisions of EPTL 7-1.1 with the following: \"A trust is not merged or invalid because a person, including but not limited to the creator of the trust, is or may become the sole trustee and the sole holder of the present beneficial interest therein, provided that one or more other persons hold a beneficial interest therein\u201d."], "id": "4a784812-6530-4820-81c7-cd941cd901c8", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Harold Pozarny\u2019s intention regarding the disposition of his assets at death was entirely straightforward and simple. The *771trust instrument and pour-over will he purchased, however, in their dependence on generic forms that failed to take account of the peculiarities of New York law (particularly the , which was in effect at the time the trust was executed and when its creator died, and the general prohibition against incorporation by reference), their looseleaf format, and their numerous ambiguities, errors, and inconsistencies, placed that dispositive scheme at grave risk. This decedent would have been better served by a simple will."], "id": "2cb7b490-f13a-4360-87b9-5809d8d26c7d", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By its amendment of EPTL 7-1.1, the Legislature brought New York in line with the vast majority of States that have rejected the . In eliminating the doctrine, the Legislature also eliminated the drain on judicial and trust resources previously required in order to circumvent the doctrine through the appointment of additional trustees. As noted earlier, there is nothing in the language of the new EPTL 7-1.1, or in the nature of its subject matter, to suggest that the Legislature intended to achieve such benefit for some types of trusts, but not for others. The conclusion is, rather, that the *500new law was intended to apply to testamentary and lifetime trusts alike."], "id": "907738f9-67a1-4aa7-b898-54e9b0bcc2fe", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court had reserved decision on the motions and, notwithstanding the verdict, now grants the motions at the close of the case, upon the prosecution\u2019s failure to establish, beyond a reasonable doubt, the requisite elements of kidnapping in the first degree. The lesser included charges of unlawful imprisonment in the first degree are dismissed under the as inseparable from the underlying crimes of robbery and burglary and the verdict vacated only to that extent."], "id": "cdbb2382-a449-4d9a-880b-8cfbb5b66040", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["[T]he is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping)."], "id": "b0e07eec-b047-4fe1-898f-100ce90c9d6d", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". Indeed, the Court of Appeals decision in Caceci v Di Cardo Constr. Corp. (72 NY2d 52 [1988]) to imply a common-law remedy that survives the closing of title arose precisely because the generally has the effect of extinguishing breach of contract claims based upon defective home construction (see Gorsky v Triou\u2019s Custom Homes, 194 Misc 2d 736 [Sup Ct, Wayne County 2002])."], "id": "76feeddd-cbec-4a58-bd90-ef51e4ccc8f3", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The final argument urged by the children is that the trust is invalid because of the so-called \"merger\u201d doctrine which in effect requires that for a subsisting trust there cannot be a sole trustee and a sole income beneficiary (Matter of Phipps, 2 NY2d 105, 108). The trust, however, does not limit payments to the decedent only, but permits payments of income and distribution of principal to be made in addition to the decedent\u2019s wife and their \"lineal descendants.\u201d This would normally be sufficient to obviate any question of the (Matter of Kagan, 118 Misc 2d 1084). Moreover, while the cases dealing with the merger doctrine do speak of the trust \"terminating\u201d or the trust relationship ending (Matter of Reed v Browne, 295 NY 184), the actual result, however, is merely converting the sole trustee/sole income beneficiary\u2019s interest into a legal life estate or tenancy, not the destruction of the remainder interest (Weeks v Frankel, 197 NY 304, 311). For all interests to terminate, the sole income beneficiary must not only be the sole trustee, but also the sole remainder-man (Matter of Bowers, 2 Misc 2d 482). Where that is the factual situation, \"[t]he result is a merger, not merely into a legal life estate, Matter of Reed v. Browne, 295 N.Y. 184, 66 N.E. 2d 47, 165 A.L.R. 1061; Weeks v. Frankel, 197 N.Y. 304, 90 N.E. 969, but into a fee simple * * *. The purported trust *954is ineffective\u201d (In re Atkinson\u2019s Estate, 114 NYS2d 808, 809). While the children might then revert back to their first argument that the power to revoke the trust was tantamount to a merger of all interests in the decedent, the simple answer is that interests which are defeasible are nevertheless genuine interests while unrevoked and never having been revoked by the decedent are now unassailable (Pinckney v City Bank Farmers Trust Co., 249 App Div 375, supra)."], "id": "ef8fc95a-d4b1-48a1-95f2-853677adae78", "sub_label": "US_Terminology"} {"obj_label": "merger doctrine", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Additionally, and in any event, the Miles exception above quoted should preclude the judicial extension of the to any situation involving the detention of hostages for a significant period. (Cf. People v India, 67 AD2d 488.) And this exception should particularly apply to the taking of correction officers as hostages. These officers, of necessity, come in daily contact with inmates, some serving lengthy sentences, who often may feel they have little to lose by attempting to escape. At least let it be known that if any correction officer is used as a shield or hostage in such attempt, the abductor will be severely dealt with."], "id": "1f30f5e6-5932-4c65-bec5-bf1bb9dcb909", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Subdivision 5 of section 180.10 makes further provision as to the manner in which the court must proceed. The record here is silent as to any with the defendant which would have led the court to be satisfied that the defendant made a decision to proceed without counsel and to waive an examination with full knowledge of the significance of that decision and its consequences."], "id": "3fc8d9f2-2c76-4f2c-af4a-d546701e3728", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*446The law does not entitle the defendant to disavow her confessions to her factual guilt merely because the People may have had a case weaker than anticipated. (Brady v United States, 397 US, at 757, supra.) The defendant\u2019s decision in this case to forego litigation by pleading guilty must stand because her plea was legally sound, the record establishes unequivocally that she was, in fact, guilty of the crime of which she was convicted, because of the nature of the undisclosed evidence, and because she has not shown its materiality under Armer (supra), Miller (supra) and Tate (supra). Thus, the judgment in this case shall remain undisturbed."], "id": "162687a5-36f0-4437-934e-93f3703ff2fd", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*8657. Corroborative of Abdela\u2019s statement that she kicked the deceased causing him to fall backward were the autopsy report and photographs of the deceased. The People\u2019s Medical Examiner testified that three distinct contusions to the deceased\u2019s right thigh were consistent with a kick from Abdela\u2019s roller blades, and thus independently supported Abdela\u2019s statement in the that she kicked the deceased\u2019s legs out from under him;"], "id": "08044bcd-f689-4dc3-9760-ac07e2da3ab7", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["During his plea , defendant stated that he had been provided sufficient time to discuss his guilty plea with his attorney, that he was satisfied with the representation that he had received from his attorney, and that he was convinced that it would be better to plead guilty than to go to trial. Defendant also stated that no one had threatened him or coerced him into pleading guilty, that he was entering the plea of his own free will, and that he did not have any questions for the court or his attorney or anyone else before pleading guilty."], "id": "e35584b6-2cb6-473c-b81d-ded65b074b77", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thus, this court, under the established First Department, Appellate Division and Court of Appeals precedents, relies on People v Serrano (supra) and People v Harris (supra) in determining that the defendant\u2019s prior plea was insufficient to serve as the constitutional basis for a predicate felony sentence, and cannot enhance defendant\u2019s sentence herein. Thus, for the reasons set forth hereinabove, this court determines, as a matter of fact and law, that defendant sustained his burden of proof under CPL 400.21."], "id": "9a0a8e7f-04ee-40e6-9f47-6cb0a8dd4624", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Abraham G. Gerges, J. Defendant moves to vacate the judgment on the ground that defendant\u2019s plea did not establish his intent to murder the victim and that the Court failed to advise him that after completing his incarceration he would be required to serve a period of postrelease supervision. The defendant also moves to vacate the judgment on the ground that he received ineffective assistance of counsel when counsel failed to tell him that intent to kill was an element of attempted murder in the second degree, when counsel failed to advise him that he was subject to postrelease supervision and when counsel failed to negotiate a reduction of the amount of postrelease supervision time he will be required to serve."], "id": "017ff3fa-e601-4c8b-b3f6-0a5ea0fb7958", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Therefore, to the extent that, in De Jesus II, this court credited information set forth in the PSI where inconsistent with defendant\u2019s testimony (at *10), this court now acknowledges that it overlooked the inaccuracies in the PSI as to the dates of defendant\u2019s marriages to her first and current husbands and that the siblings with whom she enjoyed a close relationship resided in the United States at the time of her plea, and misapprehended that the PSI was wholly reliable as a factual source. Proper resolution of these discrepancies is significant, in that they, together with the fact that defendant\u2019s children were on the verge of legal entry into the United States, are pertinent to whether defendant had stronger family ties to this country *758than to her country of origin which, if true, would have rendered the immigration consequences of her plea important to her had she known of them at the time of her plea . Accordingly, on this motion, the court, having been made aware of the inaccuracies in the PSI and therefore deeming it unreliable with respect to the issues of her family ties to the United States, finds defendant\u2019s testimony credible and the PSI not credible on these issues to the extent that there are any material factual discrepancies between the two."], "id": "943b4029-d034-493e-b03b-ea34f107dee5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cReference to Vasquez\u2019s conduct, as opposed to his identity . . . was relevant in establishing the extent of Abdela\u2019s criminal liability, and did fall within the hearsay exception ... \u201cIn sum, Abdela\u2019s description of Vasquez\u2019s acts, which occurred simultaneously with her own, was inextricably intertwined with the description of her own acts, in that the combined actions demonstrate Abdela\u2019s mens rea as set forth in the to first degree manslaughter. Moreover, reference to those same acts establishes the manner in which the death was caused; that is, Abdela was acting in concert with another in the commission of the crime. Therefore, since Abdela\u2019s description of Vasquez\u2019s actions was not superfluous to her manslaughter plea, but was, in fact, essential to its validity, and since such description established elements of the homicide charges, I found the entire factual portion of the allocution fell within this hearsay exception and was admissible.\u201d (179 Misc 2d at 865-867.) \u201cDuring the trial, the circumstances surrounding the taking of the plea allocution, as well as the chronology of preceding meetings between Abdela and law enforcement officials, were explored by defense counsel. A limiting instruction was given to the jury, both at the time that the evidence was admitted on the People\u2019s direct case, as well as during the court\u2019s final charge, regarding the purpose *769for which the jury was to consider this evidence, as well as the manner in which they were to assess its trustworthiness and reliability.\u201d (Vasquez, 179 Misc 2d at 867 n 6.) I then ruled that:"], "id": "03561331-d50e-4f9e-b6f3-65b9e572e563", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant was accused of robbing two banks and attempting to rob a third bank. Charged with multiple felony counts, the defendant was to plead guilty to attempted robbery in the second degree, in full satisfaction of the indictment, with the understanding that he would receive a certain sentence. After a plea , the Supreme Court stated that the plea was acceptable to the court, but the prosecutor, in effect, objected to the allocution. After making further inquiry of the defendant, the court stated that the plea was acceptable to the court if it was acceptable to the People. The prosecutor, in effect, objected again, stating his belief that the allocution was not legally sufficient. The matters then proceeded to a jury trial, after which the defendant was convicted of two counts of robbery in the first degree, attempted robbery in the first degree, two counts of robbery in the third degree, and attempted robbery in the third degree."], "id": "53572efc-082a-4795-9d35-7d94d5d2fa9e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While defendant\u2019s further claims\u2014that he was not mentally competent to enter a plea and that his counsel was ineffective for failing to request a competency hearing\u2014survive his appeal waiver because they impact the voluntariness of his plea (see People v McFarren, 83 AD3d 1209, 1210 [2011], lv denied 17 NY3d 860 [2011]), defendant did not preserve them by a proper post motion (see People v Shiels, 93 AD3d 992, 992 [2012]; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; People v McFarren, 83 AD3d at 1210; People v Budwick, 82 AD3d at 1448; People v Coons, 73 AD3d 1343, 1344 [2010], lv denied 15 NY3d 803 [2010]; People v Gomez, 72 AD3d 1337, 1338 [2010]). Moreover, the narrow exception to the preservation requirement was not implicated, as defendant did not make any statements during the plea colloquy that cast doubt on his guilt or otherwise called into question the voluntariness of his plea (see People v Borden, 91 AD3d at 1125; People v Coons, 73 AD3d at 1344)."], "id": "fe027550-9920-44f1-bc66-07d9eb480f88", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It should be noted, however, that the jurisdictional error in this case has nothing to do with the defendant\u2019s guilt or innocence. During the , the defendant fully admitted committing acts which would support a conviction for the misdemeanor auto stripping charge. He was also sentenced to the promised four months\u2019 jail in accordance with his negotiated plea. Prior to the subject plea, the defendant had pleaded guilty in at least seven previous cases, four of which appear to relate to car break-ins under similar circumstances as the instant offense. Accordingly, the defendant is certainly not a novice to the criminal justice system and he is experienced with the procedural manner in which a plea is taken and its consequence (see, People v Gonzalez, 156 AD2d 135 [1st Dept 1989]). The defendant has never asserted his innocence to the auto stripping charge nor is such an assertion contained in his moving papers. What he seeks now is the benefit of avoiding the more serious treatment the law affords his most recent crime given his prior commission of that same conduct."], "id": "475f6f1c-830a-4a19-8d67-2ae06c7444ab", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Carolyn E. Demarest, J. *484On November 22, 1995, Jeffery B. was indicted on charges of sodomy in the first degree and sexual abuse in the first degree committed on October 26, 1995. On October 26, 1995, Jeffery B. was 14 years old, having been born on June 23, 1981. He was thus subject to prosecution in Supreme Court by virtue of CPL 1.20 (42) which defines a \u201cjuvenile offender\u201d as \u201ca person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in * * * subdivisions one and two of section 130.50 (sodomy in the first degree)\u201d. On July 24, 1996, defendant Jeffery B. and a codefendant, Jamara Webster, who was over the age of 16 at the time of the crime, pleaded guilty before this court to the crime of sexual abuse in the first degree under Penal Law \u00a7 130.65 on a promise, recommended by the District Attorney, that this defendant be \u201csentenced\u201d to a conditional discharge and be adjudicated a youthful offender. The crime of sexual abuse in the first degree is not a felony designated within the Criminal Procedure Law or Family Court Act \u00a7 301.2 (8) as an exception to the defense of infancy, subjecting a person under the age of 16 to criminal prosecution. Legally, therefore, Jeffery B. could not be criminally adjudicated a \u201cjuvenile offender\u201d and could not be sentenced, pursuant to CPL article 720, as a youthful offender upon his plea to sexual abuse in the first degree. (See, CPL 720.10 [definition of youthful offender].) Nonetheless, on September 11, 1996, defendant Jeffery B. appeared for sentencing before this court and, based upon a probation report, and at the urging of the District Attorney, was adjudicated a youthful offender and sentenced, pursuant to the promise at the , to a conditional discharge. An order of protection was issued for complainant. The sentencing document indicates that the conditional discharge, which began on the 11th of September 1996, would expire on September 10, 1999, a period of three years, consistent with Penal Law \u00a7\u00a7 60.02 and 65.05 (3), applicable to a youthful offender guilty of this crime."], "id": "e29f1b82-f9f3-43ed-a22b-d8c5da81459d", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["During the plea proceeding, the defendant\u2019s attorney stated to the court that \"at the time of sentencing, I would ask the District Attorney\u2019s office\u201d to provide the defendant with the originals of certain tapes, and the Assistant District Attorney *556stated, \"[a]t sentencing, we have no objection\u201d. At sentencing, the People stated that they were unable to provide the original tapes because they were required as evidence in another case. The defendant then applied to withdraw his plea of guilty, and the court denied the application. This was proper. Contrary to the defendant\u2019s contention on appeal, the quoted exchange was not part of the plea agreement. It took place after the plea was completed, and in any event, was merely a precatory request, not a term of the agreement. This case is therefore distinguishable from those in which a defendant has been allowed to withdraw his plea of guilty because he was denied \"the full benefit of his negotiated plea\u201d (People v Ward, 174 AD2d 589; see also, People v McConnell, 49 NY2d 340; People v Selikoff, 35 NY2d 227, cert denied 419 US 1122; People v John C., 184 AD2d 519). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur."], "id": "9601b886-ee55-4c6a-bd8e-c07059fe7747", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Upon Martinez\u2019s death, the prosecution, pursuant to CPL 40.20, secured an indictment of Ortiz for murder in the second degree (Penal Law \u00a7 125.25 [1]). The prosecution seeks permission to use, at the murder trial, as evidence in its case-in-chief the factual admissions Ortiz made as part of his guilty plea to the assault charge. Consequently, the issue now before this court is whether it is permissible to use the made by a defendant in one proceeding against him in another proceeding, where the defendant has not been advised of its potential use against him subsequently, and where the subsequent proceeding involves the same res gestae.2"], "id": "0c40475d-ebce-4e57-b9b6-09499beb2ed2", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["A person is guilty of resisting arrest when she intentionally prevents or attempts to prevent law enforcement personnel from carrying out an authorized arrest of herself or another (Penal Law \u00a7 205.30). Civil assault, on the other hand, is defined as intentionally placing another in fear of imminent harmful or offensive contact, and civil battery is actually and intentionally making that wrongful physical contact without consent (United Natl. Ins. Co. v Waterfront N.Y. Realty Corp., 994d 105, 108 [2d Cir 1993]). This is not the case of a criminal assault conviction precluding a defense against similar allegations in a civil assault action (see e.g. Olsson v MacDonald, 16 AD3d 1017 [2005]), where the identity of issue is beyond question. An *64ambiguous plea admitting to a \u201cstruggle\u201d in criminally resisting arrest is insufficient for collateral estoppel purposes in the context of a civil assault and battery action, without elevating that word to the status of a yet-undefined legal term of art. There was no identity of issue here (see Charkhy v Altman, 252 AD2d 413 [1998])."], "id": "6c32807d-1482-4b34-8751-499b43d25654", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Whether omission of an essential element (force) of a felony *607(robbery in the second degree \u2014 Penal Law \u00a7 160.10) by defendant, represented by counsel, and the court during the factual of a guilty plea to a prior felony conviction is legally sufficient as the constitutional basis for a predicate felony sentence? An issue of first impression in the First Department."], "id": "14f24604-0acf-411a-a292-11a3c4cab496", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thereafter, with the District Attorney\u2019s consent and following a full , the defendant entered a guilty plea to second degree murder and first degree robbery in full satisfaction of the indictment relating to the death of Louis Thumudo. The defendant was promised consecutive sentences of 25 years to life and 10 years to run consecutively to the sentences promised on the Capobianco indictment. Smelefsky was read and signed a waiver of appeal in each case and, upon his admission, was adjudged a second violent felony offender. The cases were then adjourned for sentence."], "id": "ec70a1f4-44f6-402d-9591-558460f50dcd", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On February 17, 1977, the defendant pleaded guilty to criminal sale of a controlled substance in the third degree. On that day, the court, having before it a prepleading investigation report prepared by the Probation Department, sentenced defendant to an indeterminate term of imprisonment, the minimum of which was one year and the maximum of which was life imprisonment. Prior to the imposition of sentence, defendant\u2019s counsel was given the complete written probation report with ample opportunity to study it and to comment upon it during the sentencing ."], "id": "b29b04a3-3b0e-4277-853c-eb796acfd470", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*297Defendant\u2019s sentence was to an indeterminate period of not less than three years, nor more than six years. The original promise of two and one-half years to five years was not honored, as per the warning given by the court, at the and acceptance by the court of the plea, that all commitments regarding sentence would be off, if defendant did not appear for sentence. At the time of sentence, a violation of probation was also pending. The court was unable to proceed on that charge since the defendant had not been arraigned on the charge of violation of probation and a bench warrant was ordered by the court, that matter to be considered by this court at a future date."], "id": "f6091302-fc3f-407f-9d03-fe9e520594bc", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Per Curiam. Respondent was admitted to practice law at the First Judicial Department in 1975, and has maintained an office for such practice within this Department at all relevant times since then. In May 1994 respondent pleaded guilty, in United States District Court for the Eastern District of New York, to three counts of mail fraud (18 USC \u00a7 1341) and one count of tax evasion (26 USC \u00a7 7201). Each of these counts is a Federal felony (18 USC \u00a7 3559), but there is no New York felony analog (Matter of Teplin, 82 AD2d 296, 297; see, Matter of Levine, 168 AD2d 116). Thus, disbarment is not automatic (cf., Judiciary Law \u00a7 90 [4] [b]), and a \"serious crime\u201d inquiry would normally be warranted (subd [4] [d]), unless the criminal conduct admitted to in the Federal plea satisfies the elements of a New York felony."], "id": "d608de04-ca86-415d-ae4a-e57c36c5375e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["According to defendant, when he attempted to leave, the victim shot him as he turned to walk away after the robbery. Later in the plea , defendant admitted that, after the complainant had identified himself as a police officer and instructed him to freeze, defendant turned and pointed his gun at the officer, who shot him. Medical records reflect that the wound entered defendant\u2019s abdomen and exited his back. The promised sentence was based upon information from defendant that this was his first and only conviction. Included in the plea minutes is the following:"], "id": "9ae817c1-921f-4165-a276-9bc8398cebe5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Respondent\u2019s appeal in this proceeding under Family Court Act article 3 focuses on the sufficiency of the plea . The record shows that prior to accepting respondent\u2019s admission that he committed acts, which if had been committed by an adult, would have constituted the crime of sexual abuse in the second degree, Family Court asked respondent if his Law Guardian had advised him of his rights. Respondent indicated that she had. Family Court then proceeded to elicit statements from respondent establishing that he committed the act to which he was entering the admission (see, Family Ct Act *801\u00a7 321.3 [1] [a]). Following a dispositional hearing, respondent was placed in the custody of the Sullivan County Department of Social Services for residential placement for up to one year."], "id": "fa87d3cf-33e8-4c59-9b7d-5737d971dbe1", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant\u2019s reliance upon Padilla v Kentucky is misplaced. Initially, defendant overstates the Supreme Court\u2019s ruling in Padilla. Having conceded that the use of defendant\u2019s plea at a subsequent prosecution is a collateral consequence, defendant cites Padilla for the proposition \u201cthat counsel must warn clients of potential adverse collateral consequences before accepting guilty pleas.\u201d (See defendant\u2019s motion at 6.) However, Padilla makes no such pronouncement. In Padilla, in determining that counsel is constitutionally required to apprise her client of the immigration consequences of a plea (when those consequences are succinct, clear and explicit), the Court relied on the sui generis nature of deportation \u2014 the severity of the penalty and the automatic way it follows from conviction \u2014 to show that the collateral versus direct distinction *585was ill-suited to dispose of Padilla\u2019s claim. (See Chaidez, 568 US at \u2014, 133 S Ct at 1112.) Similarly, in People v Peque, the Court of Appeals struggled to find a home for deportation in the direct/collateral divide. In Peque, in determining that a trial court is constitutionally required to apprise non-citizen defendants of the possibility of deportation prior to entering a guilty plea, the Court found that although deportation is \u201ctechnically on the collateral side of the direct/collateral divide\u201d it fell within a rare case exception to the usual rule that, if collateral, there is no constitutional duty on a trial court to apprise. (See People v Peque, 22 NY3d at 192.) In holding that due process still requires a trial court to warn defendant of the immigration consequences of his or her plea, the Court emphasized the \u201ctruly unique nature of deportation as a consequence of a guilty plea\u201d and explicitly stated, \u201cthere is nothing else quite like it.\u201d (Id. at 196.) Thus, if there is one thing that Padilla and Peque actually make clear, it is that deportation is a sui generis consequence of a plea, and thus, contrary to defendant\u2019s assertion, neither case has extended categorically an attorney\u2019s or a trial court\u2019s duty to apprise a defendant of all adverse collateral consequences of a guilty plea."], "id": "3fc7881c-9b1a-49ce-b35b-9c7957f54026", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Wilkins, the Court held that a defendant had the right to question the validity of a predicate felony conviction at a hearing held pursuant to People v Montgomery (24 NY2d 130 [1969]), for the purpose of determining whether a defendant had been advised of the right to appeal at the defendant\u2019s plea . (People v Wilkins, 28 NY2d at 218.) Resentencing would take place only upon a determination that the defendant had not been so advised. {Id.)"], "id": "a79d4b59-9a73-4789-b03d-4efed51452a8", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" Defendant's claim of coercion based upon the advisement that he could face more serious charges if he did not accept the plea offer is, in fact, raised on this direct appeal, and, as previously noted, found to be unpreserved for direct appellate review (see CPL 440.10 [3] [a]); his remaining conclusory claim that counsel pressured him is unsupported by any evidence and contradicted by his assurances to the court during the plea (see People v Stanley, 189 AD3d at 1819). Defendant did not submit an affidavit from trial counsel or explain its absence (see People v Stanley, 189 AD3d at 1819; People v Betances, 179 AD3d 1225, 1226 [2020], lv denied 35 NY3d 968 [2020]). Given that most of the contentions in the motion could have been \u2014 and in some instances have been raised upon defendant's direct appeal, they are not properly the subject of a CPL article 440 motion (see People v Chaney, 160 AD3d at 1285). Notably, denial of defendant's motion is consistent with \"the purpose served by a CPL article 440 motion[, which] is to inform a court of facts not reflected in the record and unknown at the time of the judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal\" (People v Durham, 195 AD3d at 1320 [internal quotation marks, brackets and citation omitted])."], "id": "d3e8ec9d-0a0e-4c70-a50d-c0a953ae5589", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*789I hold that the collateral estoppel doctrine should apply to preclude de nova review of the Federal conviction pursuant to CPL 400.15 and 400.21. Moreover, even when examined under New York law, the defendant\u2019s plea was knowingly and voluntarily made. The plea complied with the constitutional standards as interpreted by this State. It is not incumbent upon a trial court to apply a more stringent standard to assess defendant\u2019s competency to plead guilty as opposed to going to trial. No persuasive evidence has been adduced to rebut the presumption of regularity surrounding the Federal proceedings. For these reasons, the defendant\u2019s 1971 Federal bank robbery conviction may be used as a predicate violent felony for sentence enhancement purposes."], "id": "c5fa2309-0910-4212-9d2b-093927c26231", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["During her related to the facts of the commission of the crime, defendant even corrected the court as to the payment which she agreed to make to one of the codefendants, indicating that she was listening to the court\u2019s questions and intelligently focused on the inquiry. Thereafter, the court determined that the defendant\u2019s plea was knowingly, voluntarily and intelligently offered."], "id": "92a801f1-b9c2-4b83-95eb-d781107bd89c", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["546 F.2d at 1249; see id. (\u201c[E]ven if the trial judge here had not waited as long as he did but had proceeded immediately to find the appellant in contempt, he should have first explicitly warned the appellant of the consequences of his continued refusals and should have afforded him the right of .\u201d). And in Taylor, the Supreme Court wrote that: [R]easonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are basic in our system of jurisprudence. Even where summary punishment for contempt is imposed dur- ing trial, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution."], "id": "996a3cad-a901-4a6f-bdb1-6542e70dc9ba", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant also claims that the indictment was jurisdiction-ally defective. Although such claim survives both his guilty plea and appeal waiver, it is nonetheless without merit (see People v Martinez, 106 AD3d 1379, 1379 [2013], lv denied 22 NY3d 957 [2013]; People v Kamburelis, 100 AD3d 1189, 1189-1190 [2012]). Finally, defendant\u2019s challenge to the factual sufficiency of his guilty plea is both precluded by his appeal waiver and unpreserved for our review due to his apparent failure to make an appropriate post motion (see People v MacDonald, 113 AD3d 968, 968 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]; People v Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Contrary to defendant\u2019s contentions, he said nothing during the plea colloquy that would bring this case within the narrow exception to the preservation rule (see People v MacDonald, 113 AD3d at 968; People v Sylvan, 107 AD3d at 1045)."], "id": "68e3a3c7-9848-4d30-a0d1-2ffe27e45cdd", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On the instant motion, defendant contends that the Supreme Court in Apprendi v New Jersey (supra), either implicitly overruled, or substantially limited, its earlier holding in Almendarez Torres v United States (523 US 224 [1998]), a case which permitted enhanced sentencing based upon a judicial finding of prior convictions, in a fashion which makes the New York statutory mandatory persistent violent felony sentencing scheme unconstitutional. Specifically, defendant argues that the Apprendi majority, in holding that any sentencing factor other than a prior conviction which enhances a defendant\u2019s sentence must first be included in an indictment and found by a jury beyond a reasonable doubt, limited Almendarez-Torres to its \u201cunique facts,\u201d which defendant construes to require the establishment of the facts of the prior convictions through the defendant\u2019s own guilty plea in the case in which sentence is to be pronounced. Since in the instant case, defendant Miles did not admit to his two prior violent felony convictions during the course of a guilty plea allocution, and in fact, contested his guilt of the instant offense at a trial by jury, the exception of Almendarez-Torres is inapplicable, he claims, and Apprendi required the People to prove his two earlier violent felony convictions to the satisfaction of the jury beyond a reasonable doubt."], "id": "6d1e99cf-f1e1-4df1-913d-1f6be0210dcb", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Thus, defendant, who did not admit using \"force\u201d, an essential element under Penal Law \u00a7 160.10, did not knowingly and voluntarily plead guilty to the violent felony of robbery in the second degree. Surely, defendant did not adopt nor incorporate his adversarial prosecutor\u2019s previous remarks to the court, which referred to the use of a knife during the robbery. If so adopted, the question is relevantly raised whether defendant was actively or effectively represented by counsel. This court does not reach, as moot, defendant\u2019s additional contention that the factual as to the lesser included offense of grand larceny in the third degree (Penal Law \u00a7 155.30) was constitutionally insufficient."], "id": "42d33613-6838-4786-b4d2-ea6521c46a86", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*83Defendant has effectively waived his claim that his plea might have placed him within the preservation exception of People v Lopez (71 NY2d 662 [1988]), since he did not raise a Lopez issue in his affidavit of errors (see People v Klein, 7 NY2d 264 [1959], supra). We note that the plea allocution, as summarized in the lower court\u2019s return, would not entitle him to relief under Lopez (see People v Lopez, 71 NY2d at 666). Furthermore, and contrary to defendant\u2019s contention, although the record contains his statements to the Probation Department and to another entity, these statements did not trigger a sua sponte duty on the part of the court, under Lopez, to conduct an inquiry (see People v Kelly, 50 AD3d 921 [2008]; People v Sands, 45 AD3d 414 [2007])."], "id": "d8243f3b-3182-415f-b115-09ea949d9a69", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This court does not seek to penalize society by an unreasonably narrow application of constitutional principles in the original conviction situation. These resulting penalties are the costs of reprosecuting the defendant a second time and the ensuing delay by the eventual appeal which would deny fair, swift and certain justice, under an administrative cost-benefit analysis. Further, this court decision does not, by content or consequences, increase the fear that successful challenges of plea convictions after guilty pleas will unravel the entire criminal justice system. Society is not so penalized nor is the plea bargaining system so threatened in the predicate sentencing (second or third conviction) situation by simply requiring that the court carefully enforce a defendant\u2019s constitutional rights during a guilty plea ."], "id": "0fdf9de3-5fb7-4dcc-92e8-235982b84b97", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Even assuming that the Federal or New York State Constitution imposes a duty upon counsel or the trial court to warn defendant with respect to this particular consequence of his plea, or even assuming that plea counsel misadvised defendant regarding the subsequent use of his factual admissions, defendant\u2019s motion still would fail as he has not established a reasonable probability that he would not have pleaded guilty if warned by counsel that his plea could be used at a subsequent trial for murder. Although defendant avers that had he known of the potential prosecution, he would not have pleaded guilty, the favorable sentence he received pursuant to his plea undermines the credibility of this statement. Had he gone to trial and been convicted of both attempted murder in the second degree and bribery in the second degree, defendant faced consecutive terms that could expose him to twice the sentence he was promised under the plea agreement. Thus, it is no surprise that defendant chose to plead guilty. The court therefore rejects as not credible defendant\u2019s claim that he would not have pleaded guilty had he known that his plea allocution could be used against him at a subsequent murder trial. To the contrary, defendant has failed to establish that he was prejudiced by the absence of this advice in plea counsel\u2019s representation."], "id": "e6ad1f9c-5814-490b-8e58-d194f36e3b4d", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["JUSTICE THOMAS, dissenting. This Court may review \u201c[f]inal judgments or decrees ren- dered by the highest court of a State\u201d only where, as rele- vant here, a federal right \u201cis specially set up or claimed\u201d in the state court. 28 U. S. C. \u00a71257(a). Because Darrell Hemphill did not raise his Sixth Amendment claim in the New York Court of Appeals, we lack jurisdiction to review that court\u2019s decision. I respectfully dissent. I Under New York case law, a trial court may generally ad- mit otherwise inadmissible evidence if a party has \u201copened the door\u201d to its introduction at trial. People v. Massie, 2 N. Y. 3d 179, 180, 809 N. E. 2d 1102 (2004) (internal quota- tion marks omitted). A party \u201copens the door\u201d when he pre- sents \u201cevidence or argument\u201d that is \u201cincomplete and mis- leading,\u201d and responsive evidence is necessary to \u201ccorrect the misleading impression.\u201d Id., at 184, 809 N. E. 2d, at 1105. In People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357 (2012), the New York Court of Appeals held that this door-opening doctrine permits a trial court to admit testimonial hearsay otherwise barred by the Sixth Amend- ment\u2019s Confrontation Clause. In this case, invoking Reid, the trial court permitted the prosecution to introduce Nich- olas Morris\u2019 plea to rebut Hemphill\u2019s defense that Morris possessed the murder weapon. See ante, at 3\u20135. 2 HEMPHILL v. NEW YORK"], "id": "b26caf31-957a-4363-bff1-9573d92faa1f", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["James A. Yates, J. Anselmo Helliger is charged with murder in the second degree (depraved indifference) and manslaughter in the first degree (intent to cause serious physical injury). By the defendant\u2019s own admission and testimony, he came home late, after drinking with friends, and, when criticized by the woman with whom he lived, Diane Murray, he \u201cheld her by the neck to push her away\u201d, and shoved her to the bed to \u201ckeep her quiet\u201d. Ms. Murray suffered a fractured hyoid bone and died almost immediately. Mr. Helliger admitted causing Ms. Murray\u2019s death, however, two attempts at an as part of a plea to the manslaughter count, urged upon the court by the parties, failed because, on each occasion, Mr. Helliger insisted that he \u201cnever meant to hurt her\u201d."], "id": "db49e0db-c05a-446c-bab4-ae86a37ab70a", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["of words or phrases is essential\u2019 \u201d for satisfying the presen- tation requirement, so long as the claim is \u201c \u2018brought to the attention of the state court with fair precision and in due time.\u2019 \u201d Street v. New York, 394 U. S. 576, 584 (1969) (quot- ing New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928)). Hemphill has satisfied this requirement. At every level of his proceedings in state court, Hemphill argued that the admission of Morris\u2019 plea violated his Sixth Amendment right to confrontation as interpreted by this Court in Crawford. Before the trial court, Hemphill timely objected that admission of the plea allocution would be \u201ca Crawford violation.\u201d App. 160. Before the Appellate Divi- sion, he argued that the trial court \u201cdenied Mr. Hemphill his 6th Amendment right to confront the witnesses against him.\u201d Supp. App. to Brief in Opposition SA108. And before the Court of Appeals, he contended that \u201c[t]he Appellate Di- vision\u2019s analysis,\u201d which had affirmed the trial court\u2019s ad- mission of the plea allocution, \u201cis absurd in the context of the Confrontation Clause, the purpose of which is to afford the accused the right to meaningfully test the prosecution\u2019s proof.\u201d App. 388. \u201cOnce a federal claim is properly pre- sented, a party can make any argument in support of that claim.\u201d Yee v. Escondido, 503 U. S. 519, 534 (1992). The Court may therefore consider any argument Hemphill raises in support of his claim that he did not \u201cforfei[t] his right to exclude evidence otherwise barred by the Confron- tation Clause\u201d by \u201copen[ing] the door to responsive evi- dence.\u201d Pet. for Cert. i.2 \u2014\u2014\u2014\u2014\u2014\u2014 2 According to the dissent, Hemphill did not present his constitutional"], "id": "6fe8d12a-c8b2-4ca8-bba0-c8acd8ef0835", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" To the extent that defendant contends that County Court erred in accepting his plea because the record lacked the \" 'strong evidence of actual guilt' \" that would be required for an Alford plea (People v Elliott, 107 AD3d 1466, 1466 [4th Dept 2013], lv denied 22 NY3d 996 [2013]), we conclude that defendant's contention is misplaced inasmuch as he did not enter an Alford plea (see People v Gale, 130 AD2d 588, 588 [2d Dept 1987]). Insofar as defendant challenges the factual sufficiency of the plea , that challenge is encompassed by his valid waiver of the right to appeal (see People v Oliver, 178 AD3d 1463, 1464 [4th Dept 2019]; People v Steinbrecher, 169 AD3d 1462, 1463 [4th Dept 2019], lv denied 33 NY3d 1108 [2019])."], "id": "b94d4acc-bee5-4c11-ab5b-d76041a7a982", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Solomon H. Katz, J. The prosecution herein sought to admit into evidence, over the objection of defense counsel, portions of the minutes of a codefendant\u2019s plea , for the limited purpose of proving that defendant was aided by another person actually present, a necessary element of the crime of robbery in the second degree under subdivision 1 of section 160.10 of the Penal Law."], "id": "872ec5bc-5166-4aba-aaf7-d7268954ed74", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We affirm. Defendant\u2019s valid waiver of the right to appeal his conviction and sentence, which he does not challenge, forecloses his claims of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance directly affected the voluntariness of his plea (see People v Ildefonso, 89 AD3d 1327, 1327 [2011]; People v Santos-Rivera, 86 AD3d 790, 790 [2011], lv denied 17 NY3d 904 [2011]). Such claims regarding the voluntariness of his plea are unpreserved for review, however, as the record does not reflect that defendant made an appropriate post motion (see People v Aitken, 101 AD3d 1383, 1384 [2012], lv denied 21 NY3d 1040 [2013]; People v DeJesus, 96 AD3d 1295, 1295 [2012]). Defendant\u2019s remaining claim, that his sentence is harsh and excessive, is foreclosed by his valid waiver of the right to appeal (see People v Marshall, 108 AD3d 884, 884 [2013], lv denied 22 NY3d 957 [2013]; People v Passino, 104 AD3d 1060, 1061 [2013], lv denied 22 NY3d 1157 [2014])."], "id": "dd248822-4eed-4ece-8213-7e7a154f3d4a", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We affirm. Defendant\u2019s argument that County Court coerced *1343him into pleading guilty is unpreserved due to his apparent failure to make an appropriate post motion (see People v Jones, 114 AD3d 1080, 1081 [2014]; People v Feliciano, 108 AD3d 880, 881 [2013], lv denied 22 NY3d 1040 [2013]). Inasmuch as he made no statements during the plea allocution that were inconsistent with his guilt or negated any elements of the crime to which he pleaded guilty, the narrow exception to the preservation rule is not applicable (see People v Jones, 114 AD3d at 1081). In any event, County Court did not engage in coercive conduct by advising defendant of his sentence exposure or warning him that plea negotiations were \u201cfinished\u201d once the case was placed upon the trial calendar (see People v Feliciano, 108 AD3d at 882; People v Rivera, 290 AD2d 730, 731 [2002])."], "id": "8fded023-b0ad-4bdf-8df3-0808dcf919b0", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". That the defendant knowingly and voluntarily waived his right to have the Grand Jury consider his case is further evidenced by the fact that when the Judge conducted the of the defendant concerning the plea, among the questions he asked were whether the defendant understood that by entering a plea of guilty the defendant was giving up his \u201cright to have this case presented to the grand jury and * * * to testify before the grand jury,\u201d to which the defendant replied, \u201cYes.\u201d"], "id": "0123cf89-9357-42de-b41e-df49c77f28c8", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In this State, the cases for ther most part support the proposition that a defendant must knowingly and voluntarily enter his plea, but not that a particular on the plea is mandatory. (People v Nixon, 21 NY2d 338, cert den sub nom. Robinson v New York, 393 US 1067; People v Francis, 38 NY2d 150; People v Jones, 81 AD2d 22; People v Allen, 79 AD2d 1004.)"], "id": "415eb48c-f28d-496c-9e26-c3d11b8953ef", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201cthere is proof of a separate intent to enter the complainant\u2019s home and steal property, thereby committing the crime of burglary in the third degree. Defendant committed the subsequent crime of impersonation of a police officer after he had completed the burglary and was attempting to escape the witnesses who had confronted him outside of the residence\u201d (People\u2019s first amended mem of law at 5). The allegations in the indictment and defendant\u2019s plea , however, do not support the People\u2019s contention that the crimes involved two separate and distinct acts. To the contrary, the fourth count of the indictment charging defendant with criminal impersonation in the first degree states"], "id": "96c681fc-3ea8-4289-abbf-2dc3cb74cad4", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Plaintiffs first contend that they are entitled to summary judgment against defendant Yolanda Silvera based upon collateral estoppel because Silvera\u2019s \u201cplea and Certificate of Disposition make it perfectly clear that she recklessly operated the subject vehicle and, that in doing so, she caused serious physical injury to Plaintiffs.\u201d In support, plaintiffs proffer, among other things, a certificate of disposition indictment from Supreme Court, Queens County, indicating that defendant Yolanda Silvera pleaded guilty to Penal Law \u00a7 120.10 and was sentenced on March 11, 2011 to nine years\u2019 imprisonment. Plaintiffs submit a copy of the transcript of Yolanda Silvera\u2019s plea allocution, in which she admits that by pleading guilty, she is admitting"], "id": "aecab61d-33e2-4850-8c0c-389775930e93", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["No. 20\u2013637. Argued October 5, 2021\u2014Decided January 20, 2022 In April 2006, a stray 9-millimeter bullet killed a 2-year-old child after a street fight in the Bronx. Eyewitnesses described the shooter as wear- ing a blue shirt or sweater. Police officers determined Ronnell Gilliam was involved and that Nicholas Morris had been at the scene. A search of Morris\u2019 apartment revealed a 9-millimeter cartridge and three .357- caliber bullets. Gilliam initially identified Morris as the shooter, but he subsequently said that Darrell Hemphill, Gilliam\u2019s cousin, was the shooter. Not crediting Gilliam\u2019s recantation, the State charged Morris with the child\u2019s murder and possession of a 9-millimeter handgun. In a subsequent plea deal, the State agreed to dismiss the murder charges against Morris if he pleaded guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, the State indicted Hemphill for the child\u2019s murder after learning that Hemphill\u2019s DNA matched a blue sweater found in Morris\u2019 apartment shortly after the murder. At his trial, Hemphill elicited undisputed testimony from a prosecution witness that police had recovered 9-mil- limeter ammunition from Morris\u2019 apartment, thus pointing to Morris as the culprit. Morris was not available to testify at Hemphill\u2019s trial because he was outside the United States. Relying on People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357, and over the objection of Hemphill\u2019s counsel, the trial court allowed the State to introduce parts of the transcript of Morris\u2019 plea to the .357 gun possession charge as evidence to rebut Hemphill\u2019s theory that Morris committed the murder. The court reasoned that although Morris\u2019 out-of-court statements had not been subjected to cross-examination, Hemphill\u2019s arguments and evidence had \u201copened the door\u201d and admission of the statements was reasonably necessary to correct the misleading im- pression Hemphill had created. The State, in its closing argument, cited Morris\u2019 plea allocution and emphasized that possession of a .357 2 HEMPHILL v. NEW YORK"], "id": "d623d824-2037-498c-8e5e-2e887679899e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["At the time of her plea, Abdela had no discernable motive or need to falsely implicate her codefendant. She did not stand to gain anything by inculpating defendant Vasquez. She had done so since the beginning. A comparison of Abdela\u2019s plea with her prior statements to law enforcement officials reveals that she consistently described Vasquez as the knife wielder. What changed was the extent of her participation in the crime. Far from diminishing her culpability at Vasquez\u2019s expense, her allocution moved her from the status of a witness to an active participant, thereby increasing her potential criminal liability. The fact that Abdela\u2019s active role was not initially disclosed does not render the allocution unreliable. It was entirely possible that a complete account of the events of May 23, 1997 was revealed gradually."], "id": "29e712a0-7745-4fa4-a8ba-7a43618248df", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["At trial, the People called Rivers as a witness. After he invoked, outside the presence of the jury, his Fifth Amendment privilege not to testify, the portion of the summarized above with Woods\u2019 and Hopkins\u2019 names redacted to \u201cA\u201d and \u201cB,\u201d respectively, was read to the jury. The trial concluded with defendant Woods being convicted of assault in the third degree and defendant Hopkins of robbery in the second degree and criminal possession of stolen property in the third degree. This opinion is being issued to supplement and further explain the court\u2019s trial rulings with respect to the admission and use of the allocution."], "id": "759f4a6e-b142-4a0c-8707-d91886e46b3e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the stipulation of settlement and judgment, the ultimate determination as to when overnight visitation would commence *720on an overnight basis was left to the parents after consultation with Dr. Meyers. The court, in its though, made it clear that there had to be some fixed date for the visitation to start and also, as stated on prior occasions, that the ultimate decisionmaker in a matrimonial action or custody dispute is not the expert but the court."], "id": "9bbef40e-51a1-44b4-9121-d31170334cb8", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We further find no merit in defendant\u2019s contention that County Court was required to hold a hearing (see, People v McClain, 32 NY2d 697). Defendant never asserted his innocence of the crime to which he had pleaded guilty. We find that County Court, having questioned defendant concerning his desire to withdraw his plea after reviewing the minutes of the plea , correctly determined that no hearing was necessary (see, People v Fiumefreddo, 82 NY2d 536)."], "id": "4ae01f5e-8b2b-4c4f-80f8-b418d0cef194", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The People also insisted that the plea need not be redacted to excise from it Miller\u2019s statement that the defendant had participated in the robbery. The defendant insisted that the redaction was necessary. (See People v Thomas, supra, 68 NY2d at 200-201.) Because I found that Miller was available as a witness at the trial, I did not reach this question."], "id": "18e6e2fc-e815-4628-84a0-f123e1babeab", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Johnny P. (112 Misc 2d 647), the court made such a statutory interpretation. Noting that section 390 of the Judiciary Law authorizes the appointment of sign language interpreters, the court determined that the statutory prerogative to make temporary appointments under Judiciary Law \u00a7 387 was not limited to instances of language barriers, but *250extends as well to other disabilities. In that case, the court appointed a psychiatric social worker to interpret at the defendant\u2019s plea , where defendant\u2019s mental illness rendered his thought processes \"so convoluted that only one who has both medical and forensic familiarity with them can properly communicate with [him]\u201d (People v Johnny P., supra, at 651)."], "id": "f234051f-77eb-4bc2-bfd1-d866c0afe5fe", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant\u2019s belated claim of innocence, under the circumstances presented here, is insufficient to grant the motion to vacate his guilty plea. There is no affidavit from the defendant stating that he is innocent of the crime which he admitted committing. Conclusory assertions of innocence do not warrant the granting of a motion to withdraw a guilty plea where the defendant, on the record, admitted the facts which constitute the elements of the crime. (People v McCaskell, 206 AD2d 547 [1994], lv denied 84 NY2d 869 [1994].) During his plea , the defendant clearly and unequivocally admitted that he committed the crime of attempted criminal possession of a controlled substance in the fourth degree, when he knowingly and unlawfully attempted to possess heroin in Manhattan. (Transcript of defendant\u2019s plea at 10.)"], "id": "bb6299e5-c92d-475d-adc7-015319d4744b", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By separate orders to show cause, consolidated for the purposes of this decision, State Farm seeks an order pursuant to CPL 720.35 (2) to unseal the two criminal court files to the extent of obtaining copies of certificates of disposition, and plea minutes, in the event that the defendants entered guilty pleas. In support of its applications, State Farm cites Royal Globe Ins. Co. v Mottola (89 AD2d 907 [2d Dept 1982]) and Matter of Gannett Suburban Newspapers v Clerk of County Ct. of County of Putnam (230 AD2d 741 [2d Dept 1996])."], "id": "b4ee4a53-90a4-4683-b53a-e2b976c2f640", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to defendant\u2019s contentions, we find that his guilty plea and appeal waiver were, in all respects, voluntary, knowing and intelligent (see People v Brown, 14 NY3d 113, 116 [2010]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Callahan, 80 NY2d 273, 280 [1992]). While defendant\u2019s challenge to the voluntariness of his guilty plea survives the appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), the record on appeal fails to reflect that it was preserved by an appropriate post motion (see People v Watson, 115 AD3d 1016, 1017 [2014]), and nothing in the plea colloquy \u201ccasts significant doubt upon . . . defendant\u2019s guilt or otherwise calls into question the voluntariness of the plea\u201d so as to implicate the narrow exception to the preservation requirement (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Wilson, 101 AD3d 1248, 1249 [2012]). In any event, defendant\u2019s claims that he was rushed or pressured into entering a guilty plea are belied by the record, which reflects that County Court thoroughly reviewed the specific terms and consequences of the plea agreement and the trial-related rights he would be forgoing, ascertained defendant\u2019s understanding thereof, permitted breaks for him to confer with counsel, and elicited that he had not been pressured or promised anything, and had been afforded sufficient time to discuss his case and the plea agreement with counsel and others, including his mother, who was present in the courtroom. Moreover, the court separately explained the right to appeal and distinguished it from the other rights that defendant was forgoing as a consequence of his plea, and defendant confirmed that he understood the appeal waiver and executed a written waiver of appeal in open court and orally agreed to waive his appeal rights (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d at 256-257). To the extent that defendant raises arguments regarding what counsel advised him or investigated, they are not supported by the record before us but, rather, concern matters outside the record and, as such, should be raised in a CPL article 440 motion to vacate the judgment of conviction (see People v Haffiz, 19 NY3d 883, 885 [2012]; People v Morey, 110 AD3d 1378, 1379-1380 [2013])."], "id": "654e2a68-cfdc-4a9b-8d8c-c8e4eab48616", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In his plea , after a certain amount of prompting by the prosecutor, Calvin Rivers admitted, in summary, that he and defendants Hopkins and Woods had been hanging out together at 542 Morris Avenue on January 7, 2001 when they encountered the complainant; that words were exchanged between them; that defendant Woods then punched the complainant which resulted in a scuffle between Woods, Hopkins and the complainant; whereupon he, Rivers, displayed a knife, and *455with Hopkins still present, robbed the complainant of, among other items, his car keys.2"], "id": "1dfbe18b-6d4c-49d0-a4f3-abcf80226335", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Accordingly, in synthesizing the respective approaches utilized in Campbell (supra) and in Miller or Armer (supra), the court will consider the following, applicable to the Federal and State claims, in determining if the defendant\u2019s guilty plea was tainted by the undisclosure of alleged Brady evidence: (1) Whether in pleading guilty the defendant was represented by competent counsel and whether the plea procedure complied with Boykin (supra); (2) The nature of the allegedly suppressed Brady evidence viewed in the over-all context of this case; (3) Whether the defendant\u2019s guilty plea had a credible factual basis and whether her factual confession tendered in court was accurate, reliable, and truthful; (4) A comparison *443of the prejudice allegedly suffered by the defendant in this case as opposed to that suffered by defendants in other cases involving postguilty plea Brady contentions; and (5) As to the issue of materiality, whether the defendant would have pleaded guilty had she been aware of the subject evidence. (See, Miller v Angliker, supra; Tate v Wood, supra; People v Armer, supra.) Assuming such cognizance, this last prong focuses on what a defendant and reasonable and competent counsel would have decided with respect to a plea offer. (Miller v Angliker, supra.) This approach should balance society\u2019s interests in preserving accurate, reliable, and truthful guilty pleas and in assuring that such pleas are knowing, voluntary, intelligent and not false condemnations."], "id": "ffc734fa-97ab-469f-95f5-b768703275c5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["However difficult it is for the original sentencing Judge or Justice to be assured of defendant\u2019s understanding of the plea and its consequences without eliciting from defendant a recitation, on the record, of the facts to which defendant admits, it is nearly impossible for the second or third sentencing Judge or Justice, wholly dependent upon the original transcript, to be constitutionally assured that defendant was actively or effectively represented by counsel, especially in a busy Conference Part with an enormous calendar, as herein, or a future 1986 individual assignment (IA) growing calendar."], "id": "97ac6831-75f6-46c2-a5fc-fab1ac93f533", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["CPL 440.10 (2) (c) requires a court to deny a motion to vacate a judgment if all the necessary facts relating to the legal issue appear \u201con the record\u201d (People v Cooks, 67 NY2d 100; People v Sadness, 300 NY 69). The \u201con the record\u201d bar applies whether or not the issue (as opposed to facts) has been preserved for appellate review (People v Cooks, supra, 67 NY2d, at 103, n 1; People ex rel. Gibbs v Vincent, 39 NY2d 918, 919; People v Donovon, 107 AD2d 433; see also, People v McKay, 215 AD2d 221). This bar includes claims of involuntariness of the plea based on the minutes of the plea (People v Angelakos, 70 NY2d 670, 672-673)."], "id": "e88c05ab-e017-4e47-abdf-f594af2b118c", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"(1) the applicant improperly benefited as a member of an indicted trade association that enforced an organized-crime influenced, illegal customer- scheme; \"(2) the applicant\u2019s principal, Enrico Casagrande, actively participated in the affairs of an indicted trade association as a member on the Board of Directors during the very period that the trade association was engaging in the criminal conduct for which it now faces prosecution, and took no steps to prevent such corrupt activities; \"(3) the applicant\u2019s contracts evidence the unequal bargaining power that Local Law 42 was intended to redress by using, as a standard contract feature, an 'evergreen clause\u2019; *547\"(4) the applicant\u2019s contracts reflect the unequal bargaining power that Local Law 42 was intended to redress by including a dubious standard liquidated damages clause; \"(5) the applicant\u2019s contracts evidence the unequal bargaining power that Local Law 42 was intended to redress by using, as a standard feature, a provision that absolves the applicant. from any and all liability, in violation of a DCA rule; \"(6) the applicant\u2019s contracts reflect the unequal bargaining power Local Law 42 was intended to redress by charging the maximum rates permissible under law, and the applicant\u2019s financial records reveal that it uniformly charged the maximum rates to its customers; \"(7) the applicant\u2019s contracts contain a provision on prices that is materially false; and \"(8) the applicant has failed to meet its burden of demonstrating that 'a waiver would be consistent with the purposes\u2019 of Local Law 42.\u201d B. O\u2019Brien"], "id": "429b9f43-cfd3-458e-b1a9-c2a965acea19", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Similarly unpersuasive is the defendant\u2019s contention that his plea should be vacated as involuntary. The transcript of the plea proceeding unequivocally demonstrates that the defendant knowingly and voluntarily entered his plea of guilty after being apprised of his rights and acknowledging the ramifications thereof (see generally, People v Harris, 61 NY2d 9). Moreover, the County Court properly denied the defendant\u2019s subsequent application to withdraw his plea. The defendant\u2019s application was supported by nothing more than vague, conclusory, and unsubstantiated claims alleging ineffective assistance of counsel and the defendant\u2019s purported affliction with an unspecified physical illness (see generally, People v Suarez, 201 AD2d 810; People v Braun, 167 AD2d 164). Finally, we note that the defendant\u2019s present challenge to the adequacy of his plea is unpreserved for appellate review (see, People v Williams, 203 AD2d 499) and, in any event, without merit (see, People v Willingham, 194 AD2d 703)."], "id": "40b2c98f-30db-48f1-b45d-d045f8b1fb1f", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Moreover, the defendant did more than merely possess the still images and video recordings. According to the case summary prepared by the Board, the defendant engaged in numerous conversations with an undercover police detective over the Internet regarding child pornography.14 During those conversations, the defendant told the detective that he was attracted to girls between the ages of 6 and 16. The defendant also asked the detective to meet him so that the two could masturbate together while watching child pornography. Additionally, according to the defendant\u2019s plea , he disseminated at least one still image depicting a naked child victim, and one video recording showing an adult male having sexual intercourse with a child victim, by sending the image and recording to the detective over the Internet.15 The defendant\u2019s actions, far beyond mere possession of child pornography, demonstrate to this court that the defendant is willing to carry out his depraved fantasies, thereby warranting an upward departure."], "id": "0d6c0e91-7afd-4bea-bdab-bf27efafd559", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["(2) During the proceedings in 1977, the District Attorney made no objection to the proposed sentence of five years\u2019 probation. In fact, the then District Attorney stated on the record that, at the time of the shooting defendant had just cashed his Supplemental Security Insurance check, and had purchased some liquor; and was then attacked by three males (including the victim) who robbed him of his remaining cash, and then they left. The District Attorney also stated for the record that the three robbers returned within a matter of minutes, displayed knives, and attempted to rob defendant of his food stamps, at which time, defendant, in fear of his life and safety, removed a pistol from his pocket and fired one shot. Thereafter, the three robbers fled and disappeared out of sight, and the victim was later found dead some blocks away from the scene of the shooting. These facts were attested to by the District Attorney following his investigation of this matter. The District Attorney also advised the court that the victim was a narcotics addict, and it was quite probable that he had robbed defendant for the purpose of obtaining money to feed his habit."], "id": "31f748e4-3231-4bee-80e3-a8e313b269d5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Mr. Smith\u2019s presentence investigation report, for instance, notes that \"[t]he defendant denies his guilt and stated that he pled guilty 'to get case over.\u2019 \u201d3 Surely the interest of justice will not permit an accused to be sentenced for a crime he now places in doubt. Nor has this doubt yet been clarified, as it must, orally from the mouth of defendant. Counsel\u2019s assurance that Mr. Smith stands by the he now places in question is insufficient as a matter of law (CPL 220.50 [1])."], "id": "10b5ce4d-f923-46a1-b2a0-1601e48c9d19", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u2018 \u2018 I hereby consent to be investigated and examined and to be tried without a jury, if that should become necessary, in order to determine whether I should be adjudged a youthful offender \u2019 \u2019. The petitioner again appeared in court with assigned counsel on January 13, 1969. He was arraigned as a youthful offender and the following occurred between the court and petitioner:"], "id": "b89951d9-8ca2-4f58-9a29-577db0a667be", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["of the superseding indictment clearly states that Lewis and Young \u201cbrandish[ed] firearms, that is, two semi-automatic handguns during and in relation to a crime of violence . . . that is, Armed Bank Robbery.\u201d And, as recounted above, the district judge stated several times during Lewis\u2019s plea that armed bank robbery was the predicate offense. The same is true for Young\u2019s plea allocution. When the district judge asked how Young pleaded to the \u00a7 924(c) count, he informed Young that the predicate \u201cCrime of Violence\u201d was \u201cArmed Bank Robbery.\u201d Young replied that he was \u201c[g]uilty\u201d of this charge."], "id": "62ec7690-0fcd-4f46-b921-bfbe4eaebc6b", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Counsel for Montenegro, with the consent of his client, agreed to these terms, however, he then requested the *854courtroom be closed during the plea and the record sealed. He stated that Montenegro would fear for his safety if required to inculpate Serrano during the colloquy while either Serrano and/or his counsel were present in court. The People joined in this application."], "id": "f53bd13d-08dc-4072-a7df-590397c1c7a5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court also cannot agree with the People\u2019s argument that the record demonstrates defendant entered into his plea voluntarily and intelligently. Although he was represented by counsel, he only replied \u201cYes\u201d to a weak factual and never verbally admitted a single essential element of the crime. Furthermore, defendant did not have an extensive criminal record in 1971. Though, he has compiled a long list of arrests since, prior to the arrest that led to the 1971 plea defendant was arrested several other times which resulted in an adjudication of a youthful offender in 1968 and a plea of guilty to an A misdemeanor in 1970. This record is not sufficient to conclude defendant, a mere 17 year old, sufficiently understood the impact of his guilty plea."], "id": "8baa5660-026f-477a-ac28-8012bd9be5ab", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On October 7, 2008, this court adjudicated the defendant to be a level two (\u201cmoderate risk\u201d) sex offender. Previously, he had been convicted on his plea of guilty to one count of course of sexual conduct against a child, second degree, a class D felony under Penal Law \u00a7 130.80. In his , the defendant admitted engaging in a series of incidents of hand-to-vagina contact by him, then age 18, against his cousin, then age 11."], "id": "861dffbe-20cf-47ee-8be0-19e8d39761a0", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["So, I just want to be specific, if the issue was that he did not have a right of , should we not give him that right to allocution and then make a determination and argument as it pertains to what the sentence should be from the State and Defense, or should we be starting from the beginning of sentencing, which, I\u2019m not certain puts this Court in any different position. But if you feel as though it does, that\u2019s fine, then giving Mr. Wilkins his right of allocution after I hear from both of you and your witnesses."], "id": "4f14ac34-a1bd-4c49-beea-5c806963a95d", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The substantive issue now confronting the court is whether there are Due Process Clause considerations and/or procedural bais which would prevent the court from arraigning the defendant as a predicate at this time, and resentencing him as a second felony offender. The defendant argues that due process requires that the defendant\u2019s predicate arraignment take place at the time of his plea or original sentence. Arguably, the filing of the predicate statement at that time apprises the defendant of his predicate status and affords him an opportunity to controvert that status at a time when he could timely move to withdraw his plea and vacate his sentence, if he so desired. However, upon closer examination these purported benefits appear to be more illusory than tangible. Specifically, the defendant was promised and received a sentence to probation which is the same sentence he would have received irrespective as to whether he had been sentenced as a first or second felony offender. The defendant now has the very same opportunity to controvert his predicate conviction on constitutional or any other grounds at this time as he would have had had the predicate statement been filed at the time of his plea or original sentence. Thus, the defendant\u2019s rights in this regard are in no way compromised by the late filing. It is only the collateral consequences of a probation revocation, and, specifically, the court refers to the enhanced sentencing provisions which *492second felony offender status entails which the defendant was not apprised of at the time of his plea and original sentence. However, even had the predicate statement been filed at the time of his plea or original sentence, the defendant would not have necessarily been apprised of the specific sentencing parameters which he faced as a second felony offender in the event his probation was revoked. CPL 400.21, which sets forth the procedure for determining whether a defendant is a second felony offender, contains no requirement that the defendant be apprised of the specific sentencing ramifications of his predicate status, either in the predicate statement itself or at the predicate arraignment. Indeed, no New York State court has ever held, and this court refuses to so hold now, that as part of a plea to a probation sentence, a defendant must necessarily be apprised of the specific sentencing ranges available in the event of a revocation of that probation. Accordingly, the court finds no due process violation in the filing of the predicate statement at this juncture of the proceedings.1 Indeed, this conclusion is, in the court\u2019s view, supported, or more precisely, mandated by the Court of Appeals position in the case of People v Scarbrough (supra)."], "id": "2be9a633-3395-44cf-9df5-103d7cc21ef2", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Based on all of these factors, this court concludes that it can impute income to the applicant in this matter before appointing counsel. The method for reaching an appropriate imputed income requires a hearing, in which the questions regarding the applicant\u2019s income potential can be evaluated. This court acknowledges that both case law and recent directives from state officials in the Hurrell-Harring v State of New York lawsuit suggest that this process\u2014called an inquiry or by some courts\u2014should have a certain informality, without resort to the usual tools of the adversarial process and with the court making findings based on some representations made by the applicant and facial review of the application by the Public Defender. This approach strikes this court as wrongheaded and contrary to every judicial impulse in the court\u2019s experience. While every pleading in this court must be accompanied by a sworn statement from a litigant, the applicant\u2019s representations, which are the basis for the initial eligibility determination, are not under oath. In addition, this suggested *433minimalist court review process\u2014going forward without resort to the usual adversarial process\u2014suffers from a distinct deficit: the court, without reliance on sworn statements, cross-examination and further proof\u2014the hallmarks of the adversarial process\u2014will be consigned to the role of a \u201cpotted plant\u201d15 in these determinations. Despite the repeated refrain from appellate courts that eligibility is a court-determination, the practical consequence of the court\u2019s reliance on any informal screening process would be that any decision rests solely with the Public Defender. The other inevitable consequence, it seems to this court, is that an applicant will have an enormous temptation to disclose less than the truth, the whole truth, and nothing but the truth, in his application if he knows that he will never be challenged on any representation therein. The Public Defender virtually acknowledges that it does not have the resources to verify the applicant\u2019s submission. The court, under the informal review suggested by state officials in the wake of the Hurrell-Harring v State of New York lawsuit, will not be able to challenge the applicant\u2019s version of his limited income. In short, the dynamics of the judicial process end up upside down. An applicant, without any risk, can obtain public benefits\u2014payments of his legal fees in a custody matter\u2014based on less than a true version of his economic life, with impunity. This court, well aware of the seeds of potential pitfalls and inconvenience that an adversarial hearing might entail, still declines to accept a \u201cpotted plant\u201d role in this matter and allow a litigant to reap public benefits without a full hearing. Instead, relying on the well-honed and time-tested adversarial system, this court will hold a hearing on whether this applicant qualifies for appointment of counsel, based on imputed income consistent with his economic skills."], "id": "b7183535-3aa7-4c66-a9fc-e4f2bbc04f67", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Lopez (71 NY2d 662 [1988]), the Court of Appeals reiterated the rule that, in order to preserve a challenge to the adequacy of a plea for appellate review, a defendant must either move to withdraw his plea prior to sentence, pursuant to CPL 220.60, or move to vacate the judgment in the lower court, pursuant to CPL 440.10. The Court also noted, however, that in \u201cthat rare case . . . where the defendant\u2019s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant\u2019s guilt or otherwise calls into question the voluntariness of the plea . . . the trial court has a duty to inquire further to ensure that defendant\u2019s guilty plea is knowing and voluntary\u201d (Lopez, 71 NY2d at 666). \u201cWhere the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal\u201d (id.). Upon a review of the record herein, we find that the court below did not meet its obligation of further inquiry under Lopez and, thus, reversal of the judgment of conviction is warranted."], "id": "e0fc9556-f4fb-4ca8-be22-c5dac76399da", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law \u00a7 160.15 [3]). We reject defendant\u2019s contention that County Court abused its discretion in denying his motion to withdraw his plea without a hearing (see People v Merritt, 115 AD3d 1250, 1250-1251 [2014]; see generally People v Mitchell, 21 NY3d 964, 966 [2013]). Defendant\u2019s belated and unsupported claims of innocence and coercion were insufficient to justify a hearing (see *1498People v Sparcino, 78 AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). We reject defendant\u2019s further contention that his plea was jurisdictionally defective. Defendant pleaded guilty to the crime charged in the indictment (cf. People v Castillo, 8 NY3d 959, 960-961 [2007]) and, by his guilty plea, defendant forfeited any challenge to the alleged amendment of the indictment (see People v Martinez, 52 AD3d 68, 71 [2008], lv denied 11 NY3d 791 [2008]). Defendant\u2019s valid waiver of the right to appeal precludes review of the factual sufficiency of the plea and forecloses defendant\u2019s challenge to the severity of his sentence (see People v Talley, 112 AD3d 1347, 1347 [2013]; People v Nash, 38 AD3d 684, 684 [2007], lv denied 9 NY3d 848 [2007]). While defendant\u2019s contention that his plea was not voluntary survives the waiver of the right to appeal and was preserved by his motion to withdraw his plea, we conclude that the contention is without merit inasmuch as it is belied by the record (see Merritt, 115 AD3d at 1251)."], "id": "91dee7a6-d34e-47c6-9aae-e557bcad8ca3", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As an initial matter, is not testimony. Defendant was not sworn in, and even if she had been sworn in, it would not have been the trial court\u2019s role to conduct what was effectively a cross-examination. Furthermore, the trial court actively prevented defendant from expressing remorse and responsibility after the crime by focusing on the crime itself\u2014and its impermissible interpretation of that crime. The trial court\u2019s commentary indicated that it wished to provide its own testimony, seemingly in the pursuit of a sentencing decision it had already decided upon before allocution and contrary to the law as explained by both attorneys."], "id": "b4aaedbb-cf68-48a9-ac17-80317128837e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [" We affirm. Even if defendant's claim of ineffective assistance of counsel and his challenge to the denial by County Court (Carter, J.) of his request for new counsel affect the voluntariness of his plea and, therefore, survive his unchallenged appeal waiver, they are unpreserved for our review as the record does not reflect that he made an appropriate post motion (see People v Avera, 192 AD3d 1382, 1382-1383 [2021], lv denied 37 NY3d 953 [2021]; People v Rolfe, 83 AD3d 1219, 1220 [2011], lv denied 17 NY3d 809 [2011]). In any event, were they properly before us, we would find that they are without merit (see People v Smith, 18 NY3d 588, 593 [2012]; People v Toledo, 144 AD3d 1332, 1334 [2016], lv denied 29 NY3d 1001 [2017]). Finally, defendant's remaining contention, that his sentence is harsh and excessive, is precluded by his unchallenged appeal waiver (see People v Brown, 197 AD3d 1440, 1440 [2021]; People v Carter, 190 AD3d 1161, 1161 [2021])."], "id": "d17a72d5-3526-47d5-b818-381fbbfcfebe", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On March 13, 2005 defendant was not sentenced because the court noted that the presentencing report was inconsistent with the defendant\u2019s plea and appeared to be in violation of the court\u2019s warnings to the defendant at the time of the plea with respect to cooperating with the Department of Probation. Specifically, on page four of the report under the heading \u201cSummary of Offender\u2019s Statement\u201d the probation officer interviewing the defendant indicated that \u201cdefendant refused to make a statement regarding the instant offense.\u201d The court later learned that in completing this portion of the report the officer relied upon a case write-up from the District Attorney\u2019s office rather than defendant\u2019s own contemporaneous statement. The write-up paraphrased an earlier videotaped statement given by defendant in which he admitted the conduct allocuted to. Accordingly, a hearing pursuant to People v Hicks (98 NY2d 185 [2002]) was ordered to determine whether and to what extent defendant had in fact violated the court\u2019s admonitions to cooperate fully with the Probation Department."], "id": "c8ae870b-5f56-47e7-afbc-47cf6cb8622f", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["William D. Friedmann, J. Defendant pleaded guilty to the crime of criminal possession of a weapon in the third degree (Penal Law, \u00a7 265.02 [a class D violent felony]). During the as part of the plea, defendant admitted to a prior felony conviction of attempted robbery in the second degree (Penal Law, \u00a7 160.10 [a class D violent felony])."], "id": "cd12debc-1dd1-49bf-96d2-83ae76c94056", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Executive Law \u00a7 259-i (3) (f) (x) and 9 NYCRR 8005.19 (e) and 8005.20 (b) require that a violation of parole conditions must be \u201cin an important respect\u201d to justify revocation. (Matter of Rago v Alexander, 60 AD3d at 1123-1124; Matter of Hicks v New York State Div. of Parole, 255 AD2d at 842; People ex rel. Bayham v Meloni, 182 Misc 2d at 833; see Executive Law \u00a7 259-i [3] [c] [iv], [vi], [viii]; 9 NYCRR 8005.7 [3]-[5]; People ex rel. Watson v Commissioner of N.Y. City Dept. of Correction, 149 AD2d at 124-125.) Petitioner acknowledged his guilt of the curfew violation, but the ALJ conducted no regarding the elements of the violation and elicited no acknowledgment from petitioner that he had violated his curfew in an important respect. (See People v Aleman, 43 AD3d 756, 757 [1st Dept 2007].) Only his attorney stated that the violation was in an important respect. (See People v Colon, 42 AD3d 411, 412 [1st Dept 2007].)"], "id": "5aa714fa-2980-468b-8127-45f981d6dffd", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["We reverse as we agree with respondent that the plea was insufficient. Although Family Court partially complied with Family Court Act \u00a7 321.3, and respondent acknowledged that his Law Guardian advised him of his rights, it was the court\u2019s obligation to advise respondent of the right to a fact-finding hearing and to ascertain, through an allocution of respondent and his mother, who was present at the proceedings, that he was voluntarily waiving such right and was aware of the possible dispositional orders (see, Matter of Edgar Q., 185 AD2d 432; Matter of Brian 00., 158 AD2d 816; Matter of Paul H, 154 AD2d 943; see also, Family Ct Act \u00a7 321.3 [1] [b], [c]). Therefore, since Family Court did not fulfill this obligation, the dispositional order should be reversed and the matter remitted to Family Court for further proceedings (see, Matter of Herbert TT, 192 AD2d 916)."], "id": "9eaec8b3-1479-4129-95c8-c5e93ace07fe", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The was, at best, threadbare and did not contain traditional questions concerning the privilege against compulsory self-incrimination, the right to confront accusers, and whether defendant waived them. After he was asked how he pleaded and he said \"guilty\u201d, defendant was advised of his right to a jury trial and asked whether he was aware that he was pleading guilty to a crime, a felony, and that he could be put in jail. The defendant, through his wife, gave affirmative answers to the court\u2019s questions about the crime, noting that the theft was of a chain, not money, as the court had stated."], "id": "8079fc31-133e-42a9-bde3-4fabeac550ea", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Pruitt (83 AD2d 872, 873) the court said: \u201cDuring the prior to the plea of guilty upon which the predicate felony conviction was rendered, defendant was not told, nor did the People show that he knew, that by pleading guilty he would waive (1) his rights to confront witnesses and have a trial by jury, and (2) his privilege against self incrimination. Accordingly, that conviction cannot be deemed a predicate felony for purposes of sentencing pursuant to section 70.06 of the Penal Law (see CPL 400.21, subd 7, pars [a], [b]; People v De Berry, 73 AD2d 652).\u201d"], "id": "f38f652e-1605-429b-9b55-a36438d5835e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Fifthly, the sophomoric nonsense of spending a half hour on a detailed of sworn guilt by the defendant, discussing the law and the facts at length, and then defendant reversing himself, saying the opposite, denying his guilt to probation later on. Some defendants are advised to tell Probation that he was not guilty so that later the defendant could argue this nonguilt with the Parole Board. We are given to understand that the Parole Board does not always nor do they make a practice of reading the transcript of the plea or the sentence. This scenario has happened to me on dozens of occasions. The defendant having made that point to Probation, reduced to an official report, the defendant will argue and be able to swear to the Parole Board that they always claim that they were not guilty. Nevertheless none of this seems to stop them from being able to reswear to their guilt before me at sentencing, a second time, and then demand that the original low plea bargain sentence be given to them. To make matters more illogical, the Appellate Division has ruled that a court cannot enhance a defendant\u2019s jail sentence because of these types of lies to Probation. The probation report stands as is; a very officious looking document to be read by the Parole Board. Clever, and we have not defeated this ploy. Many Judges suspect this advice emanates from some of the \"law library clerks\u201d."], "id": "babad523-d519-4fce-ab6b-ecc48e79defb", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Therefore, the failure to advise defendant that by pleading guilty he was waiving his right to a jury trial along with his other Boykin rights, the weak factual , make it impossible to conclude defendant\u2019s 1971 plea was entered voluntarily. As a result, the court agrees with defendant that this conviction cannot be used as a predicate felony for the purposes of sentencing (see CPL 400.21, subd 7, par [b])."], "id": "be3c79fb-4ae8-4f61-be9b-6e4745e297ea", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["David D. Egan, J. On April 19, 2001 a jury convicted defendant, John F. Owens, of two counts of first degree murder pursuant to Penal Law \u00a7 125.27 (1) (a) (vii) relating to the death of two separate victims, and two counts of first degree rape pursuant to Penal Law \u00a7 130.35 relating to a third victim. Just before the presentation of evidence in the sentencing phase of trial, defendant, by notice of motion filed on April 23, 2001, sought permission *393to give an unsworn following summations. The People opposed defendant\u2019s motion."], "id": "a608c09f-1b89-4b81-baa6-0ead1296f65c", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The prosecution\u2019s use of Ortiz\u2019s against him in a subsequent murder trial is a direct consequence of his guilty plea, and a consequence of which Ortiz should have been alerted. Because Ortiz was not informed of its potential use against him, this court cannot conclude that Ortiz had full knowledge of the direct consequences of his plea. Rather, as the defendant urges, this court is persuaded that at least a reasonable probability exists that had Ortiz been advised by the court, the District Attorney, or his own attorney that his in-court admission could be used in evidence against him to later prove a more serious charge of murder, he probably would not have relinquished his right to remain silent, and entered the guilty plea in the assault case."], "id": "bdca0661-8fe0-46d5-828e-aa22b9a730e8", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Respondent\u2019s admissions in the plea , when read in conjunction with the counts of the information, are sufficient to satisfy the elements of felonious larceny under New York law (see, Penal Law \u00a7 155.42), and thus constitute a predicate for automatic disbarment under Judiciary Law \u00a7 90 (4) (b) (Matter of Meyer, 200 AD2d 17; Matter of Karsch, 197 AD2d 262; Matter of Powsner, 195 AD2d 21). Under the circumstances, a \"serious crime\u201d hearing is unnecessary (Matter of Catalfo, 181 AD2d 213)."], "id": "044cf24c-c4c1-44fd-8bc3-63f3e088ac2b", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Vasquez, another court of coordinate jurisdiction, in a most scholarly review of the issue, concluded that the retroactivity of Crawford must depend on the answer to the following question regarding its role in promoting the accuracy of the trial process, namely: whether a judicial determination conducted pursuant to Roberts so seriously diminished accuracy that it constituted an impermissibly large risk that an innocent person would be convicted. (Vasquez, supra, 7 Misc 3d at 785.) Examining its own careful and searching inquiry which had been conducted at the trial pursuant to Roberts prior to permitting introduction of a codefendant\u2019s plea as a declaration against penal interest (id. at 766-768), the Vasquez court concluded that the likelihood of an accurate conviction in that case had not been seriously diminished by the failure to employ Crawford\u2019s requirement of cross-examination. Finding the decisions according retroactivity not to have engaged in such an analysis, the court there concluded that Crawford was not to be applied retroactively to cases already final on direct review. (Id. at 789-790 [\u201cThe Roberts rule required judicial engagement in a careful analysis to safeguard the accuracy of the verdict, a procedural apparatus not considered in the Cruz or Eastman rulings. Nor was the impact of that procedure on the likelihood of an accurate conviction discussed in Watson (II) or Dobbin, in determining the issue of retroactivity\u201d].)"], "id": "afb5aa81-aa7c-4ef0-99cd-72fb351cf8d5", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Upon that basis, I disagree with the suggestion by Justice Goldberg in People v Ryan (supra, at 969-970) that defendant could be afforded the option to withdraw his plea if he is to be resentenced as a predicate felon. To the contrary, where, as here, defendant is advised during the plea that he will be sentenced as a predicate felon if it is subsequently learned that he had a prior felony conviction, and he agrees to this, there is nothing to prevent the promised sentence from being imposed. Nor is there any basis to afford him the option to withdraw the plea. This should apply, whether the fraud is uncovered prior to sentence or some time thereafter. In either case, the sentence resulted from a deliberate fraud and deception, contrived by defendant, which should not be countenanced by the court."], "id": "2b652463-371a-418b-89d1-f03f5b0f75eb", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to the position of the defendants, the court concludes that Mr. Harchack\u2019s plea is admissible, at least for the purposes of this summary judgment motion. In People v Thomas (68 NY2d 194 [1986], supra), the Court of Appeals understandably articulated the higher standard of \u201cexacting scrutiny\u201d which must be applied before the plea allocution *572of a codefendant may be introduced against a defendant in a criminal case. Where, by contrast, a criminal defendant seeks to offer a codefendant\u2019s statement because it is exculpatory with respect to the defendant on trial, the standard is more lenient. (People v Settles, 46 NY2d 154 [1978]; People v Smith, 195 AD2d 112 [1st Dept 1994].) In such circumstances, to qualify for admission as a declaration against penal interest four elements must be present: (1) the declarant must be unavailable as a witness at trial, (2) when the statement was made the declarant must be aware that it was adverse to his penal interest, (3) the declarant must have competent knowledge of the facts underlying the statement, and (4) supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability. (People v Settles, 46 NY2d, at 167.)"], "id": "a02d6a6d-34ee-4aac-b266-881c4d8855f8", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Moreover, at the time of the , respondent not only lacked knowledge of her defenses but was apparently also unaware even of the possible usefulness of legal representa*307tian. The record is devoid of any evidence that respondent made an informed or knowing choice to proceed without counsel. Quite the opposite appears from the record of the allocution and the factual showing made in respondent\u2019s motion papers as to the circumstances under which respondent attempted to defend this proceeding pro se. Respondent is indigent and initially settled this proceeding based on the expectation that the Department of Social Services (DSS) would pay her rent arrears. She was unsuccessful in obtaining assistance, and failed to pay the arrears due under the first stipulation. She then defaulted on petitioner\u2019s motion for judgment under the stipulation, apparently on the advice of a public assistance caseworker that DSS would not pay and that she had no choice but to move. After receiving a marshal\u2019s 72-hour notice of eviction, she obtained an order to show cause to stay the eviction, and proceeded to enter into the final stipulation, based on another effort to obtain the assistance from DSS which had thus far eluded her. It was not until the allocution of that stipulation, when the court pointed out that she might qualify for special benefits to stop the eviction under the Jiggetts case (Jiggetts v Grinker, 75 NY2d 411) and that she needed to see a lawyer to find out whether this was so, that she finally appreciated the need for legal representation."], "id": "b87bcbf6-f759-49a8-b760-f7822d64891a", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In his second point on appeal, Thompson argues that the trial court failed to grant him before imposing sentence. Thompson admits that this claim of error was not first raised with the trial court, and is eligible for no more than plain error review on appeal. State v. Baumruk , 280 S.W.3d 600, 607 (Mo. banc 2009) (\"Issues that were not preserved may be reviewed for plain error only....\"). \"Review for plain error involves a two-step process.\" Id. First, the appellate court must determine \"whether the claim of error 'facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.' \" Id. (quoting State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995) ). Second, if the appellate court finds plain error, then the court must determine \"whether the claimed error resulted in manifest injustice or a miscarriage of justice.\" Id. at 607-08 (quoting State v. Scurlock , 998 S.W.2d 578, 586 (Mo. App. W.D. 1999) )."], "id": "ff9a215a-8ad7-4291-b559-aa5e3c84b79f", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant, who is the movant, also provides no proof of when the crime occurred. Certainly the court cannot say with any degree of certainty that the crime occurred more than seven years prior to the institution of this action. Accordingly, final *201resolution of this action must await further proof being submitted to the court as to the date the crime occurred. This might be either in the form of an affidavit of a person with actual knowledge of the dates of the crime, a transcript of the plea in Supreme Court, or a certified copy of the Supreme Court superior court information to which defendant pleaded guilty. Final resolution of the motion is therefore held in abeyance pending a determination of the date(s) of the crime(s). It is, therefore, ordered that the motion to dismiss based on the Statute of Limitations is held in abeyance pending the submission of further papers and/or documents consistent with this decision; and it is further ordered that the motion is restored to the Special Term, Part I calendar for February 7, 2000 at 9:30 a.m. for the submission of said papers and/or documents."], "id": "a7bd9f19-a486-4bbd-9668-6b748d31f3c4", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This court will also not conclude that counsel was ineffective for failing to ask for an Alford plea under the circumstances *662here. This court does not accept Alford pleas from defendants who profess their innocence. And, as has been the practice in this county for many years, the district attorney does not consent to such pleas, which consent would have been necessary in this case in order for the court to have accepted it. In this case, it was patently obvious on June 11, 1998, when the defendant asserted his innocence and lack of the requisite knowledge to be found guilty of the charge in the SCI (or, later, in the indictment), that the prosecutor was not going to consent to the disposition without an admission of guilt. This is clear from the record of the proceedings on June 11, 1998. And while it is true that on review of whether a guilty plea has been knowingly, voluntarily and intelligently entered, the fact that a full had not been rendered on a negotiated disposition will not necessarily lead to the conclusion that the guilty plea was not validly entered, this does not lead to the conclusion that a court or prosecutor is required to forego an allocution upon an attempt to plead guilty to a reduced charge. It should also be noted that in this case, the proposed charge in the SCI was not a \u201creduced\u201d or lesser offense. Rather, it was a separate and distinct crime under a different theory of criminal culpability of a lesser grade of offense than those the defendant was ultimately convicted of."], "id": "43d7a03c-984c-48a3-ac49-108dfad9c26e", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On this appeal, defendant contends that his plea was not knowingly and voluntarily made because his attorney neglected to advise him, as an alien, of the potential for deportation as the result of his guilty plea. We disagree. The fact that defendant was subject to deportation pursuant to the Immigration and Nationality Act (see, 8 USC \u00a7 1251 et seg.) is a collateral consequence of his plea about which counsel was under no obligation to advise (see, People v Boodhoo, 191 AD2d 448; People v Avila, 177 AD2d 426, lv denied 79 NY2d 918). Moreover, nothing in the record indicates that counsel was even aware of defendant\u2019s alien status at the time he entered the plea. A review of the plea reveals that, in all other respects, defendant\u2019s plea was knowingly and voluntarily made and the judgment should therefore be affirmed."], "id": "c3d2fdf4-e176-4cfb-90b5-af8bdbfb1b87", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Herein, defendant pleaded guilty to Penal Law \u00a7 120.05 (7). Conviction of assault in the second degree, that is, an assault committed inside a prison facility, presumptively requires the imposition of a consecutive sentence. Because of the range of dispositions that may otherwise have occurred or been available to Mr. Smith under the within indictment, only divination would have allowed a court presiding over his earlier plea to be able to fulfill a promise based on the assumption that defendant, in futuro, could avoid being treated more harshly. Notwithstanding, the 18-month removed outcome of Mr. Smith\u2019s Bronx County case, both in terms of the plea entered to a specific crime mandating the imposition of a consecutive sentence, as well as a fully allocuted agreement to the condition for its imposition, that is, \"consecutive to the sentence you will receive in New York County\u201d is not simply controlling, but now makes fulfillment of the New York County promise impossible to honor; indeed, in light of the foregoing, legally improper (cf., People v Urquidez, 84 AD2d 795 [2d Dept 1981]; People v Rogers, 81 AD2d 564 [1st Dept 1981])."], "id": "ba93d063-09a6-4983-986e-b91cbc4589f1", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant was adjudicated a juvenile delinquent in 1982 and placed with the New York State Division for Youth. During part of that placement, defendant resided at Camp Nueva Vista, situated in Fulton County. According to the colloquy between defendant and the court at the time of defendant\u2019s guilty plea, defendant understood that Camp Nueva Vista was a \u201cdetention facility.\u201d He described the facility as being comprised of a series of cottages staffed by \u201csupervisors\u201d who were the functional equivalent of guards. According to defendant\u2019s plea , he and two other facility residents agreed to \u201cgo AWOL.\u201d Defendant stated, \u201cwe hid under the sofas and when everybody was in the back we jumped out the window.\u201d Defendant thereafter hid in a wooded area until he encountered one of his cohorts driving an automobile, which defendant correctly assumed to have been stolen. Defendant rode with the other resident to Kingston, New York. He was apprehended sometime thereafter, hitch-hiking his way from Kingston to New York City."], "id": "15785877-13bb-4334-a293-ed3d21793f57", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On March 2, 2004, the defendant pleaded guilty to the class D felony of grand larceny in the third degree. In his plea , the defendant, employed as an accountant, although not a certified public accountant, for the complainant\u2019s business, admitted that he had written business checks to himself and had deposited the checks in his personal account without the permission or authority of the complainant. On the day of the plea, with the consent of the District Attorney and the complainant, the defendant was promised a probation sentence with the specific presentence condition that he make full restitution."], "id": "d0284e82-3e8e-4b51-bd3b-298d46ed75d4", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Similarly in the case at hand, because Martinez died nearly three years after Ortiz pleaded guilty to assault, the prosecution cannot be said to have \"bargained\u201d for the use of his plea as evidence in its case-in-chief in a subsequent murder proceeding. Consequently, use of the allocution against Ortiz at the murder trial would be similarly unfair. (See, People v Moore, supra, at 1030.)"], "id": "0e90c7b8-7462-4dee-ac9a-4477a0065d85", "sub_label": "US_Terminology"} {"obj_label": "allocution", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While the failure of the court to afford a defendant his right of (CPL 380.50) ordinarily requires a reversal of the sentence and a remand for resentence (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People v. Sullivan, 3 N Y 2d 196) no useful purpose would be served thereby in this case, since defendant has served the sentence imposed (People v. Gifford, 2 A D 2d 642) and the error applies solely to the sentence. (People v. Ruffin, N. Y. L. J., June 5, 1973, p. 2, col. 1.) In such case any question as to the validity of the sentence has been rendered moot (People v. Nogan, 25 A D 2d 528)."], "id": "f7b0d93b-51ff-4774-a6a2-2f5c661c6b8d", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Tratch (104 AD2d, supra, at 504), the Appellate Division held that a of a person by a police officer to protect himself was proper as being based on reasonable suspicion and the precautionary measure of \u201cfrisking\u201d the shopping bag carried by the defendant was also warranted as it could have contained a gun. The majority held that the lifting of a shopping bag having weight, the looking into the bag and the removal and opening of a vinyl carrying case \u201c \u2018designed to carry a revolver\u2019 \u201d was reasonable (supra, at 503). The dissent disagreed only by characterizing the officer\u2019s actions of \u201copening and exploration of a closed container,\u201d the shopping bag as well as the vinyl bag contained therein, as a full-blown search designed to uncover evidence and requiring probable cause (supra, at 506 [Boyer, J., dissenting])."], "id": "76e2c550-d05a-44f1-9fbd-e767409f202f", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["People v. Rosemond (26 N Y 2d 101 [1970)), in upholding section 180-a of the Code of Criminal Procedure dealing with \u201c \u201d said (pp. 103, 104), \u201c a statute, such as this one, addressed to a particular situation and designed to give legal justification for specially prescribed procedures ought not to be read to narrow down the normal duty of police to find out by suitable inquiry what is going forward in the public streets.\u201d"], "id": "cf5c08b9-4833-448e-8c15-6248fabe8813", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This case was previously heard by this Court in 1993 (People v Vasquez, 200 AD2d 344, Iv denied 84 NY2d 873). The appeal was held in abeyance and the matter remanded for a Dunaway (Dunaway v New York, 442 US 200) hearing based upon People v Mendoza (82 NY2d 415 [Nov. 22, 1993, Kaye, Ch. J.]) and upon defendant\u2019s assertion, contained in his omnibus motion, that \"it is not even claimed that the defendant was engaged in any illegal activity at the time of his arrest.\u201d The Dunaway hearing was held in October 1994, and Supreme Court issued a written opinion and order dated January 5, 1995. The decision contains detailed findings of fact and *119concludes that the police had both probable cause to arrest defendant for murder and reasonable suspicion to him for possession of a weapon."], "id": "222a7109-f3b6-4a0c-827a-a024c9299a4c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["3. Where a police officer has a reasonable suspicion that a particular person has committed, is committing or is about to commit a crime, he may forcibly stop and detain that person. With reasonable suspicion, the officer may also a person when the officer reasonably suspects that he is in danger of physical injury by a person he reasonably believes is armed."], "id": "78642e7a-ac86-4fb3-bdb0-1b4a0e5570d3", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The opinion of the majority rests upon the supposition that exigent circumstances derive from the gravity of the crime of murder and the public interest involved in the detection and apprehension of the perpetrator, coupled with a projection of the legality of the initial entry by a continuing police surveillance of the crime scene, and reliance upon the rule of Terry v. Ohio (392 U. S. 1 [1968]), where, in the interest of crime prevention and the protection of law enforcement personnel, a \u201c \u201d was permitted without probable cause, as a legitimate police investigative technique."], "id": "cd897c15-99b7-4af5-971a-9e4ddd2ae45b", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Mosley (68 NY2d 881 [1986]), the court held that a defendant has standing to contest the of a person with whom he was walking down the street since the *668prosecution relied upon the discovery of a gun on the other person as the basis for arresting the defendant charging him with constructive possession of the weapon concealed on his companion."], "id": "4408ceb3-0993-4ed4-9f77-9d727b1f91fb", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u201ca. All enforcement encounters where there is at least reasonable suspicion the person(s) has committed, is committing or may be involved in criminal activity consistent with P.G. 212-11 \u2018.\u2019 This includes, but is not limited to, self-initiated stops and radio runs \u201cb. All enforcement encounters where there is reason to believe that the individual is committing a violation/petit offense for which a summons may be issued (e.g., TAB summons, ECB summons, Criminal Court summons, etc.) \u201cc. All vehicle stops \u201cd. Taking or attempting to take an individual into custody (e.g., arrests, protective custody of an emotionally disturbed person, etc.) \u201ce. All incidents involving the use of force *661\u201cf. Any public interaction regardless of context, that escalates and becomes adversarial, so long as it is not one of the prohibited situations in step \u20188\u2019 below. \u201cg. All interior vertical patrols of non-Housing Authority buildings and Housing Authority buildings conducted pursuant to P.G. 212-59, \u2018Vertical Patrol\u2019 and P.G. 212-60, \u2018Interior Vertical Patrol of Housing Authority Buildings.\u2019 The BWC must be activated upon entering the building and terminating the interior vertical patrol along with any associated police action, if any.\u201d (Id.) Step \u201c7\u201d of the order provided that participating officers could \u201c[c]onsider activating the BWC during any activities where, in the uniformed member\u2019s judgment, it would be beneficial to the record, so long as it [was] not one of the prohibited situations in step \u20188\u2019 below.\u201d (Id.) Step \u201c8\u201d of the order delineated the circumstances in which an officer was directed not to activate the BWC:"], "id": "a4208c3f-c0e4-473f-89a0-264367b65ae1", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The \u201c \u201d amendment to the Code of Criminal Procedure (\u00a7 180-a, subd. 1) provides that\u201c A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of \u201d certain specified misdemeanors, and subdivision 2 provides that when a police officer has stopped such a person, \u201c and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon.\u201d A \u201c \u2018 frisk \u2019 is distinguishable from a constitutionally protected search \u201d because \u201c the right to \u2018 frisk \u2019 is justified as an incident to an inquiry upon grounds of safety and precaution which might not initially sustain a search\u201d (People v. Pugach, 15 N Y 2d 65, 69)."], "id": "bf4f3562-f88e-4805-a9db-c1f3366db670", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It seems clear enough that the hallways and other common areas of a large multiple dwelling would not be part of the \"home\u201d. Access, while perhaps not open to the public-at-large, is nevertheless relatively uncontrolled, and common understanding would not label such areas as living space; see People v Peters (18 NY2d 238, 244 [a case]); People v Beltrand (63 Misc 2d 1041, 1048, affd 67 Misc 2d 324 [a criminal trespass case]); People v Terrell (53 Misc 2d 32, 38 [a search and seizure case]); but see Matter of Jakeway v Bauer Co. (218 App Div 302 [a workmen\u2019s compensation case]); *176White v United States (283 A2d 21 [a gun case in the District of Columbia Court of Appeals])."], "id": "18bfd04f-c53e-4468-a0de-4f53e977ce1c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The right to detain individuals short of arresting them or subjecting them to a full-scale search has long been recognized in certain situations as a legitimate police function. In fact, the so-called \u2018 \u2018 cases \u2019 \u2019 are primarily court authorizations to detain individuals in suspicious circumstances, with the \u201cfrisk\u201d considered as a proper precautionary prelude to the investigation (People v. Rivera, 14 N Y 2d 441; Sibron v.New York, 392 U. S. 40; Terry v. Ohio, 392 U. S. 1)."], "id": "5f14412c-e51e-4371-8090-0ae43418d729", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to the defendant\u2019s contention, a \" report\u201d containing a statement made by a prosecution witness regarding his negative identification of another individual did *631not constitute Rosario material. The right to inspect statements of a prosecution witness is limited to those statements relevant to the subject matter of the witness\u2019s testimony (see, People v Rios, 182 AD2d 843; see also, People v Poole, 48 NY2d 144, 148-149). As no testimony concerning the negative identification of another individual was elicited during the direct examination of the prosecution witness, the People were not obligated to make the \"stop and frisk report\u201d available to the defendant (see, People v Rios, supra; People v Bailey, 200 AD2d 677; People v Melendez, 178 AD2d 366; People v Goldman, 175 AD2d 723; cf., People v Perez, 65 NY2d 154)."], "id": "4930f1bf-07d8-4f80-998f-ca717e98a677", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"Q: When you fill out a report, report; amongst the things included, is the fact that you include in it to believe that person should be stopped and frisked; correct? \"A: Correct.\u201d Thus, it is plain that Officer Gogarty\u2019s testimony, relied upon by the dissent, concerns what is generally put into such a report and cannot be relied upon in any way as evidence of what was actually contained in the Stop and Frisk Report here in question. This interpretation of the testimony is substantiated by defense counsel\u2019s next question after the one quoted above, in which defense counsel specifically refers to the report in question stating: \"And, your partner didn\u2019t mention in this stop and frisk report that either you or he had seen a bulge in my client\u2019s waistband; isn\u2019t that correct?\u201d (Emphasis supplied.)"], "id": "ed952701-5ae8-4272-ad11-d9465487b71c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The anonymous tip that a black, heavyset man wearing a black hat, black pants and blue jersey/sweatshirt with \u201cFUBO\u201d printed on it, carried a gun in a black bag at Waverley Street and Red Cross Place is very specific and particular. P.O. Rodriguez was under a duty to investigate such a report. (People v Landy, 59 NY2d 369, 374; People v Benjamin, 51 NY2d 267, *402270.) P.O. Rodriguez, upon arriving at the named location, observed the defendant fitting the description given. The information provided was specific and consistent with the observations of the officer. (People v Kinlock, 43 NY2d 832.) Thus P.O. Rodriguez had reasonable suspicion to the defendant. (People v Salaman, 71 NY2d 869.) A \u201cfrisk\u201d of the bag carried on the shoulder of the defendant would also have been proper under these circumstances (People v Brooks, 65 NY2d 1021; People v Cartagena, 189 AD2d 67; People v White, 156 AD2d 741; People v Tratch, 104 AD2d 503)."], "id": "b760a648-c2f1-4e29-b8dd-be1b262e6bec", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In the instant application, the defendant cannot succeed on any ground. Principally, the exclusionary rule is not *833applicable to an off-duty auxiliary policeman, and the evidence seized by him \u2014 whether he acted improperly or not \u2014 should not be suppressed. Moreover, even if the exclusionary rule could be considered so pervasive as to be pertinent here, the circumstances of this defendant\u2019s flight from a group; the oral sounding of an alarm with respect to defendant; and particularly, defendant\u2019s display of a weapon, albeit with a missing part, in the officer\u2019s face, constitute more than sufficient reasonable suspicion (CPL 140.50), at least for a , if not for an actual arrest."], "id": "d54b05f4-cb97-4cbb-84b9-4546227d418c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Florida v J.L., the police received an anonymous tip which provided a physical description of an individual including the color of his shirt. The tip provided a location and maintained that the individual was carrying a gun. The officers arrived at the location, and observed three individuals, one of whom matched the description in the tip. The officers approached the defendant and frisked him. The Court found that the anonymous tip lacked any indicia of reliability and was insufficient to justify a (see Florida v J.L., 529 US at 275). The tip only corroborated the identity of the individual. There was no corroboration of any criminal activity (see Florida v J.L., 529 US at 272)."], "id": "6cf9087b-949d-4cb6-a890-07b9051bddf7", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Also, appropriate analogy may be made from section 180-a of the Code of Criminal Procedure, known as the \u201c \u201d law which permits a police officer to stop any person in a public place for temporary questioning when he reasonably suspects such person is committing or is about to commit a felony, and to frisk the suspect for weapons if he reasonably suspects that his life is in danger. This law is not cited for comparison of any factual pattern suggested by that law. The section points up, however, that one of the absolutes under the Fourth Amendment, namely, probable cause, is displaced by reasonable suspicion for the reason that a frisk, sometimes likened to a lesser invasion of a search, is necessary as an incident to inquiry upon grounds of elemental safety and precaution which might not initially sustain a search (see People v. Taggart, 20 N Y 2d 335; see, also, People v. Peters, 18 N Y 2d 238; People v. Sibron, 18 N Y 2d 603)."], "id": "7277b4cc-73d7-493e-ab11-80c20ecc2b80", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Mosley (68 NY2d 881, cert denied \u2014 US \u2014, 107 S Ct 3185), the defendant and two companions were stopped and frisked on the street by police who observed them engage in conduct which the Court of Appeals later found to be equivocal and insufficient to justify the stop. The frisks revealed nothing on the defendant, but one of his companions, Mackie, was found to be in possession of a starter pistol. All three men were arrested for its possession, and a subsequent search of the defendant at the station house uncovered a loaded and operable weapon in his pocket. Charged with possession of that weapon, the defendant moved to suppress it as the fruit of an unlawful arrest. The Court of Appeals held *745that, because the arrest had resulted from an unlawful , the defendant\u2019s suppression motion should have been granted. Moreover, although a defendant would not ordinarily be thought to have a reasonable expectation of privacy in the person or clothing of another, the court observed: \"Inasmuch as the People rely on the discovery of the starter pistol on Mackie as the basis for the arrest of defendant \u2014 that defendant constructively possessed the weapon concealed on Mackie\u2019s person \u2014 defendant has standing to contest the frisk of Mackie.\u201d (68 NY2d, at 883.)"], "id": "3c426098-a4b0-4a13-9320-83df9d0bd882", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Fourth Amendment prohibits unreasonable searches and seizures. A by law enforcement implicates the Fourth Amendment's protections.21 This is true whether the person detained is a pedestrian or the occupant of an automobile.22 A Fourth Amendment analysis regarding an officer's stop and frisk has two prongs.23 A court must first decide whether the officer's action was justified at its inception.24 Next, a court must decide whether the search and seizure were reasonably related in scope to the circumstances that justified the stop in the first place.25"], "id": "cc2b86d8-2d5a-45c4-9687-7f89b9e88131", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The courts, in the various \u201c \u201d cases have also examined the present circumstances and the question of slight intrusion of an individual\u2019s privacy or that a short detention of the person would not be violative of his constitutional rights. In People v. Morales (22 N Y 2d 55), although the case was limited to the facts presented therein (an unsolved murder case) the court allowed the detention of a suspect at the police station after he had been requested to come in for questioning and did so in the accompaniment of the officers, and while under questioning, confessed to the murder. The questioning of \u00e1 \"person on the street, or requesting, as in this, case, a person to leave an automobile to present his identification, is within the confines of proper police routine methods, providing that it is reasonably done. A person\u2019s constitutional rights cannot be subverted to a point where law enforcement agencies would run. roughshod of individual\u2019s privacy. The word \u201c reasonable \u201d is mandated in our own criminal jurisprudence as neces*938sitating proof beyond a reasonable doubt and the \u201c reasonable \u201d circumstances surrounding inquiries should be based on the circumstances presented to the court and not in varied obtuse semantics. It is noteworthy that in most cases, especially narcotics cases, minute questions are considered that have no bearing as to what is reasonable under the circumstances."], "id": "ea3fdfea-3d61-4eca-b798-37df3f7f5d17", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court\u2019s next inquiry is to determine whether the ensuing warrantless frisk or search was justified because the \"exigencies of the situation made that course imperative\u201d (Matter of Kwok T., 43 NY2d 213, 220). A Terry emergency frisk is permissible where the officer has reason to believe that the persons with whom he is dealing may be armed and presently dangerous. Under the statutory provision, the self-protective search is available if the police officer or court officer, after stopping a person in or about the courtroom, \"reasonably suspects that he is in danger of physical injury\u201d (CPL 140.50, subd 3). The codified authority engendered by the Terry, Sibron and Adams trilogy (Terry v Ohio, 392 US 1, supra; Sibron v New York, 392 US 40; Adams v Williams, 407 US 143) underscores the \"reasonable suspicion\u201d test validating a self-protective frisk or search. The officer should in the same manner as making a stop, \"indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice\u201d (People v Cantor, 36 NY2d 106, 113, supra). Neither \"gut reaction\u201d (People v Sobotker, 43 NY2d 559, 564) nor \"a sincere, good faith belief by police officers that a crime is about to be committed, without objective evidence of criminal activity\u201d (People v Santiago, 64 AD2d 355, 360, supra, citing Terry v Ohio, supra; People v Sobotker, supra; People v Cantor, supra) will serve as a predicate for the search. An \"emergency\u201d type frisk or search premised on mere belief by a police or court officer that he was confronted with a dangerous or armed person is offensive to a citizen\u2019s Fourth Amendment guarantees and expectation of privacy rights however limited they may be in a courthouse atmosphere. To justify such conduct, the sovereign must not only show that its agent believed \"his safety or that of others [was] in danger\u201d (United States v Brignoni-Ponce, 422 US 873, 880, supra; Terry v Ohio, supra) but that *1107in fact the agent had reasonable suspicion for such belief. Otherwise, we would be involved with the creation of illusory rights \u2014 a result not intended by the Constitution, nor to be countenanced by the court."], "id": "b967883e-c2c1-4155-acb5-5e96eaf7949c", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The Law (Code Crim. Pro., \u00a7 180-a) broadened the scope of a reasonable search to provide that a police officer may stop for questioning any person in a public place, whom he reasonably suspects is committing a crime and, if he reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon."], "id": "858feddc-30b6-4af5-8ec8-9c0be1f51011", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"These exceptions include searches and seizures conducted incident to a lawful arrest, those yielding contraband in plain view, those in the hot pursuit of a fleeing criminal, those limited to a based on reasonable suspicion of criminal activity, those based on probable cause in the presence of exigent circumstances, and those based on consent.\" Id. (quoting State v. Day , 263 S.W.3d 891, 901 n.9 (Tenn. 2008) ) (internal quotation marks omitted). The State carries the burden of proving that a warrantless search was constitutionally permissible. State v. Ingram , 331 S.W.3d 746, 755 (Tenn. 2011)"], "id": "e7496e2d-a04f-442a-8fb5-7cb8467d73e0", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The court then sought to correct any misapprehension regarding its holding in Mosley (supra). The court wrote: \"We concluded [in Mosley] that the were unjustified and that no probable cause existed for the subsequent arrest of defendant and station house search that led to discovery of the pistol in Mosley\u2019s pocket. Mosley unquestionably had standing to contest whether the discovery of a gun in his friend\u2019s possession constituted probable cause for his own arrest\u201d (People v Wesley, 73 NY2d 351, 362, supra). The court continued: \"Mosley plainly does not stand for the proposition that defendant had standing to litigate the validity of the search of his friend, a third party\u201d (supra, at 362, n 4)."], "id": "30447e1c-4075-4e97-9bac-39347ebf0f71", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v Moore (32 NY2d 67), a man was arrested after being accused of menacing his girlfriend with a knife. On his *403way to the precinct, the man told the police officer that his girlfriend, the defendant, \u201cwas \u2018sick\u2019 [and] * * * had a gun\u201d (supra, at 68). At the station house, the police officers asked the defendant for her handbag. When the defendant gave her handbag to the police officers, a search produced an unlicenced gun. The Court of Appeals upheld the \u201csearch\u201d under the law (CPL 140.50). The Court pointed to the fact that the informant was known to the police and had little motive for fabrication as he was also at the station house. An immediate search was held to be justified as the information was reliable, and the belief of danger to the officer and others was real and reasonable. The Court noted that a pat down of the handbag would have been ineffective. It should be noted that what was portrayed as a search was the opening and looking into the handbag."], "id": "73f84aa4-2b8f-4506-9fad-7dcf6e02e4c1", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\"Q: Well, how far were you from Jose when your partner searched him? \"A: I was right on the other side of him.\u201d The sole testifying officer further conceded that his partner had prepared a \" report\u201d and that such a report (which here did not mention any sighting of a bulge) contains \"the fact that you include in it to believe that [a] person should be stopped and frisked\u201d."], "id": "cbeb5591-1f71-4ba1-832a-39b6f24a7522", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In United States v Colon (supra), the government, unlike here, conceded that the defendant was stopped and frisked on the basis of an anonymous call. The government also conceded that the 911 operator did not transmit to the NYPD dispatcher the entire message that the 911 operator had received from the caller. The court held that the additional knowledge of the civilian 911 operator which was never conveyed to the NYPD dispatcher could not be imputed to the dispatcher or arresting officer, and, absent that additional knowledge, the officer lacked the reasonable suspicion necessary to defendant."], "id": "c3c08bf0-8fde-45dc-af34-5ef0da52f111", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["By memorandum decision and order dated February 22, 2000, the Appellate Division, Second Department, affirmed the judgment of conviction (People v Breazil, 269 AD2d 537 [2000]). Defendant\u2019s application for leave to appeal to the Court of Appeals was subsequently denied (People v Breazil, 95 NY2d 851 [2000]). By pro se motion dated May 21, 2001, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 on the ground that the police did not have reasonable suspicion to defendant based solely on an anonymous tip and that defendant was deprived of effective assistance of trial counsel. The motion to vacate the judgment was denied (People v Breazil, 191 Misc 2d 817 [2002, Feldman, J.]). A justice of the Appellate Division, Second Department (Townes, J.), granted defendant\u2019s application for leave to appeal. By order dated January 24, 2006, the Appellate Division affirmed the Supreme *495Court\u2019s order denying vacatur of the judgment of conviction (People v Breazil, 25 AD3d 719 [2006]).1 Defendant then moved to reargue the Appellate Division\u2019s order, and, by order dated July 5, 2006, the Appellate Division, Second Department, granted the motion to reargue, and, upon reargument, recalled and vacated the January 24, 2006 order (People v Breazil, 31 AD3d 461 [2006]).2 The final order stated that \u201cthe People should be afforded an opportunity, at a new suppression hearing, to show that the police conduct was lawful.\u201d (Id. at 462.) More specifically, the Appellate Division ordered the new hearing since \u201c[a]t the original suppression hearing, the question of the source of the information provided by an unidentified caller to the police and the question of when the police learned of the complainant\u2019s existence was not explored\u201d (id.). Thus, a Dunaway/Mapp hearing was ordered and held. Given the circumstances of this case, this court not only granted the People the opportunity to present evidence as to the identity of the 911 caller, but, over the objection of defense counsel, to reopen the hearing in its entirety (see People v Crandall, 69 NY2d 459 [1987]). The People called three witnesses: retired New York City Police Officer Kurt Twining, Detective David Gross and New York State Division of Parole Supervisor William McCarthy."], "id": "4712b643-4cfa-4174-a84f-722465229235", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Glaser , however, expressly declined to adopt \"a general rule\" that when police have a warrant to search a home, \" 'the mere arrival or presence of someone at the warranted premises, by itself,' justifies a detention for the purpose of determining identity and connection to the searched premises.\" ( Glaser, supra, 11 Cal.4th at pp. 373-374, 45 Cal.Rptr.2d 425, 902 P.2d 729.) Glaser noted that \"[s]uch a blanket approval of detentions in the course of searches would present too great a danger 'of slippage into a guilt by association pattern whereby anyone seen near prospective drug activity becomes fair game for a .' \" ( Id . at p. 374, 45 Cal.Rptr.2d 425, 902 P.2d 729.)"], "id": "6658e152-f467-4181-a5af-f48de586eedd", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In rebuttal, the defense makes two salient observations: first, that the defendant was not a parolee and the attache case, which was between his legs, by all observable indicia belonged to him; second, that New York\u2019s \u201c \u201d statute (CPL 140.50) applies only to \u201cpolice officers\u201d while parole officers, who hold \u201cpeace officer \u201d status (CPL 1.20, subd. 33, par. [i]) are not defined as \u201c police officers \u201d {id., subd. 34)."], "id": "d384ec11-8eb7-46b4-8f57-bb5eb8a99381", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Moreover, the evidence also failed to establish that Officer Castro properly seized the knife incident to a frisk for weapons. Level three of Be Bour authorizes a police officer to frisk a suspect for deadly weapons where he reasonably suspects that he is in danger of physical injury (Be Bour, 40 NY2d at 223; see also CPL 140.50 [3]). Here, the record is devoid of any evidence that Officer Castro had reasonably feared for his safety at any time, justifying a frisk for the knife. On the contrary, Officer Castro clearly testified that he did not fear for his safety when he observed the clip sticking out of defendant\u2019s pocket. There was no evidence in this record that the officer had any reason to believe that defendant was armed and dangerous. Defendant never made any furtive movements or threatening gestures during the confrontation. He never tried to reach for the knife or conceal it. On the contrary, defendant never exhibited any suspicious behavior and was completely cooperative with Officer Castro during the encounter. Furthermore, since he had not committed a violent offense and was merely being questioned regarding an open bottle possibly containing alcohol, Officer Castro had no reason to believe that defendant would subsequently become violent. Accordingly, Officer Castro would not have been justified in seizing the knife pursuant to a under level three of Be Bour (see Irizarry, 509 F Supp 2d at 209 [object clipped to defendant\u2019s pocket which appeared to be gravity knife did not rise to reasonable suspicion of criminal activity; portion of item visible could have \u201crepresented many innocuous objects\u201d])."], "id": "ff38d751-a587-4b17-bbde-79778d0c941b", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": [". The Office of the Attorney General commenced an investigation into the New York City Police Department\u2019s use of practice on March 18, 1999. This was the first systematic study of these practices and was based on a quantitative analysis of approximately 175,000 US-250 forms that the police are required to complete after stop encounters. The forms covered stops that occurred in 1998 and in the first three months of 1999. The study employed statistics from police precincts and compared rates at which members of different racial groups were stopped. While it is universally acknowledged that stop and frisk serves as an important tool in furthering NYPD crime fighting strategies, the Attorney General Report focused on the consequences of stop and frisk practice for people in the communities most directly affected. The report\u2019s focus was to determine and compare the extent to which minorities and Whites were the subject of stop and frisk activities and to determine the extent to which officers described a legally sufficient basis for effecting the stop. For the period covered, the report concluded that Blacks were stopped at a higher rate than Whites, relative to their percentage within the New York City population. Blacks, while comprising 25.6% of the city\u2019s population, constituted 50.6% of all persons stopped. By contrast, Whites were 43.4% of the city\u2019s population, but accounted for only 12.9% of all stops. This disparity in stop rates is particularly pronounced in precincts where the majority of the population is white. In those precincts where Blacks and Hispanics each represent less than 10% of the total population, more than half of the total stops during the period came from these groups. The report also notes that precincts where minorities constitute the majority of the overall population tended to see more stop and frisk activity than precincts where Whites constitute the majority. Interestingly, while only one out of nine stops resulted in an arrest, Whites were arrested with more frequency after such stops than minorities. One out of every 9.5 Blacks stopped was arrested, while for Whites there was one arrest for every 7.9 Whites stopped. Acknowledging that higher crime rates in minority communities can explain the higher rate at which minorities are stopped, using various regression analysis adjustments, the Attorney General Report still found that different crime rates alone cannot fully explain the increased rates of stops of minorities. After accounting for the effect of different crime rates, Blacks were stopped 23% more often than Whites across all crime categories. Regression analysis revealed that for specific crime categories there were statistically significant disparities in the stop rates of Blacks versus those of Whites."], "id": "f638d191-3a01-45ef-8652-94068278e3d3", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["When the officers stopped him, they drew weapons and ordered him to lie on the ground to frisk him. The Court of Appeals said that, under the circumstances, the police acted reasonably in effecting this \u201c.\u201d In so deciding, the Court noted, \u201cwhen the intrusion involved is of sufficient magnitude, an \u2018arrest\u2019 will be said to occur, whether or not the person is eventually transported to the police station and *159charged with a crime. However, it is equally as clear that not every seizure constitutes an arrest. [Citation omitted.]\u201d (People v Chestnut, at 20.) Given the particular facts and circumstances of this case, the presence of the drawn gun did not transform the stop and frisk of defendant into an arrest."], "id": "761f5be6-d09b-437c-a741-bb157cbf6353", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In determining the validity of the police action in this case, we believe the prescribed standards of initial action and the grounds and scope of the invasion of the person questioned to be applied are those contained in section 180-a of the code, since the action here involved was subsequent to the effective date of the \u2018 \u2018 \u2019 \u2019 statute."], "id": "d35c3bf9-4df1-48ce-bef6-37cc486b1fdd", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["With respect to the first arm of his motion, defendant claims the of him by the police was unconstitutional under Florida v J.L. (529 US 266 [2000]). Defendant contends that he is entitled to the benefit of the rule enunciated in J.L. (supra) because although the decision was rendered after his conviction became final, it should be applied retroactively to suppress the weapon seized in his case."], "id": "0fef50ac-5ded-4f94-b91c-97da453e7384", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendant contends that the was contrary to his rights \u2014 and the fruits of that alleged illegal action by the police \u2014 the finding of the gun and the statement must be suppressed. The People contend that the frisk was lawful and there was a reasonable basis to suspect that the defendant had a gun based upon the information given by the two informers, who concededly, are anonymous."], "id": "ec98a337-47f3-44f1-a8a1-fffb8c54ee05", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The law is clear that the police may not a citizen based solely upon information of criminal conduct provided from an anonymous source without other \u201cindicia of reliability\u201d (see Florida v J.L., supra at 271; People v Folk, supra; see also People v Moore, 6 NY3d 496 [2006]; People v Heapps, 13 AD3d 107 [2004]). The issue which required clarification pursuant to the order of the Appellate Division, Second Department, was the source of the information provided to the police which led to the stopping of defendant. It is quite evident that the Appellate Division was affording the People an opportunity to relay to the hearing court whether the anonymous tipster was the complainant in the robbery. However, since both police officers who testified at this hearing were unable to provide the identity of the 911 caller, and the People offered no other substantive evidence regarding this fact, this court has no choice but to grant defendant\u2019s motion to suppress the evidence of the arrest, the weapon and the subsequent lineup (see People v Dodt, 61 NY2d 408, 417 [1984] [\u201cInasmuch as the lineup identification followed directly from the illegal arrest and detention of defendant, it was error to admit evidence of that identification at trial\u201d]). Both police witnesses testified in no uncertain terms that they stopped defendant based solely upon the uncorroborated information provided by an anonymous 911 caller, which is directly in contradiction to the law (see Florida v J.L., supra; People v Folk, supra; see also People v Moore, supra; People v Heapps, supra). Moreover, the description relied upon by the officers did not place defendant on a bicycle, which further dilutes the reliability of the information."], "id": "3d6d5a73-8ccb-4f54-9569-3ed664d0b441", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["\u25a0Counsel for the defense asserts that the warrantless search conducted of the trunk and interior of the Cadillac was illegal in that, before the trunk was unlocked, the defendants were not under arrest and the officer had no knowledge of any crime having been committed. Generally, all searches and seizures *465are deemed unreasonable if conducted without a warrant unless they fall within various recognized exceptions, which include a search on consent,1 a search incident to a lawful arrest,2 a search under the \u201c \u201d rule,3 a .search of impounded vehicles and property subject to forfeiture,4 a search conducted in the course of a \u201c hot pursuit,\u201d5 a search of an open field, even if private property,6 a search of abandoned property,7 a search conducted in an emergency situation or under exigent circumstances,8 and a search of a vehicle where probable cause exists for the .belief that the vehicle contains contraband.9 Since, in the instant case, the search of defendants\u2019 automobile preceded their arrest and thus cannot be considered as incident to a lawful arrest, the search can only be upheld if it comes within the ambit of at least one of' the other exceptions."], "id": "a58014ee-e748-484d-b53f-829c7b4edfa1", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The People contend that the consent was valid and the search was justified as a precautionary measure for the safety of airplane passengers. Since the purpose is to prevent hijacking, the People contend that rigid standards should not be applied to these types of searches. The compelling need for affording airline passengers adequate protection from hijackers has made these searches imperative. As a matter of fact a task force was appointed to consider effective meaps of combating this ter*539rifying and heinous course of conduct. It was the task force which devised the anti-hijacking system which consists of a profile selection, magnetometer detection, and the \u201c \u201d or limited search. For a detailed and illuminating description of the system, see United States v. Lopes (328 F. Supp. 1077, supra). (See, also, United States v. Epperson, 454 F. 2d 769 [1972]; United States v. Bell, 335 F. Supp. 797; Sibron v. New York, 392 U. S. 40.)"], "id": "03eeafe9-6d03-4ec8-988c-a806fa357e5c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["For example, searches may now be sustained under principles of attenuation (Nardone v United States, supra), the automobile exception (Arkansas v Sanders, 442 US 753), exigency (People v Mitchell, 39 NY2d 173), consent of a person with apparent authority (People v Adams, 53 NY2d 1), impoundment and inventory (South Dakota v Opperman, supra), administrative procedure (People v Rizzo, 40 NY2d 425), inevitable discovery (People v Fitzpatrick, 32 NY2d 499), plain view (People v Di Stefano, 38 NY2d 640), standing (People v Ponder, 54 NY2d 160), harmless error (People v Coles, 89 AD2d 471), (Terry v Ohio, 392 US 1), and within the recently enlarged \u201cgrabbable area\u201d associated with a lawful arrest (New York v Belton, 453 US 454)."], "id": "62ca2d6d-0719-4632-b338-0b05e3c59e35", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Family Court properly denied appellant\u2019s motion to suppress the gun and ammunition recovered upon his arrest, based on the arresting officer\u2019s testimony that appellant matched the detailed description, spontaneously provided to him and his partner moments before by a man in the street who flagged them down, of a youth who was trying to fire a gun that appeared to be jammed, and, when questioned whether he had a gun, reached with his hand toward his waistband. Such testimony, which was sufficient to show reasonable suspicion to , was not incredible as a matter of law by reason of the arresting officer\u2019s omission from his memo book of the details of the informant\u2019s description of appellant or of appellant\u2019s act of reaching toward his waistband. Since nothing in the memo book actually contradicted the officer\u2019s testimony, the memo book entry could be viewed as simply a more abbreviated account of the incident than the testimony, and certainly did not make the testimony \" 'impossible of belief \u201d and \" 'manifestly untrue\u2019 \u201d (People v Garafolo, 44 AD2d 86, 88). Questions of credibility are primarily to be resolved by the trier of fact who actually sees and hears the witnesses, and whose determination is to be accorded great weight and not disturbed on appeal unless clearly unsupported by the record (People v Woodham, 158 AD2d 494, 495). Concur\u2014Wallach, J. P., Asch, Rubin and Williams, JJ."], "id": "b4b1be20-27d5-4706-83ff-c04be672b9be", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Furthermore, the subsequent police conduct was reasonably limited in scope and intensity to the circumstances which rendered its initiation permissible. The officers did not defendant. The officers did not immediately seize and search the bag. Officer Hellmer first asked only a few pertinent questions. He inquired if defendant lived in the building and what he was doing there. And, in light of the radio report that the suspect had a gun inside a brown bag, the officer naturally asked about defendant\u2019s bag. (See People v Rogers, 259 AD2d 398 [1st Dept 1999] [common-law inquiry including request to view contents of plastic bag defendant was holding ruled lawful]; People v Boyd, 91 AD2d at 1046 [officer\u2019s inquiry about contents of defendant\u2019s bag properly based on common-law right to inquire].) Thus, the officers lawfully approached defendant and reasonably questioned him, and, absent an arbitrary intrusion, based upon whim, curiosity or caprice or with an intent to harass, there was no constitutional violation. (See People v De Bour, 40 NY2d at 217.)"], "id": "8a530785-7035-46ab-afcf-123e10b53379", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On the other hand, the alleged facts of the instant case present a clearly contrasting pattern of individual conduct. At the time of the of the defendant, auxiliary police officer Leon was not on duty; was not in uniform; did not display a badge; and was not then under police department authority, supervision or control. He had neither police equipment nor a police-related assignment. He was not working as an agent for or in co-operation or collusion with regular police personnel."], "id": "461d1f74-de2f-4c3c-8a7f-17dc41e9cfc7", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While there has been considerable law review discussion as to the constitutionality of New York\u2019s \u201c \u201d law, I do not pass upon that issue since every statute is presumed to be constitutional (Farrington v. Pinckney, 1 N Y 2d 74, 78) and \u2018 \u2018 courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except *46in rare eases where life and liberty is involved and invalidity of the act is apparent on its face \u201d. (National Psychological Assn. v. University of State of New York, 18 Misc 2d 722, 726, affd. 10 AD 2d 688, affd. 8 N Y 2d 197, app. dsmd. 365 TI. S. 298.) And more particularly so in a ease like this where the Court of Appeals has, if not explicitly, certainly implicitly, upheld the validity of the statute (People v. Rivera, 14 N Y 2d 441; People v. Pugach, 15 N Y 2d 65, supra)."], "id": "3806bb4e-fd6e-4541-aeea-f2691386327a", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Accompanied by another officer, Detective Goodin traveled to the pool room on Kentucky Avenue in Pineville, Kentucky. He entered the rear of the pool room, as directed by the text message sender, while the other detective stayed out front. As he entered, the detective observed a man-subsequently identified as Steve Turner-standing next to a machine looking at his cell phone. Detective Goodin approached, identified himself as a police officer, and asked if Turner had any weapons. Before the detective could perform a \",\"2 Turner voluntarily removed two pill bottles from his pocket."], "id": "85d34e3c-6d25-492d-aa07-1250368ae09f", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In Terry v. Ohio (392 U. S. 1 [1968]) and in CPL 140.50 the right to \u201c \u201d a suspect by an investigating officer is not limited to his own protection but extends to \u201c others * * * in danger \u2019 \\ In light of the wave of plane hijackings, kidnappings, extortion, and other crimes perpetrated by some ill-intentioned passengers with concealed weapons at our nation\u2019s airports, such limited searches had to be initiat\u00e9d. In Terry v. Ohio (supra) the United States Supreme Court, in upholding a \u201cstop and frisk\u201d law, held, though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer * ' * * is required."], "id": "06eb82ba-d487-4095-862c-0194b94de9f9", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["6 \u201cThe law is clear that citizens are protected by both federal and state constitutional provisions from unreasonable searches and seizures. U.S. Const. Amend. IV; Pa. Const. Art. I, \u00a7 8.\u201d Martin, supra at 1228 (case citation omitted). A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article I, \u00a7 8, subject to a few established, well-delineated exceptions. See id. (emphasis added). Such exceptions include \u201cthe consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception . . . the exception, and the search incident to arrest exception.\u201d Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (citation omitted)."], "id": "82f97513-ec91-44f6-bc25-528c99ce4181", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Dispositive of the issues here is a decision by the United States Supreme Court in Sibron v. New York (392 U. S. 40). This case arose in the context of the New York\u2019s \u201c Law\u201d. (Code Crim. Pro., \u00a7 180-a.) The conviction of Sibron and one Peters, for the unlawful possession of heroin, was upheld by the Court of Appeals of New York on the ground that the evidence was properly admitted and that the searches which uncovered the evidence were authorized by the statute."], "id": "c28ffe71-e9d5-4527-8e84-4d45b9a39dff", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Contrary to the defendant\u2019s contention, we discern no basis for disturbing the hearing court\u2019s express determination that the in this case was validly supported by reasonable suspicion. In this regard, the defendant\u2019s analysis of the stop pursuant to the more stringent probable cause standard for an arrest is erroneous (see, People v Landy, 59 NY2d 369; People v Benjamin, 51 NY2d 267; People v Olsen, 93 AD2d 824; cf., People v Parris, 83 NY2d 342; People v Elwell, 50 NY2d 231). The evidence adduced at the hearing, including the radio report of an armed robbery in progress at a specified location, the descriptions provided by citizen informants to other police officers during a face-to-face encounter at the scene, and the independent corroborative observations made by the arresting officer in close temporal and geographical proximity to the scene, provided the reasonable suspicion necessary to justify the stop of the defendant (see, People v Salaman, 71 NY2d 869; People v Landy, supra; People v Klass, 55 NY2d 821; People v Benjamin, supra; People v Mills, 198 AD2d 236). Moreover, the protective pat down of the defendant was appropriate, given the nature of the reported crime and the officer\u2019s reasonable belief that the defendant might be armed (see, People v Salaman, supra; People v Benjamin, supra). Upon recovering a gun from the defendant\u2019s person, the police had probable cause to arrest him (see, People v Sattan, 200 AD2d 640; People v Thorne, 184 AD2d 797). Accordingly, the defendant\u2019s contention that the police conduct in this case was unlawful is without merit. Sullivan, J. P., Balletta, Joy and Friedmann, JJ., concur."], "id": "5475ce98-3359-46b1-b022-fcbe03a6ae3c", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Depending on the case, other documents that might be prepared and listed are the request for a lab report, sprint reports, aided cards, any notes about the case in the daily activity log (memo book entries) of an officer involved in the case, the handwritten on-line booking arrest sheet, the police officer\u2019s supporting deposition if the complainant is unable to go to the complaint room, requests for commendation, and the report, also known as UF250."], "id": "a771c062-9279-4d67-b24a-a04ab2468ce1", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Appellant nonetheless insists that the search was not \"justified at its inception.\" He reasons that the information leading to the search came from an anonymous source and was therefore unreliable because there were no means of testing the informant's knowledge or credibility. On this point, he relies principally on Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 ( J.L. ), a case arising outside the school context, in which the high court addressed \"whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's of that person,\" and concluded it is not. ( Id. at p. 268, 120 S.Ct. 1375.)"], "id": "2a709e22-4d36-43e3-b28e-06c88391e386", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The issue in this matter involves the sufficiency of the information the police had to support the stop and arrest of defendant and brings into play the law enunciated by the United States Supreme Court in Florida v J.L. (529 US 266 [2000]). In that case, the Supreme Court held that a conducted on the basis of an anonymous report that there was an individual with a concealed firearm at a specified location was illegal. The Court stated that \u201cthe bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant]\u201d was insufficient to justify a stop (id. at 271; see also People v Folk, 284 AD2d 476 [2001])."], "id": "09ca6bc5-b6b2-4bdd-8285-9e78cd96fa2e", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The warrantless of defendant had to be based on reasonable suspicion of criminal activity, viz., \" ' \"specific and articulable facts which, taken together with rational *336inferences from those facts, reasonably warrant [the] intrusion\u201d \u2019 \u201d (People v Hicks, 68 NY2d 234, 238, quoting People v Ingle, 36 NY2d 413, 420, quoting Terry v Ohio, 392 US 1, 21). Here, even disregarding the specific descriptions given to him over the radio, Detective Lauro was told by a reliable informant that he had just bought narcotics from three men standing at a specific intersection. When he arrived at the scene approximately a minute later and saw three men standing at the specified location, he certainly had a founded suspicion that they were the narcotics sellers. While there was no-hearing testimony as to what was said to defendant, it is undisputed that Detective Lauro, who was in plainclothes, displayed his badge, which was hanging on a chain around his neck, as he approached defendant, but did not draw or display his revolver (cf., People v Bora, 83 NY2d 531). Although defendant \"was patted down for the presence of any weapons\u201d, none were found and the propriety of such frisk is not at issue and does not affect the legality of the subsequent arrest."], "id": "8b93e821-6119-4447-9455-7f62b8078948", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The authority to intercept persons upon the public street emanates from two independent sources, the common-law right of inquiry (People v Rivera, 14 NY2d 441, cert den 379 US 978), and the so-called law (CPL 140.50). The latter requires the officer to have a \"reasonable suspicion\u201d that the detained person is committing, has committed, or is about to commit a crime. Cantor further defines \"reasonable suspicion\u201d as that quantum of knowledge which under the circumstances then present, would prompt an ordinarily prudent and cautious man to believe that criminal activity is at hand. A line must be drawn in these instances between vague or unparticularized hunches which will not suffice, and specific, articulable facts which will."], "id": "61128f40-4a2e-4960-9db5-9195a224d502", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["This court finds the Officers did not possess reasonable suspicion to justify the level three of the defendant. Even if the Officers had possessed the level three reasonable suspicion that defendant had committed a crime (i.e., criminal possession of marihuana in the fifth degree, Penal Law \u00a7 221.10), which would have permitted only a temporary detention of defendant, the full-blown search of defendant was not permitted. A level three temporary detention justifies only a pat-down frisk if there is reason to believe that the suspect is *370armed and poses a threat to officer safety. It does not permit a full-fledged warrantless search for evidence. (De Bour at 223.) There is no evidence in the hearing record that either Officer observed anything which would have indicated defendant possessed a weapon. Prior to being ordered to turn around and face the wall in order to be searched, there was nothing threatening or unusual about defendant\u2019s behavior and there certainly was nothing to suggest defendant was in possession of any weapon. Officers Niemi and Slattery made it clear that defendant wasn\u2019t going to be just frisked, rather he was going to be \u201csearched for marihuana.\u201d While the Officers were permitted to ask defendant Brukner questions of an accusatory nature, the Officers were not authorized to order the defendant to turn and face the wall in order to be frisked and searched. This court cannot find precedent for and is unwilling to fashion what the People refer to as a \u201cplain smell\u201d exception to the search warrant requirement when officers possess nothing more than the odor of marihuana emanating from a pedestrian. The detention, frisk and search of defendant was not authorized. In short: the mere odor of marihuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred, and consequently does not authorize law enforcement to forcibly stop, frisk, or search the individual."], "id": "3d5ad755-752f-41f4-80ec-0e322773305b", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["While the People argue that defendant\u2019s illegal conduct of riding a bicycle on a New York City sidewalk could have provided a basis to stop defendant under the theory of a pretextual stop, the People\u2019s mere speculation that the police could have and would have stopped defendant for this conduct is insufficient to cure the tainted police action. Given the record before the court, it strains the bounds of credulity to believe that the aggressive would have occurred for such a minor infraction of the law, especially given the police witnesses\u2019 unequivocal responses to defense counsel\u2019s questions regarding the true reason for the stop."], "id": "cc7a4a71-0e9e-4046-9a36-e728211f9b5a", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The defendants have the burden of establishing that they have standing to contest the allegedly unlawful search. The defendants argue that the hiring of the cab places that area of the cab, where the defendants sat, within the zone of a legitimate expectation of privacy, namely, the area in the back of the cab where the passengers are seated. They also argue that the officers lacked probable cause to the defendants. Defendant Judge also argues, separately, that he has standing by virtue of the automobile statutory presumption of possession statute. (Penal Law, \u00a7 265.15, subd 3.)"], "id": "e78c8d1d-e715-4fd9-b689-9affcfa2ca60", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The dissent also relies upon the testimony concerning the Report prepared by Officer Fallon, to conclude *370that no weapon was seen by Officer Fallon prior to his seizure of the gun and, as further support for the conclusion that a frisk or pat down had to precede the seizure of the gun in this case. We note first that the report in question was not submitted to us on appeal. Second, there is no testimony in the record as to the contents of the report, except for the testimony that there is no mention in it of a bulge being seen by either officer. Third, the complete version of the question asked by defense counsel, which is relied upon by the dissent, to suggest that Officer Gogarty conceded that the Stop and Frisk Report contained a statement that the defendant was searched in order to locate the weapon, is as follows:"], "id": "68b5d0d0-7fef-4179-a610-206ad38cc2ab", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In these circumstances, Mackie would plainly have standing to challenge the frisk and be entitled to suppression of the diamond as well as his statement and subsequent identification. Under this new reading of Mosley (supra), however, Mosley himself would be in a very different position. He would only have \"standing\u201d to argue that the circumstances, including the discovery of the diamond on Mackie, were not sufficient to warrant his detention. He would not have standing to challenge the frisk of Mackie which uncovered the diamond although he himself had been subject to a contemporaneous *695and equally unlawful by the very same officers. The diamond itself, together with the resulting evidence, the statement and the identification, would all be admissible against Mosley."], "id": "35c27bd4-e8c6-4156-a991-a4632a447774", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The People urge that a fire escape, like a hallway, stairway or lobby of a multiple dwelling, is a public place, and thus not within the ambit and protection of the Fourth Amendment and cite People v. Peters (44 Misc 2d 470, affd. 24 A D 2d 989, affd. 18 N Y 2d 238). In the Peters case, an off-duty policeman, while in his apartment located in a multiple dwelling, heard a loud noise outside of his door. On looking into the hall through the peephole of his door, he saw two men tiptoeing out of an alcove toward the stairway. Suspicious, he called the police and returned to his observations. Seeing them still tiptoeing up the stairs, he took his service revolver, slammed his door and ran into the hall. He chased the defendants and stopped them. On inquiry by the policeman resident as to what he was doing in the building, Peters replied \u2014 looking for a girl friend \u2014 whom he declined to name. The policeman then frisked Peters, looking for a weapon. Instead of a weapon he found burglar tools, which he turned over to the police on their arrival. The defendant was then taken into custody. The defendant thereafter moved to suppress the evidence. The motion was denied and affirmed by the appellate courts. In its affirmance the Court of Appeals upheld the constitutionality of the Law, section 180-a of the Code of Criminal Procedure, and held that hallways and stairways of multiple dwellings are public places within the intendment of that section and all that was necessary to bring the statute into effect was \u201c reasonable suspicion \u201d as distinguished from \u201c probable cause \u201d."], "id": "49498292-fe68-4903-a4e3-c2423986f348", "sub_label": "US_Terminology"} {"obj_label": "Stop and Frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Therefore, with respect to the question of whether a pat down occurred in this case, the report is silent. The denomination of the report as a \" Report\u201d and the fact that the officer, who did not prepare the report in this case, testified as to what is usually contained in such a report, do not constitute evidence that Officer Fallon had to search defendant for. a weapon he did not readily see. The only evidence we have is Officer Gogarty\u2019s testimony that Officer Fallon \"reached * * * in and pulled the gun out\u201d. We note also, that the use by the Presentment Agency and the defense in their briefs, of the terms, \"frisk\u201d, \"pat down\u201d and \"limited search\u201d, etc., to describe the seizure of the weapon also do not constitute evidence; the terms are words of art universally used to describe these street encounters between the police and the general public. The specific manner and attendant circumstances of each \"stop and frisk\u201d are unique, and we evaluate these encounters on a case by case basis. In our *371evaluation of this encounter we are concerned with what actually occurred as shown by the evidence in the record and not, as the dissent seems to be, with semantics."], "id": "d0a8ae48-d418-48c9-84bf-67200fbf4553", "sub_label": "US_Terminology"} {"obj_label": "stop and frisk", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["After reviewing the pertinent appellate cases, certain rules can be discerned. The presence of reasonable suspicion permits a of a suspect for weapons as well as a frisk or pat down of any bag that he might be carrying or that is within his reachable area. (People v Brooks, 65 NY2d 1021, supra.) A bag that is flexible and whose contents can be felt by touching its exterior must be patted down and may be opened for a search only when after a pat down, the officer reasonably believes it contains a weapon. (People v Coleman, 215 AD2d 576, supra; People v Morales, 198 AD2d 129; People v Cartagena, 189 AD2d 67, supra; People v White, 156 AD2d 741, supra.) When, however, due to a closed container\u2019s rigid exterior, its contents are not susceptible of being identified by touch, then a bag or container may be opened and visually inspected even absent probable cause especially if other aggravating factors are present (e.g., the person alleged to be carrying a weapon is on a busy street [People v Tratch, 104 AD2d 503, supra] or in a police station [People v Moore, 32 NY2d 67, supra], or if the safety of children is involved [People v Taggart, 20 NY2d 335])."], "id": "a9488934-5730-4986-9c86-175f32ff1e43", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Defendant Derrick O\u2019Neal Henderson and codefendant Zuri James entered an apartment, pointed guns at the occupants, and threatened to shoot them. A jury found defendant guilty of, among other counts, one count of making a criminal threat, and two counts of assault with a semiautomatic firearm, and found true personal use of a semiautomatic firearm allegations as to each of those counts. On appeal, defendant argues: (1) the trial court erroneously admitted gang evidence, and defense counsel provided ineffective assistance of counsel in failing to object to the evidence; (2) evidence was insufficient to prove defendant was not acting in ; and"], "id": "1349374e-942d-422d-97c1-075ae11d441e", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["4. The Court of Appeals improperly concluded that was not available to Jeremiah because he was the initial aggressor. To reach this conclusion, the Court of Appeals credited Porter\u2019s testimony over Jeremiah\u2019s, which was a question for the jury to decide. The relevant question was whether Jeremiah had put forward \u201csome evidence\u201d that he had acted in defense of others and was not the initial aggressor. Given Jeremiah\u2019s claim that he had acted to defend Micheline after Porter smashed an ashtray on her head, the jury could have considered Porter\u2019s conduct to be the initial act of aggression. Regarding the felonious-assault charge, whether Jeremiah reasonably and honestly believed that his wife was in imminent danger when he gained possession of the knife presented a closer question. But Jeremiah\u2019s testimony that he had picked up the knife and pleaded with Porter to let them go, after observing his severely injured wife, could have allowed a jury to find that he reasonably and honestly believed that he needed to use force to protect Micheline."], "id": "e1a56b5e-f1a1-4084-8269-4c9e12ca8b54", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["There do not appear to be any other New York State cases that have interpreted these policy provisions specifically in the self-defense context. There are two Fourth Department cases that seemingly have facts suggestive of self-defense or , although not labeled as such, yet the majority decision in each found for the insurer and denied a defense and indemnity. In State Farm Fire & Cas. Co. v Whiting (53 AD3d 1033 [4th Dept 2008]), in a 3-2 split, the majority found that no occurrence under the policy had taken place. It cited the insured\u2019s deposition testimony that he intended to hit the victim, who had shoved him and was again advancing toward him, and that the insured knew when he hit the victim that he could be hurt from the punch. Although the majority apparently recognized the rule from Cook that if the insured accidentally or negligently caused the victim\u2019s death, such an event may be considered an occurrence prompting coverage (Cook, 7 NY3d at 138), it concluded under the specific facts of the case that \u201cthere is no view of the evidence to support [the] conclusion that the result of the defendant\u2019s intentional act of punching [the victim] in the face \u2018accidentally or negligently\u2019 caused [the victim\u2019s] alleged injuries\u201d (Whiting, 53 AD3d at 1035)."], "id": "af341234-48e8-4bb7-8eb2-997f8ba56b08", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is time for the civil law to recognize that children are entitled to equal protection. The tort of battery, which once protected only the bodily integrity of men, must now protect *561all persons, be they adults or children, from unauthorized physical contact. Physical abuse in even the slightest degree seriously harms children. It is not only immoral and unethical, but also unfair and unjust and therefore intrinsically illegal. It is most appropriate to consider such abuse as the tort of battery. Any person who physically assaults a child for any reason other than self-defense or the is liable to that child for monetary damages."], "id": "946976ec-6e5d-47e0-9ea0-f15f4dedef50", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["whether the common-law affirmative defense of may be raised as a defense to the felony and misdemeanor charges against them, see People v Dupree, 486 Mich 693 (2010); People v Triplett, 499 Mich 52 (2016), and whether trial defense counsel\u2019s failure to request such an instruction deprived the defendants of the effective assistance of counsel, see Strickland v Washington, 466 US 668 (1984). [People v Leffew, 506 Mich 1031, 1031 (2020)]."], "id": "79dedf79-1835-4f12-8b5a-d9244d0ed0a7", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["II Insufficient Evidence Defendant contends insufficient evidence shows he did not act in lawful because he only acted to protect James from imminent harm. Defendant argues he reasonably believed James was in danger because A.J. had \u201cgrabbed\u201d her when defendant entered the apartment, and defendant did not know who A.J. was. Moreover, defendant used only the requisite amount of force before leaving the apartment. We disagree. In reviewing the sufficiency of the evidence, \u201c \u2018we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence\u2014that is, evidence that is reasonable, credible, and of solid value\u2014from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.\u2019 \u201d (People v. Cravens (2012) 53 Cal.4th 500, 507.) \u201c \u2018The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.\u2019 \u201d (People v. Johnson (1980) 26 Cal.3d 557, 576.) \u201cWe must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.\u201d (People v. Medina (2009) 46 Cal.4th 913, 919.) \u201c \u2018If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.\u2019 \u201d (People v. Kaufman (2017) 17 Cal.App.5th 370, 381.) \u201cThe conviction shall stand \u2018unless it appears \u201cthat upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].\u201d \u2019 \u201d (People v. Cravens, supra, 53 Cal.4th at p. 508.) \u201cSelf-defense negates culpability for assaultive crimes.\u201d (People v. Adrian (1982) 135 Cal.App.3d 335, 340-341.) It requires a reasonable belief in the need to defend against \u201cimminent danger of suffering bodily injury\u201d or \u201cimminent danger of being touched unlawfully.\u201d (People v. Clark (2011) 201 Cal.App.4th 235, 250.) \u201cAlthough"], "id": "3661ffa0-a983-4cef-ad3d-2bc6ec893c37", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["ROBINSON, C. J. In this appeal, we consider whether evidence that the victim had conducted Internet searches for dangerous weapons in the days preceding the alter- cation at issue is admissible in support of a criminal defendant\u2019s claim of self-defense. The defendant, Daniel Richard Streit, appeals1 from the judgment of convic- tion, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes \u00a7 53a-55 (a) (1). On appeal, the defendant claims that the trial court abused its discretion in determining that evidence that the victim had searched an Internet shopping site for weapons in the days leading up to the altercation in which the defendant fatally stabbed the victim was both irrelevant and not admissible as uncharged misconduct evidence under \u00a7 4-5 (c) of the Connecticut Code of Evidence.2 We disagree and, accordingly, affirm the judgment of the trial court. The record reveals the following facts, which the jury reasonably could have found, and procedural history. At all relevant times, the defendant lived in New Haven with his girlfriend, Kathleen O\u2019Dwyer. The defendant was also dating Kathryn Wallace, who was the \u2018\u2018on- again, off-again\u2019\u2019 girlfriend of Keith Wylie, the victim. After the victim broke into Wallace\u2019s home in Septem- ber, 2017, which resulted in the issuance of a protective order and second degree breach of peace charges against him, Wallace no longer felt safe at her home and moved in with O\u2019Dwyer and the defendant. On the morning of October 3, 2017, the defendant and the victim engaged in a fistfight near the APT Foun- dation (clinic), a methadone clinic on Congress Avenue in New Haven where Wallace was participating in a treatment program. After the fight was broken up, the victim threatened to kill the defendant. The defendant and Wallace, who was also involved in the fight, returned to their residence, where O\u2019Dwyer photo- graphed their injuries\u2014the defendant had cuts and scrapes, and Wallace had a black eye. Several days later, the victim and the defendant fought again in front of the clinic. After this second fight was broken up, the victim, who had a reputation among the participants in the treatment program as a violent and aggressive person, once again threatened to kill the defendant. The defendant previously had expressed animosity toward and a desire to \u2018\u2018get\u2019\u2019 the victim, or to \u2018\u2018kick his ass,\u2019\u2019 because of the victim\u2019s physically abusive behavior toward Wallace when they were dating. Several days later, on Saturday, October 7, 2017, the defendant and Wallace walked to the clinic. While Wal- lace went inside, the defendant, who was wearing latex gloves on both hands and carrying a Smith & Wesson \u2018\u2018special ops\u2019\u2019 knife, waited in front of the clinic. The victim arrived approximately thirty minutes later, parked his car, exited his vehicle, and walked directly toward the defendant. According to the defendant\u2019s statement to the police, the victim told him that they were \u2018\u2018 \u2018going to finish this right now.\u2019 \u2019\u2019 The defendant then lunged at the victim, and a fight ensued between them on the sidewalk in front of the clinic; during the fight, there was a struggle over the knife, and the defen- dant stabbed the victim seventeen times, causing nine significant wounds to the victim\u2019s neck, torso, and right arm that resulted in his death. During the altercation, the defendant was yelling for someone to pull the victim off of him. Once the defendant was able to, he and Wallace ran from the scene, with the defendant ripping off his gloves and the blood-stained Spiderman sweat- shirt that he had been wearing and discarding them while running. A few minutes later, New Haven police officers responded to a call about the fight and appre- hended the defendant and Wallace nearby on York Street. The police arrested the defendant, who had visi- ble facial and hand injuries at that time. When arrested, the defendant stated that he had no regret for what had happened and that the victim \u2018\u2018got what he deserved.\u2019\u2019 Subsequently, the state charged the defendant with manslaughter in the first degree, to which he pleaded not guilty, and the case was tried to a jury. At trial, the defendant sought to establish that he had acted in self- defense.3 In support of his claim of self-defense, the defendant filed a motion in limine seeking permission to offer into evidence an \u2018\u2018[e]xtraction [r]eport,\u2019\u2019 generated using forensic software called Cellebrite, that a forensic examiner had used to examine the victim\u2019s cell phone, which had been seized by the police. The extraction report indicated that, between October 3 and the fatal altercation on October 7, the victim\u2019s cell phone had been used to search a shopping website, eBay, for weap- ons, including stun guns, mace guns, and brass knuckle gloves. The defendant argued that these searches, con- ducted after the victim had threatened to kill the defen- dant on October 3, were relevant to his claim of self- defense\u2014even though he was not personally aware of them\u2014as evidence (1) of the state of mind of both the victim and the defendant with respect to the subjective and objective reasonableness of the defendant\u2019s fear of the victim, and (2) that the victim was the initial aggressor.4 As a basis for admitting the extraction report, the defendant cited \u00a7\u00a7 4-1, 4-2 and 4-4 (a) (2) of the Connecticut Code of Evidence5 and the Massa- chusetts Supreme Judicial Court\u2019s decision in Common- wealth v. Carey, 463 Mass. 378, 974 N.E.2d 624 (2012). The defendant also sought an \u2018\u2018extension\u2019\u2019 of this court\u2019s decision in State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978). He further relied on his federal and state constitutional rights to present a defense. The state objected to the defendant\u2019s motion in limine. After a hearing, the trial court agreed with the state\u2019s objection and denied the defendant\u2019s motion in limine. Considering the defendant\u2019s claims of relevance in the context of the well established subjective-objective standard that governs claims of self-defense under Gen- eral Statutes \u00a7 53a-19 (a);6 see, e.g., State v. O\u2019Bryan, 318 Conn. 621, 632\u201333, 123 A.3d 398 (2015); the trial court concluded that the proffered evidence was out- side the \u2018\u2018parameters specific to issues regarding self- defense and the with regard to past conduct related to the complainant or decedent, vis-a\u0300- vis the defendant in such a case.\u2019\u2019 Assuming the authen- ticity of the searches and that the victim was the person who had conducted them, the trial court first observed that there was no evidence \u2018\u2018that indicated anything was actually purchased\u2019\u2019 as a result of the Internet searches. Emphasizing that there was no evidence that the defen- dant was aware of the Internet searches or that any of the weapons he searched for were found on the victim\u2019s person or at the crime scene, the court reasoned that the evidence of the searches had a \u2018\u2018clear\u2019\u2019 prejudicial effect insofar as they were not relevant to the defen- dant\u2019s state of mind for purposes of admissibility under \u00a7 4-4 (b) of the Connecticut Code of Evidence. The trial court further determined that the searches were not admissible to prove that the victim was the initial aggressor because, under the line of cases following State v. Miranda, supra, 176 Conn. 107, such as State v. Whitford, 260 Conn. 610, 799 A.2d 1034 (2002), evi- dence of specific acts of violence not resulting in a criminal conviction may not be used to establish a vic- tim\u2019s violent character.7 Ultimately, the trial court deter- mined that the \u2018\u2018jury ha[d] . . . ample evidence to con- sider as to the nature of the relationship between the defendant and [the victim] sufficient to [allow the defen- dant to] make the argument with regard to his subjective state of mind and his fear of [the victim]. The court conclude[d] that [the Internet search evidence was] not admissible or relevant or material to any issue the jury must decide, and, even if [the evidence had] some slight relevancy, it ha[d] the potential to confuse or arouse the jury [such] that any probative value [was] out- weighed by its prejudicial effect.\u2019\u20198 Thereafter, the jury returned a guilty verdict on the manslaughter charge; the defendant subsequently pleaded guilty to part B of the information seeking an enhanced penalty pursuant to General Statutes \u00a7 53a-40 (a) on the ground that he was a persistent dangerous felony offender.9 After denying the defendant\u2019s motions for a new trial and a judgment of acquittal notwithstanding the verdict, the trial court rendered judgment of convic- tion in accordance with the verdict and plea and sen- tenced the defendant to a total effective sentence of thirty-eight years\u2019 imprisonment. This appeal followed. On appeal, the defendant claims that the trial court improperly denied his motion in limine because the victim\u2019s Internet searches were relevant to prove the state of mind of both the victim and the defendant under the principles discussed in State v. Miranda, supra, 176 Conn. 107, and were not, contrary to the trial court\u2019s conclusion, offered to establish the victim\u2019s violent character. The defendant renews his reliance on Com- monwealth v. Carey, supra, 463 Mass. 379\u201380, 392, in which the court upheld the admission of a criminal defendant\u2019s Internet searches about strangulation as probative evidence of his intent in a sexual assault and attempted murder case, in support of his argument that the victim\u2019s repeated Internet searches for weapons, made within the week before the fatal altercation and after their fights, \u2018\u2018 \u2018corroborat[e] and validat[e]\u2019 \u2019\u2019 the legitimacy of the victim\u2019s threat to the defendant, along with the defendant\u2019s fear of the victim. The defendant also contends that the trial court abused its discretion in declining to admit evidence of the searches as evi- dence of prior misconduct under \u00a7 4-5 (c) of the Con- necticut Code of Evidence. The defendant argues that the timing and voluminous nature of the searches estab- lish the victim\u2019s intent to arm and prepare himself for a confrontation with the defendant. The defendant fur- ther contends that these improper evidentiary rulings require reversal because they substantially swayed the jury\u2019s verdict. In response, the state contends that the trial court properly exercised its discretion to exclude the evi- dence because the victim\u2019s Internet searches were not admissible evidence of his violent character for either of the two purposes permitted by \u00a7 4-4 (a) (2) of the Connecticut Code of Evidence, namely, to establish (1) the defendant\u2019s state of mind or apprehensions about the victim\u2019s violent character, or (2) that the victim was the initial aggressor. Specifically, the state contends that the evidence was not admissible for the first pur- pose because the defendant was not aware of the searches at the time of the altercation, which renders Commonwealth v. Carey, supra, 463 Mass. 378, distin- guishable, and it was not admissible for the second purpose because our precedent allows only the admis- sion of specific violent acts that result in criminal con- victions. See, e.g., State v. Osimanti, 299 Conn. 1, 14, 6 A.3d 790 (2010). Citing State v. Byrd, 136 Conn. App. 391, 397, 44 A.3d 897, cert. denied, 306 Conn. 906, 52 A.3d 732 (2012), which held that a conviction for crimi- nal possession of a firearm was not a crime of violence admissible to show a murder victim\u2019s violent character, the state posits, \u2018\u2018a fortiori, that a mere search for weap- ons on eBay could not have had any meaningful bearing on the victim\u2019s state of mind at the time of the fatal altercation, let alone the reasonableness of the defen- dant\u2019s fear of the victim when the defendant, who was ignorant of the victim\u2019s Internet activity, approached him.\u2019\u2019 (Emphasis omitted.) The state also argues that, even if the evidence were relevant, including as uncharged misconduct under \u00a7 4-5 (c) of the Connecti- cut Code of Evidence, the trial court reasonably deter- mined that any probative value was outweighed by the danger of unfair prejudice. We agree with the state and conclude that the trial court did not abuse its discretion in declining to admit evidence of the victim\u2019s Internet searches for weapons. \u2018\u2018Relevant evidence is evidence that has a logical ten- dency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the exis- tence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . The trial court has wide discretion to determine the relevancy of evidence and [e]very reasonable pre- sumption should be made in favor of the correctness of the court\u2019s ruling in determining whether there has been an abuse of discretion.\u2019\u2019 (Citations omitted; inter- nal quotation marks omitted.) State v. Best, 337 Conn. 312, 317\u201318, 253 A.3d 458 (2020); see Conn. Code Evid. \u00a7 4-1. This discretion extends to the trial court\u2019s applica- tion of \u00a7\u00a7 4-4 and 4-5 of the Connecticut Code of Evi- dence. See, e.g., State v. Jordan, 329 Conn. 272, 279\u201380, 186 A.3d 1 (2018); State v. Osimanti, supra, 299 Conn. 13; see also State v. Saucier, 283 Conn. 207, 218\u201320, 926 A.2d 633 (2007) (considering function of trial court\u2019s discretion and contrasting standards of review applica- ble to interpreting and applying Code of Evidence). We begin with the defendant\u2019s reliance on the Massa- chusetts\u2019 Supreme Judicial Court\u2019s decision in Com- monwealth v. Carey, supra, 463 Mass. 378, in support of his argument that the trial court improperly cabined its analysis to the strictures of \u00a7 4-4 (a) of the Connecti- cut Code of Evidence as they pertain to proving a vic- tim\u2019s violent character, rather than focusing on the rele- vance of the Internet search histories to proving the victim\u2019s state of mind at the time of the fatal altercation. In Carey, the Massachusetts court held that, despite \u2018\u2018scant evidence establishing a temporal connection between the defendant\u2019s consumption of these materi- als and the incident at issue,\u2019\u2019 photographs and videos of strangulations, as well as search histories of strangu- lation murders, found on the defendant\u2019s computer were \u2018\u2018highly probative of his intent and motive, as well as the victim\u2019s alleged consent\u2019\u2019 in an attempted murder case in which the defendant\u2019s specific intent to kill was \u2018\u2018the principal issue at trial\u2019\u2019 when he \u2018\u2018alleged that he . . . strangled the victim [only] as a means toward sex- ual gratification and without any intent to do her harm.\u2019\u201910 Id., 388. The defendant contends that the search history evidence at issue in this case is even more probative than that in Carey, given its temporal relationship to the altercations at issue. We disagree. The defendant\u2019s reliance on Carey is an attempt to thread the eye of a needle created by well established principles of Connecticut case law, particularly our leading decision in State v. Miranda, supra, 176 Conn. 109\u201311, which are now embodied in \u00a7 4-4 (a) (2) and (b) of the Connecticut Code of Evidence. \u2018\u2018In a homicide or criminal assault case, an accused may introduce evi- dence of the violent, dangerous or turbulent character of the victim to show that the accused had reason to fear serious harm, after laying a proper foundation by adducing evidence that he acted in self-defense and that he was aware of the victim\u2019s violent character.11 . . . [W]e joined a majority of courts when we expanded this rule to allow the accused to introduce evidence of the victim\u2019s violent character to prove that the victim was the aggressor, regardless of whether such character evidence had been communicated to the accused prior to the homicide. . . . In Miranda, we determined that the victim\u2019s violent character could be proved by reputation testimony, by opinion testi- mony, or by evidence of the [victim\u2019s] convictions for crimes of violence, irrespective of whether the accused knew of the [victim\u2019s] violent character or of the particu- lar evidence adduced at the time of the death-dealing encounter. . . . This court has not, however, departed from [its] precedent that specific violent acts not resulting in a criminal conviction may not be introduced to prove the victim\u2019s violent character. . . . This is because the admission of such evidence, other than convictions, has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial.\u2019\u201912 (Citations omitted; footnote added; footnotes omitted; internal quotation marks omitted.) State v. Osimanti, supra, 299 Conn. 13\u201314; see State v. Jordan, supra, 329 Conn. 283 (trial court has discretion to admit convictions arising from \u2018\u2018a sub- sequent act that is close in time and highly similar to the charged incident\u2019\u2019 to prove that victim was initial aggressor but not to prove defendant\u2019s state of mind); State v. Whitford, supra, 260 Conn. 636\u201340 (trial court properly declined to admit testimony that victim, when intoxicated, had attempted to strangle two people but properly admitted reputation testimony that victim was violent person when intoxicated); State v. Carter, 228 Conn. 412, 425\u201326, 636 A.2d 821 (1994) (trial court abused its discretion in not permitting defendant to reopen evidence to introduce evidence that victim had assault and narcotics trafficking convictions \u2018\u2018close in time to the deadly encounter between the victim and the defendant\u2019\u2019 because they \u2018\u2018would have provided objective corroboration of the defendant\u2019s claim that the victim was a person of violent character who had acted as the initial aggressor\u2019\u2019); State v. Smith, 222 Conn. 1, 19\u201320, 608 A.2d 63 (The trial court properly declined to admit evidence of the information or arrest warrant charging the deceased victim with assault because \u2018\u2018[a] conviction is indisputable evidence of the commission of a violent crime. On the contrary, a charg- ing document is a mere accusation, not a settled disposi- tion, and, as such, would invite dispute over collateral issues at trial.\u2019\u2019), cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Collins, 68 Conn. App. 828, 838, 793 A.2d 1160 (\u2018\u2018in the case of self-defense, eyewitness testimony of prior specific acts of violence perpetrated on a defendant by his or her victim is admis- sible to show the state of mind of the defendant at the time of the killing\u2019\u2019), cert. denied, 260 Conn. 941, 835 A.2d 58 (2002); State v. Carter, 48 Conn. App. 755, 762\u2013 64, 713 A.2d 255 (trial court properly precluded defen- dant\u2019s mother from testifying about whether she had seen victim selling drugs outside her home or with weapon, while permitting defendant to testify about violent acts that victim had committed against him per- sonally but not against others), cert. denied, 247 Conn. 901, 719 A.2d 905 (1998); State v. Knighton, 7 Conn. App. 223, 228\u201329, 508 A.2d 772 (1986) (following Miranda and concluding that police officer or defen- dant could not testify about specific acts of violence allegedly committed by victim \u2018\u2018to show the victim\u2019s propensity for violence, and [the defendant\u2019s] own testi- mony should have been admitted to show his state of mind when he confronted [the victim]\u2019\u2019). \u2018\u2018[N]otwithstanding this general rule of admissibility,\u2019\u2019 under \u00a7 4-4 (b) of the Connecticut Code of Evidence, \u2018\u2018we have held that the defendant is not authorized to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case the probative value of the evi- dence of certain convictions rests in the sound discre- tion of the trial court.\u2019\u2019 (Internal quotation marks omit- ted.) State v. Osimanti, supra, 299 Conn. 15; see State v. Byrd, supra, 136 Conn. App. 397 (trial court did not abuse its discretion in excluding evidence of victim\u2019s conviction for criminal possession of firearm because it showed that \u2018\u2018the victim possessed the gun solely as collateral [for a loan of money] and . . . did not intend to use the gun in a violent manner\u2019\u2019). Although the defendant contends that he did not offer the Internet search evidence to establish the victim\u2019s character pursuant to \u00a7 4-4 of the Connecticut Code of Evidence, the case law embodied in that provision nevertheless continues to inform the extent to which that evidence is admissible under the more general prin- ciples of relevance relied on by the defendant. These cases reflect a \u2018\u2018narrow\u2019\u2019 exception to the rule followed by the \u2018\u2018vast majority\u2019\u2019 of jurisdictions and the Federal Rules of Evidence, which \u2018\u2018prohibit the use of specific acts to prove character in this context. . . . Courts have cited the same concerns about inquiry into poten- tially confusing collateral matters . . . unfair surprise to the party against whom the evidence is offered . . . and prejudice to the prosecution if the deceased is shown to have been a detestable person . . . .\u2019\u2019 (Cita- tions omitted.) State v. Smith, supra, 222 Conn. 18\u201319. This is particularly so given that the Connecticut Code of Evidence is, in essence, a codification of the com- mon-law standards that \u2018\u2018was not intended to displace, supplant or supersede common-law evidentiary rules or their development via common-law adjudication . . . .\u2019\u2019 State v. DeJesus, 288 Conn. 418, 455, 953 A.2d 45 (2008); see T. Bishop, \u2018\u2018Evidence Rulemaking: Balancing the Separation of Powers,\u2019\u2019 43 Conn. L. Rev. 265, 298\u2013 301 (2010). Put differently, the overall relevance deter- mination remains the same, regardless of a party\u2019s claim that it is not attempting to shoehorn evidence into or beyond the strictures of a particular rule of evidence, such as the restrictions embodied in \u00a7 4-4 (b) of the Connecticut Code of Evidence. Cf. State v. Whitford, supra, 260 Conn. 640 (rejecting argument that would admit victim\u2019s prior bad acts under \u00a7 4-5 (c) of Connecti- cut Code of Evidence in manner that would \u2018\u2018nullify\u2019\u2019 or evade \u2018\u2018limitation\u2019\u2019 of \u00a7 4-4 (b), which \u2018\u2018reflects a conscious choice by the code\u2019s drafters to exclude spe- cific acts evidence as permissible proof, consonant with [Connecticut] case law\u2019\u2019). Accordingly, we agree with the trial court\u2019s determi- nation in the present case that the defendant\u2019s lack of awareness of the victim\u2019s Internet searches for weapons rendered them irrelevant for purposes of establishing the defendant\u2019s state of mind during the encounter. This is because the well established subjective-objective standard that governs self-defense involving the use of deadly physical force under \u00a7 53a-19 (a) requires the jury to consider the reasonableness of the force used while \u2018\u2018view[ing] the situation from the perspective of the defendant.\u2019\u2019 (Internal quotation marks omitted.) State v. O\u2019Bryan, supra, 318 Conn. 632; see footnote 6 of this opinion. The searches are rendered even less relevant, given that the defendant does not claim that they, in and of themselves, amounted to a crime of violence for purposes of \u00a7 4-4 (a). The defendant argues further that the Internet searches constituted a prior act of misconduct relevant to establish the victim\u2019s state of mind under \u00a7 4-5 (c)13 of the Connecticut Code of Evidence.14 We disagree. Even if we assume, without deciding, that the victim\u2019s otherwise legal Internet searches were themselves evi- dence of prior misconduct admissible to prove his state of mind pursuant to \u00a7 4-5 (c), this court\u2019s decision in State v. Whitford, supra, 260 Conn. 610, squarely fore- closes the defendant\u2019s efforts to use prior misconduct evidence under \u00a7 4-5 (c) to evade the strictures of \u00a7 4- 4 and the well established case law that it embodies. In Whitford, the defendant invoked \u00a7 4-5 (c) and \u2018\u2018sought to introduce the testimony of three witnesses that the victim, when drunk, had violently attacked and attempted to strangle them\u2019\u2019 in support of his claim of self-defense, as \u2018\u2018relevant to his assertion that the victim was the aggressor in their altercation because it would tend to prove both the victim\u2019s character for violence and his specific habit of strangling people while he was intoxi- cated.\u2019\u2019 Id., 635. The trial court declined to admit evi- dence of the specific acts and limited the testimony to only \u2018\u2018knowledge and opinion of the victim\u2019s violent character.\u2019\u2019 Id. After reviewing the body of case law governing the admission of evidence of victims\u2019 violent acts in self-defense cases; see id., 636\u201337; this court concluded in Whitford that the \u2018\u2018defendant\u2019s assertion that the proffered testimony was admissible pursuant to \u00a7 4-5 (c) . . . fail[ed] because it effectively would read \u00a7 4-4 (b) out of the code. . . . [Section] 4-4 (b) specifically limits the methods of proving the victim\u2019s character in a homicide or criminal assault prosecution to reputation or opinion testimony, or evidence of prior convictions for violent crimes. This limitation reflects a conscious choice by the code\u2019s drafters to exclude specific acts evidence as permissible proof, consonant with our case law. Were we to adopt the defendant\u2019s argument and read \u00a7 4-5 (c) to permit what \u00a7 4-4 (b) forbids, we would nullify this intentional exclusion of specific acts evidence . . . .\u2019\u201915 Id., 640. The court emphasized in Whitford that \u00a7 4-4 embodies our case law on this point, notably State v. Miranda, supra, 176 Conn. 107. See State v. Whitford, supra, 638\u201339. Accord- ingly, the court determined that, \u2018\u2018[b]ecause \u00a7 4-4 of the code explicitly provides for the admissibility of evi- dence concerning the victim\u2019s violent character under certain specified circumstances, it trumps the more gen- eral rules set forth in \u00a7 4-5 regarding the admissibility of specific acts. Thus, \u00a7 4-5 (c) does not apply to evi- dence of the victim\u2019s violent character in homicide or criminal assault cases, which is specifically covered by \u00a7 4-4, but rather applies to evidence admitted to prove the issues enumerated in \u00a7 4-5 (b).\u2019\u2019 Id., 641; see id., 642\u201343 (rejecting defendant\u2019s claim that specific acts preclusion does not apply to habit evidence offered pursuant to \u00a7 4-6 of Connecticut Code of Evidence). We therefore conclude that the trial court did not abuse its discretion in declining to admit into evidence the victim\u2019s Internet searches for weapons. The judgment is affirmed. In this opinion the other justices concurred. * October 22, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. The defendant appeals directly to this court pursuant to General Statutes \u00a7 51-199 (b) (3). Section 4-5 of the Connecticut Code of Evidence provides in relevant part: \u2018\u2018(a) General rule. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character, propensity, or criminal tendencies of that person except as provided in subsection (b). *** \u2018\u2018(c) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . .\u2019\u2019 At trial, the state\u2019s theory of the case was that the defendant had \u2018\u2018a bruised ego\u2019\u2019 from losing the fights earlier in the week that had led him to \u2018\u2018attack\u2019\u2019 the victim. The defendant argued that, although he had not been aware of the victim\u2019s Internet search for weapons, the evidence could be \u2018\u2018highly relevant in helping the jury to determine whether the defendant\u2019s story of self-defense [was] truthful. The jury\u2019s knowledge that [the victim] was conducting searches for various types of weapons adds significant credence to the claim that his escalating and focused hostility toward the defendant culminated in his aggressive conduct on [October 7, 2017].\u2019\u2019 The defendant also argued that, not only was the search evidence relevant to the victim\u2019s intent and state of mind, but it would also corroborate the testimony of a defense witness, who was anticipated to\u2014and did\u2014reveal that the victim had threat- ened to kill the defendant. Section 4-4 of the Connecticut Code of Evidence provides in relevant part: \u2018\u2018(a) Character evidence generally. Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible: *** \u2018\u2018(2) Character of the victim in a homicide or criminal assault case. Evi- dence offered by an accused in a homicide or criminal assault case, after laying a foundation that the accused acted in self-defense, of the violent character of the victim to prove that the victim was the aggressor, or by the prosecution to rebut such evidence introduced by the accused. *** \u2018\u2018(b) Methods of proof. In all cases in which evidence of a trait of character of a person is admissible to prove that the person acted in conformity with the character trait, proof may be made by testimony as to reputation or in the form of an opinion. In cases in which the accused in a homicide or criminal assault case may introduce evidence of the violent character of the victim, the victim\u2019s character may also be proved by evidence of the victim\u2019s conviction of a crime of violence. \u2018\u2018(c) Specific instances of conduct on cross-examination of a character witness. A character witness may be asked, in good faith, on cross-examina- tion about specific instances of conduct relevant to the trait of character to which the witness testified to test the basis of the witness\u2019 opinion.\u2019\u2019 (Emphasis added.) When a defendant raises a claim of self-defense, \u00a7 53a-19 (a) requires the state to disprove beyond a reasonable doubt that the defendant \u2018\u2018reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack. . . . We repeatedly have indicated that the test a jury must apply in analyzing the second requirement, i.e., that the defendant reasonably believed that deadly force, as opposed to some lesser degree of force, was necessary to repel the victim\u2019s alleged attack, is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant\u2019s belief ultimately must be found to be reasonable.\u2019\u2019 (Internal quotation marks omitted.) State v. O\u2019Bryan, 318 Conn. 621, 632, 123 A.3d 398 (2015). Citing the Appellate Court\u2019s decision in State v. Byrd, 136 Conn. App. 391, 397, 44 A.3d 897, cert. denied, 306 Conn. 906, 52 A.3d 732 (2012), which held that a victim\u2019s conviction of criminal possession of a firearm by itself is not a crime of violence, the trial court further stated: \u2018\u2018It\u2019s hard to say, under these circumstances, [that] a search on eBay, [which is] not even a conviction, would be relevant to the [victim\u2019s] state of mind when the defendant was not even aware of it.\u2019\u2019 The trial court subsequently denied the defendant\u2019s motion to reconsider the denial of the motion in limine. We note the trial court, Clifford, J., accepted the defendant\u2019s guilty plea to part B of the information. All other references in this opinion to the trial court are to Judge Vitale, who presided over the defendant\u2019s trial and sentencing, and made the evidentiary ruling at issue in this appeal. Our research has revealed other decisions, consistent with Carey, hold- ing that Internet search histories may furnish relevant circumstantial evi- dence of an actor\u2019s state of mind. See, e.g., Commonwealth v. Keown, 478 Mass. 232, 245\u201347, 84 N.E.3d 820 (2017) (concluding that trial court properly admitted searches on defendant\u2019s computer for information about poison and antifreeze, as well as victim\u2019s Internet history, including research about her kidney illness and doll-making hobby and her e-mails to friends and acquaintances, to show her \u2018\u2018positive outlook\u2019\u2019 on her health in week prior her final hospitalization, as relevant to disprove defendant\u2019s theory at murder trial that victim had committed suicide), cert. denied, U.S. , 138 S. Ct. 1038, 200 L. Ed. 2d 292 (2018); Julio Garcia v. State, 300 So. 3d 945, 974 (Miss. 2020) (Internet searches on defendant\u2019s video game console for sexually explicit and violent phrases, some of which pertained to young females, conducted \u2018\u2018just days\u2019\u2019 before sexual battery and murder of young child were relevant to show motive, opportunity, or intent and were not unduly prejudicial in case involving sexual battery and murder of young child), cert. denied, U.S. , 141 S. Ct. 2706, 210 L. Ed. 2d 874 (2021). Case law from other jurisdictions highlights that the key to the introduc- tion of evidence of the specific bad acts of a victim in a self-defense case is the defendant\u2019s knowledge of those acts. See, e.g., Richardson v. United States, 98 A.3d 178, 187\u201389 (D.C. 2014) (trial court improperly excluded evidence of defendant\u2019s belief that drug dealer victim knew that defendant had talked to police, which resulted in raid of victim\u2019s apartment, because evidence was relevant to claim of self-defense and to prove that victim was first aggressor); State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016) (evidence that victim had attempted to rape woman was not relevant to defendant\u2019s claim at murder trial that he killed victim in defense of his wife because there was no evidence that defendant knew of that attempted rape, meaning \u2018\u2018the record lack[ed] any evidence establishing a nexus between the alleged prior bad act of the victim . . . and the defendant\u2019s state of mind at the time the defendant claims to have acted in self-defense or defense of another\u2019\u2019). In Miranda, this court rejected the approach taken in its earlier decision in State v. Padula, 106 Conn. 454, 138 A. 456 (1927), which did not permit the admission of character evidence to prove that the decedent was the aggressor on the ground that \u2018\u2018the result of an unlimited application of such a rule would be to interject the character of the deceased with the resulting temptation \u2018to measure the guilt of the accused by the deserts of the victim\u2019 into all such cases.\u2019\u2019 Id., 459; see State v. Miranda, supra, 176 Conn. 110. While acknowledging in Miranda that \u2018\u2018[t]here is always the risk that the jury may be unduly diverted and confused by collateral matters such as character,\u2019\u2019 the court observed that \u2018\u2018the sound discretion of the court is relied [on] to focus the jury\u2019s attention on the material issues in the trial.\u2019\u2019 State v. Miranda, supra, 110\u201311. \u2018\u2018We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in \u00a7 4- 5 (c) of the Connecticut Code of Evidence]. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court\u2019s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court\u2019s ruling. . . . \u2018\u2018In determining whether the prejudicial effect of otherwise relevant evi- dence outweighs its probative value, we consider whether: (1) . . . the facts offered may unduly arouse the [jurors\u2019] emotions, hostility or sympathy, (2) . . . the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) . . . the evidence offered and the counterproof will consume an undue amount of time, and (4) . . . the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.\u2019\u2019 (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Raynor, 337 Conn. 527, 562, 254 A.3d 874 (2020); see footnote 2 of this opinion (text of \u00a7 4-5 of Connecticut Code of Evidence). The state argues that the defendant did not preserve his claim that the victim\u2019s Internet searches were not acts of prior misconduct relevant to prove the victim\u2019s state of mind for purposes of \u00a7 4-5 of the Connecticut Code of Evidence. In response, the defendant contends in his reply brief that he properly preserved his uncharged misconduct claim, despite the lack of an \u2018\u2018express\u2019\u2019 citation to \u00a7 4-5 (a) in his motion in limine, given his citations therein to common-law uncharged misconduct case law, such as State v. Mooney, 218 Conn. 85, 126\u201327, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The defendant emphasizes that the record demonstrates that the prosecutor, in responding to the motion, understood that the defendant was advancing a claim that the searches were admissible as uncharged misconduct, rather than \u2018\u2018pigeonholing\u2019\u2019 it as a character claim under \u00a7 4-4. Although the defendant did not specifically cite \u00a7 4-5 of the Connecticut Code of Evidence before the trial court, our review of the record indicates that the defendant\u2019s arguments repeatedly emphasized the use of the searches to prove the victim\u2019s state of mind in juxtaposition with the limita- tions imposed by existing case law reflected in \u00a7 4-4. We conclude, therefore, that these arguments \u2018\u2018functionally preserved\u2019\u2019 this uncharged misconduct claim for purposes of appeal, eliminating any concerns that the trial court was not on notice of the argument. State v. Best, supra, 337 Conn. 317 n.1. This court also observed in Whitford that the defendant\u2019s claim that the specific acts evidence was admissible pursuant to \u00a7 4-5 (c) of the Connecticut Code of Evidence \u2018\u2018ignores that portion of \u00a7 1-2 of the code and its commen- tary . . . [that] indicates that the code was intended only to codify the common law. If, as the defendant suggests, we were to read \u00a7 4-5 (c) as permitting introduction of evidence regarding a victim\u2019s specific violent acts, we would be interpreting the code in a manner that would effectuate a substantive change in the law. Because such a result would be contrary to the express intention of the code\u2019s drafters, we reject it.\u2019\u2019 State v. Whitford, supra, 260 Conn. 639\u201340. We note that this limited understanding of this court\u2019s authority vis-a\u0300-vis the code was later overruled in State v. DeJesus, supra, 288 Conn. 418, in which we concluded that the Connecticut Code of Evidence \u2018\u2018was not intended to displace, supplant or supersede common- law evidentiary rules or their development via common-law adjudication, but, rather, simply was intended to function as a comprehensive and authori- tative restatement of evidentiary law for the ease and convenience of the legal community.\u2019\u2019 Id., 455; see id. (\u2018\u2018the judges of the Superior Court did not intend for the [Code of Evidence Oversight] [C]ommittee to recommend substantive changes to the common-law evidentiary rules codified in the code, but, rather, intended for the committee simply to recommend revisions reflecting common-law developments in evidentiary law, clarifications of the code to resolve ambiguities and additions to the code in the absence of governing common-law rules\u2019\u2019); see also id., 460 (\u2018\u2018[T]he evidentiary rules articulated [in the code] are subject to change, modification, alteration or amendment by this court in the exercise of its constitutional and common- law adjudicative authority. To reiterate, we conclude that the code neither is, nor was intended to be, anything more than a concise, authoritative and, as the commentary to \u00a7 1-2 (a) of the code describes it, \u2018readily accessible body of rules to which the legal profession conveniently may refer.\u2019 \u2019\u2019 (Foot- note omitted.))."], "id": "e5d4bb2e-1960-430f-b5cf-54677c7af06f", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Jeremiah J. Leffew and his wife, Micheline N. Leffew, were convicted following a jury trial in the Arenac Circuit Court of first-degree home invasion and third-degree home invasion, respectively. Defendants went to the home of Michael Porter with Jeremiah\u2019s mother, Donna Knezevich, to pick up Lisa Seibert, Knezevich\u2019s partner. Seibert had been staying with Porter following an argument between Seibert and Knezevich, but the two had reconciled and Seibert had asked to be picked up and driven home. When defendants and Knezevich arrived at Porter\u2019s residence, Porter briefly answered the door before closing it; Seibert did not leave. Defendants and Porter disagreed as to whether Porter had prevented Seibert from leaving the home. Defendants testified that Porter had dragged Seibert into a room in the back of the home and forcibly held her down in a chair, while Porter claimed that he had picked Seibert up and put her in a chair to help her get her bearings after she had become unsteady on her feet. Both defendants testified that they heard Seibert scream for help and that they had then entered the home without Porter\u2019s permission. Micheline had entered the home first after kicking in the back door, and she was immediately hit over the head with a glass ashtray by Porter, causing bleeding and a seizure. Jeremiah entered the home after seeing his injured wife on the floor and got into a physical altercation with Porter. The fight eventually ended when, according to Jeremiah, he threatened Porter with a knife while pleading with him to let his family go; or, according to Porter, the fight ended when Knezevich called out to Jeremiah, after Jeremiah had struck Porter with a knife and cut Porter\u2019s wrist. Defendants\u2019 attorneys both argued that defendants\u2019 intrusions into Porter\u2019s home were justified because of their reasonable fear that Seibert was in imminent danger, but neither attorney requested a jury instruction on . Defendants appealed, and the Court of Appeals consolidated defendants\u2019 cases. The Court of Appeals, BOONSTRA, P.J., and TUKEL, J. (LETICA, J., concurring in part and dissenting in part), affirmed defendants\u2019 convictions. Defendants sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the applications or take other action. The Supreme Court directed the parties to file supplemental briefs addressing whether the defense-of-others justification was applicable to defendants\u2019 charges and whether the defense attorneys were ineffective for failing to request an instruction on defense of others. 506 Mich 1031 (2020). In a unanimous opinion by Chief Justice MCCORMACK, the Supreme Court, in lieu of granting leave to appeal, held :"], "id": "76a8dd0d-8195-44f2-8a8e-3800dd183242", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The section is broad and covers mistake of fact for the entire article 35, including . By eliminating mistake of fact from the defense of justification, the Legislature overruled Young (supra). It could not have been the intent of the Legislature to have the word \"actor\u201d in Penal Law \u00a7 35.15 (1) (b) refer to the person being defended."], "id": "82a25f11-ea6a-41e1-9ce6-329711a1d73e", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Moreover, Anthony contends he had a right to defend Brandi against Chief Pearsall. We note Anthony also asserted this argument at trial, requesting a jury instruction for the . However, the trial court rejected the instruction, stating \u201cthe issue of what\u2019s lawful is whether it was a lawful arrest or an otherwise lawful act by the officer[,]\u201d and not in the first instance whether Anthony\u2019s conduct was lawful. A claim of \u201cdefense of others first requires that a defendant has acted in response to an assault.\u201d Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999).2 \u201cAn arrest can be an assault if the arrest is illegal.\u201d Id. As stated, the evidence"], "id": "77e9b778-2a92-43d4-8228-8f519ae38b93", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["What impact did the 1968 amendment have on the relationship between the justification sections and the penal sanctions against reckless and negligent conduct? Prior to 1968 the statutory provisions were in essential harmony. Civilians were limited in the use of deadly physical force to self-defense or . Therefore, civilians could not use such force solely in apprehending an individual or preventing an escape and thereby avoid criminal responsibility, even if the conduct was reckless or negligent rather than deliberate. Peace officers could use deadly physical force to make certain arrests or prevent certain escapes, but were liable for reckless or criminally negligent conduct with respect to innocent persons."], "id": "b929b1b2-5086-4c01-a9f8-10863de25ebc", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["On August 24, 2016, Taylor filed a motion to dismiss the indictment, claiming that he was immune from prosecution under the provisions of KRS2 503.085(1), which provide immunity to persons who use force in self-defense or in -- unless there is probable cause to believe that the use of force was unlawful. Taylor argued that the facts and circumstances of the case did not establish probable cause to believe that he acted unlawfully in defending himself. Following a hearing, the trial court disagreed and denied the motion."], "id": "22530d4c-7a90-4bad-8dc1-633fde9ff3ce", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["[\u00b68] Bolinske Sr. argues the district court should have given his proposed instructions on excuse, mistake of law, , force to protect, and coercion. In reviewing the jury instructions as a whole, they fairly and adequately instructed the jury of the applicable law. Bolinske Sr.\u2019s proposed instructions pertained to inapplicable defenses. Thus, the district court did not err in refusing to give Bolinske Sr.\u2019s proposed jury instructions."], "id": "5456b0fc-963f-45e0-8473-ec48226e9fb5", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["1. Under the defense-of-others doctrine, a person may use force in defense of another when they reasonably believe that the other is in immediate danger of harm and force is necessary to prevent the harm; deadly force is permissible to repel an attack that reasonably appears deadly. Although the Court of Appeals expressed skepticism that , which was traditionally used to excuse assaultive conduct, was available as a defense to a nonassaultive offense, Michigan courts have recognized the application of defense of others to nonassaultive crimes, including in People v Dupree, 486 Mich 693 (2010). Dupree held that self-defense was applicable to the nonassaultive offense of being a felon in possession of a firearm. The Court of Appeals distinguished Dupree on the basis that it was decided before the effective date of the Self- Defense Act (SDA), MCL 780.971 et seq. But this analysis misread Dupree and the SDA. The act expanded the ability to invoke the affirmative defenses of self-defense and defense of others. Section 4 of the act, MCL 780.974, specifically preserves the common-law right of an individual to use force in self-defense or in defense of another person, and \u00a7 2, MCL 780.792, removes the traditional common-law duty to retreat so long as the person asserting the affirmative defense was not committing a crime and had the legal right to be where they were when they used force. Although \u00a7 2 could appear to preclude defendants\u2019 rights to assert defense of others because they entered Porter\u2019s home without his permission, \u00a7 2 was not relevant here because it is a statutory precondition to standing one\u2019s ground under the SDA, which is a right that defendants did not invoke. The applicability of defense of others must be determined on the particular facts of each case, not on the charges brought by the prosecution, and defense of others was available in this case to defendants in response to the nonassaultive home-invasion charges."], "id": "4ea1d791-f1cd-41ac-8326-4bf2c81dc4a3", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Although Bembeneck testified that he hit Brian because he saw Brian hit Rosinski in the face, the prosecution provided ample evidence to disprove Bembeneck\u2019s claim of . Brian testified that at the time he was struck, he had his cell phone out and had his head down because he was attempting to contact law enforcement. Furthermore, Brian was not armed with any sort of weapon when Bembeneck assaulted him. See Stevens, 306 Mich App at 630. The jury was able to view photographs of the wounds on Brian\u2019s head. To the extent that Bembeneck argues that the jury simply should not have believed the prosecutor\u2019s version of the events and should have concluded that he struck Brian to defend Rosinski, this Court resolves all conflicts of the evidence in favor of the prosecution when the sufficiency of the evidence is challenged. People v Harrison, 283 Mich App 374, 377-378; 768 NW2d 98 (2009). We also do not second-guess jury determinations regarding the weight of the evidence or the credibility of the witnesses. Unger, 278 Mich App at 222. Thus, we defer to the jury\u2019s determination that Bembeneck did not act in Rosinski\u2019s defense and conclude that the prosecutor presented sufficient evidence to support Bembeneck\u2019s conviction of felonious assault as to Brian."], "id": "fc5f0bf7-7b39-4c47-b872-b6e81e0fef84", "sub_label": "US_Terminology"} {"obj_label": "defense of others", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["3. Error does not result from the omission of a jury instruction as long as the instructions as a whole cover the substance of the missing instruction. Micheline\u2019s jury was instructed that it could only convict her if it found that she had destroyed Porter\u2019s property \u201cknowing that it was wrong, without just cause or excuse.\u201d The Court of Appeals concluded that the lack of a defense- of-others instruction did not prejudice Micheline because the verdict indicated that the jury rejected the theory that she was justified in her actions and a defense-of-others instruction would not have altered the jury\u2019s conclusion. However, if defense counsel had requested a defense-of-others instruction, the trial court would have explained to the jury, in part, that if Micheline had acted in lawful , her actions were justified and she was not guilty of home invasion. Further, the \u201cwithout just cause or excuse\u201d language in the instruction for malicious destruction of property offered no guidance about what constituted \u201cjust cause or excuse\u201d and was inadequate to explain why Micheline\u2019s conduct could be excused. The defense-of-others instruction would have explained to the jury that the circumstances described by Micheline were defined as just cause under the law, and the jury could then have decided whether the prosecution proved beyond a reasonable doubt that Micheline\u2019s belief that her conduct was necessary to protect Seibert was not reasonable. A defense-of-others instruction also would have provided jurors a framework for how to judge Micheline\u2019s conduct given the differing accounts of the incident. Specifically, the instruction would have explained that the jury could consider how the circumstances had appeared to Micheline at the time of the incident and that as long as her belief was reasonable and honest, it did not matter if Seibert had not, in fact, been facing imminent, unlawful force. There was a reasonable probability that the jurors concluded that Seibert was not in imminent danger without understanding that what was important was Micheline\u2019s perspective. Similarly, the instructions given to Jeremiah\u2019s jury for first-degree home invasion and felonious assault did not inform the jury that the law excused Jeremiah\u2019s conduct if he reasonably and honestly believed that Seibert or Micheline was in danger. This omission was prejudicial, and moreover, Jeremiah conceded the elements of the home-invasion charge on the basis of his argument that he was acting to protect others. If the jury had been told that the law supported his defense, a different outcome was reasonably probable."], "id": "92535486-5dde-48f1-9c1e-4d920241a38f", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The really most important question in this ease is, whether there was evidence against the accused sufficient to justify a conviction. He was convicted as . The evidence against him was purely circumstantial. We have examined it with great care, and have reached the conclusion that it was sufficient to justify the court in submitting the question of the prisoner\u2019s guilt to the jury."], "id": "0f623011-7ded-43d4-be65-9238468b728c", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["From the evidence it is clear that the only reasonable conclusion to be drawn is that Police Officers Wheelwright and Sorger conspired with the defendant not to arrest the woman referred to in the indictment as Jane Doe. In the criminal arrangement to aid the defendant in liberating this woman, these officers must be condemned as accomplices as a matter of law. Their misconduct brings them within the generally accepted test that \u201c To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an . To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime. Every act which may have a tendency to assist in the perpetration of the crime is not, of absolute necessity, criminal. Before it will have that effect it must have been done with the intention on the part of the actor that it shall aid in the commission of the crime.\u201d *208(People v. Zucker, 20 App. Div. 363, 365, 154 N. Y. 770; People v. Bright, 203 id. 73; People v. Sweeney, 213 id. 37; People v. Swersky, 216 id. 471; People v. Cohen, 223 id. 406; People v. Doyle, 107 Misc. Rep. 268.)"], "id": "bf9e41a1-ab65-4a90-9d4f-41d4cee1b79b", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It must be assumed that there was no unlawful dissection authorized or carried forward by the coroner (Rhodes v. Brant, 21 Hun, 1), and that the coroner had a discretion \u201c to determine whether any persons, and what persons, may be present besides the surgeons.\u201d (Crisfield v. Perine, 15 Hun, 202; S. C. affirmed, 81 N. Y., 622.) In that case it was said: \u201cNot even the jurors have a right to witness the examination. They are to be informed of what it discloses by the testimony of the surgeons.\u201d We do not understand that the trial judge indicated that there had been any unlawful *48dissection of tlie body of tlie deceased. Assuming, pursuant to section 29 of tlie Penal Code, that the defendant was a principal, or, as the law stood before the adoption of that section, an , it is claimed that she was guilty of the crime of body stealing, in that she induced or procured the coroner to commit that crime."], "id": "fbf3c046-9f90-4072-a93a-af59f7746430", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is also true that one does not become an by the mere approval of a crime. \u201c Enough must be shown to justify the inference that the offender has counseled or induced or encouraged the crime.\u201d (Penal Law, \u00a7 2; People v. McGuire, 135 N. Y. 639, 642, 10 N. Y. Crim. 230; People v. Swersky, 216 id. 471, 476, 34 N. Y. Crim. 169.)"], "id": "617f34b4-306b-4448-b047-0d4cd2310031", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The purpose of section 2 of the Penal Law was to abolish the common-law distinction in felony cases between a principal and an . As to misdemeanors, it merely expresses the common-law rule in that type of crime \u2018as do sections 27 and 1936 of the Penal Law. (People v. Bliven, 112 N. Y. 79, 82-83.) It is significant to note that the offense of disorderly conduct was at one time a misdemeanor under our statutes. (Penal Code, \u00a7 675; L. 1881, ch. 676, as amdi) A portion of this Penal Code, section 675, is continued in our Penal Law, section 43, which provides that the commission of any lawful or wrongful act seriously disturbing or endangering the public peace is a misdemeanor. Disorderly conduct in the immediate view and presence of our State Legislature is also a misdemeanor. (Penal Law, \u00a7 1321.)"], "id": "f569dd66-a79e-4597-86a6-051d52b4e14a", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["It is undeniable that without Daniello\u2019s testimony the defendant\u2019s conviction would have been impossible. There is no attempt to dispute the fact that it was his confession that caused the conviction. He is repeatedly referred to in the district attorney\u2019s brief as the \u201c principal witness for the prosecution.\u201d He was regarded for all purposes of the trial as an accomplice both in law and in fact. The trial justice, in charging the jury, said: \u201c There is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. \u201d Daniello, having turned state\u2019s evidence, later, with consent of the district attorney, took a plea and was released, at the request of the district attorney, under a suspended \u2022 sentence. The rule as to who may be regarded as an accomplice is thus stated in People v. Sweeney, 213 N. Y. 37, 46: \u201c To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as a principal or as an . (People v. Zucker, 20 App. Div. 363, 365; affd., on opinion below, 154 N. Y. 770; People v. Bright, 203 N. Y. 73, 79.) \u201d Assuming, therefore, that Daniello was an accomplice within the meaning of the statute next referred to, what was the effect of such complicity upon his evidence? Section 399 of the Code of Criminal Procedure reads as follows: \u201cA conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.\u201d"], "id": "1a573ae2-402c-4b6f-a17f-32419fb4238d", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Where there is no conflict in the evidence or it is not susceptible of two different constructions, the court must determine as a matter of law whether a witness is or is not an accomplice; *246but, if the testimony raises a question of fact as to whether a witness is or is not an accomplice of the defendant in the commission of a crime, that question must be submitted to the jury for determination. People v. Sweeney, 213 N. Y. 37, 46. It is well settled that in order to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an . A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and a person who directly or indirectly counsels, induces or procures another to commit a crime is a principal, as defined by section 2 of the Penal Law, and is therefore an accomplice. The failure to disapprove or the mere approval of a crime after the event, or even before the event, may not of itself be sufficient to constitute one an accomplice. Some act or word of counsel, inducement, encouragement, participation or procurement must be added to passive acquiescence. It is clear that one cannot be made an accomplice from the mere fact that he is asked by another for a bribe, but his subsequent conduct upon the making of such suggestion may indicate that he is or is not an accomplice. As was stated by Justice McLaughlin in People v. Hyde, 156 App. Div. 618, at page 625: \u201c the person to whom the officer is made, if he rejects it, is clearly not an accomplice.\u201d If, on the other hand, he undertakes negotiations or by counsel or act furthers the suggestion, with intent to participate in the crime, he would be an accomplice."], "id": "1704b82f-11f3-4356-8ddd-bec6849757c1", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Before analyzing this evidence with a view to testing its sufficiency in the light of the quantum of the proof required and the points to which that proof must go, time will be saved by considering at the threshold whether or not on the felony charge Cartwright is to be considered as an accomplice of the defendant, for upon the decision of that question depends in part the quantum of proof, if any, required outside of the evidence of Cartwright. \u201c An accomplice is an associate in crime, a partner or partaker of the guilt, any participant in an offense.\u201d People v. Winant, 25 Misc. Rep. 361, 363, Dickey, J. \u201c One culpably implicated in the commission of the offense.\u201d People v. Vedder, 98 N. Y. 630. \u201c An accomplice is a person involved, either directly or in*120directly, in the commission of a crime. To render him such he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction.\u201d People v. Smith, 1 N. Y. Crim. Rep. 72, 75, Daniels, J. \u201c To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an . To warrant such a conviction the one accused must have taken part in the perpetration of or preparation for the crime, with intent to assist in the crime.\u201d People v. Zucker, 20 App. Div. 363."], "id": "91bc6881-c6b6-4bc9-b679-3eb5678201d2", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The particular crime for which defendant was indicted, and of which he was convicted, was the participation, as an , in the setting fire to a dwelling house, the actual incendiary being one Isadore Stein, a self-confessed \u201cfire bug,\u201d and the property intended to be consumed as a basis for a claim belonging to one Abraham Sliten."], "id": "1a8ccd87-0aa6-46ad-a37f-79cf561485b9", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["She admitted that after the perpetration of the crime she went to Boston and lived with Errico on the proceeds thereof. The district attorney claimed that such facts, after the event, did not make her a principal and an or an accomplice. He claimed that at best she was an accessory after the fact, and that she could not have been convicted, if indicted herself, for forgery or uttering."], "id": "5d05150b-914c-4bb9-9e4c-9d7a534c7137", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["That there have been cases in which accomplices have been thus admitted, is n\u00f3t denied; and that of the negro Jack, already i\u00f1enti\u00f3ned as one of them. Jack had been convicted as \u00e1 principal felon in the murder of one Richard Jennings, and before sentence, was called as\" a witness for the p\u00e9ople on the trial of David Conkling, as an of the same murder. No question arose as to his competency, nor does it distinctly appear from the printed report \u00f3f the trial, that any motion was made o\u00f1 the one side, or objection o\u00f1 the other, as to the character and circumstances uhdef which he Was called to testify. He seems to have be\u00e9n admitted by universal consent, and it was even proposed by the counsel for the prisoner that he should he examined without oath; but the learned judge who presided at the trial, directed him to be sworn-, and admonished him that he should n\u00f3t exp\u00e9c\u00ed or hope for pardon, though he should disclose all that he knew. But whether he were *permitted to testify by consent of all parties, or at the discretion of the court alone, is not material; he testified at all ev\u00e9nts in the charact\u00e9r of an accomplice, *751and it is very clear from the circumstances of the case that he was properly admitted. They were these : David Conkling and James Teed, who were both accessories before the fact in the murder of Richard Jennings, were brothers in law. Teed was the nephew of the deceased, and Conkling had married the sister of Teed. They had a controversy with Jennings respecting some land in which the latter prevailed ; and hence an animosity arose between the parties which eventuated in the murder of the uncle. To effect this, Jack, who was the servant of Conkling, was used as an instrument. He was ignorant and brutified, both from his condition and his habits. Having been supplied with liquor, to which he was addicted, and bribed by the promise of a large sum of money, and a safe conveyance out of the country beyond the pursuit of justice, he undertook and partially accomplished the work proposed to him by his master; and having shot the deceased without mortally wounding him, and having been present when Jennings was dispatched with a club by one Dunning, another of his associates, he was technically a principal in the murder, and as such was he indicted, tried and convicted; whilst Conkling, who, together with Teed, was a chief contriver and instigator of the whole affair, and directly interested in the destruction of Jennings, was technically an accessory: but the negro had not much more moral agency in the transaction than the musket in his hand; and his moral guilt, in comparison with that of his master, was scarcely greater. Under such circumstances he was called and admitted as a witness ; and on his testimony, corroborated by other evidence, was Conkling as well as Teed and Dunning convicted. The two latter were executed; the punishment of Conkling was commuted, by special act of the legislature, to imprisonment for life, and Jack was pardoned on the like condition. (L. N. Y. sess. 42, ch. 51.)"], "id": "c1d11eef-9550-49ca-b661-2b8c5264eec6", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Moreover, some sister states have partially or completely exempted a defendant from accessory liability where the person who the defendant assists is a close family member. (See, e.g., Mass. Gen. Laws, ch. 274, \u00a7 4 [\"Whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or , or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact.... The fact that the defendant is the husband or wife, or by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender, shall be a defence to a prosecution under this section\"]; Fla. Stat. \u00a7 777.03 [\"Any person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, who maintains or assists the principal or an accessory before the fact, or gives the offender any other aid, knowing that the offender had committed a crime and such crime was a third degree felony ... with the intent that the offender avoids or escapes detection, arrest, trial, or punishment, is an accessory after the fact\"].)9 California obviously has no similar exemption, and I do not argue it should. But we as a court should be especially wary of rendering a decision that makes this state a marked outlier, particularly when we have not considered all of the circumstances in which the more severe punishment of the accessory statute might be used in place of the established contempt statutory scheme (e.g., for a defendant who declines to incriminate his or her child when subpoenaed to testify)."], "id": "b2cdc84a-ab96-499c-87a5-751d2fbbe9e6", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["To constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as the principal or as an . To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with the intent to assist in the crime. (People v. Zucker, 20 App. Div. 363; affd., 154 N. Y. 770; People v. Cohen, 223 id. 406; People v. Reddy, 261 id. 479.) The witness Gleason, according to his own testimony, actually took part in this crime, for he himself, if we are to believe his testimony, carried the liquor in question from the defendant and handed it through the bars on the second floor of the county jail to a prisoner by the name of Rutledge. He is, *31therefore, an accomplice as a matter of law and his testimony must be corroborated."], "id": "899deaa8-5ac2-4d6a-98bc-cba987c4367b", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["I am wholly unable to subscribe to this proposition. Mancini, as will be seen, was indicted as a principal for the murder of Ferrazano, who was one of the six men whose death was the object of the conspiracy. If a conspiracy were entered into either for the purpose of effecting, or resulting in, the murder of six persons, and three of them were murdered by different members of the criminal conspiracy, all the conspirators are liable as principals for the commission of each murder. If it be true that a criminal conspiracy to commit these murders was formed and that Mancini aided or abetted in their commission, he was \u201c concerned in the commission \u201d of all the crimes, whether present or absent when each crime was committed. He thereby became an and liable asa\u201c principal \u201d even though he did not actually participate in any of the homicides. Penal Law, \u00a7 2."], "id": "f91d7ade-9248-4dde-9725-f3ac85c17f58", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["*499What is the test to he applied to determine whether a person is an accomplice ? The courts have repeatedly held that: \u201c To constitute an accomplice one must he so connected with a crime that at common law he might himself have been convicted either as the principal or as an .\u201d (People v. Zucker, 20 App. Div. 363, 365, 14 N. Y. Crim. 464, 154 N. Y. 770; People v. Sweeney, 213 id. 37, 46, 13 N. Y. Crim. 232; People v. Bright, 203 N. Y. 73, 79, 26 N. Y. Crim. 277; People v. Swersky, 216 id. 471, 476; People v. Hyde, 156 App. Div. 618, 625, 29 N. Y. Crim. 574.)"], "id": "e2acd1a5-149b-48da-9028-6de37b7f956a", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Under the authorities, to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an . \u201c He must be shown to have counseled, induced or encouraged the crime.\u201d (Judge O\u2019Brien, writing for the court in People v. Clougher, 246 N. Y. 106, at p. 111.) The question, therefore, presented is whether there is evidence in this record to sustain the conviction if Dell\u2019Osso had been convicted for bribing the defendant. The evidence shows what sort of man Dell\u2019Osso was, his relations with Ferrari and to the banks of Ferrari. Dell\u2019Osso had never worked for any of the banks belonging to *218Ferrari, nor for the City Trust Company. He had never been anything more than a small depositor in the banks of Ferrari. He was a faithful body servant of Ferrari, a messenger for him. At the times in question he Was superintendent of a building owned by Ferrari, where he had charge of the elevatormen, the payroll and occasionally ran the elevator. Dell\u2019Osso had visited the Harlem branch of the bank many times and a few times the Atlantic Avenue branch. He had an account in the Harlem branch, the average balance of which was about $500. He also had a very insignificant balance in his checking account at the City Trust Company and twice or more he had closed this account. Upon the evidence in this record no conviction of Dell\u2019Osso for counselling, inducing or encouraging the crime of bribing this defendant as Superintendent of Banks in return for an agreement not to examine the City Trust Company could be upheld, and hence he was not an accomplice."], "id": "ede4d797-d993-410e-88af-6a0a7542e2ea", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["The act imputed to Bush was no doubt an attempt to commit an offence. It is admitted that heSndeavored to make himself an \u25a0, and to become an accessory is, in itself, an gffence. A mere solicitation to commit a \u2018 felony is an \u00bfffence, whether it be actually committed or not. This was held in The King v. Higgins, (2 East, 5.) In the case before us there was more. The solicitation was followed by furnishing the instrument of mischief. The question of principal and accessory does not arise, as it would have done provided the crime had actually been committed. Had it been Committed, the attempt would have been merged in an actual felony\u2014a crime of another species. There would have been a principal arson by Kinney and an accessorial offence by Bush. The attempt of the latter was to have both crimes committed ; and the question bf principal and accessory not being in-the case, I see nothing against considering the matter in the light of the ordinary rule, that what a man does by anoth- ' er he .does by himself; in other words, the course taken to\" / commit the arson by the hand of Kinney, was the same thing, in legal effect, as if Bush had intended to set the fire personally, and had taken steps preparatory to that end. An attempt may ' be immediate\u2014an assault, for instance ; but it very commonly | means a remote effort, or indirect measure taken with intent to *136effect an object. An abundance of illustration will be found in The King v. Higgins, especially in the learned and copious arguments of the counsel. An approved writer on criminal law speaks of the act of solicitation in that case as belonging to the class of attempts. (1 Russ, on Cr. 49, Am. ed. of\u201936.)"], "id": "aada0600-59d3-49e6-a1cc-dbf0856840dd", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["As to the other appellants, the evidence of combination is overwhelming. The testimony of Hunter, as to the declaration of Griffeth, that he was afraid the respondent would return before the day of sale, and get the proceedings stayed, receives strong and ample confirmation from Griffeth\u2019s whole subsequent conduct, and from all the circumstances in the case. It is the first glimmering we discover of the spirit and object with which the proceedings were conducted ; and makes him an , to all the subsequent acts of violence and oppression. It is followed up by an abandonment of all official discretion; and an entire submission to the plaintiffs in the execution. Instead of acting as the minister of the law, and guarding its precess against misapplication and abuse, he became the passive instrument of a party in the accomplishment of his illegal purposes. It was contended upon the argument, that he was not bound to incur the hazard of a suspension or adjournment of the sale, and that the law will not inquire into the extent of the hazard. Is it indeed true, that the law will not exercise a supervision or control over the discretionary acts of its ministerial officers ? That they are omnipotent and irresponsible in the exercise of the power entrusted to them ? \u201c It is a proposition,\u201d as was once said by Ld. Hardwicke, \u201c too monstrous to be debated.\u201d"], "id": "e32c81d8-b0b2-4ec2-b62d-1d0013e4a233", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["In People v. Hyde (supra), the learned judge further said: \u201c The subject was discussed at some length by the Supreme Court of Massachusetts in Commonwealth v. Smith (11 Allen, 243), the question being whether a suborner of perjury was an of the perjurer. The court said: \u2018 The crime of subornation of perjury is clearly in its nature that of an accessory before the fact to the perjury. Both perjury and subornation are felonies under our statute, being punishable by imprisonment in the State prison. * * * Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. * * * And the accessory is a felon, though his felony is different in kind from that of the principal. * * * So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. * * * We cannot see that the application of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.\u2019"], "id": "107d1af8-00f5-47be-9853-8e357e7f02fc", "sub_label": "US_Terminology"} {"obj_label": "accessory before the fact", "legal_topic": "Criminal Law And Procedure", "masked_sentences": ["Clinton, J. At the close of the trial, I refused to charge, as matter of law, upon the evidence, that the indictment should have charged the prisoner as an , to a larceny of the mare by the witness, Close. I also refused to decide that \u201c the question as to whether Close was a guilty party, ought not to be submitted to the jury;\u201d or, in other words, was a question for the court. I refused to- decide \u201c that, inasmuch as the evidence implicated Close, the prisoner ought not to be put upon his defence, in the absence of affirmative proof on the part of the People, of the innocence of Close;\u201d or, in other words, I refused to'adjudge him guilty as a principal. I did, \u201c among other things, charge the jury that they were to determine, upon the evidence, whether or not the witness, Close, was an innocent agent of the prisoner in taking the horse; that if they so found, and if they further found a felonious intent upon the part of the prisoner,\u201d in the taking by Close, \u201c he could be convicted on the indictment; but if they found that Close had a knowledge of the prisoner\u2019s said felonious intent, then their verdict should be not guilty.\u201d In this I can see no error prejudicial to the prisoner."], "id": "5698fc15-ffdc-4b64-8c01-3ff64bfd0014", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The defendant as an exclusive bargaining agent had a statutory duty to fairly represent the plaintiff in the enforcement of the collective bargaining agreement. \"A breach of the statutory duty of fair representation occurs only when a union\u2019s conduct toward a member of the collective is arbitrary, discriminatory, or in bad faith.\u201d (Vaca v Sipes, 386 US 171, 190.) Defendant claims that since it acted in good faith it has not violated its duty of fair representation and that negligence alone is not sufficient to sustain a claim for breach of fair representation."], "id": "13f8cacb-97a9-4736-974c-6393a0c85899", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In determining a mandatory subject for bargaining the *823courts have drawn the distinction between a decision which in effect changes hours, wages and conditions of employment and a basic policy decision that does not touch hours, wages and conditions of employment. The former must be reached through negotiation; the latter need not be negotiated (Matter of City of Albany v Helsby 48 AD2d 998, affd 38 NY2d 778, supra; Matter of City School Dist. of City of Oswego v Helsby; 42 AD2d 262; Matter of Lippmann v Delaney, 48 AD2d 913). In essence, PERB\u2019s finding here is that a exists for the purpose of seeking favorable terms and conditions of employment (see Civil Service Law, \u00a7 201, subd 5) and that questions relating to the existence or composition of the bargaining unit do not of themselves reach the status of relating to terms and conditions of employment. We find this to be a reasonable, commonsense distinction. This is as it should be because the Taylor Act seeks to protect the rights of the public, the public employer and the public employees (Civil Service Law, \u00a7 200). It does not seek to protect bargaining units in matters divorced from the rights of its employee members."], "id": "886f8d93-797f-443d-bff0-b3d5e1b974f1", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The plaintiff sues Local 807 and the County of Chautauqua for the transfer in bulk to its sick leave bank of those sick leave credits which its members had contributed to Local 807\u2019s bank or, in the alternative, to credit its individual members with the sick leave days they had contributed. Local 807 argues that individual rights to sick leave credits were extinguished when contributed and any rights to benefits were lost when the *470Sheriff\u2019s Association members broke away from Local 807. Local 807 contends that it is entitled to the carry over of sick bank reserves from the old to the new despite the drastic change in its membership when the plaintiff was certified by the Public Employees Relations Board as a separate bargaining unit for most of the Sheriff\u2019s Department employees."], "id": "e85e3272-1d97-4dbf-9608-308e45bb629e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["UFT is the duly designated exclusive bargaining agent of classroom teachers. An agreement adopted as a result of collective bargaining exists between it and the Board of Education. Article 6 thereof provides for a procedure for the adjustment of grievances. Under it a teacher is permitted personally to present her grievances or to select a classroom teacher or a representative of UFT to represent her at the various stages of the grievance procedure. She may however not select as a representative an officer or executive board member, delegate, *16representative or agent of a minority organization, other than UFT, which exists for the purpose of dealing with school officials for the improvement of working conditions or the handling of grievances of employees in the . It also provides that nothing contained in the article should be construed to deny any teacher her rights under section 15 of the Civil Eights Law, the Education Law or under any applicable civil service laws and regulations."], "id": "0d754228-59f5-41e4-bad3-5859d7c0edb0", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Under section 1156.3, subdivision (e)(1) and (2), election objections may be sustained on the ground(s) that (i) any of the necessary substantive allegations in the petition were incorrect (i.e., peak employment requirement met, no election in past 12 months, no contract bar), (ii) the Board incorrectly determined the geographical scope of the , (iii) the election was not conducted properly, or (iv) misconduct \"affecting the results of the election \" occurred. Subdivision (e)(2) states: \"... The board shall certify the election unless it determines there are sufficient grounds to refuse to do so.\" (Italics added.) We note that, under section 1156.3, the threshold number of signatures that should accompany an employee petition for an election (per subd. (a)(1), or whether that showing of interest was met, is not listed among the statutory grounds for challenging an election.)"], "id": "43852509-1633-4556-b28c-0ae6236c3880", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["PERB, in approving the designation of respondent as bargaining agent for all the teachers and other job classifications specifically named in the agreement, limited the authority of the respondent so as to require that it represent only those named *434in its certification and in the recognition clause of the agreement. I The demand for arbitration prepared by the respondent seeks to accrete persons employed as \u201cdeans\u201d and \u201c department chairmen\u201d to the group represented by respondent, so that it may act as their bargaining agent, upon the ground that they perform the same work as do the teachers and others represented by it. Both groups, however, are excluded in the recognition clause of the agreement entered into between petitioner and respondent, and in fact they are both represented by a unit known as ABAC, which unit has been recognized by petitioner as the for the supervisory employees of petitioner who are not represented by respondent."], "id": "0e4a8caf-81c3-474c-ae40-253b5bb056e2", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["As to the grievance, the SAC alleged that in accordance with the collective bargaining agreement (CBA) between MBUTA and MBUSD, on March 15, 2014, appellant filed a grievance alleging \"violations of the CBA.\" In the grievance, attached as Exhibit E to the SAC, appellant stated that the alleged grievance occurred on February 5, 2014. The grievance is described as follows: \"The Commission on Teacher Credentialing has taken steps to unfairly discipline me based on faulty information from a non-contractual evaluation. ... Mira Costa Principal Dr. Ben Dale erroneously allowed parents, students, the Athletic Director (a member) and anonymous members of the community to unfairly evaluate my performance on the baseball field. These procedures had a detrimental impact on my employment as a social studies teacher and were used to create a false report of my teaching and coaching practice. Evaluative data coerced from parents, current and former students and other anonymous individuals in this manner is at odds with the evaluative process prescribed in the [CBA] between MBUSD and MBUTA. Because of the District's adoption of the non-contractual evaluation procedures, the parents used the tainted data gathered to malign me to the CTC which is now withholding the renewal of my *1058credential and has issued an intent to suspend me for 30 days. I have suffered the loss of 6 months' salary and benefits as well as the loss of my good name and reputation.\" As remedies for MBUSD's contractual violations, Olson sought (1) a \"letter from the MBUSD clearing me of any wrongdoing in my duties as a social studies teacher and as a 6th period baseball teacher,\" and (2) assignment to \"a temporary paid position which does not require a teaching credential while I appeal my case with the CTC.\""], "id": "e61a7295-b083-471d-8634-2d02108412c7", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The critical question of fact before the arbitrator was whether * \u2018 normal duties \u2019 \u2019 of the traffic co-ordinator had been regularly assigned to nonunit personnel. The arbitrator answered that such work was not encompassed by the prohibition of paragraph 151 against the assignment of \u201c normal duties \u201d. He concluded that certain duties of the traffic co-ordinator now performed by the shipping and receiving supervisor were duties which the supervisor had \u201ccustomarily performed\u201d in the past. From this he reasoned that these duties were not \u201cnormal duties \u201d of the traffic co-ordinator within paragraph 151 because they were \u201cnot distinctively\u201d work."], "id": "d94d6855-1e25-4a7f-9bbb-858f3ad0d090", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["towards everyone in the in both negotiation and administration of collective bargaining agreements. Case v. Hazelton Area Education Support Personnel Association, (PSEA/NEA), 928 A.2d 1154 (Pa. Cmwlth. 2007). A union breaches the duty of fair representation only if its actions are \u201carbitrary, discriminatory or in bad faith.\u201d Dorfman v. Pennsylvania Social Services Union - Local 668, 752 A.2d 933, 936 (Pa. Cmwlth. 2000). Although evidence of discrimination or arbitrariness may support a breach of the duty of fair representation, bad faith is generally required. See Hughes v. American Federation of State, County and Municipal Employees Council 13, 629 A.2d 194, 195 (Pa. Cmwlth. 1993) (\u201cA union will be liable for breach of a duty of fair representation only when bad faith on the part of the union is shown.\u201d). Individual bargaining unit members have no absolute right to have their grievances arbitrated. Ziccardi v. Commonwealth, 456 A.2d 979, 981 (Pa. 1982). Rather, a union has broad discretion to determine whether to pursue a grievance to arbitration and has no duty to arbitrate every grievance. See Falsetti v. Local Union No. 2026, United Mine Workers of America, 161 A.2d 882 (Pa. 1960). A union\u2019s decision not to pursue a grievance is never a breach of its duty of fair representation where it does not pursue the grievance because it is satisfied that the grievance lacks merit. Martino v. Transport Workers\u2019 Union of Philadelphia, 480 A.2d 242, 247 (Pa. 1984). A wide range of reasonableness must be allowed to a bargaining representative in serving the unit it represents, subject always to good faith and honesty of purpose in the exercise of this discretion. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A union\u2019s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union\u2019s actions, the union\u2019s behavior is so far outside a wide range of reasonableness as to be irrational. See Air Line Pilots Association,"], "id": "90984e7e-2b77-4eea-96bc-f84df8d2d899", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["It has been declared, that where, as the court finds is the case here, the State has not occupied or pre-empted an entire field, a municipality which is empowered to act in that field may, in spite of general regulations by the State, adopt additional regulations or requirements not inconsistent with the State enactment, where warranted by special local conditions (see Matter of Kress & Co. v. Department of Health of City of N. Y., 283 N. Y. 55, 59). There would thus be nothing to prevent a municipality from attaching additional conditions to the availability of checkoff beyond those specified in section 93-b, as, for example, that the particular employee 'Organization be one that meets certain reasonable standards. Here the city has imposed the further condition that the dues to be deducted be for membership in the employee organization that has been duly selected as the majority representative for all the employees in the applicable . The imposition of that condition contravenes neither the letter nor the intent of section 93-b."], "id": "40d5cd04-f6f9-4b29-a4cb-29865a7df760", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The affidavit of plaintiff\u2019s president, Swayduck, sworn to July 22, 1964, states that plaintiff is a labor union whose \u2018 \u2018 membership consists of workers in the lithographic industry employed in Local l\u2019s territorial jurisdiction\u201d. Swayduck states that ALA is a federation of local unions (including Local 1) which represents lithographic workers; that \u201cit has always been the fundamental policy of both Local 1 and the ALA to limit their organizational activities and their membership to workers engaged in the lithographic industry \u2019 \u2019. Sway-duck asserts that 1 \u2018 the maintenance ' of this policy has been *112one of the major reasons for the success and strength of Local 1 and the ALA\u201d. He claims that labor unions in competitive portions of the graphic arts field, such as the unions in the letterpress printing unit, have sought to challenge the right of lithographic workers to have their own union and that attempts by such competitive unions to incorporate the lithographic workers within their own unions have been almost entirely unsuccessful \u2014 the National Labor Relations Board having rendered hundreds of decisions \u2018 \u2018 upholding the right of lithographic workers to a of their own, separate and apart from all other workers in the printing industry \u2019 \u2019. Swayduck declares that the security of Local l\u2019s members depends upon its continued existence as a union for lithographic workers only, because \u201c the economic structure of the printing industry is such that lithographic workers are normally outnumbered by non-lithographic workers in printing plants and shops \u201d. It is stated that if the N. L. R. B. refused to recognize the right of lithographers to their own bargaining unit in each plant, \u201c Local 1 could not hope to win representation elections against other printing unions seeking to represent lithographic workers \u201d. Swayduck declares that for this reason, among others, Local 1 and the ALA have always adhered to their 1 \u2018 fundamental policy \u2019 \u2019 of organizing lithographic workers only, and that \u2018 \u2018 at all times, Local 1 and the ALA have been, except in rare instances not pertinent here, unions limited to lithographic workers \u201d."], "id": "1456fc09-d46e-44bf-84e3-0336e7f7bf7c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Finally, it is unnecessary to review here the abundant evidence and experience in support of the conclusion reached in the proceeding to determine the appropriate . The contentions raised by the petitioner may well be arguable, but that is not enough. There is a considerable body of evidence to support the conclusion reached, and it may not be disturbed."], "id": "70f3d659-9869-4529-8807-a33b7f9f2aab", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The acting director stated the issues to be: \"first, whether or not an employer\u2019s unilateral alteration of a during the appropriate challenge period constitutes a violation of the above referred to paragraphs of the Act and, second, whether or not a refusal thereafter to negotiate such alteration constitutes a violation of those paragraphs of the act\u201d. Having excised the allegation of animus, the acting director then stated, \"the charge does not contain any allegation of animus on the respondent\u2019s part concerning its motivation for the passage of the Resolution; rather, it challenges the resolution itself\u2019. He also stated, \"this element \u2014 animus \u2014 is necessary to establish a violation of \u00a7 209-a.l(a) or (b) of the Act\u201d. (In its confirmatory decision PERB itself concedes that allegations of animus would have raised questions for a hearing.) The acting director then determined as a matter of law and without a hearing that the charge as limited did not constitute a violation of the statute."], "id": "ff062d53-0823-4731-9be6-1da3aa828904", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The appended Notice to Employees stated that appellant would \"CEASE AND DESIST\" from: \"1. Failing to bargain in good faith with CSEA over the foreseeable impacts of the closure of Las Flores and the abolishment of classified positions; [\u00b6] 2. Denying classified members the right to be represented by CSEA; [\u00b6] 3. Denying CSEA the right to represent its members.\" It said appellant would take the following \"AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EERA\": \"1. Within twenty (20) days of the service of a final decision in this matter, meet and negotiate in good faith with CSEA, upon receipt of CSEA's proposals addressing the foreseeable effect of the May 2010, decision to close Las Flores and abolish classified positions. [\u00b6] 2. Compensate at their normal rate, any CSEA bargaining unit members who were affected by layoffs resulting from the May 6, 2010, decision by the District's Board of Education ... to close Las Flores and abolish classified positions. CSEA shall submit its bargaining proposals within twenty (20) days following the service of this decision and order. Should CSEA fail to submit such proposals within this twenty (20)-day time frame, this limited backpay remedy shall not go into effect. Provided CSEA submits its proposals, payments shall remain in effect until the earliest of the following conditions: (1) the date the parties reach an agreement on those subjects pertaining to the effects of the May 2010 [decision], by the District School Board to close Las Flores and abolish classified positions; (2) the parties[ ] exhaust the [']negotiating an impasse['] procedures prescribed by EERA; or (3) subsequent failure by CSEA to bargain in good faith.\" The notice stated it was an \"official notice\" that \"must remain posted for at least thirty (30) consecutive workdays from the date of posting\" and \"must not be reduced in size, defaced, altered or covered with any other material.\""], "id": "b6db9863-c931-432c-a236-9b5e30291a09", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["There is no specific applicable Statute of Limitations in New York governing the institution of an action which alleges the violation of a duty by a union to fairly represent the members of the it represents. Recent Federal court cases have addressed themselves to analogous Statutes of Limitation and/or regulations of administrative agencies which should be applied in an action based upon the violation of a union\u2019s duty of fair representation to its membership."], "id": "5946e4fd-56c7-48bb-b735-cd015e7cfdc2", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["A collective bargaining agreement was entered by the Engineers Association and Sperry Gyroscope Division (hereafter Sperry) of Sperry Band Corporation on July 7, 1958. By the terms of that agreement, the employer, Sperry, agreed inter alia \u201c to pay its present share up to the present cost of Hospitalization and Surgical Benefits and shall pay the cost of anesthesia and in-hospital medical coverage riders \u201d (art. 16, subd. E [1]). On November 2, 1959 the Engineers Association submitted to the vice-president for industrial relations of Sperry a grievance in writing. The grievance was concerned with (1) the failure of the company (Sperry) to disclose the amount of refunds received from the United Medical Service and the United Hospital Service, and (2) the failure of the company (Sperry) \u201c to return to the persons in the their pro rata share of such premium refunds \u201d. On December 12, 1959, the answer of the employer was \u2018 \u2018 There is no contractual violation. \u2019 \u2019"], "id": "fc9038e5-3ea6-4726-8634-1e5c8a583f16", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Of the $133.80 agency shop fee collected by defendant La Marca for the local union (GCTA), only $20.60 is actually retained by the GCTA, the largest part of the fee being forwarded to other affiliates \u2014 the national affiliate, American Federation of Teachers (AFT), receiving $28.20, and the State affiliate, New York State United Teachers (NYSUT) receiving $85. Defendant La Marca maintains that, while he should be entitled to collect an agency shop fee of $133.80 from each nonunion member of the , only the $20.60 remaining with the GCTA should even come under the scrutiny of the refund procedure required by Abood v Detroit Bd. of Educ. (431 US 209, supra) and by section 208 (subd 3, par [b]) of the Civil Service Law. Counsel for defendant La Marca urges here, as he did unsuccessfully in Matter of United Univ. Professions v Eson (11 PERB par 3068), that the agency fee moneys it receives and transfers to its parent organizations, NYSUT and AFT, should be treated unconditionally as purchases of services \u2014 without inquiry into whether any part of such moneys are expended \"in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.\u201d Were the court to accept such reasoning, any refund procedure \u2014 however fair on its face \u2014 could be subverted by a reallocation of dues between union locals and their State and national affiliates, and would be an empty gesture. If the State and national affiliates are to receive agency shop fees from their locals, they must undertake the correlative duty of providing, to the local, the information necessary for it to implement a refund procedure covering those portions of the agency shop fee earmarked for the State and national affiliates. If, within 90 days after the date of this decision, defendant La Marca is unable to secure the co-operation of such State and national affiliates in providing the information required by this decision, and to bring the funds earmarked for such affiliates within the scrutiny of the refund procedure, he shall refund to each objecting nonunion *258member the pro rata share of the agency shop fee collected on behalf of such affiliates."], "id": "de04d413-f82c-4150-aa5f-bc283526caf3", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*557In addition, the employment of city employees is subject to collective negotiation rights embedded in state law. In fact, the employees were members of a represented by DC-37, and, as a result, their employment and termination is covered by the union contract. The union contract, entered into under the authority of state law, to the extent it does not violate state law, also creates terms of employment for covered employees, such as the employees. For example, the union contract expressly sets forth certain notice requirements for the separation of employees."], "id": "4cfc82bf-cfcb-4880-9261-584a531d79f5", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["\u201c A. The Company agrees to recognize the Union as the sole collective bargaining agent for all production and service employees in its East 25th Street Plant, Paterson, New Jersey, as determined by the National Labor Relations Board in eases No. R-4676, 2R-4135, excluding employees defined in case No. 2RC-881, for the purpose of collective bargaining with respect to rates of pay, hours of work and other conditions of employment. By mutual agreement, there shall be excluded from the coverage of this agreement employees being trained for administrative or staff jobs who receive incidental shop training. *717\u2018 \u2018 B. Supervisory employees and employees outside the coverage of this Agreement will generally not perform work normally assigned to members of the , except in cases of emergency or other unusual situations, when an employee who would normally be assigned to do the work is absent or unavailable, or work performed on new processes, new tools, instructing new employees or \u2018 trouble shooting.\u2019 \u201d A reading of article I makes it clear that it is not applicable to the facts here presented. There is no prohibition against having work done by an outside agency. The only prohibition is contained in subdivision B of article I which states that \u20181 supervisory employees and employees outside the coverage of this Agreement will generally not perform work normally assigned to members of the bargaining unit \u201d (italics supplied). Employees \u2018\u2018 excluded from the coverage of this Agreement \u201d are referred to in subdivision A of article I without mention of independent contractors. Moreover, the term \u201c employees \u201d is used throughout this agreement in its usual context. The juxtaposition of these two subdivisions constituting article I of the agreement, as well as the use of the term \u201cemployee\u201d elsewhere in the agreement, makes its meaning clear and unambiguous. There is no real ground of claim and the grievance alleged is not an arbitrable dispute under the contract (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers of America, C. 1. 0.], supra; Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, affd. 297 N. Y. 519; Matter of Otis Elevator Co. [Carney], 8 A D 2d 636; Matter of Berger [World Broadcasting System], 191 Misc. 1043, affd. 274 App. Div. 788; Matter of Curry, Inc. [Reddeck], 194 Misc. 527; Carborundum Co. v. Swisher, 17 Misc 2d 231; see, also, Amalgamated Assn. etc. v. Greyhound Corp., 231 F. 2d 585; Standard Refinery Union v. Esso Std. Oil Co., 3 N. J. Super. 548)."], "id": "3c1b8e92-d2cc-4be3-8005-15957f86c747", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Those cases, cited earlier for the proposition that the duty of railway unions to fairly represent all employees derives from the Bailway Labor Act, are not to the contrary since in each of them the certified bargaining representative was charged either expressly or by necessary implication with active and hostile discrimination against Negro employees either in bargaining on their behalf as in Steele, Tunstall, Graham and Howard or in processing their grievances as in Conley. Of course the judically enforcible duty of fair representation originally enunciated in cases involving racial discrimination has been extended to such situations where unlawful discrimination is alleged to have been practiced on other than racial grounds. (Ford Motor Co. v. Huffman, 345 U. S. 330 [1953] ; Thompson v. Brotherhood of Sleeping Car Porters, 316 F. 2d 191 [C. A. 4th, 1963]; Ferro v. Railway Express Agency, 296 F. 2d 847 [C. A. 2d, 1961]; Latham v. Baltimore & Ohio R. R. Co., 274 F. 2d 507 [C. A. 2d, 1960]; Mount v. Grand Inti. Brotherhood of Locomotive Engrs., 226 F. 2d 604 [C. A. 6th, 1955].) But these decisions involved either proof or at least allegations of willful and invidious discrimination by the bargaining representative against a member or class of members of the . It seems then that the dismissal of the prior action by the District Court may quite well have been predicated upon the fact that the complaint there (which is practically identical with that here) failed to allege bad faith or an *440active and hostile discrimination against the plaintiff by the individual defendants and Division 421, so that Federal jurisdiction of the subject matter was not invoked in the absence of a diversity of citizenship between the parties which concededly did not exist. That being so, the dismissal there would not be an adjudication upon the merits (Fed. Rules Civ. Pro., rule 41, subd. [b]; Hughes v. United States, 4 Wall. [71 U. S.] 232) but only one made upon the face of the complaint reflecting the absence of essential jurisdictional allegations. I reach this conclusion aware of the fact that other Federal court decisions may appear to be at variance with the determination made by the District Court in this case. (See Conley v, Gibson, 355 U. S. 41, supra, and Thompson v. Brotherhood of Sleeping Car Porters, supra.) But as indicated above, these decisions may be validly distinguished."], "id": "70491978-2905-45d3-bf1f-7db212ae6656", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioners commenced this proceeding to prevent any decrease in their payments. They argue that they are not \u201c members\u201d within the meaning of the CBA, and that, in any event, they have a vested interest in the higher salaries that cannot be divested without an allegation of misconduct and a due process hearing. Thus, they assert, City of Newburgh\u2019s decision to reduce their payments is arbitrary, capricious and contrary to law, and must be annulled."], "id": "b9f8cab9-5551-4875-a3ff-af5fbd0d999f", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["(1) The Union calls a strike over a grievance which has originated in such , after such grievance has been fully processed in accordance with and through the successive steps of the grievance procedure; provided that no such strike shall be called or commenced with respect to any grievance which has been settled and closed as provided in the grievance procedure, nor with respect to any grievance which is submitted to arbitration."], "id": "354b51d8-45c4-416d-b69c-cb27bbbb212a", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Having received supplemental briefs and replies to the supplemental briefs, we conclude the Board did not err when it (1) identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the ; (2) determined the statement by the Union representative that \"we're through with you\" (if made) was not a clear and unequivocal disclaimer of interest; and (3) concluded the Union's subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective. On the question of make-whole relief, the principles set forth in Tri-Fanucchi compel the conclusion that the Board properly exercised its broad discretionary authority when it awarded make-whole relief in this case."], "id": "229904f1-a799-43c4-8acb-26ea341c632b", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The petitioner contends that section 209-a (subd 1, par [d]) is violated when an employer unilaterally redefines a to exclude some employees. But this cannot be. The impropriety defined in paragraph (d) is the refusal to negotiate, and there can be no improper refusal unless there is a necessity to negotiate. Even a concession that the Board had no authority to redefine the bargaining unit would not of itself prove that redefinition is a mandatory subject for bargaining."], "id": "38b6ba85-16a7-47a1-8f8c-1a3d6cb96d71", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*313Furthermore, the PERB Rules permit an amendment of an existing only on application of the county or the recognized representative of that unit. (Rules, \u00a7 12.) No such application was received here, and it was improper for PERB to direct that result in the absence of a proper application and ensuing procedures. The pending TJFCT application was only for certification of part-time faculty as an appropriate bargaining unit. If PERB considered the unit inappropriate, the proper procedure would have been to deny the application rather than amend an existing and separate unit represented by a separate employee organization. An original application for the single unit of full and part-time faculty would have to be accompanied by indications of support from 30% of the members of that proposed unit. The procedure followed here by PERB circumvents that requirement by permitting action upon the support of only 30% of a small unit, without any opportunity of rebuttal from full-time faculty members or their exclusive representative."], "id": "c825667c-365d-4a49-81bb-1435a61b272a", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The papers of defendant La Marca show that, out of 402 teachers in the , 380 are members of the Gates-Chili Teachers Association (GCTA), the local union. Consequently, the agency shop fee provision actually affected only 22 of the 402 members of the bargaining unit, and, as of the deadline for filing objections for the contract year in question, 12 of those 22 persons had filed refund requests."], "id": "0193e7eb-e19a-4aa4-a8b3-7dc617e5b2c3", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On this issue, the plaintiff asserts that section 9 (subd [b], par [3]) of the National Labor Relations Act (US Code, tit 29, \u00a7 159, subd [b], par [3]) expresses a clear Federal policy against representation of security guards by a union which also admits other types of employees in the same . This statute prohibits the National Labor Relations Board (NLRB) from granting certification to an offending union as representatives of the employees in such a guard bargaining unit. It is claimed that since Teamsters has combined security guards with other types of employees as members the same bargaining unit (which has been the case for 12 years), Teamsters violates this national policy. Thus, Teamsters cannot be certified for representation by the NLRB and by reason thereof, the picketing at Rochdale is not in pursuance of a legitimate labor objective or activity during a legitimate labor dispute. In support of this contention, the plaintiff cites and relies upon the case of District 2, Mar. Engrs. Bene\u00f1cial Assn. (AFL-CIO) v New York Shipping Assn. (29 AD2d 139). The Appellate Division there concluded that the picketing under such circumstances was not over a legitimate \"labor dispute\u201d and thus that the right to injunctive relief was not limited by the provisions of section 807 of the Labor Law. This decision was appealed to the Court of Appeals, which modified the *419determination of the Appellate Division on the very point here at issue. The Court of Appeals differed with the Appellate Division, and set aside the injunction in the following language: \"The purpose of the picketing in question was not 'unlawful\u2019, and section 807 of the Labor Law prevents issuance of an injunction.\u201d (District 2, Mar. Engrs. Bene\u00f1cial Assn. [AFL-CIO] v New York Shipping Assn., 22 NY2d 809, 812, cert den 393 US 960.)"], "id": "9d89fe84-0035-4004-b6ca-b983f545a960", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The Senate then commenced this proceeding (CPLR art. 78) to invalidate that determination, asserting the same objections made before PERB. PERB responds that it has complied with the statutory procedures for its deliberations and has acted properly. It also asserts, as does UFC'T, that the Senate\u2019s unchallenged representation status terminated on March 17, 1971 and that the Senate is therefore not aggrieved by an expansion of the . The UFCT also asserts that the Senate waived its opportunity to participate by failing to present witnesses at the additional hearing directed by the PERB order of January 27, 1971. On the return date of the proceeding, the court directed that the representation election be stayed pending the determination of the litigation."], "id": "dd08114c-2ebc-49b7-b2c5-4ec6d44a0a18", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["It is conceded that petitioner is a nonteacher and does not fall within the collective which negotiated a contract with the county running through 1974. Nevertheless, petitioner is employed by the college and paid by the county, and the \u20181 Faculty Code \u2019 \u2019 clearly applies to one in her position (as conceded by respondent when it claims she should have utilized the grievance procedure outlined in such code and in the collective bargaining agreement). Such grievance procedure need not be utilized when \u201c the board is without authority to act. \u2019 \u2019 The grievance board would be unable to afford petitioner any relief in this case, since it is the county which is withholding her salary, and hence petitioner need not have exhausted her administrative remedies which clearly would have been a futile gesture on her part."], "id": "3cde5d48-9ce7-42a8-a22a-e00a0e49b699", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["At issue here is the legality of PERB\u2019s interpretation of the Civil Service Law that the Board\u2019s acts did not, as a matter of law, constitute improper employer practices. The Court of Appeals has made a holding that both defines our duty and also answers the petitioner\u2019s attempted analogy with employment in the private sector. \"So long as PERB\u2019s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation on the strength of what the NLRB or the Federal courts might do in the same or a similar situation\u201d (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50). In this perspective, was it legal to conclude that a unilateral alteration of the composition of a by a public employer during the challenge period did not, in and of itself, constitute: an interference with public employees for the purpose of depriving them of their rights (Civil Service Law, \u00a7 209-a, subd 1, par [a] ); an interference with the formation or administration of an employee organization for the purpose of depriving employees of their rights (Civil Service Law, \u00a7 209-a, subd 1, par [b] )? Was it legal to conclude that the failure of the Board to negotiate this alteration did not constitute a refusal to negotiate in good faith with the recognized representative of the public employees (Civil Service Law, \u00a7 209-a, subd 1, par [d])?"], "id": "bdbe5607-3527-4a8f-a596-b5552bf682ad", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner alleges and contends that the City of New York, through its Budget Director, and the Administrative Board, through its State Administrator, jointly and without authority delegated to the New York City Department of Labor the matter of determining appropriate collective bargaining units for nonjudicial employees of the unified court system. Several associations sought certification as representatives for collective bargaining. Hearings were held on March 3 and March 14,1966. *609On April 13, 1966, the Labor Department\u2019s hearing officer recommended that all Supreme, Family and City Criminal Court Probation Officers should constitute an appropriate and single . On the following day, the department\u2019s Commissioner adopted the recommendation, and certificate of \u2022representation was issued June 16, 1966."], "id": "0c661971-3527-4576-a0ed-2a4601377d3b", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["By the contract it is provided (art. 20, subd. l[c]) that \u201c In the event that the Association does not accept the Employer\u2019s answer it shall within two weeks after the receipt thereof, notify the Employer of its intention to submit the same for arbitration. In the event of the failure of either the Employer or the Association to comply with the time limitations herein-above imposed upon the parties, then the grievance shall be deemed either withdrawn or affirmatively accepted, as the case may be.\u201d (Emphasis supplied.) No demand to submit that grievance to arbitration'was made but on December 18, 1959 a second grievance was filed in which it was stated that \u201c The Company has not complied with Article 16E1 of the contract in that it has not paid its specified share of the cost of Hospital and Surgical Benefits since 1950 inasmuch as refunds from the plan have effectively reduced the actual cost to the Company. The Engineers Association demands that these refunds received by the Company from the Hospital and( Surgical Benefits carrier be distributed to the members on a pro rata basis.\u201d On January 21, 1960 the second grievance was rejected by answer providing \u201c This grievance calls for a distribution of an experience-rated refund and a grievance *558calling for that same remedy has been filed and answered by the Company. Therefore, this question is now foreclosed. The company has complied with the contract requirements and no violation has occurred.\u201d (Emphasis supplied.)"], "id": "9a6d7ef3-a7c6-4cff-9234-ee531be62299", "sub_label": "US_Terminology"} {"obj_label": "Bargaining Unit", "legal_topic": "Employment Law", "masked_sentences": ["The affidavits of Edward P. Delaney, Director of respondent\u2019s Department of Human Resources, detail his familiarity with the petitioners\u2019 personnel records, and his knowledge of the seniority and tenure list of all teachers and administrative personnel. He relates that, as a result of a July 30, 1984 arbitration award between ASAR and the School District, \"teachers who were on Administrative Assignment * * * were given the option of being placed in the Respondent\u2019s Adminis*652trative .\u201d Further, he states that the former title of Teacher on Administrative Assignment would be established in the ASAR bargaining unit as \"Administrative Specialist\u201d, but within that title, a number of separate tenure areas could exist. Additionally, according to respondent, the positions established in the aforesaid separate areas under the title of \"Administrative Specialist\u201d were not \"interchangeable\u201d, and that regardless of such an all-encompassing title, employees are assigned to subtitled tenure areas under that generic heading. Following this background, therefore, the respondent proffers that each of the individuals named on the seniority list held superior tenure rights than the petitioners at the time of discharge."], "id": "99cbf85d-f7a5-40d6-8b77-f5b15b23617a", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": [" Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a permanent stay of arbitration with respect to a grievance of respondent concerning the calculation of members' benefit-related service credits. Petitioner appeals from an order that, inter alia, dismissed the petition. We reject petitioner's contention that certain provisions of the collective bargaining agreement concerning the multi-step grievance process constitute conditions precedent to arbitration. \"Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration\" (Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905, 907 [1987]; see Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. [Ken-Ton Sch. Empls. Assn.], 110 AD3d 1494, 1496 [4th Dept 2013])."], "id": "0d3978de-ad23-4da1-8ab2-133a6859e157", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["It is the opinion of this court that the plaintiff\u2019s motion for a temporary injunction should be granted to the extent of *569restraining the defendants during the pendency of this action, from implementing and imposing on the plaintiff or any members of the which plaintiff represents, any of the provisions of the alleged contract which the State purports to have been entered into between the plaintiff and the State of New York as a successor agreement to the agreement dated April 13, 1977, and the said motion be denied in all other respects."], "id": "9e61fb2a-595a-4cb7-ba5a-385c576cf339", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On September 19, 2013, the City's negotiator declared an impasse in negotiations, and provided VPOA with the City's last, best, and final offer, in which the City offered the following, effective January 1, 2014: For active employees, the city would make a \"direct PEMHCA contribution\" of medical premiums not to exceed $300 per month, and would \"contribute the difference between the PEMHCA contribution ($300) and 75% of the [Kaiser rate] through a flexible benefits plan,\" with the flexible benefit plan contribution \"limited for use for medical premiums.\" As retirees, current VPOA members would receive the \"same amount\" as the City contributed \"towards the PEMHCA medical premiums for current VPOA employees,\" so if the \"direct PEMHCA contribution\" for current employees was capped at $300, the City would pay up to that amount for eligible retirees. The proposal was accompanied by a letter in which the City wrote, \"Despite the substantial movement in the City's [last, best, and final offer], we have no illusions that this proposal will result in an agreement. The VPOA made it clear in its last offer on July 18, 2013, that it believes 'The VPOA specifically notes that each member hired prior to the effective date of an agreement, including retired members, maintains a vested right to his/her retirement medical benefit. Nothing in this proposal shall be interpreted to constitute a waiver of such members' individual vested rights.' As we have communicated to you, the City does not believe that a vested benefit exists today for VPOA members. Moreover, having recently exited the Chapter 9 bankruptcy process, the city will not consent to any language which would establish a long term, unrestricted, unknown growth of an employee or retiree benefit. [\u00b6] Based on the foregoing, the City believes that the parties are now at impasse. While we remain open to a counterproposal from the VPOA which breaks that impasse, the parties have been very frank in their needs over the past few months and we remain significantly apart.\""], "id": "ed413b91-79b2-4d9e-89f3-8ee22730b4ca", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner contends the arbitrator exceeded his authority by changing the labor contract through use of the italicized language. Paragraph 38 of the contract provides that he shall have \u201c no power to add or subtract from or modify any of the terms of this agreement.\u201d Paragraph 151 of the contract provides: \u201c Normal duties of employees included in the covered by this agreement shall not be regularly assigned to employees not covered by the terms of this agreement. However, members of supervision may perform such duties under exceptional circumstances as follows: emergencies, absences of regular employees, instruction of others, and development of new methods and new projects.\u201d"], "id": "245fa9fa-09ff-486f-81fd-cccc52e3eabc", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Respondent, Faculty Federation of Erie Community College (Federation), is the exclusive for certain employees of the College, including, for purposes of this matter, full-time 10-month teaching faculty. While considered full-time employees for purposes of the CBA, such faculty are required to work at the College for 10 months out of the year (no earlier than one week prior to Labor Day and no later than May 31)."], "id": "30b9ae64-7185-42cf-8a5d-0da0422445e5", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["As indicated, several associations had made requests for certification, which resulted in the certification of June 16,1966. The hearings were held pursuant to notice duly given in the City Record on December 15,1965, which resulted in the requests for certification. This petitioner did intervene by making such request, but its request is dated June 15, 1966. Not only was that request belated, but petitioner\u2019s apparent uncertainty as to its position leads it to request referral of the issue to an impartial umpire, or that the Commissioner of Labor be directed to issue a certificate of representation to it. Apart therefrom it cannot be said that, by participation with the city as joint employers along with the city\u2019s Department of Labor in a proceeding to determine the collective , the Administrative Board has either abdicated or delegated a power, assuming a nondelegable power is involved. After determination of the-appropriate unit, bargaining is then done by the board\u2019s staff with the city. In the light of the city\u2019s power in the matter, as defined by article VI of the Constitution, the tripartite action in determining alone the appropriate unit is not an invalid exercise of power (Administrative Board, art. VII, \u00a7 3). Moreover, the adoption of article VI of the Constitution must be viewed in the *610light of the existing city structure for the conduct of labor relations as expressed in Executive Order No. 49 of March 31,1958, and adopted by the Board of Estimate on August 23, 1962."], "id": "33e16828-deb8-46f0-89dd-eaa955c48132", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Eespondent\u2019s contention that the union had no right to recover moneys which it had failed to pay to the 61st Street shipping clerks, because they were not members of the union, was rejected by the arbitrator, who found that \u201cit is the right and duty of the Union to represent the interest of all the workers within the , regardless of their membership or non-membership in the Union \u2019 \u2019."], "id": "dd69e4cc-c4a8-462a-8e2b-7d78a370fe4e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The union, if it is to be permitted to collect agency shop fees from nonunion members of the , must bear the burden of justifying its assessment and establishing that the fees are not being expended for impermissible purposes: \"Since the unions possess the facts and records from *259which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion. Absolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise. And no decree would be proper which appeared likely to infringe the unions\u2019 right to expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining and, as well, to expend nondissenters\u2019 such exactions in support of political activities.\u201d (Railway Clerks v Allen, 373 US 113, 122, supra, quoted in Abood, 431 US, at p 239, n 40, supra.) There is no language in the refund procedure, and, evidently, no practice under it, by which the GCTA, NYSUT or AFT undertakes to meet this burden or to provide a basic accounting concerning the proportion borne by political and ideological expenditures to over-all union expenditures. In exchange for the right to receive agency shop fees from nonunion members, and based on each union affiliate\u2019s unique access to the facts, each affiliate, through the auspices of the GCTA, should report separately its total political and ideological expenditures, and, in the event it deems some of these more than incidentally related to the terms and conditions of employment, the net proportion of such expenditures which it deems refundable pursuant to section 208 (subd 3, par [b]) of the Civil Service Law. Not until this obligation is undertaken can an agency shop fee refund procedure be fairly carried out."], "id": "0e52f408-6131-474d-bc14-26554467ac4b", "sub_label": "US_Terminology"} {"obj_label": "Bargaining Unit", "legal_topic": "Employment Law", "masked_sentences": ["The plaintiff, Carl Mathison, was a Probation Officer and was the past president of Local 814 of the Civil Service Employees Association (hereinafter CSEA) . The defendant, Helen Zocco, is the current president of Local 814. On or about January 3, 1991, Zocco sent a letter to Mathison\u2019s employer in the Probation Department, and to William Burke, the CSEA Regional Attorney who is currently representing Zocco in this action. In this letter, Zocco explained how she had been arrested for driving while intoxicated and how Mathison has been making use of that arrest to \"harass\u201d her in his position as a probation officer. Zocco requested that the Probation Department take action against Mathison, and made a formal complaint against Mathison."], "id": "912aca55-780a-4024-b5d0-8baad02b771e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["CORDANI, J. INTRODUCTION The City of Shelton (city) appeals a final decision of the Connecticut State Board of Labor Relations (board) finding that the city violated the Municipal Employees Relations Act, General Statutes \u00a7 7-467 et seq. (MERA), by changing its process for evaluating candidates for promotion within the city\u2019s workforce without negotia- tion with the Shelton Police Union (union). FACTS AND PROCEDURAL HISTORY At all times relevant to this appeal, the city and the union had a long-standing collective bargaining rela- tionship and had been parties to a collective bargaining agreement, the most recent version of which became effective on July 1, 2016 (CBA). The CBA \u00a7 17.01 pro- vides: \u2018\u2018Promotions will be made in accordance with the provisions of the Merit System of the City of Shelton. Promotional opportunities will be posted with sufficient time to prepare for the examination and a list of study materials will be provided. Challenges to the promo- tional testing results shall be in accordance with Section 29.03A.\u2019\u20191 (Emphasis added.) The merit system of the city is defined by city ordi- nance.2 Prior to February 9, 2018,3 the merit system of the city was provided for in Ordinance 896.4 Ordinance 896 provided in pertinent part: \u2018\u2018All appointments to positions within the classified service of the City of Shelton shall be made as provided herein. Examination and testing shall be established in accordance with the job description by the [A]dmin- istrative [A]ssistant who shall first determine whether an examination shall be open competitive or promo- tional. . . . \u2018\u2018The examination process shall be of a practical nature and shall relate to subjects which fairly measure the relative capabilities of the person examined to exe- cute the duties and responsibilities of the position sought. The [A]dministrative [A]ssistant may adopt or authorize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications. . . . \u2018\u2018Examinations for positions within the classified ser- vice shall be competitive and may include written, prac- tical and oral interview test components. All applicants meeting the prescribed requirements shall be allowed to participate in the initial test component and shall be notified, in writing, of the time, place and date of the initial test.\u2019\u2019 (Emphasis added.) Shelton Code of Ordi- nances, c. 2, Art. VI, \u00a7 2-312 (a), (b), and (e). On February 9, 2018, the city adopted a new ordi- nance (2018 Ordinance)5 concerning the merit system with the goal of enhancing promotion from within the city\u2019s ranks, which new ordinance provided in perti- nent part: \u2018\u2018Upon the recommendation of the Department Head that there are qualified employees presently employed by the City, including both full time and part time employees, who are qualified to perform the job that is opened, the Administrative Assistant may, in his sole discretion, limit the applications to City employ- ees and proceed with only a promotional examina- tion.\u2019\u2019 (Emphasis added.) Shelton Code of Ordinances, c. 2, art. VI, \u00a7 2-301 (7.1.1). It is the adoption and implementation of this 2018 Ordinance that the union challenged. The board factu- ally found that \u2018\u2018since on or before October, 1981, to February, 2018, the promotional process for members entailed participation by qualified candi- dates in written and oral examinations, each having a relative weight of fifty percent (50%) in determining each candidate\u2019s final score.\u2019\u2019 (Footnote omitted.) In April of 2018, it was determined that there was a need for additional lieutenants in the city\u2019s police department. In accordance with the 2018 Ordinance, the department head, [the] chief of police, notified the administrative assistant that several employees within the city\u2019s police department were qualified for the new positions. The administrative assistant then engaged the internal promotion process provided for in the 2018 Ordinance. Five internal candidates applied for the three available positions. All of the candidates who applied were subjected to oral examination, determined to be qualified and ranked. All five were placed on a certified list of eligible candidates. The police chief then selected three candidates from the list. No written examination was given in the process. The union claimed that the adoption of the 2018 Ordi- nance and its implementation in the promotion of the three police lieutenants amounted to a unilateral change in the material conditions of employment by the city without the mandatory negotiation with the union. In particular, the union claimed that conducting the pro- motional process without a written examination was an improper unilateral change made without negotiation with the union. The city admits that it did not negotiate with the union over the adoption of the 2018 Ordinance or its implementation in the promotion of the lieuten- ants without a written examination. The union then filed a complaint with the board. The matter was heard before the board on July 19, 2019. Testimony was taken and evidence entered into the record. On March 10, 2020, the board issued its final decision which concluded that the city violated MERA by unilaterally changing the promotion process to elimi- nate the written examination portion of the process, thereby changing the mandatory equal weighting between written and oral exams. The city then appealed the board\u2019s final decision to this court. The city is aggrieved because it has exhausted its administrative remedies and appeals a final adverse decision of the board finding that the city violated MERA and compelling the city to change its promo- tional process. STANDARD OF REVIEW This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Stat- utes \u00a7 4-183.6 Judicial review of an administrative deci- sion in an appeal under the UAPA is limited. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). \u2018\u2018[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency\u2019s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evi- dence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its dis- cretion.\u2019\u2019 (Internal quotation marks omitted.) Id. Although the courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute\u2019s purposes, \u2018\u2018[c]ases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.\u2019\u2019 (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Informa- tion Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). ANALYSIS The board\u2019s final decision finds that the city violated MERA by removing the written examination from the promotional process without negotiation with the union. Specifically the board found that the fact that the promotional process contained a mandatory written examination7 weighted at 50 percent of the candidate\u2019s overall score was a material term and condition of employment and could not be changed without negotia- tion with the union. Based upon the foregoing violation, the board ordered various remedies. Pursuant to General Statutes \u00a7 7-474 (g), the merit system, once established, is not subject to mandatory negotiation, except for three particular topics specified in the statute, which statute provides in pertinent part: \u2018\u2018The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional pro- cess have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to col- lective bargaining: (1) The necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for writ- ten, oral and performance examinations. . . .\u2019\u2019 Here the board found that the administration of a written examination was required by the merit system, and therefore by conducting the promotional process without a written examination, the city changed the relative weight to be attached to each method of exami- nation without negotiation. However, as found by the court below, the city\u2019s merit system did not require a written examination, and accordingly, the city\u2019s choice to act in accordance with its merit system and not employ a written examination was not a change in the relative weight to be attached to each method of exami- nation. Thus the exception in \u00a7 7-474 (g) was not engaged and no negotiation was required. The court begins its analysis by examining what the CBA provided for concerning the city\u2019s merit system promotional process. The CBA \u00a7 17.01 provides: \u2018\u2018Pro- motions will be made in accordance with the provisions of the Merit System of the City of Shelton.\u2019\u20198 The forego- ing provision is subject to only two possible interpreta- tions. First, the provision could mean that promotions will be made in accordance with the city\u2019s merit system as it existed at the time that the CBA was entered into, namely, July 1, 2016. In the alternative, the provision could mean that promotions will be made in accordance with the city\u2019s merit system as that system is amended from time to time.9 The interpretation of contract lan- guage is a question of law for the court to resolve. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). If the provision has the first meaning, namely, that the merit system authorized by the CBA is that system in effect on July 1, 2016, when the CBA was signed, then that merit system was reflected in Ordinance 896 which was publically adopted several months before the CBA was signed, and which provided that (i) the examination could be open competitive or promotional, (ii) the administrative assistant may adopt or autho- rize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications, and (iii) that examinations may include written components. Thus, the city\u2019s merit sys- tem as it existed on July 1, 2016, did not absolutely require a written examination because the ordinance gave the administrative assistant power to adopt any procedures deemed appropriate and because the ordi- nance indicated that the process may contain a written component. A 1977 Ordinance provided: \u2018\u2018Effective immediately any written and oral examinations speci- fied in the requirement sections of all ordinances deal- ing with job descriptions will be weighed equally, 50% written and 50% oral.\u2019\u201910 (Emphasis added.) Shelton, Conn., Code of Ordinances, adopted March 14, 1977. This clearly meant that if the process included written and oral examinations, the two exams would be weighted equally. Accordingly, it is clear that the merit system that existed on July 1, 2016, did not absolutely require a written examination, but instead only required that if the process contained both oral and written com- ponents, they would be weighted equally. The adminis- trative assistant was provided with the discretion to choose the appropriate procedure. If the CBA provision authorizes any merit system that the city maintains as amended from time to time, then the merit system relevant to this case was as described in the 2018 Ordinance, and that merit system did not require a written exam. Similar to Ordinance 896, the 2018 Ordinance provided the administrative assistant with discretion to determine the proper procedure. Thus, in either case the CBA authorizes the use of a merit system which allows for but does not require a written examination and allows the administrative assistant to choose the appropriate procedure.11 The board factually found that, in practice, from Octo- ber, 1981, through February, 2018, the city\u2019s merit sys- tem was actually conducted in such a manner that it included a written examination weighted at 50 percent. Such a long established practice of an important aspect of employment could amount to a material term and condition of employment and the board found that it did. A material term and condition of employment gen- erally cannot be altered without negotiation with the union. Further, the board found that the weighting of the written and oral examinations at 50 percent each was a condition that required negotiation to change under . . . \u00a7 7-474 (g).12 Thus, the board found that the provision of a written examination weighted at 50 percent within the merit system could not be changed without negotiation with the union. However, \u00a7 7-474 (g) only required negotiation if a change was made to the relative weight to be applied. Here no change was made because the merit system allowed a process with- out a written examination. Further, if the CBA covers this term and condition of employment, then the city and the union have already negotiated over the matter and arrived at a result that is memorialized in the CBA. A failure to negotiate over a term of employment cannot be found where an express agreement between the parties that covers that term of employment is found in a collective bargaining agreement such as the CBA here. An employer does not have a duty to bargain over a term of employment that is covered by a provision of a collective bargaining agreement. See Board of Edu- cation v. State Board of Labor Relations, 299 Conn. 63, 74, 7 A.3d 371 (2010); see also Norwich v. Norwich Fire Fighters, 173 Conn. 210, 215\u201316, 377 A.2d 290 (1977). Collective bargaining agreements are the cornerstone of the relationship between the employer and labor. Collective bargaining agreements memorialize the bar- gaining that has occurred between the parties and estab- lish each party\u2019s rights and obligations concerning the topics covered by the collective bargaining agreement. Thus, it is clear that the parties have the right and the obligation to conduct themselves in accordance with the terms of the collective bargaining agreement. Clearly the CBA covers this matter. The CBA requires that promotions be made by the city in accordance with the city\u2019s merit system. As noted [previously], the merit system authorized by the CBA does, and did, not require a written examination within the process. Although the board factually found that, since 1981, the city utilized written examinations, on July 1, 2016, the union and the city negotiated and agreed that the merit system would be that system described in the city\u2019s ordi- nances.13 Thus the union has had its negotiation con- cerning this term of employment and came to an agree- ment reflected in the CBA, and that agreement does not require a written examination. The board found the city\u2019s reliance on the ordinances misplaced. The court respectfully disagrees. The CBA required the city to use its merit system. The merit system was defined by the ordinances. Thus the CBA, and therefore the union, agreed that the city should use its merit system as defined in the ordinances. The board found that \u00a7 17.01 of the CBA must be read as a whole, and should be read consistent with \u00a7 29.03A. That may be so, but a corresponding reading does not change the court\u2019s interpretation of the CBA. Section 29.03A of the CBA refers to a written memoran- dum of understanding that is attached to the CBA. The memorandum of understanding establishes procedures to be followed to allow candidates to challenge results on written tests given for promotional purposes. Thus the memorandum of understanding allows for individ- ual challenges to scores on written examinations, if such written examinations are administered. The mem- orandum of understanding does not change the meaning of the CBA and does not require the administration of written examinations. Section 29.03[A] is not meaning- less, it merely provides procedures that may be used in applicable circumstances. The past practice of the city in using written examina- tions is entirely consistent with the CBA and the ordi- nances. Both the CBA and the ordinances allow for written examinations but do not require them. Reading the CBA as the union and the board do, results in a meaning that invalidates or undermines the plain mean- ing of the ordinances which were in existence when the CBA was signed. Since the CBA clearly uses the ordinances to define the merit system,14 a reasonable reading of the CBA must be consistent with and not undermine the ordinances. Further, reading the CBA to allow but not require written examinations produces an interpretation that is consistent with the plain words of the CBA, including the attached memorandum of understanding, past practice, and the ordinances. The union in this instance has not waived its right to negotiation,15 it has had its negotiation when it agreed to the CBA, and the CBA does not mandate written examinations be part of the merit system. Accordingly, in passing the 2018 Ordinance, and in implementing the 2018 Ordinance in the promotion of the lieutenants, the city has not deprived the union of negotiation concern- ing this topic and has not violated MERA.16 Accordingly, the court determines that the plaintiff has established on appeal that the final decision of the board is (1) affected by error of law, and (2) clearly erroneous in view of the reliable, probative, and sub- stantial evidence on the whole record. The court there- fore respectfully sustains the appeal. ORDER The appeal is sustained. Judgment enters for the plaintiff. The city of Shelton has not, on the record before the court, violated MERA. Accordingly, the judg- ment and orders of the board are vacated. * Affirmed. 210 Conn. App. 390, A.3d (2022). Section 29.03A refers to a September 18, 2003 memorandum of under- standing which is attached to the CBA and provides procedures to be fol- lowed to allow candidates to challenge results on written tests given for promotional purposes. Although the CBA uses \u2018\u2018Merit System\u2019\u2019 in capital letters, it does not define the term. The only place in the record where the merit system is defined in written documents is in the city ordinances. The city ordinances, in particular Ordinance 896, provide a definition of the merit system, explaining in detail how the system is applied and how it operates. See Record Exhibit 17, pages 248\u201366 for Ordinance 896 entitled \u2018\u2018Merit System and Personnel Rules.\u2019\u2019 See also Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. As required, these ordinances are adopted through the normal legislative process of the city which process is open to the public. The foregoing Ordinance is entitled \u2018\u2018Merit System and Personnel Rules\u2019\u2019 and is found in the Record at Exhibit 17, pages 248\u201366. The city\u2019s ordinances concerning the merit system have been amended by the city on a multitude of occasions over the years, but the details of the changes are not specifically reflected in the record. See Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. A 1977 ordinance provided: \u2018\u2018Effective immediately any written and oral examinations specified in the requirement sections of all ordinances dealing with job descriptions will be weighed equally, 50% written and 50% oral.\u2019\u2019 (Emphasis added.) Shelton, Conn., Code of Ordinances. See Record Exhibit 18, pages 267\u2013352. Again, this ordinance, which amends the previous merit system ordinances, defines the merit system and provides significant details concerning the applicability and operation of the merit system. General Statutes \u00a7 4-183 (j) provides in relevant part: \u2018\u2018The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, con- clusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .\u2019\u2019 The board\u2019s decision thus depends upon its finding that the city\u2019s merit system absolutely required a written examination, and therefore proceeding without a written examination changed the relative weight to be attached to each method of examination. The CBA further provides for a process of challenging the test results, however it is clear that this challenge process is directed to case-by\u2013case challenges of individual candidates. Thus, if a particular candidate believes that there was a mistake in scoring, that candidate may challenge the particu- lar score(s) through the specified challenge process. Thus, this challenge process adds nothing to the analysis of the issues before us. The board factually found that the merit system had been amended by the city on a multitude of occasions over the years, but that the record does not reflect the details of all changes to the merit system by city ordinances. Thus, this 1977 ordinance refers to \u2018\u2018any written and oral examinations\u2019\u2019 \u2018\u2018specified in the requirement sections of all ordinances.\u2019\u2019 (Emphasis added.) Clearly this ordinance does not specify that a written examination is required. Instead, it indicates that, if a written examination is administered, it will be weighted equally with the oral examination. Given the multitude of changes to the merit system over the years made by city ordinances, the court finds that the meaning of this CBA provision is that the city is authorized and required to use the city\u2019s merit system as that system is defined and modified by city ordinance from time to time, with the potential exception for negotiation required by \u00a7 7-474 (g) if changes are made that fit within the statutory exceptions. However, since no change was made to the relative weighting of examinations, no negotiation was required here. The court notes that the CBA defers to the city ordinances to define the merit system and does not prohibit the city from changing the merit system. This also makes sense since the merit system is used citywide across many unions and collective bargaining agreements. Further the vari- ous union\u2019s interests here are to ensure that promotions are provided in an evenhanded, fair and rational way. This interpretation is also consistent with \u00a7 7-474 (g), which exempts the merit based promotional process from mandatory negotiation except for the specific topics specified in the statute. However, regardless of which interpretation of this CBA provision is applied, the provision does not require the use of written examinations, thus no change was made in that regard. General Statutes \u00a7 7-474 (g) provides, inter alia, that the merit based promotional process is exempt from mandatory negotiation with a union except that changing the relative weight to be attached to methods of examination shall be subject to negotiation. As noted [previously], regardless of the interpretation of this provision, the merit system as described by the ordinances did not require a written examination, whether we look to Ordinance 896, which was in effect when the CBA was signed, or the 2018 ordinance. Neither ordinance required a written examination. The CBA does not itself explicitly define or describe the city\u2019s merit system in any detail. The city defined its merit system through city ordi- nances. However, even if we look at waiver, the union signed the CBA referencing the city\u2019s merit system while knowing that Ordinance 896 had been enacted months before defining and explaining the city\u2019s merit system as a system that \u2018\u2018may\u2019\u2019 include, but does not require, a written examination, and authoriz- ing the administrative assistant to utilize any procedures deemed appropriate by the administrative assistant. This ordinance was adopted through the normal public legislative process, and the union either was aware of it or should have been. The union chose to adopt the CBA requiring the city to use its merit system without further definition or limit in the CBA. If the union was dissatisfied with Ordinance 896, it should have objected when the ordinance was enacted or dealt with the matter in the CBA. The city now is merely acting in accordance with its agreement. The board found that the CBA language did not reflect a mutual intent to authorize elimination of the written exam. However, the CBA is absolutely clear in requiring the city to use its merit system in evaluating promotions. The city\u2019s merit system, whether the system in place at the time that the last CBA was signed or the system as established from time to time by city ordinance, does not require a written examination. Thus, there was nothing to waive. Conduct in accordance with the CBA effective at the time does not require a waiver because the city had the right and the obligation to conduct itself in accordance with the CBA. Although the city did use a written examination for some time, the system that it was operating under allowed for but did not require the use of a written examination. Further the CBA signed in 2016, and applicable to all relevant periods here, specifies and confirms that the city is to use its merit system. This is exactly what the city did."], "id": "a88ff54a-16f5-4d23-894d-fecdbe01a827", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["To determine whether retirees must proceed through the union and resolve disputes regarding postemployment benefits through the grievance arbitration procedures provided in the collective bargaining agreement from which those benefits arise, courts must examine the parties\u2019 intent as gleaned from the agreement. It is true, of course, that generally once an individual ceases to be an employee, the union\u2019s statutory duty to fairly represent the individual as a bargaining agent also ceases, and hence the union cannot be said to be that individual\u2019s exclusive representative for that purpose.3 But a union\u2019s contractual duty to represent a former employee by processing his or her grievance through the contractually established procedures may nevertheless remain. For example, it appears well established that if the events predicating a contract grievance arose at the time an individual was an active employee and thus a member of the , the union retains its duty to represent the former employee, and that employee *254and the union must resort to the contract procedures for resolution (see Baker v Board of Educ. of W. Irondequoit Cent. School Dist., 70 NY2d 314; Roman v United States Postal Serv., 821d 382). This is not a bargaining function \u2014 negotiating a new or different agreement \u2014 but one to resolve a dispute under an already bargained agreement in accordance with contractually agreed procedures for resolving those disputes."], "id": "8847977e-f720-4adb-8cb5-cc137e8edee5", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The purpose of the agreement is set forth in paragraph 2 of article I, as follows: \u201c 2. The purposes of this agreement are to make provision for the terms and conditions of employment for the \u2018 employees \u2019 (as distinguished from 1 parties \u2019) in the , to establish an orderly collective bargaining procedure between the Company and the Union (not between the \u2018 Company \u2019 and the \u2018 Employees \u2019) and to secure a prompt and fair disposition of grievances.\u201d"], "id": "4befa10b-734d-429d-90d5-8fea4303b651", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*769The discrimination common to each of these proceedings, the withholding of 1977 salary increases, is founded solely upon petitioners\u2019 nonunion status. While similarly graded employees were afforded raises pursuant to their collective bargaining agreement, increases were denied these petitioners solely because of their nonmembership in the collective . As in the Abrams (33 NY2d 488, supra) and Nassau (88 Misc 2d 289, supra) cases, the governmental objective sought to be accomplished or advanced by this discriminatory treatment is fiscal economy. But that objective was not sought to be accomplished by means of any equitably designed, consistently applied, all encompassing plan of salary reductions, salary grade reclassifications, pay raise deferments, employee furloughs, job eliminations, or other carefully conceived, fairly distributed economic measures (cf. Koenig v Moran, 56 AD2d 254 supra; and see Committee of Interns and Residents v City of N. Y., 87 Misc 2d 504, supra; Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 85 Misc 2d 695). Rather, the respondents elected to impose an economic hardship upon a nonunion minority of similarly graded employees. I find their actions to be constitutionally impermissible."], "id": "5ca8cca7-171c-43d5-bb14-5d721862f47c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioners\u2019 arguments fail because, as discussed above, petitioners have neither stated nor proven displacement of Parks Department employees. Petitioners failed to allege a loss of positions with a basic level of detail required under Rosenthal for a case-by-case analysis. Neither Rosenthal nor Roberts alleges that any bargaining unit positions were lost in the four months preceding the filing of this lawsuit."], "id": "8af0407c-db60-417e-9db5-f79e42ca94f9", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["\u201c The labor agreement is so well written and its pertinent language with respect to the right to challenge a discharge by the Company is so clear and unambiguous that there is no room for a construction contrary to the obvious and plain intent expressed by the parties themselves. \u201c Under the above quoted provisions, the Union alone has the right to demand arbitration and there is no independent right of an employee within the either to compel the Union to institute arbitration proceedings, or to require the Company to submit to arbitration without regard to the Union. \u2018 \u2018 The philosophy of the Union in retaining control over disputes and of the Company in requiring the same is sound. A contrary procedure which would allow each individual employee to overrule and supersede the governing body of a Union would create a condition of disorder and instability which would be disastrous to labor as well as industry.\u2019 \u2019 Although the petitioner has alleged in conclusory form that the union arbitrarily and capriciously refused to demand arbitration in his behalf and that both respondents are \u201c collusively \u201d preventing petitioner from arbitrating the rightfulness of his discharge, the facts presented on this application not only fall far short of supporting these allegations, but tend to prove quite the opposite. The fact appears to be that the union was satisfied that the employer had ample cause for discharging the petitioner and reasonably concluded that there Was no basis for demanding arbitration. Under the collective bargaining agreement it is the union which has the right to demand arbitration for alleged wrongful discharge of one of its members. Here, the union takes the position that in this case the discharge by the employer was justified and in so doing concurs in the position taken by the other party to the collective bargaining agreement. The motion to compel arbitration is therefore denied."], "id": "abed340d-62a9-4a52-9607-6adbcd1587ae", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner, the United Federation of Teachers (UFT), seeks to obtain copies of all grievances and decisions rendered on grievances filed by registered nurses represented by a competing union, the State Nurses; Association (the Association), which is a respondent-intervejnor in this proceeding. It appears that the UFT seeks sdch information as part of its campaign to supplant the Association as the certified collective representing registered nurses."], "id": "0d43ad71-8a6e-4585-a6b3-7605e729b6c5", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In support of the application the petitioner claims that in December, 1969 the respondent filed a petition with PERB for certification as the negotiating representative for the negotiating unit described in paragraph 6 of the petition. Paragraph 6 describes and lists those job titles which were to be included and which were to be excluded from the . Petitioner alleges that the job entitled \u201cdeans \u201d was not included in the description of those which were to be a part of the negotiating unit, and the job title of \u201cdepartment chairman\u201d was expressly excluded."], "id": "0899fde4-a7aa-4ce3-b60d-54613ebf18dc", "sub_label": "US_Terminology"} {"obj_label": "Bargaining Unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner, who was first hired as a probationary parole officer on December 4, 1980, obtained permanent/tenured status on December 4, 1981. Prior to his termination, he was never formally or informally disciplined. Petitioner was sentenced on February 18, 1988 to serve five years\u2019 probation and is presently appealing his conviction. At all relevant times, petitioner was a member of the Professional, Scientific and Technical Services Collective of State employees which is represented by the Public Employees Federation AFL-CIO (hereinafter PEF). On December 30, 1987, PEF filed a contract grievance and a demand for arbitration on petitioner\u2019s behalf contending that the respondents violated the PEF/State collective bargaining agreement by terminating petitioner without complying with the agreement\u2019s disciplinary procedures. Respondents thereafter refused to participate in the arbitration process."], "id": "a3b61f5c-5169-4fd6-8fb0-1233bdae6586", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Respondent, the exclusive negotiating agent of the employees of the county, filed a grievance alleging that the April 12, 1973 resolution was contrary to section 1 of article X of the collective bargaining agreement between the parties* and unilaterally abrogated a fringe benefit enjoyed by county employees since December 17, 1964. Petitioner contends that the health benefits for retirees were never the subject of negotiations and are not covered under the agreement. The arbitrator applied what is termed a \u201c past practices \u201d doctrine and found that, in view of the county\u2019s consistent past practice since 1964, there existed an implied agreement to provide an important existing benefit and that it should continue to pay one half of the cost of the health benefits in question. He made an award dated August 22, 1973 granting the benefit to any employees in the represented by respondent, who retired from petitioner\u2019s service after June 30, 1973 and was denied the benefit by virtue of the petitioner\u2019s action in 1973."], "id": "e608183d-59f9-4ba7-895a-4d6618343a3c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The company\u2019s motion herein is directed against that notice, upon the ground that the agreement clearly does not provide for arbitration with respect to employees outside the . In a supplemental affidavit in support of the motion the company shows that since the motion was made the Union *347has filed with the National Labor Relations Board a charge that the company has committed an unfair labor practice under the National Labor Relations Act, by reason of its refusal to bargain with the Union with respect to the conditions of Philip Cornelia\u2019s temporary transfer; that the Regional Director of said board refused to issue a complaint upon said charge; and that the Union has appealed from the Regional Director\u2019s decision and said appeal is still pending. The Union does not contest this showing."], "id": "12a15034-5dab-4e64-930c-d2f4b1643514", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On November 14, 1961 Rodney Stark, an employee, included in the covered by this agreement, was laid off as a traffic co-ordinator, transferred to replace one McGill as an expeditor on November 15, and promoted to a job outside the unit on January 2, 1962. The arbitrator found that the work of the traffic co-ordinator had dwindled to less than two hours, therefore making it impracticable to keep an employee in that classification, that his work was reassigned to other employees *143and to the shipping and receiving supervisor who \u2018 \u2018 is performing only a small part of the function, most of which he has always done in the past. \u2019 \u2019"], "id": "fd8e768c-cfee-4bf5-9d85-625215e09d1e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The petitioner then appealed to PERB from the decision of the acting director. It asserted \"that the scope and composition of a is a mandatory subject of bargaining and where, as here, the respondent unilaterally alters said bargaining unit it is a violation of Sections 209-a.l(a) and (b) of the Act\u201d. Inherent in this assertion is its argument that \"the scope and composition of a recognized collective bargaining unit is a term and condition of employment within the meaning of Section 204(2) of the Act,\u201d and, therefore, the \"existing bargaining relationship should not be altered without prior bargaining in good faith\u201d. In so arguing it attempted to analogize the prohibition of withdrawing, without bargaining, recognition of a voluntarily recognized bargaining unit in the private employment sector, and, while it conceded that the public employer\u2019s initial recognition is and should be voluntary, it contends that the law precludes a subsequent voluntary alteration of that recognition."], "id": "d628d0b2-1b96-4a10-8997-355ebd829296", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In this case, Grower relies on the disclaimer exception to the certified until decertified rule. Disclaimer involves a union \"unwilling to represent the unit employees.\" (Dole Fresh Fruit Co., Inc. (1996) 22 ALRB No. 4, p. 11.) In Arnaudo I , supra , 40 ALRB No. 3, the Board noted that it had \"never defined what constitutes a disclaimer of interest\" under the Agricultural Labor Relations Act. (Arnaudo I, supra, at p. 13.) The Board partially filled the void by adopting four principles derived from precedent of the National Labor Relations Board (NLRB). First, the Board equated a disclaimer with an unwillingness to represent the . (Id . at p. 10, fn. 2 and accompanying text.) Second, the Board concluded that a disclaimer by a union must be clear and unequivocal and must be made in good faith. (Id . at p. 14.) Third, the union's conduct must not be inconsistent with the disclaimer. (Ibid .) Thus, inconsistent conduct can render a clear and unequivocal disclaimer ineffective.6 (Ibid .) Fourth, \"the party asserting disclaimer of interest bears the burden of proving the disclaimer occurred.\" (Ibid .)"], "id": "c7a9d799-dc9a-4073-830d-8f67d52ae527", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["\"Section 2. All persons commencing employment with Nassau County on or after January 1, 1977 shall receive a starting salary as reflected in Schedule 'B\u2019 attached hereto and made a part hereof. All of said new employees commencing County employment on or after January 1, 1977 shall not become members or enjoy any of the benefits of the graded salary plan with steps contained therein and set forth in Schedule 'A\u2019 but shall be limited to receive such renumeration as is contained on Schedule 'B\u2019 plus any additional sums which may be negotiated between the and the County on a year-to-year basis."], "id": "42cc6608-247d-47e9-b227-04eae37749f2", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Edward S. Conway, J. This is a motion by the plaintiff for a preliminary injunction in a declaratory judgment action seeking judgment declaring that there is no binding collective bargaining agreement between the plaintiff and the State of New York replacing the 1977-1979 agreement. The preliminary injunction sought would enjoin and prohibit the defendants, during the pendency of this action, from implementing and imposing on the plaintiff or any member of the , which plaintiff represents, any provision of an alleged contract which the State purports to have been entered into between the plaintiff and the State of New York as a successor agreement to a contract between the plaintiff and the State of New York dated April 13, 1977, and would prohibit and restrain the defendants from interfering with the rights of plaintiff and its members by representing to plaintiff\u2019s members and others that such a contract exists."], "id": "be3ebd41-1a1d-48cf-bb2c-84b84d677b69", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The initial contract between the County of Chautauqua and Local 807 was in effect from January 1,1978 through December 31, 1980, and covered all county employees except department heads, elected officials and officials who had power to appoint subordinate personnel. It included most of the Sheriff\u2019s employees who now are in the plaintiff\u2019s . The contract *471expired December 31,1980, but its provisions remained in effect \u201cuntil the parties reach a subsequent agreement\u201d."], "id": "27560073-b28d-409e-972b-d064369fcd9a", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["It is apparently the claim of the unions that the action of the company in these particular matters has deprived employees in the of work which might otherwise have been assigned to them. The question of arbitration of these particular matters depends upon the arbitration clause of the labor *232agreement which may not be expanded by construction or implication but must be taken as written."], "id": "ec6f807f-e868-46ef-8a23-f6d154e98503", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The State has the power to regulate, despite what may be some incidental infringement, individual rights. The helpful means; devised by the State to deal with \u201c evils \u201d has been weighed by the courts against any infringement on rights. (Mine Workers v. Illinois Bar Assn., 389 U. S. 217.) Congress has exercised its constitutional power to regulate labor relations, enacting the Wagner Act of 1936, the Taft-Hartley Act of 1947, *257and the Landrum-Uriffin Act of 1959. Under the National Labor Relations Act (NLRA), Congress empowered the National Labor Relations Board to regulate labor relations. NLRA commands, as its purpose and policy, that the peaceful procedures of collective bargaining supersede the jungle warfare which caused industrial strife. Thus, collective bargaining is a private undertaking by employer and labor organizations in the public interest. The case of Labor Bd. v. Jones & Laughlin (301 U. S. 1) affirmed the validity of the Wagner Act, and this has been the basis of all future labor regulations. The only source of revenue for the union is membership dues and initiation fees. The Supreme Court has made it clear that requiring a reasonable fee for membership by a \u201c union shop \u201d provision is not in itself a violation of constitutional rights. (Railway Employees Dept. v. Hanson, 351 U. S. 225; Machinists v. Street, 367 U. S. 740.) The viability of unions is part and parcel of Congress\u2019 intention to promote industrial peace through collective bargaining. The beneficiaries of collective bargaining, being all the members of the laboring force, should contribute to the cause and not have a \u201c free ride \u201d. Thus, Railway Employees Dept. v. Hanson (supra) decided that it was permissible for the Legislature to require all who gain from collective bargaining to contribute to it. Aftra has been explicitly and particularly selected by a majority of the employees in the same as plaintiff as their bargaining agent. Its services, consequently, are expressly solicited and wanted by these employees for the full, fair and faithful pursuit of the collective bargaining objects and purposes of these employees in the exercise of the rights guaranteed to all employees under the NLRA. Although the plaintiff derides the benefits accruing to him by reason of the collective bargaining of Aftra, whether he wants such benefits or not, Aftra is obligated to provide such benefits to him as an employee in the bargaining unit under the doctrine of Vaca v. Sipes (386 U. S. 171, 177): \u201c Under this doctrine, the exclusive agent\u2019s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination towards any\u201d."], "id": "75e83d20-502d-4831-b238-304958e1d004", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In reaching its determination, PERB accepted the arbitrator\u2019s interpretation of section 38.3 and then applied its decision in State of New York (Unified Ct. Sys.) (25 PERB 3035) where it concluded that, because the contract gave the employer unrestricted discretion regarding the granting of paid leave for a certain purpose, the effectively waived its right to further bargain and lost its right to maintain a unilateral change cause of action. It noted that the circumstances here are indistinguishable from those in State of New York (Unified Ct. Sys.) (supra), and thus concluded that the arbitrator\u2019s decision was not repugnant to the Taylor Law since petitioner waived the right to bargain over travel time compensation."], "id": "a38a3cb2-47ee-4e2d-ae0a-9ef444de7cb2", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["It is the petitioner\u2019s contention that the matters sought to he arbitrated involve a challenge by respondent to the approved by PERB following an election, and an attempt to interfere with another bargaining unit which is represented by a separate employee organization, and that an arbitrator has no power or authority in this matter and therefore arbitration should be stayed."], "id": "b19a2750-eee7-4330-a50b-71ab2da46339", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In connection with the foregoing, the court notes that a presumption of validity and legality attaches to a collective bargaining agreement (Matter of Levinsohn Corp. [Joint Bd. of Cloak, Suit, Skirt & Reefer Makers\u2019 Union], 299 N. Y. 454). A union is not required to show that the National Labor Relations Board has previously established the appropriate collective and that the union is the majority representative therein; and, unless and until the National Labor Relations Board invalidates a collective bargaining agreement, the normal presumption of legality must prevail (Matter of Levinsohn, supra)."], "id": "52ce9978-3f10-4d12-9719-592f55bbc951", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*934On September 30, 2015, the Board issued Decision No. 2455, adopting the ALJ's proposed decision. The Board specifically rejected appellant's contention that certain employees, such as bus drivers who did not work 12-month assignments, were not entitled to holiday pay, finding that \"[u]nder the [collective bargaining agreement], employees included within the are entitled to holiday pay whether they work the holiday or not so long as they are on paid status on the working day immediately preceding or succeeding the holiday. The District's attempt to remove bus drivers and other CSEA-represented bargaining unit employees from coverage under the [collective bargaining agreement] by referring to them as 'as needed' or to their assignments as 'extra-duty or summer session' or 'beyond *27their \"regular\" assignments' fails. These distinctions are nowhere to be found in the parties' negotiated labor agreement.\""], "id": "2e891cf7-eb4e-4f84-a993-88b58d67edc9", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Moreover, the references in the Union\u2019s so-called 44 Spotless Bulletin,\u201d a publication issued by the Union to its members in August, 1958, and its purported collective bargaining agreement seeking to cover 44 trade \u201d embalmers, which was submitted by the Union to plaintiffs during the Summer of 1958, are further proof that the true objective of the Union\u2019s activities was to *309press the issue of the recognition of \u201ctrade\u201d embalmers as part of the collective . In the opinion of the court, all of the Union activities here involved, including the use of pickets, picket signs, the circulation of letters to other unions and to the public in an attempt to discourage patronage of the Association\u2019s members are all in direct violation of the injunctive order, inasmuch as this course of conduct destroyed or was a calculated attempt to destroy the goodwill, trade and business of the Association and of its members."], "id": "3394db12-777e-4719-a77a-ccbc6eb8bc32", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The facts in Abood (supra) are strikingly similar to the facts here. There a group of nonunion public school teachers challenged the constitutionality of a Michigan statute which permitted public employers to require as a condition of employment that all employees in the pay to the bargaining representative a service fee equal to the amount of dues paid by the members. The plaintiffs argued a violation of rights guaranteed by the Constitution because the fees they were compelled to pay were used by the union, over their objections, for purposes other than collective bargaining, including political, religious, charitable and recreational activities. Upon review of a motion addressed to the pleadings, the Michigan Court of Appeals sustained the validity of the statute and held that, regardless of whether or not plaintiffs\u2019 allegations were true, they were nevertheless not entitled to restitution of any portion of the fees (60 Mich App 92)."], "id": "b57b0c13-95cc-45ec-9635-146c564e299e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner herein, an employee organization, is the duly certified representative of a of employees consisting of noncommissioned officers, investigators and troopers within the Division of State Police. Another employee organization, Local 1908, filed a petition with the respondent PERB August 29, 1975 seeking to challenge the representation status of the petitioner herein. Local 1908 filed its evidence of a \"showing of interest\u201d of 30% or more of the employees in the unit in accordance with PERB\u2019s rules of procedure by attaching to its petition a computer print-out list of the dues-paying members of the local, provided by the State of New York, and petitions signed by members of the Local 1908 supporting the filing for a secret ballot election for the selection of a bargaining representative."], "id": "9edda233-0328-41dd-b2a8-641e77e8e425", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The Board has interpreted the Agricultural Labor Relations Act to mean that once a labor organization is certified as the exclusive bargaining representative of a group of employees, it remains certified \"until it is decertified or a rival union is certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees.\" (Lu-Ette Farms, Inc. (1982) 8 ALRB No. 91, p. 5.) This principle is referred to as the \"certified until decertified\" rule and its two exceptions. (Arnaudo I , supra , 40 ALRB No. 3, p. 9.) The exceptions of defunctness5 *655and disclaimer are not expressly stated in the Agricultural Labor Relations Act. Thus, from the perspective of statutory construction, the exceptions were not clearly stated in the text, but were derived by inference. *36Both of the exceptions are referred to by the Board under the label \"abandonment,\" which the Board describes as \"a legal term of art.\"6 (Bruce Church, Inc . (1991) 17 ALRB No. 1, p. 9.) \"[T]he Board has defined abandonment as a showing that the Union was either unwilling or unable to represent the .\" (Id . at pp. 9-10.) More generally, abandonment is, \"in essence, a showing that the Union had effectively left the scene altogether.\" (Id . at p. 10.)"], "id": "90ceb1c0-ea20-4683-af05-757da9f0f0ab", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["PERB scheduled a hearing on the UFCT petition, and notice to that effect was sent to UFCT. A copy of the UFCT petition was posted at the PERB office in the Nassau County Executive Building in the Mine\u00f3la complex. No notice was directly given to the Senate, and the Senate did not participate in the early proceedings, which commenced on October 14, 1970 before a hearing officer designated by PERB. The hearing officer subsequently submitted his report to PERB on January 12, 1971 recommending that the appropriate would be \u201c one unit * * * for both full-time faculty and part-time *310faculty who are not management employees That proposed unit would include the employees then being represented by the Senate."], "id": "a6e92f0e-0f64-49cc-aa7c-1a7fc44fe04c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*389When, as here, PERB has no power to directly undo an action, PERB's remedy is not to indirectly undo the action or treat the action as if it has been or will be undone. Instead, PERB's remedy is to order bargaining over the effects of the action and backpay for the affected employees during the bargaining process. (See Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 862-866, 176 Cal.Rptr. 753, 633 P.2d 949 ; El Dorado County Deputy Sheriff's Assn. v. County of El Dorado (2016) 244 Cal.App.4th 950, 964, 198 Cal.Rptr.3d 502 ; see also Transmarine Navigation Corp. (1968) 170 NLRB 389, 390.)"], "id": "52d5d8b0-39cf-4935-9b5b-c66250b77f18", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner\u2019s counsel\u2019s position is that neither he nor NYSUT is under any obligation to provide any member with counsel, but that it provides counsel for teachers in job-related matters *661where counsel considers the teacher\u2019s case meritorious. Counsel further argues that there is no statutory or common-law authority for Dreska\u2019s position. Counsel claims that Vaca v Sipes (386 US 171) is the pertinent authority contrary to Dreska\u2019s position. In Vaca, the United States Supreme Court held that a certified bargaining representative\u2019s duty to fairly represent all of the members of the (see Steele v Louisville & Nashville R. R. Co., 323 US 192, 203) does not require the union to take every grievance raised by a member of the bargaining unit to arbitration merely because he demands it. Rather, the obligation of the union is satisfied as long as the union is neither arbitrary nor discriminatory and acts in good faith (Steele v Louisville & Nashville R. R. Co., 323 US, at p 207). Thus, on the basis of Vaca, counsel argues that NYSUT through counsel \"made a good faith reasonable judgment that petitioner\u2019s rights had been violated, and, accordingly, provided her with counsel.\u201d The union, it is argued, \"must also be free to pursue those matters it deems meritorious\u201d and \"it must be free to take a position on * * * disputes.\u201d (Humphrey v Moore, 375 US 335, 349.) In Humphrey v Moore (supra), the United States Supreme Court rejected the contention that a union\u2019s recommendation that seniority lists of two merging companies within the same bargaining unit be \"dovetailed\u201d was a breach of the duty owed to members of the bargaining unit who were employed by one of the companies. The court stated that, absent hostility, bad faith or dishonesty, the union should not be \"neutralized\u201d when an issue arises between two sets of employees (Humphrey v Moore, 375 US 335, 349, supra). A similar holding was reached in Waiters Union, Local 781 of Washington, D.C. v Hotel Assoc. of Washington, D.C. (82 LRRM 2646), where the court, relying on Humphrey, stated that a court \"cannot find a breach of the duty of fair representation when a union\u2019s decision in a matter as to which the interests of differing groups of employees are in conflict is not shown to be fraudulent or deceitful and is not based upon capricious or arbitrary factors\u201d (Waiters Union, Local 781 of Washington, D.C. v Hotel Assoc. of Washington, D.C., 82 LRRM, at p 2648, supra)."], "id": "347a693e-4ea6-4afe-be1e-7f59bd4db5b0", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Turning to the question of whether the Association actually owed the plaintiffs a duty of fair representation, defendants first argue that the plaintiffs \u201cwere not part of the at the time the professional agreement was negotiated\u201d and therefore were not entitled to representation by the Association or to complain that they were denied the retroactive benefits. While it is true that the plaintiffs were no longer employed by the District at the time the District and Association finally concluded their negotiations regarding the 1999-2003 contract, the defendants\u2019 statement is misleading. The plaintiffs were part of the bargaining unit and arguably entitled to fair representation during part of both the negotiations and the 1999-2003 contract period for which they are demanding the same retroactive increases as the employees who remained in May 2001. Defendants may not simply ignore the plaintiffs\u2019 claim for fair representation during the period of time that the plaintiffs were represented by the Association."], "id": "739585f6-2ea3-4aec-bd06-767640d84f67", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Three separate grievances were presented to the arbitrator (Robert F. Koretz, Professor of Law, Syracuse University), all were heard on March 22, 1962, and the arbitrator\u2019s opinion and awards were issued May 3, 1962. He found that the company violated paragraph 151 of its contract by assigning \u2018 \u2018 normal duties \u201d of a laid-off employee to non employees. However, the arbitrator also found that the company did not violate that paragraph by assigning work of a type \u201c customarily performed \u201d by nonunit employees to such persons. Petitioner objects to the second finding, saying the arbitrator modified paragraph 151 by using the words \u201c customarily performed \u201d in violation of paragraph 38 of the contract. The union contends further that the arbitrator imported an exception to paragraph 151 not covered by the agreement since nowhere in paragraph 151 is there authority for permitting nonbargaining unit persons to perform bargaining unit work merely because it is work which has been \u201c customarily performed \u201d by nonunit persons. Petitioner relies on Simons v. Publishers Assn. of New York City (94 N. Y. S. 2d 362 [Sup. Ct., N. Y. County, 1949])."], "id": "476fb08a-c9d8-46b9-b839-8a4478c46125", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Moreover, the company\u2019s contention that its contract with the Union makes no provision for arbitration in the present circumstances must be sustained. Article II (a) of the labor contract expressly excludes as employees thereunder \u201c all other employees such as office and clerical employees, foremen and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action.\u201d It is not disputed that a tour boss (permanent position) is such an excepted employee. In article XV of the agreement, concerning transfers of employees it is provided in section 5 that \u201c Transfers from positions in the to positions outside the bargaining unit shall be the sole prerogative of the Company \u201d, and it further provides that any transferred employee shall have the right within six months to be retrans*348ferred. Even with respect to transfers within the bargaining unit (art. XV, No. 2-A) the company has the right \u201c to make the same effective, subject only to review under the grievance procedure if it acts in an unreasonable manner and without any justification \u201d; and the Union makes no claim herein that the company has acted unreasonably or without justification."], "id": "adc8ce17-f070-4280-8193-52de345e9b11", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["PERB concluded that the acting director had \"properly stated and applied the Taylor Law\u201d. In so doing, it stamped its approval on four findings of the acting director: \"that the passage of the Resolution does not, per se, constitute a refusal to negotiate in good faith\u201d; that whether a particular job title \"is or should be included in a negotiating unit is a permissive rather than a mandatory subject of negotiations\u201d; that the \"inclusion of a recognition clause in an existent contract does not enlarge the scope of mandatory negotiations or impose upon the respondent an obligation to either rescind its resolution or negotiate with the charging party concerning the changes made\u201d; that, if an employer during the challenge period alters a it had voluntarily established by recognition, the remedy, if any, lies in a timely filed representation petition."], "id": "f66ecc92-9564-46db-996c-76b8e33c8491", "sub_label": "US_Terminology"} {"obj_label": "Bargaining Unit", "legal_topic": "Employment Law", "masked_sentences": ["Based upon the plaintiff\u2019s complaint, the court decides that it is premature to rule on a motion to dismiss whether or not the express language of the 1982-1985 agreement between the State of New York and the State-wide Collective represented by CSEA, Inc. contains evidence of any intent to benefit a third party, to wit: county employees such as the decedent."], "id": "02a598d7-30a7-4d2a-ad47-56bfc480ae74", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["*1224The remedy formulated by the administrative law judge directed Grower to cease and desist from failing to provide information and from failing to bargain. He also directed Grower to make information available to the Union and to make the members whole for all losses in wages and fringe benefits they reasonably suffered as the result of Grower's refusal to bargain, for the period of September 27, 2012, to May 24, 2013 (i.e., the date of the first mandatory mediation session), plus interest."], "id": "8122dc78-cfc3-4e9c-87f7-0d342bb5b606", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Within days, the PERB issued its new decision. Consistent with the directions on remand, the PERB acknowledged it had in State Personnel Board found the State Personnel Board subject to section 3519 as a \"state\" entity \"in certain circumstances.\" (Citing State Personnel Board , supra , *818PERB Dec. No. 1864-S, p. 23.) Under the facts of the present case, the State Personnel Board had adopted uniform regulations for all employees in the civil service, not limited to its own employees or any other *592particular . A duty to meet and confer in these circumstances with the 21 represented units would be antithetical to the need for uniformity. Therefore, the State Personnel Board was acting in its regulatory capacity, not as an employer, and was not subject to section 3519. As a result, the PERB dismissed the charge."], "id": "3fbd6d16-9551-4e04-b3d2-3b2b1f6decaf", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On or about June 27, 1973 the county and the CSEA entered into the current labor contract covering the terms and conditions of employment of all employees of the county within the collective for the period commencing January 1, 1973 through and including December 31, 1974. The contract continued in effect many of the terms and provisions of prior labor contracts between the parties and more specifically the \"graded service salary plan\u201d (the plan) which was enacted into local law as the same was thereafter amended from time to time."], "id": "dcfebd90-8e9e-45b4-9d91-c14260750095", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The fact that the MOU was approved by the Legislature and enacted into law distinguishes this case from Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 127 Cal.Rptr. 525 ( Grier ), upon which plaintiffs rely. The plaintiff bus drivers and defendant transit district in Grier had negotiated a collective bargaining agreement providing that drivers who were late for work without a satisfactory excuse would serve \"penalty point\" duty under which they would wait in the dispatching area, without pay, until released for the day or assigned to a run. ( Id . at p. 329, 127 Cal.Rptr. 525.) The trial court concluded the transit district's labor relations were governed only by the Transit District Law applicable to the counties of Alameda and Contra Costa, which empowered the transit district to administer a personnel system adopted by the board of the district and to negotiate with a collective regarding wages, hours, and working conditions. ( *741Id . at pp. 331-332, 127 Cal.Rptr. 525 ; Pub. Util. Code, \u00a7 24501 et seq. ) This division of the First Appellate District disagreed. While statutes governing other transit districts contained language that the districts' bargaining powers were not \"limited or restricted by the provisions of ... other laws or statutes\" ( Grier , 55 Cal.App.3d at p. 332, 127 Cal.Rptr. 525, italics omitted), the Legislature omitted this language from the provisions governing the Alameda-Contra Costa County Transit District. The court therefore concluded the Legislature did not intend the district's labor relations to be governed only by the applicable Public Utility Code provisions, but rather, that the district's rules and regulations, \"including those adopted by a resolution approving a collective bargaining agreement, must themselves be promulgated subject to the limitations and restrictions of other applicable laws.\" ( Id . at p. 333, 127 Cal.Rptr. 525.) Grier *1273does not stand for the proposition that a labor agreement approved by the Legislature is subject to inconsistent labor laws of general application."], "id": "51ff8ddc-5b1b-401b-8ab1-fd317e67244e", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On May 16, 1990, a petition for certification was filed by the United Food and Commercial Workers District Union Local One AFL-CIO/CLC (the Union) with the respondent New York State Public Employment Relations Board (PERB). The Union applied to represent, for collective bargaining purposes, a proposed negotiating unit consisting of employees of the petitioner Mohawk Valley Nursing Home, Inc. (the Nursing Home) located in Ilion, New York. On July 2, 1990, the Union and Nursing Home entered into a consent agreement defining the proposed and providing for a secret ballot election. The agreement, in pertinent part, called for the election to be conducted \"at a time and place to be fixed by the [PERB] Director or the Director\u2019s agent, in accordance with the procedures and policies of the Board\u201d. Eligible voters were defined in the agreement as those \"who were in the employ of the Employer [the Nursing Home] on June 29, 1990, and who are so employed on the date of the election\u201d."], "id": "cfe90b75-e96c-45cd-9c0c-dbe581008c7f", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Although the Board has been consistent in limiting the concept of abandonment by a certified bargaining representative to disclaimer and defunctness, there remains unsettled questions of law about the concept of abandonment and the circumstances in which a labor organization is deemed to have lost its certification. Part of the uncertainty exists because the concept of abandonment was not expressed in the Agricultural Labor Relations Act, but has been recognized by the Board. The uncertainty surrounding the concept is further demonstrated by the fact that an issue currently pending before the California Supreme Court is whether an employer may oppose a certified union's request for referral to mandatory mediation by asserting the union abandoned the . ( *37Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2015) 236 Cal.App.4th 1024, review granted Aug. 19, 2015, S227243.)"], "id": "e0ab030d-4071-44e9-96ad-97d14742d17b", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Pursuant to Insurance Law \u00a7 4402 (a), the fund constitutes an employee welfare fund and defendants are fiduciary trustees of that fund for all assets received, managed or disbursed by them, or under their authority (see Insurance Law \u00a7 4412 [a]), and having the general power of administration there over. (See Insurance Law \u00a7 4402 [c].) While defendants correctly note that there is no reported New York State decision finding either a statutory or common-law fiduciary duty for the trustees prohibiting the alleged act of self-perpetuation, and that the sole statutory duty imposed is only financial in nature, this court does not agree that no viable cause of action for breach of fiduciary duties can be stated against trustees who attempt to entrench themselves in power and thereby effectively exclude oversight of their actions. New York law requires trustees to owe beneficiaries \u201ca duty of loyalty and are required \u2018to administer the trust solely in the interests of the beneficiaries.\u2019 \u201d (Aspro Mech. Contr. v Fleet Bank, 1 NY3d 324, 330 [2004] [citation omitted].) Thus, where trustees, as here, have implemented amendments which essentially insulate the trustees from responsibility for failing to carry out their fiduciary duties and place them beyond the oversight of the , this court agrees with at least one lower federal court decision which had granted a preliminary injunction in favor of the *486union and against the trustees upon an analysis analogizing the same facts to a line of ERISA cases, and having found that upon the mere enactment of such amendment the trustees may be held liable for violating their fiduciary duty to the trust. (See Rosenthal v Roberts, US Dist Ct, SD NY, Aug. 13, 2004, Cote, J.) Accordingly, the motion to dismiss for failure to state a cause of action is denied."], "id": "fd62e012-3a20-462b-a21f-e83eb569a44c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Prior to the expiration of the collective bargaining agreement in June, 1959, the union contended that \u201c selecting \u201d work, which was then being performed by independent contractors, was within the scope of the and therefore was properly work which should be performed by members of respondent union. The company refused this request and a six-week strike ensued, in which this dispute was a principal issue. There*562A\u00cdter, \u00e1 new contract was signed which gave to 'r\u00e9sp\u00f3ndetit uni\u00f3n the right to perform s\u00e9le\u00e9ting work \"as of S\u00e9ptember, 1960."], "id": "1fb25ac7-1117-4975-98c5-7e4e1e15284b", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The statutory authority for defendants\u2019 argument that plaintiffs\u2019 rights evaporated as soon as they retired is not explicit. Civil Service Law does not specifically terminate all existing union obligations to individual employees in its at the moment that the employee ceases to be employed. Thus the issue of whether the Association owed any duty to plaintiffs when the District and Association finished negotiating a contract after the plaintiffs retired requires more than pure statutory construction (Matter of Gruber [New York City Dept. of Personnel \u2014 Sweeney], 89 NY2d 225, 231-232). Consequently, PERB\u2019s analysis is not entitled to the same deference as is normally afforded the interpretation of a statute by an administrative body charged with the duty of interpreting its provisions (Appelbaum v Deutsch, 66 NY2d 975, 977; Matter of Cathedral of Incarnation v Glimm, 61 NY2d 826, affg 97 AD2d 409, 410; Matter of Burke v Denison, 218 AD2d 894, 895-896)."], "id": "66e0daed-c648-4e6b-ae96-5417a320f26c", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["In assessing the validity of PERB\u2019s analysis it must be conceded that the general proposition that unions usually have, no duty to represent those who are outside the *120logically follows from the union\u2019s statutory obligation to represent employees in the bargaining unit. While PERB\u2019s conclusion is logical in many situations, there are necessary exceptions. Among the exceptions which the courts have already recognized is that an employer cannot extinguish an employee\u2019s rights to fair representation by simply terminating the employment (Baker v Board of Educ. of W. Irondequoit Cent. School Dist., 70 NY2d 314, 323; Matter of Hall [State of N.Y. (Dept. of Envtl. Conservation)], 235 AD2d 757; Matter of County of Schenectady [Lainhart], 177 AD2d 826, 827). Even PERB has acknowledged that there must be exceptions to its general rule. When an employee\u2019s employment relationship is severed, the union\u2019s representation duties to that former employee do not end \u201cin circumstances in which the severance from employment is being contested or there is some other basis upon which to conclude that there is a continuing nexus to employment notwithstanding the individual\u2019s relinquishment or loss of employment\u201d (Matter of Bartolini v Westchester County Correction Officers\u2019 Benevolent Assn., Inc., 30 PERB \u00b6 3075; Matter of Heady v County of Dutchess, 31 PERB \u00b6 3068)."], "id": "7090a5e3-cfd6-47ff-9e9f-ac3f8fa9b6ce", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["On September 10, 2015, the Board issued Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (2015) 41 ALRB No. 6 (Arnaudo II ) in which a majority affirmed the administrative law judge's ruling, findings and conclusions in full. The concurring and dissenting opinion of one Board member agreed with rejecting the claim that the Union disclaimed interest in representing the , agreed with awarding a make whole remedy, but provided additional grounds for why the make whole remedy was appropriate."], "id": "08fca78c-c4b5-4c7f-b3c9-b284e151ca36", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["JACKSON, Circuit Judge: By statute, certain federal employers are required to engage in collective bargaining with their employees\u2019 representatives whenever there is a management-initiated change to the \u201cconditions of employment affecting such employees.\u201d Federal Service Labor-Management Relations Statute, 5 U.S.C. \u00a7 7103(a)(12); see also id. \u00a7\u00a7 7102(2), 7103(a)(14). Congress has defined \u201cconditions of employment\u201d to include \u201cpersonnel policies, practices, and matters . . . affecting working conditions,\u201d with certain enumerated exceptions. Id. \u00a7 7103(a)(14). And from the mid-1980s until the policy statement challenged here, the Federal Labor Relations Authority (\u201cFLRA\u201d) interpreted these statutory provisions to require collective bargaining over any workplace changes that have more than a de minimis effect on such working conditions. In September of 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the agency\u2019s new standard, the duty to bargain is triggered only if a workplace change has \u201ca substantial impact on a condition of employment.\u201d U.S. Dep\u2019t of Educ., 71 F.L.R.A. 968, 971 (2020). The petitioners are public-sector labor unions that challenge the FLRA\u2019s decision to alter the bargaining threshold; they maintain that the FLRA\u2019s new standard is both inconsistent with the governing statute and insufficiently explained, and is therefore arbitrary, capricious, and contrary to law. In the opinion that follows, we hold that the FLRA\u2019s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act (\u201cAPA\u201d), 5 U.S.C. \u00a7 706(2)(A). We therefore grant the unions\u2019 petitions for review and vacate the FLRA\u2019s policy statement. BACKGROUND Before the fall of 2020, it was the longstanding view of the FLRA that, despite certain federal employers\u2019 clear statutory duty to engage in collective bargaining over \u201cconditions of employment,\u201d 5 U.S.C. \u00a7 7103(a)(12), some public-sector management decisions were not subject to bargaining if they had only a \u201cde minimis impact\u201d on such conditions. Dep\u2019t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. 403, 407 (1986); see also Dep\u2019t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. 827, 834 (1985) (McGinnis, concurring); Dep\u2019t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. 922, 924 (1984). The de minimis impact exception, the FLRA explained, \u201cderive[s] from the Latin phrase \u2018De minimis non curat lex,\u2019 which . . . mean[s] that the law does not care for, or take notice of, very small or trifling matters[.]\u201d Dep\u2019t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407 & n.2 (quoting De Minimis Non Curat Lex, BLACK\u2019S LAW DICTIONARY (5th ed. 1979)). In other words, the FLRA read 5 U.S.C. \u00a7 7103(a)(12) and (14) to imply a narrow exception to the statute\u2019s collective bargaining requirement; one that pertained to management decisions that had only a trivial effect on conditions of employment. In October of 2019, the United States Departments of Education and Agriculture jointly requested that the FLRA issue a general statement of policy changing the impact threshold at which collective bargaining becomes mandatory. See 5 C.F.R. \u00a7 2427.2 (providing for general statements of policy or guidance). The Departments alleged several problems with the longstanding de minimis standard. For instance, they asserted that the de minimis policy was insufficiently concrete to permit consistent application, causing unnecessary litigation. They also asserted that \u201ceffective and efficient government would be promoted by the establishment\u201d of a clearer standard, and they maintained that the ideal standard would be one under which only a \u201csubstantial change\u201d\u2014or, rather, a change having a \u201csubstantial impact\u201d on conditions of employment\u2014triggers the duty to bargain. Request for General Statement of Policy or Guidance at 3\u20134, J.A. 3\u20134. On September 30, 2020, the FLRA adopted the Departments\u2019 proposed standard over a dissent and without soliciting public comment. In a four-page policy statement, the FLRA announced that \u201can agency will not be required to bargain over a change to a condition of employment unless the change is determined to have a substantial impact on a condition of employment.\u201d Dep\u2019t of Educ., 71 F.L.R.A. at 971. The FLRA stated that the \u201cmore than de minimis\u201d test for determining when the duty to bargain is triggered is \u201cnot the appropriate standard,\u201d id., in part because that test had resulted in bargaining \u201cwhenever management has made any decision, no matter how small or trivial\u201d and is also \u201cunpredictable,\u201d id. at 969. The FLRA further faulted the initial agency decision to adopt the de minimis standard on the grounds that it was insufficiently explained. Id. at 970. With respect to the substantial-impact test, the FLRA suggested that this new standard would create \u201ca line that [was] meaningful and determinative[,]\u201d and noted that substantial impact is the governing bargaining threshold in the private sector. Id. The FLRA\u2019s dissenting member argued that the agency\u2019s adoption of a new bargaining threshold was an unjustifiable departure from past precedent and that there was a clear legal basis for the agency\u2019s prior adoption of the de minimis standard. See id. at 972 (DuBester, dissenting). The dissent also maintained that the substantial-impact test was contrary to the governing statute, id. at 973, and that the FLRA\u2019s policy change was not sufficiently reasoned or explained, id. at 973\u2013 76. The petitioners in these consolidated cases\u2014the American Federation of Government Employees, AFL-CIO, the National Treasury Employees Union, and the American Federation of State, County and Municipal Employees, AFL-CIO\u2014are labor unions that represent employees of government agencies that the FLRA\u2019s policy change covers. Each filed a timely petition for review of the FLRA\u2019s policy statement, and we consolidated the petitions. The unions have standing as employee representatives whose \u201cbargaining position\u201d would be \u201cfundamentally diminished\u201d under the FLRA\u2019s new interpretation, see Nat\u2019l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 853 (D.C. Cir. 2006), and we have jurisdiction over their petitions for review, see 5 U.S.C. \u00a7 7123(a). The unions challenge the FLRA\u2019s policy statement on two grounds, both of which implicate APA standards. First, they argue that the new substantial-impact threshold rests on an impermissible reading of 5 U.S.C. \u00a7\u00a7 7103(a)(12) and (a)(14); they contend, in particular, that removing management- initiated changes whose effects are more than de minimis but less than substantial from the scope of collective bargaining is contrary to the plain and unambiguous language of these statutory provisions. Second, the unions assail the FLRA\u2019s policy statement adopting the substantial-impact standard as arbitrary and capricious. See 5 U.S.C. \u00a7 706(2)(A). In this regard, according to the unions, the FLRA\u2019s explanation for dispensing with its old policy and adopting the new one was insufficient to support the policy change. DISCUSSION Our analysis begins with the petitioners\u2019 arbitrary and capricious challenge. The petitioners also challenge the substantial-impact exception as contrary to the statute and unsupported by any canon that would justify its treatment as \u201cinherent in most statutory schemes by implication.\u201d See Ass\u2019n of Admin. Law Judges v. FLRA (AALJ), 397 F.3d 957, 962 (D.C. Cir. 2005) (quoting Env\u2019t Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996)). Because we hold that the policy is unreasoned, we need not and do not reach the statutory claim. Cf. Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) (declining to assess a claim about the meaning of a statutory provision where the failure of the challenged action under the arbitrary and capricious standard offered a sufficient basis for decision). Under the arbitrary and capricious standard, \u201cwe must ensure that the [FLRA] \u2018examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.\u2019\u201d AFGE v. FLRA (AFGE 2020), 961 F.3d 452, 456 (D.C. Cir. 2020) (alterations in original) (quoting Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)). The key question is, at its core, whether the FLRA \u201cengage[d] in reasoned decisionmaking.\u201d Fred Meyer, 865 F.3d at 638 (internal citations omitted); see also FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). And while the FLRA certainly \u201cmay depart from its precedent,\u201d in so doing, it \u201cmust supply a reasoned analysis indicating that prior policies and standards are being deliberately changed.\u201d AFGE 2020, 961 F.3d at 457 (quoting Nat\u2019l Fed\u2019n of Fed. Emps. v. FLRA, 369 F.3d 548, 553 (D.C. Cir. 2004)). The agency must also show that \u201cthe new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better\u201d than the previous policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). With these standards in mind and for the reasons explained below, we conclude that the FLRA\u2019s decision to abandon its longstanding precedents and adopt the substantial-impact standard was not sufficiently reasoned in several critical respects. A The first problem with the FLRA\u2019s reasoning is that its policy statement falls short on explaining the purported flaws of the de minimis standard. To start, the policy statement\u2019s description of the problem it seeks to solve is inconsistent. At the beginning of its substantive discussion, the FLRA laments that \u201c[it] has effectively extended the bargaining obligation under the de minimis test to . . . trigger[] an agency\u2019s duty to bargain whenever management has made any decision, no matter how small or trivial.\u201d Dep\u2019t of Educ., 71 F.L.R.A. at 969. The policy statement explains that this purportedly ubiquitous misapplication of the de minimis standard to require bargaining in any and all circumstances has \u201cdrained\u201d that standard \u201cof any determinative meaning[.]\u201d Id. In the preceding paragraphs, however, the policy statement\u2019s background section highlights its concern that the de minimis standard is \u201cunpredictable\u201d and \u201chas created uncertainty,\u201d citing several examples of cases in which the FLRA concluded that a workplace change was de minimis and thus beyond the scope of bargaining. Id. at 969 & n.14; see also id. at 970 n.18 (explaining that the FLRA forewent solicitation of public comments \u201cbecause we are well aware of the confusion sown by nearly thirty-five years of our caselaw\u201d). It is not at all clear how the de minimis standard could both lead inexorably to the conclusion that all management decisions \u201cno matter how small or trivial\u201d must be subject to bargaining and at the same time yield unpredictable results, including, by the FLRA\u2019s own telling, many instances in which the duty to bargain was not triggered. See id. at 969 & n.14. Yet that is how the FLRA\u2019s policy statement reads: the existing standard both purportedly subjects every minor decision to review and is unworkable because it is impossible to predict. Even looking past this apparent contradiction, the FLRA\u2019s claim that the de minimis standard\u2019s unpredictability has \u201ccreated uncertainty that has negatively impacted labor- management relations\u201d is unconvincing on its own terms. Id. at 969 (internal quotation marks omitted). As evidence of the \u201cvast differences of opinion among arbitrators, judges, and the [FLRA itself] as to what matters affect conditions of employment sufficiently to require bargaining,\u201d the FLRA cites four pairs of decisions that involve purportedly similar facts in which the FLRA found certain management-initiated changes to be more than de minimis (and thus subject to bargaining) and others to be de minimis (and thus not). Id. at 969 & n.14. But closer inspection reveals that these divergent results are readily explained by distinguishable contexts. See id. at 973 (DuBester, dissenting) (\u201c[T]he cases cited by the majority simply reflect the inherently fact-dependent nature of the de minimis exception.\u201d). Take, for instance, the policy statement\u2019s citation to two decisions about office and seating arrangements that the agency now claims were contradictory. In Social Security Administration, Baltimore, Maryland, the FLRA concluded that \u201cchanges in seating assignments . . . including the movement of four employees (one-fourth of all [bargaining] unit employees) and one employee[\u2019]s[] loss of access to a window\u201d when considered together were \u201csufficient to support the . . . conclusion that the changes in seating arrangements were more than de minimis.\u201d U.S. Dep\u2019t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. 655, 668, 688 (1990)). In GSA, Region 9, on the other hand, the FLRA determined that an employer\u2019s decision to temporarily move a single employee to another building\u2014after her union suggested that such a temporary move would benefit the employee\u2014had, in light of \u201cequitable considerations,\u201d only a de minimis impact on her working conditions. 52 F.L.R.A. 1107, 1108\u201309, 1111\u201312 (1997). To describe these decisions is to distinguish them. And the latter decision, GSA, Region 9, indeed expressly distinguished the former as being about a \u201cpermanent relocation[] of employees that w[as] instituted by agency management for operational reasons,\u201d rather than a temporary move at the employee\u2019s union\u2019s suggestion. See id. at 1112 (citing U.S. Dep\u2019t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. at 655). The FLRA\u2019s summary assertion that these decisions were irreconcilable and thus evidence of the de minimis exception\u2019s unpredictability thus lacks merit. The FLRA\u2019s other examples are more of the same. For instance, the agency speciously summarizes one of its decisions as holding that \u201c[r]equiring [an] employee to give up a \u2018second\u2019 office while keeping [his] primary office\u201d was \u201cmore than de minimis\u201d and another as determining that \u201cmoving an employee permanently to a vacant office [was] held not to be more than de minimis.\u201d Dep\u2019t of Educ., 71 F.L.R.A. 969 n.14 (first citing U.S. Dep\u2019t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A. 166, 173\u201374 (2009); and then citing Nat\u2019l Treasury Emps.\u2019 Union, Chapter 26, 66 F.L.R.A. 650, 653 (2012)). But these decisions too are readily distinguishable on their facts. U.S. Department of the Airforce concerned an employer\u2019s decision to downsize the workspace of a trainer who was a member of the relevant collective . 64 F.L.R.A. at 173\u201374. In that case, the FLRA held that the employer\u2019s decision to downsize the trainer\u2019s primary office at the same time it took away a second workspace that he had used to conduct certain face-to-face training and store equipment\u2014 changes made on short notice and without relocation assistance\u2014when viewed alongside problems with the new workspace, constituted a more-than-de minimis change. See id. In stark contrast, National Treasury Employees\u2019 Union, Chapter 26, was not about the reassignment of a union employee at all; instead, it concerned a union\u2019s challenge to an employer\u2019s decision to assign an employee outside the bargaining unit to a vacant workstation in the same office as employees in the bargaining unit. 66 F.L.R.A. at 652\u201353. Unsurprisingly, the FLRA held that the mere presence of an employee outside the bargaining unit in the same office as unit members had only a de minimis effect on the union employees\u2019 conditions of employment. Id. at 653. Once again, the FLRA\u2019s evidence of an irretrievably broken standard falls flat. As this court observed once before, \u201cthere is little indication that the de minimis exception\u201d has created the sort of \u201cconfusion\u201d the FLRA now claims. AALJ, 397 F.3d at 963. Rather than demonstrate such confusion, the examples that the FLRA cites to frame the problem it seeks to address seem to us to demonstrate rigorous application by the FLRA of a fact- intensive standard to varying factual contexts. Put another way, far from demonstrating the de minimis standard is unworkable, the FLRA\u2019s policy statement simply appears to demonstrate how it works. B The FLRA\u2019s condemnation of the de minimis test also fails to grapple with the agency\u2019s own past policy choices and this court\u2019s decisions upholding them. In the policy statement under review, the FLRA insists that the agency\u2019s initial adoption of the de minimis threshold back in 1985 was insufficiently explained and reasons that this initial failure supports the 2020 policy change. In this regard, the FLRA explains that the agency had used a substantial-impact standard for a few years before it adopted the de minimis threshold in 1985. And it calls the decision to discard the substantial-impact standard in favor of the de minimis threshold \u201cspecious\u201d for failing to \u201cprovide any rationale as to why the substantial impact standard was incorrect.\u201d Dep\u2019t of Educ., 71 F.L.R.A. at 970 n.24. The FLRA further suggests that if a rigorous statutory analysis had been done in 1985, the agency would have discovered that \u201cthe de minimis standard is inconsistent with the purposes of the Statute.\u201d Id. at 971. Thus, the FLRA seeks to cast its policy change as merely correcting thirty-five-year-old procedural and interpretive errors. That rationale cannot withstand scrutiny. It is true that before it adopted the de minimis exception in 1985 the FLRA had applied a substantial-impact standard like the one at issue here, apparently as a carryover from the executive-order regime that governed public-sector labor relations before the enactment of the Labor-Management Relations Statute in 1978. But the mere fact that the FLRA briefly used a substantial- impact standard soon after the agency\u2019s creation does not provide inherent support for the present decision to discard thirty-five years of intervening precedent and return to that past policy. Indeed, Executive Order 11491, which governed before the Labor-Management Relations Statute, did not require bargaining at all. Instead, it directed agencies to \u201cmeet . . . and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate,\u201d Exec. Order No. 11,491 \u00a7 11(a), 3 C.F.R. (1966-1970), which is in marked contrast to the Labor-Management Relations Statute\u2019s requirement that agencies bargain over \u201cany condition of employment,\u201d 5 U.S.C. \u00a7 7114(b)(2); see also Nat\u2019l Fed\u2019n of Fed. Emps. v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004) (\u201cCongress passed the Federal Labor Relations Act to encourage collective bargaining between federal employees and their employers.\u201d). And the FLRA has itself recognized that the Labor-Management Relations Statute is more protective of collective bargaining than was the Executive Order and practice thereunder. See Dep\u2019t of Educ., 71 F.L.R.A. at 974 & nn. 42\u201344 (DuBester, dissenting). Furthermore, the FLRA\u2019s characterization of its earlier decisions as lacking explanation for its adoption of the de minimis exception is misleading. In fact, as the dissenting Commissioner points out, id. at 974\u201375 (DuBester, dissenting), those earlier decisions expressly considered the question, and in light of Congress\u2019s clear purpose of expanding public-sector bargaining rights, the mid-1980s FLRA specifically \u201crejected the \u2018substantial impact\u2019 test\u201d in favor of the de minimis exception, Dep\u2019t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. at 924. What is more, the agency explained back then that it was rejecting the substantial-impact threshold both because the de minimis test struck the correct balance between government efficiency interests and labor rights, see Dep\u2019t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. at 834 (McGinnis, concurring), and because \u201c[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations also demands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations,\u201d Dep\u2019t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. at 406\u201307. And the FLRA has since reiterated the view that the de minimis standard is \u201cthe appropriate threshold\u201d under the relevant statutory provisions. Soc. Sec. Admin. Off. of Hearings & Appeals, 59 F.L.R.A. 646, 653 (2004), aff\u2019d, AALJ, 397 F.3d at 964. To be sure, the FLRA\u2019s reasons for replacing the substantial-impact standard with the de minimis exception back in the mid-1980s were not tidily arranged in a single decision. But the FLRA\u2019s present assertion that the agency had offered no \u201cexplanation or rationale to support the change\u201d from the substantial-impact test to the de minimis standard, Dep\u2019t of Educ., 71 F.L.R.A. at 970, is simply incorrect. Notably, even if the FLRA had failed to provide an adequate explanation for its adoption of the de minimis standard more than thirty-five years ago, any such failure would not absolve the agency of its present-day responsibility to explain its decision to jettison the precedents that apply the de minimis threshold. The FLRA cannot point to a latent and unchallenged purported defect in the original adoption of its prior policy and offer that as an independent basis for adopting a new one. Rather, the decision to adopt a new policy must be sufficiently explained on its own terms, because \u201c[i]n administrative law, as elsewhere, two wrongs do not make a right.\u201d Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 928 (D.C. Cir. 2017). We have long held that \u201cwe cannot condone the \u2018correction\u2019 of one error by the commitment of another,\u201d id. (quoting Gray v. Mississippi, 481 U.S. 648, 663 (1987)), and we decline to do so here. Finally, to the extent that the FLRA now asserts that the de minimis standard must go because it is categorically \u201cinconsistent with the purposes of the [Labor-Management Relations] Statute,\u201d Dep\u2019t of Educ., 71 F.L.R.A. at 971, that contention is plainly contrary to this court\u2019s past interpretation of the statute. In AALJ, for instance, a union challenged the FLRA\u2019s application of the de minimis exception to a new category of management decisions. The agency argued the exception was inherent in the statute, and thus urged us to hold that collective bargaining was not required for a de minimis change to conditions of employment. We agreed, concluding that an exception for de minimis effects on conditions of employment is \u201cinherent in\u201d the statute and thus \u201cneither contrary to the text nor unreasonable in light of\u201d the Labor-Management Relations Statute\u2019s purpose. AALJ, 397 F.3d at 959, 962. Our holding in AALJ is a clear recognition of the appropriateness of a de minimis exception to the duty to bargain, as a matter of law. Thus, when the FLRA nevertheless reached the conclusion that the de minimis test is not \u201cappropriate\u201d for determining whether the duty to bargain is triggered, Dep\u2019t of Educ., 71 F.L.R.A. at 971, it not only ignored its own decisions outlining the reasons for its adoption of the de minimis exception in the first place, but also \u201cdeparted from precedent\u201d that had expressly decided that the de minimis exception is consistent with the Labor-Management Relations Statute, AFGE 2020, 961 F.3d at 459. For this reason, too, we conclude the need for the policy change \u201cis not sensibly explained.\u201d Id. (internal quotation marks omitted). C Up to this point, we have focused on the deficiencies in the FLRA\u2019s reasons for its conclusion that the de minimis standard was so problematic that it needed to be changed. Beyond the various ill-defined reasons that the FLRA offers for departing from the de minimis threshold, the policy statement under review also undertakes to explain why the FLRA now prefers the substantial-impact standard. The FLRA points to two principal reasons for this decision. And, once again, neither is sufficiently explained. The FLRA first heralds the substantial-impact standard\u2019s bona fides by suggesting that it draws \u201ca line that is meaningful and determinative\u201d for agencies and their employees seeking to navigate labor negotiations. Dep\u2019t of Educ., 71 F.L.R.A. at 970. And in its brief the FLRA further contends that its finding that the new standard will be more predictable and administrable is \u201cprecisely the sort of predictive judgment\u201d to which this court must defer. FLRA Br. 63. But neither the FLRA\u2019s challenged decision nor its brief on review analyzes the relative administrability of the substantial-impact and de minimis standards. This is a critical \u201cgap in [the FLRA\u2019s] reasoning[.]\u201d AFGE 2020, 961 F.3d at 459. And the FLRA simply ignores the guidance and elaboration provided in its own opinions. See, e.g., Dep\u2019t of Health & Human Servs. Soc. Sec. Admin. Region V, 19 F.L.R.A. at 834\u201335 (McGinnis, concurring) (identifying five factors informing application of the de minimis standard). It is especially striking that the FLRA does not provide a comparative analysis of the two standards or in its policy statement even argue that the substantial-impact standard used by the National Labor Relations Board (NLRB) in the private- sector context has in fact led to more predictable results, since, as noted above, the FLRA frames inconsistent application as the principal problem the new standard is designed to fix. There is no obvious reason to expect that labor unions and employers will disagree less frequently about whether any given management decision has a \u201csubstantial impact\u201d on conditions of employment than they previously did over whether such a decision had a more than de minimis effect. But see Dep\u2019t of Educ., 71 F.L.R.A. at 971. Indeed, these two standards share many characteristics that might lead one to expect just as much disagreement\u2014and, for that matter, just as many \u201cdifferences of opinion among arbitrators, judges, and the [FLRA] as to what matters affect conditions of employment sufficiently to require bargaining[,]\u201d id. at 969 (internal quotation marks omitted)\u2014when the substantial-impact threshold is applied. See also id. at 973\u201374 (DuBester, dissenting) (\u201cThe majority fails to explain how adoption of its new standard will produce decisions that are any less fact- dependent than those applying the current standard.\u201d). Thus, the new standard that the FLRA has adopted is not the sort of \u201ccommon sense\u201d measure for \u201cadvanc[ing the decision\u2019s stated] goals\u201d\u2014here, predictability and streamlined administration\u2014that we have found adequate to withstand arbitrary and capricious review. Free Access & Broad. Telemedia, LLC v. FCC, 865 F.3d 615, 618 (D.C. Cir. 2017). To address this obvious shortcoming, the FLRA argues for the first time in its brief that the new substantial-impact standard will have more predictable results because the FLRA will be able to draw on fifty years of NLRB decisions applying the substantial-impact test. The FLRA does not explain in its brief or otherwise why the NLRB\u2019s substantial-impact decisions would be easier to apply than the FLRA\u2019s own thirty- five years of precedents using the de minimis test. But, regardless, this argument is forfeit because it was not raised \u201cwhere it counts\u201d\u2014i.e., in the challenged decision itself. AFGE 2020, 961 F.3d at 457; see Motor Vehicle Mfrs. Ass\u2019n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (\u201c[C]ourts may not accept appellate counsel\u2019s post hoc rationalizations for agency action.\u201d). What remains is the FLRA\u2019s bald assertion that its own \u201cdetermination that the substantial impact test would draw a line that is [more] meaningful and determinative is precisely the sort of predictive judgment to which this [c]ourt accords heightened deference.\u201d FLRA Br. 63 (internal quotation marks omitted). We fully recognize that we must defer to expert agencies\u2019 \u201creasoned predictions about technical issues[.]\u201d BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. Cir. 2008). But there is nothing technical about the predictability assessment that the FLRA makes here, and we are not bound by the FLRA\u2019s conclusory and counterintuitive assertions about the consistency with which its new standard is likely to be applied in subsequent adjudications, especially when the record contains no factual basis for making such a forecast. With respect to its consistency concern, the FLRA must at least explain why and how it has concluded that the substantial- impact threshold is \u201cbetter\u201d than the standard it was relinquishing. Fox Television, 556 U.S. at 515. It has failed to do so. The FLRA\u2019s final tack is to invoke the NLRB\u2019s longstanding use of a substantial-impact standard in the private-sector context, as an independent reason for the FLRA\u2019s adoption of the same collective bargaining threshold. The FLRA\u2019s policy statement asserts that, because \u201ccollective bargaining in the public sector\u201d under the Labor-Management Relations Statute \u201cmust be narrower\u201d than in the private sector, \u201c[i]t is incongruous . . . [to apply] a standard more lenient than the test applied by the [NLRB] . . . to determine whether a change requires bargaining.\u201d Dep\u2019t of Educ., 71 F.L.R.A. at 970. In its brief, the FLRA adds that it is not just permitted but indeed required to consider NLRB precedents when it administers parallel provisions of its statute; in this regard, it points to our instruction that \u201cwhen the [FLRA] departs from a familiar principle rooted in private sector precedent, it should either identify \u2018practical distinctions between private and governmental needs\u2019 that justify the departure, or offer some evidence in the language, history, or structure of the statute suggesting that Congress intended a different result.\u201d AFGE v. FLRA (AFGE 1988), 853 F.2d 986, 992 (D.C. Cir. 1988) (citation omitted). But NLRB precedent cannot save the FLRA\u2019s unreasoned and unreasonable determination to import the substantial- impact standard. To start, the FLRA flips the controlling question on its head. Unlike in AFGE 1988, we are not being called upon to review a decision to part ways with NLRB precedent in the first instance. Instead, we are evaluating the FLRA\u2019s recent departure from its own longstanding precedents that since the 1980s have struck a balance that is different from the NLRB\u2019s decisions. In other words, the baseline for our review is the FLRA\u2019s longstanding and repeatedly reaffirmed decision to diverge from NLRB policy, which makes AFGE 1988\u2019s explanation of what the FLRA must do to rationalize a new departure from NLRB precedent inapposite. The FLRA\u2019s decision to adopt the NLRB\u2019s substantial- impact test also fails to account for the agency\u2019s own past assessments of how the differences between the public-sector and private-sector bargaining contexts inform the appropriate bargaining threshold. We have previously cautioned that the FLRA must \u201cbe careful to appreciate fully those distinctions between the private and public sectors that might necessitate a different legal analysis and conclusion\u201d with respect to collective bargaining, since \u201cthe bargaining status of any given subject is determined by different statutory provisions and by different policy considerations.\u201d Library of Cong. v. FLRA, 699 F.2d 1280, 1287 (D.C. Cir. 1983). The FLRA apparently took those distinctions into account in its 1986 decision in Department of Health & Human Services Social Security Administration, when it acknowledged the NLRB\u2019s substantial-impact standard was \u201csimilar[]\u201d to the FLRA\u2019s de minimis exception, 24 F.L.R.A. at 406 n.1, but nevertheless opted to apply the de minimis standard. Critically, that decision highlighted \u201c[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations[,]\u201d and observed that this context \u201cdemands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations.\u201d Id. at 406\u201307 (emphasis added); cf. Library of Cong., 699 F.2d at 1287 & n.33 (explaining that \u201c[t]he scope of collective bargaining is far broader in the private sector,\u201d in terms of the categories of conditions subject to bargaining, since the Labor-Management Relations Statute \u201cexclu[des] from the scope of federal sector bargaining [] matters provided for by federal statute, such as the pay rate or hours of employment\u201d). Thus, the FLRA has held in the past that the relative substantive narrowness of the public-sector bargaining mandated under the Labor-Management Relations Statute in fact supports the de minimis standard notwithstanding the NLRB\u2019s more stringent bargaining threshold. See Dep\u2019t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407. That conclusion is precisely the opposite of the one that the FLRA reached here. The agency now ignores its earlier balancing of the factors unique to public-sector bargaining and fails to address the reasons that it previously found persuasive when it decided to select a test that differs from the one that pertains to private-sector bargaining. We conclude that, whatever the virtues of the FLRA\u2019s present analysis concerning the statutory scheme for public- sector bargaining relative to its private-sector counterpart (which we do not here decide), the FLRA must acknowledge that in the past it reached the opposite conclusion about the need for congruity between the public- and private-sector bargaining thresholds. Thus, \u201c[i]t is not enough\u201d for the agency to now rest on abstract invocations of the \u201cnarrowness\u201d of public-sector bargaining or \u201crely vaguely on [it]s general duty to interpret the statute with government efficiency in mind.\u201d AFGE 1988, 853 F.2d at 993. Rather, the FLRA\u2019s adoption of the substantial-impact threshold after it previously and specifically rejected that standard must be built on a more \u201csolid foundation,\u201d id., including an explanation of the agency\u2019s view of why the new approach better comports with all of the provisions that Congress enacted to govern collective bargaining in the public sector. See, e.g., 5 U.S.C. \u00a7 7101(a)(1)(B) (finding that collective bargaining \u201ccontributes to the effective conduct of public business\u201d). The FLRA\u2019s failure to address its previous balancing of the Labor-Management Relations Statute\u2019s priorities\u2014a balancing that led it to adopt a different policy than that of the NLRB\u2014is yet another indication that the FLRA has not, in fact, \u201cengage[d] in reasoned decisionmaking.\u201d Fred Meyer, 865 F.3d at 638; see 5 U.S.C. \u00a7 706(2)(A). CONCLUSION The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious for the reasons explained above. Consequently, the unions\u2019 petitions for review are granted and the FLRA\u2019s September 30, 2020 general statement of policy is vacated. So ordered."], "id": "7c06a450-2b33-4604-aad9-9fd455f02f89", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The alleged loss of positions does not, by itself, constitute a violation of clause (v). Petitioners must also show that the loss of a particular bargaining unit position was the result of a particular assignment of WEP participants who performed, in whole or in part, the work normally performed by a specific Parks Department employee in such a position. Petitioners have not done so."], "id": "35f583e5-76ee-43e1-b803-21bc623fa2be", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff and some 21 others are entitled to declaratory and injunctive relief in this action. However \u2014 while plaintiff did commence this action as a class action on behalf of herself and \"all other instructional personnel employed by the Board of Education of the Gates Chili Central School District, similarly situated\u201d \u2014 it does not appear, from the papers before this court, that plaintiff has yet moved for class certification (CPLR 902), nor is it clear that the alleged class is sufficiently large to warrant such relief. However, defendant La Marca, as the exclusive collective bargaining agent, owes a duty to the nonunion members of plaintiff\u2019s , and his understanding of this is implicit in his answering papers in this action. While such other nonunion members have not formally appeared, and class certification has not been granted, any relief afforded plaintiff herein should be equally available to the other nonunion members of her bargaining unit. Defendant La Marca is accordingly directed to notify the court, within 20 days after this decision, whether he will stipulate to comply with the direction of this court with respect to the other nonunion members of plaintiff\u2019s bargaining unit. In the event that he does not so stipulate, this decision shall be without prejudice to plaintiff\u2019s right to move to reopen the judgment, to move for class certification, and shall further be without prejudice to the right of each nonunion member of plaintiff\u2019s bargaining unit to be joined or to intervene in this action individually; and further, in such event, defendant La Marca shall mail a copy of the decision herein, and of all subsequent orders and other papers in this *257action, to each such nonunion member of plaintiffs bargaining unit at his last known business address."], "id": "4d6fe5ac-1a71-4395-bcef-c48b42a47ab7", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The New York City Collective Bargaining Law (Administrative Code of City of NY, tit 12, ch 3 [NYCCBL]) holds that it is an improper practice for a public employee organization \u201cto breach its duty of fair representation to public employees\u201d (NYCCBL \u00a7 12-306 [b] [3]). It is well established that the duty of fair representation is breached \u201conly when a union\u2019s conduct *822toward a member of the collective is arbitrary, discriminatory, or in bad faith\u201d (Vaca v Sipes, 386 US 171, 190 [1967]). \u201c[irresponsible or grossly negligent conduct may [not] form the basis for a union\u2019s breach of the duty of fair representation\u201d (Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 432 [3d Dept 1987] [internal quotation marks omitted], affd 73 NY2d 796 [1988]). Instead, \u201cthere must be a showing that the activity, or lack thereof, which formed the basis of the charges against the union was deliberately invidious, arbitrary or founded in bad faith\u201d (Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998] [internal quotation marks and citation omitted]). \u201c[A] union\u2019s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union\u2019s actions, the union\u2019s behavior is so far outside a wide range of reasonableness . . . as to be irrational\u201d (Air Line Pilots v O\u2019Neill, 499 US 65, 67 [1991] [internal quotation marks and citation omitted])."], "id": "39bee7ac-7762-4734-bc71-9c93176ab330", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Of the several articles alleged to be violated, the respondents present only section 2 of article 6 to support their position in this proceeding. It provides that: \"All professional employees within the agree to perform their employment in a responsible and professional manner; therefore no professional employee shall be discharged, reduced in rank, or deprived of fringe benefits except for just cause.\u201d Utilizing the language of this section, the Association contends that the failure to rehire Moriarity and appoint him on tenure at the end of his probationary period constitutes a \"discharge\u201d and that the reasons given do not establish \"just cause\u201d for such discharge."], "id": "20bd06e9-d89c-4ab0-b7bf-500940483648", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Although urging that the merits are not now an issue, the respondent nevertheless argued them. The second phase of the case required me, therefore, to go into the merits of the application as if the matter were before me as an original proposition, and this I did. Without question, the board\u2019s findings are supported by substantial evidence and accordingly are conclusive, and the board\u2019s determination may not be disturbed since it is not arbitrary or capricious or contrary to law. But it is claimed by the respondent that, shortly after the commencement of the representation proceeding, an employers\u2019 association \u2014 which had been quiescent after 1943 \u2014 became reactivated, that during its prior existence it was the for its members, and that the revived organization is now the proper bargaining unit, not the single employer before the board. However, there is no explicit statement in the answering affidavit that the purported reactivated association is authorized to bargain collectively for and on behalf of its members."], "id": "d959f8ac-bb99-43b2-99e0-2abad6db07cc", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The petitioner has alleged that he is owed payment for accrued unused compensatory, vacation and sick time earned prior to November 6, 1992, when he was a patrolman and sergeant in the collective , and unused vacation time since that date as Chief. He contends that section 207-m of the General Municipal Law requires the respondent to furnish all forms of benefits available to his subordinates, which include payment for unused benefit time. He further contends that the respondent has denied him his due process and equal protection rights under the New York State and United States Constitutions."], "id": "edf4847b-1b69-4443-84bd-cbfc731095af", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner contends that PERB\u2019s decision to conduct a \"secret mail ballot\u201d was arbitrary and capricious. Petitioner argues that PERB failed to consider the feasibility of an on-site election. Petitioner contends that an on-site election would have been feasible and the preferred method since the 108 workers in the proposed reported to work at one location over three shifts. Petitioner argues that a mail ballot should be utilized only when the employees eligible to vote \"worked a variety of shifts in scattered locations\u201d (Mc-*999Dermott & Co. v National Labor Relations Bd., 571d 850, 855)."], "id": "b2b91114-7ee6-4c94-828e-5e862a06ad98", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["To understand what that means requires a brief overview of SFP \u00a7 13-218.1. The crux of that provision is the requirement that a unit of State government that is subject to the general procurement law must communicate with its employees\u2019 collective . More specifically, at least 60 days before the issuance of a solicitation for a service contract, the unit must provide the exclusive representative of the employees who may be affected by the service contract with written notice and, since the enactment of H.B. 158, a reasonable opportunity to meet and discuss alternatives to the service contract. SFP \u00a7 13-218.1(b)(1). It is clear, then, that the Universities must similarly give affected employees advance written notice and a reasonable opportunity to meet and discuss alternatives. Although the timeline need not necessarily be identical (i.e., 60 days), S.B. 342 obligates the Universities to include in their procurement policies a notice-and- conferral requirement that resembles this statutory timeline if at all practicable. That is, if the Universities depart from that timeline in their policies, they must be able to explain why there was no practicable way to provide 60 days\u2019 notice."], "id": "8c4f9d53-3536-45d8-a434-1a35f45da718", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["PERB, over the Nursing Home\u2019s objection, authorized an election by \"secret mail ballot\u201d. The Nursing Home wanted an on-site election. The Nursing Home, as requested, provided PERB with a list of the names and addresses of the employees who were included in the proposed . Ballots were mailed by PERB to such unit members on July 20, 1990. Ballots, in order to be counted, were required to be returned by mail and received in the Latham, New York, post office addressed to PERB not later than 9:00 a.m. on August 9, 1990. The ballots were counted by PERB at 11:00 a.m. on August 9, 1990. The initial tally showed 42 votes in favor of union representation and 40 votes against union representation."], "id": "7d947b6a-946e-4876-ab30-1ca88e64010f", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["\u201csuch assignment would not result in (i) the displacement of any currently employed worker or loss of position (including partial displacement such as reduction in the hours of non-overtime work, wages or employment benefits) or result in the impairment of existing contracts for services or collective bargaining agreements; (ii) the employment or assignment of a participant or the filling of a position when . . . the employer has terminated the employment of any regular employee or otherwise reduced its workforce with the effect of filling the vacancy so created with a participant assigned pursuant to this section; . . . (iv) the performance, by such participant, of a substantial portion of the work ordinarily and actually performed by regular employees; or (v) the loss of a position as a result of work experience participants performing, in part or in. whole, the work normally performed by the employee in such position\u201d (Social Services Law \u00a7 336-c [2] [e]). I"], "id": "7cd61878-23c5-41cf-b74a-370a27da60eb", "sub_label": "US_Terminology"} {"obj_label": "bargaining unit", "legal_topic": "Employment Law", "masked_sentences": ["The remedy formulated by the administrative law judge directed Grower to cease and desist from failing to provide information and from failing to bargain. He also directed Grower to make information available to the Union and to make the members whole for all losses in wages and fringe benefits they reasonably suffered as the result of Grower's refusal to bargain, for the period of September 27, 2012, to May 24, 2013 (i.e., the date of the first mandatory mediation session), plus interest."], "id": "517c0600-71fc-429a-9a7f-fa730030f1e0", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Delta-Sonic seeks to avoid each of these alternative resolutions of this case by interposing two arguments. First, Delta-Sonic protests that the secondary employer activity upheld in Morton (supra) involved customers and suppliers of the employer with whom the union had its primary dispute. The peaceful persuasion was directed at reducing the customers\u2019 and suppliers\u2019 business with the primary employer, not at reducing the customers\u2019 and suppliers\u2019 business with the outside world. Delta-Sonic suggests that a ruling of this court permitting the peaceful handbilling proposed by the Council here would be unprecedented, and would permit unions to select employers as union targets for consumer boycotts on the basis of their economic importance to the community, the ability of such a to garner press coverage, or other factors wholly unrelated to the targeted company\u2019s involvement in the union\u2019s dispute."], "id": "6f3b335d-5cff-4f68-931d-b7d8e539c9c6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In this instance, petitioner has already exercised its judgment not to engage in the secondary . As a matter of Federal policy, this freedom of choice must be available to it notwithstanding the hot cargo clause in its agreement with respondent. Respondent, therefore, cannot compel, through arbitration, the 'specific performance called for in the hot cargo clause since it would violate the declared Federal policy on this matter."], "id": "421b9a5a-85cd-43de-955d-37887d8976de", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["An examination of the cases relied on by the plaintiff or cited within them as authority discloses a common element making for illegality which is absent here: acts tending to create a monopoly. In Klor\u2019s v Broadway-Hale Stores (359 US 207), the defendant chain-store and the defendant manufacturers conspired to limit the plaintiff retailer\u2019s ability to compete with the chain-store, in part, by refusing to deal with the plaintiff. In Northern Pacific Ry. Co. v United States (356 US 1), the railroad sold or leased its land only to those who agreed not to ship their produce or manufacturers over the lines of any other railroad. In Eastern States Retail Lumber Assn, v United States (234 US 600), the defendant conspired to prevent wholesalers from selling to the competitors of the defendant members. In Fashion Guild v Trade Comm. (312 US 457), a case frequently cited by the courts, an organization of creative fabric and clothing designers con*581spired to destroy the competition of those who copied unprotected designs by boycotting those retailers who undertook to sell the copies. In the American Tobacco Co. v United States (328 US 781, 786), the court proceeded on the assumption that \"a combination or conspiracy to monopolize has been established\u201d. In United States v Patten (226 US 525, 542), \"it was a conspiracy to run a corner in the [cotton] market\u201d. In Kiefer-Stewart v Seagram & Sons (340 US 211), a liquor manufacturer declined to sell well-known branded products to those who did not follow its pricing policy. And in Binderup v Pathe Exch. (263 US 291), the defendant motion picture distributors refused to lease films to an exhibitor in an effort to put him out of business for refusing to allow the defendants to participate in his redistribution business."], "id": "e838714a-8403-4bb9-ba63-1716c70b115e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["There smoulders among us an unlawful condition both distressing and disgraceful. In Harlem, negro leaders, civic, political and clerical, and the local branch of an association dedicated to promoting the lot of their fellows, including elimination of racial discrimination, are fomenting racial discrimination against white men. To the respondent John H. Young and to those individuals and the groups who are led by Young and his fellows, its implications, the sting and degradation, are meaningful. (Sokolsky, Negro Question Has World-Wide Impact, Neiv York Journal-American, Dec. 8,1960; Lewis, Court Broadens Desegregation, Sunday Neiv York Times, Dec. 11, 1960, p. 6E.) They have been its victims. His fellows will not be named, for they are not brought into this proceeding. But as Negroes they know fully what racial discrimination is. And yet as men of dark skin they agitate by word and action\u2014 *819speech, print, and picketing: \u2014 to deprive white men of their livelihoods solely because they are white skinned, so as to replace these victims with their selected Negroes. The respondent here and his absent fellows may well ponder the late Governor Alfred E. Smith\u2019s paraphrase distinguishing mortal and venial sin \u2014 \u201c venial to kid the other fellow, mortal to kid yourself\u201d. In that setting, Father Robert I. Gannon\u2019s dislike of the word \u201c tolerance \u201d, saying that he wanted acceptance, not just tolerance, should give much food for thought."], "id": "e19461fa-2d67-47b9-a5ff-48107e560936", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In Claiborne, the local chapter of the NAACP demanded action from the city officials of Hattiesburg, Mississippi, to end racial discrimination, threatening a of white merchants. When their demands were not met, the boycott began. In striking down a judgment against the NAACP under Mississippi law, the Supreme Court first noted the associational character of the boycott which brought it within the protection of the First Amendment.19 The court then observed as follows (_US _, _, 102 S Ct 3409, 3424): \u201cSpeech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott through social pressure and the \u2018threat\u2019 of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.\u201d The boycott was successful, at least to the extent of substantially reducing the business of the white merchants \u2014 i.e., causing direct *809economic harm to persons other than those from whom action was directly demanded. Nevertheless, and in a situation where prior restraint was not involved, the Supreme Court held that boycott activity protected, citing, inter alia, Organization For Better Austin v Keefe (402 US 415, supra)."], "id": "5ca94d48-b059-4ca5-a12c-afc0035afaf6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The above conclusions are based upon my finding of the following facts: The school year of 1966-1967 marked a change of interest and participation of parents in the affairs of some of their local neighborhood schools. The Board of Education had previously determined through studies that in certain communities, specifically disadvantaged areas, the performance of pupils in those schools was far below the level of pupils in other communities and that there was a definite correlation between the school\u2019s performance and parents\u2019 involvement in the subject schools. The board began an intensive campaign to generate greater parental and communal interest and association in the affairs of those schools where heretofore there had been apathy and a lack of concern and participation. In 1966 the voice of the Harlem community was sounded. Demand was made that the community should have unlimited domination over school personnel with the right of transfer, dismissal, appointment and assignment without regard to examinations, merit system or eligible lists. And in the early part of 1967, at P. S. 36-125 Manhattan, the parents of the Harlem community and others protested against certain aspects of the school and its program and conducted a full of the school by withdrawing the children from attendance. Protests against the continued service of the principal were so strong that at one point a group in the community had to all intents and purposes locked her in her office. Eventually she asked to be relieved as principal of the school."], "id": "c943b54a-b0e7-4ef0-b610-cb876e6615e9", "sub_label": "US_Terminology"} {"obj_label": "Boycott", "legal_topic": "Employment Law", "masked_sentences": ["The reply of the field workers to the execution of the agreements criticized in Englund was to initiate strikes against the growers on behalf of the UFW. Strike activity was extended to growers subsequently contracting with the Teamsters and has continued until after commencement of this action (see 23 Amer UL Rev 145). A labor dispute though it may encompass some jurisdictional issues is not thereby divorced from the protections of section 807 where the controversy also involves the negotiation of terms and conditions of employment (Nash v Mennan, 279 App Div 609, affd 303 NY 956; see, also, Dinny & Robbins v Davis, supra). Evidence introduced at trial indicates that the efforts of the UFW constitute a bona fide attempt to achieve the improvement of working conditions (see Jones v Demoulas Super Markets, 365 Mass \u2014, supra). In this regard it may be noted that the union\u2019s interest in representing field laborers preceded the execution of the Teamster-grower agreements. Indeed, active *278organizing among grape harvesters dates as far back as 1966 (Englund v Chavez, 8 Cal 3d 572, supra; Almac\u2019s Inc. v Rhode Is. Grape Committee, 110 R.I. 36, supra; 23 Amer UL Rev 145; 25 Labor LJ 85)."], "id": "25763323-a6e4-447e-b410-3914ddf52030", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The Attorney-General has reason to believe that there may have been an illegal collective of the plan, which illegal boycott forced the State to increase its reimbursement rate. The Attorney-General subsequently commenced an investigation of this possible boycott pursuant to his authority under section 343 of the General Business Law. In connection with his investigation, the Attorney-General issued the subpoena herein at issue to PSSNY who thereupon filed the instant motion to quash."], "id": "c41f5676-7bdf-431c-a446-e618cacd0efa", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In Englund, the court declined to issue an injunction against UFW picketing demanded by more than 35 lettuce and other vegetable growers under contract with the Teamsters. The growers predicated relief on California\u2019s Jurisdictional Strike Act (Cal Labor Code, \u00a7 1115 et seq. [hereafter the Act]) which proscribes strikes and other concerted union activities arising from a jurisdictional dispute. The court grounded its decision on findings that in 1970 the growers in question had entered into five-year contracts with the Teamsters without any prior consultation with the field workers for *276whose benefit the bargaining agreements were ostensibly being consummated and without a good faith belief that the Teamsters represented a majority or even a substantial number of the laborers involved. Indeed, when the field workers were finally advised of the collective bargaining agreements signed on their behalf, \"most of the workers refused either to join the Teamster\u2019s union or to sign or ratify the Grower-Teamster agreements\u201d (Englund v Chavez, supra, 8 Cal 3d, at p 579). Therefore, UFW activities are not subject to attack on the ground that UFW sought to compel employers to bargain collectively in spite of the expressed wish of the majority of workers to be represented by a rival labor organization (cf. Pleasant Val. Packing Co. v Talarico, 5 NY2d 40, supra; Dinny & Robbins v Davis, 290 NY 101, supra; Florsheim Shoe Store Co. v Shoe Salesmen\u2019s Union, 288 NY 188, supra; Metzger Co. v Fay, 4 AD2d 436, supra; it appears that a majority of the contracts examined in Englund were still in force at the time picketing commenced against Waldbaum)."], "id": "ee53b302-7751-4a17-bf8b-79895acac388", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In International Organization of Masters, M. & P. (this defendant) v. N. L. R. B. (351 F. 2d 771, 774, 775, 777), the court made a positive finding that defendant MM&P was a \u201clabor organization \u201d under the Act guilty of a secondary even though it was acting on behalf of a local not .so recognized and not subject to the Act. The determinative factor was the international character of defendant\u2019s organization in which it had members who were not supervisors. Having \u201c employees \u201d in its union, it was a \u201clabor organization\u201d responsible as any other labor union involved in a secondary boycott. Defendant\u2019s contention that it \u201cwas a \u2018labor organization \u2019 insofar as the activities of Local 3 were involved but not such an organization when operating on behalf of its other locals \u201d was rejected by the court as \u201cit is not inconsistent to hold the parent responsible as a \u2018 labor organization \u2019 if it be an organization in which \u2018 employees \u2019 otherwise have participated, despite the fact that the parent may have engaged in the illegal activities solely for the benefit of its non-\u2018 employee \u2019 local * * * It would be anomalous indeed to hold that MMP may be liable for the secondary boycott but that its picketing Local 47 though acting as its \u2018 agent \u2019, may not be. \u2019 \u2019"], "id": "0003069d-cc3a-4063-8501-9f8462320416", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["\"We found in our investigation that our principal must be removed * * * Our principal is very insensitive to the needs of our community, which happens to be totally black. She made very racist statements during the . She is a racist. She must go. We cannot have racist people around our children * * * She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made. \"Our children are afraid of her. I think discipline is fine. The child must respect the principal; he or she must respect the teachers. But I mean there is no sense \u2014 and our children feel as though they are on a plantation. And there is no reason in 1981 why we should have a principal making such *468racist statements. The teachers of the school have brought to most of our attention that it has been run as a dictatorship, and we do not need a dictatorship in our children\u2019s school * * * They\u2019re being degraded and put down, and it\u2019s all because of a dictatorship with Miss Stevens. \"We have exposed the Mollison pollution * * * Since 1975, the quality of education has gone down at Mollison School and Miss Stevens has sat and watched it. She did nothing about it * * * Miss Stevens is insensitive to the children, the parents and the community. We can no longer allow her to destroy our children\u2019s minds.\u201d The Seventh Circuit affirmed the District Court\u2019s finding that such statements are necessarily those of an opinion. It rejected plaintiffs claim that a statement of this nature is libel per se, and further rejected plaintiffs claim that it was actionable because it marked her as unfit to be a principal. The court in Stevens (supra) rationalized the usage of such terms in a realistic approach to contemporary political discourse:"], "id": "4c4836cd-1de8-4d24-923f-a559592d8c3e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Subdivision (a) of section 10 of the Wagner Act (49 U. S. Stat. 453) vested \u201cexclusive\u201d jurisdiction in the National Board to prevent any of the unfair labor practices the law defined. The word \u201c exclusive \u201d was omitted from the Act as amended in 1947 because Title III of the Taft-Hartley Act (\u00a7 301 et seq.; U. S. Code, it. 29, \u00a7 185 et seq.) provided for private damage actions for breach of collective bargaining agreements and violation of the so-called secondary sections of the new law."], "id": "e458d094-51c0-47ef-834f-e4ece6d58e2f", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In the Bellows case it was held that the store owners who purchased the sign which had been hung by members of a certain union were not parties to a labor dispute between that union and another union which picketed the store with placards setting forth that the maintenance of such sign was unfair to it. Chief Judge Crane held that \u201c This constituted a secondary and was illegal,\u201d and further that \u201c There was here no such unity of interest with'the manufacturer as was developed in the Goldfinger case,\u201d citing Goldfinger v. Feintuch (276 N. Y. 281). It is clear that there is a distinction on the facts between the Bellows case and the instant case. In the former the sign had been sold outright and was installed prior to the picketing while here we are dealing with a burglar alarm system which was installed not as an outright sale but under a leasing agreement with title continuing in the lessor (the firm against which the strike was called), and providing for continuing maintenance and servicing by the lessor. True, the complaining witness Berkowitz herein was not in the same line of business as the National Wiring and Protective Company, Inc., but can it be said that there was not a unity of interest between the two in so far as the leasing agreement is concerned? If the complainant chose to obtain the advantage of a leasing agreement providing for continuous service of the character herein disclosed, is he to be free from whatever burden may flow in case of a labor dispute between his lessor and the latter\u2019s employees who are engaged in the maintenance and servicing of the leased property? In short, is this a case of secondary boycott? If not, the complainant must sustain any incidental inconvenience and damages arising out of a bona fide labor dispute in which the picketing is orderly and peaceful."], "id": "0a681c20-e94b-4a72-a229-53b6a9bb3a41", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Thirdly, the underlying subject matter of the LILCO case, namely, the Arab oil and the resultant oil shortages, was the object of much media coverage and public concern. The existence and purpose of the lawsuit, as well as its possible financial ramifications, were also widely reported at the time. In such a highly charged environment, and with all those factors considered, it is conceivable that a challenge to the venue of that action could have been made on the basis of prejudicial pretrial publicity as well as upon the claim that a substantial percentage of the prospective jurors had a potentially significant personal interest in the outcome of the lawsuit. In the instant case, however, the court is not faced with a subject of great notoriety and public interest, nor is there presented the question of adverse pretrial publicity."], "id": "dc62c4dc-2e83-400e-b0a3-a44ee226594b", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Section 12(c) of the agreement provides that \u201c there shall be no lockout, strike, slow-down, work stoppage, picketing or pending the processing and/or disposition of any dispute hereunder and the remedies of the parties shall be restricted exclusively to the enforcement of the arbitration award. \u2019 \u2019 Incorporated in the collective bargaining agreement is a supplemental agreement which repeats these prohibitions. Section 5(a) thereof provides that \u2018 \u2018 pending the arbitration of any dispute or grievance, there shall be no strikes, * * * picket lines * * * or any other work interference or suspension of any kind or nature \u201d. This section further provides that it is the intention of the parties that \u201c all disputes or grievances * * * shall he settled by peaceable and orderly arbitration.\u201d There is no provision in the agreement which sanctions the use of a picket line, or the right of union employees to refuse to cross a picket line, except section 5(b) which reserves the right of the union to refuse to cross a picket line \u201c established by any other local union affiliated with the International Brotherhood of Teamsters.\u201d"], "id": "9d55c426-ac37-40f9-a942-6c8ca30dab21", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The complaint alleges, in substance, that plaintiffs time-chartered a vessel from the owner of the vessel, Alcoa International, Inc. (hereinafter \u201cAlcoa\u201d); that between June 22, 1961 and July 12, 1961, defendant engaged in activities in Port Arthur, Texas, which were designed to prevent the loading of the chartered vessel by causing the said vessel to be picketed; that the picketing was secondary picketing and constituted a secondary in that there was no dispute between either the owner of the vessel or the plaintiffs, who were the charterers On the contrary, it is alleged that the dispute was with a corporation related to the owner of the vessel. As a result of the secondary picketing, it is alleged that the vessel was detained in Port Arthur, Texas, the site of the picketing, and the owner of the vessel has a proceeding in arbitration seeking to require the plaintiffs to pay for the detention of the vessel, claiming that the detention was for the charterer\u2019s account under the chartering agreement. The plaintiff charterers have resisted the claim of the owner on the ground that the picketing was against a corporation related to the owner and therefore for the owner\u2019s account. The said issue is presently in arbitration, in accordance with the chartering agreement. The complaint further alleges that, in the event the charterers are held liable, the damages which they will sustain will have resulted from the wrongful acts of defendant, who should therefore be held liable for such amounts as may be awarded in such arbitration."], "id": "6639cb2e-dcc9-4bc3-9b52-2301acca0292", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Moreover, sister State courts confronted with similar controversies arising from the UFW have affirmed the product picketing conducted even though the goods boycotted were produced by growers under contract with the Teamsters (Jones v Demoulas Super Markets, supra; Almac\u2019s Inc. v Rhode Is. Grape Boycott Committee, supra; C. Comella, Inc. v UFW Organizing Committee, 33 Ohio App 2d 61, supra)."], "id": "c4cf3da0-1ebb-4df3-a263-1b0fcacb5c60", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Defendants state that such action was with respect to a public issue to which they were constitutionally entitled to assemble and speak, and that the Attorney-General has given a strained and sinister meaning thereto without any such intention; that there were no concealed refusals to bid under single contracts and no of single-contract projects. The Association believed that the single-contract provision in the State Education Law is contrary both to public policy expressed in basic law and to the public good. That they expressed in an opinion, which they claim is all the resolution amounted to, as to the policy which plumbing contractors should pursue in reference to this public matter. Under the head of advocacy, the Association claims its right to petition the Legislature, to influence public agencies to adhere to the separate-contract system and to recommend that contractors insist on separate bidding. The question must come down to whether the action of the defendants was, in fact, an agreement to refrain from participating in public work on any other basis."], "id": "ce8e02cf-d2dc-419e-a3f4-71e730c63272", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Differentiation between the protections accorded a message when conveyed by pure speech means as opposed to ideas transmitted by placard or leaflets accompanying picketing has, as already pointed out, traditionally received judicial and legislative recognition (Hughes v Superior Ct., 339 US 460, *293supra; Wise Shoe Co. v Lowenthal, 266 NY 264 \u2014 where the court outlawed picketing requesting customers to cease patronizing a primary employer but allowed the distribution of handbills with the same message; see, also, National Labor Relations Act, US Code, tit 29, \u00a7 158, subd [b], par [4], cl [i]; Pleasant Val. Packing Co. v Talarico, 5 NY2d 40, supra). Precedents relevant to the injunction of secondary activity have uniformly involved picketing, and the legitimacy of secondary appeals furthered solely by pure speech means has apparently never been tested in the courts of this State or of Federal jurisdiction. Nonetheless, dicta of recent cases provide support for the proposition that a request conveyed to consumers through pure speech, that is, by communication outside the course of picketing, to cease patronizing a secondary employer would be fully protected by the First Amendment. (Honolulu Typographical Union No. 37 v NLRB, 401d 952, supra; see, also, Labor Bd. v Fruit Packers, 377 US 58, supra.) If so, then even assuming arguendo that the union\u2019s statements expressed on placards or otherwise in conjunction with picketing extend beyond the scope of permissible product activity and are therefore enjoinable, the same does not necessarily apply to messages conveyed through pure speech means by leaflets or banners unaccompanied by picketing."], "id": "e8dfbbcb-ede8-46ab-b1ea-cc970c88a1c1", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The Grand Jury minutes fail to show that the defendant instilled a fear in the victim Sawyer, an assistant vice-president of the Bank of North America, that either a strike action, , etc., injurious to the bank\u2019s business would occur or that the defendant would use or abuse his position as a public servant as required by section 155.05 (subd 2, par [e], els [vi], [viii]). Sawyer\u2019s Grand Jury testimony is illuminating on this issue."], "id": "1a6fd604-2f7c-4e06-a641-bb7784025209", "sub_label": "US_Terminology"} {"obj_label": "Boycott", "legal_topic": "Employment Law", "masked_sentences": ["Part of the antecedent debt was represented by his past-due check, which the plaintiff surrendered to him upon the receipt of the note in suit. This check, like the debt it represented, was at most a voidable and not a void obligation of the infant, was capable of ratification, and could be avoided only by the infant himself. As before remarked, the privilege of the infant is a personal privilege, of which he alone can take advantage ; and contracts can be avoided for the infancy of the contractor only by the contractor himself (see Grey v. Cooper, 3 Doug. 65; Keane v. , 2 H. Bl. 515; Taylor v. Croker, 4 Esp. N. P. C. 187). The drawer, therefore, of a bill of exchange cannot set up the infancy of the payee and indorser as a defense to the action of the indorsee (Grey v. Cooper, supra); nor can the acceptor set up the infancy of the drawer as a defense to such an action (Taylor v. Croker, supra. And see Haly v. Lane, 2 Atk. 181 ; Schouler Dom. Rel. 2 Ed. marg. p. 538, and cases cited). The infant in the present case did not repudiate his check, nor did he in any way seek to avoid it. On the contrary, he made provision for its payment in the indorsed note of the defendant herein. This check must, therefore, be regarded, for all the purposes of this action, as a valid obligation against its drawer. The effect of its surrender, as declared by the court of *26appeals in the following cases, is to make the plaintiffs bona fide holders of the note in suit, and to entitle them as such to a recovery thereon."], "id": "ea6b8d0f-6838-4249-898d-45494519d574", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The People contend that the defendants were engaged in an illegal secondary , which was not part of any labor dispute, citing People v. Fleishman (36 N. Y. S. 2d 559), People v. Bellows (281 N. Y. 67), People v. Muller (286 N. Y. 281) and Goldfinger v. Feintuch (276 N. Y. 281); and that if the question of freedom of speech under the Fourteenth Amendment to the United States Constitution is involved, such constitutional right is not absolute, and is subject to such reasonable regulations as are necessary to promote and preserve the public peace (Near v. Minnesota, 283 U. S. 697; Stromberg v. California, 283 U. S. 359; Whitney v. California, 274 U. S. 357 ; Patterson v. Colorado, 205 U. S. 454; Thornhill v. Alabama, 310 U. S. 88; Carpenters Union v. Ritter\u2019s Cafe, 315 U. S. 722; Cafeteria Union v. Angelos, 320 U. S. 293; Bakery Drivers Local v. Wohl, 315 U. S. 769)."], "id": "ec3b4cae-c291-43ff-998e-595dd7f90c6e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The order of the Board was enforced by the court upon two principles, namely, (a) that they acted as principal for the employees of the \u2018 \u2018 labor organization \u2019 \u2019 who struck and compelled the owner of the towboats to capitulate and (b) that a union in which 1 \u2018 employees \u2019 \u2019 participate, \u2018 \u2018 whether local or national \u201d and irrespective of whether \u201c the workers on whose behalf the union was acting are all supervisors,\u201d is a \u201clabor organization \u2019 \u2019 under the Act and may be held guilty of unfair labor practice (p. 173). See also Local 28, Int. Organization of Masters M & P v. N. L. R. B. (321 F. 2d 376), wherein defendant MM&P was held not subject to the Act as a principal because of its nature as an \u201c association \u2019 \u2019 of supervisors, but was held responsible as an agent taking part in a secondary ."], "id": "9a3744b1-fecc-4016-93d2-c922d659b87e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs claimed that defendants had taken tips from its waiters, failed to pay overtime, failed to provide benefits or *543vacation and fired those who had protested such treatment. Plaintiffs organized a and picketed in front of defendants\u2019 restaurant while supporters of the restaurant held counterdemonstrations. Plaintiffs allege that during this time defendants posted intimidating and threatening posters. The posters warned \u201cworkers\u2019 traitors are going to die\u201d and stated that plaintiff Lam, an \u201cevil-hearted,\u201d \u201cbloodsucker,\u201d \u201cslaveholder\u201d and \u201cbig Satan,\u201d forced workers to work two jobs, lose their jobs and was destroying the Chinatown economy. During a television interview and at a fundraiser, defendants allegedly referred to plaintiff Lam as \u201cpublic enemy number 1 in this community\u201d and stated that plaintiff Lam extorted $40,000 from defendant Chan through the Grand Palace Restaurant. The statements regarding extortion were also made in several local Chinatown newspapers and on posters."], "id": "a0b467ab-e4aa-45d3-980e-76bbc1e104a6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The petitioner contends that the subject matter of the investigation, a possible by pharmacists of the State\u2019s prescription drug plan, is not within the Attorney-General\u2019s jurisdiction pursuant to article 22 of the General Business Law and, therefore there is no authority or relevancy for the subpoena, and further, that pharmacy as a profession is exempt from the Donnelly Act."], "id": "49ba3264-dd91-409a-a5a9-5e921bce43a3", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The papers in this case make it abundantly clear that the picketing, in the guise of organizational picketing, is in fact recognitional picketing. Its actual purpose is not the organization of employees but rather to coerce the employer to recognize the defendant union as bargaining agent for plaintiff\u2019s employees, without a voice or a vote by such employees in the selection of their bargaining agent. The real purpose of the picketing is clear from the attempts of the defendant union to have plaintiff sign a contract with it as bargaining agent; the threats of a picket line if the plaintiff refused to do so; and the prompt placing of a picket line at the premises where plaintiff was already open for business; and the placing of pickets at buildings on the Thruway not yet completed or open for business. Certainly, the placing of pickets at such buildings could by no stretch of the imagination be regarded as organizational picketing. True, the pickets at such buildings were withdrawn after a complaint was filed by plaintiff with the National Labor Relations Board that the picketing at such buildings constituted a secondary . However, such withdrawal, under such circumstances, does not alter the ultimate fact, to wit, that the placing of such pickets at such unfinished buildings clearly demonstrated that the purpose of the defendant union was recognitional picketing rather than organizational picketing. At such buildings there were no employees to picket for organizational purposes. Hence, picketing there could have no purpose other than coercion of the plaintiff to recognize the defendant union as bargaining agent. Those picket lines were set up simultaneously with the picket lines still in existence at the buildings where plaintiff is open for business. All the picket lines had a common purpose when originally installed. Its true purpose was thus apparent. That purpose could be nothing but recognition. The withdrawal of the pickets from the unoccupied and uncompleted buildings and the retention of pickets at the places open for business, do not transform the *418original purpose of recognition to one of organization. To permit the original unlawful purpose to be carried out by-continuing a part of the original picket lines, in the guise of organizational picketing, would constitute obeisance to ostensible form and total disregard of reality."], "id": "681d4084-9a68-4da9-8236-4417f042b001", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The problem in this ease was how to get the defendant into the courtroom. The court could have secured his presence by the use of force. The defendant in his moving papers asserts that a prisoner against this court was in progress. (This matter will be discussed separately.) The atmosphere in the prison could well have been tense and confused. To have sent officers into the defendant\u2019s cell to bind and shackle him and deliver him by force could have precipitated a serious riot. The sight of what was taking place could well have had an emotional impact upon the other prisoners with serious consequences. For what it considered sound reasons the pourt refused to employ that method. Mr. Kunstler agreed that the court\u2019s decision not to employ force was both wise and correct under the circumstances."], "id": "77b4df56-1f0e-4da2-bbfa-ab107fa52de1", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Matthew F. Coppola, J. By this petition, the Westchester County Pharmaceutical Society, Inc. seeks to quash a subpoena duces tecum served upon it by the Attorney-General. The subpoena seeks information relevant to the Attorney-General\u2019s investigation of whether New York pharmacists participated in a group of a proposed New York State drug plan. The ground asserted quashing the subpoena is the claim that pharmacists are beyond the scope of the Donnelly Act (General Business Law \u00a7 340 et seq.), the statute under which the investigation is proceeding."], "id": "a8104f25-1649-4975-9a36-ef187b68dce9", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In Goldfarb v Virginia State Bar (421 US 773, 788, supra) *545the Supreme Court stated there is a heavy presumption against implicit exemptions. (United States v Philadelphia Nat. Bank, 374 US 321, 350-351.) It gave neither blanket inclusion nor blanket exclusion to the professions, holding that the conduct of mandatory price-fixing was anticompetitive and an unreasonable restraint in interstate commerce, and therefore violative of the act. The court based its decision on the activity and not upon whether it was business, trade or profession. Because of the activity alleged herein, a concerted refusal to deal in the nature of a , there is no doubt that if the Sherman Act were controlling in this case, it would mandate the denial of this motion. (American Med. Assn. v United States, 317 US 519; United States v Oregon State Bar, 385 F Supp 507.)"], "id": "4796b48d-06b7-490e-9606-42a1984124b4", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["whereas, the petroleum companies have eontinuedly robbed the economy of the nation by charging monopoly prices which resulted, for many years, in heavy disbursements of foreign exchange and, in their eagerness to perpetuate their privileges, ignored the laws of the nation and hatched a criminal scheme to our country, thereby forcing the Revolutionary Government to provide for their intervention."], "id": "d485e0c9-cb9e-45b7-88b8-533a51df4d9c", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The court disagrees with the statement of defendant\u2019s counsel, and finds as a fact, that no labor dispute exists either as to the Jones Beach Catering Corporation or as to the Jones Beach State Park and the Long Island State Park Commission. The court finds as a fact that there was an attempt to establish an illegal secondary against the Jones Beach restaurants by picketing them with signs relating to a strike affecting solely the Brass Rail and the employees of that concern."], "id": "d8979a34-0aa2-4e77-8213-9ca35a4df828", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The proof here of the surrounding social and industrial con*392ditions, what evils or dangers existed if any, and other important facts from which to determine whether the picketing was peacefully conducted, is meager. Peaceful picketing is entirely lawful if carried on for a lawful purpose (Mills v. United States Printing Co., 99 App. Div. 605; affd., 199 N. Y. 76; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 id. 260); and I should say that, unless there is proof of conspiracy or or other unlawful means to injure one in his business, inducing customers and others disposed to patronize or trade with another is not unfair or illegal. As the late Chief Justice Taet said in the case of Truax v. Corrigan (supra, 327): \u201c Plaintiffs\u2019 business is a property right (Duplex Printing Press Co. v. Deering, 254 U. S. 443, 465) and free access for employees, owner and customers to his place of business is incident to such right. Intentional injury caused to either right or both by a conspiracy is a tort. Concert of action is a conspiracy if its object is unlawful or if the means used are unlawful. (Pettibone v. United States, 148 U. S. 197, 203; Duplex Printing Press Co. v. Deering, supra.) \u201d The learned late chief justice then proceeds to consider whether the means used were illegal; and from what he wrote it may fairly be deduced and inferred that if the means employed constitute \u201c lawful persuasion or inducing \u201d and were \u201c a mere appeal to the sympathetic aid of would-be customers by a simple statement of the fact of the strike and a request to withhold patronage \u201d (pp. 327, 328), the means might be regarded lawful; but if \u201c every customer or would-be customer \u201d is compelled \u201c to run the gauntlet of most uncomfortable publicity, aggressive and annoying importunity, libelous attacks and fear of injurious consequences, illegally inflicted, to his reputation and standing in the community,\u201d then the law is violated and the intervention of the courts would be warranted. And the late chief justice added, in view of the circumstances in the Truax case: \u201c Violence could not have been more effective. It was moral coercion by illegal annoyance and obstruction and it thus was plainly a conspiracy.\u201d No one has testified that any violence was used or even threatened here. To appeal peacefully to prospective customers not to patronize a particular business establishment while a strike is in progress, unless accompanied by circumstances tending to a breach of the public peace and good order, or some overt act in furtherance of an unlawful purpose, is fair and proper. Of course, the surrounding circumstances of each case should be given weight and value in determining a particular case as to what constitutes disorderly conduct reasonably tending to a breach of the peace (People v. Nixon, supra, 182, at p. 186); the place where, the manner in which and the tone of speech by which the solicitation and inducing is *393done, are vitally important in all such cases under the penal statute, supra (see, also, People v. Squires, 135 Misc. 214), because, after all, to use a quotation of a distinguished jurist (Brandeis, J., Truax v. Corrigan, supra, dissenting opinion, p. 355), \u201c It is of the nature of our law that it has dealt not with man in general, but with him in relationships \u201d in this complex life of ours to-day. The test is what serves best the public interest and not the desires of any individual. There are differences and degrees as to time, place, manner, when and where, and how acts disorderly in their nature might tend to a breach of the public peace; these are the considerations which every record should disclose. (People v. Phillips, 245 N. Y. 401.)"], "id": "3e362d8f-9b38-4b86-932a-78c5a8fe8172", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In the Goldfinger case (Goldfinger v. Feintuch, 276 N. Y. 281), Judge Rippey, concurring in part, said: \u201c Except for the finding of unity of interest, the facts would establish a secondary and would be illegal. I cannot agree that the plaintiff and the manufacturer were engaged in the same trade or industry.\u201d It is true that the majority opinion took the view that the retailer was in *875the same line of business as well as in unity of interest with the manufacturer, but there was no holding that a unity of interest alone would not have constituted a legal basis for peaceful picketing."], "id": "458f0d65-59ab-4d88-a1ac-998dcf5a678e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["It is clear from these petitions, two of them filed by plaintiff itself, that the parties as well as Local 50 recognize the fact that the National Labor Relations Board is the body invested with primary jurisdiction to compel the cessation of unfair labor practices by either the employer or Local 640. This jurisdiction is exclusive as to acts or conduct which constitute unfair labor practices under the Federal Labor Management Relations Act of 1947 (U. S. Code, tit. 29, \u00a7 141 et seq.) or which constitute violations of that act (Garner v. Teamsters\u2019 Union, 346 U. S. 485 ; Weber v. Anheuser-Busch, 348 U. S. 468; Mine Workers v. Arkansas Flooring Co., 351 U. S. 62; Teamsters\u2019 Union v. New York, New Haven A Hartford R. R. Co., 350 U. S. 155). Included in the unfair labor practices which the board possesses jurisdiction to order stopped are peaceful picketing (Garner v. Teamsters\u2019 Union, supra) and conduct amounting to a secondary (see reference to Capital Service v. Labor Board, 347 U. S. 501, at pages 475 and 476 of Weber v. Anheuser-Busch, supra). Only in exceptional cases may resort be had to a State court instead of to the National Labor Relations Board. Instances of such cases are where the picketing is mass picketing, accompanied by violence, obstructions of streets and highways, and great disorder, in which event the State, under its police power, is permitted to take action through its courts (Allen-Bradley Local v. Board, 315 U. S. 740), or an action for damages for a tort, as to which the Federal act gives no remedy (United Workers v. Laburnum Corp., 347 U. S. 656)."], "id": "60bd1c80-76d9-455b-a661-7af893556d03", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["This court cannot agree with the contentions of the petitioner. Although medicine is a profession, the United States Supreme Court has held that individual physicians who engage in or foster a medical are subject to the proscriptions of the Sherman Antitrust Act (Matter of Hirschorn v Attorney-General of State of N Y., 93 Misc 2d 275, citing American Med. Assn. v United States, 317 US 519). This principle applies with equal force under the Donnelly Act, which has been termed by the Court of Appeals as the \"counterpart of the Sherman Act\u201d (State of New York v Mobil Oil Corp., 38 NY2d 460, 463) and by the Appellate Division, First Department, as \"New York State\u2019s Little Sherman Antitrust Act\u201d (State of New York v Horsemen\u2019s Benevolent & Protective Assn., 55 AD2d 251, 253)."], "id": "b3206fee-6466-44da-aed6-b6e799df38e7", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs next contend Defendant's restrictions on permissible locations for speech and expressive activity at the Centers are unconstitutional. They concede these restrictions are content-neutral, but argue they are not reasonable. In addition, Plaintiffs assert they unwarrantedly preclude them from being \"outside the entrances of the stores they targeted for their activity[,]\" locations which they claim are \"public fora.\" We disagree."], "id": "259f9b49-155e-4901-96eb-0997c240c586", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In the \"Tree Fruits\u201d case (supra) the union struck against the packers and warehousemen in Yakima, Washington, which sold Washington State apples to the Safeway retail *1017stores in Seattle, Washington. The union instituted a consumer against the apples in support of the strike, and placed pickets in front of the customers\u2019 entrances of 46 Safeway stores in Seattle. These pickets wore placards and distributed handbills appealing to the customers and public generally not to buy \"Washington State apples\u201d, which was one of a great many food products sold in the stores. The placards stated that nonunion Washington State apples were being sold in the store, and \"Please do not purchase such apples\u201d (p 60). The handbill, in major part, asked the public not to buy Washington State apples because they are being packed by nonunion firms, but it clearly and unequivocally made known that \"This is not a strike against any store or market\u201d (p 60). Other things were done by the union to indicate that its sole concern was to advise and only request the public not to buy Washington State apples. Picketing was peaceful, noninterfering with ingress or egress into or out of the store or delivery entrances, noninterfering with the store workers, deliverers, deliveries or employees. The picketing hours were considerate of the employees as to the question of crossing picket lines by starting their picketing after the stores opened for business and terminating before the close of the business day. No deliveries were obstructed, and the business of the stores continued otherwise unmolested."], "id": "4808a5f9-944f-4066-80b2-dae860fb0e34", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Threats against the manufacturers to withdraw all union men and end all business relations unless the\u2019 demands of the union are complied with constitute no crime; but where the manufacturers are threatened with business annihilation by the malicious use of the , compelling would-be customers to desist from purchasing from fear, induced by threats that if they do purchase the full power of the union will be used against them to their destruction, the action of the members of the union cooperating therein is illegal. (People v. McFarlin, 43 Misc. 591, 18 N. Y. Crim. 412.)"], "id": "ebe5ad1f-7941-4b53-af0c-d9e1903424bc", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The complaint and its supporting papers clearly allege organizational activity on the part of the defendant and conduct amounting to a secondary . The legality or illegality of these acts is covered by section 8 (subd. [b], par. [4], subpars. [i] and [ii] and par. [7]) of the National Labor Relations Act *264(Taft-Hartley Act, U. S. Code, tit. 29, \u00a7 158). It is thus clear that this dispute falls within an area which has been pre-empted by the Federal law so as to vest primary jurisdiction with the National Labor Relations Board to compel the cessation of the alleged unfair labor practices of the defendant."], "id": "e8f98364-d9e3-4b2f-a037-b7ba69757967", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["First, defendants urge that the only money paid was for services rendered, the amount paid was the same as that paid *563to the previous contractor, the services were, therefore, clearly worth the amount paid, and consequently no \u2018 \u2018 property \u2019 \u2019 was obtained from the stores within the meaning of section 850 of the Penal Law. The People contend, however, that money was paid by each of the stores in question and that it is immaterial that a quid pro quo was received for the money, citing People v. Fichtner (281 App. Div. 159, affd. 305 N. Y. 864). That case held it to be extortion to obtain money from an alleged shoplifter by threatening him with prosecution, even though the money received was equal to or less than the amount the shoplifter should have paid. Logically that holding may be extended to the instant case, and it was so extended in the charge to the jury. There is, however, a substantial question whether the charge will be upheld in view of the statutory protections which hedge labor\u2019s right to picket. The FicMner case (supra) and the \u2018 \u2018 property \u2019 \u2019 elements of the crime cannot be considered separately from the element which requires that there be a \u2018 \u2018 wrongful use of force or fear \u2019 \u2019 by threat \u201c to do an unlawful injury \u2019 \u2019. As noted above, the theory of the indictment was that the picketing was wrongful and threatened an unlawful injury because General Sanitation and other listed firms though represented to be union were in fact nonunion. The charge was that if those firms were not union the picketing was not advancing unionism, that is, was not for a lawful purpose, but that if they were union the threat to picket could be bona fide. The jury may, therefore, have found defendants guilty on the theory that the firms were union but that the picketing was not in good faith, i.e., was for the illegal purpose of obtaining money. While People v. Hughes (137 N. Y. 29); People v. Barondess (133 N. Y. 649) and People v. Weinseimer (117 App. Div. 603, affd. 190 N. Y. 537), all establish that it is extortion to demand money under threat of a , strike or other labor sanction, those cases all involved the payment of money in addition to that paid for the service involved. Where, as here, nothing is paid except for services, there would appear to be a substantial question whether the court should not have charged as requested that if the firms were union the threat to picket was lawful and if the payments were for services rendered defendants were not guilty. This was the theory on which the indictment was framed, and in view of the effect that a contrary holding would have on labor\u2019s right to picket for a union shop, there is doubt whether the appellate courts will sustain the judgment on this point."], "id": "655e72f3-038d-442c-983e-ff6e0cb142be", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["But the court will not be led down the garden path by absurdity \u2014 to declare this matter to have any true legal base as a legitimate labor dispute, thereby entitling the defendants to the benefits or rights allowed by article 22-A of the Labor Law. Not only is fairness in picketing completely lacking in this case, but the coercive methods used by the pickets, their placards, handbills, their shouting at and to customers or prospective customers not to buy from plaintiff but to buy from his competitor around the corner, characterizing and calling plaintiff a murderer, insinuating that plaintiff prescribes to and supports child labor, the misleading and highly equivocal placards which insinuate a strike in plaintiff\u2019s stores without true or clear explanation or delineation, all add up to the illegality and impropriety of the defendants\u2019 picketing of plaintiff\u2019s stores and to its intent at coercion of the plaintiff. This is further clearly indicated by the failure of the defendants\u2019 placards, signs, and handbills to clearly identify plaintiff as a neutral in defendants\u2019 dispute with the primary (unnamed) employer and their failure to in any way clarify the nature of their dispute with the primary employer. (Kaynard v Independent Routeman\u2019s Assn., 479d 1070, 1073; National Labor Relations Bd. v Twin City Carpenters Dist. Council, 422d 309, 314.) The defendants\u2019 appeal to the consumer omits dissemination of that precise type of information deemed essential in \"Tree Fruits\u201d (377 US 58, supra) to establish a product rather than a general patronage of the secondary business (National Labor Relations Bd. v Twin City Carpenters Dist. Council, supra, pp 314, 315) for, a \"generally worded\u201d picket sign fails to isolate a dispute and may constitute an appeal for a general boycott against the neutral and secondary party. (Bedding, Curtain & Drapery *1019Workers Union, Local 140, v National Labor Relations Bd., 390d 495.)"], "id": "8236d8e2-3014-41e6-9522-ac36358b9263", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["It would be ludicrous to suggest the led to monopolization. By law, with one minor exception, the State, through its designee, the New York Racing Association, runs the only game in town. In the words of the Assistant Attorney-General, \"Pari-mutuel betting at racetracks is a completely illegal activity unless permitted by the legislature under very strict controls in this state. The so-called pari-mutuel tax is referred to, even in the pari-mutuel revenue law, as the state\u2019s share of the handle * * * The state is really a partner of the track\u201d. Restraint of trade tending toward monopoly does not exist here."], "id": "28609f63-f2ea-4397-8162-04c69f9cc2d7", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["While petitioner can voluntarily co-operate in a secondary (Carpenters\u2019 Union v. Labor Bd., supra) it is indicated that it cannot be compelled to do so even though it may be a party to a hot cargo clause. \u201c There is nothing in the legislative history to show that Congress directly considered the relation between hot cargo provisions and the prohibitions of \u00a7 8(b)(4)(A). Nevertheless, it seems most probable that the freedom of choice for the employer contemplated by \u00a7 8(b)(4)(A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited pressures \u2014 whether to refuse to deal with another or to maintain normal business relations on the ground that the labor . dispute is no concern of his \u2014 must as a matter of federal policy be available to the secondary employer nohuithstanding any private agreement entered into between the parties.\u201d (Carpenters\u2019 Union v. Labor Bd., supra, p. 105; emphasis mine.)"], "id": "ee4a006e-58d1-482b-a9d6-78bb68915759", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["As to the branch of the motion to dismiss the complaint as time-barred, it appears that the action arises under a Texas statute (Rev. Civ. Stat., art. 5154f) making it unlawful for any person or labor union to call, participate in, aid or abet a secondary strike or secondary picketing, or a secondary . The action was commenced on June 14, 1965, a period of more than three years after the time of occurrence of the acts complained of."], "id": "eb6c7204-4a9c-43d0-93f8-c8a34720b196", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Once it is contracted for and man\u2019s labor is given for compen*323sation, it is fair to assume that the employment on a particular work will continue while there is more work of the same sort to be done, especially where both parties carry out their agreement; but this relationship, necessarily consisting in the exchanging of one thing for another, does not create vested rights in the position with relation to the future work. It has not been claimed that the defendant breached his agreement of employment in any way. The relationship of the employer and the employee and vice versa is not property in se. The relationship is a mere condition incidental to and arising from certain property rights and the interchange thereof. It is a fair inference from all the testimony in this case that the complainant Flynn did that which he had agreed to do with part of the money he received as wages. The defendant made it plain to Flynn that the only way in which he could have kept his job was either by conforming to the first agreement between the parties or entering into a new agreement. Thus, he voluntarily paid back what he owed and continued working for many weeks; and thereby enjoyed the privilege, for such it is \u2014 not a vested right \u2014 to continue in this gainful occupation. The prosecuting authorities contend that the means selected by defendant to obtain the money constitute unlawful threats to deprive Flynn of his work, by which his right to labor was injured by these compulsory measures. They assert that there was only a color of right on the part of the defendant to discharge complainant, and that since his apparent purpose was unlawful, therefore, the act complained of becomes unlawful, thus bringing the case within the rule of People v. Sheridan (186 App. Div. 211, 212). But the conduct of these parties, taking its legal color and quality more or less from the circumstances surrounding it and the intent or purpose which controls it, as was stated in People v. Hughes (137 N. Y. 29, at p. 39), leads to the inevitable conclusion that the act in question was lawful. Most of the cases cited by the Attorney-General deal with extortion where the individual was threatened that if he did not pay the money demanded employees would be persuaded to absent themselves from work, or to continue a . The \u201c intimidating attitude \u201d and the \u201c overt act \u201d were openly combined in these cases, and used by a party who had no contractual relation to the person so threatened. If the case at bar presents an evil practice about which governmental authority may be constitutionally invoked, the remedy is not with the judicial branch of government, but, rather, with the legislative."], "id": "b4ae4212-9e6d-4677-9d23-e71d7f4ea902", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["An important policy underlying general prohibitions on secondary boycotts is the prevention of the fanning out of labor disputes to third parties not directly involved. In this regard a product concentrates only on that portion of the secondary employer\u2019s business which would have been disrupted in the event of a successful primary strike (Honolulu Typographical Union No. 37 v NLRB, supra). Or, as the court stated in Tree Fruits (377 US 58, 72, supra): \"When *280consumer picketing is employed only to persuade customers not to buy the struck product, the union\u2019s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer\u2019s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally.\u201d"], "id": "30da7daf-c73b-4da6-96cb-ef092848e064", "sub_label": "US_Terminology"} {"obj_label": "Boycott", "legal_topic": "Employment Law", "masked_sentences": ["Picketing directed at consumers and conducted at the site of a secondary employer consists, for purposes relevant here, of two basic categories dependent on the nature of the appeal being made. Where the union requests consumers to forbear from purchasing only those goods sold by the secondary employer which are produced by an employer with whom the union has a primary labor dispute, the activity engaged in, known as product boycotting or product picketing, is generally held to be within the bounds of the law and will not be enjoined (Goldfinger v Feintuch, 276 NY 281; Englander Co. v Tishler, 280 App Div 217; see, also, Galler v Slurzberg, 27 NJ Super 139, 149-151; Jones v Demoulas Super Markets, 365 Mass \u2014; Almac\u2019s, Inc. v Rhode Is. Grape Committee, 110 R. I. 36). On the other hand, where the union seeks to persuade customers to withdraw patronage generally from the secondary employer there result an impermissible secondary boycott and an unlawful labor objective which will be enjoined (see Opera on Tour v Weber, 285 NY 348; see, also, Goldinger v Feintuch, supra, pp 285-286)."], "id": "86fdecc4-7110-4bbe-b2cd-8848ccd447ee", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The Attorney-General brings this action for an injunction and penalties against the Association of Contracting Plumbers of the City of New York (Association) and certain of its officials and members to enforce and secure antitrust compliance under the Donnelly Act (General Business Law, \u00a7\u00a7 340, 342, 342-a). The Attorney-General charges that defendants and their Association in a combination have entered into contracts, agreements and arrangements whereby \u2018 \u2018 [c] ompetition or the free exercise of any activity in the conduct of any business trade or commerce or in the furnishing of any service in this state is or may be restrained.\u201d That these alleged illegal contractual arrangements are evidenced in the defendants\u2019 Association\u2019s by-laws, resolution and labor agreement; to wit: (1) to the State University Construction Fund (SUCF) contracts let by single contracts for all the work to be performed and to force owners to let contracts by separate contracts, so as to eliminate com*258petition by negotiations for lower prices between owners; (2) to eliminate negotiations for lower prices and to tamper with pricing practices between owners, general contractors, and plumbing contractors; (3) to prohibit advertisements in publications except those of organizations in which the Association holds membership; (4) to prohibit use or installation of plumbing materials, fixtures or articles not first purchased by members from the manufacturer or dealer and by him sold to the owner or contractor."], "id": "a480cd86-41a4-4285-b287-ad3ec0b601e6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Although medicine is a profession, the United States Supreme Court has held that individual physicians who engage in or foster a medical are subject to the proscriptions of the Sherman Antitrust Act. (American Med. Assn. v United States, 317 US 519.) This principle applies with equal force under the Donnelly Act, which has been termed by the Court of Appeals as the \"counterpart of the Sherman Act,\u201d (State of New York v Mobil Oil Corp., 38 NY2d 460, 463), and by the Appellate Division, First Department, as \"New York State\u2019s little Sherman Antitrust Act,\u201d (State of New York v Horsemen\u2019s Benevolent & Protective Assn., 55 AD2d 251, 253)."], "id": "d7af6b3e-2d06-47f7-ae61-a82aed3e9189", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Moreover, the defendants contend that the plaintiff is selling dresses manufactured for Smart Sue, Inc. The plaintiff denies ever having had \u2018 \u2018 for sale in his store any dresses produced in the Helene factory for \u2018 Smart Sue Inc. \u2019 \u201d And there it ends. But the sign \u2018 \u2018 retail outlet \u2019 \u2019 indicates, and I think clearly, that the retail store is an outlet of the manufacturing company and that the plaintiff sells dresses fabricated by Helene Manufacturing Co., although they may not have been manufactured for Smart Sue, Inc. If so, the defendants are not guilty of, as claimed by the plaintiff, \u201c an illegal secondary \u201d. Both retailer and manufacturer are in the women\u2019s dress business. Even if the store and the factory are regarded as distinct entities as employers, the defendants may follow the nonunion goods and seek by peaceful picketing to persuade the consuming public from purchasing the nonunion product at the store of the retailer in the same line of business and in unity of interest with the manufacturer (Goldfinger v. Feintuch, 276 N. Y. 281). At page 290 Chief Judge Lehman, then Associate Judge, stated: \u201c I agree that peaceful picketing of the plaintiff\u2019s place of business by the defendant union for the purpose of inducing the plaintiff\u2019s customers to refrain from buying non-union products of a manufacturer, which are on sale by the plaintiff, is lawful. That is not a \u2018 secondary boycott. \u2019 \u201d The burden of showing that no labor dispute exists is on the plaintiff and, to show absence of a labor dispute, the plaintiff must show no unity of interest between his business and Helene Manufacturing Co., with which the defendants have a grievance (Park Terrace Caterers v. McDonough, 9 A D 2d 113). Assuming arguendo that the plaintiff is a separate entity, he has failed to sustain the burden of showing that no labor dispute exists."], "id": "08caa40d-c2ea-48a2-89d0-cef806ec9b34", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["*397All three claims arise from a December 5, 1978 indictment of the claimants and five other doctors by a Nassau County Grand Jury for alleged violations of this State\u2019s antimonopoly statute, i.e., the Donnelly Act. (General Business Law, art 22.) Specifically, the doctors were charged with organizing a group and concertedly refusing to render professional services to nonemergency workers\u2019 compensation and no-fault insurance patients. The alleged boycott and refusal apparently arose from the dissatisfaction of the indicted doctors and others with low fees and delays in payments thereof under those plans. (See People v Roth, 100 Misc 2d 542, 543-544, affd 74 AD2d 1008, affd 52 NY2d 440, 446-447.) The defendant doctors therein moved to dismiss the indictment and their motion was granted on August 10, 1979 by the Nassau County Court. (See People v Roth, 100 Misc 2d 542, supra.)2 The State\u2019s Attorney-General appealed that dismissal,3 but, as indicated above, the dismissal was affirmed by the Appellate Division, on March 24, 1980,4 and by the Court of Appeals, on April 2, 1981 (see People v Roth, 52 NY2d 440, supra). The Karen, Roth and Hudak claims were then filed May 11, 1981, June 18, 1981 and June 29, 1981, respectively."], "id": "501017f1-900e-497b-8fc5-83346a3bea75", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["This contempt proceeding stems from the main action between 62 individual members together with their Liquor Salesman\u2019s Union, Local 2 of the State of New York, AFL-CIO, plaintiffs, against Metropolitan Package Store Association, Inc., defendant. The individual plaintiffs are employed by wholesale liquor suppliers having as their customers the retailers in Harlem who are members of the defendant. Because of picketing and boycotting by respondent and his group since July, 1959, which hit them in their pocketbooks, these members of the defendant in February, 1960 began to the individual plaintiffs, switching their purchases of liquor through white salesmen to negro salesmen. The plaintiffs sued in equity to enjoin such substitutions based solely on race and color of the persons. On March 15,1960 a temporary injunction was granted by Mr. Justice Thomas A. Aurelio. On consent of both sides, on March 29, 1960, judgment was signed and it was entered March 30,1960 (Sup. Ct., N. Y. Co., Index No. 3618-1960). The judgment contained these pertinent decretal provisions:"], "id": "94e5269d-19da-47a9-9897-85f2f0b79edf", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Among other allegations, the State charges the defendants with a conspiracy and unlawful concert of action, the substantial *189terms of which were \u00a3 \u2018 to oppose the single contract and adopt the separate contracts system of bidding for all public building construction projects\u201d. Also alleged in the sixth paragraph are allegations to the effect- that the defendants and co-conspirators did , \u201c by refusing to and refraining from bidding to general contractors and by refusing to and refraining from selling and/or installing plumbing and other equipment for public building construction projects let or to be let under a single contract \u201d; that they did \u201c exert influence upon public agencies, general contractors * * * to oppose the single contract and adopt the separate contracts system of bidding for public construction projects \u201d; and that the defendants \u201c should boycott by refusing to * * * bid on projects which did not include within the plumbing contract all work \u2018 classified \u2019 by defendants * * * as plumbing work \u201d; and, \u201cto eliminate competition\u201d. The complaint further alleges that the defendants, \u201c (a) Discussed refraining from bidding * * * on single contract projects to be let * * * by the State University Construction Fund # * at Syracuse Plumbers Association meetings; (b) Advocated and * * * preached # * disadvantages of the single contract method * * * (c) Defendant Association * * * was represented at meetings * * * where it was resolved to advance the use of the separate contract method of awarding jobs; (d) * * * attended * * * meetings at which not bidding to general contractors on * * * single contract projects was determined to be a highly effective means of defeating the single contract method of awarding jobs * * *. (g) Refrained from submitting bids to general contractors for various State University Construction Fund single contract projects including the following: Alfred Heating Plant, Cobleskill Library, Oswego Field House, Potsdam Science Building, and refrained from submitting bids * s * on Cornell Physical Science Building and the Harpur College Dormitory; (j) Coerced, compelled * * \u201c that plumbing contractors * * * withdraw from the bidding on the Wetzel Road Elementary School project on the grounds that the architect did not include certain items such as kitchen equipment in the plumbing contract; (1) The local plumbers union sent to the sole plumbing contractor who did not withdraw from the bidding, a non-member of defendant association, a letter warning him that if he should subsequently accept contracts such as the Wetzel Road Elementary School contract, it is \u2018highly possible \u2019 that his union agreement \u2018 will be terminated \u2019"], "id": "6f8967dc-c451-4684-8223-eed528ac108b", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The records of the Brooklyn House of Detention show that on July 24, of 55 scheduled to appear, 31-attended, 24 refused; on July 25, of 86 scheduled to appear, 54 attended, 32 refused; on July 26, of 72 scheduled to appear, 52 attended, 20 refused; and on July 27, of 66 scheduled to appear, 45 attended, 21 refused, showing that the prisoner of this court was not unanimous. Despite the argument now urged, no claim was made during the trial that the defendant feared for his safety if he failed to participate in the boycott. Thus, a post-conviction hearing would serve no useful purpose."], "id": "ca4159e1-22f4-46a5-a3bb-d08e61bcd2c5", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["This case would certainly bolster the authority of a decision like People v. Bellows (281 N. Y. 67 [1939]), in which our Court of Appeals sustained a conviction for disorderly conduct arising out of picketing in a secondary situation. But People v. Bellows was decided before the Supreme Court had laid down the proposition that picketing was an expression of labor\u2019s right to freedom of speech. Two years later, in the case of People v. Muller (286 N. Y. 281 [1941]), the Court of Appeals reversed a conviction for disorderly conduct in a similar situation by a split decision of four to three. One may doubt whether this case would have been decided the same way if it had come after the decision of Carpenter\u2019s Union v. Ritter\u2019s Cafe (supra). Nevertheless, the majority of the Court of Appeals in People v. Muller (supra), made a far more logical application of the principles of the Thornhill and Carlson cases than did the Supreme Court in the Ritter case.2"], "id": "05df4e1a-5005-4c03-b04d-202a681d8adb", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Concourse contends that the First Amendment is not an absolute defense to plaintiffs common-law claims, relying on Jews for Jesus v Jewish Community Relations Council (968d 286 [2d Cir 1992]). The Jews for Jesus case is readily distinguishable. First, defendants there were not petitioning the government, but were threatening a private entity, the Stevensville Hotel, with an economic if it did not cancel a contract with plaintiff. (968d, at 298 [\u201cthe instant conduct was not political speech designed to secure governmental action to vindicate legitimate rights, but was a series of private communications in the context of a private dispute\u201d].) Second, a boycott designed to secure an unlawful objective, namely violation of antidiscrimination statutes, is not protected by the First Amendment. (Supra, at 297.)"], "id": "4c6a8a47-18c4-4c29-b2de-cf51002ec3ab", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["From this testimony it is clear that Flynn had agreed to pay back part of the moneys he received. Flynn was thus accorded the right to work; and he was free to refuse to work under these conditions. He was a free agent. He did not quit. The agreement in in itself was not unlawful. There is nothing in the record showing that this was an unlawful combination to evade the income tax laws or any other law. We are not here concerned with consideration of the dangers of unfair competition or the injuries that may flow from it. Cheaper labor, perhaps, enabled defendant to compete at some advantage. The question of public policy, or of restraint of trade to accomplish a certain result do not enter into this consideration. Clearly, these parties contemplated a means of deceiving the union of which Flynn was a member. The subsequent manner in which and the place where the repayment of the money was made in order to- carry out this purpose, indicates the concealment of the fact from any union men who might be around at the time. The method used was to pretend that Flynn was employed at eight dollars and fifty cents per day by giving him the pay envelope weekly for the full amount *321and then requiring a part repayment. He was not a victim of this practice; he was a party to an established understanding. In fact, Flynn testified in this regard as follows: \u201c Q. Did he make that statement to you practically every time that he collected the money \u2014 that if you did not pay you would lose your job? A. Well, not every time, no, not all the time.\u201d Flynn had had previous similar experiences with the defendant. He knew his methods, and yet he continued to seek such employment from and work for the defendant under the circumstances. Each of the parties had a \u201c right of choice \u201d in the matter. If such an arrangement existed as appears in this testimony, then the money was due defendant from Flynn."], "id": "eb29a0ce-8602-40f6-b462-e64c5ccbaeb5", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Thus, plaintiff states that there was a initiated and carried out by the defendants against general contractors because of the position taken by the defendant trade association in adopting the resolution on June 19, 1962 and other activities by defendants. Defendants deny any such intention and allege facts disputing the alleged boycott. The acts of defendants must be considered in the light of all the surrounding circumstances so as to determine the true meaning to be attributed to defendants\u2019 conduct. The alleged conspiracy must be judged by viewing it in its entirety and not by dismembering and viewing its separate parts."], "id": "5b207c5c-739b-4722-af4a-e4f14a15b2d2", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Therefore, the use by defendants of the slogans previously mentioned does not exceed limitations placed on speech communication generally. The more refined question remains whether the statements made by defendants are permissible *288in the specific setting of a product . While guarantees accorded free expression ordinarily do not differentiate between ideas disseminated (see Hudgens v NLRB, 424 US 507), in labor matters language employed during picketing must not advocate proscribed secondary objections."], "id": "2a0e195d-7333-4b04-b59b-534aad05c527", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["It is inherent, in its defined role, that a labor union must affect third parties in the course of the bargaining process with its \u2018 \u2018 adversary \u2019 \u2019, the employer. \u2018 \u2018 The principal weapons which the unions have developed are the strike, the and the practice of picketing. These devices are used to force the employer to shut down his plant or business either by depriving him of labor or of customers until compliance with,the demands of the union is made. Contractual relations are, of course, interfered with, deliberately and intentionally by the defendant unions \u201d (1 Harper & James, Torts, p. 523)."], "id": "9f7774f4-fd24-4bc4-b0e5-710dfd138700", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": [". Both these cases uphold picketing whose intent was to or otherwise economically coerce plaintiffs who had direct connection with the premises out of which the picketers\u2019 grievances arose. Segal upheld that portion of the injunction against picketing unrelated persons with businesses in the area. While this related/unrelated distinction is not involved here, Claiborne appears to have somewhat modified it, depending on the speech and the circumstances."], "id": "0cbbc290-a9c3-4242-88ea-adbac7f38573", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Defendants\u2019 affidavits do not substantially controvert the basics of the picture outlined. They argue, instead, that the stay is too broad in scope; that plaintiff failed to show irreparable injury; that, in fact, cessation of classes resulted from student because of the announced increase in tuition, not disruption, and that the few who wished to attend classes in Shuster Hall could have been accommodated in another building at little expense or injury to plaintiff. The theft and vandalism are described as an isolated incident; nor, say defendants, were they shown to have been involved in the incident. They also *980state that students remained overnight in the library with the permission of a dean; and further, that at a meeting of the faculty, a motion was adopted urging the president of the college to instruct the Corporation Counsel to discontinue the action."], "id": "5d4e3b2e-932d-4db9-ba9a-a251c9442e33", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["By contrast, the public's interest in engaging in expressive activity in the exterior portions of Six Flags Discovery Kingdom is strong. The venue attracts up to 15,000 people daily, and the protesters' message is directly connected to the animal attractions featured at the park. In effect the protesters are urging a , which is a traditional form of speech to which our state Constitution affords even greater protection than the First Amendment. (See Fashion Valley Mall , supra , 42 Cal.4th at pp. 867-868, 69 Cal.Rptr.3d 288, 172 P.3d 742.) \"According to our Supreme Court, '[u]rging customers to boycott a store lies at the core of the right to free speech.' \" ( Best Friends Animal Society v. Macerich Westside Pavilion Property LLC (2011) 193 Cal.App.4th 168, 175, 122 Cal.Rptr.3d 277.) Yet there are no other areas within the amusement park available for free expression, because the interior area is by ticketed admission only.20 And *743importantly, though not by itself dispositive, the park is zoned as \"quasi-public,\" which under the local zoning code means it's a facility \"of a public nature.\" As discussed, that designation is not meaningless. It implies the property has attributes in which the public has an interest, even if in private hands. Whatever the precise contours of those attributes, the *666phrase \"quasi-public\" connotes some measure of yielding to individual rights of free expression. (See Albertson's , supra , 107 Cal.App.4th at p. 119, 131 Cal.Rptr.2d 721 [discussing when \"private property is to be considered quasi-public property subject to the exercise of constitutional rights of free speech and assembly\"].) Then, of course, there is the fact that this amusement park falls within the same local zoning class as a traditional public park, and it is categorized in the city's general plan as falling within the same open space category as a community park. While zoning laws alone do not define what is a public forum for constitutional free speech purposes, in combination with all of the other factors we have discussed they strongly suggest here the unticketed, exterior areas of this amusement park are open to the public \"in the same manner as public streets or parks.\" ( Fashion Valley Mall , supra , 42 Cal.4th at p. 859, 69 Cal.Rptr.3d 288, 172 P.3d 742.)"], "id": "d6914def-341b-4aaf-81f6-35e45f0f68a7", "sub_label": "US_Terminology"} {"obj_label": "Boycott", "legal_topic": "Employment Law", "masked_sentences": ["In summary, whether classified as permissible secondary activity (Manhattan Steam Bakery v Schindler, 250 App Div 467) or \"an expansion of the primary dispute to a secondary situs\u201d (Big Apple Supermarkets v Dutto, 237 F Supp 774, 778, supra), picketing at the site of the retailer designed to persuade consumers to cease purchasing goods of an employer with which the union is engaged in a labor dispute is protected activity under the First Amendment and New York law and \"involves or grows out of a labor dispute\u201d within the meaning of section 807 of the Labor Law. The same conclusion has been reached by sister States interpreting analogous statutes or common-law rules (Galler v Slurzberg, 27 NJ Super 139, supra; Jones v Demoulas Super Markets, 365 Mass \u2014, supra; Almac\u2019s Inc. v Rhode Is. Grape Committee, 110 R.I. 36, supra; C. Comella, Inc. v UFW Organizing Committee, 33 Ohio App 2d 61, supra). The question remains, however, whether UFW\u2019s activities did in fact constitute a product boycott as heretofore defined. The court answers this question in the affirmative."], "id": "506ebe61-6c37-4fa3-b52d-ad05c99a72c4", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff claims that more than 100,000 teachers in the New York State school districts are members of the defendant Teachers Association and as such are subject to censure, suspension or expulsion if they do not comply with the \u201c urgent advisory Plaintiffs are requesting that defendants he enjoined from continuing the \u2018 \u2018 urgent advisory \u2019 \u2019 in effect; that they he mandated to advise the local teachers associations throughout the State and all others to whom they have distributed the 11 urgent advisory \u201d, that the advisory is of no force and effect; that they he enjoined from imposing any sanctions against the plaintiff and threatening any censure against any person applying for employment with the plaintiff. The plaintiffs urge that they are carrying out a governmental function in providing education to the school children of District No. 3 and that the attempts by defendant to \u201c blacklist\u201d the plaintiffs\u2019 school district is an interference with the governmental function in that defendants seek to \u201c dry up \u201d the teaching talents which would normally be available to the district. According to the affidavit of District Principal Wallen, the spring of the year is an active season for recruiting new teachers and, as the plaintiff is rapidly expanding and in the process of construction, irreparable harm will result to plaintiff and to the public which it serves. The plaintiff in its brief analogizes the actions of the defendants to be a secondary . Plaintiff relies on the recent New Jersey case of Board of Educ., Borough of Union Beach v. New Jersey Educ. Assn. (96 N. J. Super. 371, affd. 53 N. J. 29). In that case the New Jersey Education Association disseminated a document similar to the \u2018 \u2018 urgent advisory \u2019 \u2019 herein but was restrained by the court from further distribution or the publication of similar statements and from threatening reprisals against applicants for employment."], "id": "bdb8ff58-74c6-4b35-9e07-374fd08508f6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Insofar as respondent seeks an award in arbitration in the nature of a mandatory injunction (respondent\u2019s memorandum, pp. 19, 20) directing petitioner to engage in a secondary , I am of the opinion that this would violate the determination in Carpenters\u2019 Union v. Labor Bd. (supra) and I hold, therefore, that such an issue may not be arbitrated and the motion is granted for a stay to this extent."], "id": "63ebd1ba-dc2a-459b-bd8c-32564f80900c", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Section 155.05 (subd 2, par [e]) of the Penal Law defines extortion as follows: \"A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will * * * (vi) Cause a strike, or other collective labor group action injurious to some person\u2019s business; except that such threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act, or * * * (viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by *98failing or refusing to perform an official duty, in such manner as to affect some person adversely\u201d (emphasis supplied)."], "id": "d6156c3d-d9e6-4a64-b6da-14f9c309eafc", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["There remains for consideration the question whether the proof offered by the Transit Authority establishes that Zelano violated the provisions of Mr. Justice Ltjpiano\u2019s order. That order enjoined and restrained Zelano and others \u201cfrom instigating, promoting, or carrying on a strike or other work stoppage of employees of the plaintiff * * * or engaging in any action of a similar nature or * * * attempting or directing the taking of any action which might cause any employee of the plaintiff * * # to discontinue working for the plaintiff \u201d. The Transit Authority has adduced evidence that on December 8, 1957 Zelano, after a meeting of the members of the Motormen\u2019s Benevolent Association, Inc., had been called to order by its president, Theodore Loos, took over the chairmanship of the meeting; that he announced that the officers of the organization would be \u2018 bound by any decision that the organization might make \u2019 \u2019; that he stated that there were three causes of action available to the members: (1) to a planned labor election to be held on December 16, (2) to combine with other organizations of craft employees and participate in said election, and (3) a course of action which \u201c should be obvious \u201d. The Authority\u2019s evidence established further, that the first two causes were voted upon and were rejected, after which Zelano stated that the board of directors had adopted a resolution that if a one unit election was forced upon them the association would take militant action against the Transit Authority; that Zelano then placed the resolution before the membership for its vote, saying \u2018 \u2018 This is serious, and in all seriousness I ask you gentlemen what is your pleasure \u2019 \u2019; that a vote was taken and the resolution adopted, about two thirds of the members present voting for its adoption. According to the evidence submitted by the Authority, Loos then came forward and entertained a motion as to what time a strike should be called. Admittedly, Zelano did not participate in the vote upon the resolution, and told the members that he would take no part in the decision and that \u201c they could do just what they wanted to do \u201d. In the court\u2019s opinion, this evidence fails to establish that Zelano, at the meeting of December 8, 1957, committed any violation of the injunction order issued by Mr. Justice Lupiano. His presiding over a meeting at which several propositions were voted upon, only *494one of which could result in a strike, if adopted, without participating in the voting or attempting to influence the vote, is insufficient to constitute \u201c instigating, promoting, or carrying on a strike \u201d or \u201c attempting or directing the taking of any action \u2019 \u2019 which might cause any employee to discontinue working for the plaintiff. The quoted language of Mr. Justice Ltjpiano\u2019s order cannot reasonably and fairly be interpreted as including Zelano\u2019s activities at the meeting of December 8, as established by the evidence. In order to establish a contempt of court, which is punishable by a jail sentence, the evidence of a violation of the court\u2019s mandate must be clear and convincing. If the mandate does not clearly prohibit the action claimed to constitute a contempt, the motion to punish as for a contempt must he denied."], "id": "a16b3f17-41c9-4ac6-a1f4-90cc7853e229", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The court must apply these general principles to the case at bar. In its second cause of action, plaintiff has alleged the unfair labor practice defined in section 8 of the National Labor Relations Act (U. S. Code, tit. 29, \u00a7 158, subd. [b], par. [7]), i. e., \u201c to picket or cause to be picketed, or threaten to picket * * * where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization\u201d under certain circumstances. The National Labor Relations Board has exclusive jurisdiction over this unfair labor practice and the State courts have been pre-empted from jurisdiction. Intermingled with the pleaded facts of the picketing, however, are the allegations of a secondary . Under the allegations of a secondary boycott, this court would have jurisdiction pursuant to section 303. (See Teamsters Union v. Morton, 377 U. S. 252.) Under the circumstances, this court will not take it *449upon itself to fractionalize the facts pleaded in the second cause of action, and feels that the best course is to dismiss the second cause of action, with leave to plaintiff to replead as a separate cause of action the facts constituting a violation of section 303 over which this court has jurisdiction. For the same reasons, the third cause of action, in which plaintiff seeks punitive damages, also is dismissed with leave to replead."], "id": "29a69c8c-a7dc-401b-9888-fd04c3d9a57f", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The investigation as to whether or not there is a by the members of the building trade industry and others to unlawfully interfere with the free exercise of any activity in this State or the free pursuit in this State of any lawful business, trade or occupation, in the manufacture, production, transportation, marketing or sale of any article or commodity of common use or of any service, is properly a subject for investigation by the Attorney-General. He claims that there is information in his possession of an alleged boycott and conspiracy to boycott bidding upon construction under the New York State University Construction Fund. If there is such information in his possession, then the Attorney-General is justified in conducting an investigation into the practices. It is clearly one of the courses of conduct specified or envisaged under section 343 of the General Business. Law."], "id": "d5e95866-ea04-4934-a468-1315bfa14fac", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["*1049engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will: \u201d \u201d * 3. Engage in other conduct constituting a crime; or * * * 6. Cause a strike, or other collective labor group action injurious to some person\u2019s business; except that such a threat shall not be deemed coercive when the act or omission compelled is for tie benefit of the group in whose interest tie actor purports to act,\u201d"], "id": "9eeb0a78-6f73-415b-b219-29b3e23d4559", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Young is convicted of contempt of this court in that on April 2, 1960, he willfully violated the judgment of this court by himself picketing and by acting in concert with others, by threatening a of some of defendant\u2019s members to coerce withholding of sales and transfer of accounts from some of the individual plaintiffs to negro salesmen solely because of the color of said salesmen. He is further convicted of contempt of this court in that on April 9, 1960 he similarly violated the judgment of this court, except that he did not picket himself."], "id": "b9a782b9-4ca2-4f3c-b775-bcc739d89a92", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss Trump\u2019s threat to one of the Republican presidential primary debates unless FOX removed Megyn Kelly as a moderator. (Id. \u00b6\u00b6 45-46.) During her appearance, plaintiff characterized Trump as a \u201cbad debater\u201d and stated that he \u201ccomes off like a third grader faking his way through an oral report on current affairs\u201d and was using the Megyn Kelly dispute with FOX as an excuse for avoiding the debate. (Id. \u00b6 46.) The next day, during an on-air telephone call with the host of MSNBC\u2019s Morning Joe program, Lewandowski referenced plaintiff\u2019s comments about Trump, stating that \u201c[t]his is the same person . . . who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn\u2019t hired clearly she went off and was upset by that.\u201d (Id. \u00b6 49.)"], "id": "68551431-6a8a-4592-9c77-1cfedc57b119", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["For purposes of this demurrer the court must accept as true the factual allegations contained therein (People v. Kalbfeld, 124 Misc. 200). It is not necessary at this time to examine into the legality of the threatened picketing by determining whether the picketing would have amounted to a primary or a secondary since the indictment alleges that the intended beneficiaries of the proposed picketing were nonunion carters. By no stretch of the imagination can it be said that a union representative can throw a picket line about a place of business in an effort to exact benefits for those who have no connection with the union. Thus, even aside from the issue of primary or secondary union activity, the acts by the defendants\u2019 agent are not justifiable in law."], "id": "4430a978-24dc-40f1-bb33-e1d12c141430", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The defendant\u2019s right to be present at all material stages in a criminal trial, including sentencing, is fundamental and is protected by both the State and Federal Constitutions (NY Const, art I, \u00a7 6; US Const 6th Amend; see also, CPL 260.20, 340.50). However this right may be waived (Diaz v United States, 223 US 442 [1912]; People v Byrnes, 33 NY2d 343 [1974]). It is well established that a waiver of the right to be present at a criminal trial may be inferred from defendant\u2019s conduct (People v Johnson, 37 NY2d 778 [1975] [defendant\u2019s disruptive behavior during trial proceedings sufficient to establish a waiver]; People v Epps, 37 NY2d 343, cert denied 423 US 999 [defendant\u2019s refusal to leave his cell and attend court proceedings, after being present for two days, as part of his participation in an inmate of the courts, sufficient to establish a waiver])."], "id": "be7b3f1d-4b65-4ab0-88f3-06f9dafe9dd3", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["However, an examination of the language of the issue to be presented to the arbitrator clearly shows that it concerns the interpretation of the terms of the agreement insofar as it covers the employment of independent truckmen and petitioner\u2019s alleged breach of that agreement. The unfair labor practice charges, while related to petitioner\u2019s conduct in interfering with respondent\u2019s rights under the contract, substantially relate to petitioner\u2019s acts involving a secondary and a jurisdictional dispute to prevent the utilization of the truckman\u2019s services by respondent."], "id": "d82ed3b8-7ff1-4ddb-8520-e8caaf99d227", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The Attorney-General has reason to believe that petitioner on behalf of its membership engaged in a group , along with other pharmacists and trade association, of the proposed prescription drug plan for New York State employees and retirees scheduled to begin on July 1, 1986. The plan covers several hundred thousands of present and retired State employees. The Attorney-General\u2019s belief is based on circumstantial evidence, as well as confidential information which the Attorney-General has offered to present in camera."], "id": "a9e1fa51-3abb-4a68-bac7-27bbf24ac6b7", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Respondent admits in its memorandum that it seeks to do by indirection what it cannot do directly. Despite the existence of the hot cargo clause it cannot induce petitioner\u2019s employees (members of respondent) to engage in a secondary , and any attempt by it to do so is an unfair labor practice which violates section 8 (subd. [b], par. [4], cl. [A]) of the Labor Management Relations Act of 1947 (61 U. S. Stat. 136, 141; U. S. Code, tit. 29, \u00a7 158, subd. [b], par. [4], cl. [A]; Carpenters\u2019 Union v. Labor Bd., supra)."], "id": "4c665683-5cb3-4588-b604-2e4c9591ac79", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The trustees of SUCF were given the discretionary power in contracting for State University construction to specify the use of single rather than separate contracts (Education Law, \u00a7\u00a7 370-384). They designated the Downstate Medical Center as the first project on which the work would be contracted and bid on a single contract basis. It is this action which seemingly *259triggered the meeting of June 19,1962, at which proposals were adopted, claimed by the Attorney-General as illegal actions. The Attorney-General points out that some of the members \u201c reasoned that they did not feel the Association should be on record as refusing to bid on any job.\u201d Furthermore, it was then decided that \u2018 \u2018 plumbing contractors * * * should not participate.\u201d It is thus argued that a group to refrain from bidding involving each participant\u2019s surrender of economic benefits and profits was established, necessarily contemplating mutual assurances of co-operation."], "id": "eda9552d-f7f0-4a38-b2d3-2df388ac689d", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The line drawn between product boycotts and secondary boycotts has not been a clear one (cf. American Bread Co. v NLRB, 411d 147). So defendants, while claiming that their *271activities have constituted a product , posit nonetheless that section 807 sanctions appeals to consumers not only to refrain from purchasing the primary\u2019s product but even to cease doing business altogether with the secondary employer, in short, that section 807 condones secondary boycotts (cf. Almac\u2019s, Inc. v Rhode Is. Grape Boycott Committee, supra)."], "id": "18b4caa6-c62e-4113-bc86-d86a246b4b9e", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Near to the beginning I refer to the condition existing at P. S. 36-125 Manhattan. That school is not, like those referred to above, a Demonstration School. Now \u2014 as part of the \u2014 the parents asked for a consultative voice in finding a replacement for the principal. A procedure was sought by which the Board of Education could appoint a principal for the school who would be familiar with the problems of education in disadvantaged areas and who would have the support of the local community. In the early part of 1967 Murry Hart, District Superintendent of the district which includes P. S. 36-125, communicated by mail with the first 50 or 60 persons on the eligibility list as to their interest in the position but he received no response to his letters. Thereafter Executive Superintendent of Schools, Nathan Brown, directed Assistant Superintendent of Schools Abraham Wilner to conduct a search for a principal from the existing eligible *41list. Mr. Wilner asked a number of Assistant Superintendents and principals for names of people whom they might recommend as possible principal for the school. Mr. Wilner looked for people who had considerable experience in schools in disadvantaged neighborhoods so that it could be expected from that person, personal knowledge of such things as good - reading programs,. good programs dealing with the sociological problems that are faced by children who come from disadvantaged circumstances; or a person who had considerable experience in working with parent associations and other community agencies; or a person about whom supervisors could say that he has the capacity to work very hard, to stand up under a great deal of pressure and is \"able to win people and secure their confidence in the programs that he is following. From his conversations with supervisors and principals he compiled a list of about 25 names to whom he wrote or telephoned in April, inviting them to see him with respect to the position. Fifteen came and 12 agreed to discuss the matter further with Superintendent Hart. During the interview Mr. Wilner advised them that they would eventually be required to be interviewed by a group made up of parents and that one of them would be appointed if the group and the Board of Education selected them. Among these 12 was Mrs. Edna Gordon who was an acting principal and had been an assistant principal for four years prior thereto. Within a few days Mrs. Gordon was interviewed by Superintendent Hart."], "id": "374db934-4f6b-4e42-9528-fba9f83cd815", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In Teamsters Union v Morton (377 US 252 [1964]), relied on by the Council and a preemption case following the Machinists formula developed subsequently, the Supreme Court \"struck down an Ohio labor law that prohibited a type of secondary neither prohibited nor protected under the NLRA.\u201d (Metropolitan Life Ins. Co. v Massachusetts, 471 US, at 750, supra.) The Court found it necessary to determine, \"even though it may be assumed that at least some of the secondary activity here involved was neither protected nor prohibited\u201d, *680whether Congress foreclosed the field concerning regulation of such conduct by enactment of the NLRA. (Teamsters Union v Morton, 377 US, at 258, supra.) The Court determined that, with respect to the peaceful secondary employer activity at issue in Morton, \"[allowing its use is part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community.\u201d (Supra, 377 US, at 259.) In the Machinists case itself, the Court made clear that its prior view, \"that state power is not pre-empted as to peaceful conduct neither protected by section 7 nor prohibited by section 8 of the federal Act\u201d was in error. (Machinists v Wisconsin Empl. Relations Commn., 427 US, at 141, supra.) This followed because \"a particular activity might be 'protected\u2019 by federal law not only when it fell within \u00a7 7, but also when it was an activity that Congress intended to be 'unrestricted by any governmental power to regulate\u2019 because it was among the permissible 'economic weapons in reserve * * * actual exercise [of which] on occasion by the parties\u2019 \u201d is part of the balance Congress intended to put in place. (Machinists v Wisconsin Empl. Relations Commn., 427 US, at 141, supra [emphasis in original].)"], "id": "b32238ff-4e9b-44d5-abc4-4ac089c577f7", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff has withdrawn without prejudice its challenge to the Association\u2019s by-laws enumerated in article IV, paragraph 5; and article V, paragraphs 1, 2, 3. Specifically the Attorney-General charges that defendants and their Association\u2019s action and decision that \u201c plumbing contractors * * * should not partcipate in any arrangement that does not provide for such separate bid and separate contract\u201d is an illegal agreement, arrangement and combination to , to coerce the SUCF to comply with their demands and let contracts by separate contracts, in violation of the Donnelly Act. On June 19, 1962, it was reported at a membership meeting of the Association that \u201c many questions as to whether or not association members could refrain from submitting bids on a job known as The Downstate Medical Center, recently advertised by the aforementioned (New York State University) construction fund under a single contract \u201d had been considered. The following action was then adopted by majority vote of the members of the defendant Association."], "id": "718ec6fb-4e67-40e6-a720-a7f54e21efa7", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The instant application for a temporary injunction does not fall within the exceptions to the rule that exclusive primary jurisdiction rests in the National Labor Relations Board. The moving affidavits contain no evidence of violence, intimidation, or disorder, The only affidavit dealing with the subject is that *160of Hipson, plaintiff\u2019s vice-president. That affidavit states that at present there are only two pickets at each gate (this is not mass picketing) and that on several occasions each day \u201cthe pickets shouted vile, obscene and threatening imprecations at employees entering and leaving the plant \u201d. Apart from the fact that this vague, indefinite statement is conclusory in nature, there is the more serious difficulty that these occasional shouts fall far short of constituting conduct which permits State courts to intervene in matters relating to interstate commerce over which the National Labor Relations Board possesses exclusive primary jurisdiction. The charge that defendants have induced others not to deal with plaintiff is one of secondary , cognizable only by the board. The charge that the signs used by the pickets are false is also one of which the board has jurisdiction. Furthermore, at least 16 of the employees are coneededly on strike and it is not clear that the signs which state \u201c employees \u201d are on strike are false."], "id": "703687d1-7adb-4e59-8f0b-ef1ce2068c10", "sub_label": "US_Terminology"} {"obj_label": "Boycott", "legal_topic": "Employment Law", "masked_sentences": ["The plaintiff is not in a position to raise the objection that the agreement to discharge the old mortgage, and to receive the new one in lieu of it, was invalid because the guardian violated his duty and transcended his power in making such an agreement. Such a transaction is not absolutely void, but is voidable only, at the election of the infants on coming of age. It being obviously for the benefit of the infants that the lien shall be established and upheld, we will give effect to the intendment, that their ratification will be forthcoming at the proper time, and to the rule that no one but themselves can disavow the authority of their guardian to make the agreement. (Co. Lit., 2 b; 2 Kent Com., 236; Keane v. , 2 H. Bl., 511; U. S. v. Bainbridge, 1 Mason, 82.) The plaintiff has no claim to be the champion or protector of the infants, and can acquire no rights b} assuming that character."], "id": "0ed6159a-a14b-4a76-a61a-02211a41c22b", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The Attorney-General argues in his memorandum of law that \"a group * * * intrinsically and inherently restrains the free exercise of trade, business and commerce, and competition in the supply of goods and services, and such concerted action is therefore illegal on its face\u201d; in short, that every boycott is per se illegal. The law is not nearly so sweeping in its scope. Certainly, it recognizes legality as well as illegality in the use of the boycott (cf 15A C.J.S., Conspiracy, \u00a7 12, subds a, b). At this very moment, naturalists concerned with the survival of marine mammals are organizing a boycott of Japanese and Soviet products. Other naturalists have long advocated a boycott of articles made from the skins of endangered species of animals. No prodigy of memory is required to recall pre-World War II boycotts of exports from certain totalitarian nations. It has never been suggested that boycott so motivated ran afoul of the anti-trust laws."], "id": "b3adf615-bccb-4112-8a6a-4ad68e05aacd", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["In this action sounding in tortious interference with business relationships, Street Beat asserts that defendants wrote to Sears and Charming Shoppes, demanding that they cease selling plaintiffs goods until the workers in the Federal action were paid $280,000 and that plaintiff \u201cfalsely claimed that workers were forced to work \u00a3as many as 137 hours a week\u2019 to fabricate garments sold by plaintiffs customers.\u201d (Complaint 23.) Plaintiff also alleges that defendants held press conferences and rallies at Sears and Charming Shoppes, urging consumers to those stores, and that defendants \u201cused mob violence to intimidate workers and community organizers and during which defendants illegally and violently attacked persons in attendance who disagreed with their position.\u201d (Complaint 24.)"], "id": "ae9f10c9-6929-4162-b45c-6c9d38a07327", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["The continuation of union activities at the site of plaintiff\u2019s stores well past the commencement of this action, coupled with the testimony of UFW members that union policy favors the continued of products produced by growers who refuse to bargain collectively in the face of UFW statutory certification, leads the court to conclude that the acts herein enjoined are likely to occur in the future unless restrained (May\u2019s Furs & Ready-to-Wear v Bauer, 282 NY 331, supra)."], "id": "b0d23e1d-6105-45ef-8e5a-7c1529b8b0ab", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["However, as the Sixth Circuit has aptly noted, \u201cHutto doesn\u2019t tell us how to choose\u201d whether \u00a7 1988 fees can or should be assessed against a state, a county department or entity, or a defendant in her official capacity. Miller v. Caudill, 936 F.3d 442, 450 (6th Cir. 2019). \u201c[T]he Hutto Court faced a choice between individual officers or the government they served, so the Court never determined when and how liability could shift amongst three possible parties,\u201d id. (emphasis in original)\u2014in this case the Sheriff, the County, and the State. This problem frequently arises when it comes to certain county officials, whose duties and actions often depend on both county and state laws or policies. See, e.g., id. at 450-52 (discussing a county clerk responsible for issuing marriage licenses as dictated by state law); Echols v. Parker, 909 F.2d 795, 800-01 (Sth Cir. 1990) (discussing a county attorney, district attorney, and county judge enforcing a state anti- law)."], "id": "93c96c30-bbd2-4eff-9bf3-ec223302f4f6", "sub_label": "US_Terminology"} {"obj_label": "boycott", "legal_topic": "Employment Law", "masked_sentences": ["A literal reading of the statute lends support to defendants\u2019 position. Clauses (5), (6) and (10) of section 807 (subd 1, par [f]) of the Labor Law, when taken in conjunction, provide that no item of relief granted shall prohibit any person or persons by means of \"advertising, speaking, picketing, patrolling\u201d (Labor Law, \u00a7 807, subd 1, par [f], cl [5]) from \"advising, urging or inducing without fraud, violence or threat thereof, others\u201d (Labor Law, \u00a7 807, subd 1, par [f], cl [10]) t\u00f3 \"ceas[e] to patronize * * * any person or persons\u201d (Labor Law, \u00a7 807, subd 1, par [f], cl [6]). The words \"person or persons\u201d mean in the present context store or stores. Federal decisions, moreover, indicate that the Norris-La Guardia Act, the prototype of section 807, fully shielded secondary activity, such as secondary boycotts, from the injunctive power of the courts (Railroad Trainmen v Terminal Co., 394 US 369; Amalgamated Assn. etc. v Dixie Motor Coach Corp., 170d 902; NLRB v Kohler Swiss Chocolates Co., 130d 503). Be that as it may, however, this court is, of course, bound by Opera on Tour v Weber (285 NY 348, supra; see, also, Goldfinger v Feintuch, 276 NY 281, supra) in which the Court of Appeals declared a secondary to be an unlawful labor objective and thereby interpreted by implication section 807 (subd 1, par [f], cl [6]) of the Labor Law to apply solely to cessation of business with a primary employer."], "id": "a5d2d286-1ffc-46d4-8deb-634d3fec01ce", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": [" \r \r Judgment, Supreme Court, New York County (Andrew S. Borrok, J.), entered March 11, 2021, in favor of defendant in the amount of $1,471,761.33, unanimously reversed, on the law, without costs, and the judgment vacated. Order, same court and Justice, entered October 1, 2020, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment dismissing the counterclaims and the affirmative defense based on liquidated damages, and in its favor on its cause of action for of contract, and granted defendant's motion for summary judgment dismissing the complaint and in its favor on its counterclaim for liquidated damages, unanimously modified, on the law, to deny defendant's motion for summary judgment in its entirety, and otherwise affirmed, without costs."], "id": "f2aaaf6b-e906-4c99-b049-2afa851e2685", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["*497\u201ctwo claims for wrongful discharge, to wit, for of plaintiffs employment as a stockbroker with Morgan Stanley Dean Witter, on account of his \u2018informing\u2019 to management of one of its stockbrokers, George Repper, for his flagrant violation of 10-b of the Securities Act of 1934, * * * and on account of age discrimination * * * [Defendants chose to discharge plaintiff, from [sic] bringing unlawful conduct to their attention. Section 10-b of the Securities Act of 1934 would be stripped of its purpose, were the Courts to allow \u2018informing/ whistle blowing\u2019 employees to be fired without consequence.\u201d Defendants\u2019 Motion"], "id": "eed7ae88-bb7d-49af-bb89-19fb5593ab9c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The fourth cause of action alleges a wrongful discharge. The defendants assert that the solicitation of advertising was actually at an end. Furthermore, they contend that the plaintiff\u2019s attitude and conduct in intercepting checks and returning them to the advertisers was wrongful and would warrant the termination of the contract. If in breach of the contract, this would be a good defense to the charge of . These facts create an issue to be determined at a trial."], "id": "0fda7c73-d67b-4b8a-a59b-cd6dac7030eb", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The same is largely true of statements by plaintiff or her attorney that she could not have \"made her complaint\" without relying on facts she learned *605from her work in preparing the tax returns. That is the essence of her causes of action - that in connection with her work in preparing and submitting sales and use tax returns she learned that not all use tax that was due was being reported, and she was terminated when and because she brought the matter to light. The implied taxpayer privilege precludes the forced disclosure of tax returns and of the information contained in those returns. (See, e.g., Schnabel v. Superior Court (1993) 5 Cal.4th 704, 719-721, 21 Cal.Rptr.2d 200, 854 P.2d 1117 ; Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6-7, 123 Cal.Rptr. 283, 538 P.2d 739 ; Brown v. Superior Court (1977) 71 Cal.App.3d 141, 139 Cal.Rptr. 327.) But neither case law nor reason suggests that this implied privilege precludes an employee from speaking up when it discovers that the employer is filing incorrect or even fraudulent returns, or precludes a claim if the employee is discharged for doing so. Prosecution of plaintiff's claim does not require *756the forced production of defendant's returns or of the content of its returns. Plaintiff's right to recover turns only on whether she was discharged for communicating her reasonable belief that defendant was not properly reporting its use tax obligation. ( Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641, 17 Cal.Rptr.3d 336.) The elements of her causes of action were alleged and can be proved without violating the implied taxpayer privilege."], "id": "8d2acc69-97c2-49f4-bb65-cdc181dbbda9", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["O'Gara Coach's May 16, 2018 request for judicial notice, which includes the three documents filed with the Secretary of State identified in this paragraph, as well as O'Gara Coach's complaint against Richie for misappropriation of trade secrets and breach of contract, is granted. The court also grants Ra's June 15, 2018 request for judicial notice of Richie's cross-complaint against O'Gara Coach in LASC no. BC683608 for , breach of contract and fraud. O'Gara Coach's supplemental request for judicial notice, filed December 11, 2018, is denied as unnecessary."], "id": "5d7acad4-5837-4fbc-9a81-06b03402806e", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["See Counterclaim \u00b6 135 (\u201cCounterclaimant\u2019s termination was in bad faith and was in retaliation for voicing his concerns about Investor Defendants\u2019 wrongful actions.\u201d); Counterclaim \u00b6 82 (\u201cIt is evident that Investor Defendants attempted to use this contrived harassment claim to push their own agenda through whatever means possible and gain control of the Company even asking the Company\u2019s counsel in the beginning of the investigation whether they can fire Eksin.\u201d); Counterclaim \u00b6\u00b6 76\u201377 (\u201cUpon information and belief, this employee [who brought the harassment claim] collaborated with Investor Defendants and Directors of Lidya appointed by the Investor Defendants to create the means for Investor Defendants to gain control over the Company. In fact, Accion and other Investor Defendants used this disagreement to push Eksin out of the Company . . . .\u201d); Counterclaim \u00b6\u00b6 72\u201373 (\u201cInvestor Defendants\u2019 improper \u2018freeze-out\u2019 actions have been undertaken as part of the improper investigation, done contrary to the rights of Eksin, in dealing with the situation that arose involving claimed harassment by a former employee connected to one of the Investor Defendants and one of [sic] board directors of Lidya\u2014all of which were found to be unfounded as to Eksin. These actions were untaken after Eksin voiced his concerns about the Investor Defendants\u2019 questionable actions during the failed Series B fundraising process.\u201d) (emphasis added); Counterclaim \u00b6 80 (\u201cInstead of engaging with Eksin and performing a complete and thorough investigation, Counter-Defendants engaged in secret negotiations without Eksin\u2019s involvement or input, all to his severe detriment, as part of what appears to have been a larger plan to cut Eksin out of the Company.\u201d). In my view, Eksin has done enough to satisfy notice pleading under Rule 8 with respect to the factual bases of his claim, especially considering his pro se status. See, e.g., Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982) (\u201c[W]e adopt the view that a pro se pleading is judged by a less stringent standard than a pleading or document filed by an attorney.\u201d) (internal quotation marks omitted); Thornton v. Bernard Techs., Inc., 2009 WL 426179, at *1 (Del. Ch. Feb. 20, 2009) (\u201cBecause this is a pro se pleading, it may be judged by a \u2018less stringent standard\u2019 than one filed by an attorney. However, proceeding pro se will not Lidya Holdings Inc., et al. v. Ercin Eksin C.A. No. 2021-0110-JRS January 31, 2022"], "id": "67a0ccad-f512-4c75-9b53-dafd6068cbae", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["\u201cafter considering the pleadings, the testimony and evidence presented at the hearing, and post hearing submissions, decided that \u201c(1) Respondents are jointly and severally liable for and shall pay to claimant compensatory damages in the amount of $182,500.00[.] \u201c(2) Claimant\u2019s claim for monetary damages for defamation is denied. \u201c(3) Recommended expungement of the termination comment in section 3 of claimant\u2019s form U5, and recommended that the termination comment be replaced with \u2018Due to personal reasons\u2019 and recommended expungement of the \u2018yes\u2019 answer to question 7C (3) and recommended the \u2018yes\u2019 answer be changed to \u2018no\u2019 and the criminal disclosure reporting page be deleted in its entirety \u2018based on the defamatory nature of the information.\u2019 \u201c(4) claimant is liable for and shall pay Kaufman Brothers compensatory damages in the amount of $15,000.00. \u201c(5) any and all relief not specifically addressed herein, including punitive damages, is denied.\u201d Petitioner now moves to confirm the arbitrators\u2019 award. Respondents oppose the petition and cross-move to vacate the arbitrators\u2019 award against respondents and modify the award against petitioner. Respondents allege that the arbitrators awarded petitioner $182,500 on a claim for , when petitioner did not bring a claim for wrongful termination, and a wrongful termination cause of action does not exist in the State of New York. Respondents further allege that the arbitrators ignored the evidence and rendered an irrational decision by awarding KBRO $15,000 for unrecovered commissions draws rather than the correct amount clearly due of $30,232.91, and ignored KBRO\u2019s claim for $10,000 for the stolen tickets and damage inflicted by petitioner."], "id": "99b8cf59-ed8e-4f48-9274-16ef1afb7e53", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["As a result of this holding, plaintiff commenced a legal malpractice action against Bello in August 2007, alleging causes of action for both negligence and breach of contract arising out of his representation in the action against SIUH. According to plaintiff, Bello\u2019s negligence included, inter alia, the failure to timely assert a Labor Law \u00a7 740 cause of action, and the failure to recognize the effect upon her remaining causes of action of asserting the time-barred action under Labor Law \u00a7 740 in the complaint. According to plaintiff, this combination of errors ultimately resulted in the dismissal of her complaint, thereby barring her from recovering any damages against SIUH for her alleged wrongful termination. She also alleges that \u201cbut for\u201d Bello\u2019s negligence she would have been successful in her action against the hospital. However, this complaint was subsequently dismissed for pleading deficiencies pursuant to CPLR 3211 (a) (7)."], "id": "8e88af03-d5e6-4207-83bd-35a03986f651", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Appellants filed a complaint against Bold on July 15, 2015, alleging three separate counts: (1) breach of contract, (2) , and (3) right to accounting and production of records. Appellees filed an answer on August 10, 2015, denying the essential elements of appellants' complaint. On August 13, 2015, appellees filed a motion to compel arbitration and stay judicial proceedings. According to the motion, the parties entered into a \"Joinder Agreement\" in which appellants agreed to become a party/member to the \"Amended and Restated Operating Agreement\" of Bold and to be fully, legally bound by, and subject to, all of the covenants, terms, and conditions of the \"Operating Agreement.\" Article XV of the \"Amended and Restated Operating Agreement\" provided:"], "id": "0425ea31-c8d4-4911-b6ce-cb054fb45d3a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Specifically, the record contains a copy of the relevant JAMS Fee Agreement & Cancelation Policy, setting forth the details *673of the mediation and each party's agreement to pay JAMS half the mediation fee 14 days in advance of the scheduled mediation. Quiles's attorney, Bryan J. Schwartz, filed a declaration in support of Quiles's motion for attorney fees, in which he explained the circumstances of the parties' mediation as follows: \"My firm attempted in good faith t[o] settle the claims with Defendants shortly after adding the wrongful termination claims to the complaint. In February 2011, I flew down to Orange County to meet with Defendants' counsel Steve Madoni about discussing settlement of the case, at his invitation, and to attend the initial case management conference in person, though I would have attended by CourtCall. Mr. Madoni did not show up at our scheduled meeting, nor did he appear for the case management conference, resulting in court sanctions. [Citation.] Later, the Parties each paid half of the fees for a mediation as to Plaintiff's wrongful termination claims with the Honorable Luis A. Cardenas (Ret.), which was set for November 25, 2015 in Orange County. The mediation was confirmed by Defendants through Mr. Madoni on October 28, 2015, after the parties began discussing a mediation some time earlier. However, after Ms. Quiles and I traveled to Orange County the Wednesday prior to Thanksgiving, Defendant Parent did not even show up to the event. Of particular significance, and without disclosing confidential settlement demands and offers, after Defendants' acceptable initial offer at the mediation, Judge Cardenas informed that Defendants' counsel had no further room to negotiate, that Defendant Parent was unavailable (or unwilling) to speak with Judge Cardenas even via telephone, and that Defendants' counsel would be leaving the mediation by 10:30 a.m. Needless to say, no settlement was reached. Attached hereto as Exhibit C is a true and correct copy of the email response from Judge Cardenas when I emailed him to request a partial refund from JAMS based upon the extraordinarily fruitless event.\""], "id": "02f2c9ba-4665-49de-8ac3-0dd77454e360", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["As to the third cause of action, which seeks reimbursement for wages payable under an employment contract following plaintiff\u2019s alleged as president of the corporation, the claim cannot be said to involve mismanagement of corporate assets within the purview of section 720 of the Business Corporation Law. The action is clearly one for breach of contract against the corporate employer, since directors possess broad discretion to terminate employment with or without cause (Avien, Inc. v Weiss, 50 Misc 2d 127; Matter of Paramount Publix Corp., 90d 441; 111 ALR 889). Plaintiff, however, asserts that all actions taken by the individual defendants were ultra vires because defendant Samsung America failed to make full payment for its shares pursuant to the subscription agreement. Therefore, plaintiff asserts, Samsung America had no authority to appoint the individual defendants as directors of Charisma, and the individual defendants had no power to terminate his employment."], "id": "a311cdfe-c345-4c4d-bd62-40c1d606cdb3", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Thus, in the administrative hearing, Wassmann could have raised her claims of racial discrimination, age discrimination, and harassment as grounds for a finding of lack of cause to dismiss her. ( Busick v. Workmen's Comp. Appeals Bd., supra , 7 Cal.3d at p. 975, 104 Cal.Rptr. 42, 500 P.2d 1386.) She did not do so. She testified at her deposition that she did raise racial discrimination in the *848administrative proceedings, but, if that were true, she failed to exhaust her judicial remedy because she did not raise racial discrimination in her petition for writ of mandate. The administrative law judge's findings are, therefore binding against Wassmann on her claims under FEHA for based on race and age, and harassment."], "id": "0dd60187-127d-4e99-b525-df87d0e019a2", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Framing the venue issue, the Brown court stated that there was no dispute that Alameda County was a proper venue for the FEHA claim. ( 37 Cal.3d at p. 482, 208 Cal.Rptr. 724, 691 P.2d 272.) However, the non-FEHA causes of action for emotional distress and \"would normally be governed by [section 395(a) ], which controls venue in 'transitory' actions.\" ( Brown , at p. 482, 208 Cal.Rptr. 724, 691 P.2d 272, fns. omitted.) Thus, the court needed to decide which venue rule to apply, taking into account the fact that all three causes of action arose from the same basic set of facts. Importantly, the Brown court did not resolve this issue by classifying the FEHA claim as either local or transitory. Rather, the court examined the language of the FEHA statute to determine if it covered cases in which non-FEHA claims arising from the same facts as the FEHA claim were alleged in the *770same complaint. ( Id . at p. 484, 208 Cal.Rptr. 724, 691 P.2d 272.) The statutory language was ambiguous, but the court concluded that the purpose of the law and legislative intent supported a broad construction of the venue provision, covering cases in which FEHA claims were joined with non-FEHA claims in the same complaint. ( Id. at pp. 487-489, 208 Cal.Rptr. 724, 691 P.2d 272.) Accordingly, the court held that \"the special provisions of the FEHA venue statute control in cases involving *1081FEHA claims joined with non-FEHA claims arising from the same facts. Thus, the FEHA venue statute governs the entire action and section 395 does not apply.\" ( Brown , at p. 487, 208 Cal.Rptr. 724, 691 P.2d 272 fn. omitted.)7"], "id": "307f1b66-01dd-4a14-a67b-7c0f9a0c1cdf", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, 32 Cal.Rptr.2d 1, 876 P.2d 487, the Supreme Court held an in-house counsel could sue a former employer for as long as confidential information was not publicly disclosed. In Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304, 310, 106 Cal.Rptr.2d 906, this court held, based on the principles articulated in General Dynamics , that a former in-house counsel may disclose employer-client confidences to his or her own attorneys to the extent they may be relevant and necessary to the preparation and prosecution of the former counsel's wrongful termination action against the former client-employer. Client confidences in such circumstances can be protected from unwarranted public disclosure by use of protective orders, limiting the admission of evidence, in camera proceedings and the use of sealed records. (See, e.g., General Dynamics , at p. 1191, 32 Cal.Rptr.2d 1, 876 P.2d 487 ; Neal v. Health Net, Inc. , supra , 100 Cal.App.4th at p. 844, 123 Cal.Rptr.2d 202 ; see also Fox Searchlight , at pp. 309-310, 106 Cal.Rptr.2d 906.)"], "id": "7a0e98ad-d37c-468b-a77a-1fb13ce259d5", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The purpose of CPLR 304 was to generate revenue and not to set a trap for the unwary. It is not inappropriate to require that the courts generate reasonable revenue to help fund their existence. It is quite another thing to elevate the funding of justice over its pursuit. The argument made by respondents would require dismissal of this proceeding despite the fact that the revenue collection purpose of the statute has been satisfied. A system of dispute resolution which permitted the of a career to go unchallenged based upon an inadvertent and nonprejudicial misfiling would ill deserve and not long collect the revenue which this statute was crafted to secure. A construction which defeats the statute\u2019s basic purpose is to be avoided where possible. A construction which compels a determination that is substantively suspect should similarly be rejected."], "id": "d4c26d1f-4466-4e6e-bbdd-9ea82e906c6c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Garcia's remaining causes of action do not arise under the wage order. The wage order's overtime regulations do not apply to taxicab drivers. ( Cal. Code Regs., tit. 8, \u00a7 11090, subd. 3(M).) Likewise, the wage order does not encompass claims for in violation of public policy or waiting time penalties. Accordingly, Garcia's claims for overtime, wrongful termination, waiting time penalties, and UCL claims resting on the foregoing are governed by the common law test articulated in Borello ."], "id": "19d3d563-b405-44b8-a8e7-87ea1efd8bf2", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": [". Plaintiff does not challenge the parts of defendants\u2019 motion seeking summary judgment regarding the Labor Law \u00a7 240 (1) with respect to Industrial Code \u00a7 23-1.7 (f) (vertical passage); \u00a7 23-1.22 (b) (1) (runways and ramps constructed for use by motor vehicles) and (4) (runways and ramps *1097constructed for use by persons and which extend to a height of over four feet); \u00a7 23-1.22 (c) (platforms used as a work area); \u00a7 23-1.30 (illumination); and \u00a7 23-1.33 (persons passing by construction, demolition or excavation operations). Therefore, plaintiffs Labor Law \u00a7 241 (6) claim, as predicated on those regulations, is deemed abandoned (see Keane v Chelsea Piers, L.P., 16 Misc 3d 1116[A], 2007 NY Slip Op 51443[U], *7 [2007], citing Genovese v Gambino, 309 AD2d 832, 833 [2003] [where plaintiff did not oppose that branch of defendant\u2019s summary judgment motion dismissing the cause of action, his claim that he was wrongfully terminated was deemed abandoned])."], "id": "4939fb71-f9d0-4c82-9d73-bc2ebfdd65ca", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": [" Supreme Court properly denied both plaintiff's motion and defendant's cross motions for summary judgment on the cause of action for of contract. Plaintiff's default, which was presented to the dispute resolution officer, might have been a basis for defendant to terminate the contract. However, defendant acknowledged in internal emails that the notice of default letter forming the basis of the dispute was not a termination letter, and there had been \"no official agency action regarding termination of the contract yet.\" Neither party was entitled to summary judgment because, on the record before us, it is unclear when and under what circumstances the contract was terminated, or indeed, whether it was terminated at all."], "id": "62254756-f428-4432-8955-290630c09b52", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["There's no question Barber suffered a loss to his net salary because of his . So, ordering a gross-up award to make up for that loss is necessary to return him to the position he would have been in had he not been wronged. Interpreting the statute as allowing such an award is therefore preferable because it advances the statute's make-whole purpose. ( Lee v. Hanley (2015) 61 Cal.4th 1225, 1233, 191 Cal.Rptr.3d 536, 354 P.3d 334 [\" 'Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute' \"].) As the U.S. Court *529of Appeals for the Third Circuit explained in reaching the same conclusion under the federal employment discrimination statute, \"Our conclusion is driven by the 'make whole' remedial purpose of the antidiscrimination statutes. Without this type of [tax gross-up] equitable relief in appropriate cases, it would not be possible 'to restore the employee to the economic status quo that would exist but for the employer's conduct.' \" ( Eshelman v. Agere Sys., Inc. (3d Cir. 2009) 554 F.3d 426, 442.) While section 19854's award provision is different than the federal statute's provision, both provide ample room for the deciding agency or court to consider whether a tax liability gross-up award is appropriate under the facts of the cases before them. I believe Barber's is a case where a gross-up award is appropriate."], "id": "ef67aa6f-8d03-46a7-8dce-cbffd613f8a3", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Seals and Dolinar argue these authorities have been undermined by the California Supreme Court's 2008 opinion in Miklosy, supra , 44 Cal.4th 876, 80 Cal.Rptr.3d 690, 188 P.3d 629. In Miklosy , the plaintiffs alleged causes of action for retaliation in violation of the California Whistleblower *688Protection Act (\u00a7 8547 et seq.), and constructive wrongful termination in violation of public policy, and intentional infliction of emotional distress. ( Id. at p. 884, 80 Cal.Rptr.3d 690, 188 P.3d 629.) As to the last claim, \"Plaintiffs allege[d] defendants engaged in 'outrageous conduct' that was intended to, and did, cause plaintiffs 'severe emotional distress,' giving rise to common law causes of action for intentional infliction of emotional distress.\" ( Id. at p. 902, 80 Cal.Rptr.3d 690, 188 P.3d 629.) Miklosy concluded, \"The alleged wrongful *99conduct, however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers' compensation is plaintiffs' exclusive remedy for any injury that may have resulted.\" ( Ibid. )"], "id": "c79226b9-12b5-4709-ab3e-5c2f22975e4f", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["\"[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for *651which liability is asserted.\" ( Park, supra, 2 Cal.5th at p. 1060, 217 Cal.Rptr.3d 130, 393 P.3d 905.) *501In this case, unlike Park , The Times's decision not to publish plaintiff's work in the future is the \"wrong\" plaintiff complains of in his and related employment claims. It is equally clear that a newspaper's decision to publish or not to publish a contributor's work is protected by the First Amendment."], "id": "5489c7f9-32b6-493b-bb09-20de87e494d8", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["\u201cIn consideration of employment with Bear Stearns, all employees hereby agree [ ] to submit to final and binding arbitration of any and all claims, controversies of any nature whatsoever and disputes arising out of or related in any way to their employment at Bear Stearns, including by way of employment, cessation of employment.... Said arbitration shall be conducted only by a panel of the New York Stock Exchange, Inc., American Stock Exchange, or th[e] National Association of Securities Dealers, Inc., as Bear Stearns[ ] in its sole discretion shall elect. . ..\u201d The underlying arbitration arises out of Bear Stearns\u2019 allegedly of Fulco from his position as a relationship manager in Bear Stearns\u2019 Global Clearing Services Department where he earned approximately $100,000 per year. *825In late 2003, various regulatory authorities began investigating Bear Stearns\u2019 involvement with certain clients who were allegedly market-timing mutual funds and making trades after market hours. In February 2004, Fulco was fired for his asserted failure to follow \u201c[f]irm policy\u201d related to mutual fund trading."], "id": "35777c81-030b-40d7-826e-5025fb1e70fe", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In Armendariz , the California Supreme Court held mandatory employment contracts that require employees to waive their rights to bring statutory discrimination claims under FEHA and related claims for in violation of public policy are unlawful. ( Armendariz, supra, 24 Cal.4th at pp. 100-101, 99 Cal.Rptr.2d 745, 6 P.3d 669.) \"[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.\" ( Id. at p. 101, 99 Cal.Rptr.2d 745, 6 P.3d 669.)"], "id": "e774112e-907f-4842-9a59-6f9f8ba9e59a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["This is an action for money damages arising out of the alleged of plaintiff Leticia C. Rojas\u2019 employment as an associate at defendant Debevoise & Plimpton (Debevoise), a law partnership. The individual defendants are two current Debevoise partners, Barry Mills and Edward Schallert, and a former Debevoise partner, Mario Baeza. The complaint purports to state two causes of action: breach of employment relationship (first cause of action) and defamation (second cause of action)."], "id": "38930ebe-b353-4b0e-89b7-d80c61b1860c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In response to defendant's assertedly undisputed fact that \"To make her complaint, plaintiff relied on information she received in connection with preparing [defendant's] tax returns and she could not have made her complaint without relying on that information,\" plaintiff admitted that she relied on unprivileged information she received in connection with preparing the tax returns, but responded further that her \" case is not dependent upon introduction into evidence of privileged tax returns or privileged information that is an integral part of a tax return; rather it is dependent upon non-privileged communications with TFE management and the BOE.\""], "id": "827e8122-5c60-4ba0-a03d-79471b9beccf", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The judgment in B261165 is reversed. On appeal, plaintiff has challenged the court's ruling on only four of his eight causes of action. The *206court shall enter an order granting DHE's motion for summary adjudication on the causes of action plaintiff has abandoned: (1) failure to provide reasonable accommodation, (2) failure to engage in good faith interactive process, (3) hostile work environment, and (4) failure to prevent harassment. The court's order shall deny summary adjudication on the remaining causes of action: (1) disability discrimination, (2) failure to prevent discrimination, (3) retaliation, and (4) in violation of public policy. The order denying the motion to tax costs in B262524 is reversed. Plaintiff shall recover his costs on appeal."], "id": "876e901e-246c-471e-b1c4-edc5ef20281d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Based on these allegations, Saheli asserts nine causes of action against Defendants: (1) retaliation in violation of Health and Safety Code section 1278.5 ; (2) violation of the Ralph Act ( \u00a7 51.7 ); (3) violation of the Bane Act ( \u00a7 52.1 ); (4) sexual harassment (\u00a7 51.9); (5) retaliatory ( Lab. Code, \u00a7 1102.5 ); (6) wrongful termination in violation of fundamental public policy; (7) gender discrimination and harassment under the Fair Employment and Housing Act (FEHA) ( Gov. Code, \u00a7 12900 et seq. ); (8) national origin discrimination and harassment under the FEHA; and (9) retaliation under the FEHA."], "id": "ab51ec6f-4141-4c56-bd0c-f2d484e2888c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["For over 20 years, plaintiff Orlando Nakai (Orlando1 ) was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program providing treatment services to Native Americans. His employment was terminated by the program's CEO, who also happened to be his mother-in-law, after his wife informed the CEO that Orlando had a gun and was angry at Friendship House employees and she had obtained a restraining order. Orlando then filed this action for , claiming discrimination on the basis of his marital status and that Friendship House had failed to conduct a reasonable investigation prior to discharging him. The trial court granted summary judgment in favor of defendants, ruling Orlando had failed to establish a prima facie case of marital status discrimination and failed to demonstrate his employer had a duty to investigate. We affirm."], "id": "8af1b464-1f96-4e18-bf4a-31cf705baee1", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Odebrecht has asserted that Mora's alleged cause of action for retaliatory discharge and has no basis in the law. See TEX. R. CIV. P. 91a.1. Mora has alleged that he was \"wrongfully terminated\" by Odebrecht and that he was \"discriminated against\" under Chapter 451 of the Texas Labor Code. On original submission, we concluded that Mora's own allegations, taken as true, triggered a \"clear legal bar\" to his claim because the at-will employment doctrine barred Mora's claims for retaliatory discharge. See In re Odebrecht Constr., Inc. , No. 13-17-00289-CV, 2017 WL 3484526, at *5. We concluded that, examined liberally, Mora's first amended petition did not allege any facts that would support a conclusion that Odebrecht's conduct regarding Mora fell within any of the exceptions to the employment-at-will doctrine contained in labor code section 451.001. See id."], "id": "461b61bc-ab5d-451c-b0d8-3379a186a9cc", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Ramos filed her complaint asserting various causes of action against Winston for sex discrimination, retaliation, violation of California's Equal Pay Act ( Lab. Code, \u00a7 1197.5 ), and in violation of public policy. The following facts are taken from the allegations of the complaint and declarations filed in support of and opposition to Winston's motion to compel arbitration."], "id": "aa8a2f9c-86d5-4c66-9d27-be16442aba2d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["There was no obligation on the part of the defendant Kornella to keep either contract in force. This is particularly true as to the contract with the defendant Newton since plaintiff\u2019s contract with the defendant Kornella, neither by its provisions nor by virtue of the complaint allegations, is made to rest on continuation of the contract with the defendant Newton, but rather upon sales of pile fabric made by the defendant Kornella, without regard to the source of manufacture. Plaintiff insists his claim rests in prima facie tort. The relief sought sounds in equity whereas the remedy pertains solely to temporal damage. It appears from the contract that it is one at will and not to be altered save in writing and that plaintiff\u2019s damage is fully fixed at the date of its breach. Even if, as contended, plaintiff\u2019s contract ran for a period beyond the alleged , he has failed to allege a sufficient cause in prima facie tort. It is his contention that his damage was cut off by virtue of the termination of the contract between the defendants. Yet, in prima facie tort the act which it is claimed was done to inflict injury must result from unmixed motive to inflict injury and without justification. Where there is also legitimate purpose there is no liability. Acts done in furtherance of its business from whatever motive will not subject the defendant Newton to liability for prima facie tort. (Beardsley v. Kilmer, 236 N. Y. 80.)"], "id": "84061e92-ebce-4e03-8e8e-7606bb7b4961", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff further argues that it is entitled to $148,533, plus interest from March 16, 2007, in lost profits due to its since the contract states that this amount would have been its profit had it been permitted to fully perform. In opposition, defendants argue that plaintiffs damages, if any, are limited to the work completed and approved by CPC\u2019s engineer under the amended terms of the contract which provide:"], "id": "f9ce6261-2187-4097-9ada-533b881306f6", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Appellants also contend in their first point on appeal that the court erred by not correcting or modifying the award due to an evident mathematical miscalculation or an evident mistake. Goldtrap contends that the arbitrator erred by not granting him over $30,000 in unpaid salary. However, Goldtrap's right to any compensation by appellees was abandoned prior to the hearing due to appellants' withdrawal of the breach-of-contract claim in which unpaid salary for Goldtrap was sought. The only claim presented to the arbitrator was for and there was no evidence that Goldtrap sought any right to monetary damages under this complaint. Therefore, this issue is not properly before this court."], "id": "a0005c56-ab14-4d5a-bc2f-c32c996913d5", "sub_label": "US_Terminology"} {"obj_label": "Wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["1. in violation of public policy. ( Lab. Code, \u00a7\u00a7 923 [employees may organize], 6310 [retaliation for an OSHA complaint], 6400 [duty to provide a safe work environment], 1102.5 [whistleblower protection].) 2. Unpaid wages under the wage order. ( Cal. Code Regs, tit. 8, \u00a7 11090.) 3. Failure to pay minimum wage. ( Lab. Code, \u00a7\u00a7 1182.12 [minimum wage], 1194 [right of action], 1194.2 [liquidated damages], 1197 [duty to pay minimum wage].) 4. Failure to pay overtime. ( Lab. Code, \u00a7\u00a7 510 [overtime], 1194 [right of action].) *5645. Failure to provide meal and rest breaks. ( Lab. Code, \u00a7\u00a7 226.7 [rest periods], 512 [meal breaks].) 6. Failure to furnish accurate wage statements. ( Lab. Code, \u00a7\u00a7 226 [wage statements], 226.3 [civil penalties], 2699 [PAGA penalties].) 7. Waiting time penalties. ( Lab. Code, \u00a7\u00a7 201 -202 [wages and leave due upon departure], 203 [penalties].) 8. Unfair competition (UCL), based on the foregoing violations. ( Bus. & Prof. Code, \u00a7 17200 et seq. ; Lab. Code, \u00a7 2699 [PAGA penalties].) Defendants moved for summary judgment. Relying on Borello, supra, 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, they argued all eight causes of action failed because Garcia was an independent contractor, *365not an employee. Erik's declaration established various ways in which BTG did not exercise control over drivers. Garcia and others remained free to set their hours, use the car for personal errands, decline the optional radio dispatch service, keep their collected fares, enter into sublease agreements, hold other jobs, advertise services in their own names, etc."], "id": "c377b61b-f6f3-454b-8938-233fbcad8b34", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["As Miller points out, this appeal centers on whether the ALJ's order denying Miller's request for TTD benefits satisfied the first element of collateral estoppel. Miller contends this \"preliminary, non-binding and non-appealable ruling\" did not \"conclusively determine\" the issue of why Miller was discharged. KVC says the dispositive issue in the case was the same issue the ALJ determined in the workers compensation case\u2014whether Miller was terminated for cause\u2014and thus Miller was prohibited from relitigating the issue."], "id": "b80a2cde-d1fa-4843-8978-e5832081ee3c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 42 Cal.Rptr.3d 268, illustrates the point. There, Olinick sued his New York-based employer in Los Angeles Superior Court for under FEHA. ( Id. at 1292, 42 Cal.Rptr.3d 268.) His employer moved to stay or dismiss the case on the ground of inconvenient forum. ( Ibid. ) The court expressly rejected Olinick's argument that a clause requiring him to litigate FEHA causes of action in New York was unenforceable and held that \"[e]mployment discrimination claims have been held subject to forum selection clauses, provided the selected forum affords an adequate remedy.\" ( Id. at p. 1301, 42 Cal.Rptr.3d 268, italics omitted.) The court found no merit in Olinick's contention that the forum selection clause was unenforceable on public policy grounds, noting \"FEHA has no express prohibition on parties selecting a forum ... other than California's.\" ( Id. at p. 1304, 42 Cal.Rptr.3d 268.)"], "id": "4a24558a-b7c5-405f-844c-a5a60f49a124", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["B. The Opposition White opposed the motion. He argued that Smule\u2019s summary judgment motion missed the point because he did not allege a claim for . \u201cThe gravamen of [White\u2019s] Section 970 claim is that specific representations were made to him as to the nature, kind and character of the work he was being hired to perform, and the length of time the work would require.\u201d White contended that a jury could reasonably find that Smule never intended to have Plaintiff perform the job functions represented to him during his recruitment, and, instead, Smule intended to transfer these functions to a Bulgaria office that it had opened. White did not dispute that he was an at-will employee, that Shang and Steinwedel had not represented otherwise, or that he read and understood his employment documents. White conceded that Shang and Steinwedel did not tell him that he could be terminated for cause only or promise him he would remain employed through a date when his stock options would vest. White disputed that Shang had not committed or represented that White\u2019s employment would be long-term or for a specific duration. His response to Smule\u2019s undisputed material fact on this point stated, \u201cDisputed. The projects, work and goals Shang wanted Plaintiff to complete were by th[eir] nature long term. Shang emphasized to Plaintiff that the work he needed Plaintiff to perform was essential to the long-term growth of Defendant. Plaintiff was not interested in short term projects"], "id": "1a603b0b-450e-44f1-8e91-4480eac7b2dd", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["BCB and UFT cite the same standard for a breach of the duty of fair representation. Based on that standard, BCB concluded that UFT\u2019s actions regarding Morales\u2019 appeal of his step II termination were arbitrary. BCB found that UFT\u2019s conduct was arbitrary because UFT failed to provide any explanation for its failure to submit a timely appeal from the step II determination. BCB noted that UFT\u2019s actions were also arbitrary, in part, because UFT ignored a claim that had potential merit. BCB suggests that Morales\u2019 claim might be meritorious because Morales never faced criminal charges and the letter from DeGioia\u2019s niece evidences a strong relationship between DeGioia and Morales. BCB concluded that it could not supply a reason for UFT\u2019s inaction *823when no explanation was provided by UFT. BCB further found that UFT had an affirmative duty to inform Morales whether or not it would pursue a grievance on his behalf once UFT represented Morales during the first two stages of the grievance process."], "id": "12277c84-fef2-4f7b-b3c6-1e4fbb936072", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["On November 6, 2013 Patrice Honeycutt filed this action against her former employer, JP Morgan Chase Bank, alleging causes of action for discrimination, retaliation, , and related *258claims. On March 7, 2014 the trial court granted Chase's petition to compel arbitration of Honeycutt's complaint. *916On July 17, 2014 the American Arbitration Association (AAA), a dispute resolution provider organization,1 notified the parties the AAA had appointed a retired judge to serve as the arbitrator. The notice of appointment included a copy of the AAA's disclosure worksheet, completed by the arbitrator, which instructed the arbitrator: \"It is most important that the parties have complete confidence in the arbitrator's impartiality. Therefore, please disclose any past or present relationship with the parties, their counsel, or potential witnesses, direct or indirect, whether financial, professional, and social or of any other kind. This is a continuing obligation throughout your service on the case and should any additional direct or indirect contact arise during the course of the arbitration ... it must also be disclosed. Any doubts should be resolved in favor of disclosure. If you are aware of direct or indirect contact with such individuals, please describe it below. Failure to make timely disclosures may forfeit your ability to collect compensation. The AAA will call the disclosure to the attention of the parties.\""], "id": "c60076c2-4c80-446f-b1b4-4c5cfcda7aed", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["[t]he general rule in Texas is that absent a specific agreement to the contrary, employment may be terminated by either the employer or the employee at will, for good cause, bad cause, or no cause at all. In Sabine Pilot Service, Inc. v. Hauck , the Texas Supreme Court recognized a \"narrow exception\" to the employment-at-will doctrine covering \"only the discharge of an employee for the sole reason that the employee refused to perform an illegal act.\" However, Sabine Pilot involved only non-governmental employees, and Texas courts have declined to extend the Sabine Pilot exception to governmental employees. Instead, courts have held that a governmental entity retains its sovereign immunity when an employee raises a common law Sabine Pilot cause of action. Id. (internal citations omitted). We then noted that the governmental employee had \"not directed us to any authority establishing that governmental immunity is waived for a claim under Sabine Pilot ,\" and we concluded that the government employee failed to plead facts affirmatively showing the trial court's jurisdiction for his claim of wrongful termination for refusal to perform an illegal act. Id."], "id": "c73e7fe6-c40f-45df-8c8c-0120407f5e27", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff Shawn Terris appeals a summary judgment in favor of her former employer, defendant County of Santa Barbara (County), in her action. We conclude, among other things, that: 1) Terris did not exhaust her administrative remedies on her claims that the County terminated her job to discriminate against her in violation of sections 1101, 1102, and 1102.5; [ [2) there are no triable issues of fact on Terris's claim that she was terminated because of her sexual orientation ( Gov. Code, \u00a7 12940, subd. (a), Fair Employment and Housing Act (FEHA) );] ] but 3) the trial court erred by awarding the County costs on the FEHA cause of action. We affirm in part and reverse in part."], "id": "4a5b75f9-5315-4ae0-b2db-97bb1fd2c123", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner did not make a claim; his claims were for defamation and intentional infliction of emotional distress. Although the body of the award referred to the defamatory character of the U5 form, the claim for defamation was dismissed. On the other hand, the arbitrators made an award of $182,500 without explaining on which claim; this lack of explanation creates an ambiguity that must be explained by the arbitrators. They also made an award of $15,000 on the counterclaim without the benefit of explanation. In sum, the arbitrators failed to address and dispose of the issues raised by the parties or make specific findings of fact or credibility."], "id": "fbf7365c-7b98-4b9a-8d77-a9d8fba44fbe", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["At the hearing before the ALJ, the Court submitted 11 exhibits and the testimony of one witness-Sheran Morton, the Assistant Court Executive Officer. Two of these exhibits-the Court's personnel manual and its table of contents-were submitted by the Court and the Union as joint exhibits. The Court's own exhibits *595were (1) the Court's mission statement; (2) materials from the \"PJ/CEO Roundtable: Trial Court Leadership for Ethical Excellence,\" which included a copy of the Code of Ethics for the Court Employees of California; (3) floor plans for its 11 facilities; (4) job descriptions for its series of office assistants; (5) a list of and other employment cases filed from January 1, 2011, to March 2, 2011, and filed during the 2010 calendar year (24 and 140 cases, respectively); (6) a list of 146 case titles involving well-known entities as parties; (7) the floor plan and photographs depicting level five of the B.F. Sisk Building;8 (8) the floor plan and photographs depicting level four of the B.F. Sisk Building;9 and (9) the floor plan and photographs for the fourth floor of the main courthouse."], "id": "0f8ed9f1-ec97-4baf-99f9-d8c3ee18f19d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Indeed, compensation awards often depend on whether plaintiffs seek unpaid wages or back pay. For example, back pay *189awards \u201ccover[ ] periods that [undocumented workers] were not working due to wrongful termination\u201d (Oro, 10 Misc 3d at 84). Unpaid wages, on the other hand, involve \u201cpay[ment] to undocumented aliens wages for work actually performed\u201d (see id. at 86). \u201cTo condone dismissal of actions for wages earned but not paid, regardless of the legal theory employed, on the ground that such labor contracts are \u2018illegal,\u2019 would thus directly contravene the public policy of the State of New York and of the United States government.\u201d (Garcia, 11 Misc 3d at 3; see also Gomez v Falco, 6 Misc 3d 5, 6 [App Term, 2d Dept 2004] [\u201cWhile back pay awards to undocumented workers for periods of unemployment, e.g., for union activity, are barred by federal immigration law, the award in the present case properly represents payment due and owing for work actually performed\u201d (citations omitted)].) In Ulloa v Al\u2019s All Tree Serv., however, the court dismissed part of an action for unpaid wages but only because the undocumented worker sought compensation for overtime and because the court assumed that all contracts with undocumented workers, despite the absence of fraud, were \u201ctainted with illegality.\u201d (Ulloa v Al\u2019s All Tree Serv., 2 Misc 3d 262, 264 [Nassau Dist Ct 2003].) The court did allow the worker\u2019s claim for unpaid minimum wages. (Id.)"], "id": "d09310b2-47f7-45a6-bd5f-e53ff5f50667", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Wilmer J. Patlow, J. Defendant DePaul Mental Health Services, Inc. (hereinafter DePaul) moves for summary judgment pursuant to CPLR 3212 dismissing plaintiff Lois Kern\u2019s remaining cause of action against it. By prior order dated June 26, 1986 and decision dated June 3, 1986 plaintiffs causes of action for abusive discharge and/or of employment and for libel and slander were dismissed pursuant to CPLR 3211 by the Honorable John Finnerty, Acting Supreme Court Justice. *971The remaining cause of action, to which the present motion is addressed, alleges a retaliatory discharge in violation of section 740 of the Labor Law."], "id": "452f4b08-f228-4c4d-8074-edd3446fb7ed", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Galvan appeals, arguing there are triable issues of material fact as to each of her causes of action and her claims for declaratory relief (discrimination), injunctive relief, and punitive damages. We agree in part. We will reverse the judgment and direct the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication of Galvan's retaliation and negligent supervision causes of action and her claims for declaratory relief (retaliation) and punitive damages, but denying summary adjudication of her discrimination, harassment, and failure to take necessary steps to prevent discrimination and harassment, and in violation of public policy causes of action, and her claims for declaratory relief (discrimination *21) and injunctive relief.4"], "id": "9a3b9200-73ae-45ab-8569-4a3ce74c9819", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["There was significant overlap between Salomone\u2019s personal counterclaims in the WPP action and the counterclaims he made on behalf of the stockholders/sellers. There were seven counterclaims in all. The first counterclaim was Salomone\u2019s claim for of his employment (termination claim). Part of the termination claim was based upon incorrect calculation of the OPAT shortfall. Movants contend that, over the objections of the other stockholders, Salomone chose to litigate a second lawsuit by the purchaser for a \u201cWorking Capital Shortfall,\u201d under article II of the APA, which required the seller to pay the purchaser if working capital was less than $1,250,000. Movants say that Salomone employed this strategy because the working capital shortfall was based on the same accounting as the OPAT shortfall and would have resulted in dismissal of the termination claim. Six of the seven counterclaims involved the same allegations as the termination claim, i.e., miscalculation of OPAT, interfering with Salomone\u2019s management of the business and not permitting Salomone to report to the CEO.3"], "id": "4b7ae7ca-4eb9-4239-976f-bc6cf8a0865f", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The arbitration hearing took place on November 14, 2015.1 Prior to the commencement of the hearing, appellants withdrew from consideration all claims other than the claim for . In the arbitration award dated January 10, 2017, the arbitrator noted that appellants' withdrawal of the claims was the equivalent of a nonsuit in state court. The award stated in pertinent part:"], "id": "dbfe3ba1-c627-4643-8835-0fb363775efb", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Regarding Inspectronic\u2019s claim for lost profits based on the change orders issued in connection with the remaining items on the subcontract, as noted Bidco completed not only the base items but also every change order. The court concludes, contrary to Gottlieb\u2019s contentions, that Inspectronic may recover lost profits for the change order work, which it would have completed but for Gottlieb\u2019s of the subcontract. The damages a party may recover for breach are those that ordinarily and naturally flow from the breach, are proximately caused by the breach, are certain or capable of ascertainment, and are not remote, speculative or contingent (see Fruition, Inc. v Rhoda Lee, Inc., 1 AD3d 124, 125 [1st Dept 2003]). In determining what was contemplated by the parties at the time the agreement was entered into, the court should consider the nature, purpose, and circumstances of the contract (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 193 [2008])."], "id": "304cb54c-0783-4360-8814-b4945fa59db9", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Even though an article 78 proceeding is technically permissible, Ms. Goldman\u2019s claims are better resolved in a plenary action, where discovery is readily available and where full legal and equitable relief is available under the traditional rules of contract law and the sections of the Human Rights Law governing age discrimination. As the Court of Appeals recognized in Abiele Contr. v New York City School Constr. Auth. (91 NY2d 1, 7 [1997]), \u201cthere are circumstances in which the same [party\u2019s] action may constitute a violation of contract and also be of a character that would support a claim for article 78 relief\u2019 (quoting Matter of Goodstein Constr. Corp. v Gliedman, 117 AD2d 170, 176 [1986, Sandler, J.P., concurring], affd 69 NY2d 930 [1987]). In so stating, the Abiele court rejected the defense argument that only article 78 relief was available and declined to dismiss the contractor\u2019s plenary action against the Construction Authority alleging of his contract. (See also Mitchell v Board of Educ. of City School Dist. of City of N.Y., 15 AD3d 279 [1st Dept 2005] [rejecting the claim that action for breach of stipulation settling disciplinary proceeding was barred by the four-month statute of limitations under article 78, finding that claim for lost pay could properly be resolved under the traditional rules of contract law].)"], "id": "4fa9e109-9655-4e3f-b62b-ce68edc3f59a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["On October 27, 2015, appellant, an Hispanic man of Mexican heritage, filed a complaint for damages alleging causes of action against LACCD for (1) employment discrimination (failure to grant tenure-race) in violation of the FEHA; (2) employment discrimination (termination-race) in violation of the FEHA; and (3) discrimination [in] violation of public policy.2 On January 13, 2016, appellant filed a first amended complaint (FAC) alleging a single *447cause of action for employment discrimination (termination-race) in violation of the FEHA. In the cause of action for , the FAC alleged that \"LACCD has engaged in endemic race based employment discrimination, affecting Plaintiff, and resulting in his denial of tenure.\" It further alleged that \"LACCD has engaged in endemic race based employment discrimination, affecting Plaintiff, and resulting in his termination from employment.\""], "id": "f2716933-8b32-4622-b4e6-f6d9e03e1715", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["*477Swimming fired Schubert in 2010, Foster refused to represent him in a lawsuit against USA Swimming because he did not want to have a negative relationship with USA Swimming in the future. Foster told Schubert at that time that he would have a conflict of interest in suing USA Swimming. Knutson testified that Foster never told her that he represented Schubert in 2006, or that he declined to represent Schubert against USA Swimming because he felt there was a conflict of interest due to his relationships with people within USA Swimming. For his part, Foster testified he told both Knutson and Morgenstein that if Knutson could not settle the dispute with USA Swimming, Foster would help her find another attorney to bring a lawsuit on her behalf."], "id": "021b7c0f-00bf-44d6-b931-d0b02519550d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": [". The issues presented in this action are similar to those in BDO Seidman, LLP v Bloom (Sup Ct, NY County, Fried, J., Index No. 600404/2004), in which I found this same arbitration provision of BDO to be valid and enforceable, and therefore stayed defendant\u2019s counterclaims arising from his allegedly and compelled their arbitration pursuant to the partnership agreement. Since many of the issues here mirror those raised in BDO Seidman v Bloom, much of that analysis is relevant and repeated. It will be helpful to note that, in this action, the partnership is one of the defendants, while in BDO Seidman v Bloom, BDO was the plaintiff."], "id": "76d4eb09-6378-4c6f-9c6f-3eb8636d8f9d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Similarly, in Lidow , the Court of Appeal concluded the internal affairs doctrine did not prevent application of California law to a claim for in violation of public policy alleged by a foreign corporation's CEO. Although a corporation's decision to remove its CEO typically involves the corporation's internal governance and triggers the internal affairs doctrine, the Lidow court concluded the *560CEO's allegations that he was removed for complaining about illegal and unethical activities went beyond internal governance and touched upon broader public interest concerns. Moreover, applying California law would not subject the corporation to conflicting demands or affect its organic structure. ( Lidow , supra , 206 Cal.App.4th at p. 362, 141 Cal.Rptr.3d 729.)"], "id": "8b19fc8a-056f-409c-9b62-76f0bfcf713c", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The plaintiff, who is an obstetrician and gynecologist formerly employed by the defendant SUNY Downstate Medical Center (hereinafter SUNY Downstate), commenced this action, inter alia, to recover damages for breach of contract, of employment, defamation, intentional infliction of emotional distress, discrimination in employment in violation of Administrative Code of the City of New York \u00a7 8-107 (7), and promissory estoppel. She alleged that SUNY Downstate and the defendant Ovadia Abulafia, who was the chairperson of SUNY Downstate\u2019s Department of Obstetrics and Gynecology (hereinafter the Department), breached the terms of her employment agreement and SUNY Downstate\u2019s written policies when they terminated her fellowship and constructively terminated her employment in retaliation for her written complaint to Abulafia about excessive duty hours. The plaintiff also alleged that the *663defendants breached certain promises made to induce her to accept the fellowship position, and that her employment and fellowship were wrongfully terminated by the defendants in violation of their agreement to adhere to pertinent statutes, rules, regulations, and policies concerning duty hours and retaliation. Further, the complaint alleged, among other things, that Abulafia made defamatory statements to prospective employers regarding the plaintiffs professional conduct, and that the \u201cdefendants\u2019 aforesaid wrongful conduct\u201d was extreme and outrageous, causing the plaintiff to suffer significant emotional distress."], "id": "8b034dad-1293-4869-804e-92cf3eacb310", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Several months later, KVC filed an amended answer, adding new affirmative defenses of res judicata, claim preclusion, collateral estoppel, and issue preclusion. That same day, KVC moved for judgment on the pleadings, arguing Miller's claim for was barred by issue preclusion because the issue of whether KVC terminated Miller for cause was already litigated and decided at the preliminary hearing in Miller's workers compensation case. The district court granted KVC's motion and dismissed Miller's lawsuit with prejudice. Miller timely appealed."], "id": "8f331da1-da6c-4576-9deb-1a3d7c5bee7a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff, a former employee of defendant Interfaith Medical Center, instituted the action against his employer and direct supervisor for wrongful discharge. In his complaint, plaintiff averred five causes of action as follows: (1) alleged illegal termination without cause; (2) breach of contract by failing to give the requisite seven months\u2019 notice of nonrenewal; (3) breach of due process guaranteed under the contract as a result of defendants\u2019 failure to afford plaintiff rights under article xv of the collective bargaining agreement; (4) defendants\u2019 alleged attempt to extort plaintiff\u2019s waiver of a contract right by threatening to withhold credits if plaintiff asserted his right under the contract; and (5) that as a result of his plaintiff has not been able to obtain another fellowship in cardiology."], "id": "b5738dd4-9df9-4699-a217-cca160d0c9b7", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The union contends that it is still \u2018 \u2018 directed to recover damages for the of plaintiff\u2019s employment by Loral Electronics Corp., stemming from the alleged invalid expulsion of plaintiff from membership in defendant Union.\u201d With this the court does not agree. The union may not escape its liability for the consequence of its illegal acts, by redress in the State courts, because, as a concomitant result, the plaintiff lost his job due to expulsion from the union (Green v. Folks, 13 A D 2d 744, supra)."], "id": "6b4effbb-83ac-4813-be22-3154b5fde60d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Here, as we have explained, Mahoney's decision to terminate Symmonds or, put another way, not to have Symmonds perform music with him, did implicate Mahoney's free speech rights. Thus, this case, unlike Park , presents a circumstance in which the adverse employment action itself is conduct within the purview of the anti-SLAPP statute. (See Rall v. Tribune 365 LLC (Jan. 17, 2019, B284566) 31 Cal.App.5th 479, 649-52, 242 Cal.Rptr.3d 633, 2019 WL 244552 *11-12 [blogger's claim against newspaper arose from newspaper's protected activity of choosing not to publish blogger's work].) The trial court erred in finding that defendants had not met their burden at the first step of anti-SLAPP analysis."], "id": "ee181e85-6b7d-498a-9df6-3b8c40ea193d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["This action is brought by a former employee of the State who seeks to recover damages for of employment. The claim\u2019s principal allegation is that, in discharging claimant, the State breached a provision of the collective bargaining agreement which had been negotiated by *18claimant\u2019s union. As a necessary predicate for bringing such an action against the employer, the claim also alleges that the union breached its duty of fair representation toward claimant in connection with processing his grievance."], "id": "a2f99b68-4e62-40e7-9ca4-1eb59d5f18d6", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["*863There being no cause of action pending by defendants relating to improper or of the contract, whether or not plaintiff properly cancelled the contract by facsimile mail, rather than certified mail, is not relevant to the issues before the court. The sole issues are whether or not plaintiff is entitled to be paid by Rapid for services rendered, and whether defendant Albert Semon may also be individually liable for such payment."], "id": "6bb908bb-d575-4b7f-bd39-8daa1f699ab3", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["On August 1, 2018, Nedd filed a suit against Ryze in Contra Costa County Superior Court. His complaint alleged eight causes of action, five of them under the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA). On September 10, 2018, Ryze moved to dismiss or stay Nedd's case because it was filed in an improper forum."], "id": "42a8ab5e-ddc9-4eea-98fd-027749430ae2", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The issue of whether a national bank may enter into employment contracts of definite duration and, therefore, may be held liable for wrongful discharge has been addressed by several courts since the National Bank Act was enacted during the Civil War. The provision of the National Bank Act providing for the dismissal of officers at the pleasure of the Bank has been consistently interpreted to allow a national bank to discharge an officer without incurring liability for breach of contract or (see, Alfano v First Natl. Bank, 111 AD2d 960; Kemper v First Natl. Bank, 94 Ill App 3d 169, 418 NE2d 819). However, the cases cited by defendant which were decided after the 1971 regulations were enacted are silent as to the Bank\u2019s assertion that an agreement providing for severance pay upon dismissal without cause violates Federal law."], "id": "a2c677fa-12ed-4e7f-993c-175cc4113dd7", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The trial court concluded The Times has a First Amendment right to publish or not to publish any story it chooses, and that plaintiff's and related claims arose from The Times's decision not to publish any of his work in the future. Plaintiff contends this was error under Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 217 Cal.Rptr.3d 130, 393 P.3d 905 ( Park ). There was no error."], "id": "2fec4f79-b698-4494-86a7-f85ea08a0393", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In Sabine Pilot , a non-governmental employer asked an employee to commit an illegal act. 687 S.W.2d at 734. The employee refused, and the employer fired the employee. Id. The employee sued for . Id. The employer relied on the employment-at-will doctrine, which applies in Texas and allows an employer to fire an employee for any reason or no reason. Id. However, the Texas Supreme Court carved out an exception to the employment-at-will doctrine establishing that an employee has a viable cause of action against the employer in Texas if the employee is discharged for the sole reason that the employee refused to perform an illegal act. Id. at 735."], "id": "c5b1208b-518a-48ba-bc35-de7b52d83e61", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["With regard to defendant\u2019s motion to dismiss under CPLR 3211 (a) (1), it is well settled that in order to succeed on such a motion, the documentary evidence submitted must (1) resolve all factual issues as a matter of law, and (2) conclusively dispose of the plaintiffs claims (see Teitler v Pollack & Sons, 288 AD2d 302 [2001]). Here, defendant has submitted, inter alia, a copy of plaintiff\u2019s last employment contract, which expired three months prior to her termination of employment, in order to prove that she had become an \u201cat-will\u201d employee by the time of her discharge, and was, therefore, subject to dismissal at any time. In this way, defendant maintains that plaintiff cannot, as a matter of law, establish a viable claim for breach of contract or otherwise demonstrate that \u201cbut for\u201d defendant\u2019s alleged negligence she would have obtained a more favorable result in her suit."], "id": "9e9f3b3b-d491-4c44-9231-c37e2a0be5ea", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["A jury trial of Arave's remaining claims began on August 7, 2013. After the close of evidence, Arave voluntarily dismissed the claim for in violation of public policy, cause 6. On September 11, 2013, the jury returned a verdict in defendants' favor on all remaining claims. The jury found defendants did not subject Arave to an adverse employment action or constructively discharge him (cause 1), did not subject him to unwanted harassing conduct on the basis of his religion (cause 2), did not subject him to a material and adverse change in the terms and conditions of his employment after he complained of religious discrimination (cause 3), and did not fail to prevent discrimination (cause 5). The jury also found Arave did not have any accrued vacation time as of the date of his separation."], "id": "8a55341e-4187-452e-b5fb-a3e001d47f30", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["It is undisputed Kohut also has represented the Company twice. First, between April 2010 and November 2011, Kohut represented the Company, Management, and some investors when served with subpoenas in an unrelated lawsuit entitled DeCinces v. Ruby's Diner, Inc. (Super. Ct. Orange County, 2009, No. 30-2009-00124231). Second, during September and October 2010, Kohut advised the Company about a former employee's lawsuit, but the Company's insurance carrier hired a different counsel to represent the Company in that lawsuit."], "id": "2453fc93-9ce3-45ae-bb43-e14ff43504c3", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The second, third, fifth and sixth causes \u00e1re also attacked for legal insufficiency, as well as upon the other grounds above-stated. In these causes plaintiffs seek damages for loss of future profits from the partnership, .the impressing of a trust upon the proceeds of the sale, an order directing movants to effect a rescission of the sale, and damages from all defendants for their acts in\" a conspiracy to defraud plaintiffs. Movants contend that these causes must - fail for plaintiffs\u2019 failure to institute an action for an accounting, claimed to be a condition \u00a1orecedent to the institution of these . actions, citing Mertz v. Mertz (271 N. Y. 466) and Friedland v. Friedland (12 Misc 2d 349, 350) wherein the court stated on page 350 of the Miscellaneous Report: \u201cIt is well established that an action at law may not be maintained by one partner against another for any claim arising from the partnership business until there has been an\u2019 accounting of the business, a balance struck and an express agreement to pay. (Arnold v. Arnold, 90 N. Y. 580, 583; Sasson v. Lichman, 276 App. Div. 932; Cohen v. Erdle, 282 App. Div. 569.) \u201d This rule has been generally followed (Usdan v. Rosenblatt, 93 N. Y. S. 2d 862; Duncan v. Bruce, 179 Misc. 992; Leitner v. Wass, 63 N. Y. S. 2d 350) with certain exceptions. The exception here pertinent was expressed in Burnstine v. Geist (257 App. Div. 792, 793) while quoting from Armstrong v. Rickard (199 App. Div. 880, 886) as follows: \u201c\u2018The law is well settled in-this State and elsewhere that, where a partner *253assumes to dissolve the partnership before the end of the term agreed upon * * * he is liable in damages to be recovered in an action at law \u2019 * * *. For the , appellant has an action at law against respondent for damages for breach of contract.\u201d This exception does not disserve the purpose of the general rule above noted, i.e., that it is difficult to determine the amount due in intrapartner suits without an accounting. (1 Barrett and Seago, Partners and Partnerships, Law and Taxation, ch. VI, \u00a7 5.8, pp. 639-641; Ann. 168 A. L. B. 1088,1093, and cases cited therein.) In the instant case the basis of the action is the alleged wrongful sale of the partnership property by movants which sale, according to the partnership agreement, worked a dissolution of the partnership. A capital distribution has occurred. Plaintiffs seek, in the second and fifth causes, not any readjustment of the partners\u2019 capital accounts nor an accounting of the proceeds of the sale, but damages for their loss of future profits caused by the dissolution, and an order directing defendants to seek rescission of the sale. These causes have, implicit within them, recognition of the dissolution of the partnership. It does not appear that maintenance of these causes is contrary to the theory above noted, and it does appear that such maintenance is consonant with the Burnstine case (supra). The motion to dismiss the second and fifth causes on this ground is, accordingly, denied. Nor does it appear that the fifth cause is barred as improperly seeking rescission of a contract by one part of an entity without the consent of the other parts. (Denker v. Twentieth Century-Fox Film Corp., 13 A D 2d 627.) Plaintiffs are not herein seeking a rescission, but an order compelling the nonconsenting parts (the general partners) of the entity (the partnership) to join in so doing. (See Continental Securities Co. v. Belmont, 206 N. Y. 7; Kaszubowski v. Buffalo Tel. Corp., 131 Misc. 563.)"], "id": "61c4a95d-d2d7-453f-ab8b-696b9819aaee", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Appellants cite two cases that relied on the legislative committee comment to Government Code section 815 in analyzing whether a constitutionally-based cause of action was barred. Based on the legislative committee comment, Young v. County of Marin (1987) 195 Cal.App.3d 863, 241 Cal.Rptr. 169 ( Young ) stated that \"it is clear that although Government Code section 815 provides that public entities are not liable for injuries '[e]xcept as otherwise provided by statute,' they are not immune from constitutionally created claims.\" ( Id. at p. 869, 241 Cal.Rptr. 169.) Young concluded that the plaintiff could therefore state a cause of action against a public entity for based on the reasonable exercise of her First Amendment rights, regardless of the immunity for public entities stated in Government Code section 815. ( Young, at p. 871, 241 Cal.Rptr. 169.) Similarly, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 185 Cal.Rptr. 758 ( Fenton ) cited the legislative *555committee comment in stating that \"the Legislature has recognized that the state Constitution may provide a cause of action independent from any statute providing *513for liability.\" ( Id. at p. 804, 185 Cal.Rptr. 758.) Fenton concluded that Government Code section 815 did not bar a cause of action based on the state constitution's right-to-vote provision. ( Fenton, at p. 805, 185 Cal.Rptr. 758.)"], "id": "cf68265c-5633-435d-9c0f-7d05cae08857", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Ramos is correct that none of her claims allege a violation of any term of the Partnership Agreement. However, her allegation that the compensation committee improperly reduced her salary by 56 percent arguably relates to *1053the provisions of the Partnership Agreement regarding compensation for income partners, i.e., \"Distributive Cash,\" which generally set forth the procedures for distribution of distributive cash and provide that the executive committee shall determine the amount of compensation for each income partner. It also relates to the partnership in that Ramos was an income partner and alleges she was denied compensation and opportunities by other partners of the firm. In addition, one of the key issues in her lawsuit is whether Ramos is an \"employee,\" and thus entitled to assert statutory claims for sex discrimination, retaliation, , and anti-fair-pay practices. In arguing her employee status, Ramos relies upon numerous provisions of the Partnership Agreement demonstrating her lack of control of the business. Thus, the controversy between the parties appears to \"touch matters\" covered by the Partnership Agreement. ( Simula, Inc. v. Autoliv, Inc., supra, 175 F.3d at p. 721.) More significantly, Ramos does not dispute she came to Winston as an \"Income Partner,\" was a member of the partnership, and the Partnership Agreement she signed upon joining the firm was the contract that established her relationship with Winston. Because her statutory claims have their \"roots in the relationship\" created by the Partnership Agreement, her claims are subject to arbitration. (See Panepucci v. Honigman Miller Schwartz, Cohn, LLP (E.D.Mich. 2005) 408 F.Supp.2d 374, 378, 379 [language in partnership agreement compelling arbitration of \" 'a controversy or claim arising under or related to' \" the partnership agreement was \"tantamount to language found to cover statutory claims\" in cases where employees agreed to arbitrate claims which \" 'arise out of or relate to my employment' \"].)"], "id": "4fcbc69f-e852-4b47-8195-f3f507626d01", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Finally, Park cited Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, 205 Cal.Rptr.3d 687 ( Nam ), *780in which the plaintiff, a medical resident at a university medical center, sued the university for sexual harassment, discrimination, and . ( Park , supra , 2 Cal.5th at p. 1066, 217 Cal.Rptr.3d 130, 393 P.3d 905.) The university argued the plaintiff's claims arose from complaints communicated to the university about the resident, written warnings the university issued to her, an investigation conducted by the university, and the written notice informing the plaintiff of her termination. ( Nam , at p. 1186, 205 Cal.Rptr.3d 687.) The court in Nam held the plaintiff's claims did not arise from those communications, but instead arose from the alleged retaliatory conduct of terminating her. ( Id . at p. 1192, 205 Cal.Rptr.3d 687.) The Supreme Court in Park observed: \" Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.\" ( Park , at p. 1066, 217 Cal.Rptr.3d 130, 393 P.3d 905.)"], "id": "237a94d5-23fb-4127-8dde-17d61d0a99a4", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["FACTS Falcon is in the cannabis business. Beginning in 2017, Mousavi\u2019s client, Nick Honard, worked for Falcon both as a contractor who earned commissions, and as an employee. Honard was fired by Falcon in August 2019. Falcon claims it terminated Honard after it learned he had submitted fraudulent expense reimbursement requests and hired an employee without Falcon\u2019s knowledge or authorization. On September 6, 2019, attorney Mousavi e-mailed a letter to Falcon\u2019s counsel, announcing she had been retained to represent Honard with respect to his potential claims for , misclassification of employment, failure to pay compensation, failure to provide employment records and retaliation for actions protected by whistleblower laws. In the e-mail Mousavi requested that Falcon immediately provide her with certain relevant employment records. On October 8, 2019, Mousavi e-mailed another letter to Falcon\u2019s counsel in which she complained she had not received a response to her earlier records request. She then added that if she did not receive a response by the next day, she \u201cwill be notifying Harvest Health & Recreation Inc. and Jason Vedadi since they will be acquiring the above named companies and will be named as defendants in the action that I will be filing against all of the above referenced individuals and entities, if we cannot resolve this matter.\u201d In that same e-mail she summarized Honard\u2019s claims: \u201c[a]side from failure to provide earning statements, Falcon and/or Coastal Harvest have consistently cheated Mr. Honard out of his commissions by forcing him to give his account information (which he was earning commissions from) to other employees and the Rezaei brothers, reducing his commissions, not paying Mr. Honard his commissions, and taking over the accounts. . . . Falcon and Coastal Harvest have refused to reimburse Mr. Honard for his expenses.\u201d \u201cIn this correspondence, I am not addressing the wrongful termination and defamation by Mark Malatesta, who on the phone told employees that Mr. Honard was"], "id": "7d30e715-4d40-4b6b-bd24-7ce91304f71f", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["As noted earlier, there is no distinction between actions for lost profits based on work that would have been performed absent and quantum meruit for work actually performed. Therefore, the unpleaded defense of illegality or inability to recover because no license existed at the inception of the contract is without merit where, as here, the plaintiff obtained a license shortly after commencing work, was paid for services rendered and is seeking damages for lost profits on work it would have performed under the contract while licensed."], "id": "0978aeb4-be49-45c3-bc21-9a47d796cb1e", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The judgment is reversed. The trial court is directed to vacate its order granting the motion for summary judgment and to enter a new order granting the motion for summary adjudication as to the retaliation and negligent supervision causes of action and the claims for declaratory relief (retaliation) and punitive damages, but denying the motion for summary adjudication as to the discrimination, harassment, failure to take necessary steps to prevent *567discrimination and harassment, and in violation of public policy causes of action, and the claims for declaratory relief (discrimination) and injunctive relief. In light of our rulings in this and several other appeals by former Dameron nursing employees who reported directly to Alvarez, we further direct the trial court to reassign this matter to a different judge. Galvan shall recover her costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1).)"], "id": "f7e37cca-c0d8-4cf5-858e-159d3431ad7f", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Arave did not accept the offer and the case proceeded to summary judgment and trial, which commenced nearly 14 months later on August 7, 2013. Arave prevailed at summary judgment on all but the harassment claim as it related to Anderson and the whistleblower retaliation claim. However, as we have discussed, Arave did not prevail on any of his remaining claims at trial. Arave voluntarily dismissed the claim for in violation of public policy after the close of evidence, and the jury found in favor of defendants on the remaining four FEHA claims and the Labor Code wage claim."], "id": "4fc17df0-9920-4f76-b2e2-42b04b83600b", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The SCO relies heavily upon the California Supreme Court's decision in Miklosy , which held that a public entity employer could not be held liable for the tort of in violation of public policy, either directly or vicariously. Direct liability was barred by section 815. With respect to vicarious liability, Miklosy explained that the wrongful termination claim \"can only be asserted against an employer \" because the tort \"is premised on the wrongful termination of an employment relationship.\" ( Miklosy, supra , 44 Cal.4th at p. 900, 80 Cal.Rptr.3d 690, 188 P.3d 629.) \"[T]he breach of the employment relationship is an indispensable element of the tort, because it serves factually as the instrument of injury.\" Consequently, \"[a]n individual who is not an employer *35cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort.\" ( Ibid . )"], "id": "89d07b98-a732-431b-854a-edeca53f7b6d", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["As we will discuss further below, the limitation on the panel's authority to \"substitute its judgment\" or \"override\" a decision of the partnership appears, at a minimum, to restrict its ability to provide remedies otherwise available for her statutory and claims. It is not clear, however, whether the same language precludes the panel from evaluating her claims. To find for Ramos on her FEHA sex discrimination cause of action, for example, we agree with Ramos the arbitrators need to assess the reasons for the alleged adverse employment actions and decide sex was a \"substantial *1054motivating factor,\" but they do not necessarily have to \"substitute [their] judgment for\" or \"override\" a decision of the partnership by awarding damages to or reinstating Ramos. (See, e.g., Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232-235, 152 Cal.Rptr.3d 392, 294 P.3d 49 [damages and reinstatement are not available to plaintiff that prevails on FEHA claim if employer proves it would have made the same decision without discrimination, but court may award attorney fees, declaratory and injunctive relief]; Cal. Code Regs., tit. 2, \u00a7 11009, subd. (a) [\"In allegations of employment discrimination, a finding that an employer ... has engaged in an unlawful employment practice is not dependent upon a showing of individual back pay or other compensable liability.\"]; see also Moncharsh v.Heily & Blase (1992) 3 Cal.4th 1, 28, 10 Cal.Rptr.2d 183, 832 P.2d 899 [arbitrator may resolve all contested issues of law and fact submitted for decision].) In sum, the effect of the provision on the scope of the agreement is ambiguous, and we are unable to say \" ' \" ' \"with positive assurance that the arbitration clause is not susceptible of an interpretation that covers [this] dispute.\" ' \" ' \" ( Cione v. Foresters Equity Services, Inc. , supra , 58 Cal.App.4th at p. 642, 68 Cal.Rptr.2d 167 ; Hayes Children Leasing Co. v. NCR Corp. (1995) 37 Cal.App.4th 775, 788, 43 Cal.Rptr.2d 650 [\"Any ambiguity in the scope of the arbitration ... will be resolved in favor of arbitration.\"].) Given the strong policy favoring arbitration, and the controlling principle that any doubts must be construed in favor of arbitration, we conclude Ramos's claims \"relate to\" the partnership and the Partnership Agreement, and therefore fall within the scope of the arbitration provision."], "id": "dfb7ddf7-013d-4758-b5e0-a684c346d610", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Tanguilig sued, originally bringing this action in August 2007. She filed her First Amended Complaint (FAC) on December 19, 2007, alleging 10 causes of action against NMG: (1) in violation of public policy; (2) wrongful retaliation for refusing to consent to the NMG Agreement; (3) wrongfully requiring employees to agree to allegedly illegal terms in violation of Labor Code section 432.5 ; (4) failure to provide 10-minute rest periods in violation of Labor Code section 226.7 ;2 (5) failure to provide 30-minute meal periods in violation of Labor Code section 512 ; (6) failure to pay overtime wages in violation of Labor Code sections 510 and 1198 ; (7) failure to pay minimum wage in violation of Labor Code section 1182.11 ; and (8) failure to pay wages owed at the time of discharge in violation of Labor Code sections 201 and 202. Tanguilig also alleged (9) she was entitled to civil penalties pursuant to Labor Code section 2699 et seq. , the Private Attorney General Act of 2004 (PAGA); and (10) NMG injured her and the general public by putting itself *754in an unfairly advantageous position *318in violation of the Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq. Counts 1 through 8 were individual claims, while count 9 was a representative PAGA claim, and count 10 was something Tanguilig refers to as a \"representative\" claim under the UCL."], "id": "b19769f2-20b3-40e9-b5b8-bdf7e2e282bb", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The trial court certified a class action as to all of the claims contained in the third *194amended complaint except plaintiffs' claims for violation of the FLSA and violation of the minimum wage order and Quiles's individual claims for and retaliation. Plaintiffs do not challenge the court's class certification order with regard to the claims that were and were not certified for class action treatment. Rather, plaintiffs contend the court erred by granting their motion to certify claims against Koji's only and thus not including those claims alleged against Parent on a theory of joint employer liability."], "id": "7c83c5f9-7ccf-46bd-9d35-d03313aa5af5", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Although the court below did not directly address the issue in the branch of its decision and order denying third-party defendant\u2019s motion to dismiss the lost earnings claim, third-*84party defendant raised in the motion, and the parties contested below and upon this appeal, the issue of whether the lost wages claim should be dismissed as barred by the decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v NLRB (535 US 137 [2002]). In Hoffman, the Supreme Court ruled that undocumented workers were not entitled to so-called \u201cback pay\u201d awards, covering periods that they were not working due to for union activities, under the National Labor Relations Act (29 USC \u00a7 158 et seq.). The stated rationale was that the National Labor Relations Act requires mitigation of damages (i.e., wrongfully terminated workers must seek employment), which for undocumented workers meant imposing a duty that could only be fulfilled by breaking United States immigration law (Hoffman, 535 US at 150-151). This holding has reopened the previously well-settled issue of entitlement to lost wages awards in state statute-based or common-law tort actions even though the plaintiff was not legally entitled to work in the United States (see e.g. Public Adm\u2019r of Bronx County v Equitable Life Assur. Socy. of U.S., 192 AD2d 325 [1993]), an issue that, under New York law, had been a factor for the jury to consider in rendering any lost wages award, not a bar to such an award (id.; see also Balbuena v IDR Realty LLC, 13 AD3d 285 [1st Dept 2004] [Ellerin, J., dissenting], lv granted 1st Dept, May 24, 2005; Avendano v Sazerac, Inc., 221 AD2d 395 [1995]; Collins v New York City Health & Hosps. Corp., 201 AD2d 447 [1994])."], "id": "39ba06a2-eb34-4633-8e31-0443accd309e", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["It is to be pointed out that initially the provisions of Penal Law \u00a7 215.14 were intended to be added to Judiciary Law \u00a7 519. The latter statute is substantially similar to Penal Law \u00a7 215.14, and only differs in that, it provides for a criminal contempt penalty for anyone who discharges an employee for his or her attendance as a juror. As was stated earlier, the courts in both Sabetay v Sterling Drug (supra) and Murphy v American Home Prods. Corp. (supra) specifically referred to Judiciary Law \u00a7 519 as an example of one exception which was created to establish a cause of action in favor of a plaintiff. It is also clear that Penal Law \u00a7 215.14 was initially to be added to Judiciary Law \u00a7 519. What is less clear, as is pointed out in the Practice Commentaries to section 215.14, is why this statute eventually found its way into the Penal Law instead of remaining in the Judiciary Law. In any event, this court sees no reason for a distinction in treatment between these two statutes which both forbid punishment for obeying a governmental command. Both statutes, in addition, were enacted to prevent a person from having to choose between losing one\u2019s job as a result of some public duty or being held accountable for failure to appear by some governmental agency. Therefore, for the reasons already stated, this court finds that the Legislature intended a cause of action to exist for pursuant to Penal Law \u00a7 215.14."], "id": "e059d319-8e48-46c9-a365-1e525d0447de", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Husman sued Toyota on October 3, 2013 alleging sexual orientation discrimination and retaliation under FEHA. He also alleged two common law claims for in violation of public policy paralleling the FEHA claims. Toyota moved for summary judgment on January 8, 2015. At the hearing on March 25, 2015 the court issued a tentative ruling that Husman had raised a triable issue of material fact precluding summary judgment. After a lengthy argument and supplemental briefing, the court issued a final decision granting the motion. Judgment was entered against Husman on October 5, 2015, following an unsuccessful motion for reconsideration."], "id": "3efe8baa-59ca-424c-be0d-0e3908a2c98d", "sub_label": "US_Terminology"} {"obj_label": "Wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["(1) Religious discrimination ( Gov. Code, \u00a7 12940 et seq., cause 1); (2) Religious harassment ( Gov. Code \u00a7 12940, subd. (j), cause 2); (3) Retaliation ( Gov. Code, \u00a7 12940, subd. (h), cause 3); (4) Whistleblower retaliation ( Lab. Code, \u00a7 1102.5, subd. (c), cause 4); (5) Failure to prevent discrimination ( Gov. Code, \u00a7 12940, subd. (k), cause 5); *533(6) in violation of public policy (cause 6); and (7) Failure to pay wages ( Lab. Code, \u00a7\u00a7 201, 208, 227.3, and 2926, cause 7). Arave named Holsinger and Anderson as individual defendants on the claim for harassment, cause 2. The trial court granted summary judgment on the harassment claim as it related to Anderson, an order Arave appeals. The trial court also granted *126summary judgment on the whistleblower retaliation claim, which Arave did not appeal."], "id": "ecef13e8-2af7-48a9-8bd3-8fcd3ee62fc1", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In support of the motion, Albert Tew, who appears to have acted as JH\u2019s managing member in executing the various contracts, submitted his affidavit asserting that, notwithstanding the contradictory allegations that each of the defendant members \u201cexercised total and exclusive domination over [JH]\u201d and is therefore personally responsible for of plaintiff and the breach of the contract, \u201cno one member dominated [JH].\u201d Mr. Tew states that \u201c[significant decisions, such as terminating [plaintiff], were collectively made after in-person meetings, email exchanges, or conference calls among the members\u201d and that, although JH \u201cmay not have followed every corporate formality,\u201d JH has always been adequately capitalized by its members, never paid a salary or the personal expenses of its members or applied its funds for personal use, and that JH\u2019s assets have never been commingled with the personal assets of its members. Mr. Tew also contends that although JH did not have any income, it filed tax returns in 2005, 2006, and 2007 (and filed an extension for 2008). These representations, uncontradicted by any evidence from plaintiff, are corroborated by the bank records for JH\u2019s account, including copies of checks and the tax returns."], "id": "f8890829-2f14-4041-b304-df6c1a96892a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Though dissatisfied with the terms of the modified-duty job offers, Sayaz did not seek resolution through the workers' compensation administrative process. Rather, Sayaz sued Coil Tubing and Accident Fund, characterizing the job offers as \"bogus\" because they \"were extended during times that Sayaz was not permitted to work\" and the short response deadline given was \"arbitrary.\" He claimed Coil Tubing *754terminated him for failing to accept the job offers as pretext for workers' compensation retaliation and that Accident Fund \"aided and abetted Coil Tubing in orchestrating a pretext for terminating\" him by \"direct[ing] Coil Tubing on how to create a pretext for the , and encourag[ing] Coil Tubing to proceed on arranging a pretext\" for terminating him based on those job offers."], "id": "12593d5d-e219-4ff8-b74a-daadbfca98bb", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["CLINE, J.: KVC Behavioral Healthcare, Inc. (KVC) terminated Carolyn Miller for cause a few weeks after she filed a workers compensation claim. Miller sued KVC for while her workers compensation claim was pending. After the administrative law judge (ALJ) preliminarily determined KVC terminated Miller for cause and denied Miller temporary workers compensation benefits, Miller and KVC settled her workers compensation claim. The parties agreed the settlement only resolved"], "id": "aded033a-e22e-4a59-b690-a336c7d695fd", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["It is undisputed that the plaintiff was hired without a written contract of employment; thus she was an employee-at-will. In Patrowich v Chemical Bank (98 AJD2d 318 [1st Dept], affd 63 NY2d 541 [1984]), the plaintiff was employed by the defendant without a written contract and brought a lawsuit alleging violations of Federal and State law based on discrimination with causes of action also set forth based on breach of employment agreement and wrongful discharge. In reversing the lower court and granting partial summary judgment to the defendant dismissing those claims founded on breach of contract and wrongful discharge, the Appellate Division stated that \u201cthere is no cause of action recognized in New York for abusive or wrongful discharge of an employee\u201d (supra, 98 AD2d, at 323). As such, there is no basis for the plaintiff to pursue a claim of as set forth in the second cause of action in the complaint. (Sabetay v Sterling Drug, 69 NY2d 329, 333, 336-337 [1987]; Traviglia v Fleet Bank, 219 AD2d 644 [2d Dept 1995]; Janneh v Regency Hotel, 870 F Supp 37, 40 [ND NY 1994]; Melnyk v Adria Labs., 799 F Supp 301, 306-308 [WD NY 1992].) Defendant is therefore granted partial summary judgment dismissing the second cause of action."], "id": "74b606d8-82b2-424b-b197-eda431adab8b", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In challenging this conclusion before the Supreme Court, the plaintiff argued that he was \"not precluded from raising additional reasons at trial for his termination because he was not required, in order to comply with section 910, to claim more than that [the defendant's] agents wrongfully terminated him, while giving the basic circumstances of that occurrence.\" (Stockett, supra, 34 Cal.4th at p. 446, 20 Cal.Rptr.3d 176, 99 P.3d 500.) The Supreme Court agreed that his claim had been \"sufficient ... to give [the defendant] notice of all theories of .\" (Ibid.) In essence, the court concluded that the variant facts were subsidiary to the single underlying cause of action for wrongful termination; as such they were not essential to the presentation of a sufficient claim and a divergence from them in the pleadings or at trial was not fatal. (See id. at p. 447, 20 Cal.Rptr.3d 176, 99 P.3d 500 [\"these theories do not represent additional causes of action and hence need not be separately presented\"]; id. at p. 447, fn. 3, 20 Cal.Rptr.3d 176, 99 P.3d 500 [defendant conceded that plaintiff's \"claim of dismissal in violation of public policy constitutes only a single cause of action even though his dismissal allegedly violated several public policies\"].) The court contrasted the situation to that in Fall River Joint Unified School Dist. v. Superior Court, supra, 206 Cal.App.3d 431, 253 Cal.Rptr. 587, which held a complaint barred because \"the factual divergence between claim and complaint was too great; the complaint alleged liability 'on an entirely different factual basis than what was set forth in the tort claim.' ( [Fall River Joint Unitified School Dist. v. Superior Court, supra,] at p. 435 253 Cal.Rptr. 587.) Stockett's complaint, in contrast, alleged liability on the same wrongful act, his termination, as was stated in his notice of claim.\" (Stockett, supra, 34 Cal.4th at p. 448, 20 Cal.Rptr.3d 176, 99 P.3d 500, fn. omitted, italics added.) \"In comparing claim and complaint,\" the court wrote, \" 'we are mindful that \"[s]o long as the policies of the claims statutes are effectuated, [the statutes] should be given a liberal construction to permit full adjudication on the merits.\" ' [Citations.] If the claim gives adequate information for the *205public entity to investigate, additional detail and elaboration in the complaint is permitted.\" (Id. at p. 449, 20 Cal.Rptr.3d 176, 99 P.3d 500.) By notifying the defendant of the acts causing his injury and naming those agents believed to be responsible for them, the plaintiff's claim \"provided sufficient information for [the defendant] to investigate and evaluate its merits.\" (Ibid.) A reasonable investigation would not simply consist of dispelling the specific improper reasons for termination identified in the claim but \"would have included questioning members of the committee to discover their reasons for *1231terminating Stockett and an evaluation of whether any of the reasons proffered ... constituted wrongful termination.\"17 (Ibid.)"], "id": "edcf635d-6faa-4c7c-965f-fe9db5216391", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In plaintiffs' original complaint, they brought 10 causes of action related to disability discrimination and . Jensen asserted she worked for Home Depot as a project coordinator and telephone sales associate. In July 2010, Jensen was injured at work when a customer pushed open a bathroom door striking Jensen's shoulder, elbow, and wrist. Theresa Meza was the store manager and Karen Abraham was the human resources manager. After Jensen's injury and medical leave, Jensen asked for an accommodation so as to resume work. Meza, Abraham, and Home Depot did not permit Jensen to resume work. In November 2013, Abraham informed Jensen that Jensen's employment was terminated."], "id": "b6e06571-0fec-4c07-bf94-05c371acd6fc", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["James P. Dawson, J. *893The plaintiff commenced this action by filing a summons and complaint May 28, 1997 seeking to recover damages based on allegations that she was terminated from her position with the defendant under circumstances which give rise to a claim of gender discrimination. As originally pleaded, the complaint\u2019s first cause of action asserted violations of both title VII of the Civil Rights Act of 1964 (42 USC \u00a7 2000e et seq.) and Executive Law based on gender discrimination, but the plaintiff has since determined not to pursue any Federal claim.1 The second cause of action asserts , and the third seeks damages based on the physical and emotional harm caused to plaintiff due to the alleged discrimination. The defendant has joined issue by service of its answer with affirmative defenses, and discovery has been had, including the depositions of, inter alla, plaintiff and Ms. Pam Prim, President of Prim Hall Enterprises, Inc. (Prim Hall)."], "id": "57a99384-53bc-4b57-a8c8-39b40944e690", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Through this original proceeding, Odebrecht seeks to compel the trial court to grant its motion to dismiss the underlying case against it as a legally \"baseless\" cause of action under Texas Rule of Civil Procedure 91a.2 See generally TEX. R. CIV. P. 91a. Mora brought suit against Odebrecht for , alleging that Odebrecht terminated Mora's employment because Mora's son, a co-worker, suffered an injury at work and filed a claim for workers' compensation. Odebrecht contends that Mora's claim is a baseless cause of action under Texas Labor Code Chapter 451 because Mora failed to allege any facts to show that he \"testified\" or was \"about to testify\" in a workers' compensation proceeding. See TEX. LAB. CODE ANN. \u00a7 451.001(4) (West, Westlaw through 2017 1st C.S.). Odebrecht seeks to compel the trial court to: (1) vacate its order denying Odebrecht's motion to dismiss under Texas Rule of Civil Procedure 91a ; (2) grant its motion to dismiss; and (3) award Odebrecht its costs and attorney's fees. See TEX. R. CIV. P. 91a. Considering solely the pleading of Mora's cause of action, as we are required to do by the rules of civil procedure, we conclude that Mora's allegations, taken as true, have a basis in law. Accordingly, we deny the petition for writ of mandamus."], "id": "344241dd-b647-447d-aaf1-b3724132a19e", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Wassmann filed this lawsuit in December 2013 after receiving the right to sue notice from the DFEH. The second *723amended complaint asserted six causes of action: (1) age discrimination, (2) racial discrimination-disparate treatment, (3) harassment (hostile environment), (4) , (5) intentional infliction of emotional distress, and (6) unfair business practices. The first, second, fourth and sixth causes of action were against only the District Defendants. The third and fifth causes of action were against all Defendants. Wassmann alleged that, as a proximate result of Defendants' discriminatory conduct, she suffered: (1) loss of employment and employment benefits; (2) loss of \"employment-related opportunities;\" and (3) \"humiliation, mental anguish, emotional and physical harm.\""], "id": "aa0ff7ea-e15a-490a-b526-e7a78f81bb91", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Of course, the context in which the Armendariz court concluded that FEHA claimants cannot be forced to waive their statutory rights involved \"an agreement by an employee to arbitrate or employment discrimination claims ... which an employer imposes on a prospective or current employee as a condition of employment.\" ( Armendariz, supra, 24 Cal.4th at p. 90, 99 Cal.Rptr.2d 745, 6 P.3d 669.) In discussing unconscionability in that context, the Supreme Court explained that \"in the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but *694the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.\" ( Id. at p. 115, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Noting that arbitration has some potential advantages for employees, the court also pointed out the disadvantages, including waiver of a right to a jury trial, limited discovery, and limited judicial review. Emphasizing that \"[a]rbitration is favored in this state as a voluntary means of resolving disputes,\" the court explained that \"[g]iven the lack of choice and the potential disadvantages that even a fair arbitration system can harbor for employees, we must be particularly attuned to claims that employers with superior bargaining power have imposed one-sided, substantively unconscionable terms as part of an arbitration agreement.\" ( Ibid. ) The evidence here demonstrates both that Winston was in a superior bargaining position and that Ramos lacked meaningful choice with respect to the arbitration provision."], "id": "b8de5f3d-34b5-4534-88d5-d26766de487a", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The parties have differing interpretations concerning the application of this clause. There is evidence from which a reasonable trier of fact could find Christensen received notice of termination from *589the District. Christiansen claims, however, the District did not give Strategic notice of termination. On August 13, 2009, the District's attorney wrote to Christiansen's attorney advising that Strategic's contracts with the District are void. If the letter is not enough, the District physically removed Christiansen from the District's premises on the same day. Even if the District's termination was wrongful, the contract expressly provides the shall be treated as a termination for convenience."], "id": "a97206c0-229f-4583-8f90-7b5c340a7817", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["The Supreme Court similarly concluded in Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 108 Cal.Rptr.3d 171, 229 P.3d 83 *765( Pearson Dental ). There, an employer fired the plaintiff, a janitor, when he was 67 years old. The plaintiff filed a complaint in superior court alleging age discrimination and . ( Id. at p. 670, 108 Cal.Rptr.3d 171, 229 P.3d 83.) The employer filed a motion to compel arbitration, contending that the plaintiff was bound by a dispute resolution agreement requiring him to submit any disputes arising out of the employment relationship to binding arbitration within one year of the date the dispute arose. ( Id. at pp. 670-671, 108 Cal.Rptr.3d 171, 229 P.3d 83.) The trial court granted the motion to compel. Thereafter, the arbitrator found the plaintiff's claims were time-barred because they had been submitted to arbitration more than a year after the plaintiff's termination. ( Ibid . ) The trial court vacated the arbitration award, concluding that the arbitrator had made an error of law by, among other things, misinterpreting the tolling provisions of section 1281.12. ( Id . at p. 672, 108 Cal.Rptr.3d 171, 229 P.3d 83.)"], "id": "8bce1ec7-43c4-44a5-ac6e-ba94b89f6d54", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Movants do not dispute that the Bankruptcy Court granted a motion, on notice to defendants, permitting Salomone to retain LLO as special counsel to assist in the bankruptcy and bankruptcy adverse proceedings. (Document No. 44, Lebowitz affirmation, Dec. 9, 2014, \u00b6 30 [Lebowitz affirmation]; document No. 57, Lebowitz affirmation, exhibit M; Salomone aff, Dec. 31, 2013, \u00b6 12.) Salomone\u2019s affidavit in support of the application stated that: (1) LLO was \u201cintimately familiar with the facts underlying\u201d the WPP action, the judgment and two indemnification actions between Salomone and defendants (collectively, state court litigation) that arose out of defendants\u2019 \u201ccontinued refusal to honor their indemnification obligations\u201d; (2) LLO had been defending the WPP action and prosecuting Salomone\u2019s counterclaim for ; and (3) since 2006, LLO had engaged in extensive discussions, strategy sessions and negotiations in connection with the state court litigation. (Id. ) In footnote 4 of Salomone\u2019s affidavit, this action\u2019s index number was listed as one of the indemnification actions. (Id.) Movants\u2019 reply memorandum of law says that they did not oppose the *325Bankruptcy Court motion because this action was stayed pending resolution of the WPP action. Lebowitz avers that Salomone agreed to the stay because he could not afford to fight on two fronts at once and infighting would have harmed his defense."], "id": "7a1447c1-12c5-4bf5-aecd-2cf1d60889ca", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["In DHE's moving papers, it stated one argument against the causes of action for failure to prevent discrimination and wrongful termination-that they failed as a matter of law when no discrimination or other unlawful conduct in violation of public policy occurred. On appeal, DHE argues the same. Given that DHE is not entitled to summary adjudication on the discrimination and retaliation causes of action, it has not shown it is entitled to summary adjudication on failure to prevent discrimination and ."], "id": "8ac08b20-b863-4f6e-9f07-f290d11e2d36", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Diaz was employed as a tree trimmer by PCM for many years. He filed his complaint against it in October 2014, stating various causes of action arising out of PCM's alleged failure to reasonably accommodate the workplace restrictions imposed by his doctor, its alleged retaliation, and its alleged of his employment. PCM answered the complaint in December 2014, denying the allegations and pleading 24 affirmative defenses. The 24th affirmative defense alleged that Diaz's complaint \"and each cause of action, is barred by [his] failure to exhaust contractual remedies available to him, including, but not limited to, the grievance and arbitration procedure under the collective bargaining agreement between [PCM] and [Diaz's] collective bargaining representative.\""], "id": "95992e07-f66a-4675-a902-8b30b92230b6", "sub_label": "US_Terminology"} {"obj_label": "wrongful termination", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff commenced this legal malpractice action against defendant Thomas F. Bello, Esq. as a result of his representation in a action brought by her against her former employer, Staten Island University Hospital (hereinafter SIUH). By way of background, plaintiffs employment at SIUH began in April 1996 and ran through April 1997 pursuant to a one-year employment contract. Her contract was subsequently renewed in December 1997 for a three-year term, and was thereafter renewed twice more for a period of three years each. Her employment was terminated in July 2003. Each of plaintiffs contract renewals was retroactive to the expiration date of the previous contract. According to plaintiff, prior to her termination, she had notified her superiors of the illegal activities of another employee in conjunction with the clinical trial of a drug named \u201cTysabri.\u201d Plaintiff contends that her employment was terminated as of July 31, 2003 as a result of her having reported this information to her superiors."], "id": "c49d63cf-745c-4177-9d57-b465ed92ab7b", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["\u201cWhile the [United States] Supreme Court\u2019s statement in Hoffman that \u2018awarding backpay to illegal aliens runs counter to policies underlying IRCA [Immigration Reform and Control Act],\u2019 if read expansively and out of context, would require the denial of lost *85wages to undocumented aliens, it would also compel the conclusion that any sort of employment-related payment to an undocumented alien violates federal immigration policy Such a rule would prevent an undocumented alien injured in the workplace from recovering, inter alia, workers\u2019 compensation benefits and damages for pain and suffering, and might ultimately require overruling decisions confirming the right of an undocumented alien to commence an action in a New York court in the first instance. As a result, employers of undocumented aliens would be free to ignore New York law governing , labor relations, and the furnishing of workers\u2019 compensation coverage, to retaliate against workers who asserted any of their rights by reporting them to federal immigration authorities, to intimidate them by threatening to do so and, indeed, to withhold wages from employees altogether, with impunity\u201d (Majlinger, 25 AD3d 14, 23-24 [citations omitted]). The court found no evidence that IRCA, as construed by Hoffman, operated to preempt state law governing the right of undocumented aliens to recover damages of any sort in state court, noting that Congress had neither expressly preempted state law in enacting IRCA, nor \u201centirely occupied the fields of workplace safety and common-law torts\u201d; \u201c[t]here is no indication in the IRCA . . . that Congress intended to deprive undocumented aliens of their right to sue for personal injuries in state courts or to deprive them of the incidents thereof, such as the right to recover damages for lost wages\u201d (Majlinger, 25 AD3d 14, 21)."], "id": "77b83eca-6b0b-4a62-9895-65277718f6d1", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["*699HR Mobile's contention that it did not fully assume the employer's obligations is the practical equivalent of an argument that has created a split in authority about how section 324A(b) should be interpreted. One line of cases requires the defendant's course of action to supplant, not merely supplement, the employer's duty. (E.g., Ricci v. Quality Bakers of America Co-op. Inc. (D.Del. 1983) 556 F.Supp. 716, 721 [under *172\u00a7 324A(b), a plaintiff must establish that the one who undertook a duty to inspect supplanted and not merely supplemented another's duty to inspect]; Heinrich v. Goodyear Tire & Rubber Co. (D.Md. 1982) 532 F.Supp. 1348, 1355 [under \u00a7 324A(b), liability \"arises in the workplace setting only if the actor's undertaking was intended to be in lieu of, rather than a supplement to, the employer's own duty of care to the employees\"] ( Heinrich ); Blessing v. United States (E.D.Pa. 1978) 447 F.Supp. 1160, 1194 [United States would be liable only if, by performing safety inspections, the Occupational Health and Safety Administration \"actually undertook not merely to supplement the employers' own safety inspections, but rather to supplant those inspections\"] ( Blessing ); see generally, Crawley, Environmental Auditing and the \"Good Samaritan\" Doctrine: Implications for Parent Corporations (1993) 28 Ga. L.Rev. 223, 243-247.)"], "id": "9d10d7f7-0679-40e5-9338-1df55d13ee3c", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["We conclude UMF Nos. 8 and 9 demonstrate that HR Mobile undertook to assist Double Diamond in carrying out its obligations and accepted a role (the extent of which is disputed) in conducting safety inspections and safety training. \"Thus, it appears that [HR Mobile] undertook to provide services which were recognized as involving safety concerns.\" ( Santillo , supra , 603 F.Supp. at p. 214.) Our Supreme Court has quoted the statement in Santillo that \" '[s]afety concerns by their nature involve consideration of the well-being and protection of third parties: the employees.' \" ( Artiglio , supra , 18 Cal.4th at p. 615, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) The next sentence in Santillo stated: \"It would be disingenuous to conclude, as [defendant] suggests, that the performance of a safety evaluation would not foreseeably give rise to concerns regarding the safety and protection of third parties.\" ( Santillo , supra , at p. 214.) Based on Artiglio , Santillo and the undisputed facts, we conclude the safety-related services undertaken by HR Mobile foreseeably related to the safety and protection of Double Diamond's employees. Therefore, HR Mobile has failed to demonstrate plaintiffs cannot establish the second element of a negligent undertaking claim."], "id": "7acfa296-218e-4557-b387-ad32a0cb3e91", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["*697As to UMF No. 6, plaintiffs assert \"HR Mobile was asked to do a safety program and evaluation for Double Diamond Dairy and that included safety inspections of equipment and the site, safety meetings, inspection of the work areas, job specific safety training, and recommendations for safe premises and a safe operation at the dairy.\" As to UMF No. 8, plaintiffs do not dispute that \"HR Mobile agreed to assist and did assist Double Diamond Dairy in carrying out on the premises\" but assert \"the extent of its obligations is an issue of fact and is in dispute[ ].\" As to HR Mobile's assertion its role was secondary, plaintiffs assert there was no discussion of primary versus secondary roles and the extent of HR Mobile's role is an issue of fact."], "id": "10586132-05e4-4eab-b18c-8ef74dfe8876", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["If the statutory violation did not cause or contribute to the happening of the accident, it is irrelevant and should be excluded from the evidence. Mattero, 71 N.J. Super. at 9 (explaining \"the trial judge, being the exclusive arbiter of the relevancy of evidence, must initially determine in the particular circumstances of the case whether or not a jury could reasonably infer that the [statutory violation] caused or contributed to the happening of the accident\"). In Mattero, we reversed a no cause verdict based on the trial judge's error in admitting evidence that the plaintiff was illegally driving on a learner's permit at the time of the accident, finding that evidence \"irrelevant to the issue of proximate cause and inadmissible.\" Id. at 10. Confusion in attempting to apply the doctrine of negligence per se is apparently not uncommon. See Robert F. Blomquist, The Trouble with Negligence Per Se, 61 S.C. L. Rev. 221, 260 (2009) (observing \"many American courts continue to struggle with negligence per se principles\"). One commentator, recommending the doctrine be abandoned based on its \"shaky theoretical foundations\" and \"difficult and unnecessary problems of implementation, miring courts and litigants in an increasingly complex, muddled, and ultimately useless doctrinal morass,\" argues \"[a]n approach simply permitting the fact-finder to assess the defendant's violation of statute as one factor in determining negligence\" \u2014 as our courts do \u2014 \"would lead to better outcomes in cases and more efficient use of court resources.\" Barry L. Johnson, Why Negligence Per Se Should Be Abandoned, 20 N.Y.U. J. Legis. & Pub. Pol'y 247, 249 (2017). See Alloway v. Bradlees, Inc., 157 N.J. 221, 228, 235-36 (1999) (Justice Handler explaining in a action that \"while it is feasible to make liability turn on the violation of an OSHA regulation, a sounder approach accords the violation relevance, but not dispositive weight,\" particularly as \"the common law provides ample remedial relief that is flexible and adaptive of changing circumstances.\"). A-3399-20 There was, of course, a second, and perhaps even more fundamental"], "id": "0ea284e8-141c-4427-83f6-4b21b1797226", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Similarly misguided is the DJJ\u2019s claim that the Board erred in failing to accept its statutory construction argument that the WVPA is a later, more specific statute that takes precedence over the General Duty Clause. As the Board correctly noted in its decision, citing McKinney\u2019s Cons Laws of NY, Book 1, Statutes \u00a7 397, the principle of statutory construction does not apply where the two statutes are not inconsistent and both can be given effect when they stand together. Here, there is no conflict. As discussed above, the General Duty Clause includes provisions regarding in general, whereas the WVPA addresses the specific issue of workplace violence. Nothing prevents an employer from complying with both the General Duty Clause and the WVPA. Now that implementing regulations have been promulgated, the Commissioner has acknowledged that the WVPA should be cited when the violation is based on workplace violence, but for the reasons discussed above, such a citation was not proper at the time the subject NOVs were issued."], "id": "826bdb29-245f-4140-9ea7-8469b53f444b", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["HR Mobile acknowledges it agreed to assist, and did assist, Double Diamond in carrying out its obligations, but asserts it did not agree to fully assume Double Diamond's workplace safety obligations to the employees working at the dairy. Plaintiffs contend the extent of HR Mobile obligations presents an issue of fact that is disputed. In HR Mobile's view, it agreed to and accepted a secondary role with respect to quarterly safety meetings, quarterly site safety inspections, accident investigations, and safety training, while Double Diamond remained responsible for compliance with safety, site safety inspections, correcting hazards, safety training and record keeping."], "id": "a17fc880-af46-4bac-8f43-19e46d1742bf", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The trial court granted summary judgment for US Airways; the Court of Appeal reversed, concluding that US Airways's duty under Cal-OSHA to ensure that the conveyor had safety guards was nondelegable. ( SeaBright , supra , 52 Cal.4th at pp. 594-595, 129 Cal.Rptr.3d 601, 258 P.3d 737.) The Supreme Court then granted review to consider the following question: \"[W]hether the Privette rule applies when the party that hired the contractor (the hirer) failed to comply with requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure.\" ( Id. at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "16dc6a78-9f9b-40c5-bfb5-2e5601361e0b", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["In subsequent cases, the Supreme Court expanded the Privette doctrine to hold that a hirer could not be held vicariously liable to an independent contractor's employees under a variety of tort theories. (E.g., Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 [hirer of an independent contractor not liable to contractor's employee for failing to specify that the contractor should take special precautions to avert a risk]; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 [hirer of an independent contractor not liable to contractor's employee for negligent hiring]; Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 522, 110 Cal.Rptr.3d 665, 232 P.3d 656 ( Tverberg ) [\"Having assumed responsibility for , an independent contractor may not hold a hiring party vicariously liable for injuries resulting from the contractor's own failure to effectively guard against risks inherent in the contracted work.\"].)"], "id": "90815ed9-f75c-4b71-b506-5da2ba0b02fc", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Undisputed material fact (UMF) No. 6 in HR Mobile's separate statement of undisputed facts asserts \"Double Diamond engaged HR Mobile to assist it with its *170human resources, training, loss prevention, and workers' compensation in approximately May of 2012.\" UMF No. 8 asserts \"HR Mobile agreed to assist and did assist Double Diamond in carrying out its obligations, but it did not agree to fully assume Double Diamond's workplace safety obligations to Double Diamond employees.\" UMF No. 9 asserts \"HR Mobile agreed to and did accept a secondary role with respect to quarterly safety meetings, quarterly site inspections, accident investigations, and safety training.\" On August 24, 2012, HR Mobile staff conducted a job site safety inspection and an employee safety training session at Double Diamond. (UMF Nos. 20, 22.)"], "id": "4a6611eb-61e5-4903-bb7b-6c5c1a97bc72", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The jury could have also found that Miller was confided with the management of a department or division. The evidence showed that Miller was a superintendent and that he represented \"the highest level of operations within Berkel\" on the jobsite. Miller described himself as \"a boss,\" and he was \"in charge of the overall project from Berkel's perspective.\" He was responsible for ensuring that supplies were ordered and that all machinery was on site and properly assembled. He was also responsible for . Based on this level of authority and responsibility, we conclude that there is legally sufficient evidence to support an implied finding that Miller qualified as Berkel's vice principal. Cf. Purvis v. Prattco, Inc. , 595 S.W.2d 103, 105 (Tex. 1980) (holding that the conduct of an agent could be imputed to his employer where the evidence showed that the agent was a \"night manager\" of a motel and the \"senior employee\" on site during his eight-hour shift)."], "id": "b0f8bda6-dc5c-4fdc-a021-8aebcf3419e9", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["In SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 129 Cal.Rptr.3d 601, 258 P.3d 737 ( SeaBright ), the Supreme Court applied the Privette rule where a hirer failed to comply with Cal-OSHA requirements concerning the precise subject matter of the contract, and the injury allegedly occurred as a consequence of that failure. In SeaBright , an airline hired a contractor to maintain and repair a conveyor used to move luggage, and an employee of the contractor was injured when his arm got caught in the conveyor. ( SeaBright , at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.) The conveyor lacked safety guards required by applicable regulations. ( Ibid . ) The Supreme Court held the airline was not liable for the contractor's employee's injuries because the airline implicitly delegated to the contractor any tort law duty it owed to the contractor's employees to ensure the safety of the specific workplace that was the subject of the contract, and this included any tort law duty the airline owed to the contractor's employees to comply with applicable statutory or regulatory safety requirements. ( Id . at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "2c9df074-060d-4917-8faa-6ec98a5740f8", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Peters was not the first case to use the term \"transitory risk.\" Instead, this term has a settled meaning in this Court's jurisprudence and refers to a co-employee's negligence that decreases in a way that was not reasonably foreseeable to the employer and, therefore, not within the employer's nondelegable duty to provide a reasonably safe workplace. In Redmond v. Quincy, O. & K.C.R. Co. , 225 Mo. 721, 126 S.W. 159 (1909), for example, this Court explained that a \"master [who] furnishes a reasonably safe place for the servant to work in ... is not liable for a transitory danger arising out of a single occurrence in which [the master] is not at fault, and of which [the master] has no notice or opportunity to correct .\" Id. at 165 (emphasis added).7 In modern parlance, *326there was no breach of the employer's nondelegable duty to provide a reasonably safe workplace because this risk was not reasonably foreseeable to the employer.8"], "id": "621946f8-1c6e-4c5d-8669-42dd460de673", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["In view of plaintiffs withdrawals, the court shall address what remains of the motions. First, in regard to CSEA\u2019s motion for summary judgment, the court notes that CSEA specifically seeks the dismissal of the allegations contained in paragraphs 86 and 104 of plaintiffs 7th cause of action which allege that CSEA violated the same state and federal health and safety statutes and regulations referred to in plaintiffs 8th cause of action against the State. CSEA also seeks the dismissal of the remedy requested in subparagraph (e) of the wherefore clause of the 7th cause of action which seeks a *638declaratory judgment that plaintiff has been subjected to CSEA\u2019s violations of and health standards. In view of plaintiff\u2019s statement that she is not making a claim that CSEA violated any health and safety statutes and regulations, the court finds that CSEA is entitled to summary judgment striking paragraphs 86 and 104 of the complaint to the extent they can be read as alleging that plaintiff was harmed by CSEA\u2019s \u201cbreaches\u201d or \u201cviolations\u201d of any alleged health and safety statutes and regulations. These paragraphs shall remain to the extent that they allege that CSEA breached the CBA by refusing or failing to file grievances on plaintiff\u2019s behalf due to the State\u2019s violations of health and safety statutes and regulations. Furthermore, the court finds that CSEA is also entitled to summary judgment striking subparagraph (e) of the wherefore clause in its entirety."], "id": "3a9ed5d5-1d03-4971-8ed3-b6ffec4ab02f", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The railroad contends that the testimony offered by the plaintiff\u2019s expert, Dr. Richard Lynch, was inadmissible under the Frye standard of reliability of scientific testimony traditionally relied upon by the New York state courts. {Frye v United States, 293 F 1013, 1014 [DC Cir 1923].) Dr. Lynch testified that he is a certified industrial hygienist who has published and lectured extensively on the subject of CTS. He testified that he had 14 years of experience in the recognition, evaluation, and control of and health risks, in addition to formal masters and doctoral training in the field of industrial hygiene. Currently, he is an assistant professor in the Department of Urban Studies and Community Health at Rutgers University and is affiliated with Environmental Safety Management Corporation, an industrial hygiene consulting company."], "id": "6f5b987a-2c72-4359-a88a-9bc853b32c30", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["\"Before hiring independent contractor Aubry, defendant US Airways owed its *602own employees a duty to provide a safe workplace. We do not suggest that defendant could delegate that preexisting duty to Aubry (such that defendant could avoid liability if the conveyor had injured defendant's own employee). But ... the issue here is whether defendant US Airways implicitly delegated to contractor Aubry the tort law duty, if any, that it had to ensure for Aubry's employees . The latter duty did not predate defendant's contract with Aubry; rather, it arose out of the contract. Any tort law duty US Airways owed to Aubry's employees only existed because of the work (maintenance and repair of the conveyor) that Aubry was performing for the airline, and therefore it did not fall within the nondelegable duties doctrine.\" ( SeaBright , supra , 52 Cal.4th at pp. 602-603, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "7d3366ed-2cd9-4ba9-919f-95eed0140761", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Said another way, for injuries occurring between 2005 and 2012, a co-employee cannot be liable in cases in which-had they been brought before workers' compensation statutes were enacted-the employer would have been held liable under the \"nondelegable duty\" exclusion to the \"fellow servant\" exception to the doctrine of respondeat superior. A co-employee can only be liable for such injuries if the employer (prior to workers' compensation) would not have been liable because the co-employee either breached a duty unrelated to the master-servant relationship or committed a breach of that was so unforeseeable to the employer as to take it outside the employer's nondelegable duty to provide a reasonably safe workplace."], "id": "d586ac63-12ae-495a-8085-ce21dca02682", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["\u201cshall include a statement that a state agency shall not enter into a contract to purchase . . . any apparel from a bidder unable or unwilling to provide documentation as part of its bid: \u201c(A) attesting that such apparel was manufactured in compliance with all applicable labor and oc*538cupational safety laws, including, but not limited to, child labor laws, wage and hour laws and laws; \u201c(B) stating, if known, the name and address of each subcontractor to be utilized; and \u201c(C) stating, if known, all manufacturing plants utilized by the bidder or subcontractor.\u201d (State Finance Law \u00a7 162 [4-a] [c] [i].) Subdivision (4-a) (b) provides that \u201c[notwithstanding anything to the contrary, political subdivisions may adopt and apply the priority established herein by specifically including the provisions of this subdivision in their bid specifications.\u201d Section 162 (9) provides that \u201c[t]he provisions of this section shall supersede inconsistent provisions of any . . . local law, or the provisions of any charter.\u201d"], "id": "4d53f799-e95c-4ab7-85b7-78aab39cd321", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["In April 2014, Townley filed a class and representative action against BJ's, alleging two PAGA claims for Labor Code violations.3 In October 2015, she filed a first amended complaint, styled as a representative action, alleging one PAGA claim, seeking civil penalties on behalf of herself and other \"aggrieved employees\" for Labor Code violations. In support of her *276PAGA claim, Townley alleged: \"[BJ's] failed to reimburse restaurant employees for a business expense associated with a required safety item. In particular, BJ's requires hourly restaurant employees to wear 'slip resistant, black, close-toed shoes' for safety reasons. Employers are required to furnish and provide safety equipment to employees free of charge pursuant to [ standards in] Labor Code \u00a7\u00a7 6401 and 6403. [Citation.] ... [BJ's] did not provide such shoes free of cost, or reimburse restaurant employees for their cost, all in violation of Labor Code \u00a7 2802. Violations of Labor Code \u00a7 2802 give[ ] rise to a PAGA action under Labor Code \u00a7 2699.5.\""], "id": "97a6687b-88b2-457e-b16f-018bea57867f", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["*840compensation insurance ... was central to [ Privette 's ] holding that the hirer should not incur ... liability for on-the-job injury to an independent contractor's employee,\" ( Tverberg, supra, 49 Cal.4th at p. 527, 110 Cal.Rptr.3d 665, 232 P.3d 656 ), a different rationale warranted extension of the rule to claims brought by a contractor: \"Unlike a mere employee, an independent contractor, by virtue of the contract, has authority to determine the manner in which inherently dangerous construction work is to be performed, and thus assumes legal responsibility for carrying out the contracted work, including the taking of precautions. Having assumed responsibility for workplace *270safety, an independent contractor may not hold a hiring party vicariously liable for injuries resulting from the contractor's own failure to effectively guard against risks inherent in the contracted work.\" ( Id . at p. 521, 110 Cal.Rptr.3d 665, 232 P.3d 656.)"], "id": "f3af57e6-6767-4253-abb5-c2fd69c9585d", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Neither Evans nor Conner alleged a breach of a duty unrelated to employment, Peters , 489 S.W.3d at 794-95 (\"employees are liable at common law to third persons, including co-employees, for breaching a legal duty owed independently of any master-servant relationship\"), or a breach of that was so unforeseeable to the employer as to take it outside the employer's nondelegable duty to provide a reasonably safe workplace, id. at 796 (describing such a breach as a \"transitory risk\"). Only actions against co-employees for injuries between 2005 and 2012 based upon such an allegation may proceed. Because Evans and Conner failed to allege such a breach of duty, the trial court's judgments are affirmed."], "id": "192ac0f8-2619-4709-96ca-cce46cb11d27", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Thus, there is \u201cno evidence that IRCA . . . operated to preempt state law governing the right of undocumented aliens to recover damages of any sort in state court. . . [and] Congress had neither expressly preempted state law in enacting IRCA, nor entirely occupied the fields of and common-law torts.\u201d (Oro u 23 E. 79th St. Corp., 10 Misc 3d 82, 85 [App Term, 2d Dept 2005] [internal quotation marks omitted].) Just as compliance with safety rules under the Labor Law is distinct from compliance with federal immigration laws (see id. at 86), compliance with the prevailing wage requirement does not contravene the IRCA either because \u201cbetween the worker and the employer there is a contract of employment, under which the worker is entitled to be paid for his or her work . . . [that does not depend on] a worker\u2019s compliance with federal immigration laws.\u201d (Id., quoting Majlinger v Cassino Contr. Corp., 25 AD3d 14, 24-25 [2d Dept 2005] [\u201cThe contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker\u2019s compliance with federal immigration laws\u201d]; see also Madeira, 469d at 242.) That is, any alleged illegality under the IRCA occurs between the employer and the government or between the employee and the government, and, consequently, an employee may sue an employer for unpaid wages in spite of alleged IRCA violations. (See Oro, 10 Misc 3d at 86.)"], "id": "e9500530-1b9d-4d27-9e48-711553dc32db", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["After Privette came a series of cases extending it. Privette renders the hirer of an independent contractor immune from liability to the independent contractor's employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of the work. ( Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256-257, 74 Cal.Rptr.2d 878, 955 P.2d 504.) Privette also bars liability when the injured employee's theory is that the hirer negligently hired the independent contractor. ( Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238, 108 Cal.Rptr.2d 617, 25 P.3d 1096.) Finally, Privette applies when the injured employee's cause of action against the hirer of the independent contractor is based on the hirer's failure to comply with statutory or regulatory requirements. ( SeaBright Insurance Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "7355ac39-a0cc-4e9c-bb66-80df7d8e42f4", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The Majlinger court also noted that as between the worker and the government, the act of submitting fraudulent documents to secure employment is unlawful, and between the employer and the government, employing a worker who does not present proper work authorization is illegal. However, between the worker and the employer \u201cthere is a contract of employment, under which the worker is entitled to be paid for his or her work. Moreover, as between the worker and an alleged tortfeasor, there are duties under the common law and the New York statutes governing ,\u201d and none of these relationships and duties are contingent upon a worker\u2019s compliance with federal immigration laws (id. at 24-25). It found no analogy to case law barring recovery of damages for a lost stream of income gained from illegal activities (cf. Sanango, 15 AD3d at 43), noting that \u201c[a]n undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary\u201d (Majlinger, 25 AD3d 14, 29)."], "id": "56f915c9-99a8-463a-9c42-9ce1e189c349", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["HARPER, J. The plaintiffs, Kleber Gonzalo Loja Lasso, as administrator of the estate of the decedent, Luis Albaro Ortega Ortega (Ortega), and Marcia Del Lourdes Gualan Coronel (Coronel), appeal from the judgment of the trial court granting the motion of the defendant O & G Industries, Inc. (O & G), for summary judgment as to counts four and five of the revised com- plaint, which alleged claims against O & G for the wrongful death of Ortega pursuant to General Statutes \u00a7 52-555 and for loss of consortium on behalf of Coronel, who was married to Ortega at the time of his death.1 On appeal, the plaintiffs claim that the court improperly granted the motion for summary judgment filed by O & G because (1) issues of material fact existed concerning O & G\u2019s responsibility for ensuring safe workplace prac- tices with respect to certain tree removal work per- formed by the defendant Valley Tree and Landscaping, LLC (Valley Tree), and (2) the court erred in failing to find, pursuant to a construction contract between O & G and the borough of Naugatuck (borough), that O & G owed a duty of care to Valley Tree and, hence, to Ortega. The plaintiffs also claim that the court improp- erly rendered summary judgment as to Coronel\u2019s loss of consortium claim against O & G, which was derivative of the negligence claim against O & G. We disagree and affirm the judgment of the trial court. The record before the court, viewed in the light most favorable to the plaintiffs, reveals the following relevant facts and procedural history. In 2011, O & G was awarded a contract with the borough to act as construc- tion manager for a project to renovate Naugatuck High School in 2012 (renovation project). In 2015, the build- ing committee for the borough determined that addi- tional borough funds could be used to remove trees near an upper parking lot for aesthetic purposes and to improve the viewing of fields for sporting events. The parking lot and trees to be removed were adjacent to, but not a part of, Naugatuck High School grounds where the renovation project was taking place. Two members of the building committee viewed the site to determine which trees to remove, and those trees were flagged by the building committee members. At the request of the building committee, Joseph Vetro, O & G\u2019s project director, solicited bids from two companies and went to the site with representatives from those companies in order to point out the trees that were flagged for removal by the building committee. After the bids were submitted, the building committee voted to award the tree removal work to Valley Tree, issued a purchase order to Valley Tree for the tree removal work and sent an e-mail to the owner of Valley Tree accepting its bid. On December 16, 2015, Ortega was working for Valley Tree operating a mini excavator to remove trees from the upper parking lot area. The mini excavator had no door and there was no glass in the front and right-hand side windows. While performing that work, Ortega stood up to remove some branches near the right side window when the boom arm of the mini excavator suddenly came down, crushing him. He died as a result of the significant internal injuries he sustained in the accident. In their revised complaint, the plaintiffs alleged in count four that \u2018\u2018[t]he mini excavator operated by Ortega was in a dangerous and defective condition in that it was missing several protective window enclo- sures that were designed not to open, thereby pre- venting its operator, including Ortega, from accessing any area where the operator may come into contact with the boom arms of the mini excavator.\u2019\u2019 The revised complaint further alleged that the protective window enclosures had been missing from the mini excavator for approximately one month prior to Ortega\u2019s accident and that, as a result, it was operated by Valley Tree in a hazardous condition. The revised complaint also alleged that O & G, in its role as construction manager, \u2018\u2018oversaw the entire renovation project,\u2019\u2019 and that, \u2018\u2018[b]ecause of its role as construction manager, O & G had numerous duties, which include[d], but [were] not . . . limited to, the following: managing the construc- tion; coordinating the construction; conducting daily or other periodic inspections of the renovation site to monitor conditions at the site; ensuring that the con- struction at the site was performed in a safe and proper manner; ensuring that contractors at the site performed their work in compliance with federal and/or Connecti- cut standards and regulations; obtaining satisfactory performance from contractors at the site; notifying the owner of the property of any hazardous or dangerous conditions; assisting the owner of the property in arranging for contractors to actually perform the construction work; ensuring that contrac- tors at the site are coordinated; monitoring the field activities of each contractor at the site; and recommend- ing courses of action to the owner of the property with respect to failures in the performance of the contractors at the site.\u2019\u2019 According to the allegations of count four of the revised complaint, O & G was negligent, inter alia, in failing (1) \u2018\u2018to prevent Ortega from operating the mini excavator that was in a hazardous condition,\u2019\u2019 (2) \u2018\u2018to observe and detect that Valley Tree was performing its work in an unsafe and hazardous manner\u2019\u2019 and to stop Valley Tree from doing so, (3) to monitor the construc- tion site and to secure a safe workplace, and (4) to exercise reasonable care in fulfilling its duties as the construction manager for the project. In count five of the revised complaint, Coronel, based on the same alle- gations in count four, alleged a claim against O & G for loss of consortium. On October 2, 2018, following the completion of dis- covery, O & G filed a motion for summary judgment as to counts four and five of the revised complaint, claim- ing that \u2018\u2018[a] wrongful death claim based on negligence against O & G . . . [could not] be maintained as a mat- ter of law since . . . O & G owed no duty to the plain- tiffs,\u2019\u2019 and that no genuine issues of material fact existed. Specifically, in its memorandum of law in sup- port of its motion for summary judgment, O & G claimed that \u2018\u2018[t]he scope of [its] duties and obligations as con- struction manager for the work performed on the [reno- vation] project [was] limited to those [duties and obliga- tions] set forth in its contract with the borough,\u2019\u2019 and that it had no independent duty or obligation to perform tasks or services for the project apart from the duties and obligations set forth in the contract, which was devoid of any reference to the tree removal work per- formed by Valley Tree in the upper parking lot adjacent to the high school grounds. Moreover, O & G asserted that \u2018\u2018there [was] no change order or other amendment [to its contract with the borough] that ever brought such work within [its] contractual scope of work.\u2019\u2019 In further support of its claim that it owed no legal duty to Ortega, O & G argued that (1) \u2018\u2018[i]t [was] undis- puted that the borough directly hired Valley Tree to perform tree removal work in an area outside the con- tract limit line established in O & G\u2019s contract,\u2019\u2019 (2) \u2018\u2018O & G never exercised any dominion, rights or control over that area, nor did it ever contractually agree to oversee, direct, manage or supervise any of Valley Tree\u2019s work,\u2019\u2019 and (3) \u2018\u2018Valley Tree worked indepen- dently, utilizing its own equipment, machinery, man- power, and means and methods to perform the work contracted by the borough, completely outside O & G\u2019s scope of work.\u2019\u2019 Finally, given its claim that the negligence count was insufficient as a matter of law, O & G argued that the loss of consortium claim, which was a derivative claim and not a separate cause of action, necessarily failed as well. On December 17, 2018, the court, Brazzel-Massaro, J., heard arguments on the motion for summary judg- ment. On January 9, 2020, the court issued a comprehen- sive memorandum of decision granting O & G\u2019s motion for summary judgment. In its decision, the court explained that \u2018\u2018[t]he sole issue raised in opposition to the [motion for] summary judgment is whether the argument that the deposition testimony of various [bor- ough] officials, the construction manager and the owner of Valley Tree, as well as the contract documents sup- port a duty owed by O & G.\u2019\u2019 In granting the motion for summary judgment, the court analyzed the contractual provisions, the actions of O & G in working on the renovation project, the deposition \u2018\u2018testimony of the various officials of the [borough], the construction man- ager and the owner of Valley Tree . . . as to the imple- mentation of the contractual provisions and the opera- tion of the project by O & G,\u2019\u2019 and \u2018\u2018the circumstances surrounding the hiring of Valley Tree for removal of the trees, including the bidding, the award of the bid, and the actions thereafter in accordance with the con- tract.\u2019\u2019 The court ultimately concluded that \u2018\u2018the plaintiffs have [presented] no evidence or testimony that would create a duty as to O & G or any of its employees because the facts demonstrate that there is no genuine issue of fact that (1) the area of the work by Valley Tree was not a part of the construction limit line defined for the contractual obligations of O & G; (2) the contract clearly defines and establishes the duties and responsi- bilities of O & G as the construction management group for the [renovation project]; (3) the tree removal work was not work included in the contract [to renovate] . . . Naugatuck High School; (4) O & G was not respon- sible to oversee the work of trade contractors who were not hired by them or for whom they did not enter into a change order with the borough or board of education and their representatives in accordance with the con- tract documents; (5) there were no change orders for any tree removal work or responsibilities entered into by O & G as part of the contract; (6) O & G did not amend the contract by its actions of following the request by the building committee and assisting them in walking the property with Valley Tree but [was] coordinating in accordance with the contract provisions; (7) the only coordination by O & G was the timing of the work by Valley Tree to fit within the timeline for completing the work and not interfering with the contractors doing work with O & G; and (8) the funding for the tree removal was not part of the budget under O & G\u2019s control that had been approved for the [renovation proj- ect]. The funds for the tree removal were from a sepa- rate account for supplemental work. \u2018\u2018Based upon the foregoing, there is no genuine issue of fact that O & G was not contractually obligated to have the control or responsibility for the supplemental work of overseeing any separate contractors, including Valley Tree, by change order or otherwise. Thus, there is no genuine issue of fact that . . . O & G has a duty to Valley Tree or [its] employees for the safety issues alleged in the complaint.\u2019\u2019 From the summary judgment rendered in favor of O & G, the plaintiffs appealed. Additional facts and procedural history will be set forth as necessary. Before we address the plaintiffs\u2019 claims on appeal, we set forth the relevant legal principles and our well settled standard of review of a court\u2019s ruling on a motion for summary judgment. \u2018\u2018Practice Book \u00a7 [17-49] pro- vides that summary judgment shall be rendered forth- with if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material [fact] which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.\u2019\u2019 (Internal quotation marks omitted.) Augustine v. CNAPS, LLC, 199 Conn. App. 725, 728\u201329, 237 A.3d 60 (2020). \u2018\u2018[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.\u2019\u2019 (Internal quotation marks omit- ted.) Id., 733. \u2018\u2018Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court\u2019s conclusions were legally and logically correct and find support in the record.\u2019\u2019 (Internal quotation marks omitted.) Cuozzo v. Orange, 178 Conn. App. 647, 655, 176 A.3d 586 (2017), cert. denied, 328 Conn. 906, 177 A.3d 1159 (2018). \u2018\u2018When documents submitted in support of a motion for sum- mary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obli- gation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some dis- puted factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly pre- sented to the court under Practice Book \u00a7 [17-45].\u2019\u2019 (Internal quotation marks omitted.) Belevich v. Renais- sance I, LLC, 207 Conn. App. 119, 124, 261 A.3d 1 (2021). \u2018\u2018The essential elements of a cause of action in negli- gence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considera- tions. . . . First, it is necessary to determine the exis- tence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . The issue of whether a duty exists is a question of law . . . which is subject to plenary review. . . . \u2018\u2018Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. . . . Nevertheless, [t]he issue of whether a defendant owes a duty of care is an appro- priate matter for summary judgment because the ques- tion is one of law.\u2019\u2019 (Citation omitted; internal quotation marks omitted.) Goody v. Bedard, 200 Conn. App. 621, 631, 241 A.3d 163 (2020). Moreover, \u2018\u2018[a] duty to use care may arise from a contract . . . .\u2019\u2019 (Internal quota- tion marks omitted.) Carrico v. Mill Rock Leasing, LLC, 199 Conn. App. 252, 262, 235 A.3d 626 (2020). In the present case, the court, in granting O & G\u2019s motion for summary judgment, examined the contrac- tual provisions contained in the contract between O & G and the borough, and determined, on the basis of those provisions, that O & G did not owe a duty of care to Ortega. \u2018\u2018Although ordinarily the question of contract interpretation, being a question of the parties\u2019 intent, is a question of fact [subject to the clearly erroneous standard of review] . . . [when] there is definitive con- tract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].\u2019\u2019 (Internal quota- tion marks omitted.) Alpha Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC, 193 Conn. App. 381, 403, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334 Conn. 911, 221 A.3d 446 (2020). To the extent that the plaintiffs\u2019 claims on appeal are directed at the court\u2019s interpretation of the contract between O & G and the borough, \u2018\u2018our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.\u2019\u2019 (Internal quotation marks omitted.) Id. We first address the plaintiffs\u2019 claim that the court improperly determined that the contract between O & G and the borough did not give rise to a legal duty owed by O & G to Valley Tree and its employees. According to the plaintiffs, the contract \u2018\u2018created an obligation for O & G to supervise and control Valley Tree\u2019s work,\u2019\u2019 and its express terms compelled \u2018\u2018the conclusion that O & G owed Valley Tree and its employees a duty of care.\u2019\u2019 We are not persuaded. In its thorough and well reasoned decision, the court first examined in great detail the contractual provisions at issue in determining the duties of O & G under its contract with the borough. Its findings in connection therewith can be summarized as follows. There were two contractual documents that specified the parame- ters of the contract and the duties of O & G, which also contained provisions relating to safety, insurance and performance with respect to the renovation project. To determine the site for the work that was within the scope of the renovation project, the court also exam- ined the site plan, which provided the footprint of the work for the renovation, as well as an outline of the property included within the project. The court explained that O & G \u2018\u2018contends that the scope of the project which they were contracted to oversee as the construction management company did not include the area\u2019\u2019 where the tree removal was to be performed, which O & G claimed was \u2018\u2018outside of the construction limits.\u2019\u2019 The plaintiffs, on the other hand, relied on a proposal2 that was submitted by O & G in its bid for the renovation project as defining the duties of the construction manager. The court, however, concluded that \u2018\u2018contrary to the plaintiffs\u2019 contentions [the pro- posal] not change the duties set forth in the contract.\u2019\u2019 As the court explained: \u2018\u2018The testimony and evidence clearly demonstrate that the area included in the . . . project for which O & G was the construction manager is restricted to the area in the site drawings,\u2019\u2019 which does not include the area near the upper parking lot where the tree removal was performed. Although the area where the trees were removed is owned by the borough, it was never considered part of the high school grounds, and, thus, \u2018\u2018the tree removal work was sched- uled for an area never within the project area noted by O & G and the borough. . . . The site plan does . . . outline the area to be renovated as part of the work that is managed by O & G. Nowhere on the plan is there a notation which includes the area for this tree removal as part of the work or project. Additionally, the contrac- tual language, contrary to the plaintiffs\u2019 assertions, does not designate this work as part of the management duties of O & G.\u2019\u2019 With respect to the plaintiffs\u2019 claim that O & G, as the construction manager, was responsible for the safety of all contractors and subcontractors, the court found that the contract documents provide otherwise in that they \u2018\u2018[reserve] the right [for the owner] to perform construction [and] operations related to the project with the owner\u2019s own forces, and to award separate contracts in connection with other portions of the proj- ect or other construction or operations on the site . . . .\u2019\u2019 (Internal quotation marks omitted.) On the basis of the contractual provisions, the court found that the parties \u2018\u2018intended that there would be subcontractors outside of the work supervised by the construction manager and that would not be within the responsibility of O & G, but which may need to be \u2018coordinated\u2019 with the work that O & G did supervise. This interpretation is exactly the situation existing with the bid acceptance for the supplemental tree removal work by Valley Tree. Not only is this work not included within the scope of work defined in sections E and F of the [renovation] project, but the process of awarding the work to Valley Tree supports the position of O & G.\u2019\u2019 The court, thus, found that \u2018\u2018the borough could hire separate contractors as it did in this situation, and it would be responsible for supervising and directing the work, including jobsite safety.\u2019\u2019 That determination was supported by the depo- sition testimony of the business manager for the bor- ough, who controlled the expenditures, that \u2018\u2018the removal of the trees was not tied into the work by O & G,\u2019\u2019 that it \u2018\u2018wasn\u2019t part of the original scope of the project,\u2019\u2019 that it \u2018\u2018was added as an item to be part of the scope of the Naugatuck High School renovation project,\u2019\u2019 and that it \u2018\u2018was under the borough\u2019s project.\u2019\u2019 (Internal quotation marks omitted.) The court found that the testimony of the business manager for the bor- ough \u2018\u2018confirmed that Valley Tree was hired directly by the borough.\u2019\u2019 (Internal quotation marks omitted.) The court also relied on the deposition testimony of the owner of Valley Tree that he had received an e-mail or letter from the borough stating that the borough was hiring Valley Tree to remove the trees, that he under- stood that he was working for the borough, and that he did not receive any written approvals or directives from O & G. Finally, in rejecting the plaintiffs\u2019 claim that O & G had a duty by virtue of its obligation to provide a safe work environment under the contract, the court stated: \u2018\u2018Although the contract provides a clear duty for certain aspects of safety during the term of the [high school renovation] project and within the scope of the project and the site, this duty is defined by the contract and the site plan drawings. . . . The plaintiffs have expanded th[e] safety aspects of the work to include work outside of the physical boundaries of the proposed project and oversight which is not clearly set forth in the contract language.\u2019\u2019 (Citation omitted.) The court, thus, found that the plaintiffs \u2018\u2018espouse[d] an incorrect interpretation of [the deposition] testimony and the safety responsibilities of O & G.\u2019\u2019 Ultimately, the court concluded that there was nothing in the contract that required O & G to \u2018\u2018inspect the equipment or procedures for contractors that were hired by the building commit- tee to do work outside of the site, contract and [certain safety] proposals [submitted by O & G in its bid for the work].\u2019\u2019 We conclude that the court\u2019s determination that the contract between O & G and the borough did not give rise to a duty owed by O & G to Valley Tree and its employees was legally and logically correct and sup- ported by the language of the contract. After thoroughly examining the provisions of the contract, we agree with the court that they are \u2018\u2018clear and unambiguous in the description, the extent of the project, and the work for which O & G [had] the duty to perform.\u2019\u2019 Consequently, the court correctly determined that they simply did not support the plaintiffs\u2019 claims or suggested interpreta- tion. Because O & G, as the party moving for summary judgment, met its burden of proving the absence of any genuine issue of material fact as to the issue of whether the contract created a duty owed by O & G to Ortega, it was incumbent on the plaintiffs to present evidence demonstrating the existence of a disputed issue of mate- rial fact. See Belevich v. Renaissance I, LLC, supra, 207 Conn. App. 124. The court, however, found that the plaintiffs, in their opposition to the motion for summary judgment, did not submit any admissible evidence dem- onstrating that O & G\u2019s responsibilities under the con- tract extended to the tree removal work. We agree with the court\u2019s determination. The plaintiffs\u2019 reliance on the representations made by O & G in its bid, which was incorporated into the contract, to create a duty by O & G for the tree removal work is misplaced, as those representations related to O & G\u2019s responsibilities for work done within the area included in the renovation project, and the tree removal work occurred in an area that was not within the scope of the project covered by the contract, nor does the contractual language des- ignate the tree removal work as part of O & G\u2019s manage- ment duties. The plaintiffs alternatively argue that O & G, through its actions, assumed a voluntary duty of care to Ortega. Specifically, the plaintiffs argue that O & G\u2019s actions gave rise to a common-law duty to ensure safe work- place practices and that the court erred in failing to address the existence of such a common-law duty. According to the plaintiffs, \u2018\u2018O & G took upon itself to control and direct Valley Tree\u2019s work, and as a conse- quence thereof, owed a duty to Ortega.\u2019\u20193 Moreover, the plaintiffs claim that the court, in finding no duty, improperly decided issues of disputed fact. Specifically, they argue that because questions of fact existed as to the extent of O & G\u2019s control over Valley Tree, the motion for summary judgment should have been denied. We disagree. In its memorandum of decision, the court found that, \u2018\u2018[a]t the request of the building committee . . . Vetro . . . [O & G\u2019s] project director, contacted the two tree removal companies that were designated by the build- ing committee as possible contractors for the propos- als.\u2019\u2019 As the court explained, when Vetro \u2018\u2018walked the site with the contractors, Vetro simply showed the trees that had been flagged by the [two members of the build- ing committee] . . . .\u2019\u2019 The court, therefore, rejected the plaintiffs\u2019 claim that \u2018\u2018Vetro\u2019s actions of contacting the two companies for the tree removal bids, walking the site with the contractors and board members to designate the trees flagged for removal, and taking the bid documents back to the building committee extended the contractual work to be completed and the project area to include the tree removal within its responsibilities pursuant to the contract.\u2019\u2019 Specifically, the court found that the plaintiffs\u2019 claim \u2018\u2018ignore[d] the provisions in the contract [that] allow changes to work and responsibility,\u2019\u2019 which outline a method for change to the original work set forth in the contract documents. Without any change orders or amendments to the con- tract, the court found that \u2018\u2018[t]here [was] no evidence that the minor assistance provided by the construction manager was significant to change the terms of the contract,\u2019\u2019 and that the plaintiffs were attempting to create a duty where none existed. Although the court did not expressly reference whether a common-law duty existed, the court did address the substance of the plaintiffs\u2019 claim, namely, whether O & G exercised control over the work per- formed by Valley Tree and its employees sufficient to give rise to a duty of care owed to Valley Tree. The court explained that, the fact that Valley Tree was to coordinate its work with Vetro \u2018\u2018did not involve O & G dictating to Valley Tree how, when, or where to do their work, but it was a simple coordination with O & G so the work would be completed before the fencing was installed by O & G. . . . O & G was still the overall general contractor and any work being done would have to be coordinated with them.\u2019\u2019 (Citations omitted.) In rejecting the plaintiffs\u2019 claim that, because Valley Tree interacted with Vetro only to schedule the work, O & G was responsible to inspect and oversee that work, the court stated: \u2018\u2018O & G never relayed to Valley Tree that O & G was to be the final authority and controller for the work to be done by Valley Tree. The plaintiffs . . . in their opposition to the motion . . . [do] not include any admissible evidence placing O & G in charge of the tree removal project. . . . In fact, in performing the work it was clear that Valley Tree decided the location for its equipment, the work deci- sions for the brush to be cut, the trees that would get cut, how big the logs would be, what the order of tree removal would be, and the pulling back of brush to locate machinery. . . . None of these decisions were made by O & G and none were conveyed to Valley Tree by the construction manager. . . . Coordination of the various subcontractors does not create a responsibility for O & G to check the equipment for safety issues or to provide other safety amenities to the workers at Valley Tree. There is no contractual provision requiring that O & G coordinate or control the work of a contrac- tor hired outside the parameters of the original con- tract.4 The interpretation of the construction site limits and the work responsibilities of O & G does not support the plaintiffs\u2019 expansive interpretation of the contract.\u2019\u2019 (Citations omitted; footnote added; footnote omitted.) We agree with the court\u2019s analysis of this argument, which is supported by the record viewed in a light most favorable to the plaintiffs. On the basis of our review of the record, we conclude that the trial court properly determined that, in opposing the motion for summary judgment, the plaintiffs failed to present any evidence of conduct on the part of O & G demonstrating that O & G was in charge of the project to remove the trees or in any way directed the activities of the employees of Valley Tree. The plaintiffs, therefore, failed to meet their burden of demonstrating the existence of a genu- ine issue of material fact as to whether O & G controlled the work of Valley Tree and its employees, thereby giving rise to a duty of care owed to Ortega.5 See Shukis v. Board of Education, 122 Conn. App. 555, 566, 1 A.3d 137 (2010) (\u2018\u2018[a] party opposing a motion for summary judgment must substantiate its adverse claim by show- ing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue\u2019\u2019 (internal quotation marks omitted)). On the basis of our thorough review of the record, we conclude that the court\u2019s determination, as a matter of law, that O & G did not owe a duty to Ortega concern- ing the safety issues raised in count four of the revised complaint was legally and logically correct. Accord- ingly, because the existence of a duty is an essential element of a negligence cause of action; see Goody v. Bedard, supra, 200 Conn. App. 631; the court properly granted O & G\u2019s motion for summary judgment as to count four of the revised complaint. Finally, the plaintiffs claim that the court improperly rendered summary judgment in favor of O & G with respect to the loss of consortium claim alleged in count five of the revised complaint. Because the loss of con- sortium claim in count five is derivative of the negli- gence claim alleged in count four, on which the court properly rendered summary judgment in favor of O & G, the loss of consortium claim in count five necessarily must fail. Therefore, the court properly granted O & G\u2019s motion for summary judgment as to count five of the revised complaint as well. The judgment is affirmed. In this opinion the other judges concurred. In the original complaint, Coronel also alleged claims as parent and natural guardian of her three minor children with Ortega for loss of parental consortium. After motions to strike those counts were filed, the plaintiffs did not object and agreed to withdraw the claims. In the proposal, O & G made the following representations: O & G\u2019s field \u2018\u2018team will coordinate the efforts of all of the trade contractors and maintain a safe and secure worksite that does not disrupt the educational process of the Naugatuck High School\u2019\u2019; \u2018\u2018[i]t is our intent to deliver this project assuring a safe environment for all and with minimal disturbance to the educational function of the building\u2019\u2019; \u2018\u2018[w]e expect zero accidents and injur- ies on all of our projects [and] [a]ll of our safety planning is based upon this goal, and we actively encourage all workers on the site to participate and follow the safety guidelines\u2019\u2019; \u2018\u2018[e]veryone involved with O & G is respon- sible for preserving health and safety [and] [t]he success of this safety program depends on the full participation of every employee, subcontractor, manager and vendor\u2019\u2019; and the project manager for O & G will \u2018\u2018[c]oordinate and monitor safety and security programs as conditions dictate.\u2019\u2019 Specifically, the plaintiffs claim that \u2018\u2018O & G directed Valley Tree\u2019s work in the following ways: [1] O & G told Valley Tree it was in charge of the overall high school project, as well as Valley Tree\u2019s piece of that project . . . [and] never disclaimed supervision; [2] O & G contacted Valley Tree to submit a bid and communicated with Valley Tree\u2019s principal during the bidding process; [3] O & G directed when Valley Tree should start its work and when the tree removal work had to be completed; [4] O & G directed Valley Tree as to which trees were to be removed and which trees were to remain; [5] O & G instructed Valley Tree how to dispose of the trees\u2014by chipping them\u2014and then to leave the chips in the surrounding woods; [and] [6] Vetro visited the upper parking lot on at least one occasion to compliment Valley Tree\u2019s work.\u2019\u2019 According to the plaintiffs, those facts were consistent with a statement made by O & G in its proposal that it would \u2018\u2018coordinate the efforts of all of the trade contractors and maintain a safe and secure worksite.\u2019\u2019 (Internal quotation marks omitted.) The plaintiffs\u2019 claim, how- ever, ignores the fact that the representation made by O & G in its proposal related solely to the work and area within the scope of the renovation project. The plaintiffs argue on appeal that their claim should not be limited to the geographic reach or precise terms of the contract because there is evidence that O & G did work outside the area of the renovation project and, at times, did work without requesting a change order. Specifically, they argue that O & G worked outside the construction limit line to install fencing and curbing near the upper parking lot area and, thereby, voluntarily assumed a duty of care over Valley Tree and its employees. We are not persuaded. The plaintiffs have presented no evidence demonstrating how O & G\u2019s work installing the fencing and curbing gave rise to a duty of care to Valley Tree and its employees for the work they performed in the upper parking lot. The fact that O & G did some work outside of the scope of the work set forth in the contract does not raise a genuine issue of material fact that it thereby voluntarily assumed a duty to Valley Tree or Ortega, especially in the absence of evidence that O & G exercised control over the work of Valley Tree and its employees, and that the outside work performed by O & G did not occur in the upper parking lot and was unrelated to the tree removal work for which Valley Tree was hired directly by the borough. Thus, even if, as claimed by the plaintiffs, O & G\u2019s responsibilities were not solely limited to those outlined in the contract, it was still incumbent on the plaintiffs to present some evidence demonstrating how the work per- formed by O & G outside of the contract gave rise to a duty of care to Valley Tree and its employees. Our review of the record simply does not support the plaintiffs\u2019 contention that there is a genuine issue of material fact that O & G assumed a duty to Valley Tree and its employees for the tree removal work in the upper parking lot. The plaintiffs\u2019 reliance on Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 825 A.2d 72 (2003), and Van Nesse v. Tomaszewski, 265 Conn. 627, 829 A.2d 836 (2003), is misplaced, as those cases are distinguish- able from the present case. In Pelletier, our Supreme Court held that, although, as a general rule, \u2018\u2018a general contractor is not liable for the torts of its independent subcontractors\u2019\u2019; Pelletier v. Sordoni/Skanska Construction Co., supra, 518; there are exceptions to that general rule, including when the general contractor \u2018\u2018in the progress of the work assume[s] control or interfere[s] with the work\u2019\u2019 of the subcontractor. Id. Control means the \u2018\u2018[p]ower or authority to manage, direct, superintend, restrict, regulate, gov- ern, administer, or oversee.\u2019\u2019 Black\u2019s Law Dictionary (6th Ed. 1990) p. 329. Pelletier and Van Nesse both involved actions by an injured employee of a subcontractor against the general contractor. Van Nesse v. Tomaszewski, supra, 628; Pelletier v. Sordoni/Skanska Construction Co., supra, 512\u201313. In Pelletier, our Supreme Court rejected the plaintiff\u2019s claim that the contract between the general contractor and the owner of the building under con- struction, which charged the general contractor with certain safety and inspection responsibilities, created a duty owed by the general contractor to the plaintiff, concluding that the plaintiff was not a party to that agreement. Pelletier v. Sordoni/Skanska Construction Co., supra, 530\u201331. In the present case, a general contractor-subcontractor relationship did not exist between O & G and Valley Tree, as the record demonstrated that Valley Tree was hired directly by the borough to do tree removal work, which was outside the scope and area covered by the contract between O & G and the borough for the high school renovation project, nor was Valley Tree a party to that contract. Moreover, the plaintiffs did not present any evidence in opposition to the motion for summary judgment showing that O & G had the authority to control, or interfered with, the work of Valley Tree."], "id": "2bc26f5c-9198-44fa-955a-7245bb339d0f", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Wholly without merit is the petitioner\u2019s claim that the Board\u2019s decision \u201creads the WVPA out of existence by rendering it a redundancy of the General Duty Clause.\u201d Rather than nullifying it, the NOVs specifically referenced the WVPA and offered its provisions as examples of corrective measures that the employer could take to correct the violation. The Board in its decision similarly recognized that the two statutes could work together to insure . Its analysis was rationally based on the underlying federal and state statutory schemes and the language of the two statutes involved."], "id": "04be422a-4e7e-4797-bbc5-e4933fd44151", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The trial court granted summary judgment, holding that \"Defendants have satisfied their burden to show that there is no triable issue of material fact and Defendants are entitled to summary judgment as a matter of law, pursuant to the Privette doctrine.... Privette and its progeny establish that the hirer of an independent contractor presumptively delegates to that contractor its duty to provide a safe workplace for the contractor's employees.... Plaintiff has provided no evidence showing that Defendants retained control of the contracted work or rebutting the presumptive delegation to the contractor employee, PCMC, of responsibility for .\""], "id": "00d994ad-5f2f-46a2-93c4-b9cc19f8c615", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The original complaint alleged each plaintiff had been employed as an order selector at Save Mart's Roseville Distribution Center (Rymel was also a forklift driver). Each alleged an industrial injury and torts flowing therefrom (failure to accommodate, retaliation, wrongful discharge, etc.) under the California Fair Employment and Housing Act (FEHA) ( Gov. Code, \u00a7 12900 et seq. ). Hagins also alleged he was retaliated against after he reported a hazard, purportedly a whistleblower violation under Labor Code section 1102.5. After the court granted Save Mart's motion to sever, each plaintiff filed a separate complaint."], "id": "e5c785f6-0383-49cd-a845-52f0e822d6b5", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["\u201canxiety, panic attacks, racing heart, palpitations and inability to sleep when thinking about work the next day.\u201d Id. at 172a. She prescribed an antidepressant. Id. On March 12, 2019, Claimant had a follow-up appointment with Dr. Clayton. They discussed Claimant\u2019s anxiety symptoms, which persisted but were \u201cimproving,\u201d according to the doctor. Id. at 174a. They also discussed the carbon monoxide alarm incident, which occurred the previous day, and Claimant\u2019s fear that his concerns were not being addressed. Id. at 175a. \u201c[He] is feeling he cannot handle it [at] work right now,\u201d she wrote. Id. Dr. Clayton urged Claimant to seek counseling. She also provided Claimant with a note requesting that Claimant be excused from work for the following week so that he would have an opportunity to find a counselor, and to \u201cwork on stress reduction, relaxation techniques . . . and nutrition.\u201d Id. At the end of the one-week period, the doctor wrote that she would \u201cre-evaluate his return to work.\u201d Id. Another follow-up with Dr. Clayton occurred on March 19, 2019. According to Dr. Clayton\u2019s notes, Claimant reported that he was \u201cfeeling well\u201d and his symptoms, such as lack of sleep and poor appetite, were \u201cimproving.\u201d Id. at 177a- 178a. The two discussed several issues in Claimant\u2019s personal life, including Claimant\u2019s upcoming trip to Florida; they also discussed \u201clifestyle changes\u201d that Claimant was making to improve his financial situation. Id. There was a brief discussion of Claimant\u2019s work situation as well. Dr. Clayton noted that Claimant \u201cdoes not feel that he is able to go back to work at this time\u201d and that Claimant reported being unable to do \u201clight duty.\u201d Id. After his April 3 appointment, Dr. Clayton noted that there were \u201c[n]o new complaints at [that] time,\u201d and that Claimant\u2019s condition was still \u201cimproving.\u201d Id. at 180a. She recorded that Claimant had begun seeing a counselor the day before."], "id": "571d2564-2f30-4026-a704-f230ad7942d3", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The Supreme Court held that the Privette rule applied to the case before it, and therefore US Airways was not liable to the injured employee or, derivatively, to the workers' compensation insurer. The court explained that by hiring an independent contractor, \"the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety *1089requirements.\" ( SeaBright , supra , 52 Cal.4th at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.) In the case before it, therefore, \"US Airways presumptively delegated to Aubry any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure for the benefit of Aubry employees. The delegation-which ... is implied as an incident of an independent contractor's hiring-included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard.\" ( Id. at p. 601, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "1d387fc7-d945-47fd-8bf8-370b814c48af", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["A co-employee can only be liable for such injuries if the employer (prior to workers compensation) would not have been liable because the co-employee either [1] breached a duty unrelated to the master-servant relationship or [2] committed a breach of that was so unforeseeable to the employer as to take it outside the employer's nondelegable duty to provide a reasonably safe workplace. 542 S.W.3d 315, 324 (Mo. banc 2018) (emphasis in original); see also McComb, supra and Fogerty v. Armstrong , 541 S.W.3d 544, 546 (Mo. banc 2018). The first category is \"rare and easy to spot\" and is not at issue here. Conner , 542 S.W.3d at 324, n 4. The allegations of duty in this case seek, but fail, to come within the second category."], "id": "08c3480b-3e79-44a2-9d5f-386d308e124f", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["The term \"owner\u201d is not specifically defined in the Labor Law. Courts have considered the issue of ownership in cases *178involving statutes. A leading case is Celestine v City of New York (59 NY2d 938, affg on opn below 86 AD2d 592) wherein the Long Island Rail Road Company, grantor of an easement of its property to another railroad while still retaining ownership of the fee, was held responsible for violations of Labor Law \u00a7 241 (6). In Copertino v Ward (100 AD2d 565, 566), the term \"owner\u201d was defined under the Labor Law \"to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit\u201d. More recently in Gordon v Eastern Ry. Supply (82 NY2d 555), the Court of Appeals gave a broad meaning to the word \"owner\u201d by affirming the imposition of liability under Labor Law \u00a7 240 (1) against a fee owner which leased the property to another concern which controlled the work. Less than a month ago in Coleman v City of New York (91 NY2d 821), the Court of Appeals held, in a Labor Law \u00a7 240 (1) case, that any party who was \"technically an 'owner\u2019 \u201d (at 823) must be considered an owner under the statute even if the \"owner\u201d had no control of the work and the work was being performed for the benefit of others."], "id": "aeca8feb-d01b-41e3-8be6-f0c45f2efdba", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["Next, the Board discussed at length the Workplace Violence Prevention Act (Labor Law \u00a7 27-b), enacted in 2006. Whereas PESHA\u2019s General Duty Clause speaks about in broad terms, WVPA targets workplace violence specifically and includes provisions \u201cto ensure that the risk of workplace assaults ... is evaluated . . . and that [public] employers *402design and implement workplace violence protection programs to prevent and minimize the hazard of workplace violence.\u201d (Labor Law \u00a7 27-b [1].) To help effectuate that goal, the WVPA gives examples of factors that an employer might consider in evaluating workplace risks and then offers elements that might be included in a written workplace violence prevention program. The statute then expressly directs the Commissioner of Labor to adopt detailed implementing rules and regulations so as to meet the intent of the WVPA, consistent with the requirement in Labor Law \u00a7 27-a (4) (b), discussed above, to develop \u201cspecific standards.\u201d Such regulations were adopted effective April 29, 2009, about two years after the NOVs in this case were issued."], "id": "db8f7f74-fd61-449d-b81e-66b1b88fa17b", "sub_label": "US_Terminology"} {"obj_label": "workplace safety", "legal_topic": "Employment Law", "masked_sentences": ["\u201cAs between an undocumented worker and the federal government, the act of submitting fraudulent documents in order to secure employment is unlawful (see 8 USC \u00a7 1324c [a]). As between the employer and the federal government, the act of hiring an undocumented worker knowingly or without verifying his or her employment eligibility is unlawful (see 8 USC \u00a7 1324a [a] [1]). As between the undocumented worker and the employer, however, there is a contract of employment, under which the worker is entitled to be paid for his or her work. Moreover, as between the worker and an alleged tortfeasor, there are duties under the common law and the New York statutes governing (see Labor Law \u00a7 240 [1]; \u00a7 241 [6]).\u201d (Majlinger v Cassino Contr. Corp., 25 AD3d 14, 24-25 [2d Dept 2005].) The Labor Law is blind as to status. Therefore, the plaintiffs use of an assumed identity, although unlawful, does not eradicate the defendants\u2019 liability. \u201cThe contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker\u2019s compliance with federal . . . laws.\u201d (Id. at 25; see Mendoza a Monmouth Recycling Corp., 288 NJ Super 240, 247, 672 A2d 221, 224-225 [1996].)"], "id": "b7ff9ec0-5ec1-43b0-873c-9fc48791d3a4", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Neither Armenta nor Gonzalez presents the situation we face here: Plaintiffs are not using sections 221, 222, and 223 to support a claim, but instead assert a stand-alone cause of action for violation of section 223, which by its terms applies to an employer who \"secretly pay[s] a lower wage while purporting to pay the wage designated by statute or by contract.\" (Italics added.)18 While the term \"secretly\" may reasonably be applied where an employer seeks to average the total pay for both compensated and uncompensated time, it would stretch the meaning of the word beyond all recognition to apply it here, where the only issue is a bona fide dispute about whether the time the employees spent on pre- and post-work activities constituted hours worked."], "id": "6a1039fb-f810-44b3-88a7-9f6e99caebdc", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Section 1194, subdivision (a) provides: \"Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.\""], "id": "7497ff3a-3a7c-4aff-b48b-fd48e90a9ac4", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs alleged they were not paid for all the time they spent at the correctional institutions under defendants' control. Specifically, they were expected to sign in and sign out on time sheets that reflected only their officially assigned work day. Plaintiffs were required to be at their assigned posts at the beginning of their official shifts. However, the sign-in and sign-out locations were often significantly removed from plaintiffs' actual work posts, and they were not compensated for the time it took to travel from those locations to their work posts after signing in or to return to those locations to sign out at the end of a shift. Second, plaintiffs alleged that they were required to spend time before checking in and after checking out on such activities as being briefed before a shift, briefing relief staff at work posts after a shift, checking out and checking in mandated safety equipment, putting on and removing mandated safety equipment, waiting in lines, submitting to searches at security checkpoints, and taking inventories of weapons, ammunition, and other equipment. Plaintiffs were either not allowed to or were discouraged from adjusting their time logs to reflect these additional tasks. Plaintiffs alleged causes of action for failure to pay *732contractual overtime ( Lab. Code,2 \u00a7\u00a7 222, 223 ) (first cause of action), failure to pay the California (\u00a7\u00a7 1182.11, 1182.12, 1194; 8 Cal. Code Regs. \u00a7 11000 et seq. ) (second cause of action), failure to keep accurate records of hours worked (\u00a7 1174) (third cause of action), and failure to pay overtime in breach of common law contractual obligations (fourth cause of action). They sought unpaid overtime wages, unpaid California minimum wages, liquidated damages, and injunctive relief."], "id": "eff16edc-617c-4514-a318-34c555c15a56", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In Bluford , supra , 216 Cal.App.4th at page 866, 157 Cal.Rptr.3d 212 ( Bluford ), the Third District Court of Appeal reversed the trial court's denial of class certification in an action by a truck driver claiming the employer had violated the law by, inter alia, failing to compensate him and other employees similarly situated for rest periods. The employer-similar to the position asserted by its counterpart in Gonzalez concerning hours spent on the job for tasks other than repair work-argued that it was not required to pay separate compensation to its piece-rate employees for rest periods. ( Bluford , supra , at p. 871, 157 Cal.Rptr.3d 212.) The appellate court disagreed. It noted that \"[u]nder Industrial Welfare Commission wage orders, employers are required to 'authorize and permit all employees to take rest periods' at the rate of at least 10 minutes for every four hours worked. ( Cal.Code Regs., tit. 8, \u00a7\u00a7 11070, subd. 12 ; 11090, subd. 12.) 'Authorized rest periods shall be counted as hours worked for which there shall be no deduction from wages.' (Ibid. )\" ( Ibid. ) The Bluford court, relying on Armenta , supra , 135 Cal.App.4th 314, 37 Cal.Rptr.3d 460, held that \"a piece-rate compensation formula that does not compensate separately for rest periods does not comply with California law. [Citations.]\" ( Bluford , supra , at p. 872, 157 Cal.Rptr.3d 212 ; cf. Vaquero v. Stoneledge Furniture LLC (2017) 9 Cal.App.5th 98, 108-110, 214 Cal.Rptr.3d 661 [sales associates paid on commission basis entitled to separate compensation for rest periods].)"], "id": "882b3cf9-a4cf-49f4-893b-9aabc38eb976", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["Motions for temporary injunctions in actions brought to declare the 1962 local law unconstitutional were granted by the Appellate Division (Wholesale Laundry Bd. of Trade v. City of New York, 17 A D 2d 327). Thereafter this court, at Special *817Term, granted the plaintiffs\u2019 motions for summary judgment and denied the defendant\u2019s motions to dismiss the complaint and for judgment declaring the local law constitutional (Mr. Justice Fine, N. Y. L. J., Dec. 24, 1962, p. 9, col. 2). The Appellate Division affirmed (18 A D 2d 968, 969). The Court of Appeals also affirmed, though by a divided court (12 N Y 2d 998). The majority of the Court of Appeals affirmed upon the opinion of the Appellate Division in 17 AD 2d 327. In that opinion, Mr. Justice Steuer, writing for the court, held that the 1962 local law was inconsistent with sections 650 through 665 of the Labor Law, also called the Act, because the local law (p. 330) \u201c forbids a hiring at a wage which the State law permits and so prohibits what the State law allows \u2019 \u2019. Since the State Constitution, as it then read prohibited a city from enacting legislation inconsistent with the \u2018 \u2018 laws of the State, \u2019 \u2019 the court held that the 1962 local law was unconstitutional. It pointed out that (p. 330) \u201c the State law indicates a purpose to occupy the entire field [of minimum wage legislation.] \u201d The court declared that this purpose was apparent (p. 330) \u201cfrom the restriction on any law that supersedes any provision of the Labor Law (City Home Rule Law, \u00a7 21) \u201d as well as from the provisions of the State Minimum Wage Act which provide \u2018 \u2018 machinery for the determination of an adequate wage in any occupation and in any locality, including the City of New York.\u201d Attention was also called (p. 329) to the provision of subdivision 4 of section 11 of the City Home Rule Law that \u201c Nothing contained in this section shall be deemed by implication or otherwise to authorize an amendment or repeal of any provision of the labor law.\u201d"], "id": "a550943d-f871-4a88-9e1a-0ae1038aa615", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The parties also entered into stipulations concerning the applicable legal standards. Specifically, the parties stipulated that Certified Tire is \"governed by the California Labor Code and Wage Order 4[-2001].\" ( Cal. Code Regs., tit. 8, \u00a7 11040.) (Wage Order 4)8 The parties *829agreed that under Wage Order 4, \"Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise.\" ( Cal. Code Regs., tit. 8, \u00a7 11040, subd. 4(B).) The parties identified the applicable minimum wage as \"not less than nine dollars ($9.00) per hour for all hours worked, effective July 1, 2014, and not less than ten dollars ($10.00) per hour for all hours worked, effective January 1, 2016.\" In addition, the parties agreed that Wage Order 4 provides for rest period as follows: \"Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. ... Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.\" ( Cal. Code Regs., tit. 8, \u00a7 11040, subd. 12(A).)"], "id": "76e69d69-c245-4edb-85bb-b5e7da4c005e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Lainez filed his class action complaint on May 14, 2015, alleging six causes of action. In the first cause of action of his complaint, Lainez alleged *137that he, along with members of his purported class, were piece-rate agricultural workers employed by Jackpot. (See Cal. Code Regs, tit. 8, \u00a7 11140, subd. 2(L) [defining piece-rate compensation for agricultural workers as \"a method of payment based on units of production or a fraction thereof\"].) Their jobs required them to (1) perform a minimum of 10 minutes of mandatory exercise in the morning, (2) attend meetings of approximately 15 minutes in duration, (3) make trips between fields two to three times per month with an average duration of 30 minutes, and (4) take 15-minute rest breaks. Jackpot's workers were compensated only on a piece-rate basis, and they were not separately paid for this nonproductive time and rest time at a rate equal to or greater than . Citing various provisions of the Labor Code,4 Lainez asserted on behalf of himself and similarly situated Jackpot workers a claim for damages, liquidated damages, interest, and fees."], "id": "a80d8c72-884b-4f79-ba1c-fe41cbe7e2da", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Gonzalez pointed out that several federal district court decisions had applied Armenta 's holding to piece-rate compensation programs. (Gonzalez, supra, 215 Cal.App.4th at p. 49, 155 Cal.Rptr.3d 18.) Here, plaintiffs cite and rely on federal district court decisions reaching the same conclusion regarding piece-rate compensation programs as Gonzalez . (Cardenas v. McLane FoodServices, Inc. (C.D.Cal. 2011) 796 F.Supp.2d 1246, 1252 [in a case involving truck driver compensation, the court concluded that \"a piece-rate formula that does not compensate directly for all time worked does not comply with California Labor Codes, even if, averaged out, it would pay at least for all hours worked\"]; Ontiveros v. Zamora (E.D.Cal., Feb. 20, 2009, No. CIV S-08-567LKK/DAD), 2009 WL 425962, at *3 [applying Armenta's holding to automobile mechanics compensated on piece rate basis]; Ridgeway v. Wal-Mart Stores, Inc. (N.D.Cal. 2015) 107 F.Supp.3d 1044, 1053 [truck drivers paid on a piece-rate basis must be separately compensated for unpaid work activities when under the employer's control]; Villalpando v. Exel Direct Inc. (N.D.Cal. 2016) 161 F.Supp.3d 873, 889 (Villalpando ) [when truck drivers who were paid on a piece-rate basis could not directly earn compensation during pre-trip work hours, the employer could not establish compliance with minimum wage requirements by showing that the drivers' average wages for all hours worked was at or above the minimum wage rate].) As the holdings of those federal cases do not materially differ from the holding of Gonzalez , we do not separately discuss them here."], "id": "75dfc2cd-36c9-4464-86a3-780645fbee27", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The plaintiff credibly explores the Federal Davis Bacon Act (US Code, tit 40, \u00a7 276a et seq.). That 1931 depression law limits the contract wage rights to the time of the award. It was the first Federal law governing . They claim the State has overreached in its superior bargaining position in this case. This is more an equity complaint which cannot be determined collaterally on this proceeding. (Necessary parties are not before the court.)"], "id": "4dfbdf20-f717-46d6-9c3d-42fc22a66fc6", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The cases cited by the employer in support of this position deal with instances where a plaintiff after several years moved to amend the bill of particulars to allege new injuries, and to increase the ad damnum without such supporting affidavits, or to do so after trial. (Natale v Pepsi-Cola Co., 7 AD2d 282, 285; Handschu v Weltz, 13 AD2d 679; Koi v P. S. & M. Catering Corp., 15 AD2d 775; Ferrari v Paramount Plumbing & Heating Co., 20 AD2d 878; Jimenez v Seickel & Sons, 22 AD2d 643; Maasch v Corning Co., 29 AD2d 774; London v Moore, 32 AD2d 543; Galarza v Alcoa S. S. Co., 34 AD2d 907; Osborne v Miller, 38 AD2d 298, 300; Pugh v Hoffman, 51 AD2d 950.) This, however, is not the situation here. Plaintiff claims no new injuries. The basis for his motion is that, had he not been disabled by the accident, plaintiff would have been paid a higher wage after 1973 than longshoremen earned at the time of the last amendment. There has been no showing that defendants or third-party defendant would be prejudiced by such an amendment, and they do not claim they were unaware of the increases. The real basis for their opposition is that granting the motion would let \"the jury hear mention of a million dollars\u201d. The only remaining question is, therefore, whether, in a court of general jurisdic*625tion, a request for a large sum of money would, if granted, be sufficiently prejudicial to warrant denial of a motion to increase the amount demanded in the ad damnum."], "id": "4c98250e-c48d-4626-84ac-5a628d464926", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["[W]e acknowledge that the General Assembly enacted the AMWA and allowed \"an action for equitable and monetary relief against [the State].\" Ark. Code Ann. \u00a7 11-4-218(e). Nevertheless, we *658conclude that the legislative waiver of sovereign immunity in section 11-4-218(e) is repugnant to article 5, section 20 of the Arkansas Constitution. In reaching this conclusion, we interpret the constitutional provision, \"The State of Arkansas shall never be made a defendant in any of her courts,\" precisely as it reads. Andrews , 2018 Ark. 12, at 10, 535 S.W.3d 616, 623. Pursuant to this rationale, the majority dismissed the plaintiff-appellee's claim against his State employer for unpaid wages brought pursuant to the Arkansas Act (AMWA). Id. Effectively, a majority of this court held that the State of Arkansas does not have to pay its employees minimum wage, or at least that no court can make the State pay its employees their wages when it has declined to do so. Id. As one circuit judge put it shortly thereafter, this was a \"sea change\" that significantly abridged the then-acknowledged exceptions to sovereign immunity-according to Andrews , citizens can no longer recover any legal damages from the State, even if the State has passed a law that specifically says so. Id. Instead, the majority opined, these damaged individuals can try their luck with the Arkansas Claims Commission, a politically created forum where the merits and value of any claim are within the discretion of appointed commissioners, and not subject to the constitutional guarantees of a jury trial or a legal remedy. Id. at 12, 535 S.W.3d at 623."], "id": "b85a17e7-9143-4a2e-970c-78c3fc2bb6f1", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Like the workers' compensation law in Healy , requirements are substantive regulations that directly implicate municipal interests in compensation of their employees. But also like the statewide workers' compensation scheme, the statewide minimum wage requirement serves the fundamental purpose of protecting the health and welfare of workers. (See \u00a7 3202 [Workers' compensation provisions of the Labor Code \"shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.\"]; Andersen v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1375-1376, 57 Cal.Rptr.3d 839 [\"The purpose of workers' compensation is to extend its benefits for the protection of persons injured on the job.\"].)"], "id": "cba387dd-49e3-4cfc-873f-178980203cd5", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Kao filed suit alleging multiple causes of action, only a few of which are at issue on appeal. Kao alleged breach of contract on the theory he was a third party beneficiary of the H-1B visa application and entitled to the hourly rate stated in the application. Kao also alleged violations of federal and state statutes regulating and overtime pay, asserting that his monthly salary of $2,000 to $2,500 was below statutory standards for work in excess of 40 hours a week. (29 U.S.C. \u00a7 201 et seq. ; Lab. Code, \u00a7\u00a7 1194, 1194.2.) Kao further alleged defendants failed to provide adequate wage and hour statements (Lab. Code, \u00a7 226 ) and timely payment of wages upon his termination (Lab. Code, \u00a7 203 )."], "id": "3265f0fc-3b83-4957-aff1-1957dcf87516", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["Today's decision essentially ignores the teachings of FLIS in that it abandons the holding that sovereign immunity is to be treated as an affirmative defense. Arkansas Rule of Civil Procedure 8(c) requires that a party shall set forth, in its response to a complaint, counterclaim, cross-claim, or third-party claim, \"any other matter constituting an avoidance or affirmative defense.\" The Arkansas Department of Veterans Affairs (ADVA) did not set forth sovereign immunity as an affirmative defense in its answer; rather, it affirmatively stated that the appellees' claims under the Arkansas Act (AMWA), Arkansas Code Annotated \u00a7\u00a7 11-4-201 et seq. (Repl. 2012), were not barred by sovereign immunity. Sovereign immunity is not a Rule 12(h) defense that is waived by the failure to assert it in the original responsive pleading, and notably, ADVA did not amend its answer pursuant to Rule 15. Although ADVA filed a motion to dismiss, its motion was not filed in response to the *355complaint.3 In reality, ADVA filed a motion for judgment on the pleadings. See Ark. R. Civ. P.-Civ. 12(c) (\"[A]fter the pleadings are closed ... any party may move for judgment on the pleadings.\"). Thus, ADVA moved for judgment on the pleadings, and those pleadings directly contradict ADVA's asserted basis for dismissal."], "id": "e7e73c04-c279-4994-b9c2-3dab4aae05a8", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["*641Plaintiffs' second theory of recovery was that, by not counting the improperly shortened meal periods as \"time worked,\" defendant did not pay plaintiffs \"the legal minimum wage\" under section 1194.3 That is, the \"truncated meal periods should have been considered an 'on-duty meal period,' ... and the belt sorters should have been paid at least the for this time.\" Plaintiffs asserted this theory of recovery was \"separate and distinct from the right to recover a meal period premium\" under section 226.7. According to plaintiffs, each class member could recover 30 minutes of pay at the minimum wage for each shortened meal period, plus interest, as well as liquidated damages in the same amount under section 1194.2.4 The amount claimed was $216,486.92."], "id": "82a82370-8af3-42e9-8e2a-77f61a12b5d8", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The city, as afore-mentioned, has the power to deal with persons whom it considers responsible. It also has the power to qualify those persons from whom bids are accepted. The law does, however, demand parity. The requirement of $1.50 would, and is, applicable to all persons seeking contracts and from those qualifying the lowest responsible bidder will, \u2018 \u2018 things being equal \u2019 \u2019, be accepted."], "id": "13171531-eb49-4e38-a749-d3ed81c8db79", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs are seven former employees of District Anchor, a District of Columbia restaurant previously owned and operated by Defendants. Plaintiffs seek relief from their former employers, alleging that they failed to pay Plaintiffs regular and minimum wages and failed to provide them safe and sick leave as required by law. Plaintiffs bring their claims under the Fair Labor Standards Act, the D.C. Revision Act, the D.C. Wage Payment and Collection Law, and the District of Columbia Accrued Safe and Sick Leave Act. After Defendants failed to appear, file an answer, or otherwise respond to Plaintiffs\u2019 complaint, the Clerk\u2019s office entered a default against them. Plaintiffs now move for a default judgment against Defendants pursuant to Federal Rule of Civil Procedure 55(b)(2) in the amount of $97,468.69, which is comprised of $13,096.60 in unpaid minimum and regular wages, $39,289.80 in liquidated damages, $4,030.80 in lost wages for unpaid safe and sick leave, $19,253.59 in statutory damages, $21,140.90 in attorneys\u2019 fees, and $657.00 in costs. Because Plaintiffs have met their evidentiary burden, the Court grants their motion for a default judgment. However, as"], "id": "0376cb81-cca7-4b18-b3de-f240c79fe344", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Mr. Arahovitis worked an average of 37Vz hours each week. No expert or other witness competent to testify as to the value of the services was called to offer an opinion. (Cf. Fisch, NY Evidence [2d ed], \u00a7 419.) This does not deprive claimant of a recovery. During the period of his employment, which we find extended for 75 weeks, the was $1.60 per hour. (Labor Law, former \u00a7 652, subd 1, par [c] [repealed L 1978, ch 747, \u00a7 1].) Claimant is therefore entitled to compensation of $4,500."], "id": "6429b697-3398-4294-aa53-65ecdcb1f3d7", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["After careful study and deliberation, this court concludes that the Schedule of Rental Values cannot be deemed to come within the Cull case (supra) definition of a rule or regulation.^ Missing as an essential ingredient is the element that a rule or \u00a1 regulation must be of legal effect, i.e., the administrative counter- j part of a statute of the Legislature, legally binding both the! Administrator and those within its regulatory ambit. (It should! be noted, at the outset, that this element clearly distinguishes the case before the court from Wirtz v. Lobello, 1 A D 2d 416 in which the agency promulgated and duly filed orders.)"], "id": "24416d32-a862-4f2e-9260-1bf1280b7ae7", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The City seeks to distinguish Sheppard by noting it predates the amendment to section 1197, effective January 1, 2016, which the City asserts altered the applicability of the wage orders. However, that amendment had no effect on the applicability of the wage orders, but instead confirms their continuing operation. (See \u00a7 1197 [\"The for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees ....\" (Italics added.) ].) The amendment to section 1197 was intended to authorize the Labor Commissioner to investigate and enforce violations of local minimum wage laws, not to abrogate the applicability of IWC wage orders to specific entities. (See Legis. Counsel's Dig., Assem. Bill No. 970 (2015-2016 Reg. Sess.) Stats. 2015, ch. 783, Summary Dig. [\"This bill ... authorize[s] the Labor Commissioner to investigate and, upon a request from the local entity, to enforce local laws regarding overtime hours or minimum wage provisions ....\"].)"], "id": "4d952323-fc61-4cba-bc88-6aec0f3d1628", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["Employees filed suit against Koppers pursuant to the Arkansas Act (AMWA), Ark. Code Ann. \u00a7\u00a7 11-4-201 et seq. for unpaid overtime. They claimed that Koppers violated the AMWA by failing to compensate them for time spent donning and doffing their uniforms and protective equipment and walking to and from their workstations. After filing their complaint, employees moved to certify a class of"], "id": "c0fbd617-9ca2-4f75-abe0-0340631e9721", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\"In actions under section 1194 to recover unpaid minimum wages, the IWC's wage orders do generally define the employment relationship, and thus who may be liable.\" ( Martinez, supra , 49 Cal.4th at p. 52, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; accord, Flowers, supra , 243 Cal.App.4th at p. 74, 196 Cal.Rptr.3d 352 [\"Specific employers and employees become subject to the requirements only through and under the terms of wage orders .... [Citation.] Accordingly, 'an employee who sues to recover unpaid minimum wages actually and necessarily sues to enforce the wage order.' \"].) As noted above, \"[t]he IWC's wage orders are to be accorded the same dignity as statutes,\" and \"[t]hey are 'presumptively valid' legislative regulations of the employment relationship ....\" ( Brinker, supra , 53 Cal.4th at p. 1027, 139 Cal.Rptr.3d 315, 273 P.3d 513.)"], "id": "2810d2b4-8663-4b22-b294-394d62e49dae", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Here, the testimony established that both parents were committed and had an emotional bond with the child, and Family Court found that, despite transportation challenges, the father had exercised most of his visitation time. While the mother\u2019s desire to relocate to Florida in an effort to create economic opportunity is admirable, the record demonstrates that, at the time of the hearings, she was working as a hotel desk agent at slightly higher than . While there was further testimony that the child enjoyed certain recreational opportunities and attended a local day care there, the record as a whole fails to establish \u201cthat relocation would substantially enhance the child\u2019s economic, emotional or educational well-being\u201d (Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1428; see Matter of Stetson v Feringa, 114 AD3d at 1091; Rose v Buck, 103 AD3d at 961)."], "id": "fcb662bc-9806-45ca-919e-fd33a3dfe7f2", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\" 'The IWC's wage orders are to be accorded the same dignity as statutes. They are \"presumptively valid\" legislative regulations of the employment relationship [citation], regulations that must be given \"independent effect\" separate and apart from any statutory enactments [citation]. To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes.' \" ( *64Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1082, 216 Cal.Rptr.3d 889, 393 P.3d 375, quoting Brinker, supra , 53 Cal.4th at p. 1027, 139 Cal.Rptr.3d 315, 273 P.3d 513.) *561The IWC continued periodically to raise the by amendments to its wage orders. On October 23, 2000 the IWC promulgated a wage order setting the minimum wage as of January 1, 2001 ($6.25 per hour) and January 1, 2002 ($6.75 per hour). (Wage Order No. MW-2001; Cal. Code Regs., tit. 8, \u00a7 11000.) That order also made the minimum wage provisions in wage orders regulating certain industries applicable for the first time to \"employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.\" ( Cal. Code Regs., tit. 8, \u00a7\u00a7 11040, subd. 1(B) [Wage Order No. 4-2001 governing employees in professional, technical, clerical, mechanical, and \"similar\" occupations] & 11100, subd. 1(C) [Wage Order No. 10-2001 governing employees in the amusement and recreation industry].)4"], "id": "cd55f152-b342-442d-a653-742f2094714f", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs contend there is no conflict between the state law and the City Charter because the City is free to determine the wages of its employees, so long as those wages are at or above the state minimum. However, the City's charter provides that wages for the City's employees are to be set by the City Council. (Long Beach City Charter, art. V, \u00a7 503.) And the MOU setting plaintiffs' wages was adopted by a City Council resolution."], "id": "561a28d8-bf8f-40ec-a9d1-503404df3934", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["1. Wrongful termination in violation of public policy. ( Lab. Code, \u00a7\u00a7 923 [employees may organize], 6310 [retaliation for an OSHA complaint], 6400 [duty to provide a safe work environment], 1102.5 [whistleblower protection].) 2. Unpaid wages under the wage order. ( Cal. Code Regs, tit. 8, \u00a7 11090.) 3. Failure to pay . ( Lab. Code, \u00a7\u00a7 1182.12 [minimum wage], 1194 [right of action], 1194.2 [liquidated damages], 1197 [duty to pay minimum wage].) 4. Failure to pay overtime. ( Lab. Code, \u00a7\u00a7 510 [overtime], 1194 [right of action].) *5645. Failure to provide meal and rest breaks. ( Lab. Code, \u00a7\u00a7 226.7 [rest periods], 512 [meal breaks].) 6. Failure to furnish accurate wage statements. ( Lab. Code, \u00a7\u00a7 226 [wage statements], 226.3 [civil penalties], 2699 [PAGA penalties].) 7. Waiting time penalties. ( Lab. Code, \u00a7\u00a7 201 -202 [wages and leave due upon departure], 203 [penalties].) 8. Unfair competition (UCL), based on the foregoing violations. ( Bus. & Prof. Code, \u00a7 17200 et seq. ; Lab. Code, \u00a7 2699 [PAGA penalties].) Defendants moved for summary judgment. Relying on Borello, supra, 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, they argued all eight causes of action failed because Garcia was an independent contractor, *365not an employee. Erik's declaration established various ways in which BTG did not exercise control over drivers. Garcia and others remained free to set their hours, use the car for personal errands, decline the optional radio dispatch service, keep their collected fares, enter into sublease agreements, hold other jobs, advertise services in their own names, etc."], "id": "7daaed22-2378-4786-b8ab-ef96553dba9e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The express intent of the SAG 1967 Television Agreement is to set out the scale and working conditions for all persons employed in \"television motion pictures.\u201d (See? SAG 1967 Television Agreement para 1.) \"Television motion pictures\u201d are defined as: \"entertainment motion pictures produced primarily for exhibition over free television whether made on or by film, tape or otherwise, and whether produced by means of motion picture cameras, electronic cameras or devices, or any combination of the foregoing, or any other means, methods or devices now used or which may herein after be adopted.\u201d (Id.)"], "id": "95673ec2-799c-47e3-abf6-467e9b13768a", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The statute that pertains to ADC recipients, Social Services Law \u00a7 336-c, was enacted in 1990, well after the decision in Young v Toia (supra) where the court recognized that ADC recipients then were not covered by section 164 (2) (a). Here, undoubtedly in response, the Legislature inserted language for wage measurement based on the text of the Constitution, although it did not describe the program as \"public work\u201d. Under section 336-c (2) (b), before an ADC recipient may be assigned to WEP, the local social services district must calculate the number of hours an ADC recipient must work, by dividing the family\u2019s benefits by the higher of the State or Federal or \"the rate of pay for persons employed in the same or similar occupations by the same employer at the same or equivalent site\u201d. (Social Services Law \u00a7 336-c [2] [b] [emphasis added]; see also, 18 NYCRR 385.12 [k] [5].)"], "id": "ed016bb4-2fba-45ed-9d28-4bbeae86c7d6", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Mejia filed a complaint against the MBM defendants asserting a single cause of action, pursuant to PAGA, to address these various Labor Code violations. Specifically, Mejia identifies the following Labor Code provisions as having been violated: sections 226.7 and 512 (failure to provide meal periods); sections 226.7 (failure to provide rest periods); sections 510, 1194, 1194.2, 1197, and 1198 (failure *730to pay legal and/or overtime at the correct rate); sections 226 and 226.3 (failure to provide accurate itemized wage statements); and sections 201, 202, 203, 204, and 210 (failure to timely pay all earned wages owed upon separation from employment)."], "id": "c2ee8eec-9970-4497-816d-3299668784c2", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["I. Factual & Procedural Background On April 4, 2018, Claimant filed a claim petition asserting that he sustained disabling work-related injuries on January 8, 2018. Reproduced Record (R.R.) at 2a-6a. It was ultimately determined that the proper employer at the time of the incident was WP Ventures, Inc. (WP Ventures), which contested Claimant\u2019s claim petition. WCJ Decision, 1/3/20, at 8. In his deposition, Claimant testified that he receives Social Security Disability (SSD) benefits due to mental health conditions. Certified Record (C.R.) at 238-39. WP Ventures finds part-time jobs for individuals receiving SSD who wish or need to earn supplemental income. Id. at 240-41. In late 2015 or early 2016, Claimant was placed as a custodial worker at the Center in the Park, a senior citizens\u2019 community center located in a small public park in the Germantown area of Philadelphia. Id. at 243-44 & 259. His duties included cleaning, emptying trash, performing basic maintenance, and setting up the facility for events and meetings. Id. at 249-51. He worked at the Center in the Park for 20 hours a week on weekday afternoons but was paid by WP Ventures. Id. at 248 & 253. On the day of the incident, the facility was being cleaned and ventilated after a roof leak and Claimant was not able to do most of his usual tasks. C.R. at 254 & 286. At about 4:00 p.m., he was hungry and decided to take a break for a cigarette and to get a sandwich at a shop on Germantown Avenue just outside the park. Id. at 255, 308-09 & 323. Claimant testified that he would ask for permission if his supervisor was around, but if his supervisor was not around, it was understood that he could take limited breaks without permission: \u201c[I]f you wanted to take a smoke, and you didn\u2019t have anything scheduled to do at that specific time, you were allowed to go out and maybe get a sandwich if you were hungry or take a smoke.\u201d Id. at 256 & 284-85. Claimant added that it was not a written or specific policy: \u201cWhen [the supervisor] was there, to be seen, . . . we would ask him directly. But"], "id": "3d6e1100-300b-469c-a03f-0afca028ae9a", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["Counsel for the city point out that the prior constitutional provision prohibited local laws inconsistent with the \u2018 \u2018 laws of the State \u201d, whereas the amendment prohibits local laws inconsistent with \u201cany general law\u201d. It is argued that the State Act is not a \u201c general law \u201d, which is defined as a \u201c law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages \u201d (N. Y. Const., art. IX, \u00a7 3 subd. [d], par. [1]), because \u201c the Industrial Commissioner is authorized to establish a different minimum wage rate for different localities in respect to particular industries.\u201d It seems clear, however, that the act is a \u201cgeneral law\u201d in that the provisions for a minimum wage up to $1.25 per hour and for the establishment by the Commissioner of a higher minimum wage for particular occupations, varying with localities, apply alike to all cities and counties. The statute is clearly not a \u201cspecial law\u201d, which is defined in paragraph (4) (\u00a7 3, subd. [d]) of article IX of the Constitution as \u201c A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.\u201d It follows that the 1964 local law violates the constitutional prohibition against local laws inconsistent with \u201c general laws \u201d of the State on the same subject."], "id": "698d91ab-c10a-40a3-95fc-0d935b86e3ca", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["There is a practical standard to be applied in determining the reasonable value of the plaintiff\u2019s labor. The court takes judicial notice of the fact that in December 1969 the for unskilled labor, both Federal and State, was $1.60 an hour. I find that the reasonable amount of time for the performance of this work was 10 hours."], "id": "4d3b6a92-0790-4249-a5d0-e63720d5fb7e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Of the eight causes of action alleged in Garcia's complaint, five arise under the wage order: unpaid wages, failure to pay (which may overlap), failure to provide meal and rest periods, failure to furnish itemized wage statements, and UCL claims based on the foregoing. These claims are governed by the \"suffer or permit to work\" standard described in Dynamex ."], "id": "8bfe5a04-b756-40e7-9e2d-c4581b0e0911", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Here, the statewide concern in worker health and welfare is reasonably related to *77the imposition of a . As discussed above, the minimum wage law does not deprive the City completely of its authority to determine wages. Rather, the law sets a floor based on the Legislature's judgment as to the minimum income necessary for a living wage within this state. The City retains authority to provide wages for its employees above that minimum as it sees fit. The minimum wage requirement therefore intrudes less on local authority than the prevailing wage laws, mandatory binding arbitration requirements, and prohibitions on cost-of-living pay increases held invalid by the Supreme Court. (See City of Vista, supra , 54 Cal.4th at p. 564, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; County of Riverside, supra , 30 Cal.4th at p. 282, 132 Cal.Rptr.2d 713, 66 P.3d 718 ; Sonoma County, supra , 23 Cal.3d at p. 302, 152 Cal.Rptr. 903, 591 P.2d 1.) As such, the balance struck is \" 'sensible and appropriate fashion as between local and state legislative bodies.' \" ( California Fed. Savings , supra , 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) This \"limited interference ... is substantially coextensive with the state's underlying regulatory interest.\" ( Id. at p. 25, 283 Cal.Rptr. 569, 812 P.2d 916.)"], "id": "18f87d9f-aa7f-4bfe-b8f1-dc1c0bd59f6f", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": [". Section 661 of the Labor Law provides in pertinent part: \u201cEvery employer shall keep true and accurate records of hours worked by each employee covered by an hourly *740 rate, the wages paid to all employees, and such other information as the commissioner deems material and necessary, and shall, on demand, furnish to the commissioner or his duly authorized representative a sworn statement of the same. Every employer shall keep such records open to inspection by the commissioner or his duly authorized representative at any reasonable time * * * Employers shall permit the commissioner or his duly authorized representative to question any employee of such employer in the place of employment and during working hours in respect to wages paid to and the hours worked by such employee or other employees.\u201d"], "id": "2eb6ef5f-f6c5-42ff-9ed9-d375381a8ffa", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\u201cViolation of Federal Labor Law 29 USC Section 206 \u201c44. . . . the federal law is codified by 29 USCS Section 206 and applies to Respondents. . . . \u201c46. Respondents\u2019 retroactive taking of wages which were earned by Petitioner would result in Petitioner having worked for wages far below the minimum wage mandated by federal labor law. Therefore, Respondents\u2019 enforcement of TL Section 1613-b and SSL Section 131-r are violative of federal labor laws.\u201d *605The fifth cause of action in the petition alleges, in pertinent part:"], "id": "b70600ed-820c-44d1-9fea-d2f5b26f5082", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Section 663-a of the Labor Law provides as follows: \u201cTo effectuate the aim of this article and to protect the standards and rates provided for women and minors, no male twenty-one years of age or over shall be employed in an occupation at less than the minimum standards or rates of wages fixed for women and minors in such occupation under a minimum wage order.\u201d"], "id": "7eb330bc-0ed2-4700-bdf6-c40d54ba2018", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The court concluded, \"Here, the state law at issue is not a law of *69broad general application; rather, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. In addition, it imposes substantive obligations on charter cities, not merely generally applicable procedural standards. These distinctions further undermine the Union's assertion that the matter here presents a statewide *567concern and therefore requires Vista, a charter city, to comply with the state's prevailing wage law on the city's locally funded public works projects.\" ( City of Vista, supra , 54 Cal.4th at pp. 564-565, 143 Cal.Rptr.3d 529, 279 P.3d 1022.)"], "id": "afa4dc92-41c0-4102-8b96-1c0954d91514", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Labor Code section 203 empowers a court to award \"an employee who is discharged or who quits\" a penalty equal to up to 30 days' worth of the employee's wages \"[i]f an employer willfully fails to pay\" the employee his full wages immediately (if discharged) or within 72 hours (if he or she quits). ( Lab. Code, \u00a7 203, italics added; see also Lab. Code, \u00a7\u00a7 201, subd. (a), 202, subd. (a) ; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 378, 36 Cal.Rptr.3d 31.) It is called a waiting time penalty because it is awarded for effectively making the employee wait for his or her final paycheck. A waiting time penalty may be awarded when the final paycheck is for less than the applicable wage-whether it be the , a prevailing wage, or a living wage. ( Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 326, 37 Cal.Rptr.3d 460 ; Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 779-780, 125 Cal.Rptr.2d 804 ( Road Sprinkler Fitters ).)"], "id": "59201292-a88d-4847-9681-a077a6840501", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["*519Husband has again cited facts that might support a decision not to award maintenance to Wife. Husband failed to cite the facts that support the judgment and why, based on those facts, the trial court's decision represents an abuse of discretion. Again, we note that the trial court engaged in an extensive analysis of each of the statutory factors set forth in section 452.335 and stated why under those factors it believed maintenance should be awarded in the specific amount set forth. A review of those facts indicates the long-term marriage during which Wife was primarily a homemaker. Husband had substantial income from two separate sources, one of them a disability payment from the California Highway Patrol. The court imputed a to Wife. The court analyzed each of Wife's claimed expenses. The court determined that given her age, work history, the award of the marital assets, and Wife's lack of income producing assets and lack of education, Wife's employment income would not meet her reasonable needs. Such careful consideration by the trial court was not an abuse of discretion."], "id": "983692aa-fd81-46ca-98f2-a17a9d30feab", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["However, even if defendant\u2019s motion is considered to be timely, it should be denied on all three grounds. The second and third grounds hardly warrant discussion. As his second ground, defendant claims that the low statutorily authorized payment for jury service makes it financially impossible for certain persons, i.e., persons who are self-employed, work on commission, or work for an employer that will pay for only two weeks of jury service, to serve as jurors. In support of this argument, defendant relies upon the fact that a number of prospective jurors from the four questioned panels had been excused for reasons of financial hardship. Significantly, defendant has presented no evidence that the jury panels do not include these persons. Therefore, defendant\u2019s challenge is to the petit jury and not the jury venire. As such, the claim is baseless because defendant is not entitled to a petit jury of any particular composition. (Lockhart v McCree, 476 US 162 [1986].) Additionally, defendant\u2019s third asserted ground, that jurors are paid less than the Federal , is not an articulable challenge to the Bronx County jury venire and therefore is not a basis for relief."], "id": "9998a425-d3d5-49bf-b5a3-f6ba7bb7f7e0", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The Legislature of this State has recognized the fact that employer and employee do not meet on an equal footing; that the employer in his superior position ofttimes conditions the terms of employment to his own best advantage. Realizing that fact, the Legislature has found that certain conditions so imposed by the employer are detrimental to the welfare of both the State and the individual employee. Thus, for example, hours of employment (Labor Law, art. 5), manner and time of payment of wages (Id. art. 6), and standards for women and minors (Id. art. 19) are being regulated. The minimum wage standard law for women and minors was enacted on the authority of West Coast Hotel Co. v. Parrish (300 U. S. 379), which held a similar Washington statute to be constitutional. In the New York statute (Labor Law, \u00a7 551) the Legislature declared the public policy of the State to be \u201c that women and minors employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health.\u201d"], "id": "88a0bb19-8aab-418b-955b-d99b3ca82511", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["This action was filed as a class action. The operative pleading names two plaintiffs, Fernando Jimenez Sanchez and Porfirio Preciado. It alleges they brought this action as a class action, on behalf of themselves and all other similarly situated current and former employees of defendant who worked as drivers. Defendant is a trucking company and plaintiffs were employed as drivers to transport milk within California; they were paid on a piece-rate1 basis for driving and at a contractual rate for certain other activities. Plaintiffs allege defendant enforced policies that: imposed a piece-rate system that failed to compensate employees for all \"hours worked,\" as defined by law; failed to authorize or permit rest breaks by not separately compensating for them at an hourly rate; failed to schedule meal periods, provide uninterrupted duty-free meal periods of at least 30 minutes, or pay employees for on-duty meal periods; failed to pay premiums when rest or meal breaks were not provided; failed to maintain accurate records of employee time; failed to provide accurate wage statements; and failed to pay all wages owed upon termination of employment. Plaintiffs assert causes of action for: (1) failure to pay at least or the contractual rate for all hours worked, including \"nonproductive time\"; (2) failure to provide rest periods or premium wages in lieu of them; (3) failure to provide meal periods or premium wages in lieu of them; (4) failure to provide accurate wage statements; (5) failure to timely pay wages due at termination; and (6) violation of the unfair competition law ( Bus. & Prof. Code, \u00a7 17200 et seq. )."], "id": "d6a8e34e-82de-4935-b45b-96eecf64ff1a", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["New York\u2019s law demands that \"every employer shall pay to each of his employees in every occupation\u201d a specified minimum wage (Labor Law, \u00a7 652, subd 1, par [g]) and after defining \"employee\u201d for minimum wage purposes to include \"any individual employed or permitted to work by an employer in any occupation\u201d the statute (Labor Law, \u00a7 651, subd 5) then excludes from the coverage of the law certain categories of employment not here relevant. The core issue in this litigation is whether or not the subject students, when they participate at retail pharmacies in the aforesaid professional practice program of the plaintiff, are then individuals \"employed or permitted to work by an employer in [an] occupation\u201d, that is, are they then in the relationship which is now generally referred to as an employment relationship but which used to be more generally termed as the relationship of master and servant."], "id": "3e330365-e8db-49f5-a463-c2acf935f0ae", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In December 2013, Halim pleaded guilty to misuse of visas in violation of title 8 United States Code section 1546(a). Anwar pleaded guilty to violations under the Fair Labor Standards Act ( 29 U.S.C. \u00a7\u00a7 206(f), 215 ). The first paragraph of Halim's plea agreement stated: \"This agreement is limited to the USAO and cannot bind any other federal, state, local, or foreign prosecuting, enforcement, administrative, or regulatory authorities.\" In February 2014, Halim was sentenced to five years probation, 400 hours of community service, and was ordered to pay restitution in the amount of $137,669 and a $50,000 fine. Anwar was sentenced to two years probation, 100 hours of community service, and was ordered to pay a $10,000 fine."], "id": "cdb255ae-0bd1-442a-8fc2-cbc0048f5f1c", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["This court holds that plaintiff\u2019s violation is overshadowed by defendant\u2019s entire course of deceptive conduct and, therefore, plaintiff is entitled to payment under the New York State Labor Law of the then in effect for the period from January 1, 1973 to May 13, 1974, amounting to $6,629.60 (the initial 15 weeks constituting the period of plaintiff\u2019s apprenticeship), plus liquidated damages of $1,657.40, equal to 25%, totaling $8,287. In addition, defendant shall play the sum of $1,500 as and for reasonable attorney\u2019s fees."], "id": "434b545d-15ec-4572-ab89-4545a7e80745", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["We conclude legislation setting a statewide , generally applicable to both private and public employees, addresses the state's interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families. Thus, the Legislature may constitutionally exercise authority over minimum wages, despite the constitutional reservation of authority in charter cities to legislate as to their municipal affairs. We reverse."], "id": "9cd3e06c-0545-4966-9102-f53a2cc442e8", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In this case, because of the claim for lost earnings, plaintiff had to plead special damages, now estimated at $160,000, which figure obviously accounts for only part of the $750,000 increase plaintiff now seeks. The remainder, therefore, must be an increase in general damages. Had plaintiff at this point in the case sought to amend so as to eliminate the specification of the amount of general damages, and thus expose defendants to unlimited liability, it might indeed be prejudicial to grant the motion. However, in light of the nature of the injuries previously alleged and the continued erosion of the value of the dollar since the last amendment, it should come as no surprise to the defendants that plaintiff now seeks a further amendment. Nor is the sum sought unreasonable under the circumstances. It must be noted that plaintiff could have demanded one million, or even 20 million, dollars in his original complaint and defendants could not have prevented the jury from hearing the word \"million\u201d, which is not in itself prejudicial. Jurors are not so naive that they will automatically award plaintiff $1,000,000 merely because he asks for it, and those that are will presumably be weeded out by defendants in the selection process. Moreover, no purpose would be served by requiring the plaintiff to make an annual motion to amend whenever the longshoremen\u2019s *627 increased instead of doing so just once prior to trial."], "id": "a5e07986-2b56-4785-85bd-cf101c988bc9", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 155 Cal.Rptr.3d 18 ( Gonzalez ), the Second District held that in addition to the piece-rate compensation paid by an automotive repair service, the service's technicians were entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer, even though the employer supplemented the technicians' compensation to cover any shortfall between the piece-rate wage and rate. ( Id. at pp. 40-41, 155 Cal.Rptr.3d 18.) Shortly thereafter, this court held that an employee subject to piece-rate compensation must also be paid for rest periods. ( Bluford v. Safeway Stores, Inc . (2013) 216 Cal.App.4th 864, 866, 871-873, 157 Cal.Rptr.3d 212 ( Bluford ).)"], "id": "c2ad297a-cc9b-418f-a4d0-ffc279815f68", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["But in Garcia v Freeland Realty (63 Misc 2d 937) the court noted that the landlord had a statutory duty to repair and paint the apartments in the multiple dwelling. Though not recognizing an implied warranty of habitability, in allowing the tenant the cost of materials and allowance for his time in painting, the court took a different tack from previous decisions which had held that duties statutorily imposed are enforcible by the municipality only. In Jackson v Rivera (65 Misc 2d 468), the court not only recognized the warranty in this nonpayment proceeding but allowed the tenant\u2019s claim for $22 for the repair of *645the tenant\u2019s toilet. The court stated {supra, at p 471): \u201ca tenant may make repairs and deduct their reasonable cost from rent when (1) the condition in question creates an emergency seriously affecting the habitability of the home, (2) the landlord has refused to make the repairs, and (3) the condition cannot reasonably be permitted to continue until code enforcement proceedings have run their course.\u201d (Italics supplied.) In Kekllas v Saddy (88 Misc 2d 1042), the court recognized repair and deduct as a valid remedy but because no notice was given to the landlord, the tenant could not recover. The question of excessive cost to remove the odor complained of was also considered by the court in denying relief to the tenant. Thus, in order for a tenant to recover in these repair and deduct situations, it is apparent that the tenant must give notice to the landlord (see Altz v Lieberson, 233 NY 16, 18), and that the condition or violation complained of must be substantial in that it affects the habitability of the premises and that the landlord has either refused or has not repaired in reasonable time after reasonable opportunity to repair has been given to the landlord. A tenant making the repairs under these circumstances will be allowed to set off or deduct from the rent provided that the cost is reasonable and not excessive."], "id": "8eeddda6-3f5d-4931-b79d-d45589d6da2e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\"I'm going to\u2014I want the journal entry to reflect that I believe the total restitution obligation to be as agreed by counsel at $54,601.01. That is an amount that may be factored in by the parole board or post-release supervising authority when he is released if they undertake the recommendation that I made. I will order as far as payment is concerned that he pay in restitution the sum of $12,547.39, which represents the amounts of the Topeka ENT billing, the Lyon County Ambulance billing, and the Newman Regional Health billing. \"Mr. Smith has no physical disabilities of which we are aware. He has reasonable trade skills which would allow him to be employed at employment compensation levels certainly greater than and certainly greater than what he was earning at [the fast-food restaurant]. As his employment history would indicate, he is capable of earning wages in excess of $14 per hour. And while it may take some time to do so, I'm not aware of any time limit on this restitution obligation, so, therefore, I am going to fix, his restitution at the sum of $200 per month at such time as he becomes employed, which would allow this to be paid in a fairly reasonable time period.\" (Emphases added.)"], "id": "7859aaea-7c45-4e92-ac7d-36cf9544659b", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["The Temple relies on a number of pre- Hosanna-Tabor cases that have interpreted the ministerial exception broadly and have suggested that it exempts from court scrutiny all \" 'employment decisions regarding ... ministers,' \" without regard to whether those decisions \"actually burden\" the free exercise of religion or result in excessive government entanglement with religion. ( Alcazar v. Corp. of Catholic Archbishop of Seattle (9th Cir. 2010) 598 F.3d 668, 673-674 ( Alcazar ), aff'd in part & vacated in part (9th Cir. 2010) 627 F.3d 1288 [ministerial exception barred application of Washington's Act to Catholic seminarians suing for overtime wages]; see also Skrzypczak v. Roman Catholic Diocese of Tulsa (10th Cir. 2010) 611 F.3d 1238 [ministerial exception barred religious director's post-termination claims against church for violations of various antidiscrimination laws, including the Equal Pay Act]; Shaliehsabou v. Hebrew Home of Washington (4th Cir. 2004) 363 F.3d 299 [ministerial exception barred kosher supervisor's overtime claim under FLSA]; Schleicher v. Salvation Army (7th Cir. 2008) 518 F.3d 472 [ministerial exception barred minimum wage and overtime claims brought by Salvation Army ministers under FLSA].) In the view of those cases, an \"actual burden\" inquiry is not necessary because \"government interference with the church-minister relationship inherently burdens religion.\" ( Alcazar , at p. 673,.) The Temple urges this broad view of the ministerial exception, suggesting that requiring a religious employer to demonstrate burden or excessive entanglement \"miss[es] the point.\""], "id": "ceb06d6d-441a-4060-aa64-d25251fb984e", "sub_label": "US_Terminology"} {"obj_label": "Minimum Wage", "legal_topic": "Employment Law", "masked_sentences": ["HHC also contends that it is a political subdivision of the State of New York, and therefore is exempt from Labor Law *1064\u00a7 215. HHC points to the definitions provided in another section of the Labor Law, the Act, which specifically exempts \u201cfederal, state or municipal government or political subdivision thereof\u201d from causes of action against them (Labor Law \u00a7 651 [5] [n]). Plaintiff responds that those definitions do not apply for claims brought under Labor Law \u00a7 215. The exemptions under Labor Law \u00a7 215 (c) (1) pertain only to \u201cstate or any municipal subdivisions or departments thereof\u201d;* it makes no mention of political subdivisions."], "id": "2a4830b5-c41f-4f55-bc0d-fe3a2d0422ed", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Harold Baer, Jr., J. This proceeding is brought to set aside a ruling by the New York State Industrial Board of Appeals (IB A) that the Federal Fair Labor Standards Act (FLSA) (52 US Stat 1060; US Code, tit 29, \u00a7 201 et seq.) does not preclude New York State Department of Labor (DOL) officials from conducting on-premises inspections and interviews to ensure employer compliance with State and hour laws. Petitioner claims that the IBA erred as a matter of law."], "id": "05d3e8dd-710a-4050-a780-11ff94ac09d1", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\u2018 \u2018 Application; special requirements. \u2014 a. The application for a license or for any renewal thereof to conduct a laundry shall be in writing and shall state the specific location where laundry work is processed and the maximum number of persons to be employed therein. The commissioner, before issuing any such license, shall cause an investigation to be made of the premises named and described in such application, for the purpose of determining whether the provisions of the sanitary code, building code, state industrial code, state law, local laws, regulations of municipal agencies and other requirements of this article are fully complied with."], "id": "d1c6ed52-309e-4db9-8ab6-7ed3a337e982", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Lainez opposed the motion. He declared that he had begun working for Jackpot prior to May 14, 2011, and that he was seeking compensation in the first cause of action for unpaid minimum wages prior to July 1, 2012. Lainez in his opposition agreed that each of the material facts identified in Jackpot's summary adjudication motion was undisputed. But Lainez argued that the safe harbor provision of section 226.2(b) did not offer a complete defense to Jackpot because the statute did not immunize the company against unpaid claims accruing prior to July 1, 2012."], "id": "c8e46b40-fc92-4045-96ba-a63643955f74", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\u201cI regularly worked in excess of 40 hours per week and often worked as many as 60 hours per week selling home loans. Oftentimes I worked evenings, early mornings and weekends. My supervisors encouraged me and other loan officers to work long hours exceeding 40 hours in given workweeks because the more loan products I sold, the more profit Continental would make. Continental\u2019s management would reprimand or terminate loan officers who were not working hard enough. But even these loan officers were working more than 40 hours per week. If loan officers wanted to remain in good standing with Continental\u2019s management, they had to work more than 40 hours per week. \u201cI was not paid overtime for the time I worked over 40 hours per week. I was not paid . *795\u201cWhile employed by Continental, I worked with other loan officers who I observed on a daily basis. Like me, all these loan officers sold loans as their primary duty, regularly worked in excess of 40 hours per week, and were paid pursuant to the same or similar pay plan described above. I knew this because I personally observed other loan officers regularly working over 40 hours a week and was told by Continental that all of its loan officers were paid in the same or similar way. I learned from other loan officers that all of Continental\u2019s loan officers were paid the same way. I was required to attend weekly meetings with other loan officers. During these meetings, Continental\u2019s management reemphasized that our primary duty was selling home loans and that we would not receive payment unless we made sales, encouraged us to work long hours, and gave accolades to those loan officers putting in the most time. \u201cContinental did not record the time I worked or the time worked by other loan officers. While I was employed, Continental did not have a time keeping system for its loan officers.\u201d4"], "id": "047e633f-558c-43fe-9d4a-98dd7c503d07", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Relying on the documentation provided by plaintiff in his complaint, Jet Blue contends that it properly compensated plaintiff for all hours worked because, it argues, the reduced overtime rate in 12 NYCRR 142-2.2 should be calculated as the rate plus one half the minimum wage rate. *351However, in this case, plaintiff alleges that he was paid well over the minimum wage for all hours worked. Logic dictates that the Department of Labor would not penalize someone for earning above the minimum wage. Therefore, in a scenario such as this, where a plaintiff is earning more than minimum wage, yet is exempt from the FLSA, plaintiffs overtime pay under the reduced overtime provision of 12 NYCRR 142-2.2 should logically be calculated as equal to his regular pay rate plus one half times New York State\u2019s minimum wage (but see Matter of Ray-mus [Roberts], 102 AD2d 154, 154 [3d Dept 1984] [noting the Wage Board\u2019s decision to calculate the plaintiffs pay based on the 12 NYCRR 142-2.2 reduced overtime rate calculated as the current minimum wage rate plus one half times the minimum wage rate])."], "id": "ad2bdc3d-bec9-44b2-b3d3-ab5b29f276cc", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The rule established by Armenta -that employees must be separately compensated at or above for all time worked-was subsequently applied by California courts to \"piece-rate\" compensation programs, in which employees do not receive an hourly wage but are paid based on the tasks they perform. In Gonzalez, supra, 215 Cal.App.4th 36, 155 Cal.Rptr.3d 18, automobile service technicians were paid on a piece-rate basis for their work. Specifically, technicians were \"paid a flat rate ranging from $17 to $32, depending on the technician's experience, for each 'flag hour' a technician accrues.\" ( Id . at p. 41, 155 Cal.Rptr.3d 18.) Flag hours were assigned to every task that a technician performs and were intended to correspond to the actual amount of time a technician would need to perform the task. ( Ibid . ) A technician who completed a repair task accrued the number of flag hours assigned to that task, regardless of how long the technician actually took to complete the task. ( Ibid . ) A technician's pay for each 80-hour period was based on the number of flag hours accrued during that pay period multiplied by the technician's applicable flat rate. ( Ibid . ) The technicians accrued no flag hours for performing non-repair tasks, such as cleaning, obtaining parts and participating in training. ( Id . at p. 42, 155 Cal.Rptr.3d 18.) Thus, the employees were not directly compensated for non-repair time."], "id": "784e7e2a-a29f-4bb6-8cac-f902d098d200", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Dr. Krosnick explained his research involved \"(1) drawing a sample of respondents to represent a population, (2) collecting data from those respondents, and (3) analyzing the data generated to answer the questions of interest.\" He and his team of researchers had obtained from plaintiffs' attorneys \"the constructs to be measured in the survey,\" which he described as \"(1) the amount of overtime worked, (2) the numbers of meal and rest breaks to which inspectors were entitled to take under California law but did not take (assuming that law applied to these individuals), (3) the amount of time inspectors spent performing specific tasks of relevance to the claimed violations, (4) the number of miles that inspectors drove to do their work, [and] (5) the amount of money that inspectors spent for other business expenses incurred in connection with their work.\""], "id": "fcec91d8-0f2e-4de4-a30a-baddd25243a2", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["California's general order ( Cal. Code Regs., tit. 8, \u00a7 11000, Order No. MW-2001) requires employers to pay wages of at least the minimum wage for \"all hours worked.\" Wage Order 4-2001 ( Cal. Code Regs., tit. 8, \u00a7 11040 ) (Wage Order 4), applicable to those employed in professional, technical, clerical, mechanical, and similar occupations,6 likewise requires an employer to pay each employee wages of at least the minimum wage for \"all hours worked.\" It defines \"hours worked\" as \"the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. Within the health care industry, the term 'hours worked' means the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act.\" (Id ., subds. (2)(K), (4)(A).)"], "id": "1b142f0f-ba37-4c85-9429-bf120fa62849", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Thereafter, on January 1, 1964, an amendment to the State Constitution went into effect which broadened the powers of local governments to enact local legislation (N. Y. Const., art. IX). On the theory that this constitutional amendment rendered obsolete the prior decision that the city had no power to enact legislation fixing $1.50 per hour as a therein, the city adopted Local Law No. 45 of the year 1964, the statute whose constitutionality is presented for determination in this action. That local law, like the 1962 local law, fixes $1.50 per hour as the minimum wage in the city."], "id": "17c771b9-c52d-4b58-aba2-f68155d80446", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["I need not now determine whether settlements of the claims in this case for liquidated damages were valid , because defendant has not pleaded any defense specifically based upon the settlement of such a claim, but has pleaded broadly a settlement of all claims, including therein any sums still due as minimum wages. As to the plaintiff Cassese, defendant may have a complete defense in line with the Guess case (supra), for according to the figures stated in the complaint Cassese has already received more than the full due him and is really claiming only liquidated damages. In the case of plaintiff Weinstock there would seem to be only a partial defense at best, for Weinstock alleges that the minimum wages earned by him have not been paid in full."], "id": "eb172115-559c-4bd0-8ec9-54e59dcec148", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Section 1194.2, subdivision (a) provides: \"In any action under Section ... 1194, or 1197.1 to recover wages because of the payment of a wage less than the fixed by an order of the [Industrial Welfare Commission] or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.\""], "id": "a2d3906b-b003-4deb-9329-40c0977e40db", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["[petitioner], that the cost[s] of these proceedings [are] $3,595.68. Let me require\u2014 continue to require that [petitioner] pay that amount as cost[s] of these proceedings. Let me indicate that [petitioner], as I\u2019ve indicated, has a GED certificate, that he has some work history when he was not in custody. The [c]ourt believes he has no physical or mental disabilities. That would allow him to at least be capable of work at a level. Let me indicate that [petitioner]\u2014that 40 hours times $8.75 is $350.00 a week, multiplied by 4.3 is $1,505.00 gross. Let me indicate that a payment of $149.00 per month would be the amortization of those costs over a period of 24 months. So, the [c]ourt believes that [petitioner] is, in fact, capable of paying that amount over that two-year period and the [c]ourt will grant judgement against [petitioner] in favor of the State of West Virginia for the court costs in these matters and require that he pay those amounts over two years from his ultimate release from incarceration."], "id": "82a530d5-0dd5-4057-b4a6-8aaead83db96", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["We explained in part III.B, ante , that the DAA cannot be liable for section 510, subdivision (a) overtime compensation when the DAA is an employee's joint employer with another entity. Further, neither of the two cases that we cited in Morales in support of our decision to remand the matter to permit the plaintiffs to amend their complaint to attempt to state a claim pursuant to the joint employment doctrine- Bonnette v. California Health & Welfare Agency (9th Cir. 1983) 704 F.2d 1465 ( Bonnette ) and Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 955, 153 Cal.Rptr.3d 315 ( Guerrero )-supports application of the doctrine in this context. Specifically, neither Bonnette nor Guerrero applied the joint employment doctrine to a public employer to require that the employer comply with a law that, as in this case, exempts its employees from the relevant law. Rather, in both cases, courts concluded that the public entity could be liable as a joint employer ( Bonnette , supra , at pp. 1469-1470 ; Guerrero , supra , at p. 955, 153 Cal.Rptr.3d 315 ), where the relevant public entity was not exempt from the relevant law. (See Bonnette , at p. 1472 [concluding that \"the tenth amendment is not a bar to the application of the FLSA's provisions\"]; Guerrero , at p. 955, 153 Cal.Rptr.3d 315 [interpreting wage order and stating \"IWC did not intend to exempt public agencies or political subdivisions generally from [wage order's] provisions\"].) Further, plaintiffs have not cited-in this case or in Morales -and our own research has not uncovered, any case in which a court has applied the joint employment doctrine in such an unorthodox manner. Under these circumstances, to reverse the trial court's ruling and permit the plaintiffs' action to proceed would constitute \"a manifest misapplication of existing principles resulting in substantial injustice,\" ( Morohoshi , supra , 34 Cal.4th at pp. 491-492, 20 Cal.Rptr.3d 890, 100 P.3d 433 [outlining unjust decision exception to law-of-the-case doctrine] )."], "id": "e86c4d7c-7a2e-4adb-93ab-7cdfa91a3479", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Israel Hernandez and Larry Michael Sharp brought a class action, on behalf of all Pacific Bell premises technicians. The complaint alleged plaintiffs and the class were not paid for all the time they were under Pacific Bell's control, because they were not paid for the time they were transporting equipment and tools in a company vehicle to and from the first and last jobs and for the time required to safeguard the equipment and tools. The complaint stated three causes of action--failure to pay the , failure to pay wages timely, and unfair business practices--all based on the failure to pay for the transporting time. The court certified the class except for the safeguarding equipment claim."], "id": "01d92038-213b-43bd-aeb3-ddd96c544063", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs claim defendant's piece-rate formulas failed to separately compensate drivers for \"nonproductive time,\" and this violated the requirement that employees be compensated for all hours worked at either or the agreed contractual rate. They contend there is a common question regarding \"whether [defendant] is required by California law to pay drivers separately for tasks not directly compensated by the piece rate,\" and this \"legal question can be answered on a class wide basis by analyzing [section] 226.2, the Wage Order and case law.\""], "id": "df90a396-8a66-4c47-a328-7a00a28c95a5", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["After ruling that massage therapy, regardless of where it is performed, does not constitute \u201cdomestic service\u201d (id.), the court found that plaintiff\u2019s performance of some non-domestic services \u201cdoes not necessitate that all of her work be treated as non-exempt.\u201d (Id.) The court first found that the so-called \u201cdefault rule\u201d under the FLSA (29 CFR 780.11), which provides that if an employee in the same workweek performs both exempt and nonexempt work under the FLSA, then he is considered nonexempt, was inapplicable. While the default rule utilized the generic term \u201cemployee,\u201d the court found that since it was included within part 780, which pertains only to *409employees engaged in agricultural work and work incidental thereto, it was inapplicable to domestic workers. Therefore, there was \"no regulatory basis on which to deem a workweek that otherwise falls within the domestic services exemption non-exempt because of the performance of some non-exempt work.\u201d (848 F Supp 2d at 443; see also 29 CFR 780.0 [\u201cPurpose of interpretative bulletins in this part,\u201d which limits that section\u2019s meaning and applicability to the exemption of \u201ccertain employees from the or overtime pay requirements . . . when employed in agriculture or in certain related activities . . . with respect to agricultural or horticultural commodities\u201d].)"], "id": "ea080a8b-52aa-4729-b8d0-92071d25aebe", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Finding that a sound basic education encompasses preparation for employment begs the question: what level of employment? The Court of Appeals 1995 opinion does not explicitly address this issue. It is reasonable to assume that the Court of Appeals did not intend that the City\u2019s high school graduates need only be prepared for low-level jobs paying the . On the other hand, the Court\u2019s use of the \u201cminimally adequate\u201d standard indicates that a sound basic education does not require that most of the City\u2019s public school graduates be accepted into elite four-year colleges and universities in preparation for lucrative careers. Some middle ground between these two extremes comports with the Court of Appeals\u2019 emphasis on preparation for productive citizenship and its eschewal of a state of the art standard."], "id": "66ecfc84-7586-4da2-89d2-96bedd1c39c7", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Section 218.5's two-way fee shifting provision is in contrast to the one-way fee shifting provision of section 1194. \"[S]ection 1194 provides that employees who prevail in an action for any unpaid 'legal or ... legal overtime compensation' are entitled to recover attorney's fees.\" (Kirby, supra, 53 Cal.4th at p. 1248, 140 Cal.Rptr.3d 173, 274 P.3d 1160.) Subdivision (b) of section 218.5 states that section 218.5\"does not apply to any cause of action for which attorney's fees are recoverable under Section 1194.\" Thus, \"[p]revailing employers cannot obtain attorney's fees under section 218.5... if the employees could have obtained such fees under section 1194 had they prevailed.\" (Kirby, supra, at p. 1251, 140 Cal.Rptr.3d 173, 274 P.3d 1160.)"], "id": "1f101c48-7f29-47d7-8903-a3d7020f7bb0", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In Gonzalez , automotive service technicians were paid piece-rate compensation based on the completion of repair tasks. The plaintiffs in Gonzalez , a class of former technicians who had worked for the defendant employer, claimed that they should be paid a separate hourly for time spent during their workshifts waiting for vehicles to repair and *182performing other nonrepair tasks directed by the employer, even though the employer supplemented the technicians' compensation at the end of the pay period to cover any shortfall between the piece-rate compensation and minimum wage for all hours worked. ( Gonzalez , supra , 215 Cal.App.4th at p. 40, 155 Cal.Rptr.3d 18.) The Court of Appeal concluded the plaintiffs' legal position was correct and held that they were \"entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer during their workshifts....\" ( Id . at pp. 40-41, 155 Cal.Rptr.3d 18.) As explained in Gonzalez , even though the employer in that case paid its employees on a piece-rate basis rather than hourly, the employees' nonproductive work time that was not part of the compensated piece-rate activity of repairing cars had to be separately compensated to satisfy minimum wage law, since the minimum wage law applied to each hour worked.3 Accordingly, the employer's practice of averaging hourly wages at the end of the pay period (by dividing total *1005compensation paid by the total hours worked over the course of the pay period) was insufficient to show compliance with the law. ( Id . at pp. 40-42, 48-49, 155 Cal.Rptr.3d 18.)"], "id": "407a7fee-1ceb-47f7-987d-e70082d6cca1", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In so holding, the Gonzalez court expressly relied on the reasoning of Armenta v. Osmose, Inc . (2005) 135 Cal.App.4th 314, 317-324, 37 Cal.Rptr.3d 460 ( Armenta ). ( Gonzalez , supra , 215 Cal.App.4th at pp. 40, 45-53, 155 Cal.Rptr.3d 18.) In Armenta , where an employer paid its employees hourly wages for specified \"productive\" work time only, and did not pay the employees for other \"nonproductive\" work time, the appellate court concluded that the employer's obligation could not be met by averaging wages over the total hours worked in the pay period; rather, the California minimum wage law attached to each hour worked by the employees, including the unpaid nonproductive hours. ( Armenta , supra , 135 Cal.App.4th at pp. 317, 321-324, 37 Cal.Rptr.3d 460.) In finding Armenta's analysis of California's minimum wage law to be persuasive, Gonzalez rejected the employer's argument that Armenta , as an hourly wage case, should not be applied to workers who are compensated on a piece-rate basis. Instead, Gonzalez directly applied Armenta to the piece-rate compensation system before it, following Armenta's rule that averaging an employee's wages for all hours spent on the job during the pay period (where the employee's work time included both paid/productive hours and unpaid/nonproductive hours) would not suffice to show compliance with the minimum wage law for each hour worked. ( Gonzalez , supra , 215 Cal.App.4th at pp. 40-41, 48-49, 155 Cal.Rptr.3d 18, also citing Cardenas v. McLane FoodServices, Inc . (C.D.Cal. 2011) 796 F.Supp.2d 1246, 1252 [holding that \"a piece-rate formula *183that does not compensate directly for all time worked does not comply with California Labor Codes, even if, averaged out, it would pay at least minimum wage for all hours worked\"; see also Vaquero v. Stoneledge Furniture, LLC, supra, 9 Cal.App.5th at p. 110, 214 Cal.Rptr.3d 661 [noting \"[a]ll of the federal courts that have considered this issue of California law have reached a similar conclusion and have held employers must separately compensate employees paid by the piece for nonproductive work hours\"].)"], "id": "18d0e222-b8e8-4936-b8ba-0e76cd52a2ef", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs sought civil penalties under PAGA, which permits recovery in a representative action of any civil penalties that otherwise may be assessed for violations of the Labor Code. (\u00a7 2699.) Plaintiffs sought penalties for the meal period violations under section 558, and for the violations under section 1197.1. The trial court awarded penalties for the meal period violations, but found plaintiffs' claim for penalties under section 1197.1 \"fails because it is based on [plaintiffs'] invalid claim for failure to pay minimum wages.\" Because we have found the trial court erred in finding no minimum wages were owed for time worked during the shortened meal periods, it necessarily follows that the trial court also erred in rejecting *659plaintiffs' claim for civil penalties for the payment of \"a wage less than the minimum....\" (\u00a7 1197.1, subd. (a).)"], "id": "c60e5bf8-6d07-40b4-86d2-2e34dc382c44", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["3. Trial De Novo in Superior Court Gantman\u2019s claim for unpaid wages was tried before the court on December 13 and 14, 2017. Both sides were represented by counsel during trial. Gantman, Stephan and three largely peripheral witnesses testified, and 50 documents from the joint exhibit list were admitted into evidence. The parties then submitted posttrial briefs. After taking the matter under submission, the court on March 21, 2018 issued its ruling in favor of SST. The court found Gantman was an employee of SST; the parties agreed Gantman would be paid for work he performed on behalf of SST\u2019s clients, but there was no agreement on the amount Gantman would be paid for that work; there also was no agreement as to what, if anything, Gantman would be paid for activities other than performing accounting work for clients; and there was insufficient proof that any particular activities other than performing accounting work for clients constituted part of Gantman\u2019s employment by SST. (The court explained those other activities may have been undertaken in anticipation of Gantman\u2019s potential acquisition of an interest in SST or for Gantman\u2019s own personal professional development.) With respect to Gantman\u2019s compensation the court found the hourly rate by which Gantman\u2019s pay would be calculated \u201cwas an ongoing subject of discussion (written and oral)\u201d between Gantman and Stephan. Although Gantman sought to be paid $200 per hour, \u201cdefendant . . . never entered into such an agreement.\u201d Accordingly, the court concluded, Gantman was entitled to be paid only at the applicable at the time ($9 per hour): \u201cSince there was no agreed-upon rate of pay, the $9 minimum wage applied.\u201d Putting aside whether SST\u2019s"], "id": "b2e7e962-4757-456e-99f6-b971b139f0a6", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Lastly, all Plaintiffs have alleged that Defendants violated various provisions of the FLSA, DCMPWA, DCWPCL and ASSLA. Both the FLSA and DCMWA require employers to pay employees a certain and to compensate them at least one and one-half times an employee\u2019s regular hourly rate for hours worked over forty hours per week. See 29 U.S.C. \u00a7\u00a7 206(a)(1), 207(a)(1); D.C. Code \u00a7 32-1003(a)(5)(A)()-(v), (c). The DCWPCL requires employers to pay a discharged employee their wages \u201cnot later than the working day following such discharge.\u201d D.C. Code \u00a7 32-1303(1). Lastly, the ASSLA requires employers to provide employees with paid safe and sick leave. D.C. Code \u00a7 32-531.02. Plaintiffs have pleaded that"], "id": "5606b6d3-1b05-4a68-b857-a7a336f886d6", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In an attempt to comply with requirements, the employer kept track of all the time a technician spent at the work site, whether or not the technician was working on a repair order, and it divided the employee's total earnings over the pay period by the total hours worked to ensure that the employee's effective hourly rate was at least at the minimum wage. ( Gonzalez, supra, 215 Cal.App.4th at pp. 41-42, 155 Cal.Rptr.3d 18.) If the effective hourly rate was less than the minimum wage, the employer supplemented the technician's pay to reach an effective average hourly rate that equaled the minimum wage. ( Ibid . ) Applying the same analysis used in Armenta , Gonzalez concluded that under Wage Order 4 an \"employer's method of averaging employees' hours worked in a given pay period in order to compute its minimum wage obligations violated the minimum wage law.\" ( Id . at p. 46, 155 Cal.Rptr.3d 18.) Technicians \"were entitled to separate hourly compensation for time spent waiting for repair work or performing other non-repair tasks directed by the employer during their work shifts.\" ( Id . at. pp. 40-41, 155 Cal.Rptr.3d 18, italics added.) Gonzalez explained that the analysis in Armenta applied regardless of the fact that the employer \"compensated its technicians on a piece-rate basis\" rather than based on the payment of an hourly wage. ( Id . at p. 49, 155 Cal.Rptr.3d 18.)10"], "id": "9bad8504-d6d2-4ae1-be03-349216c4df23", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The City also misinterprets the Federal law regarding food stamp recipients. It argues that Federal law requires that the food stamp grant be divided by the . However, the provision relied on by the City provides only that the minimum wage is a floor, or the lowest amount by which the food stamp allowance may be divided to reach the maximum hours of work. (See, 7 USC \u00a7 2029 [b] [2] [A] [ii].) Thus, there is no Federal law or regulation that preempts New York State statutory law."], "id": "91872308-7ebe-465c-868c-4c585e0677e9", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Moreover, there are common questions relating to the relevant law governing the value of hours that the WEP participants work. (See, CPLR 901 [a] [2].) In particular, the City is wrong that class certification is inappropriate because different statutes and regulations apply to ADC and HR recipients. The issues pressed by plaintiffs apply to both groups and, in its administration of WEP, the City generally treats both groups in the same manner. For example, the City policy manuals for WEP apply to ADC and HR recipients, and the City uses the Federal to calculate the WEP hours of both groups."], "id": "b0e1b2ff-72e1-4683-b4b7-7cb6a7f994bb", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Specifically, 12 NYCRR 142-2.2 states that, where an FLSA exemption applies, i.e., where an employee is not entitled to IV2 times his regular hourly rate, an employee is still entitled to \u201covertime at a wage rate of one and one-half times the basic minimum hourly rate\u201d (12 NYCRR 142-2.2; see Manliguez v Joseph, 226 F Supp 2d 377, 389 [ED NY 2002] [holding that an exempt employee under the FLSA was still entitled to IV2 times the New York State rate under 12 NYCRR 142-2.2]; see also Ballard v Community Home Care Referral Serv., 264 AD2d 747 [2d Dept 1999] [interpreting 12 NYCRR 142-2.2 and a FLSA exemption for domestic employees together to hold that a home health care aide was exempt under the FLSA and not entitled to overtime at IV2 times her regular rate])."], "id": "81a37dd8-d49b-48fb-92bc-a10e16d1eb3a", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Further, regardless of whether the State Traffic Commission might fix speed by \u201c order, rule or regulation \u201d the State Traffic Commission is still required to file such \u201c order, rule or regu*672lation \u201d with the Department of State before it becomes effective. This is so even though the constitutional provision requires filing of \u201c rules or regulations \u201d, for the reason that our appellate courts have held that an order of a State department, board, bureau, authority or commission comes within the purview of the constitutional provision requiring filing of \u20181 rules and regulations \u201d. See Wirtz v. Lobello (1 A D 2d 416) wherein the Appellate Division, Fourth Department held that a \u201c order \u201d of the Industrial Commissioner of the State of New York came within the contemplation of the words \u201c rules and regulations \u201d as the same is used in section 8 of article IV of the New York State Constitution."], "id": "720f31cd-3655-4bb2-b032-fb0dffdeb9b4", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In Martinez v. Combs (2010) 49 Cal.4th 35, 64, 109 Cal.Rptr.3d 514, 231 P.3d 259, the Supreme Court looked to the definitions contained within wage orders and held that wage orders encompass three alternative definitions of \"employ.\" Under the broadest (relevant here) \" '[e]mploy' \" means to \"suffer, or permit to work.\" ( Cal. Code Regs., tit. 8, \u00a7 11090, subd. 2(D) ; Martinez, at pp. 57-58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) This definition derives from child labor laws, which sought to extend beyond the common law master-servant relationship and target \"the defendant's failure to exercise reasonable care to prevent child labor from occurring.\" ( Martinez, at p. 58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) Applied to modern-day wage and hour claims, \"[a] proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the , clearly suffers or permits that work by failing to prevent it, while having the power to do so.\" ( Id. at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259.)"], "id": "4ef9583f-82f5-4d3d-b598-0d26718926f1", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs (other than Tubac) claim that they are entitled to $8,837.60 in unpaid regular and overtime wages.\u201d See id. at 7. The FLSA requires employers to pay non-exempt employees at least $7.25 per hour, 29 U.S.C. \u00a7 206(a)(1). Under the FLSA, state and local laws may set a higher than that provided by the Act, which becomes the operative FLSA minimum wage. /d. \u00a7 218(a). Accordingly, the relevant minimum standard is set by DCMWA\u2019s hourly wage rate, which from July 1, 2017 to July 1, 2020 increased in annual increments to $12.50, $13.25, $14.00, and $15.00, respectively. See D.C. Code \u00a7 32-1003(a)(5)(A)()\u2014-(v).. In addition to its requirement of payment at a minimum regular hourly rate, the FLSA requires employers to pay at least one and one-half times an employee\u2019s regular hourly rate for any hours worked over forty hours per week. 29 U.S.C. \u00a7 207(a)(1). The DCMWA similarly provides that employees be compensated \u201cat a rate not less than 1 1/2 times the regular rate at which the employee is employed\u201d for any hours worked beyond the 40-hour statutory maximum work week. D.C. Code \u00a7 32-1003(c). The DCWPCL also applies, as it provides for damages equal to an employee\u2019s unpaid wages. See Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 8, 29-30 (D.D.C. 2010) (Ventura IT\u2019); D.C. Code \u00a7 32-1303."], "id": "1d1cf964-59b4-4307-8013-c74ab8fa744a", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["As pointed out by the City, it is true the Supreme Court has countenanced procedural laws encroaching on local authority more readily than substantive measures like the law at issue here. (See Seal Beach, supra , 36 Cal.3d at pp. 600-601 & fn. 11, 205 Cal.Rptr. 794, 685 P.2d 1145 ; Baggett, supra , 32 Cal.3d at pp. 139-140, 185 Cal.Rptr. 232, 649 P.2d 874 ; Professional Fire Fighters, supra , 60 Cal.2d at pp. 294-295, 32 Cal.Rptr. 830, 384 P.2d 158.) However, the distinction between substantive and procedural measures is not determinative, and substantive laws displacing local authority over municipal affairs have been upheld by the courts. (See Healy, supra , 41 Cal.2d at p. 122, 258 P.2d 1 [upholding Legislature's \"complete system of workmen's compensation which obviously is a subject of state-wide concern\"]; Jauregui, supra , 226 Cal.App.4th at pp. 788, 799-801, 172 Cal.Rptr.3d 333 [upholding application of California Voting Rights Act of 2001 to enjoin certification of at-large city council election results on basis of statewide concerns of race-based vote dilution and local election integrity].)"], "id": "090ce9c3-35bd-4b9b-b087-44c7ea4b0a5d", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["In contrast, in both of the statutes at issue here, in the language of the Reynolds opinion, the Legislature did \"manifest[ ] its intent more clearly than by mere silence.\" (See Reynolds , supra , 36 Cal.4th at p. 1088, 32 Cal.Rptr.3d 483, 116 P.3d 1162.) With regard to violations of the state's overtime laws, \"[a ]ny ... person acting on behalf of an employer who violates, or causes to be violated\" such laws \"shall be subject to a civil penalty\" as set forth elsewhere in the statute. ( \u00a7 558(a), italics added.) With regard to violations of the state's laws, \"[a ]ny ... person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee\" less than the minimum wage \"shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203\" as set forth elsewhere in the statute. ( \u00a7 1197.1, subd. (a), italics added.) Thus, for violations of overtime laws, the \"other person\" liable for the civil penalties must have been \"acting on behalf of\" the employer ( \u00a7 558(a) ); whereas for violations of minimum wage laws, there is no requirement that the \"other person\" liable for the civil penalties have any relationship to the employer, so long as that person pays or causes to be paid less than the prescribed minimum wage ( \u00a7 1197.1(a) )."], "id": "12d9fbc8-654c-4810-afbd-bcaa30e84db1", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["*257\u201cThis language (and the equivalent language in the other contracts) is clear. Without limitation it conveys all of plaintiffs\u2019 rights in these recordings to the [r]ecord [c]ompanies, including the right to exploit the recordings by any method whatsoever, whether known at the time or \u2018hereafter to become known.\u2019 \u201d (Chambers, 123 F Supp 2d at 200.) Plaintiffs claim that, somehow, the fact that the recording contracts here were subject to AFTRA union contracts or \u201cphono codes\u201d distinguishes their situation from that of the Ronettes in Greenfield is not persuasive. The phono codes are a series of fair practices agreements between AFTRA and the record companies which govern and fee compensation and terms, including minimal payments for benefits to welfare funds and conditions for the engagement of artists making phonograph recordings. They do not affect the broader contractual provisions that convey the artists\u2019 property rights to the record companies. In fact, the language of some of the AFTRA agreements or the phono codes specifically permits copying of master recordings on \u201cmicrogroove recordings or tape or any other similar or dissimilar device now or hereafter devised.\u201d (1962 AFTRA contract, provision 8; see also Chambers, 123 F Supp 2d at 201 [rejecting the claim that AFTRA contracts affect the recording contracts; thus the breach of contract claims must be dismissed].)"], "id": "4647e7c0-94a1-4c36-96d0-2d607032be83", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["I think that the requirements of the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, \u00a7 201 et seq.) may not be circumvented by a mere recital in the release that the employee releases the employer of liability for sums due under the statute in order to \u201c induce \u201d the latter \u201c to enter into a contract *346with Local 32-K \u201d governing future labor relations between the employer and his employees. This is certainly no better consideration than a cash payment of less than the due to the employee. Nothing less than full payment of such minimum wage, no other consideration, will satisfy the requirements of the statute."], "id": "fb5f877c-2e51-4648-96e9-695043f0eab7", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Prior to 2002, there was little doubt that the Fair Labor Standards Act (29 USC \u00a7\u00a7 201-219 [FLSA]), and its New York equivalent (Labor Law \u00a7\u00a7 650-665), would have required the defendant to pay at least , regardless of the plaintiffs immigration status, and that failure to pay any wage was a failure to pay minimum wage. (Patel v Quality Inn S., 846d 700 [11th Cir 1988].) In 2002, however, the United States Supreme Court made the issue somewhat more complicated."], "id": "1e729d21-8abf-42f7-b156-2504a3f7956d", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Thus, some debate does remain about compensation of undocumented workers for hours they actually worked, especially when the workers used false documents to procure the employment. However, no court has fully addressed the issue of unpaid wages for work that undocumented aliens have performed when the undocumented aliens have also tendered false documents. In dicta, Ulloa stated, \u201cThe court also notes in passing that, if there had been proof in this case that the plaintiff had obtained his employment by tendering false documents (activity that is explicitly unlawful under IRCA), Hoffman would require that the wage claim be disallowed in its entirety.\u201d (Id.) But, because Judge Howard S. Miller of the Nassau District Court made that remark, this court is in no way obliged to concur. Moreover, the Appellate Term, Second Department, has already discounted Ulloa-. \u201cWe find unpersuasive the holding of Ulloa . . . that no award above is permissible because of the \u2018illegality\u2019 of the employment agreements involved, since there is no basis for any such limitation whether the theory of recovery is Labor Law \u00a7 198 or under common-law contract.\u201d (Garcia, 11 Misc 3d at 3.) This court therefore prefers to extrapolate from federal and New York State public policy (see A and B, supra) a *190basis for undocumented workers to claim unpaid wages for work they have already performed, even if like plaintiffs here they allegedly proffered fraudulent documents to obtain employment."], "id": "6dfc144a-fccd-4d3d-89f2-d153bc32c1d6", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The court refused to appoint either Mother or Father as a possessory conservator of the children because it found that \"such appointment would not be in the best interest of the children.\" The trial court entered additional orders with respect to Mother. It required her to \"complete a psychological evaluation and follow any and all recommendations\"; to \"maintain legal and verifiable employment\"; to \"refrain from engaging in any illegal criminal activities\"; to \"remain in contact or meet with caseworker at least one time per month to provide an update on services, child well-being, etc.\" throughout the time DFPS remained permanent managing conservator of the children; if available, to \"complete a special needs parenting class in Spanish that is at least six to eight weeks in length,\" or to \"identify and participate in a volunteer program through a nonprofit organization and/or medical facility aimed at assisting and/or caring for special needs children,\" and to complete twenty-five hours of volunteer service with that organization, with either program to be completed by July 15, 2016; to \"attend all non-emergency medical visits for her children,\" including \"medical appointments with any specialists and routine doctor visits\"; to \"obtain, pay for and maintain appropriate housing\" and to provide all pertinent information necessary to assess its appropriateness to her caseworker as provided in the order; to \"continue participating in family therapy sessions until successfully discharged by her therapist\"; to \"attend any and all scheduled visitations with the subject children\"; to \"develop a support system of at least three individuals\"; to \"contact the children at least one time per week on the phone number provided by the foster parents\"; and to \"provide child support according to the guidelines set forth in the Texas Family Code to the children.\" Each of these provisions contained detailed instructions for its performance."], "id": "bd607d53-099c-40c6-a75a-745cf6eb146b", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Miner Liner Plate Tunnel $2.82 Miners Helper Liner Plate Tunnel 2.62% Mucker Liner Plate Tunnel 2.62% Tunnel Laborer Liner Plate Tunnel 2.62% Electrician Liner Plate Tunnel 3.25 and specifically stating that these classifications and rates superseded those established by the Industrial Commissioner and contained in the bid proposal and requiring that the new schedule form a part of the specifications for the work prior to the advertisement for bids and pointing\u2019 out the penalties for failure to comply."], "id": "d588a461-adfd-4c3f-98ea-9eee9e36c374", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["For nearly a century, California law has guaranteed wage and hour protection to employees and class actions, as fashioned by the Legislature, provide a practical vehicle for vindicating those rights where common issues *1247of law and fact predominate. ( Brinker Restaurant Corp. v. Superior Court, supra , 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 ; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Code of Civil Procedure section 382 authorizes class actions \"when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ....\" Indeed, \"[t]his state's public policy supports the use of class actions to enforce California's and overtime laws for the benefit of workers.\" ( Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1141, 150 Cal.Rptr.3d 268.) The parties seeking class certification have the burden of establishing a well-defined community of interest among class members. ( Sav-on Drug Stores, Inc. v. Superior Court, supra , at p. 326, 17 Cal.Rptr.3d 906, 96 P.3d 194.)"], "id": "23317d2d-62d3-4fcf-b122-9504afe1326e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["\"(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the ."], "id": "0d9040cf-780c-492d-b4c1-0889319aad20", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["The Legislature under AB 1513 codified the Gonzalez / Bluford decisions requiring employers to separately compensate piece-rate workers for rest/NP time periods at or above . As explained by the Legislative Counsel's Digest: \"This bill would require the itemized statement provided to employees compensated on a piece-rate basis to also separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, as specified, the rate of compensation, and the gross wages paid for that time during the pay period. The bill would require those employees to be compensated for rest and *13recovery periods and other nonproductive time at or above specified minimum hourly rates, separately from any piece-rate compensation.\" (Legis. Counsel's Dig., Assem. Bill No. 1513 (2015-2016 Reg. Sess.) Stats. 2015, Summary Dig., p. 5609.) In addition, the new legislation \"until January 1, 2021, would provide that an employer shall have an affirmative defense to any claim or cause of action for recovery of wages, damages, liquidated damages, statutory penalties, or civil penalties based solely on the employer's failure to timely pay the employee the compensation due for rest and recovery periods and other nonproductive time for time periods prior to and including December 31, 2015, if, by no later than December 15, 2016, the employer complies with specified requirements, subject to specified exceptions.\" (Ibid ; see also Fowler Packing Company, Inc. v. Lanier (9th Cir. 2016) 844 F.3d 809, 812 [\"[t]o protect California businesses from unforeseen liability arising from Gonzalez and Bluford , ... AB 1513 also created a 'safe harbor' that provided employers with an affirmative defense against claims alleging failure to pay previously for nonproductive work time ... so long as they pay, no later than December 15, 2016, any minimum wage deficiencies occurring between July 1, 2012, and December 31, 2015\"].)"], "id": "063e83ac-e205-45d3-8d2e-210c34765877", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Likewise, the IWC's definition of \"Employer\" in wage order No. 4-2001, set forth at footnote 8, ante , is not helpful. First, the parties do not dispute the identity of Plaintiffs' employer; it was Pama, a corporation. (See fn. 4, ante .) Second, Pedrazzani's liability for the civil penalties is not based on a finding that he was Plaintiffs' \"employer,\" but rather, under the specific statutes at issue ( \u00a7\u00a7 558(a), 1197.1(a) ), that he was a person other than the employer who violated or caused to be violated certain overtime pay and laws. Finally, the issue on appeal under the applicable statutes has nothing to do with identifying the employer; the issue is whether someone other than the employer can be liable for these civil penalties."], "id": "28ed1994-433c-4b13-945c-a4dccf5879f5", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs are organizations that claim to represent thousands of California employers in the agricultural and construction industries. Many of plaintiffs' member employers pay their employees on a piece-rate basis because that method of compensation creates incentives for higher productivity. Under a piece-rate system, employees are not paid by the hour, but rather are compensated based on activities, tasks, or units of production completed (see Vaquero v. Stoneledge Furniture, LLC (2017) 9 Cal.App.5th 98, 109, fn. 7, 214 Cal.Rptr.3d 661 ; Jackpot Harvesting Co ., Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 135, 237 Cal.Rptr.3d 1 ( Jackpot Harvesting ) ), such as the quantity of produce picked, the number of yards of carpet installed, or the number of miles driven. Plaintiffs point out there are numerous studies showing that piece-rate systems which reward employee productivity generally lead to higher pay for employees, significantly increased productivity, and cost savings to consumers. Plaintiffs allege that their \" 'members' employees regularly earn through piece-rate compensation sums that far exceed or what they could expect to earn through hourly compensation.\" California has long recognized that wages may be paid on a piece-rate basis. (\u00a7 200 [defining \"wages\" as including all amounts for labor performed by employees \"whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation\"].)"], "id": "f9ff4bde-8c94-4fd2-98f9-c7f5fb0a246e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiff Tubac claims that he is entitled to $4,259.00 in unpaid minimum wages. See Pls.\u2019 Mot. Default J. at 8. As discussed in the previous section, the FLSA and the DCMWA each require employers to pay non-exempt employees a certain minimum regular hourly rate. See 29 U.S.C. \u00a7 206(a)(1); D.C. Code \u00a7 32-1003(a)(5)(A)(v). To reiterate, under the FLSA, state and local laws may set a higher than that provided by the Act, which becomes the operative FLSA minimum wage. /d. \u00a7 218(a). Accordingly, the relevant minimum standard at all relevant times was set by DCMWA\u2019s hourly wage rate, which from July 1, 2017 to July 1, 2020 increased in annual increments to $12.50, $13.25, $14.00, and $15.00, respectively. See D.C. Code \u00a7 32-1003(a)(5)(A)Gi)-(V)."], "id": "a498829d-f451-44fd-9df7-5f40137fd95e", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Finally, any doubt in this area \" 'must be resolved in favor of the legislative authority of the state.' \" ( City of Vista, supra , 54 Cal.4th at p. 582, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; accord, California Fed. Savings, supra , 54 Cal.3d at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916 [\"we defer to legislative estimates regarding the significance of a given problem and the responsive measures that should be taken toward its resolution\"].) Considered in light of the Legislature's goal of ensuring workers earn a sufficient wage to provide the necessities of life and raise them above the poverty level, we *576conclude the law addresses a statewide concern \"that 'justif[ies]' the state's interference in what would otherwise be a merely local affair.\" ( City of Vista , at p. 560, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; accord, California Fed. Savings , at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.)"], "id": "856d1593-950e-4aa9-949b-fdc2ab7723bf", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Plaintiffs filed their original class action complaint in January 2009. Plaintiffs' second amended complaint, the operative complaint at trial, named UT and various other entities as defendants and included causes of action under the Labor Code for (1) failure to pay and overtime wages; (2) failure to provide meal breaks or compensation in lieu thereof; (3) failure to provide rest periods or compensation in lieu thereof; (4) failure to reimburse for reasonable business expenses ( \u00a7 2802 );6 (5) unlawful deductions from wages; (6) failure to provide itemized wage statements; and (7)"], "id": "d20bfe14-80e8-4c66-95b7-411afd820158", "sub_label": "US_Terminology"} {"obj_label": "minimum wage", "legal_topic": "Employment Law", "masked_sentences": ["Indeed, a prevailing wage law has a greater impact on local control than the law because by requiring payment of wages prevailing in an industry locally, the law is \"effectively a salary setting statute.\" ( San Francisco Labor Council , supra , 26 Cal.3d at p. 790, 163 Cal.Rptr. 460, 608 P.2d 277.) By contrast, the minimum wage requirement does not effectively determine the wage for all employment relationships it regulates, but rather, sets as a floor the lowest permissible hourly rate of compensation.10 Thus, the impact of the minimum wage law is consistent with the Supreme Court's conclusion \"the Legislature may regulate as to matters of statewide concern even if the regulation impinges 'to a limited extent' \" on local control of municipal affairs. ( County of Riverside, supra , 30 Cal.4th at p. 287, 132 Cal.Rptr.2d 713, 66 P.3d 718 ; accord, Professional Fire Fighters, supra , 60 Cal.2d at pp. 294-295, 32 Cal.Rptr. 830, 384 P.2d 158.)"], "id": "f4713e8c-3b5a-4ab6-acf7-f505be2ca3d2", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["The court further noted that the policy favoring delegation in the case before it was bolstered by the same factors it considered persuasive in Privette . It explained: \" Privette noted that the cost of workers' compensation insurance for an independent contractor's employees is presumably included in the contract price the hirer pays to the contractor, and therefore the hirer indirectly pays for that insurance. ( Privette , at p. 699, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Privette further noted that workers' compensation guarantees compensation for injured workers, 'spreads the risk created by the performance of dangerous work to those who ... benefit from such work,' and 'encourages .' ( Id . at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Also, in light of the limitation that the workers' compensation law places on the independent contractor's liability *1090shielding the latter from tort liability), it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor-damages that would be unavailable to employees who did not happen to work for a hired contractor. This inequity would be even greater when, as is true here, the independent contractor had sole control over the means of performing the work. [Citation.] In sum, we see no reason to limit our holding in Privette simply because the tort law duty, if any, that the hirer owes happens to be one based on a statute or regulation.\" ( SeaBright , supra , 52 Cal.4th at p. 603, 129 Cal.Rptr.3d 601, 258 P.3d 737.)"], "id": "dc73eee9-8770-4ac5-bca9-1679c3d7bc41", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": ["\"The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law\" and is therefore subject to our de novo review. ( Carmona v. Division of (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161 ( Carmona ).) Accordingly, while an administrative agency's interpretation of its own regulation is entitled to deference appropriate to the circumstances, \"the ultimate resolution of such legal questions rests with the courts.\" ( Ibid. ; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 11-13, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ( Yamaha ) [An agency's interpretation of a regulation is contextual and is only one among several tools available to the court: \"Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth.\"].) When interpreting an administrative regulation, we follow the same rules of construction that apply to statutes. ( County of Sacramento v. State Water Resources Control Bd. (2007) 153 Cal.App.4th 1579, 1586, 64 Cal.Rptr.3d 302 ( Sacramento County ).) Thus, our fundamental objective is to ascertain and effectuate the intent of the agency issuing the *101regulation. ( New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784, 795, 201 Cal.Rptr.3d 652 ( New Cingular ); see also DeLa Torre v. California Horse Racing Bd. (2017) 7 Cal.App.5th 1058, 1066, 213 Cal.Rptr.3d 255 ( De La Torre ); Katz v. Los Gatos-Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 54, 11 Cal.Rptr.3d 546 ( Katz ).)"], "id": "cc4624a7-2944-4bf4-b6f3-26b9826a298b", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": [". UNR Industries, Inc. (filed in 1982), Johns-Manville Co. (1982), Ama-tex Corp. (1982), Waterman Steamship Corp. (1983), Wallace & Gale Co. (1984), Forty-Eight Insulations, Inc. (1985), PACOR (1986), Prudential Lines, Inc. (1986), Standard Insulations, Inc. (1986), U.S. Lines (1986), Nicolet, Inc. (1987), Gatke Corp. (1987), Todd Shipyards (1987), Chemetron Corp. (1988), Raytech (1989), Delaware Insulations (1989), Celotex Corp. (1990), Hillsbor-ough Holdings (1990), National Gypsum Co. (1990), Standard Asbestos Mfg. & Insul. (1990), Eagle-Picher (1991), H.K. Porter Co. (1991), Cassiar Mines (1992), Kentile Floors (1992), Keene Corp. (1993), American Shipbuilding, Inc. (1993), Lykes Brothers Steamship (1995), Rock Wool Mfg. (1996), SGL Carbon (1998), M.H. Detrick (1998), Brunswick Fabricators (1998), Fuller-Austin Insul. (1998), Harmschfeger Corp. (1999), Joy Technologies (1999), Rutland Fire & Clay (1999), Babcock & Wilcox (2000), Pittsburgh Coming (2000), Bums & Roe Enterprises (2000), E.J. Bartells (2000), Owens Coming (2000) , Armstrong World Industries (2000), G-l Holdings (GAF Corp.) (2001), W.R. Grace (2001), Skinner Engine Co. (2001), USG (US Gypsum) Corp. (2001) , Federal Mogul (2001), Eastco Corp. (2001), Washington Group Int\u2019l, Inc. (2001), Bethlehem Steel (2001), North American Refractories (NARCO) (2002), Kaiser Aluminum (2002), Plibrico Refractories (2002), Porter-Hayden (2002), American Club (2002), Huxley Development Corp. (2002), Harbison-Walker Refractories Co. (2002), Continental Producers Corp. (2002), A.P. Green Indus. (2002), Shook & Fletcher (2002), Atra Group, Inc. (Synkoloid) (2002), and ACandS, Inc. (2002)."], "id": "869e738b-03e8-4317-95f4-c6bedb75a182", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["In its 1993 decision in Privette , supra , 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, the California Supreme Court held that the peculiar risk doctrine did not apply to injured employees of independent contractors. Privette concerned a roofing contractor's employee who was injured when he fell off a ladder and was burned by hot tar. The employee sued the owner of the home he had been roofing, contending that the homeowner was liable for his injuries under the doctrine of peculiar risk. ( Id . at pp. 692-693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The Supreme Court held that while the homeowner would be liable to an \"innocent bystander\" ( id . at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721 ) injured by the independent contractor's negligence, he was not liable to the independent contractor's *600employee. The court explained: \"[T]he peculiar risk doctrine seeks to ensure that injuries caused by contracted work will not go uncompensated, that the risk of loss for such injuries is spread to the person who contracted for and thus primarily benefited from the contracted work, and that *1087adequate safety measures are taken to prevent injuries resulting from such work. [Citation.] But in the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk. It ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work; and it encourages .\" ( Ibid. ) Thus, the court concluded, \"when considered in light of the various goals that the workers' compensation statutes seek to achieve, [the conclusion] that peculiar risk liability should extend to the employees of the independent contractor, does not withstand scrutiny.\" ( Id . at pp. 701-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.)"], "id": "3b98c963-c6e7-40b0-9758-11fc3033a6bd", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": ["Although the agency's interpretation of a statute or ordinance is given deference by the court ( MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219, 130 Cal.Rptr.2d 564 ), and \"an administrative agency's interpretation of its own regulation ... deserves great weight [citation]\" ( Carmona v. Division of (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.), it is ultimately \" ' \"for the courts, not for administrative agencies, to lay down the governing principles of law.\" ' \" ( Garamendi v. Mission Ins. Co. (2005) 131 Cal.App.4th 30, 41, 31 Cal.Rptr.3d 395 ( Garamendi ).) \"Courts must ... independently judge the text of the statute, taking into account and respecting the agency's interpretation of its meaning, of course, whether embodied in a formal rule or less *354formal representation. Where the meaning and legal effect of a statute is the issue, an agency's interpretation is one among several tools available to the court.\" ( Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ( Yamaha Corp. ).)"], "id": "1b8583fc-1511-4e3c-8077-ee407cefe7ab", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["accidents, see id. at 914, the extent to which employees demand protective equipment, see Owens-Corning, 659 F.2d at 1289, and the obviousness of the hazard, see S&H Riggers, 659 F.2d at 1282\u2013 83. Our requirements for \u201cactual knowledge\u201d are illustrated in three decisions of our predecessor circuit. In Cotter & Co. v. Occu- pational Safety & Health Review Commission, our predecessor cir- cuit reversed an order of the Commission holding an employer li- able under section 1910.132(a) for failing to require employees to wear steel-toed shoes on a shipping and receiving dock. 598 F.2d at 912. There, the employer had a program through which employees could voluntarily buy steel-toed shoes, but the shoes were not re- quired in the workplace. Id. In the two years preceding the Admin- istration\u2019s inspection, \u201c[o]nly one injury . . . would have been pre- vented or mitigated by steel-toed shoes.\u201d Id. at 914. The court de- termined that the company did not have actual knowledge because it found \u201cno evidence in the record of a specific, confirmed knowledge on the employer\u2019s part regarding a hazard warranting a steel-toed shoe requirement.\u201d Id. at 915. The court also warned against \u201cthe folly of discouraging an employer, by expanding the scope of his liability beyond what it would otherwise be, from ex- horting employees to take every possible safety precaution in the development of a superior program.\u201d Id. In Owens-Corning Fiberglass Corp. v. Donovan, our prede- cessor circuit affirmed an order of the Commission holding an em- ployer liable for failing to require employees to wear gloves when USCA11 Case: 20-11789 Date Filed: 01/13/2022 Page: 10 of 15"], "id": "390ce696-de48-40ea-b21e-763057575efe", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": ["In September of 1974, the State commenced repair work on the Buffalo Skyway, a limited access highway which passes over a portion of the lots utilized by the claimants for their commercial parking operations. Shortly thereafter, the State Labor Department, Division of , ordered that a portion of what is designated by the Agreement as lot 3 be barricaded off to prevent the hazard that could ensue from falling debris. Subsequent to this order, a barricade was erected preventing usage of a portion of lot 3. Claimants contend that this barricade was erected on or about October 1, 1974 and remained in place until September 30, 1976, the date *831their contract with the State expired. Arguing that the barricade deprived them of the use of approximately 20 parking spaces during this period, the claimants filed a claim with this court on September 29, 1977, seeking compensation for a de facto, temporary, partial appropriation of an interest in land by the State."], "id": "c181c373-07ee-4ed7-a30c-518cd17a5299", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["HR Mobile supplied Double Diamond with several new human resources documents, including employee safety policy documents. HR Mobile requested Boretti, Inc., one of its vendors, to provide a form of injury and illness prevention plan (IIPP). HR Mobile asserts that when it obtained the IIPP from Boretti, Inc., it believed the IIPP complied with California's basic statutory and regulatory requirements for dairy IIPP's and was based on current occupational and health standards and requirements and on accepted and health principles and practices. Plaintiffs contend HR Mobile's belief was not reasonable because, among other things, HR Mobile neglected to analyze the dairy's previous IIPP or the one obtained from Boretti, Inc. to ensure the new IIPP complied with occupational and health standards and requirements. Plaintiffs assert the subsequent citations issued by California's Division of Occupational Safety and Health (CalOSHA) establish the IIPP was not compliant."], "id": "cf8ff3fd-c638-40c1-ae2c-b53bb8eda885", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["\"The policy [underlying this system] is that workers do not have to prove fault, adjudication is swift, but the benefits are smaller than might be obtained as tort damages. [Citations.] The law: (1) spreads the cost of industrial *468injuries to goods and services; (2) provides prompt, limited compensation to injured workers, regardless of fault; (3) increases ; and (4) insulates employers from tort liability.\" ( Fremont Comp. Ins. Co. v. Sierra Pine (2004) 121 Cal.App.4th 389, 395, 17 Cal.Rptr.3d 80 ( Fremont ).)"], "id": "51e9e692-7bf3-4617-ba6e-7412adc85a27", "sub_label": "US_Terminology"} {"obj_label": "industrial safety", "legal_topic": "Employment Law", "masked_sentences": ["In In re A.C. (533 A2d 611 [DC App]), the District of Columbia Court of Appeals held that a mother\u2019s penumbral privacy right against bodily intrusion was properly subordinated to the interests of the unborn child and State. A fetal protection policy was found to be reasonably necessary to in International Union, United Auto., Aerospace & Agric. Implement Workers (886d 871, revd on other grounds 499 US 187), in that the employer did not establish that sex was a bona fide occupational qualification and the policy was facially discriminatory."], "id": "051ec703-f63f-417e-8e61-1b69113dbadb", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": ["Petitioner also argues that the Department approved of Plans prior to sending out the letters in question, which limited the types of abortions covered to those necessary to protect the life or health of the mother.6 However, we do not assume that the current interpretation is wrong because the Department previously made an incorrect interpretation. The interpretation of the statute and the regulation is a question that rests with the courts. ( Carmona v. Division of (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.) The Department's past interpretation was simply incorrect."], "id": "4b8ab164-f442-45e6-b7ef-4d633aca3baa", "sub_label": "US_Terminology"} {"obj_label": "Industrial Safety", "legal_topic": "Employment Law", "masked_sentences": ["The Department's letters contain the correct statutory construction, and the Department is now bound by the court's opinion. Our conclusion necessarily follows for all the reasons that the letters are the only legally tenable interpretation of the law. The question here does not turn on \"the application of administrative expertise in the first instance.\" ( Morning Star, supra , 38 Cal.4th at p. 341, 42 Cal.Rptr.3d 47, 132 P.3d 249.) Resolving whether the term \"medically necessary\" must exclude \"voluntary\" health care services does not require the Department's particular expertise. Even though the Department's interpretation of its own regulation deserves great weight, the interpretation is ultimately a question of law, and in this instance this court is in as good a position as the Department to interpret the statute and the regulation. ( Id. at pp. 340-341, 42 Cal.Rptr.3d 47, 132 P.3d 249 ; Carmona v. Division of , supra , 13 Cal.3d at p. 310, 118 Cal.Rptr. 473, 530 P.2d 161.)"], "id": "ff155c54-5623-4c0a-9b0e-3314518838f7", "sub_label": "US_Terminology"} {"obj_label": "casual labor", "legal_topic": "Employment Law", "masked_sentences": ["It disputes the charge that plaintiff paid the men\u2019s salaries, of those employed regularly, but admits payment for 'for which plaintiff says it was reimbursed by Dispatch. Checks are attached showing payment by Dispatch to named persons, as well as copies of unemployment insurance contributions, Federal and State, by Dispatch for its employees. Plaintiff asserts also that Dispatch carried its own workmen\u2019s compensation."], "id": "753075cc-783d-40f6-8c73-df716b76bb79", "sub_label": "US_Terminology"} {"obj_label": "Visitation", "legal_topic": "Family Law", "masked_sentences": [" is a right shared jointly by a child and a noncustodial parent. (Weiss v Weiss, 52 NY2d 170.) Eleanor C. has vigorously pursued visitation rights. During the pendency of the neglect and custody proceeding, the Department of Social Services was directed to afford her weekly visitation with Cassandra. The final order of disposition in the neglect proceeding directs the Department of Social Services to arrange visitation between Cassandra and Eleanor C. during the mother\u2019s incarceration. Upon Eleanor C.\u2019s release from confinement, supervised visitation was scheduled. The court finds that visitation between Cassandra and her mother, under conditions to be determined by the Department of Social Services, is in Cassandra\u2019s best interests and is vital toward achieving the statutorily mandated goal of safely reuniting mother and child. Award of custody to the paternal grandmother herein, who resides at a location so distant as to foreclose any meaningful visitation, would not be in Cassandra\u2019s best interests."], "id": "e3c7b519-37fc-4a71-8161-3f32ed0b5d15", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Concerning that branch of defendant\u2019s motion for supervised , a previous application for the same relief was denied by order of this court (Honorable Anthony L. Parga) dated November 17, 1999, in which the court stated that defendant had not complied with a forensic evaluator\u2019s recommendation for therapy, as well as the fact that criminal proceedings were still pending at that time. Orders of protection had previously been issued in both Family Court and District Court, where this defendant husband pleaded guilty to two charges, one a violation of harassment and the other a class B misdemeanor, in satisfaction of four original dockets. These guilty pleas resulted from plea bargaining and, it appears, neither plea involved a crime of sexual assault."], "id": "4d95051d-f1c9-4cf2-8c67-14d6fd63d43c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Jason Roush and Tambre Qualheim are the biological parents of SR (born 9/28/10). In 2011, Jason and Tambre were divorced by order of the Poinsett County Circuit Court.1 In 2012, Jason married April. In 2015, the circuit court awarded Jason legal custody of SR and granted Tambre subject to her submission to drug testing. On February 15, 2017, the Roushes filed a petition for adoption in the Craighead County Circuit Court requesting that April be named the parent of SR.2 In the petition, the Roushes asserted that Tambre's consent to adoption was not necessary because she had abandoned SR and that for a period of at least one year, Tambre had failed significantly and without justification to communicate with SR or provide for her care and support. The Roushes contended that because Tambre had abandoned SR, she was unreasonably *11withholding consent to adoption. On the same day, the summons regarding the petition for adoption was issued. The summons stated that Tambre had thirty days to respond with a written answer or motion and that failure to respond would result in a default judgment. Proof of service was returned showing that the complaint and summons were hand delivered to Tambre on February 21, 2017."], "id": "e58d62ad-8f4b-475b-8e5c-0ffb179b180f", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["For the foregoing reasons respondent\u2019s motion to vacate the September 14, 1944, order for' \u201c Constancia\u2019s \u201d support is hereby denied, as a matter of law and discretion; and another hearing has been scheduled for February 20,1946, at 10:00 a.m., for determination, by the justice then sitting, of (1) the amount of arrears, (2) what, if any, portion thereof should be cancelled, upon petitioner\u2019s consent or in invitum (under N. Y. City Dom. Rel. Ct. Act, % 92, subd. 10), (3) the manner of payment of any arrears so fixed, (4) the continuance of that order, or such modification or suspension thereof as may be consistent with current circumstances and (5) ."], "id": "579e248f-40bb-4803-b20c-6ce8c831f736", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Section 72 of the Domestic Relations Law recites \u201cWhere either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for rights for such grandparent or grandparents in respect to such child.\u201d Section 651 of the Family Court Act grants the Family Court the same powers as Supreme Court in visitation matters."], "id": "1e749e26-b8dd-455a-8b2e-022df4393518", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In finding that grandparent was in Child's best interests, the trial court relied on Herndon v. Tuhey , 857 S.W.2d 203 (Mo. 1993), and Blakely v. Blakely , 83 S.W.3d 537 (Mo. 2002), for the conclusion that the grandparent visitation statute reflects the state's interest in maintaining child-grandparent contact so as to provide the child with the opportunity to benefit from the child-grandparent relationship. In Herndon , the Missouri Supreme Court held that \"If a grandparent is physically, mentally, and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent.\" 857 S.W.2d at 210. The trial court noted that the relationship between Grandmother and Child was particularly important in this case because Father is deceased and \"Grandmother provides an opportunity for Child to maintain *697contact with\" Father's side of Child's extended family."], "id": "7f5fcbce-6637-4fd5-85cc-73299f840f70", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["*904In reply, Ed and Yvonne argued they had standing to seek under California law providing for nonparent visitation. They additionally contended the court had discretion under section 3100 to grant visitation to nonparents who have an interest in the child's welfare; they had standing to seek visitation under California Rules of Court, rule 5.24(c)(1),(2) and (e)(1)(A),(B) given Zachary's consent to their visitation request; and they could seek visitation as de facto parents."], "id": "9ecb1ce7-267e-4824-97ce-de27bff6c73b", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["There are no siblings, nor does there appear to be any significant extended family members other than paternal grandmother and Child's older half-sister, which Child currently sees on nearly a weekly basis. While Mother argues that if she moves to New Jersey, she will be closer to her adult daughter, Child's half- sister and, the move would make even easier, it is also clear that between daughter's vislts to Bangor and Mother's visits to New Jersey, there is frequent contact with her half-sister now."], "id": "e45c891d-2012-434d-9b89-310d44b7df2d", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["opportunity to revisit the no-contact order with the juvenile court during subsequent hearings, which includes the parties\u2019 upcoming six-month review hearing set for January 2022. Mother may also file a section 388 petition to request to modify the no-contact order. Indeed, any party in the proceedings can move for the modification of a order pursuant to section 388 based on a change of circumstance or new evidence, and where it appears that the best interests of the child may be promoted by the proposed modification. (\u00a7 388, subds. (a)(1) and (d).) Thus, the reunification process affords \u201cample opportunity\u201d for the juvenile court to reconsider the appropriateness of the no-contact order. (See T.M., supra, 4 Cal.App.5th at p. 1220.) Mother also contends that the no-contact order dooms her opportunity for reunification because while under the no-contact order, she is unable to complete various aspects of the Agency\u2019s case plan. She notes that that the case plan requires her to attend one-on-one visits and therapeutic visits with J.P., as well as provide him with emotional care during in-person and telephone visits. Mother\u2019s argument, however, neglects other aspects of the case plan that are not premised on her having direct contact with J.P. For instance, the case plan describes general service objectives for Mother, which include showing her ability to understand J.P.\u2019s feelings and give emotional support; paying attention to and monitoring J.P.\u2019s health, safety, and well-being; and showing her ability and willingness to have custody of J.P. The case plan further provides that Mother \u201cwill apply what she learns about parenting youth with mental health needs, and consult with [J.P.\u2019s] service providers to better understand what J.P. is going through and his emotional needs.\u201d These aspects of the case plan, which rely on her cooperation with the social"], "id": "aecbf639-3c40-4ddc-bbb2-2163429ecaf1", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The strongest judicial endorsement of postadoption contact is found in People ex rel. Sibley v Sheppard (54 NY2d 320 [1981]). In that case the Court of Appeals construed parallel language in Domestic Relations Law \u00a7 72 to confer Standing to a biological grandparent to apply for postadoption . A decade later, however, the United States Supreme Court decided Troxel v Granville (530 US 57 [2000]), which must weigh heavily in our deliberation in the current case. In Troxel, the Court was called upon to determine the constitutionality of a Washington state statute that permitted any person to seek visitation with a child regardless of relationship, with \u201cbest interest of the child\u201d as the standard for determining such applications. (Wash Rev Code Ann \u00a7 26.10.160 [3].) This \u201cbreathtakingly broad\u201d statute (Troxel, 530 US at 67) was found uncohstitutional as applied. Although the justices differed in their analyses \u2014 there were two concurring opinions and three dissents-j \u2014 the case nevertheless sounds a strong note of caution against interference with the fundamental Fourteenth Amendment liberty interest of parents in the care, custody and control of their children. As Justice O\u2019Connor noted in the plurality opinion, \u201cif a fit parent\u2019s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the *821parent\u2019s own determination.\u201d (Troxel, 530 US at 70.) The respondents in the case at bar, who are adoptive parents, have no lesser rights than biological parents would have; through the unconditional adoption order, respondents acquired full parental rights and responsibilities in respect to Kamila and Jamila (Domestic Relations Law \u00a7 110)."], "id": "e8121590-0fd3-485d-afe1-739413b7c4b9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["LCCYS scheduled a video call with Father so that [Child] could meet him in late May or early June, but received no answer to the video call or a subsequent phone call. The caseworker testified he sent Father an email with the link for the video call by Zoom. The caseworker testified that prior to his appearance at the dependency hearing, the Agency had minimal contact with Father. The caseworker could recall two conversations with Father by phone. Father testified that he attempted to contact the caseworker numerous times and finally received a call back after contacting two supervisors. In addition to maintaining regular visits with [Child], Father\u2019s remaining permanency goal is to take an age-appropriate parenting class. Father testified that his parents had overnight care of [Child] while he was present, but he has not had overnight care of her on his own. Father\u2019s mother has expressed interest in being a resource for [Child], but not for [Child\u2019s] sibling. LCCYS conducted a homestudy of paternal grandparents\u2019 home, but the kinship approval had not been finalized at the time of the Dependency Hearing. [Child] does not have a preexisting relationship with Paternal Grandmother and the Agency intends to work on and establishing a connection with both Father and Paternal Grandmother before seeking placement. Father testified he understands coming to live with him would be \u201ca drastic lifestyle change\u201d for [Child] and he is willing to work with LCCYS to facilitate such a transition."], "id": "9aeb01c1-ceda-47d4-9b76-387f5db7dbb1", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["We view Father's four isolated, brief, and supervised interactions with Child as merely incidental rather than typical visitation by a non-custodial parent. STANDARD OF REVIEW Appellate courts review the factual findings of the family court de novo. Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d 486, 486 (2018). The appellant has the burden to show that the preponderance of the evidence is against the finding of the family court. Id. at 595, 813 S.E.2d at 487."], "id": "7c13494b-1062-437f-9152-8dfee7de4e82", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["\u201c The sole decision which has been presented on behalf of the plaintiffs on this question is Matter of Prime (136 N. Y. 347), in which the New York Court of Appeals held that where an exemption was given by statute to charitable corporations from certain taxation, the exemption applied only to domestic and not to foreign corporations, the court saying: \u2018We are of opinion that a statute of a State granting powers and privileges to corporations must, in the absence of plain indications *13to the contrary, be held to apply only to corporations created by the state, and over which it has the power of and control. \u2019 This decision is, of course, not directly in point since it involves the application of a statute rather than of a rule of common law, but the stress upon the absence of the power of visitation and control is significant. Under the circumstances, it becomes necessary to determine the question upon principle alone. * * *"], "id": "a31a44e9-cecd-4de5-9c20-722d830bdfed", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The statutory provision of the law, Domestic Relations Law \u00a7 117 (1) (a), which state's in relevant part that \u201c[a]fter the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties\u201d, appears to *640mandate that the adoption sever the tie to the biological parent. In contrast to Domestic Relations Law \u00a7 117, Social Services Law \u00a7 383-c specifically permits the biological parent to surrender the child for adoption yet reserve the right to post-adoption communication and with the child. However, the surrender specifically reserves the postadoption right in the surrender instrument. Social Services Law \u00a7 383-c (2) reads as follows: \u201c[s]uch guardianship shall be in accordance with the provisions of this article and the instrument shall be upon such terms and subject to such conditions as may be agreed upon by the parties thereto and shall comply with subdivision five of this section\u201d. Subdivision (5) (b) (2) provides, inter alia, that the surrender instrument shall provide \u201cthat the parent is giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms pursuant to subdivision two of this section, and unless such terms are written in the surrender\u201d."], "id": "46d11c09-7327-46e0-a17b-fe9aed25ce19", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Gloria\u2019s claim of change in circumstance due to the passage of time is disingenuous. Although two years have passed from the time of the trial, this action was brought only six weeks after the Court of Appeals rendered its decision denying her motion for leave to appeal. Furthermore, the court was well aware of the ages of the children and the litigants when it denied the previous petition. Denial of with the grandchildren was a natural consequence of the court\u2019s decision."], "id": "1268d6c1-dd96-408b-b177-9015daab00d9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Corona was confused about the origin of the criminal protective order, and the court explained that the criminal \"court in Alhambra made that order ... for three years. I am not going to make another order on that mitigating the same thing.\" The court said that if the parties wanted to change the no-contact aspect of that order, \"you probably need to go back to Alhambra and show a copy of the agreement for and see if they will change that so you can have some kind of communication.\" Lugo asked if the family court could reduce the protective order from three years to one year, and the court said, \"The only person that can change that order ... out of [the] Alhambra court is the Alhambra judge. I can't change it.\" The court continued, \"So I am denying the restraining order due to the fact that you have a criminal protective order that was for three years. I will sign the agreement on visitation.\" The court noted that the family court case would remain active to address any custody issues, and stated, \"But the only way you can change that other order is to go back to Alhambra.\""], "id": "ae131810-92a8-43b6-893b-62bf8ff43960", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Upon the trial, defendant testified that in February, 1961 plaintiff upon learning of her pregnancy by Richard Marchesini, demanded that unless she pay him the sum of $3,500 he would commence an action to invalidate her marriage to Marchesini. She further testified that when she refused this proposition plaintiff began a course of harassment and threats to remove their son from her custody; that on November 7, 1961 the plaintiff and his former attorney had a conference with the defendant at the office of her attorney, at which time the parties agreed to discontinue the instant action if his rights as contained in the separation agreement were liberalized, but plaintiff reneged shortly thereafter and substituted his present attorneys. Plaintiff admitted to this conference and in fact substantiated defendant\u2019s testimony with respect thereto. Further evidence was offered on the part of defendants and other witnesses on their behalf to the effect that plaintiff had been seen on several *345occasions entering the apartment occupied by a Mrs. B and not leaving until the early hours of the morning. Plaintiff and Mrs. B both admitted that plaintiff subsequently visited and stayed overnight regularly in the latter\u2019s apartment and on numerous occasions the four-year-old son of the parties was present. Mrs. B maintained that she is merely an old friend of plaintiff and nothing more."], "id": "e9b81a56-0397-4fa9-91bd-17dfbd23c26c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["We conclude that the juvenile court erred in finding Michael to be a presumed parent. Because Welfare and Institutions Code section 316.2 grants exclusive jurisdiction over paternity issues to the juvenile court upon the filing of a dependency petition, the family court order on which the juvenile court relied, issued subsequent to the filing, was void. The same reasoning applies to the designation of Joel as a presumed parent. We vacate the juvenile court's designation of Michael and Joel as presumed parents and remand to the juvenile court for an independent determination of their requests for presumed parent status. We find no error in the designation of Donald as a presumed parent, which was supported by substantial evidence. Finally, we vacate the juvenile court's order denying to Michael and remand for reconsideration of his request in the event the court designates Michael as a presumed parent."], "id": "7801f068-ad3b-4bde-a468-8fee2e2a4297", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In Strnad v. Strnad (194 Misc. 743) the defendant moved to adjudge the plaintiff in contempt for removing the child of the parties from the State in violation of the judgment granting the defendant certain rights of . Service of the papers, pursuant to a provision in that regard contained in the order to show cause, was upon the attorney. It was there held by Mr. Justice Greenberg that such service was sufficient to give the court jurisdiction. But the decision is not helpful here, because the respondent in that case appeared generally and contested the motion on the merits. Precedents closer to the point are Wulff v. Wulff (74 Misc. 213, affd. 151 App. Div. 22) and Keller v. Keller (100 App. Div. 325), \u00e1lso motions to punish for contempt, where the attorney upon whom service was made stated that he was without authority to appear on the motion or that he had not been for some time prior to, and was not at the time of, service, attorney for the accused party. It was held that the requirement of due notice had not been met. But I cannot believe that that necessarily disposes of the present issue \u2014 and for what are, to me, two good reasons."], "id": "21332f25-367b-46ce-99c6-558a6fa297f9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["(1) There is a contrary body of Federal case law holding that of inmates is a matter of privilege and not of right. (See Oxendine v Williams, 509d 1405 \u2014 a prisoner has no constitutional right to physical contact with his family; McCray v Sullivan, 509d 1332, 1334 \u2014 visitation privileges are a matter subject to the discretion of prison officials; Feazell v Augusta County Jail, 401 F Supp 405 \u2014 denial to a prisoner of a visit from his girlfriend \"does not present a federal claim\u201d; Henry v State of Delaware, 368 F Supp 286 \u2014 pretrial detainees have no Federal constitutional or statutory right to visitation privileges; Collins v Schoonfield, 344 F Supp 257, 279, supra \u2014 denial of contact visits to pretrial detainees \"does not rise to the level of cruel and unusual punishment\u201d; see also People v Von Diezelski, 78 Misc 2d 69, holding that various habeas corpus claims of a pretrial detainee in the Nassau County Jail, one being the lack of contact visits, did not render his detention unconstitutional or otherwise illegal.)"], "id": "f623533d-f59f-4ac2-90f8-fb6f3b8fcdc5", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["attending 12-Step meetings; he had completed a 52-week certified batterer\u2019s program; he had rented a room from his nephew that was a suitable home for the minor; he was fully employed; he had regularly visited the minor; and after one such visit, the caregiver had sent an e-mail transcribing a message from the minor to father stating \u201c \u2018[a]fter my visit today, I felt sad because I\u2019m afraid I wouldn\u2019t be able to see you. I wish I could see you every day. . . .\u2019 \u201d The Department submitted a report in which it opposed father\u2019s 388 petition. The court set a contested hearing on father\u2019s 388 petition, as amended. The contested hearing took place on January 13, 2021. H. Report for Section 366.26 Hearing The Department reported that during the reporting period, \u201c[father had] started calling the drug testing line, Monday through Friday, to conduct random drug testing, twice a week.\u201d Father had not missed any phone calls or tests, and he had received normal test results for the five tests reported (from December 21, 2020 to January 4, 2021). Father continued to participate in regular supervised visits with the minor, either in-person, or (due to the COVID-19 pandemic) through video calls. During the visits, the minor tended to be relatively quiet but listened to what father told her. Since the last reporting period, the Department reported that the minor \u201ccontinue[d] to appear more and more attached to her current caregivers.\u201d Social worker Barrientos observed that during in-person visits and video calls, the minor was strongly attached to her caregivers, and the child continued to seek the caregivers\u2019 comfort and affection during times of sadness or distress. The Department advised that the minor\u2019s needs continued to be met by her caregivers. They took time off from work whenever the minor was ill, and they transported her to supervised with her parents. The Department\u2019s assessment was that father had struggled with his methamphetamine use throughout the dependency proceedings notwithstanding the 16 months of services the Department had provided. Father was making efforts to"], "id": "7c3bb13c-cdd9-4b0a-9357-e30d3715cd62", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Two weeks after the dependency petition was filed, on April 15, the family court issued a statement of decision, findings and order, and two judgments in the consolidated custody and paternity actions, finding both Joel and Michael to be presumed parents of the minor.3 Although recognizing that Michael's voluntary declaration of paternity could be set aside, the family court declined to do so because the minor \"has formed an attachment and strong relationship with [Michael] in his first years of life\" and Michael \"seeks to continue his relationship with the child,\" which the court found to be in the minor's \"best interest.\" The court found that Joel was the minor's biological father and noted that through weekly visits Joel had formed a companionable relationship with the minor. The court declined to choose between them, finding the minor would suffer detriment if either was not declared to be a *645presumed parent. (\u00a7 7612, subd. (c).) The court also reinstated Michael's supervised and entered judgments designating both men as the minor's father. So far as we are aware, none of the family court rulings were appealed."], "id": "72e4272a-a8bd-4027-a742-168e5630755b", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Accordingly, sole legal and physical custody of Scarlet should be awarded to the father. The mother should be granted meaningful interaction and regular , and we remand for a determination as to appropriate visitation. For the same reasons, we vacate the court\u2019s award to the mother of final decision-making authority with respect to the selection of the children\u2019s therapist and medical and educational issues relating to Pascal, now 17, and award the father sole legal and physical custody of Pascal. Sole legal and physical custody of Tallulah shall remain with the mother."], "id": "e6900528-fa81-4c53-a19e-03cd4254b163", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["However, the disputes continued unabated. The Brittains and Goodlett each moved to hold the other in contempt for alleged violations of the visitation order. Following a hearing, the trial court again passed the motions for contempt, and entered an order resetting the break-in period of the visitation order. The court orally advised the Brittains that the visitation was for them alone, with no other family members present. Thereafter, Goodlett filed a notice of appeal from this order."], "id": "ab088496-fca4-4753-b322-faf5f0442cd8", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Abdtjs-Salaam, J. These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991])\u2014namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child\u2019s \u201cparent\u201d for purposes of standing to seek custody or under Domestic Relations Law \u00a7 70 (a), notwithstanding their \u201cestablished relationship with the child\u201d *14(77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law \u00a7 70 (a). We agree that, in light of more recently delineated legal principles, the definition .of \u201cparent\u201d established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law \u00a7 70."], "id": "3c058bdf-f25f-4a65-b305-3a57b935135c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The record does not demonstrate \"countervailing circumstances\u201d sufficient to justify disturbing the established custody arrangement. At the time of the hearing, petitioner was living in a two-bedroom apartment with a married man with five children of his own. She had an out-of-wedlock son by that man. She had exercised sporadic with her daughter over the years. She acknowledged that, when her daughter was in California with respondent for over six months, she never telephoned her daughter and wrote her only one letter."], "id": "1e466d9f-b4e6-4241-8190-9c8db17f0420", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Jeanette and Sam married in 2008 and separated in 2014. A son was born of the union. Sam filed for divorce in September 2014. After an extensive period of discovery and motion practice, the matter came on for final hearing on March 21, 2016. The trial court entered its findings of fact, conclusions of law and decree of dissolution of marriage on May 12, 2016. The decree granted the parties joint custody of their son with a \"2-2-3\" schedule,1 designated neither party as primary residential parent, restored the parties their nonmarital assets, and divided the marital estate. Dissatisfied with the division of assets and the timeshare arrangement, Jeanette moved to alter, amend or vacate the decree pursuant to CR 2 59.05. The trial court denied the motion, and this appeal followed."], "id": "482d8cc9-54cf-4516-bf04-98d7eb40d6f4", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Numerous studies have found no risk of HIV infection through ci\u00f3se personal contact or sharing of household functions. (See, Curran et al., Epidemiology of HIV Infection and AIDS in United States, 239 Sci 610, 615, n 45 [Feb 5, 1988]; e.g., Lawrence, HTLV-III/LAV Antibody Status of Spouses and Household Contact Assisting in Home Infusion of Hemophilia Patients, 66 Blood 703, 704-705 [1985].) These studies have figured prominently in decisions by Federal and State courts upholding the rights of HIV-infected children to attend public schools (see, e.g., Ray v School Dist. of Desoto County, 666 F Supp 1524, 1530-1532 [MD, Fla 1987]; Thomas v Atascadero Unified School Dist., 662 F Supp 376, 380 [CD, Cal *2201987]; District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398 [Sup Ct, Queens County 1986]; cf, Jane W. v John W., 137 Misc 2d 24 [Sup Ct, Kings County 1987] [father suffering from AIDS not precluded from with 1\u00bd-year-old daughter])."], "id": "61d849ec-ae88-4c0e-9a60-8a986cf21579", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The children were detained from mother and father and placed with paternal grandmother. Father\u2019s was to be monitored, while mother was permitted to have unmonitored visitation, on the condition that mother submit to weekly random drug testing, and that father was not allowed to visit with her. At the September 11, 2019 detention hearing, both mother and father completed \u201cNotification of Mailing Address\u201d forms providing the same Inglewood address, and their current mobile numbers. The Judicial Council form (JV\u2013140) provides that the court and Department will use the designated address \u201cunless you notify the court or the social worker . . . of your new mailing address. [\u00b6] Notice of the new mailing address must be provided in writing.\u201d The court confirmed on the record that the information was accurate, and admonished mother and father to update their information if it changed. The court ordered the Department to provide mother and father with referrals, including weekly drug testing, parenting classes, and individual counseling. The Department attempted to schedule a meeting with father. Father initially did not understand why a meeting was required, believing that he did not have an open case with the Department. Father also complained he had gone to court on October 15, 2019, but that there was no hearing that day. He told the social worker mother had told him there was a hearing, even though no hearing was scheduled. The social worker told father he would receive notices of hearings in the mail, and confirmed that he had hearings scheduled for October 23 and November 18. Father agreed to meet with the Department on October 18, 2019, but he did not show up, and he did not answer or return the Department\u2019s phone calls or text messages."], "id": "c49722d9-d4fe-45e5-a4b7-00e4db43a81c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On November 15, 2017, the court terminated dependency jurisdiction and issued a family law exit order.7 The court granted mother and father joint legal custody of G.B., with mother receiving sole physical custody of the child. The court awarded father unmonitored visits with G.B. every Friday evening to Saturday morning, with any additional to be negotiated by the parents."], "id": "cd6bfc15-7c18-4fa6-9096-d87cc460c448", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Here, the trial court properly considered the factors outlined in Section 452.340.1 when rebutting the Form 14 as unjust and inappropriate. Specifically, the trial court considered the financial resources and needs of Husband when it considered Husband's new responsibility to fully support Emma, and his expenses related to the ownership, operation, and maintenance of Sophie and Stella's vehicles. See Section 452.340.1(2). In considering Wife's text messages to the children about giving Husband more custody, spending the child support payments on herself, and that groceries would be slim, the trial court took into account the amount of time the children spend with each parent and the reasonable expenses associated with the custody or arrangements. See Section 452.340.1(5)."], "id": "698980c1-3578-43c2-b0a1-117991b0b8cc", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Mr. W. pleaded guilty to several crimes including robbery in the first degree on July 7, 1992 in the Steuben County Court. Sentencing was set for August 10, 1992 and a sentence promise had been given of no more than 4Vi years minimum to 9 years maximum. At the sentencing on August 10, 1992 Mr. W. was sentenced to 4 Vi years to 9 years in a New York State correctional facility. Mr. W. will receive credit for the time that he has spent in the Steuben County Jail from August 7, 1991. At the hearing on August 5, 1992 Mr. W. set forth a plan wherein the child, Kyle, would live with Mr. W.\u2019s aunt, until his release from the correctional facility. Ms. S. testified that the child could reside with her if she were to have custody until Mr. W. was able to assume custody, and further testified that the child could be placed on her husband\u2019s health insurance policy. Ms. S. is employed at a local hospital which provides day care. Mr. W. included in the plan for the care of his child that his mother, Mrs. W., would transport the child to the correctional facility in order that he may visit with the child. Mrs. W. testified that she would take the child anywhere in the State at least once a month. She further testified that if her son was placed at either Southport or Elmira Correctional Facilities she would transport the child to see his father twice a week. Also, there was testimony that Mr. W.\u2019s daughter, Nicole, born on July 21, 1978 has had an acceptable relationship with her father in that he has exercised his right to pursuant to a Family Court order and also has visitation with Nicole two to three weeks in the summer. Nicole has been visiting with her father at the Steuben County Jail and has had an ongoing relationship with him."], "id": "76a4c8cf-8992-4386-a959-02fd8672d29d", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The writ is accordingly sustained solely to the extent of awarding custody of the child to the petitioner, to live in the one-family house in Yonkers, New York, with the petitioner and the petitioner\u2019s sister and brother-in-law and the latter\u2019s twin daughters, for a trial period of six months from the date of the entry and service of this order, at the end of which period application for complete custody thereafter may be made, upon proof of the conditions affecting the child\u2019s Avelfare as they then exist. The order to be entered hereon shall provide for such rights to the respondent as the parties may agree upon, or in the event of disagreement, the court will determine and fix such visitation rights."], "id": "df161edb-177a-46eb-8a90-c24779a68edb", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The mother and counsel for D. are asking this court to drastically reduce the father\u2019s access to his son based entirely on the only \u201cmaterial information\u201d at its disposal, namely, what the child claims occurred. \u201cA noncustodial parent is entitled to meaningful , and denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child.\u201d (Matter of Lane v Lane, 68 AD3d 995, 996-997 [2d Dept 2009].) It would be inappropriate as well as fundamentally unfair to base a decision to curtail the father\u2019s meaningful visitation on the child\u2019s out-of-court hearsay statements corroborated in an in camera proceeding that also would be based on the child\u2019s untested statements."], "id": "441c7d4c-307f-4187-9a49-473b4de80c2f", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In answering this question, our role is \"simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language.\" ( *919Vasquez v. State of California (2008) 45 Cal.4th 243, 253, 85 Cal.Rptr.3d 466, 195 P.3d 1049.) Section 3104 expressly provides that a \"grandparent of a minor child\" can petition the court for rights. ( \u00a7 3104, subd. (a).) As Ed and Yvonne point out, neither section 3104 nor the Family Code more generally define the term grandparent, so we look to its ordinary dictionary meaning, which is \"a parent's parent\" (Webster's 3d New Internat. Dict. (2002) p. 988, col. 2) or \"a parent of one's father or mother\" (Webster's Collegiate Dict. (11th Ed. 2003) p. 544). This plain and ordinary meaning of the term grandparent would not extend to Ed and Yvonne, who are not parents but grandparents of the parent in this case."], "id": "bff6e3ac-47c8-4090-92eb-3a6ee95f6776", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The second sentence of \u00a7 452.375.5(5)(a) specifically provides that before a court awards custody, temporary custody or to a third person, the court shall make that person a party to the action. Because a husband and wife are always parties to an action to dissolve their marriage, the statutory requirement that the court make the third person a party to the action indicates the General Assembly did not intend that the term 'third person' include a husband or wife in a dissolution action. Id. at 844. The Southern District found the husband's petition failed to allege the children's biological father was unfit, unsuitable, or unable to be a custodian, hence, he failed to state a cause of action. Id.7 The Southern District limited its holding to the \"extraordinary facts\" of the case. Id. at 845."], "id": "3a92ce0b-0153-4383-82ac-024f7fc06b02", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The respondent has refused to establish a home for these children in spite of the requests, direction and planning of the probation staff for the children. She has refused to keep appointments and resisted foster home planning. She has consistently failed and refused to comply with rules of , conduct and behavior. On some occasions she has requested the return of the children to her home, but has vacillated repeatedly by countering these requests by refusing to plan and prepare for their return. She has been most unco-operative with the agencies in their planning for the readjustment of her home. She has been examined psychiatrically and has refused and resisted psychotherapy in order to enable her to adjust to the needs of the children. Although quite co-operative and pleasing in some interviews and in her promises at times, this has been immediately followed by refusals and resistance immediately thereafter. Her contacts with the children have been so upsetting to their lives that such visits had to be curtailed and eventually suspended. This conduct and behavior was the basis of the original finding of neglect on August 3, 1954, and has continued to the present date. It is the conclusion of the court that the conduct, demeanor, resistance and ineffectiveness is virtual and complete abandonment of these children. The children in turn have been so emotionally traumatized that Leslie Karen now 14 years of age and Carolyn now 12 years of age refuse to see or talk to their mother. All of this is due to her conduct, demeanor and neglect."], "id": "ec8a805b-9856-4a8b-b2ef-0acdd401e1b5", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["*979In further rebuttal to the husband\u2019s claims, the wife\u2019s affidavit before this court contains a litany of comments that suggest she is using a shotgun approach to discredit her former husband. She casually mentions\u2014without any corresponding authority\u2014 that he suffers from bipolar disorder.4 She condemns his smoking and raises a specter that smoking impacts one of their son\u2019s asthma, but there is no medical data proffered to support this claim. She adds that she does not \u201ctrust the husband to keep his anger in check.\u201d However, the wife accompanied the husband on his visits with the children and there is no evidence, during the repeated visits by the father to Rochester, that his \u201canger\u201d (as the wife describes it) has ever flared up or caused the children any trepidation. The wife also challenges the husband\u2019s version of spring break in April 2013 and the request for travel to Singapore in 2013. She claims that the husband never made such requests, with the exception of the summer of 2012, and at that time she told him that the children were too young to travel. The wife also strongly disputes the husband\u2019s claim that his agreement to have the children relocate to Rochester was based on her agreement that the children would travel to Singapore \u201cat least once per year.\u201d The wife\u2019s disagreement here is somewhat limited. She does not dispute that she agreed that the children would have the option to travel to Singapore\u2014she simply disputes whether it was scheduled to happen every year. The wife does state that she repeatedly told the father that the children could not stay overnight with him \u201cuntil they were older and could make decisions on their own.\u201d In these conflicting versions of events, a number of items are undisputed. After the entry of the judgment of divorce in Singapore, the father visited Rochester and the wife would not allow him overnight . In 2013, the husband sought summer time with his children, but was told that his ex-wife had enrolled them in summer camp for the entire summer and he was unable to see them. Over Christmas break in 2013, the husband claims he visited Rochester, but the wife enrolled the children in a program that consumed most of the daytime, and refused *980to allow the husband to have access without her present. In addition, it is undisputed that the wife has never permitted the children to travel to Singapore. The wife admits that she never allowed the children to stay overnight with their father when he was in Rochester because she made the decision that they were too young. In April 2014, the father again visited with his children. The wife told him that she did not want him to take the children to New York City, but the father took them anyway and returned them on Easter Sunday. According to the wife, the husband impeded the mother\u2019s ability to communicate with her children via telephone while they were with him. She describes the New York City trip in April 2014, as an instance in which the husband \u201cviolated my trust.\u201d After the episodes in April 2014, the father complained about the mother\u2019s interference with his visitation and eventually, she was contacted by the father\u2019s counsel."], "id": "9766373e-8c59-4a98-a923-91f86fe79fd4", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["We note that the trial court stated that A. would be with S.Y. from Sunday evening through Thursday morning and with Omar from Thursday morning (or end of preschool) through Sunday evening. Considering that A. would be asleep at night, this schedule essentially gave four days to Omar and three days to S.Y. - the opposite of the court's stated intention. But the court gave *333leeway to the parties to work out their own days and hours of time with A. and invited counsel to return ex parte if the parties could not work this out. We trust that the parties have worked out acceptable hours and if not have returned to the trial court for resolution."], "id": "992f4745-029f-4007-9e59-45c1d2f23aa7", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The California Supreme Court reviewed the grandparent statutes in In re Marriage of Harris (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842, 96 P.3d 141 ( Harris ): \"Grandparents' rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.] Three California statutes expressly address grandparent visitation: [S]ection 3102, which permits visitation by a deceased parent's children, siblings, parents, and grandparents if such visitation would be in the best interests of the child; section 3103, which permits a court in specified proceedings involving the custody of a child to grant grandparent visitation; and section 3104, which permits grandparents to petition for visitation if the grandchild's parents are not married or if certain other conditions are met.\" ( Id . at p. 219, 17 Cal.Rptr.3d 842, 96 P.3d 141, fns. omitted; see also Stuard v. Stuard (2016) 244 Cal.App.4th 768, 777, 199 Cal.Rptr.3d 821 ; In re Luke H. (2013) 221 Cal.App.4th 1082, 1091, 165 Cal.Rptr.3d 63.) \"In addition, section 3100 provides that in making an order for joint custody of a minor child, '[i]n the discretion of the court, reasonable visitation rights may be granted to any other person having in interest in the welfare of the child.' ( \u00a7 3100, subd. (a).)\" ( Harris , at p. 220, fn. 5, 17 Cal.Rptr.3d 842, 96 P.3d 141.)"], "id": "dcbe504e-cb2b-410e-9ae1-6ce3a877512a", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["modifications to a order and not the court\u2019s burden to propose such modifications sua sponte. (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 [indicating that changes to a visitation order \u201care better handled, in the first instance, through communications with [the Agency], and as needed, through motions to modify the visitation order. It is the parent\u2019s burden to initiate those procedures, not the court\u2019s.\u201d].) Further, even if these alternative options for contact between Mother and J.P. had been raised, courts of appeal have authorized no-contact orders where, as here, the evidence supports a finding that contact would be detrimental to the minor. (See Daniel C.H., supra, 220 Cal.App.3d at p. 839 [\u201cAlthough the evidence here might have supported an order of closely supervised visitation, the evidence of stress on [the minor] is equally supportive of a no contact order.\u201d]; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238 [juvenile court\u2019s no-contact order between mother and child was \u201creasonable\u201d where mother had not protected the child from sexual abuse and where evidence showed child was angry with mother and was refusing visits].) 2. The Juvenile Court Did Not Abuse Its Discretion by Not Compelling J.P. to Testify at the Disposition Hearing Mother contends the juvenile court abused its discretion by excusing J.P. from testifying. She asserts that his testimony was \u201cmaterial to the prospect of renewing his contact with his family,\u201d and thus he should have been compelled to testify at the dispositional hearing. As a preliminary matter, Mother did not request for J.P. to testify at the contested disposition hearing on July 26, 2021. In fact, Mother\u2019s counsel did not offer any affirmative evidence, and no witnesses were called to testify at the disposition hearing. Although Mother raised the matter of J.P. testifying at an earlier hearing on June 4, 2021, her counsel\u2019s arguments at that hearing indicated"], "id": "790d1156-4b63-4651-83ba-bdee0028aa3c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["not protect the child from him. Mother remained enmeshed with Father such that she could not retain custody. The court did not err by removing A.C. from parental custody. We note, however, the juvenile court made a clear record of Mother\u2019s progress. While it was insufficient at this phase to retain custody of A.C., we emphasize the court\u2019s encouraging words to Mother: \u201cthe court is confident that [Mother] can keep that trajectory going in a positive direction. I\u2019m really confident you can do that ma\u2019am.\u201d It is rare this court sees such inspiring words to a parent. While we affirm the court\u2019s orders, we also echo the juvenile court\u2019s kind words of encouragement for Mother to continue working towards her goal of regaining custody of A.C. II. Visits with A.C. Mother asserts the juvenile court abused its discretion when it denied her request for more frequent visits with A.C. We disagree. The juvenile court may set the frequency and length of visits and impose any other conditions on consistent with the child\u2019s best interests under the \u201c\u2018particular circumstances\u2019\u201d of the case. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) During the reunification period, visitation with a parent must be \u201cas frequent as possible, consistent with the well-being of the child.\u201d (\u00a7 362.1, subd. (a)(1)(A).) \u201cNo visitation order shall jeopardize the safety of the child.\u201d (\u00a7 362.1, subd. (a)(1)(B).) The visitation order is reviewed for abuse of discretion. Under that standard, we determine if the order exceeded the bounds of reason and construe all reasonable inferences in favor of the underlying determination. (In re J.N. (2006) 138 Cal.App.4th 450, 459.) Mother asserts the juvenile court erred when it denied her request for an extended 29-day trial visit or five overnight visits in the paternal grandparent\u2019s house. However, as discussed previously, Mother could not be counted on to protect A.C. from Father having unauthorized contact while he was using drugs and from the risk from his unresolved domestic violence issues. The court reasonably determined Mother\u2019s lack of insight, evidenced by Mother returning to Father despite domestic violence and his"], "id": "7c332c99-e041-4064-a39c-589226ce5d83", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Rule 5.695(a) provides, \"At the disposition hearing, the court may: [\u00b6] \"(1) Dismiss the petition ...; [\u00b6] (2) [p]lace the child under a program of supervision for a time period consistent with section 301 and order that services be provided; [\u00b6] (3) [a]ppoint a legal guardian for the child ...; [\u00b6] (4) [d]eclare dependency and appoint a legal guardian for the child ...; [\u00b6] (5) [d]eclare dependency, permit the child to remain at home, and order that services be provided; [\u00b6] (6) [d]eclare dependency, permit the child to remain at home, limit the control to be exercised by the parent or guardian, and order that services be provided; or [\u00b6] (7) [d]eclare dependency, remove physical custody from the parent or guardian, and: [\u00b6] (A) After stating on the record or in writing the factual basis for the order, order custody to a noncustodial parent, terminating jurisdiction, and direct that Custody Order-Juvenile-Final Judgment (form JV-200) be prepared and filed ...; [\u00b6] (B) After stating on the record or in writing the factual basis for the order, order custody to a noncustodial parent with services to one or both parents; or [\u00b6] (C) Make a placement order and consider granting specific rights to the child's grandparents.\""], "id": "1b9ce221-4fcf-4548-80a5-a8654a1c97d8", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Ms. Roberman opines that Adrian will suffer great pain at being separated from Petitioner who Ms. Roberman finds to be a loving, caring father. Ms. Roberman stated that Respondent\u2019s desire to move to Saudi Arabia is as a result of her \u201cblind adherence\u201d to her husband\u2019s desires. Ms. Roberman submits that longer, but not as frequent with the Petitioner (Respondent has proposed and stated that she will pay to have Adrian visit with his Father on two 21-day periods and one 28-day period which corresponds to Adrian\u2019s trimester school schedule) will not substitute for the more regular visitation as is now in place. Ms. Roberman concludes: \u201cAdrian\u2019s best interest would be served by remaining in New York with both of his parents * * * If Dr. Fogelquist insists on joining her husband in Saudi Arabia then Adrian should not be thrust into a new environment without the proximity of his father. He should, therefore, remain in New York with his father and a visitation schedule should be arranged with his mother.\u201d"], "id": "015736a4-1514-434a-957f-4703f2ea12f6", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Moreover, both petitioner and her current husband are committed to fostering a relationship between the child and respondent father (see Sonbuchner v Sonbuchner, 96 AD3d 566, 567 [1st Dept 2012]). Although petitioner\u2019s relocation will have an impact upon respondent\u2019s ability to spend time with his child, the liberal schedule set by the court will allow for respondent and the child to continue to have a meaningful relationship (see Matter of Carmen G. v Rogelio D., 100 AD3d 568 [1st Dept 2012])."], "id": "0b09e8f1-321b-4107-ba43-869784b5e4f4", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The juvenile court's bare assertion that the \"relationship [between Caden and mother] outweighed any prospective adoption\" sheds no light on how the court balanced these competing detriments. In the absence of any explanation, we look to the evidence as a whole to ascertain if it supports the juvenile court's determination. We conclude it does not. At the time of the permanency planning hearing, legal guardianship was not a viable option. The only remaining alternative-foster placement-had already proved itself destabilizing, with Caden removed from four different homes due to mother's constant interference and efforts to undermine the foster families. When we previously affirmed the juvenile court's order reducing , we concluded that \"mother consistently fueled Caden's belief that he would soon return home, a belief that was unrealistic given mother's inability to cease using methamphetamine, and one that fostered anxiety in the minor and that undermined placement after placement.\" ( C.C. v. Superior Court , supra , A151400.) In addition, the record discloses a recent example of a failed guardianship, N.C.-G.'s, which the social worker attributed to a long child welfare history characterized by \"poor boundaries [and] a lack of protection for [N.C.-G.] regarding Mom being able to basically maneuver in and out of her life. ... Hence, she's now a dependent at 16 years old.\""], "id": "268d69cc-f022-481b-9f6a-4ed4d178a52b", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On cross-examination and when questioned by the circuit court, Bari said that they (the Sargents) contacted DHS when the children were removed in Arizona and in Arkansas. She explained that when they contacted Arkansas DHS, she was told that \"it has to go to another department because you're out of state. It will probably be at least six months before you hear from anyone.\" After not hearing from anyone for six months, the Sargents began calling. DHS did not return many of the 32 *585to 33 phone calls made; and for their sustained efforts the Sargents never received any requested , not even phone visitation-\"nothing.\" After \"going over the head\" of the unresponsive local DHS office and contacting Mischa Martin (the director of the Division of Children and Family Services) in January and April 2018, Bari received a request from the State of Arkansas to the Indiana Department of Child Services for an ICPC home study."], "id": "7fefe935-3462-4647-bb27-7e921492b199", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). As noted, petitioner\u2019s assertion that E.S. requested contact is unsupported. To the contrary, the circuit court denied post-termination between petitioner and the children \u201cdue to the trauma the older children have suffered, age of the two younger children, and the lack of bond\u201d between them. Additionally, the circuit court heard evidence that \u201cany recommendation regarding contact between E.S. and [petitioner] would depend on her progress in treatment.\u201d As noted above, petitioner failed to address the conditions of abuse and neglect in her treatment and no improvement was expected. Accordingly, we find no error in the circuit court denying petitioner post-termination visitation with the children."], "id": "331be1f7-0615-4646-9610-1b79d1d51dc9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The stipulation of discontinuance signed by the parties and their attorneys was received in the mail by the probation department of this court with a covering letter from the attorneys for the respondent father. Upon submission of the papers to the court for its action, the court examined the files and records of *966the case and in view of the psychological and psychiatric reports on the parties, directed the parties and the attorneys to appear before the court with a view to safeguarding the interests of the child by inquiring into the statement contained in the stipulation that \u201c the parties having made satisfactory disposition among themselves as to the matters now before the Court.\u201d (Italics supplied.) The testimony of the parties then revealed that in August of 1956, the parties had entered into a separation agreement which, among other things, provided \u201c that absolute and sole care and custody of the said infant issue of the marriage \u2019 \u2019 shall henceforth be with the mother; that the father did l( waive and relinquish for all time, his right to visit the said child \u2019 \u2019; and said agreement further provided that the mother did \u201c renounce and relinquish any right to support for the said infant issue of the marriage for so long as the waiver of the aforementioned right of shall continue but there shall be no reinstitution of visitation rights without the prior consent of the (mother), the termination of the waiver not being in the discretion of the (father) it being clearly understood that in the event that the (father) is required to support the infant issue of the marriage, then he shall likewise have the right to visit the child \u201d; that the terms of the agreement would merge and be made part of any decree of divorce which either party might obtain."], "id": "d5a61cdd-de52-4caa-ae53-f6ad5cced6a3", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The Legislature did not, however, identify this unenumerated \u201cconstitutional right.\u201d Nor did the Legislature enumerate the \u201ccertain family court proceedings\u201d to which this provision applies. Apparently, Family Court Act \u00a7 262 specifies these proceedings. However, the use of the phrase \u201cthe loss of a child\u2019s society\u201d would lead to the conclusion that the legislative intent was to apply this statute to proceedings, not relating to custody with attendant with the child awarded to the noncustodial parent, but those where the litigant\u2019s contact with the child is terminated. \u201cSociety\u201d equates with \u201ccompanionship\u201d (Merriam-Webster\u2019s Collegiate Dictionary) not with custody. \u201cCustody\u201d equates with \u201cimmediate charge and control\u201d (Merriam-Webster\u2019s Collegiate Dictionary). Awarding custody, with visitation to the noncustodial spouse, is not a deprivation of the child\u2019s society. The purpose of visitation is that warring spouses may still share the child\u2019s society. Therefore, it appears that the legislative intent (Family Ct Act \u00a7 261) and the eo nomine provisions of Family Court Act \u00a7 262 may not be the same."], "id": "73ab9fa8-fa84-4cf7-b65d-9fcae95cd8d7", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["This court recognizes that there have been circumstances under which courts have allowed postadoption as well as circumstances in which a Surrogate\u2019s Court, in the exercise of its equity jurisdiction, included provisions for visitation of a child in the order of adoption (Matter of Raana Beth N., 78 Misc 2d 105 [1974]). However, that was a case where the court indicated there were unusual circumstances, circumstances which are not present in the case at bar. That case involved a stepparent adoption of a 5 Vz-y ear-old child with whom the biological father wanted to resume visitation."], "id": "c63b156d-0cce-4ff2-8dd1-54595cf6ad16", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["*801Erik testified that Monica's and her mother's conduct in 2015 and 2016 changed things. According to Erik, he stopped the school lunch visits because Monica's mother would also show up and chill C.V.'s interaction with him. Monica requested that Erik undergo drug and alcohol testing, and all tests were negative. Though the most recent summer went well, CPS investigated Erik anyway, apparently at Monica's request. He also testified that Monica has been trying to turn C.V. against him-trying to \"brainwash\" him-and he feared that her efforts would continue absent a custody modification."], "id": "20ca0df1-8c35-446a-b547-07cdd0ae0c4f", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Pearson voiced concerns with both Whitney's and Jonathan's anger problems. She explained that Jonathan has aggression issues and that Whitney cannot calm him. She referenced a staffing meeting where Whitney and Jonathan became upset with her, pushed a table, and stormed out of the room. She also testified that Jonathan had approached her in an aggressive manner when a was canceled because he spoke negatively about DHS. She noted that Whitney became angry and that, from inside the building, she could hear Whitney yelling on the street. She further testified that Jonathan had left her a voicemail threatening to \"blow up\" her and the DHS building."], "id": "61903b75-0c14-4b17-847e-27b618dd722a", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On July 25, 2016, father called DPSS and provided his current address in Jurupa Valley. Father then attended the section 366.26 hearing in August 2016 and objected to DPSS's recommendation to terminate his parental rights. He asked the court to establish a legal guardianship over D.H. instead of proceeding with adoption and argued he shared the type of bond with D.H. described in section 366.26, subdivision (c)(1)(B)(i), commonly referred to as the \"parental benefit exception\" to terminating parental rights. DPSS argued for adoption and termination of parental rights, arguing father's had been \"inconsistent throughout the dependency.\""], "id": "89636eae-9e36-4e3f-8aff-974225645f93", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["It' is claiming that the society or its officers are entitled, upon such an investigation, to all the rights secured by the constitution and laws to a defendant in a civil action or proceeding, or to an accused person upon a criminal charge; such as a specification of the claim or charge, the' right to cross-examine witnesses called to establish it, to introduce testimony in their own defense, and from the commencement to the close of the proceeding to appear by and have the aid , of legal counsel. There is no foundation in such an inquiry as this, for any such claim as a matter of right. The visitorial power over charitable institutions, and the investigation into their conduct and management, authorized by this act, is in no sense analogous to a civil action or proceeding, or to a criminal accusation or charge, as it does hot and cannot result in any judgment or sentence affecting person or property. All the power which the commissioners possess after instituting and completing the investigation they are authorized to make, is to embody the result of their inquiry in an annual report to the Legislature, or to make a special report to the attorney general, to the effect that, in their opinion, some matters in regard to the management or affairs of an institution, subject to their , or to any inmate of it, or some person connected with it (2 L. 1867, p. 2897, \u00a7 5; L. 1873, p. 885, \u00a7 5), requires legal investigation or action of *195.some kind; when it becomes the duty of the attorney general to make inquiry and take such proceedings in the premises as he may deem necessary and proper, reporting his action and the result of it to the State Board."], "id": "c77618aa-01c9-4b64-b08b-97c4fb7317c9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Upon a comparable set of facts the court in Matter of Porras (13 A D 2d 239) concluded that a finding could be justified of abandonment and that consent would not be necessary for adoption; the court did conclude however, because of other unusual circumstances in that case, that there was no abandonment and dismissed the adoption petition. Those circumstances, however, do not exist in the instant case. As impoverished as the father was, he certainly could have financed an occasional trip to see his child during the last five years; there is no evidence here of any rejection of any gifts or greetings; and he should have insisted on his rights had he possessed, during this five-year period, some minimal degree of paternal concern or interest."], "id": "ff5aa549-cccf-44ee-929b-8fb6c9e54a0f", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On July 21, 2016, Nicole filed a motion to modify and child support in which she asserted that she had moved from Cave City, Arkansas, to Viola, Arkansas, and that she had enrolled the children in school in Viola, where she now works. Nicole alleged that a material change in circumstances had occurred because she was no longer employed at White River Medical Center (WRMC) where she had been required to work weekends. Nicole alleged that she now works Monday through Friday and that the visitation schedule should be modified such that she will have the children every other weekend. Nicole further alleged that there was also a material change in circumstances regarding her need for support given that the parties now live a greater distance apart."], "id": "e4f81e3f-6768-4006-a4ce-525164be5ac9", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Seven years later, on August 18, 2016, Alicia filed a petition to terminate the guardianship. In the petition, Alicia alleged that the prior criminal charges against her had been nolle prossed. Alicia further alleged that she lived in a suitable home in West Memphis raising her two older children, that she was gainfully employed, and that she was a fit parent. The petition also stated that Jannelle had not abided by the order and had only allowed her only sporadic visitation with J.M. The petition further stated that, about a month earlier, Jannelle was homeless and had temporarily moved into Alicia's home with J.M. Finally, Alicia alleged that she and J.M. had bonded and established a strong parent-child relationship, and also that J.M. was bonded with his two older siblings. Jannelle filed a response, requesting that Alicia's petition to terminate the guardianship be denied. The trial court subsequently held a hearing on the petition."], "id": "57288dca-11dc-4d7f-aadd-82942e94c1f7", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["These parties must learn how to control themselves. This court has heard tape recordings of messages left on the father\u2019s cell phone which are both disgusting, shaky, clearly inappropriate and, if in fact the child has heard them, furthers her confusion and her belief that she needs to be aligned with her mother. These parties in the interest of their children must stop. The father must recognize that periods of are for him and him alone, that his events and places which he takes this child to are important to him but that a teenager may not benefit from such visits with others. The court recognizes the father\u2019s special role as a leader within the New York City Police Department. The court recognizes that when a police officer is unfortunately killed or injured in the line of duty the father\u2019s responsibilities become greater and there is the need to cancel visitation, but clearly the events that are important to the father, such as including the child in Father\u2019s Day celebrations with the fraternal organization, may not be in the child\u2019s best interest when their relationship is in and of itself shaky."], "id": "7b4efa43-8fb7-44e8-91fd-874fadfe5805", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Heather challenges several rulings, on many grounds. She contends the juvenile court erred: (1) by allowing C.W. to live in Louisiana with his father on a \"trial home visit\"-which she contends was done improperly without notice, without any ruling on her objections and without any judicial review after 90 days, all in contravention of the court's own local rules (see Super. Ct. Sonoma County Local Rules, rule 10.26); (2) by later deeming that visit to become a \"family maintenance\" placement-which she contends on many grounds was done improperly, in violation of section 386 without notice,20 in violation of the statutorily mandated standards and procedures under section 366.3, subdivision (f) for potentially returning a child to a parent's home during the permanency phase, without any findings that were required to be made under section 366.3, subdivision (e) at the periodic review hearings to ensure C.W.'s safety, and without any statutorily mandated oversight in the way of family maintenance services or even a case plan (see \u00a7 16506, subd. (c); \u00a7 16501, subds. (a)(2) & (g); \u00a7 366.3, subd. (e)(4)); Cal. Rules of Court, rule 5.740(b)(1), b(2); id ., rule 5.708(e)); (3) by allowing C.W. thereafter to be placed into the residential treatment program in Louisiana-which she contends was done improperly without the filing of a supplemental petition under *482section 38721 or compliance with the Interstate Compact on the Placement of Children (see Fam. Code, \u00a7 7900 et seq. ; id. , \u00a7 7911.1), and also in violation of section 361.21 which requires a determination that \"[i]n-state facilities or programs [are] unavailable or inadequate to meet the needs of the minor\" before a dependent child is placed in an out-of-state group home (\u00a7 361.21, *858subd. (a)(3)); and (4) by dismissing jurisdiction and awarding sole custody of C.W. to his father, a result she says was an abuse of discretion and unsupported by substantial evidence. She also challenges the order on the ground the court improperly delegated its authority to determine her visitation rights to C.W.'s therapists. Recognizing that she did not file separate appeals earlier to challenge the first three sets of claimed errors (and, did not object to several of them), Heather argues that those rulings exceed the court's jurisdiction, and as such are void and may be challenged at any time."], "id": "20e455c1-64a2-4e1a-9af4-2dc8a75d56c4", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Jean and Lewis, the natural parents of said child, entered into an agreement dated June 3, 1957 wherein Jean was given the custody and control of David with the right of by Lewis at all reasonable times. By the agreement Jean assumed *325and agreed to provide for the support and maintenance of said child while living with her. That subsequent to this agreement a decree of divorce was granted to Jean against Lewis in the Second Judicial District Court of the State of Nevada, County of Washoe, on the grounds of extreme mental cruelty, wherein the written agreement heretofore referred to was confirmed and approved by the court and it was continued and survived the entry of the decree and was not merged therein."], "id": "788acde9-ed6e-455c-b774-ce481f228653", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["A filiation order was issued in the Family Court of Erie County on April 26, 1971. The child was born on November 14, 1970. It was indicated at the trial that the natural father felt strongly before the birth of the baby that the natural mother should permit the baby to be adopted, the natural father so stating in court. This feeling continued for some period after the birth of the child even though the natural mother decided after giving birth that she would not consent to the adoption of the baby. The natural father contends that now that the child is older, while he has not contributed substantially to the child\u2019s support, he feels it better for the child\u2019s welfare that the Family Court filiation order be amended to permit regular rights. He feels this is more important than the stability that might be furnished by the child becoming legally a part of the family unit. The natural father was married in September, 1973. Testimony indicates the natural mother is now pregnant and both she and her husband testified they felt it better for the child to be legally part of their family unit. They further stated the anticipated birth of the child would in no way change their views so far as the adoption is concerned."], "id": "1c5905a2-226e-4a63-9d83-677c26f5fb97", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Notwithstanding the omission of JHO Radin\u2019s custody award to the mother in any of the judgments, it is apparent that the parties lived pursuant to JHO Radin\u2019s decision of January 31, 1997 and the judgments of divorce, as the mother exercised custody and the father exercised and paid the mother child support which was ordered in the amount of $252 per week. The father appealed the child support portion of the judgment to the Appellate Division and was not successful."], "id": "b00b589b-3545-4d46-8667-47ab79fa99a1", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["DHS supervisor Mydeana Bridges testified that between March and August 2016, DHS provided drug-screening services, drug assessments, transportation, a gas card, and homemaker services. She explained that C.H.3 had missed critical appointments at Arkansas Children's Hospital in Little Rock and that Stephanie would go to work and leave C.M. in charge of all three children. She said that Jonathan Napp never provided the background checks and forms that he was asked and ordered to provide. Loretta Harrell, a DHS program assistant, testified that there were issues with Stephanie's with the children. DHS presented a piece of hard candy as evidence. Harrell also said that Stephanie did not give C.H.3 \"the thickening and the milk\" that was in the backpack during the visits."], "id": "5918c4eb-a0fd-44ab-b373-74a0b66c1e91", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In this State a dispute would not excuse a father\u2019s violation of a court order for support of his child (see Grossman on New York Law of Domestic Relations, \u00a7 162, and cases cited; also, the discussion in \u201c Almandares \u201d v. \u201c Almandares \u201d, 186 Misc. 667). \u201c It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents for causes of which they are innocent and by proceedings to which they are not parties. The legal and natural duty of the father to support his children is not to be evaded by him * * * on the ground of any dissensions whatsoever with his wife. A natural father would not think of doing so, and an unnatural one should not be permitted to do so.\u201d (17 Am. Jur., Divorce and Separation, \u00a7 693, p. 529.) \u201c While the decree of divorce dissolves the marital relations of the parties, it did not divorce the father from his child or dissolve his liabilities to it.\u201d (Carmody on New York Practice [2d ed.], \u00a7 194, p. 293, citing Laumeier v. Laumeier, 237 N. Y. 357.)"], "id": "0f4a547e-3d5c-41d7-869f-79233cb1c09d", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Numerous court decisions across this country have protected mental-health professionals when they make mental-competency recommendations to courts, who must in turn decide whether a defendant may proceed under the \"normal\" course of the criminal laws. E.g. , Seibel v. Kemble , 63 Haw. 516, 631 P.2d 173 (1981). Some decisions involve courts relying on mental-health professionals to give opinions in the child-custody or realm, as our supreme court did in Chambers .1 It is a mistake, however, to hold that a psychiatrist performs a judicial function when his or her primary role is to treat a patient according to professional standards of care in the field of psychiatry, for example-an endeavor that is not integral to how the judiciary functions. If the Arkansas General Assembly chooses to evaluate the issue and expressly immunizes health-care personnel who treat Act 911 participants like Kenneth McFadden, then we have a different case. If the Arkansas Supreme Court evaluates the issue in a case on point and expressly confers immunity, then we have a different case. But this court should not award judicial immunity to Dr. Smith, not today."], "id": "8ab925e4-6ddf-413c-8af7-d02718980817", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the parties. Verzal v. Verzal, 29 Neb. App. 904, 962 N.W.2d 563 (2021). Equitable property division is a three-step process. Id. The first step is to classify the parties\u2019 property as marital or nonmarital. Id. The second step is to value the marital assets and marital liabilities of the parties. Id. The third step is to calculate and divide the net marital estate between the parties. Id. The ultimate test in determining the appropriateness of a property division is fairness and reasonableness as determined by the facts of each case. Id. Dler contends that he should not have been ordered to assume all of the parties\u2019 debts, but fails to mention that he was also awarded the majority of the parties\u2019 assets. The evidence showed the Dler had retained possession of most of the marital assets and the court awarded those to him. The only marital asset in the possession of Bari was a Honda Accord, which the court awarded to her along with the debt associated with the vehicle. She was also awarded the funds in two bank accounts. The other marital assets, which consisted of household furnishings, another vehicle, and \u201cmiscellaneous cash\u201d were awarded to Dler. The court\u2019s distribution and calculation resulted in Dler receiving nearly twice the amount of the parties\u2019 net marital estate as Bari. Accordingly, the court ordered an equalization payment to provide a fair and reasonable division of the marital estate. We find no abuse of discretion in the court\u2019s division of the parties\u2019 marital estate. Dler\u2019s last two assignments of error fail. CONCLUSION We conclude that the trial court did not abuse its discretion in its physical and legal custody and parenting time determination for the parties\u2019 three minor children, in ordering Dler to pay the costs associated with Rawez\u2019 counseling and his supervised , and in its division of the marital estate. Accordingly, the decree of dissolution is affirmed in its entirety. AFFIRMED."], "id": "07751541-4fe0-4063-a40e-7e87232f9849", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On November 29, 2016, the court held a pre-trial conference hearing. The court stated it had read the Department's jurisdiction and disposition report and watched a video-recorded interview of G.B. conducted by the child's therapist. The court noted that during the interview, G.B. appeared \"very happy,\" \"bouncy,\" and \"practically giddy,\" and she admitted to the therapist that mother's boyfriend never sexually abused her. The court warned that if it concluded the allegations against mother and her boyfriend were false, it would \"amend[ ] the petition to have the father be offending for calling in false allegations\" and issue a custody order giving \"sole legal, sole physical [custody] to the mother, with monitored for the father.\""], "id": "681fb87f-099a-4a6b-a2de-b41467dfd062", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["According to Swartz, reunification services ordered for Father included: attend abusive parenting classes; participate in supervised ; cooperate with CHFS; submit to random drug screens; and, complete a substance abuse assessment after any positive drug test. In describing Father's compliance, Swartz testified he submitted to some drug screens. According to the trial court's findings of fact, Father tested positive for marijuana, but failed to complete the substance abuse assessment. Swartz referred Father to abusive parenting classes at Centerstone Transitions where he attended only two classes-on April 18 and 25, 2016, before being discharged from the program. Via letter to Sisson, Amy Noll, Principal Therapist/Supervisor at the Transitions Unit of Seven Counties Services, Inc., described Father's performance in those classes."], "id": "4694b53d-b9c3-40ad-a712-d4ac8c1dfe92", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Although very broad jurisdiction over local correctional facilities has been delegated to the defendants, such jurisdiction does not include the regulation of . The 1975 legislation conferring regulatory powers upon the defendants cannot be said to have repealed sections 500-c and 500-j by implication. \"Repeals of earlier statutes by implication are not favored and a statute is not deemed repealed by a later one unless the two are in such conflict that both cannot be given effect.\u201d (McKinney\u2019s Cons Laws of NY, Book 1, Statutes, \u00a7 391; also, see, Matter of Corning v Donohue, 29 NY2d 209; Carter v Board of Supervisors of County of Nassau, 31 AD2d 945, revd on other grounds 25 NY2d 420.) Sections 500-c, 500-j and subdivision 6 of section 45 of the Correction Law are not in such conflict. It follows that the defendants were without authority to promulgate regulations pertaining to visitation and that 9 NYCRR Part 7008 is invalid."], "id": "628e270d-efb4-4540-bcc1-d1b780c40b3f", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The probable-cause order reflects that it was still in the children's best interest to remain in DHS custody because of AP's allegations of sexual abuse in the home. The circuit court also found that appellants did not have stable housing and that the children had many unexcused absences in school. The parents were granted supervised and ordered to (1) cooperate with DHS; (2) attend the case-plan staffing; (3) keep DHS informed of their address and phone number; (4) refrain from using illegal drugs or alcohol; (5) obtain and maintain stable housing, employment, and a clean, safe home; (6) demonstrate the ability to protect the children; (7) maintain contact with their attorney; and (8) follow the case plan and court orders."], "id": "1299056d-fe5b-47de-a84c-3a96217fa75d", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["A probable-cause order was entered on March 14, 2016, finding that probable cause for D.J.'s removal existed and continued to exist by stipulation of the parties. Because a named father had yet to be added as a party to the matter, \"any legal and biological father\" was ordered to submit to random drug screens, complete a drug-and-alcohol assessment, complete a counseling assessment, complete a psychological assessment, and maintain stable housing and income. Appellant was ordered to establish paternity, and all and services were ordered to begin for him once his paternity was established. Appellant was not present at the hearing, but a positive drug test for THC from appellant was submitted as an exhibit."], "id": "34973cec-dfa3-4cbe-821a-0ebd6587725a", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On October 19, 2015, the father entered a stipulation of neglect and waived a formal adjudication hearing, and the following day, the family court entered an adjudication order finding the child to be neglected pursuant to Kentucky Revised Statutes (KRS) 600.020(1), continuing to place the child with the mother, and permitting the father to have supervised at the Butterfly House. The court found that the father had been charged with fourth-degree assault that had been committed in the child's presence."], "id": "f24a1841-dc7a-47e2-adbb-89c15d439423", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["On January 11, 2017, the court entered a permanency-planning order. The court authorized DHS to proceed with termination of Stampley's parental rights, although the court found that Abdi had made substantial, measurable progress and ordered that services to him should continue. The court believed placement with Abdi could occur by or at the next hearing, which would be within three months. The court granted Abdi unsupervised at the DHS office with progression to day visits at Abdi's home, at DHS's discretion. The court further ordered him to ensure that all his criminal fines, fees, and requirements were up to date."], "id": "79b35e9f-6a62-4b66-b898-7403264da426", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In the event defendant fails to pay the retainer in accordance with this court\u2019s decision, the clerk is directed to enter a *278judgment for such amount upon Ms. Douglas filing an affidavit of noncompliance. (Domestic Relations Law \u00a7 244; Stephens v Stephens, supra.) This is in addition to Ms. Douglas moving for any other available remedy, including contempt and a stay of defendant\u2019s right to go forward with his claims for custody and/or increased until the contempt is purged. (Wolf v Wolf, 50 AD2d 740 [1st Dept 1975]; Naveja v Naveja, 110 Misc 279 [Sup Ct, Queens County 1920]; Moncrief v Moncrief, 155 NYS 592 [Sup Ct, NY County 1915].)"], "id": "6a0e12d4-506d-45ed-be95-c3253d9e4201", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["This case also presents similarities to a more-recent case, *664Nein v. Columbia , 517 S.W.3d 492 (Ky. App. 2017). In Nein , as in the current case, the paternal grandparents were the primary daycare providers for the child for most of his life. In addition to the close bond between the child and the grandparents, the grandparents also gave both mother and child significant financial support. Furthermore, there was evidence that the lack of contact had a negative impact on the child. The child told the court that he wanted to spend more time with his grandparents. In addition, the court noted that the mother's decision to restrict was motivated, in part, by the grandmother's refusal to lend her money. The court noted that the mother would likely discontinue all visitation in the absence of a court order. Id. at 497. In light of all of this evidence, the trial court in Nein found, and this Court agreed, that the grandparents rebutted the presumption that the mother was acting in the child's best interests. Id. at 498."], "id": "8e6857c9-7479-46ef-b0ab-bd3ebc217f7c", "sub_label": "US_Terminology"} {"obj_label": "Visitation", "legal_topic": "Family Law", "masked_sentences": ["The petition alleging neglect is supported by a fair preponderance of the evidence. Custody of both children is awarded to the petitioner. rights of the mother may be agreed upon between the attorneys for the parties, on the condition that the mother shall not have visitation at any time when she is in the company of or entertaining male companions, to whom she is not married."], "id": "6aa69f0a-7d48-4329-a0f7-e8ccca18ad7b", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In addition, this court finds that Nadeem has not attained an age and degree of maturity to warrant this court to take account of his views so as to avoid his return to London. He is only nine years old. The in camera interview revealed that Nadeem did prefer to stay in the United States. However, this appeared to be very much the result of his being wooed by his father during the . Given Nadeem\u2019s age and maturity, this reaction to the summer vacation is to be expected."], "id": "91fa544e-cecb-4d74-b451-81547f300381", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["As a general rule, failure to object at the hearing forfeits a claim of error on appeal. ( In re Dakota H. (2005) 132 Cal.App.4th 212, 221, 33 Cal.Rptr.3d 337 ( Dakota H. ); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, 63 Cal.Rptr.2d 562.) The parents not only failed to object to the proposed scope of the hearing; each expressly agreed to it. Mother's attorney stated that the law required a showing of detriment to oppose the recommended tribal customary adoption, and expressly acknowledged that Mother's testimony about her feelings and \"do[ ] not necessarily go to the crux of the [tribal customary adoption] issues.\" Father's attorney similarly stated on the record that minors' counsel's motion in limine provided the court with \"an accurate reflection of the law.\" This acquiescence to the scope of the section 366.26 hearing forfeits the parents' right to claim on appeal that the court improperly limited the scope of the hearing. ( Civil Code, \u00a7\u00a7 3515, 3516 ; Dakota H., at p. 221, 33 Cal.Rptr.3d 337.)"], "id": "e01aa366-6d12-41e5-a4d1-31c5f4126e28", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Kelly and Angie Hewett were divorced on October 29, 2012. Based on an agreement of the parties, the court awarded Angie primary custody of the couple's son, who was five years old at the time, and awarded Kelly standard . The record reflects that the parties have had significant difficulty communicating since the divorce and that they have continually argued. In 2013, Angie obtained an ex parte order of protection against Kelly, which was dismissed after a full hearing and that which resulted in the court increasing Kelly's visitation. In August 2016, Angie obtained an ex parte order terminating Kelly's visitation, stemming from an incident on July 31, 2016, in which Kelly's current wife, April Hewett, called Angie and reported that April and Kelly had gotten into an argument, Kelly had been drinking, the police had been called, and Kelly had left with G.H. to go to a hotel room. Angie retrieved G.H. from the hotel room and refused to allow Kelly to have further visitation. The court entered an ex parte order suspending Kelly's visitation but subsequently vacated the order and reinstated visitation after a full hearing."], "id": "0a1a8d1b-55e6-4ea2-b362-9e1a67944733", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Indeed, the Family Court is regularly used to modify or enforce custody, support and other matters involving children. This court recognizes that in most counties, concurrent jurisdiction for modification and enforcement of Supreme Court orders is the norm.3 The Family Court has more free resources available to it. It maintains a clinic with professional psychologists and certified social workers, which makes it easier for the *251pro se litigant to enforce or modify not only custody and , but also child support and maintenance. The Supreme Court has no internal resources for these matters."], "id": "5bbc045a-884e-45d9-a22c-2a668cfff8d7", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["A person seeking appointment as guardian files a petition with the court, pursuant to Probate Code section 1510, upon which the court sets a hearing. (See Prob. Code, \u00a7 1511.) Unless waived by the court, a court investigator investigates each proposed guardian, thereafter filing a report with the court, which the court must read and consider prior to ruling on the petition. ( Prob. Code, \u00a7 1513.) On proper showing, the court appoints the guardian by issuing an order appointing the guardian, as well as letters of guardianship. ( Prob. Code, \u00a7\u00a7 2310, 2311.) \"The parent's rights over the child are suspended for the duration of the probate guardianship. ( Fam. Code, \u00a7 7505, subd. (a) ; [citation].) However, the court retains discretion to grant , and may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest. ( [Citation]; [Prob. Code] \u00a7 1601.)\" ( Guardianship of H.C. (2011) 198 Cal.App.4th 160, 1245, 198 Cal.App.4th 1235, 1245, 130 Cal.Rptr.3d 316, as mod. on den. of rehg. (Sept. 1, 2011).) Thus, while the legal community often refers to the issuance of letters of guardianship as the order of \"permanent\" guardianship6 , no guardianship is truly permanent, and any can be revoked by court order on an appropriate showing. If not terminated *1049by court order, the guardianship ends once the child attains majority, dies, is adopted, or becomes emancipated. ( Prob. Code, \u00a7 1600.)"], "id": "759c15a9-bbfe-4cdc-beae-ace7841b5679", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The court rejects petitioner\u2019s arguments that the new statute is \u201cpunitive\u201d or an ex post facto measure creating a new sanction for petitioner\u2019s criminal act. As stated earlier, with his son is not solely Mr. R\u2019s \u201cright\u201d. Visitation is a right jointly shared by parent and child, intended to benefit both. Nevertheless, it is the child\u2019s interest that is paramount and it is the child\u2019s interest that the new legislation addresses. The Legislature has twice demonstrated its concern for the impact on children of acts of domestic violence inflicted by one parent against the other, first in the 1996 amendments, and now in chapter 150. These laws reflect a public policy determination that children are to be protected from exposure to domestic violence, and as such they may be considered remedial in nature."], "id": "e2210c60-c6c5-4cb4-b748-baa5f376af53", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The father here also argues that his 15-plus-year estrangement from his sons was the fault of their mother who \u201cpoisoned\u201d them against him. Such mitigating circumstances or reasons for a parent\u2019s abandonment of his children, even if supported by credible evidence,2 are immaterial to an inquiry under EPTL 4-1.4. The sole inquiry is whether the parent did or did not, in fact, by his own voluntary action discontinue performance of his legal duty of personal training and care of his children (Matter of Schiffrin, supra). It has been noted that if the other parent were to blame for his separation from his children, he had legal remedies he could have pursued through the courts (Matter of Emiro, supra; Matter of Schiffrin, supra). Even a court order restricting parental , while it may lessen the measure of the parent\u2019s obligation, does not eliminate it, so that, in determining whether the noncustodial parent has fulfilled his responsibility of care and training to the extent permitted by the order, the test is whether there is a failure to meet even this reduced standard (37 NY Jur 2d, Death \u00a7 274). The fact is that, regardless of his motives, the father here elected to absent himself from decedent\u2019s life and is thereby disqualified from inheriting (Matter of Gonzalez, supra). The father here did not even exercise his court-ordered visitation rights, nor did he pursue any legal remedy to their alleged denial. Such failure to avail oneself of court-ordered visitation evinces an intent to voluntarily relinquish such rights (see Estate of Kris Robert Hughes, supra)."], "id": "29e9941e-5829-4c8e-9fd0-aa5633b10b07", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The witness to the will, Nellie M. Drummond, first testified that she was walking in a northerly direction on the westerly side of Warburton avenue on the day of the will making. Later, she was not positive as to whether she was on the westerly or easterly side of the avenue. She says Mr. Oliver beckoned to her from the *515window to come into the house, which is located eight)' feet back from the easterly side of the street line. She says: \u201c By the time I got across the street and up the path he was on the front porch and said: \u2018 Nell, I wish you would come in here and do something for me/ \u201d This witness also testified, first, that Mr. Oliver was standing in the window next to the front door. Subsequent to the date of that testimony a picture of the house, taken during the trial at the court\u2019s request, was offered in evidence, which discloses the fact that there is a heavy wistaria vine which almost covered the entire front porch, making it barely possible for a person standing on the sidewalk to observe a person standing in the window next to the front door. Later, her testimony on this point was changed so that Mr. Oliver was standing in the window of the dining room, which the same picture discloses to be quite free from obstruction. Miss Drummond testified that she did not see the housekeeper at the time of her ."], "id": "169e2355-f7eb-410e-a18f-7bdad2010601", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Standard custody disputes are not usually subject to res judicata because the \"best interests\u201d of children are more important than any of the benefits of closure. As stated in Matter of Bachman v Mejias (1 NY2d 575, 582 [1956]), \"[a] child is not a chattel\u201d and a proceeding need not be accorded res judicata effect when the best interests of the child dictated otherwise (Matter of Berlin v Berlin, 21 NY2d 371 [1967]). However, this case is not a standard custody and dispute between parents, in which the court is always obligated to inquire into the best interests of the children, but rather, a grandparent visitation case in which the court already determined that the issue of \"best interests\u201d should not even be reached; the court has already decided that equity did not require that petitioner be given standing to sue (Matter of Gloria R. v Alfred R., supra)."], "id": "2032d1ab-75d8-4916-ad18-c3325878e43a", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Felice K. Shea, J. In this action for divorce, the court must determine whether or not to order joint custody of the parties\u2019 infant daughters, ages five and seven. The plaintiff mother seeks sole custody of *643the children, with liberal to the defendant father. Defendant urges that custody be awarded jointly and that the children divide their time equally between the two homes. In the alternative, the father requests that he be the custodial parent."], "id": "09517915-0b20-41b3-b222-be1c893e35bd", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["At the adjudication hearing, Sills was again present and still unrepresented. The court entered an adjudication order finding that Sills had been served by certified mail. The court also found B.S. to be dependent-neglected due to parental unfitness and the drug use of the mother and that Sills had not contributed to the dependency-neglect of the child. However, the court further found Sills was not a fit parent for purposes of custody and . The court continued its previous orders and specifically ordered Sills to resolve his criminal issues and to complete the case plan and court orders before placement or visitation would be provided."], "id": "bad82ad8-1003-43d7-9e5d-b65fc9b18a00", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["In response to the court stating A.B. would move in January 2018, between semesters, Mother replied, \"Your Honor, I fear that-[A.B.] is very grown-up. And he has-he can't-him and his father are not in good communication. It's going to go really bad for [A.B.].\" The court replied that the parties presented their evidence and he followed the law. Mother ignored the rules for seven years. Mother responded that Father was unavailable, as reflected in e-mails. The court told Mother she had conceded at the beginning of the case that she had violated the custody order, and did so for seven years. Mother replied, \"I did. He wasn't around for the weekends. I did everything I could. He's far away.\" The court nevertheless ordered A.B.'s custody changed from Mother to Father, with for Mother."], "id": "c833ce29-c9cc-4ce7-8cb5-9b6c79a9627e", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["*896On April 19, 2017, the trial court heard Maya's motion to set aside the default, Maya's sanctions request in connection with the motion to set aside the default, Cody's motions to quash the two subpoenas regarding his *1140medical treatments, and Maya's additional requests regarding custody, , child support, and $100,000 in attorney fees. The trial court denied Maya's motion to set aside the default and the related request for sanctions, granted Cody's motions to quash the VISIONS and Cedars-Sinai subpoenas, and denied Maya's additional requests, including her request that Cody be ordered to finance her attorney fees."], "id": "d70e3287-0a07-43b9-b72c-04e686896626", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["\u201cAn inmate\u2019s right to a contact visit may be limited or denied only when it has been determined that such visits constitute a serious threat to the safety or security of a facility. Should a determination be made to limit or deny an inmate\u2019s right to contact visits, alternative arrangements for affording the inmate the requisite number of visits shall be made, including but not limited to non-contact visits. This determination must be based on specific acts committed by the inmate while in custody under the present charge or sentence that demonstrates his/her threat to the safety and security of an institution, or on specific information received and verified that the *539inmate plans to engage in acts during the next visit that will be a threat to the safety and security of the facility. Prior to any determination, the inmate shall be provided with written notification of the specific charges and the names and statements of the charging parties, and be afforded an opportunity to respond. At the inmates\u2019s request, this determination shall be reviewed by the Deputy Warden for Programs every thirty (30) days\u201d (emphasis added). Petitioner\u2019s argument that the Department denied him his due process rights by violating the provisions of this Directive is persuasive. As noted above, petitioner was subjected to a mandatory drug test on January 11, 2008, to detect the presence of controlled substances.5 Five months later, after testing positive for THC-marijuana and serving his punitive segregation time, petitioner received a visitor and was placed in a non-physical-contact booth for the entire visit. Petitioner contends, and the court agrees, that the Department has proffered no relationship, causal or otherwise, between the petitioner\u2019s positive drug test and the indefinite revocation of his contact visits. More significantly, the Department has abjectly failed to demonstrate any act of the petitioner suggesting that he poses a threat to the safety and security of the correctional institution. Where an inmate\u2019s behavior bears no relation to his contact visits, such visits may be neither revoked nor limited (Dawes v State of New York, 194 Misc 2d 617 [2003]). Quoting Kozlowski v Coughlin (871d 241, 242 [2d Cir 1989]), the court stated that \u201c sanctions may not be employed to punish or discipline . . . [0]nly misconduct between an inmate and a specific visitor can result in deprivation of visitation rights.\u201d (Dawes at 618.) It is especially interesting to note that while the revocation of contact visits in Dawes was based on the inmate\u2019s violent behavior, there was no demonstrable relationship between that behavior and the contact visits. As such, the revocation of contact visits was held to be improper. Surely then, where the inmate\u2019s behavior was entirely nonviolent, e.g., drug use, and had no relationship to any contact visits, revocation of contact visits is improper."], "id": "4f05455a-d823-495e-83c9-48e2a3e05a92", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["With respect to Family Court\u2019s determination that the adoption be conditioned upon with respondent and the maternal grandparents, we find it to be in error. Social Services Law \u00a7 384-b contemplates an adversarial proceeding. It does not contain a provision that upon a determination that parental rights should be terminated a court can require or permit contact by and between a biological parent and a child who has been adopted. While Family Court was correct that the Legislature has amended Social Services Law \u00a7 383-c to allow a parent to condition a voluntary surrender for adoption upon, inter alia, contact with the child or information concerning the child, the proceeding herein did not involve such a voluntary surrender. Accordingly, the provisions of Social *869Services Law \u00a7 383-c are wholly inapplicable and, therefore, Family Court was without authority in this adversarial proceeding to require such continued contact as a condition of adoption."], "id": "22a4bb08-c6e6-499c-a1a2-02fd5d2bf970", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["With respect to the first question, we hold that the order of adoption is controlling and that its effect is to supersede the prior order of the Supreme Court, Bronx County. The Supreme Court order appears to have been the culmination of a proceeding initiated by either writ of habeas corpus or order to show cause for the sole purpose of establishing custodial and rights. In such a proceeding the Supreme Court acts as parens patria of the infant and, motivated exclusively by what is in the best interests of the child, makes a decision which is at best temporary in nature and always subject to review or modification. At the time when that proceeding was argued, it must be remembered that the natural mother had died and that the natural father was incarcerated; It could not seriously be argued that the determination of custody would, for example, he of such a permanent nature as to preclude the natural father upon release from jail from seeking to obtain custody of his natural horn son. The order granting custody to Mary Rado and visitation rights to the petitioner would stand until modified by a subsequent order of the Supreme Court or until another court of competent jurisdiction would make a permanent change in status."], "id": "58b30f77-8dca-45bf-8948-bd42182e6e20", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["I would hold that at no time should a twelve-year-old child be in a position of dictating to a parent when will occur. Adults are in charge of children. The adults in this case failed in their responsibility. And, by this decision, the trial court has allowed the adults to abandon their responsibility of determining what is in the best interests of children. I cannot concur with that result."], "id": "76ea7caa-6ca0-422a-9db9-d8a9fdb623cd", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["The sixth cause of action alleges that defendant Druzba\u2019s conduct in interfering with plaintiffs rights constitutes the tort of intentional infliction of emotional harm. This court, in a related action, analyzed in great detail the viability of such a cause of action within the context of a matrimonial dispute (Harley v Harley, Sup Ct, Rensselaer County, Sept. 30, 1989, Keniry, J.). The court reasoned in that case that an action by a spouse against a spouse and a mother-in-law for the intentional infliction of emotional distress did not lie for policy reasons."], "id": "5cea21b0-9eb4-4d5e-a300-6c5ca12a8227", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["A social worker who investigated stepdaughter's case testified that stepdaughter was \"very fearful\" and \"very embarrassed\" and felt \"a tremendous amount of guilt that she hadn't come forward earlier\" to protect Daniela. The worker also characterized Daniela as \"a very young eight-year-old\" who was \"not sophisticated\" and might not \"even know[ ] what sex is\" or fully understand what father had done to stepdaughter except that it was \"something bad.\" This worker agreed it would be \"harmful\" to both girls if they had to testify in court in front of father. The worker also indicated that with father would be detrimental to Daniela because father had engaged in \"grooming behaviors,\" denied any abuse, and failed to seek treatment."], "id": "e5eb2cc7-166b-405c-8f49-2c86b81a1c29", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["\u201c[t]he court should also ascertain the wishes of the children, particularly when, as here, the children are of a sufficient age to articulate their needs and preferences to the court [citations omitted]. While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful [citation omitted].\u201d The Court went on to state that the preferred practice in a custody/ case, in order to determine best interest, is to have an in camera interview with the child on the record in the presence of the Law Guardian. In the case at bar, independent forensic evaluations on consent have been conducted pursuant to 22 NYCRR 202.16 (f) (3), and as indicated above, an in camera interview has already been held of the child. After the court hears testimony from the independent neutral forensic evaluator as to the effect of a second in camera interview on a child of this age, given the history of the breach of this child\u2019s confidentiality by the father obtaining the prior Family Court in camera interview with the child, this court will determine whether another in camera interview would serve a \u201cuseful purpose\u201d (see Mascoli v Mascoli, 132 AD2d 653 [2d Dept 1987]) and whether the appointment of a guardian ad litem is necessary."], "id": "442e9fc0-44b5-4918-9fb2-713320f99c6c", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["While we note that, during a period of time in 2020, COVID-19 may have prevented Mother from having in-person contact with Riley regardless of Mother\u2019s inability to pass the random drug screens, Mother had been denied in-person based on her drug use for several months leading up to Montgomery County\u2019s decision to cease in-person visitation, and she continued to test positive for illicit substances throughout the entire DCS case. - 11 - DCS created three permanency plans with each plan pertaining to both Mother and Father. Each plan required Father to: (1) make voluntary child supports payments; (2) maintain consistent visitation with Riley; (3) obtain a legal source of income and provide proof to DCS; (4) notify DCS when adequate housing was obtained and provide proof of rent and utilities; (5) allow DCS to conduct a walkthrough of the family home; (6) complete a non-self-reporting alcohol and drug assessment and comply with all recommendations; and (7) fully care for the child at visitations."], "id": "5bb37f5a-a213-4c20-b0e0-17d5c67d5216", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["DHS is mistaken on the law. An adopted individual becomes a stranger to his or her blood relatives, save one exception for sibling . See Ark. Code Ann. \u00a7 9-27-341 (c)(1) (Supp. 2017); Ark. Code Ann. \u00a7 9-9-215 (Repl. 2016); see also Suster v. Ark. Dep't of Human Servs. , 314 Ark. 92, 97, 858 S.W.2d 122, 125 (1993) (\"These statutes point to a public policy which, in determining what is in the child's best interest, favors a complete severing of the ties between a child and its biological family when he is placed for adoption.\")."], "id": "3c541013-db07-45de-acee-a828e46246ad", "sub_label": "US_Terminology"} {"obj_label": "visitation", "legal_topic": "Family Law", "masked_sentences": ["Trial courts have great discretion in fashioning child custody and orders. We therefore review those orders for an abuse of discretion. ( In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497, 179 Cal.Rptr.3d 569 ( Fajota ).) \"A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child. [Citation.] A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions . [Citation.]\" ( Id ., at p. 1497, 179 Cal.Rptr.3d 569.) \"An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court's determination, we uphold the determination so long as it is reasonable."], "id": "65eb06ee-c28b-4019-bc7c-5aaf85d05c82", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After Mr. Kern went into the house, Mr. Crumb said he had desired to give Emma Crumb a little remembrance, and to give a half sister something, to which Mrs. Crumb said that his relatives had never done anything for him and had never treated him decently, and he was under no obligations to give them anything, and so far as the other persons were concerned, she would carry out his wishes if she lived the longest; whereupon Mr. Crumb said: \u201c I have *485had Mr. Kern draw the wills as we agreed, embodying this arrangement.\u201d At this point of time Mr. Kern said to Mr. Crumb he had drawn the wills in pursuance of what he had told him, and that they were ready for execution, whereupon Mr. Crumb signed the will, declaring it to be his last will and testament, and requesting Mr. and Mrs. Kern to sign the same as witnesses, which they immediately did in his presence; that the said will was not read by Mr. Crumb before its execution, nor was it read to him by anyone, nor had he seen it before this time; that from the time the will was drawn Mr. Kern had the of it, and he had not disclosed its contents to any one; that, immediately after the will was executed, Mr. Kern and Mr. Crumb left the house together and went down town, leaving the will upon the table, Mrs. Crumb\u2019s will being also executed at the same time, and left in the same place."], "id": "f4aa7fa7-6b02-478a-956b-1a4c48aaadd3", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Shortly thereafter, Mother and Father were reincarcerated. The family court suspended Father's visitation and awarded L.B. and B.B. . Both biological parents were paroled in 2016. Father's Day, June 19, 2016, was the last day either Father or Mother visited with Child. Both were reincarcerated in 2017, when Mother violated the terms of her parole and the Commonwealth charged Father with robbery."], "id": "349d7bf7-c751-4df5-9c0b-59fc1a2804d6", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Finally, Kali argues that the custody order should be set aside because the family court failed to appoint a guardian ad litem (GAL) for S.J.C. during the custody proceeding. However, Kali did not raise this issue at any point before the *419family court. Furthermore, while a GAL must be appointed for a child in termination proceedings, KRS2 625.041, appointment of a GAL in custody matters is generally permissive. See Morgan v. Getter , 441 S.W.3d 94, 106 (Ky. 2014), citing FCRPP3 6(2). Given Kali's failure to raise this matter in support of her CR 60.02 motion before the family court, we decline to address the issue further. Consequently, any matters relating to custody must be addressed in the Grayson Circuit action based upon Kali's prior waiver of her superior right to ."], "id": "f23b151f-46f9-4ffb-aeea-e60e5e2a35cf", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Heather challenges several rulings, on many grounds. She contends the juvenile court erred: (1) by allowing C.W. to live in Louisiana with his father on a \"trial home visit\"-which she contends was done improperly without notice, without any ruling on her objections and without any judicial review after 90 days, all in contravention of the court's own local rules (see Super. Ct. Sonoma County Local Rules, rule 10.26); (2) by later deeming that visit to become a \"family maintenance\" placement-which she contends on many grounds was done improperly, in violation of section 386 without notice,20 in violation of the statutorily mandated standards and procedures under section 366.3, subdivision (f) for potentially returning a child to a parent's home during the permanency phase, without any findings that were required to be made under section 366.3, subdivision (e) at the periodic review hearings to ensure C.W.'s safety, and without any statutorily mandated oversight in the way of family maintenance services or even a case plan (see \u00a7 16506, subd. (c); \u00a7 16501, subds. (a)(2) & (g); \u00a7 366.3, subd. (e)(4)); Cal. Rules of Court, rule 5.740(b)(1), b(2); id ., rule 5.708(e)); (3) by allowing C.W. thereafter to be placed into the residential treatment program in Louisiana-which she contends was done improperly without the filing of a supplemental petition under *482section 38721 or compliance with the Interstate Compact on the Placement of Children (see Fam. Code, \u00a7 7900 et seq. ; id. , \u00a7 7911.1), and also in violation of section 361.21 which requires a determination that \"[i]n-state facilities or programs [are] unavailable or inadequate to meet the needs of the minor\" before a dependent child is placed in an out-of-state group home (\u00a7 361.21, *858subd. (a)(3)); and (4) by dismissing jurisdiction and awarding of C.W. to his father, a result she says was an abuse of discretion and unsupported by substantial evidence. She also challenges the visitation order on the ground the court improperly delegated its authority to determine her visitation rights to C.W.'s therapists. Recognizing that she did not file separate appeals earlier to challenge the first three sets of claimed errors (and, did not object to several of them), Heather argues that those rulings exceed the court's jurisdiction, and as such are void and may be challenged at any time."], "id": "ca4e41d6-f8f8-44ab-98e3-408da717a6cb", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["However, plaintiff shipper\u2019s tried cause of action is based upon negligence and not barred by any subsequent ratification by acceptance of a check, visibly and patently stale (Uniform Commercial Code, \u00a7 4-404) and altered on its face so, in effect, a worthless piece of paper, not fiscally revivable and collecting nothing. (Joseph Mogul, Inc. v C. Lewis Lavine, Inc., 247 NY 20 [Cardozo, Ch. J.]; see Freedman & Slater v Great Lakes Forwarding Corp., 7 AD2d 978, 979, which expressed definite doubt and a contrary holding [based upon right, if not duty to avoid damages] about the 1879 Rathbun decision.) This court takes judicial notice that 1879 was one year after opening of the first commercial telephone exchange (January 28, 1878, New Haven, Conn.) and predated the following inventions and development thereof: automatic and radio telephone (1891, 1902, 1906); wireless telegraph (1896); radio receiver and transmitter (1913-1914); radio signals (1895); teletype (1928); phototelegraphy (1925); iconoscope and electronic television (1923, 1927) and the entire transcontinental telecommunications and computer technological revolution over the past 50 years. (See The World Almanac & Book of Facts [1976], p 807 et seq.) Surely, such modern technology in February, 1974, imposed a duty upon defendant, a well-known and highly regarded interstate motor carrier, with national facilities to contact shipper before acceptance of a patently stale and altered check and delivery of subject C.O.D. shipment. It was only carrier (not shipper) who had and control to relinquish possession of subject C.O.D. shipment at the moment of unauthorized acceptance of such check that was, on *45its face, stale and altered. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation. (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344 [Cardozo, J.].) While the parties\u2019 original relation was conceived in contract, whose duties are based upon intention, American courts have extended tort liability for misfeasance, as herein, to virtually every type of contact where defective performance injures the promisee, i.e., an agent collecting upon a note. (See Prosser, Law of Torts [4th ed], \u00a7 92, pp 613-621.) A carrier receiving a C.O.D. shipment is not only a bailee to transport goods but also an agent to receive or collect the price. (See Joseph Mogul, Inc. v C. Lewis Lavine, Inc., supra p 22.)"], "id": "466527cd-ba36-4dcb-9e88-196dfffcc335", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In People v Henson (33 NY2d 63 [1973]), the Court of Appeals ruled that the introduction into evidence of matters concerning the defendant\u2019s alleged prior conduct toward the child/victim constituted reversible error. This case is distinguishable in that the evidence in Henson related to prior conduct of the defendant where the case at bar does not deal with prior conduct. However, the Henson Court went on to ad*32dress the issue of admissibility of expert medical testimony concerning the \u201cBattered Child Syndrome\u201d. In Henson questions were posed by the prosecutor to medical experts that were designed to elicit testimony about the so-called \u201cBattered Child Syndrome\u201d. The defendant objected and the trial court sustained the objection. On appeal, the defendant argued the questions themselves prejudiced the jury. The Court held (at 73) \u201cthe trial court would have been entirely justified in allowing the witness to respond to the questions as part of the prosecution\u2019s offer of circumstantial proof\u2019. The Court of Appeals concluded by stating (at 74) \u201cThis sort of expert medical testimony \u2014 that the victim is a \u2018battered child\u2019 \u2014 coupled with additional proof \u2014 for instance, that the injuries occurred while the child was in the of the parents \u2014 would permit the jury to infer not only that the child\u2019s injuries were not accidental but that, in addition, they occurred at the culpable hands of its parents.\u201d"], "id": "74fe9707-cf9e-410b-9e37-d81272042124", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Morton I. Willen, J. The plaintiff mother in this proceeding, M.A.B., applied to the court in June 1985, seeking to modify a judgment of divorce entered June 14, 1984. She wishes the court to permit her to move to Florida with her three children. The defendant father, R.B., cross-moved for a modification of the same divorce judgment, seeking to have of their 12-year-old son, B., awarded to him. He does not seek custody of the two younger children and opposes their removal to Florida. The matters were consolidated and a trial was held starting in March 1986, and concluded in May. The matter was reopened at the mother\u2019s behest in September based on subsequent facts and finally completed in October."], "id": "4320629e-2326-436d-9f0d-d53b52f51ff2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, the 2018 Modification Judgment granted Father's motion to modify the 2014 Judgment. Under the 2014 Judgment, Mother had sole legal and physical custody of Daughter. The 2018 Modification Judgment awarded joint legal and physical custody as well as transferred residential custody of Daughter from Mother to Father. In order to modify the 2014 Judgment, Father must have shown a change in circumstances since the 2014 Judgment. Section 452.410.1. Notably, that change must be substantial because the trial court reversed Mother's and removed Daughter from the home where she lived with Mother from approximately age five to age nine. Tienter, 482 S.W.3d at 490 (citing Russell, 210 S.W.3d at 197 );"], "id": "5a633916-fb3f-47e5-8d0e-bb77cc5cf699", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Contrary to the mother\u2019s contention, under the circumstances presented here, the Family Court providently exercised its discretion by, in effect, granting the father\u2019s petition for of the child Lawrence, Jr., and by, in effect, granting the father\u2019s separate petition to modify a prior custody order so as to award him sole custody of the child Larry, Jr. The Family Court possessed adequate relevant information to enable it, without a hearing, to make an informed and provident determination that it was in the best interests of the subject children to award sole custody to the father (see Assini v Assini, 11 AD3d 417 [2004]; Matter of Porter v Burgey, 266 AD2d 552 [1999])."], "id": "2901707e-9cb1-453e-9960-4e1f0bd5c06e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A parent\u2019s obligation in raising a child is owed to the child, not to the other parent. \u201c[C]hildren are entitled to the love, companionship, and concern of both parents. So, too, a joint award [of custody] affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child.\u201d (Braiman v Braiman, 44 NY2d 584, 589 [1978] [emphasis added].) Thus, where joint custody is awarded, it is done for the purpose of enhancing each parent\u2019s ability to promote his or her child\u2019s best interests. Joint custody allows both parents to \u201cwork together in a cooperative fashion for the good of their children.\u201d (Matter of Jemmott v Jemmott, 249 AD2d 838, 839 [3d Dept 1998] [emphasis added], lv denied 92 NY2d 809 [1998].) If one parent ceases to cooperate with the other, the aggrieved parent\u2019s recourse is to seek a termination of joint custody and an award of to protect the best interests of the child. The non-offending parent does not become entitled to money damages for the breach because it is not to the parent that the duty is owed. None of the cases cited by plaintiff would warrant this court finding such a duty by extension of existing law."], "id": "87799a60-a2ca-4e87-b76a-dac393765271", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["By a notice pursuant to CPLR article 31 dated January 31,1984, the defendant seeks to take the oral depositions of the plaintiff and her current husband with respect to evidence material and necessary in the prosecution of his application for . The notice states that \u201cthis is NOT A FINANCIAL EXAMINATION. IT IS NECESSARY FOR THE PROSECUTION OF THIS ACTION.\u201d"], "id": "2251af46-4488-4eb3-aafc-df5055fc95ea", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Christopher C. (\u201cFather\u201d) and Samantha L. (\u201cMother\u201d) are the biological parents of one child, Hailey C. Father and Mother were never married. After the couple separated, Mother and Hailey moved in with the maternal grandmother in Kentucky. Father moved to Tennessee. On August 7, 2015, a Kentucky court awarded of the child to Mother. Father had parenting time every other weekend. He was also ordered to pay monthly child support."], "id": "4e00adda-cbcb-4c46-a3da-bd4a1d76fac5", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In addition to Burns and Hendricks's children, Hendricks has given birth to three other children. Her rights to one of those children has been terminated, and her other two children are in the of their father. Hendricks's parental rights to EB and LB were also terminated in this action; however, Hendricks is not a party to this appeal."], "id": "87a4ed19-c48c-4c7b-beae-ef737161ada9", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["6 These documents were Exhibits A through H in opposition to mother\u2019s request for an order; Exhibits 1 through 16 concerning text messages and other items relating to an alleged rape incident in Las Vegas; mother\u2019s request for order; mother\u2019s August 20, 2020 declaration; father\u2019s August 21, 2020 declaration; and father\u2019s September 21, 2020 responsive declaration. have to do with your request today to have possible of the [children]? \u201c[Mother]: It\u2019s a [section] 3044 request as well. So I want a domestic violence finding if Your Honor will be willing to. \u201cThe court: You\u2019ve already made that request, and it was denied. \u201c[Mother]: I didn\u2019t know that that request was made before. I didn\u2019t have\u2014 \u201cThe court: You\u2019ve made it multiple times. And I can tell that the speech I gave you fell on deaf ears. And you\u2019re not required to listen to my speeches, but I went through this with you last time. And nothing\u2019s changed. [\u00b6] . . . [Father] has parental rights. And this issue with respect to the rape has already been litigated. It\u2019s done. It\u2019s passed. You\u2019re entitled to your view of what happened when the [children] were conceived. The father is also entitled to his. [\u00b6] But what remains is the [children.] . . . I don\u2019t know why I\u2019m doing a speech again. . . . [I]f you want to do what\u2019s best for the [children], you\u2019re going to stop exposing them to all the anger you have to the father.\u201d The court denied mother\u2019s request to modify custody, finding there had been no material change in circumstance since the last hearing and ordering the previous orders to remain in effect. The court then considered father\u2019s request for section 271 sanctions. Father\u2019s counsel argued mother had shown a pattern of violating the court\u2019s orders and filing motions or ex parte requests that were \u201cres judicata.\u201d He asserted that the judge who made the initial custody order and the present family court judge had both urged mother to \u201cmove past the situation\u201d and successfully coparent. Father\u2019s counsel asked the court to tell mother that a possible consequence of violations and bad behavior was the loss of custody. In response to the"], "id": "fd4f6c66-d744-4866-86f9-2e5459b23773", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["So far, courts, when determining custody matters, have been slow to join practitioners in jettisoning the traditional custody-centric model in favor of one that is centered on decision-making. This is evidenced by a series of recent Appellate Division decisions, all of which treat parental decision-making as a function that is tied to legal custody, as opposed to one that, in and of itself, constitutes the method by which parents will raise their children. In some of these decisions, parental decision-making is viewed as being subsumed within the context of legal custody (see e.g. Phillips v Phillips, 146 AD3d 719, 719 [1st Dept 2017] [awarding \u201csole legal and physical custody\u201d to mother; no mention of decision-making]; Matter of Dayvon G. [Amber B.], 146 AD3d 414, 414 [1st Dept 2017] [\u201csole legal and physical custody\u201d to mother; no mention of decision-making]; Karlsson v Karlsson, 145 AD3d 639, 639 [1st Dept 2016] [\u201csole legal and primary physical custody\u201d to mother; no mention of decision-making]; Matter of Michael B. [Lillian B.], *983145 AD3d 425, 431 [1st Dept 2016] [\u201cprimary physical custody\u201d and \u201csole legal custody\u201d to mother; no mention of decision-making]). In others, it is seen as being incidental to it (see e.g. Douglas H. v C. Louise H., 138 AD3d 497, 497 [1st Dept 2016] [awarding \u201c and decision-making authority\u201d to father]; Matter of Carlos S. v Ana S., 137 AD3d 700, 700 [1st Dept 2016] [\u201csole custody and decision-making authority\u201d to father]; Tatum v Simmons, 133 AD3d 550, 551 [1st Dept 2015] [\u201cshared legal custody of the child with each party having final authority over separate decision-making zones\u201d])."], "id": "2061e794-940f-4a83-881c-1b0e31ca997d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On October 15, 2007, the wife met with Ms. Smith. Ms. Smith handed her the stipulation and left her to read it, occasionally coming back in to check on her. They spent no more than 5 to 20 minutes together. Ms. Smith told the wife that the stipulation reflected what they had discussed. With regard to BC, the stipulation provided that the wife had , subject to the husband\u2019s visitation, consisting of alternate weekends, from 7:00 p.m. on Friday to 7:00 p.m. on Sunday; alternate holidays; and one month during the summer. The stipulation further provided that \u201cneither party may relocate without notice and consent of the other party or court order.\u201d The stipulation further provided that the parties had already divided their property and waived all further claims for equitable distribution. Finally, the stipulation provided that each party had received full financial disclosure from the other."], "id": "cba0b878-7c92-44e4-b93c-0a31a3d7404a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["To summarize Mr. B.\u2019s relationship with his children: he was never married to Antoinette M.; he has court orders of filiation *275for four of the five children; he had of the four older children from 1996-1997, and thereafter received court orders for visitation; from 1998 to June 2003 he was incarcerated; he has never lived with Shaqueal, does not have an order of paternity for him, and has had very limited contact with him (including three visits while incarcerated at Rikers Island in 1999); he filed new petitions for custody of all five children in 2002, while on \u201cwork release\u201d (Dockets No. V-20135/02, V-20139-42/02) which were dismissed without prejudice when he was reincarcerated later that year; and he opposes termination of his rights and adoption. The agency relies on Domestic Relations Law \u00a7 111 (1) (d) to assert that Mr. B. does not meet the statutory criteria for an unwed father whose consent to adoption is required, and specifically \u201cobjects to and disputes the characterization of Notice Father\u2019s relationship with any of the children as \u2018very significant.\u2019 \u201d Mr. B. argues that, based on the undisputed factual history summarized above, he has a substantial relationship with his children which is entitled to protection, and that application of Domestic Relations Law \u00a7 111 (1) (d) to him would deprive him of his constitutional rights."], "id": "502d8664-6f1e-4f4f-903d-98a6eb82a143", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The appointment of a guardian in this matter is occasioned by reason of the mother\u2019s present disability. If that disability is removed the mother is eo instante remitted to her common-law control and right to custody. Matter of Deming, 10 Johns. 232, 483. I do not quite understand why the Supreme Court originally saw fit to deprive the mother, being the innocent party to the divorce action, of the of her infant under fourteen, ordinarily granted to innocent parties. No doubt there were good reasons. In England special acts of Parliament were regarded as *465necessary to alter the common-law rights of parents to custody, 6. g., 2 & 3 Vict. chap. 54. The New York acts on this subject do not go so far as the English acts."], "id": "f61eb199-2342-4aee-ab8c-4ec849a6a91a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["I think, in a case of this kind, and especially where a claim of such magnitude is presented by an executor or administrator, who has of the books of account, correspondence and documents relating to *442the claim presented, that he should be held to the clearest possible proof of the claim. An air of suspicion naturally gathers around it, which must needs be dispelled before it can be allowed."], "id": "b00f599c-9077-4f49-9bdf-0e126f15a02f", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["J. started first grade in September 2009. The father continued to take him to school every day except when he was traveling. After the father came back from a business trip in the fall, J.\u2019s teacher told him that J. had not been on time for the early morning class at all while the father was away. That was one of the factors that caused Mr. D. to seek . Ms. R. often went to the school very upset and told the school principal three *525or four different times that she was being evicted and had to move because the father would not pay her rent and she had no money. The school principal did not encourage Ms. R. to share such personal information and observed that she was \u201cexcited\u201d and \u201crambling\u201d and always in \u201ccrisis mode.\u201d"], "id": "9a6bf483-b0c7-47ef-a8e0-de875ec9cd29", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Mother believed under an agreement with the school, which both she and Father signed, Father was not allowed to be on the emergency contact list. She stated that Santillan offered to give the child a ride once and denied Santillan's suggestion that the child had poor hygiene, explaining that the child bathed daily and wore a uniform to school. Mother visited with the N.V.M.'s school teacher several times a week and understood that his reading abilities needed improvement. She explained that she loved her son. She and N.V.M. read every day, cooked together, in addition to a variety of other activities. While she did not have much money, she nevertheless makes the best of their time together. She did not understand why Father was petitioning for and explained that in doing so, Father would turn N.V.M. against her. Mother stated that N.V.M. informed her that there is a lack of discipline at Father's house and that they \"let [N.V.M.] do whatever.\""], "id": "781b3b37-e52e-4154-ba08-2d7d7e787fab", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Certainly, the claim at bar does not approach the overbearing circumstances apparent in Parker v Parker (66 AD2d 328) where the wife, without representation by counsel and after having been hospitalized in a psychiatric hospital for 5 of the preceding 11 months, signed a stipulation at the request of her husband, who was represented by an attorney, in which she relinquished of their child, conveyed her interest in the marital home, and waived her rights to support or alimony and to an attorney. There the court nullified the fraudulently obtained stipulation, clearly one-sided in favor of the husband who took advantage of his overmastering influence over his wife."], "id": "dcaff3e5-cced-449a-9065-2e3b644aac59", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Contrary to the mother\u2019s contention, the Family Court did not err in granting her cross petition for only to the extent that she \u201cshall have sole medical and educational decision-making authority,\u201d for the subject child and in granting the father\u2019s petition for joint custody to the extent that \u201cthe parents will have joint decision-making authority with respect to all other custodial matters outside the spheres of medical and educational needs.\u201d Although it is evident that there is some antagonism between the parties, it is also apparent that both parties generally behave appropriately with the child and in a relatively civilized fashion toward each other. Furthermore, there is no evidence that they are so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child. Under these circumstances, the Family Court\u2019s determination has a sound and substantial basis in the record (see Matter of Carter v Carter, 111 AD3d 715, 716 [2013], lv denied 22 AD3d 863 [2014]; Prohaszka v Prohaszka, 103 AD3d 617, 618 [2013]). Rivera, J.E, Lott, Roman and Cohen, JJ., concur."], "id": "93132fac-0e48-4fca-9be1-712554d21507", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, the change in circumstances was that Robin's bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin's house by Lynzi; that Robin spoke disparagingly of Lathaire in the children's presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten's time, they were in disagreement now. The judge apparently was persuaded by Lathaire's explanations for not paying child support when he was frustrated, and for his arrest in the children's presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody. Id. at 166, 189 S.W.3d at 480 (internal citation omitted) (emphasis added). Phillip *291contends that this court should award him of L.P."], "id": "fdec567c-c41d-40f7-b9cc-88a164e50813", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Family Court\u2019s order should be affirmed. Respondent\u2019s argument that the evidence was insufficient to support the award of of the children to petitioner is without merit. In this case, a \"fair interpretation of the evidence\u201d (Matter of Bogert v Rickard, 199 AD2d 587, 588) supports Family Court\u2019s conclusions (see, Matter of Liccione v John H., 65 NY2d 826, 827-828). The evidence indicates that respondent becomes violent when intoxicated and has, on numerous occasions in the past, verbally and physically abused petitioner (see, Vogel v Vogel, 149 AD2d 501, 502)."], "id": "49e39324-d420-4d38-a7c3-eda1c5d6804d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Plaintiff, on the other hand, testified to the friction between the parties, the threats, harassment and intimidation she has *644suffered, the father\u2019s unwillingness to share in the care of the children while he lived at home, and his exposure of the children to his romance with her erstwhile friend. Plaintiff sees the joint custody arrangement, in which she acquiesced with reluctance, as failing to meet the needs of the children and she asks the court to award her with liberal visitation to defendant."], "id": "a8859ed0-e218-4d73-92ca-da176e3b1a7f", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On July 19, 1987 the infant, John Meyers, Jr., was involved in a car accident which resulted in the death of his father and stepmother. John Meyers, Jr., had been in the of his natural father for many years prior to the accident. After the accident, the infant lived with and was cared for by his grandmother. On September 23, 1987, the boy\u2019s grandmother *266was appointed the legal guardian of the infant pursuant to a Family Court order."], "id": "d4149a5b-d884-4978-9476-96c1266d6f3b", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Leslie B. cannot change his sex or (unilaterally) his marital status in order to acquire the rights granted to married fathers and all mothers under subdivision (1) (b) and (c) of Domestic Relations Law \u00a7 111. He did, however, manifest his significant, substantial relationship with his children. Although his name is not on any of the birth certificates, he obtained orders of filiation for the four eldest children. According to the grandmother\u2019s testimony, Mr. B. was very much involved with the four older children\u2019s daily care even before he obtained custody. He then sought and obtained orders of custody, which were in effect for 11 months. (The record does not show whether, as is usually the case, he had physical custody for some period before he obtained the court orders.) He, unlike Mr. Caban, had , not merely sharing custody with the children\u2019s mother during periods of cohabitation. When custody was transferred to the grandmother, he (but not the mother) was granted court-ordered visitation. His ongoing telephone contacts with his children was established unequivocally by the grandmother\u2019s testimony, who also testified that he had visits after his release from prison in June 2003. In this court\u2019s view, Mr. B.\u2019s circumstances more closely resemble those of Mr. Stanley and Mr. Caban, rather than Mr. Quilloin. He satisfies the parameters set out in Raquel Marie X.: \u201cThe protected interest is not established simply by biology. The unwed father\u2019s protected interest requires both a biological connection and full parental responsibility; he must both be a father and behave like one.\u201d (Raquel Marie X., supra at 401.) There is no doubt that an unwed mother \u2014 who at one point had custody, then lost it, who was incarcerated but maintained some contact with her children while imprisoned, who resumed contact upon her release \u2014 could not be deprived of her rights unless a petition pursuant to Social Services Law \u00a7 384-b were filed and granted. This father is entitled to no less. To impose the requirements in subdivision (1) (d) to Mr. B., when they are not required of mothers and married fathers, would, in this court\u2019s judgment, constitute denial of equal protection based on sex and marital status. The court concludes, therefore, that Domestic Relations Law \u00a7 111 (1) (d) is unconstitutional as applied *284to Leslie B. and his four older children. Since the agency relies solely on that subdivision to argue that he is not a \u201cconsent father,\u201d the petitions concerning those children against him are dismissed. As to Shaqueal, born in December 1997, shortly before Mr. B. was incarcerated, his relationship is not so substantial as to create parental rights under Stanley, Caban and Raquel Marie X. He did not live with Shaqueal, or obtain an order of paternity, or obtain court orders of custody or visitation. Accordingly Mr. B.\u2019s motion to dismiss that child\u2019s petition (B-27605/02) is denied."], "id": "c8353206-68d4-499a-831d-6d8ef10caaa2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Second, although Bianka's petition does not expressly seek to terminate Jorge's parental rights, the order she seeks would have a similar effect. Bianka asked the court to place her in her mother's sole legal and physical custody. Ordinarily, a order does not deprive the noncustodial parent of all parental rights. (See In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 958, 38 Cal.Rptr.3d 610, 127 P.3d 28.) But here, although Bianka's petition takes no position on visitation, *866as a practical matter she would have to oppose any visitation rights for Jorge, as visitation is incompatible with the requested SIJ finding that reunification is not viable. Substantial geographic separation, which will often (if not always) be present in cases in which SIJ findings are requested, further exacerbates the effect of a sole custody order in this case. In our view, the court was reasonably concerned about making such an order in a nonadversarial proceeding to which the noncustodial parent is not a party, as is the case here."], "id": "aba84898-ca8a-4003-be88-e5d3fc3cbaa6", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In March 2016, father began to suspect mother was using drugs and sought an ex parte order granting him temporary of the girls. Mother acknowledged she was actively using methamphetamine and agreed to a stipulated custody order giving father sole custody on a temporary basis. Under that order, which was issued in April 2016 and titled \"stipulation and order for temporary custody and visitation,\" mother was allowed visitation \"upon mutual agreement between the parties.\" According to father, mother tried to arrange visits or at least speak with the girls three times in the following month, but he refused based on his family therapist's advice that allowing mother to contact or visit would be stressful for the girls. A few weeks later, in mid-May, mother left a voice message for the girls on father's phone and texted father asking him to play it for them. Father again refused, responding that the therapist did not want the girls to listen to her message \"because you are trying to guilt the girls into calling.\" At trial, mother said she stopped trying to contact or see the girls after that because she felt she was \"hitting a wall with [father].\" She didn't want fights with him to be a \"trigger for her addictions\" so she decided to focus on getting healthy and fighting for custody in family court."], "id": "671d40e0-217a-4103-a9b3-b80e2df10c19", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On appeal, Daniel first argues that the circuit court erred by failing to render a judgment consistent with our holdings in Montez I and Montez II . He concedes that the circuit court technically followed the mandates when the court awarded to Consuela; however, he argues that the order violates the spirit of the mandates because the court maintained the previous visitation schedule, and in Montez I , we found that arrangement to be against the best interest of the children."], "id": "d5b98cba-7765-492c-9b28-c61ed139605e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We find no basis for disturbing the trial court\u2019s award of of the parties\u2019 minor child to the father. It is well settled that, in adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see, Friederwitzer v Friederwitzer, 55 NY2d 89). *566Moreover, the court\u2019s determination depends to a great extent upon its assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parents. Therefore, the findings of the trial court must be treated with great respect unless they lack a sound and substantial basis in the record (see, Matter of Carl J B. v Dorothy T., 186 AD2d 736; see also, Klat v Klat, 176 AD2d 922; Leistner v Leistner, 137 AD2d 499)."], "id": "45eab09f-f355-4983-8599-964cb9cea9e1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Finally, the wife seeks a change from joint to . She must prove a \u201csufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child\u2019s best interests.\u201d (Matter of Dorsa v Dorsa, 90 AD3d 1046, 1046 [2d Dept 2011].) There is no evidence to support such a change; the husband has expressed his desire to see his children consistent with the Singapore judgment of divorce. The husband\u2019s lifestyle has not changed and there is no such allegation. The only allegation of any change is that the husband, after being told by his ex-wife that she would not allow the children to stay overnight with him\u2014even though the judgment of divorce expressly permitted such overnights\u2014told his wife that he would only negotiate through his attorney. The husband\u2019s resort to legal intervention\u2014when the wife directly refused to comply with the judgment\u2014does not equate with a substantial change in circumstances sufficient to justify a change in custody. There is also no evidence that these parents are so antagonistic that they are unable to communicate or cooperate on matters concerning the children. (Matter of Flores v Mark, 107 AD3d 796 [2d Dept 2013].) The mother and father have communicated during the father\u2019s prior visitation. The mother acknowledges that prior to April 2014, she communicated with the father when he came to Rochester. The communication broke down when the mother declined to permit the father to have the access set forth in the interim judgment. In this court\u2019s view, the father\u2019s assertion of his rights under the interim judgment does not constitute a change in circumstances sufficient to change this case from joint custody to sole custody."], "id": "06ad2583-7ade-4152-9c77-32484d68edba", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, Bianka's parentage petition indicates she is seeking a order as well as an order containing SIJ findings. Although the petition cites the SIJ statute as well as Code of Civil Procedure section 155, the petition does not indicate Bianka seeks an order specifically finding that Jorge abandoned her and/or committed acts of domestic violence against Gladys. Consistent with the due process principles discussed above, we hold that in a default proceeding under the UPA, a court may only issue an order containing SIJ findings regarding parental abuse, neglect, abandonment or other similar actions if those factual allegations were contained in the original petition or in a request for order served together with the summons and a copy of the petition. Only in such circumstances would a parent be on notice of the potential for a negative factual finding of abuse, neglect or abandonment."], "id": "8108b03c-846b-4771-b7a2-6381614a4168", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Awarding of C.W. to his father in these circumstances was an abuse of discretion. After reunification has failed, a permanent plan has been selected and the focus of proceedings has shifted from reunifying parent with child in favor of providing the child with a permanent and stable home, it thwarts the entire point of our dependency scheme for a juvenile court to surrender a child back to such a parent, by relinquishing its jurisdiction and awarding that parent full and exclusive legal custody of the child. \"It is a clear abuse of discretion to make findings that a minor is at risk in [a parent's] home, yet return the minor home and terminate supervision and dependency.\" ( In re I.G. (2014) 226 Cal.App.4th 380, 387, 171 Cal.Rptr.3d 867.) Doing so abrogates the court's statutory duty to protect every minor within its jurisdiction, wherever placed. (See id. at pp. 387-388, 171 Cal.Rptr.3d 867 [reversing order granting mother custody and terminating jurisdiction]; \u00a7\u00a7 300, 300.2; cf. Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, 51 Cal.Rptr.3d 816 [abuse of discretion to permit adjudicated child sex abuser to return to family home subject to monitored visitation after finding substantial danger still exists]; see also, e.g., In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1333, 253 Cal.Rptr. 161 [juvenile court properly declined at section 366.3 review hearing to return child to parents who presented no evidence demonstrating any change in their \"inability to recognize and admit the problems that required [their daughter's] removal from their home\"].) Here, by sustaining the jurisdictional allegations, the juvenile court found early on in the proceedings that C.W. was at substantial risk in his father's care. Thereafter, no evidence was presented Rusty no longer posed a danger and there were warning signs of significant problems related to Rusty's unfitness as a parent. By awarding permanent custody to Rusty in these circumstances (if that was the intent), the juvenile court just ignored the risks it previously found existed."], "id": "35dad470-2b34-43b3-b9cc-4a9709456c37", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In Sooy v Sooy (101 AD2d 287, affd sub nom. Matter of Louise E. S. v W. Stephen S., 64 NY2d 946) the Third Department determined that the Family Court did not abuse its *34discretion in awarding petitioner counsel fees in a custodial dispute (supra, 101 AD2d, at 291). Although that opinion does not recite the precise procedural history of the case, review of the record on appeal discloses that the Supreme Court judgment of divorce did not refer the custody issue to the Family Court (see, Domestic Relations Law \u00a7 251; Family Ct Act \u00a7 651 [a]), but rather, awarded joint custody and ordered \"that either party upon application to an appropriate court, shall be entitled to a determination as to the of the child\u201d. Thereafter an original petition was filed in Family Court for determination of custody and attorney\u2019s fees were awarded in the course of that proceeding."], "id": "ce568d56-98d1-41f4-84f4-e16af0c06324", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["BACKGROUND A December 2018 decree dissolved the parties\u2019 marriage. The court awarded the parties joint legal and physical cus- tody of their four children: two daughters born in 2003 and 2005, respectively, and two sons, born in 2004 and 2007, respectively. The court ordered Matthew to pay child support of $2,000 per month for four children, which would decrease by $500 a month each time a child was no longer eligible to receive support. A child support calculation was not attached to the decree. Within 8 months, both parties sought to modify the decree. They alleged a material change in circumstances with respect to custody and child support. Prior to trial, the parties resolved custody and parenting time issues. They agreed for Krystal to have of the parties\u2019 two daughters. The district court conducted a trial concerning child support. It received into evidence the child support calculation used - 347 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345"], "id": "b92243a3-8e1a-481d-a97e-7890bbe9e496", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We agree with respondent\u2019s contention that the court failed *1033to make the necessary findings to justify a change of custody. However, we reject respondent\u2019s further contention that the record is insufficient to justify the court\u2019s conclusion that the best interests of the child require a change of the joint custodial arrangement to one of with petitioner. Where the record is sufficiently complete, we can make our own findings of fact in the interests of judicial economy and the well-being of the child (see, Matter of Milton v Dennis, 96 AD2d 628)."], "id": "372cc182-885e-49ac-bbcd-a6a0f1c0538d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Petitioner contends that Family Court erred in failing to grant her request to change the custody arrangement for the parties\u2019 three children from the joint custody originally agreed upon by the parties to with petitioner. Although a prior custody arrangement is not determinative of an application to change custody, it is a \"weighty factor to consider\u201d (Matter of Williams v Williams, 188 AD2d 906, 908). There must be a showing of a sufficient change in circumstances to establish a real need to effect a change to insure the best interests and welfare of the children (Matter of Haran-Buckner v Buckner, 188 AD2d 705, 706-707). Joint custody involves *848the sharing by the parents of responsibility for and control over the upbringing of their children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement (see, Matter of Frandsen v Frandsen, 190 AD2d 975, 976). Thus, no abuse of discretion will be found in a decision to terminate joint custody when the record indicates that the parties are antagonistic to each other and can no. longer successfully cooperate in carrying out the obligation imposed upon them by the joint custody arrangement (see, Matter of Schwartz v Schwartz, 144 AD2d 857, 858, lv denied 74 NY2d 604)."], "id": "912473f7-4080-4f65-b88c-8e167da3ce90", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The stated policy of this State has long been established that custody of children should remain constant and stable. Where an award of has been made, it will not be changed unless there has been a showing of a substantial change in circumstances which adversely affects the children and makes a change of custody necessary in their best interest, or unless it is shown that the custodial parent is unfit. (Schuler v Schuler, 29 AD2d 669.) It is also clear that the burden of establishing the substantial change of circumstances rests upon the party seeking the modification. (Dintruff v McGreevey, 42 AD2d 809, affd 34 NY2d 887.) The same standards must be applied to an award of joint custody. To hold otherwise, would be to decree that an award of joint custody is actually no award at all, for it could be changed at the whim of either parent."], "id": "6cb09098-3090-4d74-91ae-c9acc8bbd6f1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Leo J. Fallon, J. Before the court is an application by defendants pursuant to CPLR 3211 (a) (7) for an order dismissing this action by reason of its failure to state a cause of action. The facts as they pertain to this motion are as follows: The plaintiff in this *280action was divorced by a judgment of this court filed December 28, 1977 which inter alla awarded joint custody of plaintiffs daughter. The issue of the daughter\u2019s custody came back before the court in the form of a postjudgment application during which the Honorable George F. Francis ordered a forensic examination to aid the court in its determination of that motion. Pursuant to the court\u2019s directive of June 7, 1985, the parties did in fact submit to certain counseling before defendant Kenneth Condrell, the psychologist selected by the court. Ultimately, defendant made certain recommendations to the court relative to custody of the child which are said to have been relied upon by the court in awarding of the child to plaintiffs former husband."], "id": "5e48bd50-adfc-4e46-8dbc-225acc047f39", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": [" The award of of the children to the mother has a sound and substantial basis (see Matter of Salena S. v Ahmad G., 152 AD3d 162 [1st Dept 2017]). Upon consideration of the relevant factors, the court properly concluded that the children's best interests would be served by remaining with the mother, who had acted as their primary caretaker since commencement of the action in 2014 and made all major decisions pertaining to the children's education, health, and care (see generally Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]). Contrary to the father's contention, the court-appointed forensic evaluator's opinion that the father should have \"significant amounts of time\" with the children was not determinative of the parties' dispute. We note that the expert's conclusions were issued over three years before the court's custody order (see Matter of Dawn S. v Michael L. Y., 184 AD3d 462, 463 [1st Dept 2020]). After the forensic expert's report was issued, defendant's conduct prompted the court to order that his access with the children be supervised, and he was held in contempt and incarcerated for his failure to comply with his pendente lite support obligations."], "id": "da9e2214-49e2-4f2f-9dca-0afc89293530", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In a disposition report filed in November 2015, the Cabinet stated that the child remained in the temporary custody of the mother, who was ensuring his needs were met, and was attending kindergarten. He was in counseling for behavioral issues. The father was incarcerated in the Nelson County jail for probation violations and would not be eligible for parole until April 2016. He had admitted to being under the influence of drugs during the 2015 incident. The Cabinet recommended that the mother be granted of the child and noted that the father could not complete any services or work on his case plan because he was incarcerated. The Cabinet recommended that the court put orders in place for the father once he was released and included a list of such recommendations."], "id": "a5d83c6d-3fa4-405d-92fa-684eb7c9ecd3", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["2. After the divorce, the parties interacted seamlessly and frequently regarding the children and the children's needs. 3. Dr. Schreckhise married in July of 2014. In August of 2014, Dr. Schreckhise began implementing a series of rules about how the parties would communicate, including limited communications in person and preferably only when spouses were available; requiring communication by email unless it was an emergency or time-sensitive, with spouses copied on the communication; and limiting interaction at the children's events to a \"hi\" or a nod. 4. In the summer of 2015, Dr. Schreckhise expanded the rules to add that Dr. Parry was not to talk to him at work,[1 ] was not to come to his house, was not to walk on the street in front of his house on North Willow Avenue or his wife's house on Washington Street,[2 ] and that they were to have separate parent-teacher conferences for each child. 5. Dr. Schreckhise testified that on the advice of his marriage counselor, he requested Dr. Parry not be present for the children's medical appointments if they fell during his visitation. 6. Dr. Schreckhise refused to inform Dr. Parry about the minor children's overnight childcare providers when requested by Dr. Parry. 7. In July of 2016, Dr. Schreckhise and his wife, Suzannah Schreckhise, became concerned about Dr. Schreckhise's twenty-three-year-old step-son, David Garrison. *785Mrs. Schreckhise filed an emergency petition for appointment of temporary and permanent guardianship of the person and estate of David. P. Garrison. The affidavit of David Garrison's father, included with Ms. Schreckhise's Petition, noted that David Garrison \"since turning 18, has had multiple offenses evidencing a violent tendency including: destruction of property, violence toward family members, and violence toward past girlfriends.... [David has] engaged in reckless and dangerous activities.\" 8. Dr. Schreckhise allowed David Garrison to baby-sit his then ten-year-old children overnight in a hotel room in the spring of 2015. 9. Dr. Schreckhise did not communicate to Dr. Parry that his wife was seeking guardianship of David Garrison, though David Garrison was going to be in and out of Dr. Schreckhise's home with the parties' minor children present. 10. From September 2016 through December 2016, incidents with David Garrison occurred that resulted in Dr. Schreckhise seeking an order of protection and hiring off-duty police officers to provide security outside his house for a few days. 11. Dr. Schreckhise did not communicate to Dr. Parry about the need for the off-duty police officers or these incidents with David Garrison, except for one incident that occurred on December 25, 2016.[3 ] 12. Other than the Christmas day episode, Dr. Schreckhise's testimony was, \"I didn't think I needed to tell [Dr. Parry] about David ... I was handling it.\" 13. Parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. The parents' ability to cooperate in making shared decisions affecting the children is crucial and failure to cooperate in doing so constitutes a material change in circumstances. 14. August of 2014 clearly marked a significant shift in the way the parties communicated with each other. 15. This significant shift in the way the parties communicate, based on Dr. Schreckhise's rules, is clearly a material change in circumstances in the joint custodial arrangement, as the parties now are unable to effectively communicate about their children. 16. The joint custody arrangement is no longer in the minor children's best interest. 17. Dr. Schreckhise in an effort to assert his and his wife's autonomy has put up barriers for communication between Dr. Parry and himself. Dr. Schreckhise has followed the advice of his marital counselor to the detriment of his children by putting his new wife and their marriage ahead of the needs of the children. The rules set in place by Dr. Schreckhise are manipulative, controlling, and wholly inappropriate and are not in the minor children's best interest. 18. Dr. Parry has consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Dr. Schreckhise about the children. Dr. Parry encourages and fosters an open relationship between the children and Dr. Schreckhise and shares all information with him. Dr. Parry's efforts *786and communication with Dr. Schreckhise have been child focused. 19. Therefore, it is in the best interest of the children that be awarded to Dr. Parry, subject to visitation in Dr. Schreckhise. 20. Visitation shall continue under the schedule established in the original decree: Monday and Tuesdays with Dr. Parry, Wednesday and Thursday with Dr. Schreckhise, and alternating weekends. With regard to holidays, in the absence of any agreement otherwise, the parties shall follow the Washington County Suggested Visitation Schedule[.] Schreckhise has appealed the circuit court's order.4"], "id": "a45fb1e5-f3cb-4d56-9369-61b42e54b8d7", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, the Family Court properly determined that granting the father would be in the child\u2019s best interests. Its determination had a sound and substantial basis in the record. The Family Court was in a unique position to observe the parties and their witnesses testify, and carefully reviewed all the relevant evidence in making its decision. Although the parties\u2019 own agreement provided for joint custody, both parties expressed their desire to rescind the agreement when they filed petitions for sole custody. Copertino, J. P., Pizzuto, Altman and Hart, JJ., concur."], "id": "4a8cd472-a197-426e-adc2-7eef777c7252", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2005). In July 2010, Family Court issued an order which, among other things, continued in effect an August 2008 order, entered upon stipulation of the parties, whereby the mother had of the child and the father had alternating weekend parenting time from Friday at 8:00 p.m. until Sunday at 6:00 p.m., as well as such other parenting time as agreed to by the parties. In August 2011, the father commenced the first two of these proceedings, seeking, among other things, modification of the custodial relationship and alleging the mother\u2019s violation thereof. One month later, the father commenced a third proceeding, alleging that the mother\u2019s harassment of him constituted a family offense."], "id": "01957949-fcfe-4477-b25d-6d4161256fc3", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After the Warren Family Court granted Heidi's motion to continue the June 14, 2016 hearing on the primary residential parent, a dispute arose regarding the children's summer visitation with Roger. Roger had purchased tickets for a flight on June 20, 2016, for the children to visit him in Kentucky. Heidi, however, did not want to put the children on the plane until July 3 so that one of the children could celebrate his birthday with his friends in Oregon. A number of motions were subsequently filed,5 resulting in an order granting Roger emergency of the children on June 23, 2016. That same day, Heidi moved to alter, amend, or vacate the Warren Family Court's order, pursuant to CR 59.05, given that the emergency prompting the order of sole custody had ended. Roger returned to Kentucky with the children on June 24, 2016. On July 13, 2016, the Warren Family Court restored joint custody of the children, pending other motions and further court orders."], "id": "c194b170-9f31-4727-9b3f-7263199734cd", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The custody provision of the property settlement agreement states: \u201cPlaintiff shall enjoy of the parties\u2019 child whose name and date of birth is as follows: thomas Andrew van orden, born April 15, 1990\u201d. The property settlement agreement also specified the child support and related provisions. Essentially, the parties agreed to opt out of the Child Support Standards Act (Domestic Relations Law \u00a7 240 [1-b]; Family Ct Act \u00a7 413 [CSSA]) due to the fact that defendant was unemployed at the time of the execution of the agreement. The parties anticipated, however, that once the defendant was employed, they would abide by CSSA. Additionally, the 1992 agreement provided that defendant would reimburse plaintiff for half of the cost of plaintiff\u2019s increased health insurance premium which she incurred as a result of having to place the parties\u2019 child on her health insurance policy."], "id": "f49c6d47-ff7c-40f7-ba2e-d1fad62fb39a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On February 13, 2015, Plaintiff filed the pending motion to reconsider and set aside that portion of the [January 20, 2015,] order granting immunity to Defendants, arguing that, under an opinion released by the Court of Appeals on February 6, 2015, after the Court entered its Order, Defendants forfeited their immunity by, among other things, acting in bad faith. On February 18, 2015, Plaintiff filed a Notice of Appeal, without giving this Court the opportunity to rule on the pending motion. Plaintiff appeals from the very Order that she now seeks the Court to revisit. A Notice of Appeal generally divests the trial court of jurisdiction. If the Court of Appeals concludes that this Court does, in fact, still retain jurisdiction to consider Plaintiff's motion, the Court finds and concludes as follows: Plaintiff's motion is not properly brought under either CR 59, as a motion to alter, amend or vacate, because more than 10 days passed before the motion was filed; and, not proper as a [CR] 60.02 motion because there is an adequate remedy available for Plaintiff on appeal. The primary basis of the Court's Order dismissing Plaintiff's claims against Defendants was that her claims were time-barred. Defendants argued in the alternative the issue of quasi-judicial immunity and the Court agreed that if Plaintiff's claims were not time-barred, the Defendants would likely enjoy quasi-judicial immunity. Plaintiff now argues that Defendants Feinberg and Rouse forfeited any immunity they may have enjoyed because they acted in bad faith and showed a lack of impartiality and that she recently \"discovered\" that Defendant Feinberg had come to the same conclusion in the J.S. v. Berla case rendered by the Court of Appeals on February 6, 2015 and, as a result, this Court should reconsider its opinion. The Court disagrees. This Court determined that Plaintiff's claims were time-barred. That said, even if the case was not time-barred, the Court found they all enjoyed at a minimum quasi-judicial immunity. Plaintiff alleges that Defendant Feinberg and Defendant *689Rouse forfeited their immunity because, during the course of the custodial evaluation, they acted in bad faith and/or showed a lack of impartiality. Plaintiff has failed to allege how she was harmed by the alleged actions of Defendant Feinberg and Defendant Rouse. Based on this Court's review of the Fayette Family Court record, the Fayette Family Court ordered Dr. Feinberg and Ms. Rouse to conduct a custodial evaluation and ordered Plaintiff's ex-husband, Defendant Patten, to pay for the evaluation. After completing the evaluation in August 2011, Dr. Feinberg, with the assistance of Ms. Rouse, recommended that Plaintiff be awarded custody of her children. At the subsequent dissolution hearing, the Court awarded Plaintiff primary custody of her children. In December 2011, Plaintiff and Defendant Patten entered into a settlement agreement. Both parties were represented by counsel. They agreed to closely follow Dr. Feinberg's recommendations, namely, Plaintiff admits in her motion that Dr. Feinberg recommended, and Plaintiff and Defendant Patten agreed, that he would have no visitation or time-sharing, supervised or otherwise, until he completed anger management and reconciliation therapy. Plaintiff admitted to the Court in her response to Defendants' motion to dismiss that Defendant Patten has had no contact with the children since April 2011, shortly after Dr. Feinberg's custody evaluation began. Plaintiff complains that Dr. Feinberg and/or Ms. Rouse became aware of but failed to report allegations of suspected sexual abuse by Defendant Patten against the children in March 2011 and that his failure constitutes bad faith sufficient to strip Dr. Feinberg and Ms. Rouse of protected immunity. Two separate Cabinet investigations were conducted during the time that Dr. Feinberg and Ms. Rouse conducted their custodial evaluation. As previously noted, Defendant Patten has not had any contact with the children since April 2011. Additionally, Plaintiff argues that Dr. Feinberg and Ms. Rouse lacked the requisite impartiality to cloak them with immunity. She argues in her motion that Defendant Patten hired Dr. Feinberg and that Dr. Feinberg and Ms. Rouse, inter alia , \"altered Plaintiff's psychological testing [and] deleted favorable provisions of [her] psychological testing,\" \"deleted unfavorable provisions of Mr. Patten's psychological testing,\" \"ignored Mr. Patten's pornography obsession,\" \"failed to interview Mr. Patten's sister, who reported deviant sexual actions by Mr. Patten[.]\" What facts or portions of the evaluation that Dr. Feinberg decided to include, or omit, from his report is left to his discretion. The Fayette Family Court ordered Dr. Feinberg to conduct a custody evaluation and ordered Defendant Patten to pay for the evaluation. Dr. Feinberg recommended that Plaintiff be awarded custody of her children. The Fayette Family Court accepted Dr. Feinberg's recommendation and awarded Plaintiff of her children. Plaintiff and Defendant Patten incorporated many of Dr. Feinberg's recommendations into their settlement agreement in December of 2011. And, most importantly, Defendant Patten has not had any access to the children since April of 2011. Dr. Feinberg's exercise of judgment and discretion has not had any adverse effect on Plaintiff. Plaintiff's claims against Defendant Feinberg and Defendant Rouse ... are precisely the kind of claims that quasi-judicial immunity protects. See *690Stone v. Glass , 35 S.W.3d 827 (Ky. Ct. App. 2000). Even if this case were not time-barred, the Court finds and concludes that based on the foregoing, that Defendant Feinberg and Defendant Rouse are entitled to the protection of quasi-judicial immunity. The court included the necessary finality language, and Nave filed a notice of appeal on June 10, 2015, naming Dr. Feinberg and Rouse as appellees.5 The three appeals have been consolidated for all purposes.6"], "id": "ce711460-1924-44c1-a2e2-1eac5fc75075", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In Bezio v Patenaude (410 NE2d, at p 1215) where a lesbian mother was opposed by the children\u2019s guardian in a custody case, the Trial Judge reached the conclusion that \" 'a Lesbian household, creates an element of instability that would adversely [a]ffect the welfare of the children.\u2019 \u201d The Supreme Judicial Court of Massachusetts, the State\u2019s highest court, reversed, stating that the Judge\u2019s finding was insufficient to support the Judge\u2019s conclusion that custody should remain in the guardian. The record did not support an inference that the mother\u2019s lesbianism would render her unfit to further her children\u2019s welfare. Another Massachusetts case (Doe v Doe, 16 Mass App 499, 452 NE2d 293 [1983]) reached the conclusion that a mother\u2019s homosexual relationship did not preclude granting of joint custody of her child to her. There, the court found no evidence to show that the mother\u2019s homosexual lifestyle would adversely affect the nine-year-old male child. In Medeiros v Medeiros (8 Fam L Rptr 2372 [1982]), a Vermont court, in determining whether the homosexual mother or heterosexual father would better serve the interests of the children, was unable to find that either of the parties has not (been) or would not be a proper custodial parent. Since the two boys, ages 8 and 11, were primarily taken care of by the *329mother, who provided them with emotional support throughout the marriage and during the period of separation, and since the boys were thriving in their mother\u2019s care at the time of the court\u2019s decision, the court awarded of the children to the defendant mother. The court found that the mother\u2019s homosexuality presented no substantial risk of harm to the children. Two years later, the father, who had married since the divorce, attempted a custodial change asserting that he was able to provide a better home than the mother. The mother moved to dismiss the father\u2019s motion for a change of custody. The motion was dismissed after a short, 13-minute hearing. (See, Judge\u2019s Log, Medeiros v Medeiros, Vt Super Ct, Bennington County, Nov. 26, 1984.) Similar results can be found in other neighboring States. See, DeBoise v Robinson (No. C-9104 Del Fam Ct, New Castle County, Nov. 17, 1980), cited in Rivera (op. cit, at 355) where a lesbian mother was awarded custody and the court imposed no restrictions on her living arrangement with another woman, and M.P. v S.P. (169 NJ Super 425, 404 A2d 1256, supra) where a mother\u2019s homosexuality and accompanying embarrassment to children were held not proper grounds for removal of custody. On the West Coast, the State courts of Washington and California have provided guidance in this area of the law. In Matter of Marriage of Cabalquinto (100 Wn 2d 325, 669 P2d 886 [1983]) the parties were married, had a son, and later divorced in Colorado. The divorce decree granted custody to the heterosexual mother with liberal visitation rights to the homosexual father. The mother remarried and moved to Washington and the father moved to California where he lived with a homosexual lover. The father decided he wanted his young son to visit in California and the mother refused. The father moved in a Washington State court to have his Colorado visitation rights enforced. The Trial Judge, in an oral opinion, refused to grant visitation in California stating a strong antipathy to homosexual living arrangements. \" '[A] child should be led in the way of heterosexual preference, not be tolerant of this thing [homosexuality] * * * it can[not] do the boy any good to live in such an environment. It might do some harm.\u2019 \u201d (Matter of Marriage of Cabalquinto, supra, p 328, p 888.) In remanding the case to the lower court for further consideration, the high court of Washington was emphatic: \"We now make specific the rule of law which was subsumed in the decision in Schuster v. Schuster, supra: homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. This *330rule is consistent with the decisions of other state courts\u201d (p 328, p 888). The court said that there was no evidence that a visitation of substantial periods in the summer months would endanger the physical, mental, or emotional health of the child. Visitation of such a duration was seen as reasonable and something which must be determined with reference to the needs of the child rather than the sexual preference of the parent. The California case of Batey v Batey, reported about in the New York Times, July 1, 1986, is a complex homosexual father-child custody case which involved proceedings in Colorado and California. Frank Batey, a homosexual, and Betty Lou Batey, a fundamentalist Christian, parents of a son, Brian, were divorced in California in 1980 and Betty Lou was given custody of Brian, then age nine. Frank was granted liberal visitation. In 1982 custody was changed to Frank, primarily because Betty Lou denied Frank visitation. Eleven days after the custody change, Betty Lou vanished with Brian for 19 months until she was found in Colorado in 1984. When she refused to produce the child, she was jailed for contempt. Colorado returned Brian to California and, in a complex case which involved kidnapping, contempt, and custody, San Diego County Superior Court Judge Judith McConnell determined that neither parent should have custody but only visitation. Judge McConnell decided that Brian would be in \"grave danger\u201d with the mother, who had caused him to form strong views opposing his father\u2019s homosexuality and who had failed to provide him with any education during the 19-month abduction. The Judge also decided that since the boy\u2019s views about his father were so deeply entrenched, a temporary foster home was in his best interest. Finally, at a closed hearing on June 18, 1986, Judge McConnell awarded Frank Batey custody of Brian, now age 15. Judge McConnell said that the father was better able to meet the needs of the boy."], "id": "3381d95b-0026-4e7c-b5ff-7e481439180d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to the judgment of divorce granted March 16, 1982, the parties were awarded joint custody of the infant issue of the marriage, Lindy, presently six years old. By an order to show cause granted by this court on January 10, 1984, the defendant seeks an award of . In support of this application the defendant submits an affidavit alleging that the plaintiff has married an individual who is an alcoholic, has been hospitalized for his alcoholism, and who, on information and belief, has struck the *436infant daughter on several occasions causing bruises on her arms and instilling fear of him in her. Defendant further asserts that it was the parties\u2019 intention that, in the event the plaintiff remarried or cohabited, the defendant must approve of such person or receive sole custody. Defendant states that he has been denied visitation from time to time and that several of the support checks sent to the plaintiff have been-indorsed by her current husband. Defendant concludes by stating that his housing facilities are better suited for the needs of their daughter, that he is more capable of providing her with a moral and just upbringing, and that she would attend a better school if living with him."], "id": "9e124943-244c-4cdb-9c11-7e2cae257038", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Cardona, P. J., Mikoll, Mercure and Weiss, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as denied petitioner\u2019s request for of the parties\u2019 children and denied her request to relocate with the children to another *849State; petitioner\u2019s request for sole custody of the children granted and matter remitted to the Family Court of Fulton County for further proceedings not inconsistent with this Court\u2019s decision; and, as so modified, affirmed."], "id": "af2925a2-b8df-4619-864c-c2d7f288ab57", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The Family Court providently exercised its discretion in dismissing, without a hearing, the mother\u2019s petition to modify an existing custody order so as to award her of the subject child and to award only daytime visitation to the father until he obtains \u201csuitable housing.\u201d The mother was required to make \u201can evidentiary showing sufficient to warrant a hearing\u201d based upon a subsequent change in circumstances (Matter of Grant v Hunter, 64 AD3d 779, 779 [2009]), such that a modification is necessary to ensure the continued best interests and welfare of the child (see Matter of Gurewich v Gurewich, 58 AD3d 628, 629 [2009]). The mother failed to do so (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638 [2012]; Matter of Dowgiallo v Williams, 99 AD3d 708 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114 [2012]; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615 [2011])."], "id": "f7c611fa-3eba-4bec-8fae-c891af2acc66", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The trial court ruled that JW would attend school with his brothers in Berryville. Over Doby's objection, the trial court ruled that an attorney ad litem would be appointed, and an order was filed appointing Ryan Blue to represent the boys. On September 28, 2017, Shannon amended her complaint for divorce, alleging eighteen months' separation. Doby amended his counterclaim, alleging adultery and general indignities as grounds and asking that the joint-custody order continue or that he be awarded ."], "id": "4a2d96c7-75c8-4218-8329-37e8df0d90fe", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On remand, the circuit court held a hearing on March 8, 2018. On April 2, the court entered a written order awarding Consuela of the children but ordering her and Daniel \"to share parenting time with the children equally using a 50/50 schedule in the manner previously *405ordered which the parties/parents have followed since the divorce.\" As to child support, the court ordered that Daniel's child-support obligation shall no longer be offset against Consuela's obligation due to the termination of the joint-custody arrangement. Specifically, the court ordered Daniel to pay Consuela $ 3,666 a month in child support.3 This appeal followed."], "id": "94681ddc-ce86-4109-8f61-c6dc2e773d74", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["\u2018 \u2018 fifth : The parties hereto agree that it is for the best interest and welfare of the infant issue that the child continue to remain with and reside with the husband and by reason thereof the parties hereto agree that the husband shall have of said infant issue with reasonable rights of visitation to the wife at all times with due regard to the welfare and interest of the child. \u201c sixth: In view of the further fact that the means of the husband are limited and that the wife acknowledges her responsibility for the care and maintenance of the said infant, the wife agrees to contribute the sum of $150.00 per month towards the maintenance and care of the said infant issue payable on the 1st day of each month commencing as of October 1,1959. \u2018 \u2018 eighth : In furtherance of the foregoing, the parties hereto agree that in the event that the said child shall attend a private school, either elementary, secondary or college, that they shall contribute proportionately towards the cost thereof based on the respective means and income of the parties as then existing, it being the intent of the parties hereto that the child shall have all possible care and education consistent with the means and income of the respective parties.\u201d *555The record reveals that Mrs. Manville had been paying the $150 a month prescribed in paragraph \u201csixth\u201d of the separation agreement. This was a recognition on her part that under the special circumstances of this case, that she, rather than the father, was responsible for the larger part of the child\u2019s support. She so conceded in paragraph \u201c sixth \u201d of the agreement. This fact was known to the plaintiff, and relied upon by him, when he agreed to represent the child in opposing the mother\u2019s application brought by writ of habeas corpus to transfer the custody of the child from the father to the mother in contravention to what said parents had agreed under paragraph \u201c fifth \u201d of the separation agreement. (See Siegel v. Hodges, 20 Misc 2d 243, affd. 10 A D 2d 646, affd. 9 N Y 2d 747, supra.) Further, the mother agreed under paragraph \u201c eighth \u201d of the separation agreement to pay an additional amount for the child\u2019s education proportionate to the income of the father and herself at the time such expenditure might occur. From the foregoing, an agreement may be implied for the mother to pay a proportionate share of the legal expenses rendered by the plaintiff in opposing the habeas corpus proceeding, particularly viewed in the light that said expenses were made necessary by the affirmative action of the mother in instituting the proceeding. Therefore, the plaintiff would be entitled to obtain a judgment for the reasonable value of the legal services he rendered the child against both parents, if both had been served with the summons and complaint in this action. Since plaintiff served only Christina Ocker Manville with process, his judgment is limited to that defendant."], "id": "7e2d3de8-55bb-4b39-b63b-1d95c3ad70e2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to a separation agreement which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought of both children on the grounds that respondent was not providing for the children\u2019s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody."], "id": "2a008f9d-9e39-405e-abb7-ed3da3558851", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In February 1993, the parties filed cross petitions alleging a change in circumstances and seeking of the children. At the conclusion of the hearing that followed, Family Court found, inter alia, that petitioner had presented insufficient evidence of respondent\u2019s alleged interference with visitation rights to warrant a change in custody and, further, that the allegations of sexual abuse raised a serious question regarding petitioner\u2019s fitness as a parent.* Accordingly, Family Court continued custody with respondent and granted supervised visitation to petitioner. This appeal by petitioner followed."], "id": "6e6629e7-b94d-4574-b164-b4b5ec90d1de", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Additionally, as previously stated, evidence of a parent\u2019s conduct before and after the statutory 6-month period is also relevant to determine whether the purpose or intent of the parent was to abandon the child. See id. In considering the time prior to the 6-month timeframe, there was evidence that Haley and Theodore had a close relationship for the first 7 years of Theodore\u2019s life. Haley lived with Theodore until he was 5 years old and, after Tyson attained of Theodore in 2017, saw him on a regular basis during her parenting time. Haley testified that she and Theodore would do various activities together and that she would support him at his extracurricular events. Haley\u2019s mother testified that Haley would often express a desire to see Theodore. There was also evidence that Tyson had denied Haley parenting time during her designated weekends in April and May 2019. Haley requested phone calls with Theodore in May, June, July, and November. Haley texted and video called Tyson in June and July in an effort to reach Theodore. In November, Haley emailed Tyson requesting parenting time with Theodore. Haley also testified to calling Tyson repeatedly in 2019 to speak to Theodore. Both Haley and her mother testified that Haley had purchased Theodore birthday and Christmas gifts and was storing the gifts until Haley was permitted to see Theodore. After the petition was filed, Haley emailed Tyson in November 2020 to inform him that she had met all of the requirements of stage one of the parenting plan and was requesting parenting time with Theodore. Haley had started counseling, provided Tyson with a negative hair follicle test at his request, provided her address for a well-check, and had agreed to cover the cost of a third-party to supervise her visit. When Tyson denied Haley\u2019s November request for parenting time, Haley testified that she filed a contempt action against Tyson and Tyson testified that Haley began calling him every 2 weeks to ask for time with Theodore. In January 2021, Haley resumed paying her monthly child support obligation consistently. To constitute abandonment, it must appear that there has been, by the parents, a giving up or total desertion of the minor child. In re Adoption of Micah H., supra. The question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). Further, adoption statutes will be construed strictly in favor of the rights of the natural parents in controversies involving termination of the relation of the parent and child. Id. Based on the record before us, Haley has not given up or totally deserted Theodore. Although Haley\u2019s efforts to have contact with Theodore have been sporadic and limited, and her actual contact nominal, the evidence demonstrates her desire and intent to reestablish a parent-child relationship. Therefore, the evidence is not clear and convincing that Haley abandoned Theodore. CONCLUSION We conclude that the trial court did not err in finding that Haley had not abandoned Theodore and, therefore, did not err in dismissing Brittany\u2019s petition for adoption. Accordingly, the decision of the county court is affirmed. AFFIRMED."], "id": "19a7f554-5e30-438a-8cc4-db0488dbcd87", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["It is well settled that where a will directs the trustee to pay income to a beneficiary the latter has an absolute right to receive it which is enforcible by his committee or guardian if he is under a legal disability. (Matter of Bearns, 251 App. Div. 222, affd. 276 N. Y. 590; Gasquet v. Pollock, 1 App. Div. 512, affd. 158 N. Y. 734.) On the other hand, where the direction is to apply income to ihe use of the beneficiary the trustee must exercise its own discretion in disbursing funds and it cannot avoid that responsibility by making payment to a committee, guardian, or donee of a power in trust. (New York Trust Co. v. Black, 178 App. Div. 4, affd. 223 N. Y. 703; Matter of McCormick, 40 App. Div. 73, affd. 163 N. Y. 551; Matter of Connolly, 71 Misc. 388; see Matter of Leeds, 23 N. Y. S. 2d 679, 694.) Whether the trustee is to \u201c pay \u201d or \u201c apply \u201d depends on the intention of the testator. A direction to 1 \u2018 apply \u2019 \u2019 income may even be construed to require payment directly to the beneficiary. (Matter of Bearns, supra.) A trust to \u201c pay over \u201d income to a beneficiary is valid within section 96 of the Real Property Law authorizing trusts to \u20181 apply \u2019 \u2019 income because payment of the income to the beneficiary is an application thereof. (Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 N. Y. 376.) Here, although the testator used the words \u201c to pay over \u201d, he did not direct the trustees \u201c to pay over \u201d to the infant. Rather he directed them \u2018 \u2018 to pay over such income or portion of such income * * * for the support, mainte*588nance and education of \u201d the beneficiary. (Emphasis supplied.) In addition, he expressly conferred discretion upon the trustees to determine the amount of income to be paid out, the payment intervals, and the specific purposes for which the funds are to be used. It would he unreasonably circuitous and expensive for the trustees to make payment of the amounts they deem \u201c necessary or desirable \u201d to the donee of the power in trust who in turn would have to pay them out for the use of the infant. This is especially so because the donee is one of the two trustees and the widow, who has the of the infant, is the other. Both acting jointly need make but one decision concerning the use of income or principal. It is held that the trustees are fully authorized under the terms of the will to apply income and principal to the use of the beneficiary. Payment to the petitioner in his capacity as donee of the power in trust is therefore unnecessary."], "id": "8d631dda-119b-4fef-9d16-26d7174cd82f", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In this case, a longtime litigant before this court now seeks appointment of counsel. The pending matter stems from a confluence of two proceedings. In April 2016, the applicant father, subject to substantial restrictions of his parenting time with his two teenaged daughters, filed a petition in Family Court seeking to remove the court imposed restriction of supervised visitation with his children, and obtain and primary residence. In response, the mother filed an order to show cause in Supreme Court seeking a finding of contempt against the father, sentencing him to incarceration, a fine of $25,000, payment of counsel fees, elimination of any contact between father and children, and other assorted relief (including transfer of the Family Court petition to Supreme Court). The family court petition was transferred to this court, and the father then applied for appointed counsel."], "id": "9b8a5eeb-53ac-461a-bbb4-888a6b9e71f2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Two cases bear distinction from the instant situation. In Sneddon v. Payne (114 Misc. 537) the plaintiff handed his bag to a \u201c red cap \u201d porter not in the employ of the defendant, who took the bag into the train. When the plaintiff got on the train a few *461minutes later, he did not find his bag. It was held that the defendant was not hable because it was not shown that the bag was ever in the of the defendant. In Weingart v. Pullman Co. (58 Misc. 187) a passenger gave his coat to a porter as he was entering the train, and told him to put it on the seat he had engaged. The porter did so. The plaintiff then went into another car and remained there an hour and a half. Upon his return he found his coat had disappeared. It was held that the plaintiff had not established a cause of action because \u201c the coat was not left in the care or custody of the defendant\u2019s servant \u201d (p. 188). Neither these cases nor those cited by the defendant are authorities against the plaintiff. Indeed, the cases cited by the defendant sustain the rule here laid down. (See Honig v. Riley, 244 N. Y. 105; Adams v. New Jersey Steamboat Co., supra; Carpenter v. N. Y., N. H. & H. R. R. Co., supra; Williams v. Webb, 27 Misc. 508.)"], "id": "078f3812-bf1d-41b9-85dc-8345c57593cb", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Since the doctrine of res ipsa loquitur permits the trier of facts to infer negligence from the mere happening of accident where defendant is in exclusive possession and control of the instrumentality which caused the accident, it is within the power of this court to find negligence on the part of the corporate defendant in the exercise of its care and handling of the baggage which led directly to the injuries inflicted upon the plaintiff by the individual defendant\u2019s dog (Yandrasitz v. Teddy\u2019s House of Sea Food, 286 App. Div. 146; Curley v. Ruppert, 272 App. *332Div. 997). The New York case in point is Thomas v. Hudson Riv. Day Line (176 N. Y. S. 2). In Thomas the dog was delivered into the of the carrier, Hudson River Day Lines. While in the carrier\u2019s custody and control the dog escaped, jumped overboard and was lost. The count held the loss of the dog raised a presumption of negligence on the part of the carrier."], "id": "12a90100-9a99-47ac-a2a9-606194de7fb7", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Respondent filed a petition in April 1992 requesting custody of the children. Petitioner filed a petition seeking custody (via an order to show cause) in May 1992. The petitions were tried jointly. The parties testified at the trial, giving conflicting testimony on the issues. Petitioner presented evidence of respondent\u2019s drinking problems and his verbal and physical attacks on her, even in the presence of at least one of the children. She testified that she left the marital residence because of fear for her safety. Respondent testified that he did not consider himself an alcoholic and did not drink beer every day, as petitioner claimed, nor did he ever grab or strike her. Family Court granted petitioner of the children, found that her move to Texas was justified because of respondent\u2019s conduct and permitted her to relocate to Texas. Respondent appeals."], "id": "fc8756ac-207f-4417-9fe0-e112457ea289", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Claude Kirby testified the girls were doing well in school. He admitted he had trust issues with Jessica, as she had previously assured him she was \"done with\" Jacob and they were getting divorced, only for them to be attempting to work things out the following week. Claude stated he and his wife had provided the girls with a stable home, and they had invited Jessica over to \"hang out\" with the girls, which she had done on a few occasions. He testified that if he received , he would like for Jessica to be able to see the girls, but he had concerns about Jacob."], "id": "1bfdbcd1-6a27-4a63-b014-78a89cfd6404", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Daniel asks this court not to remand the case to the circuit court and to award him of the children. However, because the circuit court maintained the joint-custody arrangement, it made no findings regarding this issue. As such, in order to accommodate his request, we would be forced to make factual and credibility findings, which can only be made by the circuit court. See Doss , 2010 Ark. App. 95, 377 S.W.3d 348."], "id": "aa184b95-a233-4d94-adeb-589f4e254ef1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the children (see Matter of Chery v Richardson, 88 AD3d 788, 788 [2011]; Matter of Conforti v Conforti, 46 AD3d 877 [2007]; Matter of Strand-O\u2019Shea v O\u2019Shea, 32 AD3d 398 [2006]; Matter of Rho v Rho, 19 AD3d 605, 606 [2005]; Matter of Dow v Dow, 306 AD2d 529, 530 [2003]). The court must consider the totality of the circumstances (see Matter of Strand-O\u2019Shea v O\u2019Shea, 32 AD3d at 398). The evidence adduced at the hearing in the instant matter established that the mother\u2019s apartment had become a \u201charried and chaotic environment\u201d that did not provide the subject children with the focused attention and structure they needed for success in school and intellectual development. Further, the evi*731dence established that the mother had failed to provide appropriate medical attention to the children, who apparently suffered from seizure disorders and asthma. Accordingly, the record reflects that a change in circumstances had occurred, and the evidence supported the Family Court\u2019s determination that awarding of the subject children to the father was in their best interests (see Matter of Conforti v Conforti, 46 AD3d at 878; Matter of Battista v Fasano, 41 AD3d at 713)."], "id": "0d151dfe-1cb0-4c2a-bd67-b8b9d292da43", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On December 12, 2014, Bianka filed a petition under the UPA naming Gladys as the respondent.3 The petition alleges Gladys is Bianka's mother and requests a court order awarding sole legal and physical custody to Gladys. Both Bianka and Gladys submitted declarations in support of the petition. As the basis of her custody request, Bianka asserted her biological father, Jorge, abandoned her physically, emotionally, and financially before her birth. Bianka asked the court to find that her father abandoned her within the meaning of Family Code section 7822, subdivision (a)(3),4 and place her in her mother's . In addition, Bianka asserted Jorge had beaten her mother while she was pregnant. Bianka cited Jorge's domestic violence as another factor relevant to the court's custody determination and argued his conduct constituted abuse within the meaning of the Family Code. Bianka went on to argue that Jorge's abandonment also provided a factual basis for an order containing SIJ findings. Both Bianka and Gladys submitted declarations in support of the petition, in which they recounted Jorge's abuse and abandonment."], "id": "f37f5bd9-bcd0-429f-bf8e-93044df5a69d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to an agreement between the parties, an order of the Family Court, Westchester County, dated April 11, 1991, provided that the father would have of the parties\u2019 daughter and would be fully responsible for her support. Approximately one year later, the father commenced this proceeding seeking child support from the mother, who had previously transferred her interest in certain real property to the father in consideration for his agreement to support their daughter."], "id": "5c685580-d612-409f-8de8-6c66ad923b2a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In many cases, a child who seeks SIJ status will be involved in proceedings in the juvenile court (for foster home placement) or the probate court (for the appointment of a legal guardian). However, where the child has reunited with one parent in the United States, it is more likely the child will be the subject of a custody proceeding in the family court. In this case, Bianka initiated a parentage action under the Uniform Parentage Act (Fam.Code, \u00a7 7600 et seq. ) naming her mother as the respondent. Although Bianka's mother did not file a response to the petition, it appears maternity is uncontested. Bianka also filed a pretrial request for *854order asking the court to place her in the sole legal and physical custody of her mother and to make the additional findings necessary to allow her to petition for SIJ status, namely that she cannot reunify with her father because he abandoned her and it is not in her best interest to return to Honduras. The court declined to make the requested findings primarily because it concluded Bianka's request for an award of to her mother in an action under the UPA necessarily implicated paternity and parental rights (if any), which in turn made Jorge an indispensible party to the parentage action."], "id": "7adcbf64-95e3-48cd-bc6f-cf6955dd8e0a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We note, ex gratia , that the majority of the alleged excluded provisions appear to involve issues that are inapplicable to this case at this time due to Mother receiving sole legal and sole physical custody of the children, Father receiving supervised visitation, and the children not yet being school age. Father contends that the court failed to include such items as transportation duties associated with the residential schedule, appropriate times for telephone access, details regarding how decision-making rights and responsibilities will be shared, methods of communicating school information, a dispute resolution procedure for those matters on which the parties disagree, etc. Father apparently recognizes the inapplicability or determination by default of some of these Section 452.310.8 provisions in arguing that, \"[w]hile the lower court may award to Mother, that does not absolve the court's responsibility to enter a parenting plan that complies with Missouri law.\""], "id": "cf57596c-3304-46dc-a594-91974ecd9a1c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Jovel (Father) and Blanco (Mother) had a relationship several years ago and produced a child, Mindy. According to Mother, when she became pregnant with Mindy, Father began verbally and physically abusing her. Mother described an incident in November 2015 when Father struck her in the face with an open hand. When Mother was eight to nine months\u2019 pregnant, Father \u201cgot upset, picked [her] up, and pushed [her] into a coffee table\u201d hurting her back. After Mother locked the door to her apartment Father came back in through the balcony and threatened to destroy Mother\u2019s property. In 2016, after Mindy was born, Father beat Mother, choking her, biting her arm, and slamming her against furniture. Father\u2019s verbal abuse continued into 2017 prompting Mother to sue for of Mindy."], "id": "5f6558e0-88f7-4892-b997-7075a7796aea", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The biological parents also argue that the family court erred because the facts and circumstances exhibit a reasonable expectation of improvement. The Mother argues that since she was released from prison, she completed intensive outpatient treatment, parenting classes and counseling, paid child support, and gained employment, all without a court order, she shows signs of improvement. The Father argues that: (1) the family court never ordered child support; (2) the court awarded him joint custody in October 2015; (3) he maintained his visitation schedule until the court awarded L.B. and B.B. in June 2016; and (4) he has another adult daughter with whom he is significantly involved."], "id": "0e694e98-9cfe-48d4-aa23-846fa913863d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In this case, Daniel did not ask the court to deviate from the family-support chart after the court awarded Consuela of the children. Thus, there are no findings addressing a request for deviation or an explanation why the court did not deviate from the chart based on the sole-custody arrangement. See Riddick v. Harris , 2016 Ark. App. 426, 501 S.W.3d 859 (declining to consider an argument that the circuit court failed to deviate from *407family-support chart because appellant did not ask the court for a deviation). This court will not consider arguments raised for the first time on appeal, and an appellant must obtain a ruling from the circuit court on an issue in order to preserve an argument for appeal. Id. Because the circuit court did not rule on the point, this court has nothing to review. Id. It was Daniel's burden to raise the issue of a deviation from the family-support chart and to obtain a specific ruling on it, and his failure to do so precludes this court from considering the merits of his argument."], "id": "5da15c34-323d-40f4-b4ed-5624a796f549", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In every instance of an implied revocation by destruction of any kind quo animo the act is done must be established aliunde. The mere physical act of destruction is too equivocal to effect an implied revocation per se. The destruction may have been unintentional; it may have been by a stranger, therefore quo animo it was in fact done becomes highly essential under the Statute of Revocations. In bonis Tozer, 7 Jur. 134; In bonis Hannam, 14 id. 558; Clarke v. Scripps, 16 id. 783. What the rule is when there is no evidence of intention is another point. The cases bearing on the resolution of that precise question \u2014 what is the rule in this state, when there is no direct evidence of intention \u2014 are not many, and those existing are not apparently of a very high order. But it is unnecessary now for us in this matter to elaborate this particular point, for here there is, in any event, direct proof of an intention not to revoke the whole will and there is no proof or presumption in this matter that the testator himself excised the missing part of the will which was accessible to so many others besides testator himself. Under the circumstances there is here no proof, or presumption whatever, of animus revocandi, and therefore no implied revocation of any kind has been established in any way. Had the will been always in the testator\u2019s there might have been a presumption that he cut out the missing clause himself animo revocandi. But such is not the case here."], "id": "1b856d42-3057-49fe-ae12-d2173bc3e5a6", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The parties had entered into a separation agreement prior to the entry of the decree of divorce. The agreement which, by its terms, was to survive any decree of divorce which might be obtained, accorded the defendant the right of visitation during one week end in each month, and further provided that the plaintiff would be free to establish a domicile for herself and the issue of the marriage in any place in the United States, provided due notice were given the defendant. The provisions of the separation agreement were not incorporated into the judgment. The judgment of divorce gave plaintiff of the infant, giving the defendant 1 \u2018 reasonable rights of visitation.\u201d"], "id": "2f0b50fd-e233-4447-8afd-3edeb87217c4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to a consent parenting plan, Makala Gill and John Collins shared joint legal and physical custody of their minor child. Collins filed a motion to modify custody, and on December 7, 2021, the trial court entered an emergency temporary order awarding Collins . Gill filed a motion for reconsideration, which was summarily denied. On Friday, January 7, 2022, she filed this application for discretionary review of the trial court\u2019s December 7 order. Collins has filed a motion to dismiss, arguing that we lack jurisdiction to consider Gill\u2019s application because it is untimely. We agree. Pursuant to OCGA \u00a7 5-6-34 (a) (11), \u201c[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody\u201d are directly appealable. Therefore, a party seeking to challenge a child custody order, including an interlocutory custody order, may file a direct appeal. See Lacy v. Lacy, 320 Ga. App. 739, 742 (3) (740 SE2d 695) (2013); Taylor v. Curl, 298 Ga. App. 45, 45 (679 SE2d 80) (2009). Ordinarily, when a party applies for discretionary review of a directly appealable order, this Court grants the application. See OCGA \u00a7 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order sought to be appealed. See OCGA \u00a7 5-6-35 (d), (j). The requirements of OCGA \u00a7 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Here, Gill\u2019s application was filed 31 days after the entry of the custody order and is therefore untimely. Although Gill\u2019s application is timely to the denial of her motion for reconsideration, the denial of a motion for reconsideration is not ordinarily appealable in its own right. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); see also Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017) (explaining that appeal from order denying a motion to set aside was not a direct challenge to the court\u2019s underlying custody ruling and therefore was not directly appealable under OCGA \u00a7 5-6-34 (a) (11)). Nor does the denial of reconsideration extend the time for filing a discretionary application. See Harris v. State, 278 Ga. 280, 282, n.3 (600 SE2d 592) (2004). The denial of a motion for reconsideration of an interlocutory order may serve as the basis for an application for interlocutory review \u201cif a certificate of immediate review is obtained from the trial court.\u201d Mayor & Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 17 (1) (441 SE2d 63) (1994); see also Ferguson v. Freeman, 282 Ga. 180, 181 (1) (646 SE2d 65) (2007). However, Gill did not obtain a certificate of immediate review or otherwise comply with the interlocutory appeal process. See OCGA \u00a7 5-6-34 (b). Because Gill\u2019s application is untimely to the December 7 order and Gill did not follow the proper appellate procedure to seek review of the trial court\u2019s order denying reconsideration, we lack jurisdiction. Accordingly, Collins\u2019s motion to dismiss is hereby GRANTED, and this application is hereby DISMISSED. After she filed her application, Gill also filed an emergency motion under Court of Appeals Rule 40 (b), seeking review of the December 7 order. Her emergency motion is hereby DENIED."], "id": "520902a4-ae42-458b-8aae-a9426a37b3b9", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Matter of J.F. v L.F. (181 Misc 2d 722) was the first reported New York case to discuss the theory of PAS in the context of custody decisions. The court did not specifically base its decision on a finding of PAS, but instead utilized case law holdings relating to interference with the child\u2019s relationship with the noncustodial parent. It was on this basis that the court ultimately granted to the father and suspended the mother\u2019s right to visitation. (See also Daghir v Daghir, 82 AD2d 191.) This followed a line of cases that indicated that interference with the child\u2019s relationship with the noncustodial parent has been said to be so inconsistent with the child\u2019s best interest as to per se raise a strong probability of unfitness. (See also, Maloney v Maloney, 208 AD2d 603; see also, Brandes, Parental Alienation Syndrome, NYLJ, supra.)"], "id": "04fe5bfa-44f4-4c47-8486-0f5a7f68edb2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of separation agreement upon the express consideration \u201c of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained.\" The contract provided that the wife should have the of and control of the children \u201c without any interference on the part of the party of the first part.\" Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void."], "id": "a1848fa6-1009-41b3-9569-3a04f6775a81", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A custodial parent\u2019s conduct may warrant a change of custody if it reaches \u201cthe level of deliberately frustrating, denying or interfering with\u201d the parental rights of the noncustodial parent so as to raise doubts about the custodial parent\u2019s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child\u2019s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [\u201cWhile one parent\u2019s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children\u2019s bond to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention\u201d (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded , notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness."], "id": "271f0942-3d10-4c05-aa01-cffce10edf5e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On or about July 6, 2009, prior to the signing of the judgment of divorce, plaintiff moved for an order modifying the terms of the stipulation of settlement regarding custody and child support. Specifically, plaintiff sought and an order directing defendant to pay child support in accordance with the CSSA. On or about July 21, 2009, defendant crossed-moved, also seeking sole custody and an order directing plaintiff to pay child support pursuant to the CSSA."], "id": "320adc7a-61a0-4d75-83d4-324913b8c7cd", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["During the period of July 15, 1985 to April 21, 1988, the children spent approximately one half of their time with each party. The parties did not modify the separation agreement dated December 28, 1979, to reflect this change in custody, nor any change in child support. Defendant petitioned the Supreme Court, County of Nassau, for custody of the children. Said proceeding culminated in a decision by the Honorable Howard E. Levitt dated December 15, 1985, awarding joint custody of the children to the parties and substantially dividing physical custody equally between the parties. Furthermore, Justice Levitt\u2019s order provided as follows: \"Each party shall solely bear their respective costs for the upkeep and maintenance of the children while in their custody, and all extra expenses for help, camp and education shall be borne equally.\u201d By an order dated January 12, 1987, the Appellate Division, Second Department, reversed said order restoring to the wife as provided in the aforesaid separation agreement and divorce decree."], "id": "cf293189-2e7d-42ee-aef8-4413190abc56", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Respondent is the biological mother of John Z. (born in 1983). It appears that respondent and John\u2019s father were awarded joint custody of the child in January 1987, with being awarded to the child\u2019s father in March 1988 following respondent\u2019s relocation to another State. John apparently remained in his father\u2019s custody until August 1989, when he was voluntarily placed with petitioner. Although not entirely clear from the record, it appears that John subsequently was found to be abused and neglected by his father and custody was continued with petitioner pending the father\u2019s completion of certain conditions imposed by Family Court.*"], "id": "c4d99e94-c5e5-45a7-a100-05b42cca4225", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Both motions to dismiss this appeal are denied. The requests encompassed within those motions to take judicial notice of records from the Louisiana dependency court proceedings are granted. The juvenile court's orders terminating jurisdiction and related exit orders awarding of C.W. to Rusty are reversed, and the case is remanded for further proceedings consistent with this opinion. The clerk of this court is directed to send a copy of this opinion immediately upon its filing to the clerk of the Louisiana juvenile dependency court."], "id": "8773431b-c6dd-4a7e-96b3-7e856de09c9a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The parties and the trial court have framed this issue in terms of custody over the minors' orthodontic care.9 A trial court's order modifying custody is \"appropriate only if the parent seeking modification demonstrates ' \"a significant change of circumstances\" indicating that a different custody arrangement would be in the child's best interest.' [Citation.] But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to , or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard.\" ( In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072, 74 Cal.Rptr.3d 803.)"], "id": "dd8d541f-dd34-4f9e-b4d8-262341918d61", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After the parties\u2019 divorce in 1990, petitioner was awarded of their daughter, Aslinn (who is now six years old), with respondent having regular visitation. Beginning in 1992, the parties filed petitions and cross petitions seeking modifications of the prior order: petitioner sought changes in the visitation schedule, initially to facilitate his planned relocation out of State, and later because Aslinn had become enrolled in an area Head Start program, and respondent applied for sole custody and then for joint custody during the pendency of her custody petition. Family Court found that the parties\u2019 circumstances had not changed sufficiently to warrant a change in custody, but that more extensive visitation would be in Aslinn\u2019s best interest. The court also directed petitioner to consult with respondent on matters involving Aslinn\u2019s health care, education, discipline, moral development and travel. Petitioner appeals, contending that the consultation requirement is tantamount to an award of joint legal custody, and that such an arrangement is unworkable given the parties\u2019 continued animosity toward each other. He also argues that the newly ordered visitation schedule improperly deprives him of \"quality time\u201d with his daughter and, consequently, must be overturned. We are unconvinced."], "id": "29e8a852-18c4-4fcf-a2ef-d55dcddc4a39", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The wife requests to change custody from joint to in her favor. This request warrants an inquiry into whether the best of interests of the children require a change in custody. (Gizzi v Gizzi, 136 AD3d 1405 [4th Dept 2016]; Matter of Dingeldey v Dingeldey, 93 AD3d 1325 [4th Dept 2012].) The husband advances the same claim on opposing facts. Both parties have, in their affidavits, set forth a prima facie case for a sufficient change in circumstances for the court to schedule a hearing on the matter."], "id": "f2c1bb7f-9152-4152-8673-1a7eb76ce258", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent. ****** The juvenile court terminated the parental rights of Monica M. (mother) over her now-three-year-old son, Pablo V. On appeal, mother challenges the juvenile court\u2019s (1) denial of her petition to provide reunification services under Welfare and Institutions Code section 3881 and (2) finding that the parent- child bond exception to the termination of parental rights did not apply. Both rulings were within the court\u2019s discretion or supported by substantive evidence, so we affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts Prior to 2018, mother had five children with several men\u2014 Cesar (born 2002), Rudy (born 2006), Gabriela (born 2008), Valerie (born 2012), and Winter (born 2016). In a variety of juvenile dependency cases, the juvenile court exerted dependency jurisdiction over these children; ultimately, the court terminated mother\u2019s parental rights over Rudy, Valerie and Winter, and awarded of Cesar and Gabriela to their fathers."], "id": "82608f50-99eb-4b95-8ca1-249209d293c7", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Between January, 1978 and Donna M. Avery\u2019s death on June 15,1980, the child, Vincent Joseph Lester, continued *822in the physical custody of his father. However, the issue of custody appears to have been far from finally settled. In approximately September, 1979, a custody proceeding was commenced in Family Court, by the decedent, but dismissed, apparently on the basis that the issue of permanent custody was still pending in Supreme Court. Between that time and her death, the decedent sought advice from, at least, two attorneys concerning the issue of custody of her son. Testimony by the petitioner, Alan Avery, to the effect that his wife made almost daily wishes for , and testimony by Vincent Catlin to the effect that his daughter was attempting to obtain full custody of her son, was uncontroverted."], "id": "0b4948ff-dbcc-4a71-8fac-963ee61fb684", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["At the hearing, Mother testified that when Daughter last saw Father on May 18, 2015, Father repeatedly punched Daughter, kicked her, and threw her into a bathtub, causing her to strike her head and lose consciousness before reawakening and sneaking out of the house. Based upon Mother's testimony, the court determined that Mother had proved the allegations of domestic violence in the Petition and, on July 16, 2015, entered its Full Order of Protection preventing Father from contacting or communicating with the children. The court also granted Mother of the children and child support. The court further granted an automatic one-year renewal of the Full Order of Protection effective July 15, 2016, pursuant to Section 455.516.1"], "id": "8867b369-26d6-4548-ba77-af4a04b56cf6", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["To rebut the presumption, Omar had to show only that, by a preponderance of the evidence, joint or to him would not be detrimental to A.'s best interest. ( Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1026, 1032, fn. 22, 215 Cal.Rptr.3d 542 ( Jason P . ); Celia S. , supra , 3 Cal.App.5th at p. 662, 207 Cal.Rptr.3d 756.) The legal presumption is not, as S.Y. asserts, \"that a parent who has committed an act of domestic violence should not be awarded sole or joint legal or physical custody of a child.\" Omar's burden was only to persuade the court his custody would not be detrimental to A.'s best interest. ( \u00a7 3044, subd. (a) ; see Jason P. , at pp. 1026, 1031, fn. 22, 215 Cal.Rptr.3d 542.) The determination of custody is not to reward or punish the parents for their past conduct, but to determine what is currently in the best interests of the child. ( In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094, 12 Cal.Rptr.3d 356, 88 P.3d 81 ( LaMusga ); Keith R. , supra , 174 Cal.App.4th at p. 1055, 96 Cal.Rptr.3d 298.)"], "id": "f6783957-3f20-456c-ac54-99485af22981", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Nevertheless, there are circumstances in which joinder may be appropriate, as in the present case in which Bianka requests an order giving her mother sole legal and physical custody. \"The requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard.\" (In reMarriage of Torres (1998) 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344.) While joinder of an alleged parent who lives outside California may not be required in every case in which is requested, we are hard pressed to think of a circumstance in which it would not be prudent and consistent with principles of due process."], "id": "9b616262-c695-40ef-9c01-27e81a02edca", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We disagree with Daniel and hold that the circuit court did not render a judgment inconsistent with Montez I and Montez II . In Montez I , we held that given the evidence that Consuela and Daniel could not communicate, the circuit court erred in finding that Daniel had failed to establish a material change in circumstances warranting modification of the joint-custody arrangement. Thereafter, in Montez II , we held that the circuit court failed to execute our mandate in Montez I because the court maintained the same custody arrangement following our remand. We directed the circuit court to make a sole-custody determination. In the instant case, it did not maintain the previous arrangement. The court awarded Consuela of the children. Thus, Consuela is charged with the decision-making responsibilities, and she and Daniel are no longer required to communicate and cooperate on those decisions. Accordingly, we find no error on this point."], "id": "4cf4562c-a110-499a-b783-5bdda0f613fb", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The parties were divorced in April of 1979 with the mother having and the Father having visitation. During their son\u2019s early years the visitation was regular with the Father visiting frequently when he came to Albany on business trips and the son visited his Father on weekends and for vacations. In December of 1995 the son told the Father that he was gay. The son testified that his Father said to him \"he didn\u2019t know how he would be part of his Son\u2019s life and how much of his life\u201d. The Father testified that he told his son he couldn\u2019t accept that lifestyle but he didn\u2019t say he would not see his son. Furthermore, the Father testified that between the declaration of homosexuality by the son and the end of May 1996, his son refused to speak with him and would not see him."], "id": "97b98197-8335-43c0-ad6b-99dfc2b1aef5", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A second consideration warranting denial of prehearing depositions in this case also involves the best interests of this infant child. Without in any fashion prejudging the outcome of this custody battle, it is conceivable that an award of joint custody or an award of with visitation to the noncustodial parent will result. In either event, this young child will be exposed to the less than charitable feelings, which these parties have toward one *439another as reflected in the affidavits submitted on the underlying application for a change in custody. To the extent that prehearing depositions of the plaintiff and her current husband will add to the unfortunate bitterness and tension between these parties, all to the detriment of this young girl, such should be discouraged and avoided absent a compelling reason."], "id": "5093f772-869f-4560-8b23-1dc4655c4c0f", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After trial of the issues but before Family Court\u2019s decision, petitioner twice moved for an order of contempt, claiming that respondent had wilfully violated the parties\u2019 custodial arrangement by failing to adhere to the Christmas 1992 visitation schedule. Family Court (1) awarded of the children to respondent, finding that joint custody was not an available option in the circumstances, and (2) found that both respondent and petitioner were available for the emotional growth of the children and possessed comparable abilities to provide for such growth, and that the home environment in the care of each parent was positive. Family Court also found that the best interests of the children mandated that petitioner be awarded liberal visitation and set forth an explicit visitation schedule. In a supplemental/amended order which considered petitioner\u2019s contempt motions, Family Court, inter alia, found that respondent wilfully violated petitioner\u2019s rights of visitation, but declined to impose sanctions. Petitioner appeals both the order and the amended order."], "id": "16411367-0ab3-41ce-9736-4a13661c600e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS."], "id": "2365d66f-210f-4225-9071-5ea573a885e1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["p\u00ad roposed child support calculation, which calculated child sup- port for all four children under both a and a joint custody calculation and then averaged the amounts. The Court of Appeals found no abuse of discretion, recognizing that \u201cthere is no one application of the guidelines for the pres- ent situation from which the court could deviate.\u201d 10 Thus, the appellate court stated that \u201cthe child support ordered by the district court was not a deviation from the guidelines, but, rather, a flexible solution to the unique custody arrangement present here.\u201d 11 We do not read the Court of Appeals\u2019 opinion as suggest- ing that no calculations are required where a court confronts a hybrid custody situation, and we disapprove of any such read- ing. Nor do we read the Court of Appeals\u2019 opinion as implying that averaging is always appropriate in such a situation. There, the trial court made a calculation and used a methodology employing averaging. In our view, the Court of Appeals simply found no abuse of discretion in the trial court\u2019s approach. Courts differ on how the application of child support guide- lines to particular custody arrangements should be classified. Some courts have determined that the guidelines do not apply; other courts have treated the situation as a deviation from the guidelines. 12 In our view, whether such a situation is viewed as an inability to strictly apply the guidelines or as a deviation is a largely theoretical distinction. [5,6] This court has long recognized that the child support guidelines offer flexibility and guidance, with the understand- ing that not every child support scenario will fit neatly into the calculation structure. 13 As we said shortly after the guidelines were first adopted, \u201cwe do not suggest that an appropriate Id. at 214, 928 N.W.2d at 435. Id. at 214-15, 928 N.W.2d at 435. See Annot., 57 A.L.R.5th 389, \u00a7 20 (1998). See, Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001); Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751 (1992). - 352 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345"], "id": "7c7fb74d-c6ed-4fc5-92d3-3aa1553155a4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["It is unclear if the arrangement would be considered voluntary under Maryland law, where in at least one case, a relative's voluntary assumption of responsibility over a minor child resulted in a legal obligation, even though there was no court order awarding custody. (See, e.g., Owens v. Prince George's County Dep't. of Soc. Servs. (2008) 182 Md.App. 31, 957 A.2d 191, 203-204.) In Owens, an aunt took responsibility for her niece when the mother was unwilling and the father was unable to do so, and the administrative law judge concluded that by her actions, she assumed a legal responsibility to her niece such that her subsequent unwillingness to provide shelter was a basis for a child neglect charge. (Ibid . ) We decline to draw a conclusion on this point because the Department focuses its appeal on the nature of Grandmother's relationship to J.H. after the court awarded her ."], "id": "054eb498-6458-49b8-a419-ec6a446e5162", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In the separation agreement before this court for interpretation, the court notes that the defendant agreed to pay $75 per week for child support and the parties agreed that the plaintiff would have of the children. The court also notes that the parties intended that the defendant\u2019s duty to pay child support would cease upon the occurrence of certain events, such as when a child \"marries or becomes emancipated or self-supporting.\u201d Unfortunately, the parties did not specifically express what effect, if any, a change from sole custody to joint custody would have upon the defendant\u2019s duty to pay child support. Where the agreement is silent termination of child support can be implied under certain circumstances. The very essence and definition of the term \"child support\u201d dictates that a child or children must be present to be supported. Based upon the above facts and the totality of *29the separation agreement, this court concludes that the parties intended that the defendant\u2019s duty to pay child support at the agreed amount of $75 per week was conditioned upon the plaintiff having sole custody of the children."], "id": "501079d4-2787-4322-a781-c2502dcf2725", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Bennett filed a complaint for divorce and a petition for an order of protection on July 14, 2015, following a domestic-abuse incident that occurred two days earlier, on July 12, 2015. Goodson attacked Bennett with such force that he damaged her jaw and ruptured one of her eardrums. Goodson's children, S.G. and T.G., were in the home during the attack. After a hearing on August 3, 2015, the circuit court entered an order of protection that granted Bennett of T.G. and prohibited *853Goodson from having any contact with Bennett or T.G. for ten years. The circuit court also entered a ten-year order of protection on the petition of Mollie Yoder, who requested it for herself based on Goodson's conduct during their relationship, as well as for S.G., who was present in the home during Goodson's brutal attack on Bennett. Goodson did not file any appeal from the two ten-year orders of protection."], "id": "2c1ccb89-ea50-4f80-a6d8-918e8122501c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The beneficiaries urged that Halstead was negligent in permitting the transaction whereby the securities became accessible to each trustee. It will be borne in mind that Wilkinson had of the fund prior to this transaction and that it, in effect, was Wilkinson\u2019s act giving Halstead 'access to the securities. There had been no actual joint possession of the fund *353and Halstead\u2019s consent to this arrangement, in view of the circumstances, should not be considered negligent."], "id": "bc831da3-7362-4f14-9477-d23f60b29832", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The facts are, as adduced in evidence: The minor was born July 5, 1875, the parents being Theodore E. Hansen and *184Frances E. Hansen, who had contracted marital relations in September, 1874; the parents did not live happily together, and after a while parted, the husband deserting the wife, as she alleges, leaving with her two children, one of them, the minor, Theodora, aged at that time four years, September, 1879; the mother being in poor circumstances, under the advice of a friend, gave the custody of the child to J. W. Baldwin, the applicant here, and agreed that he should adopt the child; but he did not do so according to law, and subsequently the mother claims that she repented her agreement, and desired to regain the custody of the child; but upon this point there is a conflict of evidence, as Baldwin denies that the mother ever expressed to him a change of mind, but, on the contrary, he swears she always caused him to believe, until the year 1885, that he could have the of said minor, and that the child has been reared and educated by himself and wife for six years, and that she has received the constant care and attention of his wife, whose sole companion she has been during such period; that they have no child of their own, and that they have become greatly attached to said minor, who reciprocates their attachment; and that in sickness and in health they have treated the minor as if she were their natural born child. The uncontroverted fact is that the applicant, Baldwin, received the child from her mother, and has retained the custody up to this time. On the 11th of March,- 1885, the minor\u2019s mother commenced an action for divorce in this county against the minor\u2019s father, Theodore E. Hansen, and on the 10th of April, 1885, the superior court, department one, Wilson, Judge, rendered a decree of divorce, and awarded the custody of said child to said Baldwin until the further order of the court; subsequently the lady was married to Mr. Fairbanks, a respectable gentleman, residing and doing business in the state of Nevada, where she has since continued to reside. The decree of the court in the divorce suit was modified pending these proceedings, with respect to the custody of the child,, by remitting to this department that question."], "id": "b1433b04-34a5-472d-875b-855f50a97ad4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The facts necessary to decide the motion are undisputed, and largely established by court orders of which the court takes judicial notice. Leslie B. and Antoinette M. never married, but had five children between the years 1989 and 1997: Freedom, born February 21, 1989; Stephon, born July 26, 1990; Fantashia, born June 22, 1993; Lucinda, born March 3, 1995; and Shaqueal, born December 21, 1997. Orders of filiation recognizing Mr. B. as the father of Freedom, Stephon, Fantashia and Lucinda were entered under docket numbers P-9782/89 (CSET); P-1638-39/96; P-2646-47/96. (It appears that an order of filiation was granted *274in 1989 and again in 1996 for the same child, Freedom.) In 1996 Mr. B. petitioned for custody of the four children Freedom, Stephon, Fantashia and Lucinda, and on July 22, 1996 Judge Sarah Schecter granted him of those children (petitioner\u2019s exhibit A). (The fifth child, Shaqueal, was not born until 1997.) Ten months later custody was transferred by Judge Schecter to the children\u2019s maternal grandmother by orders dated May 21, 1997, which included orders of visitation for Mr. B. (but not for the children\u2019s mother) (petitioner\u2019s exhibit B)."], "id": "b7048233-aca5-4583-8c12-1a5650338598", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["p\u00ad roposed child support calculation, which calculated child sup- port for all four children under both a and a joint custody calculation and then averaged the amounts. The Court of Appeals found no abuse of discretion, recognizing that \u201cthere is no one application of the guidelines for the pres- ent situation from which the court could deviate.\u201d 10 Thus, the appellate court stated that \u201cthe child support ordered by the district court was not a deviation from the guidelines, but, rather, a flexible solution to the unique custody arrangement present here.\u201d 11 We do not read the Court of Appeals\u2019 opinion as suggest- ing that no calculations are required where a court confronts a hybrid custody situation, and we disapprove of any such read- ing. Nor do we read the Court of Appeals\u2019 opinion as implying that averaging is always appropriate in such a situation. There, the trial court made a calculation and used a methodology employing averaging. In our view, the Court of Appeals simply found no abuse of discretion in the trial court\u2019s approach. Courts differ on how the application of child support guide- lines to particular custody arrangements should be classified. Some courts have determined that the guidelines do not apply; other courts have treated the situation as a deviation from the guidelines. 12 In our view, whether such a situation is viewed as an inability to strictly apply the guidelines or as a deviation is a largely theoretical distinction. [5,6] This court has long recognized that the child support guidelines offer flexibility and guidance, with the understand- ing that not every child support scenario will fit neatly into the calculation structure. 13 As we said shortly after the guidelines were first adopted, \u201cwe do not suggest that an appropriate Id. at 214, 928 N.W.2d at 435. Id. at 214-15, 928 N.W.2d at 435. See Annot., 57 A.L.R.5th 389, \u00a7 20 (1998). See, Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001); Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751 (1992). - 352 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345"], "id": "f6a2d404-0cd5-497d-80d5-52085650cda5", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The custody provision of the property settlement agreement states: \u201cPlaintiff shall enjoy of the parties\u2019 child whose name and date of birth is as follows: thomas Andrew van orden, born April 15, 1990\u201d. The property settlement agreement also specified the child support and related provisions. Essentially, the parties agreed to opt out of the Child Support Standards Act (Domestic Relations Law \u00a7 240 [1-b]; Family Ct Act \u00a7 413 [CSSA]) due to the fact that defendant was unemployed at the time of the execution of the agreement. The parties anticipated, however, that once the defendant was employed, they would abide by CSSA. Additionally, the 1992 agreement provided that defendant would reimburse plaintiff for half of the cost of plaintiff\u2019s increased health insurance premium which she incurred as a result of having to place the parties\u2019 child on her health insurance policy."], "id": "069c3b2e-ba61-4f2c-83c9-9e7e12cd6faf", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The court issued its decree on June 21, 2017, in which it granted Jose an absolute divorce and granted of the children to Maria. It ordered Jose to pay $346 biweekly in child support and $100 per pay period in spousal support, both effectuated through wage assignment. The court awarded Maria the couple's home and mortgage and awarded Jose title to the Nissan and Honda vehicles. The court found that neither party could afford the couple's 2016 Chevrolet Traverse and ordered that it be immediately sold or returned to the dealership. The parties were ordered to evenly split the debt remaining on the truck after the sale, with Maria getting credit for the monthly payments she had made on the vehicle. The court awarded Jose \"the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District.\""], "id": "93a47a23-2e5e-4412-b399-b7236a0bec74", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On February 13, 2015, Plaintiff filed the pending motion to reconsider and set aside that portion of the [January 20, 2015,] order granting immunity to Defendants, arguing that, under an opinion released by the Court of Appeals on February 6, 2015, after the Court entered its Order, Defendants forfeited their immunity by, among other things, acting in bad faith. On February 18, 2015, Plaintiff filed a Notice of Appeal, without giving this Court the opportunity to rule on the pending motion. Plaintiff appeals from the very Order that she now seeks the Court to revisit. A Notice of Appeal generally divests the trial court of jurisdiction. If the Court of Appeals concludes that this Court does, in fact, still retain jurisdiction to consider Plaintiff's motion, the Court finds and concludes as follows: Plaintiff's motion is not properly brought under either CR 59, as a motion to alter, amend or vacate, because more than 10 days passed before the motion was filed; and, not proper as a [CR] 60.02 motion because there is an adequate remedy available for Plaintiff on appeal. The primary basis of the Court's Order dismissing Plaintiff's claims against Defendants was that her claims were time-barred. Defendants argued in the alternative the issue of quasi-judicial immunity and the Court agreed that if Plaintiff's claims were not time-barred, the Defendants would likely enjoy quasi-judicial immunity. Plaintiff now argues that Defendants Feinberg and Rouse forfeited any immunity they may have enjoyed because they acted in bad faith and showed a lack of impartiality and that she recently \"discovered\" that Defendant Feinberg had come to the same conclusion in the J.S. v. Berla case rendered by the Court of Appeals on February 6, 2015 and, as a result, this Court should reconsider its opinion. The Court disagrees. This Court determined that Plaintiff's claims were time-barred. That said, even if the case was not time-barred, the Court found they all enjoyed at a minimum quasi-judicial immunity. Plaintiff alleges that Defendant Feinberg and Defendant *689Rouse forfeited their immunity because, during the course of the custodial evaluation, they acted in bad faith and/or showed a lack of impartiality. Plaintiff has failed to allege how she was harmed by the alleged actions of Defendant Feinberg and Defendant Rouse. Based on this Court's review of the Fayette Family Court record, the Fayette Family Court ordered Dr. Feinberg and Ms. Rouse to conduct a custodial evaluation and ordered Plaintiff's ex-husband, Defendant Patten, to pay for the evaluation. After completing the evaluation in August 2011, Dr. Feinberg, with the assistance of Ms. Rouse, recommended that Plaintiff be awarded custody of her children. At the subsequent dissolution hearing, the Court awarded Plaintiff primary custody of her children. In December 2011, Plaintiff and Defendant Patten entered into a settlement agreement. Both parties were represented by counsel. They agreed to closely follow Dr. Feinberg's recommendations, namely, Plaintiff admits in her motion that Dr. Feinberg recommended, and Plaintiff and Defendant Patten agreed, that he would have no visitation or time-sharing, supervised or otherwise, until he completed anger management and reconciliation therapy. Plaintiff admitted to the Court in her response to Defendants' motion to dismiss that Defendant Patten has had no contact with the children since April 2011, shortly after Dr. Feinberg's custody evaluation began. Plaintiff complains that Dr. Feinberg and/or Ms. Rouse became aware of but failed to report allegations of suspected sexual abuse by Defendant Patten against the children in March 2011 and that his failure constitutes bad faith sufficient to strip Dr. Feinberg and Ms. Rouse of protected immunity. Two separate Cabinet investigations were conducted during the time that Dr. Feinberg and Ms. Rouse conducted their custodial evaluation. As previously noted, Defendant Patten has not had any contact with the children since April 2011. Additionally, Plaintiff argues that Dr. Feinberg and Ms. Rouse lacked the requisite impartiality to cloak them with immunity. She argues in her motion that Defendant Patten hired Dr. Feinberg and that Dr. Feinberg and Ms. Rouse, inter alia , \"altered Plaintiff's psychological testing [and] deleted favorable provisions of [her] psychological testing,\" \"deleted unfavorable provisions of Mr. Patten's psychological testing,\" \"ignored Mr. Patten's pornography obsession,\" \"failed to interview Mr. Patten's sister, who reported deviant sexual actions by Mr. Patten[.]\" What facts or portions of the evaluation that Dr. Feinberg decided to include, or omit, from his report is left to his discretion. The Fayette Family Court ordered Dr. Feinberg to conduct a custody evaluation and ordered Defendant Patten to pay for the evaluation. Dr. Feinberg recommended that Plaintiff be awarded custody of her children. The Fayette Family Court accepted Dr. Feinberg's recommendation and awarded Plaintiff of her children. Plaintiff and Defendant Patten incorporated many of Dr. Feinberg's recommendations into their settlement agreement in December of 2011. And, most importantly, Defendant Patten has not had any access to the children since April of 2011. Dr. Feinberg's exercise of judgment and discretion has not had any adverse effect on Plaintiff. Plaintiff's claims against Defendant Feinberg and Defendant Rouse ... are precisely the kind of claims that quasi-judicial immunity protects. See *690Stone v. Glass , 35 S.W.3d 827 (Ky. Ct. App. 2000). Even if this case were not time-barred, the Court finds and concludes that based on the foregoing, that Defendant Feinberg and Defendant Rouse are entitled to the protection of quasi-judicial immunity. The court included the necessary finality language, and Nave filed a notice of appeal on June 10, 2015, naming Dr. Feinberg and Rouse as appellees.5 The three appeals have been consolidated for all purposes.6"], "id": "3ec7232d-f42c-4557-8521-2a9c677a21e0", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The June 2017 dispositional report recommended that the petition's allegations be sustained, the petition be dismissed, and mother, who was in the process of divorcing father, be awarded of Daniela. Mother stated that she believed stepdaughter \"100 percent\" and had \"no doubt\" that the allegations of sexual abuse were true. Father continued to deny the allegations and said he did \"not know why [stepdaughter] would lie,\" though he speculated that she was aware his and mother's \"relationship [was] disintegrating\" and might be taking mother's side. He opposed the Agency's recommendations and expressed a desire for shared custody of or visitation with Daniela. Although Daniela had stated during her CASARC interview that she would be \"sad\" if separated from father, she now said she did not want visits with him."], "id": "1bbc8df0-8ba3-486c-9a0c-dcdd554c877d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The parties had entered into a separation agreement prior to the entry of the decree of divorce. The agreement which, by its terms, was to survive any decree of divorce which might be obtained, accorded the defendant the right of visitation during one week end in each month, and further provided that the plaintiff would be free to establish a domicile for herself and the issue of the marriage in any place in the United States, provided due notice were given the defendant. The provisions of the separation agreement were not incorporated into the judgment. The judgment of divorce gave plaintiff of the infant, giving the defendant 1 \u2018 reasonable rights of visitation.\u201d"], "id": "313678ca-7f57-46a3-a005-e140a599ebb0", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["When Justice Levitt\u2019s order was reversed the plaintiff once again had of the children. Although the parties continued to share the physical custody there was no evidence that they agreed to continue or acquiesced in the support provisions of Justice Levitt\u2019s order (i.e., share the expenses). Quite the contrary, the plaintiff made several demands upon the defendant for the child support as provided in the separation agreement. While the court can imply the parties\u2019 intent where there is silence in the agreement, it cannot rewrite an agreement. Once plaintiff had again sole custody of the children the parties were bound by the separation agreement."], "id": "2996269a-a0b7-41f0-bb54-a4c7a3612d4e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The stated policy of this State has long been established that custody of children should remain constant and stable. Where an award of has been made, it will not be changed unless there has been a showing of a substantial change in circumstances which adversely affects the children and makes a change of custody necessary in their best interest, or unless it is shown that the custodial parent is unfit. (Schuler v Schuler, 29 AD2d 669.) It is also clear that the burden of establishing the substantial change of circumstances rests upon the party seeking the modification. (Dintruff v McGreevey, 42 AD2d 809, affd 34 NY2d 887.) The same standards must be applied to an award of joint custody. To hold otherwise, would be to decree that an award of joint custody is actually no award at all, for it could be changed at the whim of either parent."], "id": "01f1a982-1a29-4929-8f08-5363db76c895", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The Hawaiian divorce decree, incorporating the separation agreement gave as previously indicated to Odette R. However, the father Douglas R. has been able to show that there has been a material change of circumstances so as to render it in the best interests of these children to modify the original decree. Such material change in conditions are: (1) the mother has had a psychiatric break-down and is still undergoing psychiatric therapy. Her complete recovery, as well as avoiding great stress in the future by sharing responsibility for the children are important factors in her relationship with her children. (2) the father is now remarried with a stable home environment for the children."], "id": "9ee47cda-b681-46cd-892b-4a964b76c3ac", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On December 12, 2014, Bianka filed a petition under the UPA naming Gladys as the respondent.3 The petition alleges Gladys is Bianka's mother and requests a court order awarding sole legal and physical custody to Gladys. Both Bianka and Gladys submitted declarations in support of the petition. As the basis of her custody request, Bianka asserted her biological father, Jorge, abandoned her physically, emotionally, and financially before her birth. Bianka asked the court to find that her father abandoned her within the meaning of Family Code section 7822, subdivision (a)(3),4 and place her in her mother's . In addition, Bianka asserted Jorge had beaten her mother while she was pregnant. Bianka cited Jorge's domestic violence as another factor relevant to the court's custody determination and argued his conduct constituted abuse within the meaning of the Family Code. Bianka went on to argue that Jorge's abandonment also provided a factual basis for an order containing SIJ findings. Both Bianka and Gladys submitted declarations in support of the petition, in which they recounted Jorge's abuse and abandonment."], "id": "f1615f9c-2d5e-4b15-a35e-83fa69e7de83", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Contrary to the mother\u2019s contention, under the circumstances presented here, the Family Court providently exercised its discretion by, in effect, granting the father\u2019s petition for of the child Lawrence, Jr., and by, in effect, granting the father\u2019s separate petition to modify a prior custody order so as to award him sole custody of the child Larry, Jr. The Family Court possessed adequate relevant information to enable it, without a hearing, to make an informed and provident determination that it was in the best interests of the subject children to award sole custody to the father (see Assini v Assini, 11 AD3d 417 [2004]; Matter of Porter v Burgey, 266 AD2d 552 [1999])."], "id": "59023564-de9d-49bc-ad19-86dfaeb8f40a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Leo J. Fallon, J. Before the court is an application by defendants pursuant to CPLR 3211 (a) (7) for an order dismissing this action by reason of its failure to state a cause of action. The facts as they pertain to this motion are as follows: The plaintiff in this *280action was divorced by a judgment of this court filed December 28, 1977 which inter alla awarded joint custody of plaintiffs daughter. The issue of the daughter\u2019s custody came back before the court in the form of a postjudgment application during which the Honorable George F. Francis ordered a forensic examination to aid the court in its determination of that motion. Pursuant to the court\u2019s directive of June 7, 1985, the parties did in fact submit to certain counseling before defendant Kenneth Condrell, the psychologist selected by the court. Ultimately, defendant made certain recommendations to the court relative to custody of the child which are said to have been relied upon by the court in awarding of the child to plaintiffs former husband."], "id": "7cfa43a5-6ccf-42b3-90c3-d47181abdedc", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2005). In July 2010, Family Court issued an order which, among other things, continued in effect an August 2008 order, entered upon stipulation of the parties, whereby the mother had of the child and the father had alternating weekend parenting time from Friday at 8:00 p.m. until Sunday at 6:00 p.m., as well as such other parenting time as agreed to by the parties. In August 2011, the father commenced the first two of these proceedings, seeking, among other things, modification of the custodial relationship and alleging the mother\u2019s violation thereof. One month later, the father commenced a third proceeding, alleging that the mother\u2019s harassment of him constituted a family offense."], "id": "01a7b1e6-d278-4e49-b59f-76fe32d1ef72", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In adjudicating custody and visitation rights, the court\u2019s paramount concern is the best interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Felty v Felty, 108 AD3d 705, 706 [2013]; Matter of Haimovici v Haimovici, 73 AD3d 1058, 1058 [2010]). Where, as here, the court has conducted a complete evidentiary hearing on the issues of custody and visitation, its findings must be accorded great weight, and its custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Felty v Felty, 108 AD3d at 707; Matter of Waldron v Dussek, 48 AD3d 471, 472 [2008]). The Supreme Court\u2019s determination that it was in the best interests of the children to award to the father has a sound and substantial basis in the *989record and, accordingly, we decline to disturb it (see Matter of Guzman v Pizarro, 102 AD3d 964, 965 [2013])."], "id": "caca7eac-a0b7-43a3-bf3e-e6cbe08a7645", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After trial of the issues but before Family Court\u2019s decision, petitioner twice moved for an order of contempt, claiming that respondent had wilfully violated the parties\u2019 custodial arrangement by failing to adhere to the Christmas 1992 visitation schedule. Family Court (1) awarded of the children to respondent, finding that joint custody was not an available option in the circumstances, and (2) found that both respondent and petitioner were available for the emotional growth of the children and possessed comparable abilities to provide for such growth, and that the home environment in the care of each parent was positive. Family Court also found that the best interests of the children mandated that petitioner be awarded liberal visitation and set forth an explicit visitation schedule. In a supplemental/amended order which considered petitioner\u2019s contempt motions, Family Court, inter alia, found that respondent wilfully violated petitioner\u2019s rights of visitation, but declined to impose sanctions. Petitioner appeals both the order and the amended order."], "id": "f5b42a06-fba8-42b5-9e10-a22875a041fb", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The Family Court providently exercised its discretion in dismissing, without a hearing, the mother\u2019s petition to modify an existing custody order so as to award her of the subject child and to award only daytime visitation to the father until he obtains \u201csuitable housing.\u201d The mother was required to make \u201can evidentiary showing sufficient to warrant a hearing\u201d based upon a subsequent change in circumstances (Matter of Grant v Hunter, 64 AD3d 779, 779 [2009]), such that a modification is necessary to ensure the continued best interests and welfare of the child (see Matter of Gurewich v Gurewich, 58 AD3d 628, 629 [2009]). The mother failed to do so (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638 [2012]; Matter of Dowgiallo v Williams, 99 AD3d 708 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114 [2012]; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615 [2011])."], "id": "a22d7052-ecc6-47bc-bca8-cc461c7cbed2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Neither Dr. Demby nor Mr. D. proposes that either parent have . I agree with that approach in this case. Each of these parents has serious parenting deficiencies. Ms. R. is too permissive and too disorganized to create the stable structured environment that J. needs in order to overcome his learning limitations. She does not have appropriate boundaries, as demonstrated by her actions of repeatedly speaking to J.\u2019s teachers about her personal problems even after being asked not to do so, bringing J. along to her therapy sessions and A.\u2019s hypnosis sessions, and talking to J. inappropriately about his father. Mr. D. is not warm, affectionate or empathetic and does not understand J. emotionally. Neither of these parents is a better parent than the other to the degree that either of them should be privileged over the other as the custodial parent."], "id": "26cc4e70-1e9e-4900-8d73-012f356ec4b9", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Lawrence E. Kahn, J. This motion is made by plaintiff Richard A. Rusin for an order pursuant to section 240 of the Domestic Relations Law modifying the directions contained in the final judgment entered in this action the 6th day of October, 1977 for the care, custody and control of Theresa Jean Rusin, the child of plaintiff and defendant, by directing that plaintiff father be entitled to and that defendant, Camille A. Rusin Lundberg, the mother, be entitled to visit the child at all reasonable times."], "id": "97e0924a-a063-4531-b6c2-524262822fd9", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In addition to Burns and Hendricks's children, Hendricks has given birth to three other children. Her rights to one of those children has been terminated, and her other two children are in the of their father. Hendricks's parental rights to EB and LB were also terminated in this action; however, Hendricks is not a party to this appeal."], "id": "28b0c710-1107-4e94-8df0-54667a4677ab", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Finally, Kali argues that the custody order should be set aside because the family court failed to appoint a guardian ad litem (GAL) for S.J.C. during the custody proceeding. However, Kali did not raise this issue at any point before the *419family court. Furthermore, while a GAL must be appointed for a child in termination proceedings, KRS2 625.041, appointment of a GAL in custody matters is generally permissive. See Morgan v. Getter , 441 S.W.3d 94, 106 (Ky. 2014), citing FCRPP3 6(2). Given Kali's failure to raise this matter in support of her CR 60.02 motion before the family court, we decline to address the issue further. Consequently, any matters relating to custody must be addressed in the Grayson Circuit action based upon Kali's prior waiver of her superior right to ."], "id": "7f2693d5-1d0c-49df-b394-6bdafb0312a2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["*624On or about July 21, 2006, Lissette went to Florida to visit the mother for the six-week period provided in the stipulation. Lissette did not return on September 1, and the mother did not provide the father with any information as to when she would return. The father then brought on a motion by order to show cause to hold the mother in contempt, to give him of Lissette and for other relief. The order to show cause, signed on September 21, 2006, also directed the mother to return Lissette forthwith. The return date of the order to show cause was October 11, 2006."], "id": "fbcfe202-506b-4069-8a6c-f52bff9c883d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The parties were divorced in El Paso, Texas, and the mother was awarded of the minor child. With the permission of a Texas court, the mother moved to New York shortly after the divorce became final. The divorce judgment contained extensive provisions for visitation, which included the requirement that the father travel to New York to pick his son up for both short-term and long-term visitation periods. Additionally, the judgment provided that the Texas courts relinquished jurisdiction over the visitation upon the relocation of the mother and child to New York."], "id": "5bbba1e7-d4b2-413c-b7fb-200f72434877", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Shortly thereafter, Mother and Father were reincarcerated. The family court suspended Father's visitation and awarded L.B. and B.B. . Both biological parents were paroled in 2016. Father's Day, June 19, 2016, was the last day either Father or Mother visited with Child. Both were reincarcerated in 2017, when Mother violated the terms of her parole and the Commonwealth charged Father with robbery."], "id": "29103abb-429d-43d5-a238-977b61cb0f61", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, the 2018 Modification Judgment granted Father's motion to modify the 2014 Judgment. Under the 2014 Judgment, Mother had sole legal and physical custody of Daughter. The 2018 Modification Judgment awarded joint legal and physical custody as well as transferred residential custody of Daughter from Mother to Father. In order to modify the 2014 Judgment, Father must have shown a change in circumstances since the 2014 Judgment. Section 452.410.1. Notably, that change must be substantial because the trial court reversed Mother's and removed Daughter from the home where she lived with Mother from approximately age five to age nine. Tienter, 482 S.W.3d at 490 (citing Russell, 210 S.W.3d at 197 );"], "id": "23f60f7a-c3cf-4440-8fd5-d0ee57d94d58", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In Sooy v Sooy (101 AD2d 287, affd sub nom. Matter of Louise E. S. v W. Stephen S., 64 NY2d 946) the Third Department determined that the Family Court did not abuse its *34discretion in awarding petitioner counsel fees in a custodial dispute (supra, 101 AD2d, at 291). Although that opinion does not recite the precise procedural history of the case, review of the record on appeal discloses that the Supreme Court judgment of divorce did not refer the custody issue to the Family Court (see, Domestic Relations Law \u00a7 251; Family Ct Act \u00a7 651 [a]), but rather, awarded joint custody and ordered \"that either party upon application to an appropriate court, shall be entitled to a determination as to the of the child\u201d. Thereafter an original petition was filed in Family Court for determination of custody and attorney\u2019s fees were awarded in the course of that proceeding."], "id": "6fd24bf1-613b-4056-a1da-6e014747170b", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["BACKGROUND A December 2018 decree dissolved the parties\u2019 marriage. The court awarded the parties joint legal and physical cus- tody of their four children: two daughters born in 2003 and 2005, respectively, and two sons, born in 2004 and 2007, respectively. The court ordered Matthew to pay child support of $2,000 per month for four children, which would decrease by $500 a month each time a child was no longer eligible to receive support. A child support calculation was not attached to the decree. Within 8 months, both parties sought to modify the decree. They alleged a material change in circumstances with respect to custody and child support. Prior to trial, the parties resolved custody and parenting time issues. They agreed for Krystal to have of the parties\u2019 two daughters. The district court conducted a trial concerning child support. It received into evidence the child support calculation used - 347 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345"], "id": "2e81e482-ead0-4279-8fea-0c64342c2bab", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Daniel asks this court not to remand the case to the circuit court and to award him of the children. However, because the circuit court maintained the joint-custody arrangement, it made no findings regarding this issue. As such, in order to accommodate his request, we would be forced to make factual and credibility findings, which can only be made by the circuit court. See Doss , 2010 Ark. App. 95, 377 S.W.3d 348."], "id": "d313975c-bfe4-499c-8f7b-9a874a101c77", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The new firm succeeding to and carrying on the business of that which had preceded it, with the testator as one of its members, liquidated and settled the affairs of the old firm, and carried on and transacted the same business. This business-continued until October, 1871, when the firm failed, and in consequence of its failure a very large loss, amounting to near the sum of $150,000, *186was sustained by the testator\u2019s estate. In this loss the interest of the plaintiff in the estate was to a very great extent included, and it was to protect herself against that loss that this action was instituted and carried on by her. In support of it the evidence established the fact that the loss was caused solely by the conduct and mismanagement of the plaintiff\u2019s half-brother George G. Wilmerding. From the time of his appointment as executor under the will he had sole control of the financial affairs of the estate down to the time of the failure of his firm, when the management was taken out of his hands by the defendant John McKesson, concerning whose conduct after that time no complaint whatever has been made. The executor George G. Wilmerding also had, during the time mentioned, the sole control and custody of the' securities of the estate, the other executor, McKesson, interfering no further than to select and approve of securities in which the financial capital of .the estate was chiefly invested. As these were selected or approved by McKesson they were taken by the executor George G. Wilmerding and a corresponding amount of the funds of the estate invested in them, and after the securities were so taken they remained in the and charge of himself."], "id": "846e04c7-f3c4-4c65-b58b-16ac01c8c35e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": [" Generally, \"a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record\" (Matter of Krug v Krug, 55 AD3d 1373, 1374 [4th Dept 2008] [internal quotation marks omitted]; see Matter of Crill v Crill, 181 AD3d 1199, 1200 [4th Dept 2020]). Here, we reject the mother's contention that Family Court's determination is not supported by a sound and substantial basis in the record. To the contrary, after reviewing the appropriate factors (see generally Fox v Fox, 177 AD2d 209, 210-211 [4th Dept 1992]), we conclude that the totality of the circumstances supports the court's determination that it is in the best interests of the subject children to award and primary physical residence to the father (see Eschbach v Eschbach, 56 NY2d 167, 174 [1982]; Matter of Marino v Marino, 90 AD3d 1694, 1695 [4th Dept 2011]). With respect to the mother's specific contention that the court erred by separating the subject children from the mother's other children, it is well settled that \"the presence of half siblings of the child[ren] in [the mother's] home is not dispositive, although it is a factor to be considered in making custody determinations\" (Matter of Slade v Hosack, 77 AD3d 1409, 1409 [4th Dept 2010]; see generally Eschbach, 56 NY2d at 173). Here, the record reflects that the subject children were previously separated from their half siblings when the mother assaulted two of those siblings, which led to all of the mother's children being initially placed in foster care, and the two subject children being placed with the father thereafter. Based on those factors and the other evidence in the record, we conclude that the court's determination that it is in the best interests of the subject children that they be separated from their half siblings is supported by a sound and substantial basis in the record (see Matter of Curry v Reese, 145 AD3d 1475, 1476 [4th Dept 2016]; Matter of Luke v Luke, 90 AD3d 1179, 1182 [3d Dept 2011]; see also Matter of Colleen F. v Frank K., 49 AD3d 1228, 1230 [4th Dept 2008])."], "id": "0bcc0039-e7e6-4bed-995c-b6a36fafbcb9", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Memorandum: On appeal from an order granting of the subject children to petitioner, a nonparent, respondent mother contends that Family Court erred in failing to conduct an evidentiary hearing to determine whether extraordinary circumstances exist and, if so, to determine the best interests of the children. We agree, and we therefore reverse the order and remit the matter to Family Court for the requisite evidentiary hearing. It is well settled that, \u201cas between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of \u2018surrender, abandonment, *1571persisting neglect, unfitness or other like extraordinary circumstances\u2019 \u201d (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). \u201c \u2018[T]he nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child[ren]\u2019 \u201d (Matter of Ruggieri v Bryan, 23 AD3d 991, 992 [2005]). Here, the court \u201cdeprived a biological parent of custody of [her] child[ren] without the . . . [requisite evidentiary] hearing\u201d on the issues of extraordinary circumstances and best interests (Matter of Stiles v Orshal, 290 AD2d 824, 825 [2002]). Instead of conducting the hearing on the date it was to begin, the court asked the parents what witnesses would be called on their behalf. When the parents responded that they would be testifying but had no other witnesses, the court stated that it found no triable issues of fact and granted the nonparent\u2019s petition for custody. Thus, the court failed to place the burden of proof on the nonparent to prove that extraordinary circumstances exist. Finally, we note that the home study on which the court relied was potentially out of date when the court granted the petition."], "id": "f1eae955-498b-4386-89dd-f1b244a3595a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Upon our review of the record, we find no reason to disturb the Supreme Court\u2019s award of of the child to the father (see, Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). After performing comprehensive *542evaluations of the parties, a court-appointed psychiatrist and a court-appointed psychologist both concluded that the father was the more appropriate custodial parent. The mother was found to suffer from, among other things, severe depression, persecutorial delusions, extreme emotional lability (openess to change), exceedingly poor judgment, and distortion of reality, all of which impaired her parenting skills. Her unfounded allegations that the father had sexually abused the child and physically abused her are further evidence of her unfitness to act as the custodial parent (see, Nir v Nir, 172 AD2d 651)."], "id": "6040fd91-671b-4834-b773-85fdda2ce519", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We hold that the circuit court did not err by granting to Consuela. In making its decision, the court relied on the facts that Consuela had been the primary caregiver during the parties' marriage and that since the divorce, she had continued to be the primary decision-maker regarding the children's educational and medical matters. Further, as to the domestic abuse, many of the contentions concerning the abuse were credibility determinations to be decided by the circuit court. See Wise v. Wise , 2010 Ark. App. 184, 374 S.W.3d 704. Accordingly, we cannot say that the circuit court erred in finding that it was in the children's best interest for Consuela to have sole custody."], "id": "5e24ef84-cad7-4563-8bdb-203d287f322a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Three situations are conceivable in this connection, and the language employed in their adjudication has, in certain instances, been superficially contradictory, if the reader fails to recollect the different basic principles which are applicable. The first two of these situations relate to the manner of holding of the particular asset in question prior to the time it came into the unrestricted possession of the cofiduciary by whom it was misapplied. In this regard, a distinction is to be drawn between a case in which the item in question was an asset or the proceeds of an asset, which was in the actual physical possession of both cofiduciaries prior to the time when its unrestricted control was intrusted to one of their number and one in which it was merely one which they were entitled to reduce to possession, which act had not actually been performed. In the former situation, a cofiduciary who surrenders *296to his associate the asset or proceeds thereof, of which he had previously held joint ownership, will be held liable, if such associate wastes or converts it after he had achieved thereof. Where, however, the asset had not previously been reduced to the possession of either fiduciary, one will not be held responsible for the devastavit of his cofiduciary merely because he did not insist upon receiving personal or joint control thereof."], "id": "ee4238d8-c9bc-4493-af44-3171006ed803", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The turning over to Wilkinson of the unregistered bonds purchased by Halstead presents the question of just what deliverey of assets by a trustee to his cotrustees renders the former liable. It has been frequently held, and the rule is now well established, that where a trustee unnecessarily surrenders the joint custody of funds to the of his cotrustees he becomes liable for the application of the funds by his cotrustees. Purdy v. Lynch, 145 N. Y. 462; Nanz v. Oakley, 120 id. 84; Bruen v. Gillet, 115 id. 10; Paulding v. Sharkey, 88 id. 432; Matter of Provost, 87 App. Div. 90."], "id": "7353009c-496f-4d15-a092-e27da44c1fa2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The Judicial Council has not yet adopted rules regarding SIJ findings made by courts in the family law division. However, the Judicial Council forms8 developed for use in family law matters contemplate SIJ findings may be requested in the following proceedings: petition for dissolution of a *425marriage or domestic partnership; petition to establish a parental relationship; petition for custody and support of minor child(ren); and a petition for a domestic violence restraining order. (Judicial Council Forms, form FL-356.) In all cases, the petitions must request sole physical custody of the child. (Ibid. ) Courts may also make SIJ findings in connection with an adoption request or other proceeding in which of the child is requested. (Ibid. )"], "id": "ae0ea35f-ad5a-4bd9-b38c-52ad76060d92", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After considering the record as a whole, we find that the circumstantial evidence that might support a finding of a \"conspiracy\u201d or an attempt to \"program\u201d Jazzmin to make false allegations does not outweigh the testimony of several highly regarded experts, and Jazzmin\u2019s own therapist, none of whom found any reason to doubt the veracity of her assertions. And, having duly considered the testimony presented on *905respondent\u2019s behalf, including that of her therapist who was critical of Kuntz\u2019s methods, yet when pressed admitted that she was uncertain as to whether any abuse had occurred, we are of the view that a modification of the previous custody arrangement is warranted. Accordingly, petitioner is hereby awarded of Allexxia, with Family Court to establish an appropriate schedule of supervised visitation along with such other conditions as it deems appropriate (see, Matter of McCauliffe v Peace, 176 AD2d 382, 384, supra)."], "id": "d87a3b4e-ffaa-43db-af1a-9b51e3d53850", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Both motions to dismiss this appeal are denied. The requests encompassed within those motions to take judicial notice of records from the Louisiana dependency court proceedings are granted. The juvenile court's orders terminating jurisdiction and related exit orders awarding of C.W. to Rusty are reversed, and the case is remanded for further proceedings consistent with this opinion. The clerk of this court is directed to send a copy of this opinion immediately upon its filing to the clerk of the Louisiana juvenile dependency court."], "id": "87f10174-9fb6-4908-aa15-a4335e43f2cf", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["I foresee a time when judges who are called upon to determine parenting issues will be able to proceed directly to deciding decision-making without having to make unnecessary, and sometimes detrimental, custodial designations. But, in light of current appellate case authority, it seems that such a time has not yet arrived. Accordingly, in addition to determining how the parties will handle decision-making, I will decide what form legal custody will take. In particular, I will determine if the custodial designation should be joint custody to both parties or to the mother."], "id": "b3c8c274-958b-48b1-8fd2-a47c06b99e00", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Family Court\u2019s order should be affirmed. Respondent\u2019s argument that the evidence was insufficient to support the award of of the children to petitioner is without merit. In this case, a \"fair interpretation of the evidence\u201d (Matter of Bogert v Rickard, 199 AD2d 587, 588) supports Family Court\u2019s conclusions (see, Matter of Liccione v John H., 65 NY2d 826, 827-828). The evidence indicates that respondent becomes violent when intoxicated and has, on numerous occasions in the past, verbally and physically abused petitioner (see, Vogel v Vogel, 149 AD2d 501, 502)."], "id": "547cfda5-623e-44fb-9780-65affcc5f6ff", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of separation agreement upon the express consideration \u201c of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained.\" The contract provided that the wife should have the of and control of the children \u201c without any interference on the part of the party of the first part.\" Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void."], "id": "b8a7789f-5ac2-44e9-98f6-2e5d85013ad2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, Bianka's parentage petition indicates she is seeking a order as well as an order containing SIJ findings. Although the petition cites the SIJ statute as well as Code of Civil Procedure section 155, the petition does not indicate Bianka seeks an order specifically finding that Jorge abandoned her and/or committed acts of domestic violence against Gladys. Consistent with the due process principles discussed above, we hold that in a default proceeding under the UPA, a court may only issue an order containing SIJ findings regarding parental abuse, neglect, abandonment or other similar actions if those factual allegations were contained in the original petition or in a request for order served together with the summons and a copy of the petition. Only in such circumstances would a parent be on notice of the potential for a negative factual finding of abuse, neglect or abandonment."], "id": "576e72c0-bda5-4897-9977-17e5f80d142c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["documents it had received and considered6 and heard the parties\u2019 arguments. Mother claimed father hit one of the children, and asked the court to award her full physical and legal custody, with father having no visitation or contact with the children. She admitted that a child welfare services investigation resulted in a finding that the claim was unsubstantiated. When father\u2019s counsel stated that mother was making the same allegations as in July 2020, mother responded that there had not been another investigation because she did not have physical evidence. The court observed that it \u201ckind of [saw] a pattern here of you wanting to come to court constantly and get of the [children].\u201d It asked mother about exhibits she had lodged that the court had seen before dealing with mother\u2019s allegation of rape in Las Vegas, including a text message from January 2017, which she had submitted to the court \u201con multiple occasions.\u201d The court asked mother what relevance the allegation had to the present proceeding: \u201cThe court: . . . I\u2019ve seen these things. I\u2019ve heard from you on this issue before. It seems to me . . . that . . . you get a result that you don\u2019t like and then you come back to court a few months later. [\u00b6] And [father] has to hire an attorney, go through the expense, miss time from work, go through the stress and strain of having to wonder what\u2019s going to happen at court. And then there\u2019s\u2014then it\u2019s resolved. Then a few months later, we\u2019re dealing with the same issue again. [\u00b6] . . . [\u00b6] . . . So let me ask you. What does that"], "id": "47aaaa66-96b5-4ba5-a19e-859f9f18ba47", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the children (see Matter of Chery v Richardson, 88 AD3d 788, 788 [2011]; Matter of Conforti v Conforti, 46 AD3d 877 [2007]; Matter of Strand-O\u2019Shea v O\u2019Shea, 32 AD3d 398 [2006]; Matter of Rho v Rho, 19 AD3d 605, 606 [2005]; Matter of Dow v Dow, 306 AD2d 529, 530 [2003]). The court must consider the totality of the circumstances (see Matter of Strand-O\u2019Shea v O\u2019Shea, 32 AD3d at 398). The evidence adduced at the hearing in the instant matter established that the mother\u2019s apartment had become a \u201charried and chaotic environment\u201d that did not provide the subject children with the focused attention and structure they needed for success in school and intellectual development. Further, the evi*731dence established that the mother had failed to provide appropriate medical attention to the children, who apparently suffered from seizure disorders and asthma. Accordingly, the record reflects that a change in circumstances had occurred, and the evidence supported the Family Court\u2019s determination that awarding of the subject children to the father was in their best interests (see Matter of Conforti v Conforti, 46 AD3d at 878; Matter of Battista v Fasano, 41 AD3d at 713)."], "id": "7f4a5131-689e-4461-af2b-989f53f541b8", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["We agree with respondent\u2019s contention that the court failed *1033to make the necessary findings to justify a change of custody. However, we reject respondent\u2019s further contention that the record is insufficient to justify the court\u2019s conclusion that the best interests of the child require a change of the joint custodial arrangement to one of with petitioner. Where the record is sufficiently complete, we can make our own findings of fact in the interests of judicial economy and the well-being of the child (see, Matter of Milton v Dennis, 96 AD2d 628)."], "id": "107beba2-6b59-43f3-b98b-eed45853f642", "sub_label": "US_Terminology"} {"obj_label": "Sole custody", "legal_topic": "Family Law", "masked_sentences": ["5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows: (1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (2) Joint physical custody with one party granted sole legal custody. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (3) Joint legal custody with one party granted sole physical custody; (4) to either parent; or (5) Third-party custody or visitation: (a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action; (b) Under the provisions of this subsection, any person may petition the court to intervene as a party in interest at any time as provided by supreme court rule. (Emphasis added)."], "id": "14f92d83-5c0a-407d-8373-2fb0a2745c34", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In March 2016, father began to suspect mother was using drugs and sought an ex parte order granting him temporary of the girls. Mother acknowledged she was actively using methamphetamine and agreed to a stipulated custody order giving father sole custody on a temporary basis. Under that order, which was issued in April 2016 and titled \"stipulation and order for temporary custody and visitation,\" mother was allowed visitation \"upon mutual agreement between the parties.\" According to father, mother tried to arrange visits or at least speak with the girls three times in the following month, but he refused based on his family therapist's advice that allowing mother to contact or visit would be stressful for the girls. A few weeks later, in mid-May, mother left a voice message for the girls on father's phone and texted father asking him to play it for them. Father again refused, responding that the therapist did not want the girls to listen to her message \"because you are trying to guilt the girls into calling.\" At trial, mother said she stopped trying to contact or see the girls after that because she felt she was \"hitting a wall with [father].\" She didn't want fights with him to be a \"trigger for her addictions\" so she decided to focus on getting healthy and fighting for custody in family court."], "id": "142e0306-7165-4fe5-8358-02ecc90c800c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Despite all the factors favoring a co-parenting arrangement, there is one flaw, at least from the mother\u2019s perspective, that calls into question whether shared decision-making is feasible in this instance: the father\u2019s vexatious personality. According to the mother\u2014and others in the father\u2019s professional and personal life\u2014he can be argumentative, contentious and rigid. It is the mother\u2019s position that because the father can be so difficult to co-parent with, she should be awarded sole decision-making authority over all spheres, and by implication, be deemed to have of their child. The father, while conceding that joint decision-making is not viable, argues that he and the mother should each have final decision-making authority over specified zones, and by implication, they both should be deemed to have joint custody of their son.1"], "id": "5be441e9-9d75-49cd-b18a-d58fc8ad63ac", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On March 1, 2012 the Superior Court of Arizona, Mohave County, granted Hector and Sandra's petition and awarded them of Cora and P.L. In June 2016 the court terminated Brittney and Joseph's parent-child relationship with Cora and P.L., finding in part that they were unable to discharge their parental responsibilities due to a 20-year history of substance abuse."], "id": "7e2eae3e-f8c6-4ee9-87be-138aff84f363", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Viewing the totality of the circumstances, and according deference to Family Court\u2019s credibility determinations, there is a *1350sound and substantial basis in the record to support Family Court\u2019s determination that it is in the child\u2019s best interests to transfer sole legal and physical custody of him to the father (see Matter of Keefe v Adam, 85 AD3d at 1226-1227; Matter of Dobies v Brefka, 83 AD3d at 1151-1152; Matter of Seacord v Seacord, 81 AD3d at 1104). The mother\u2019s interference with the father\u2019s visitation rights and inappropriate conduct at the custody exchanges are detrimental to the child, and her hostile and egregious conduct toward the father in front of the child reflects her unwillingness to promote and encourage a relationship between the father and the child. Accordingly, we discern no basis upon which to disturb Family Court\u2019s award of to the father with supervised visitation with the mother. The mother\u2019s remaining arguments have been considered and found to be without merit."], "id": "2c91475e-76d9-4f89-b4f3-04117263113b", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["It is well settled that where a will directs the trustee to pay income to a beneficiary the latter has an absolute right to receive it which is enforcible by his committee or guardian if he is under a legal disability. (Matter of Bearns, 251 App. Div. 222, affd. 276 N. Y. 590; Gasquet v. Pollock, 1 App. Div. 512, affd. 158 N. Y. 734.) On the other hand, where the direction is to apply income to ihe use of the beneficiary the trustee must exercise its own discretion in disbursing funds and it cannot avoid that responsibility by making payment to a committee, guardian, or donee of a power in trust. (New York Trust Co. v. Black, 178 App. Div. 4, affd. 223 N. Y. 703; Matter of McCormick, 40 App. Div. 73, affd. 163 N. Y. 551; Matter of Connolly, 71 Misc. 388; see Matter of Leeds, 23 N. Y. S. 2d 679, 694.) Whether the trustee is to \u201c pay \u201d or \u201c apply \u201d depends on the intention of the testator. A direction to 1 \u2018 apply \u2019 \u2019 income may even be construed to require payment directly to the beneficiary. (Matter of Bearns, supra.) A trust to \u201c pay over \u201d income to a beneficiary is valid within section 96 of the Real Property Law authorizing trusts to \u20181 apply \u2019 \u2019 income because payment of the income to the beneficiary is an application thereof. (Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 N. Y. 376.) Here, although the testator used the words \u201c to pay over \u201d, he did not direct the trustees \u201c to pay over \u201d to the infant. Rather he directed them \u2018 \u2018 to pay over such income or portion of such income * * * for the support, mainte*588nance and education of \u201d the beneficiary. (Emphasis supplied.) In addition, he expressly conferred discretion upon the trustees to determine the amount of income to be paid out, the payment intervals, and the specific purposes for which the funds are to be used. It would he unreasonably circuitous and expensive for the trustees to make payment of the amounts they deem \u201c necessary or desirable \u201d to the donee of the power in trust who in turn would have to pay them out for the use of the infant. This is especially so because the donee is one of the two trustees and the widow, who has the of the infant, is the other. Both acting jointly need make but one decision concerning the use of income or principal. It is held that the trustees are fully authorized under the terms of the will to apply income and principal to the use of the beneficiary. Payment to the petitioner in his capacity as donee of the power in trust is therefore unnecessary."], "id": "84cf56d5-57a8-41ac-a641-b7fd753e8ae5", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In this matter, petitioner mother, Reine R., seeks leave to change the name of her son, born xx/xx/2009, from \u201cGabriel N.M.\u201d to \u201cGabriel N.R.\u201d The petitioner and the child\u2019s father, Brayner M., were divorced by judgment of divorce granted on xx/xx/2013 (Adams, J.) and entered in the Nassau County Clerk\u2019s Office on xx/xx/2013. Previously, pursuant to agreement of the parties and as ordered by a xx/xx/2011 Nassau County Family Court order (Stack, J.H.O.), the petitioner was awarded of the child and the father was awarded liberal visitation, as well as access to the child\u2019s health and education records. Petitioner was later remarried to Anthony J.R. on xx/ xx/2014."], "id": "539649ea-90d0-4afe-9b95-f979519da15a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The court also failed to give any weight to the fact that during the course of visitation, the mother continued to engage in conduct that undermined Scarlet and Pascal\u2019s trust. For example, the mother assured Scarlet that she could continue to live with the father, while simultaneously seeking , and she used a visit that Pascal and Scarlet had with their sister Tallulah to secretly record their conversations. When Scarlet and Pascal discussed their feelings with the mother in therapy, the mother discounted those sentiments as the result of their father\u2019s brainwashing, which, as counsel for Tallulah recognizes, \u201chad to frustrate the older children and would make it reasonable for Scarlet to believe she wasn\u2019t being heard.\u201d In addition, the supervisor of therapeutic visitation testified that there were occasions when the mother made negative statements about the father, to which Pascal and Scarlet responded in a hurt manner."], "id": "7cc1a1f4-75f8-41f6-9491-675808192c2a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Daniel next argues that the circuit court erred by not granting to him. He asserts that the court disregarded the facts that Consuela married a felon and that they have a volatile relationship. He cites Arkansas Code Annotated section 9-13-101(c) (Repl. 2013) and asserts that the court failed to recognize the rebuttable presumption that the children be placed with him."], "id": "11108d60-6e0e-42b8-a8ca-20c129dfed4e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The court placed the children with Father, who had tested negative for drugs, and ordered Mother to participate in individual counseling, drug testing, and parenting classes. On August 6, 2010, Mother advised DCFS that she was moving to Ontario and did not intend to return home. She believed Father took good care of the children and they would not miss her. As a result, jurisdiction was terminated for Mother's failure to comply with the court's orders and Father was granted of the children. Monitored visits were ordered for Mother. Mother moved back in with Father and the children in 2013 or 2014. Mother cared for Alexzander and Catrina while Father worked."], "id": "fb74f4a2-4fe7-4f1d-acd9-524239cee4ec", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In none of these cases before us in this opinion was the lesser finding of neglect by narcotic abuse actually made, since none successfully rebutted the presumption by affirmative proof of good care of the children and swift rehabilitative measures *369for the addicted parent. All respondents were expressly advised of the opportunity and some made the effort to establish the defense but failed to prevail. So the finding of abuse by addiction required in each of these cases \u201c removal of [the] child from his home,\u201d except for the 15-year-old boy in the \u201c Bond \u201d matter where his safety was demonstrated and the presumption thus rebutted for the time being. But rehabilitative measures were imposed by the court, sometimes in the community, sometimes in an open residential program. Progress hearings were scheduled by the court, usually in two or three months, for further disposition. Visitation under proper supervision was allowed when desired and if indicated. \u2018 \u2018 Removal of such child from his home \u201d was interpreted not literally, but as the Legislature is believed to have intended, that is to say, sometimes by removal of the addicted parent from the home, leaving the child in the same physical home but in the of a nonaddicted parent or other suitable relative or person. If no such nonaddicted suitable person was available, a removal to a foster home or shelter home program was ordered to protect the child. The very same alternatives are available to a child if found \u2018 \u2018 neglected \u201d by an addicted parent but not \u201cabused\u201d by an addicted parent, also with the alternative of leaving the addicted parent in the child\u2019s home on condition of another suitable person living there who can protect the child if needed."], "id": "abf9ec4c-e47a-4cb0-b9ed-dee22c539eab", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In December 1994, after extensive litigation during which defendant instructed Paul Weiss to \u201cleave no stones unturned\u201d and to work \u201cfull-speed-ahead in every front that could be pursued,\u201d defendant was granted a divorce in New York and was awarded . For the next four years, the divorce and custody issues were relitigated in the Italian courts, where defendant was granted a divorce and sole custody. The custody aspect of the award was eventually reversed on appeal and Staller granted custody. Although defendant had Italian counsel in Italy, plaintiff law firm worked with Italian counsel at defendant\u2019s request."], "id": "0a3db8e1-aeee-4985-8172-bdaccc3b3b77", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to a separation agreement which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought of both children on the grounds that respondent was not providing for the children\u2019s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody."], "id": "63d8b4fe-4654-40b4-ab7a-d64584753f0c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The instant action was brought in this court for a divorce predicated upon a subsisting judgment of separation. The separation action was instituted by the wife in the Supreme Court, Nassau County, where, on May 26, 1967, she was granted judgment on the ground of \u201c cruel and inhuman treatment \u201d. The judgment awarded of the infant daughter of the parties, now four years of age, to the mother, with certain visitation rights to the father. Among these, it was ordered that the father \u201c shall have the right to take the child for two weeks during the summer months commencing with the year 1968 \u201d."], "id": "eda87b31-2fa0-4037-bd27-e177400746e8", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Having decided that this court has jurisdiction over this action, the court must now address the substantive aspects of this case. In regards to the application for pendente lite custody of the children, the court is mindful that the general rule in this State is that a child should not be removed from his domicile without the consent of the other spouse. Usually the cases involve a custodial parent removing a child against the wishes of a noncustodial parent. In those cases the courts have traditionally looked with disfavor on any move which unreasonably interferes with the noncustodial spouse\u2019s visitation rights. (See, Weiss v Weiss, 52 NY2d 170; Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036.) In the present case neither parent had . Thus, the rights of both are equal and would be stronger than those of a noncustodial parent in regard to preventing a child\u2019s removal from the jurisdiction."], "id": "c00cc25b-160a-478e-89c9-a36281de1822", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["\u201c * * * No doubt under this provision of the will Julia Rix could dispose of the property for her needs and requirements and her judgment in this matter would be conclusive. A very broad and liberal interpretation would be given to her power of disposal. We need not try to forecast all the instances in which such a legatee could dispose of the property. We are dealing here with the sole question whether on approaching death she could give it away absolutely and without any consideration. We have already held *942that she could not dispose of the property coming to her from her husband by will. Here was an attempted gift made at the same time that she made her will, and within thirty days of her death. It has all the indicia of an attempted gift in place of a testamentary disposition. If the bequests by will were void, so likewise should be this attempted gift. . \u201c * * * In this will the testator says that the property he gives his wife is to be her absolute property, provided, however, that upon her death or remarriage, whatever shall remain undisposed of shall go to Ms heirs. What does he mean by \u2018 remain undisposed of? \u2019 I am inclined to think the intention was to limit the power of disposition for her use, comfort, benefit or support, and that these words should have a very .broad and liberal interpretation, so much so that Julia Rix would probably be the sole judge of what was for her benefit and enjoyment. Such disposition, however, and such user would call for the exercise of good faith upon the part of Julia Rix, and would not include a gift of the property in view of approaching death solely for the benefit of her blood relatives in no way connected with her husband, Asa W. S. Rix. * * * \u201c The tendency of the courts to place these reasonable limitations upon the power of disposition under such a will may. be gathered from the following cases. (Peck v. Smith, 183 App. Div. 336, p. 343; revd., 227 N. Y. 228 on other grounds. See, also, cases cited above and the following: Goodrich v. Henderson, 221 Mass. 234; Richards v. Morrison, 101 Me. 424; Presbyterian Church v. Mize, 181 Ky. 567; Bevans v. Murray, 251 Ill. 603; Griffin v. Kitchen, 225 Mass. 331; Farlin v. Sanborn, 161 Mich. 615; Gibson v. Gibson, 239 Mo. 490.) \u201d To the same effect are the cases of Terry v. Rector, etc., St Stephen\u2019s Church (79 App. Div. 527) and Wells v. Seeley (47 Hun, 109). Even stronger indications are present in Vincent v. Rix (supra) of intent to make an absolute gift of the estate to the life tenant than here, since the of the assets were given to her as legal life tenant without the intervention of a trustee. The reasonable limitations upon the right of invasion of the principal of the trust referred to by Judge Crane in Vincent v. Rix (supra) must be applied to the language of the will here. In order, therefore, to determine the amount which Mrs. Pool may in good faith want or desire for her use, comfort, benefit or support, I have placed tMs matter upon my calendar for a hearing on the 16th day of June,. 1942, at 11:30 a. m. Proceed accordingly."], "id": "b325f2b4-91f6-4d53-9497-c39fc9de873c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Additionally, as previously stated, evidence of a parent\u2019s conduct before and after the statutory 6-month period is also relevant to determine whether the purpose or intent of the parent was to abandon the child. See id. In considering the time prior to the 6-month timeframe, there was evidence that Haley and Theodore had a close relationship for the first 7 years of Theodore\u2019s life. Haley lived with Theodore until he was 5 years old and, after Tyson attained of Theodore in 2017, saw him on a regular basis during her parenting time. Haley testified that she and Theodore would do various activities together and that she would support him at his extracurricular events. Haley\u2019s mother testified that Haley would often express a desire to see Theodore. There was also evidence that Tyson had denied Haley parenting time during her designated weekends in April and May 2019. Haley requested phone calls with Theodore in May, June, July, and November. Haley texted and video called Tyson in June and July in an effort to reach Theodore. In November, Haley emailed Tyson requesting parenting time with Theodore. Haley also testified to calling Tyson repeatedly in 2019 to speak to Theodore. Both Haley and her mother testified that Haley had purchased Theodore birthday and Christmas gifts and was storing the gifts until Haley was permitted to see Theodore. After the petition was filed, Haley emailed Tyson in November 2020 to inform him that she had met all of the requirements of stage one of the parenting plan and was requesting parenting time with Theodore. Haley had started counseling, provided Tyson with a negative hair follicle test at his request, provided her address for a well-check, and had agreed to cover the cost of a third-party to supervise her visit. When Tyson denied Haley\u2019s November request for parenting time, Haley testified that she filed a contempt action against Tyson and Tyson testified that Haley began calling him every 2 weeks to ask for time with Theodore. In January 2021, Haley resumed paying her monthly child support obligation consistently. To constitute abandonment, it must appear that there has been, by the parents, a giving up or total desertion of the minor child. In re Adoption of Micah H., supra. The question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). Further, adoption statutes will be construed strictly in favor of the rights of the natural parents in controversies involving termination of the relation of the parent and child. Id. Based on the record before us, Haley has not given up or totally deserted Theodore. Although Haley\u2019s efforts to have contact with Theodore have been sporadic and limited, and her actual contact nominal, the evidence demonstrates her desire and intent to reestablish a parent-child relationship. Therefore, the evidence is not clear and convincing that Haley abandoned Theodore. CONCLUSION We conclude that the trial court did not err in finding that Haley had not abandoned Theodore and, therefore, did not err in dismissing Brittany\u2019s petition for adoption. Accordingly, the decision of the county court is affirmed. AFFIRMED."], "id": "d281b44b-e9f1-43f4-ab98-2231b4a1f4ca", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS."], "id": "6389bee9-1803-4711-bf7e-ea3bf1c3b1de", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Here, the change in circumstances was that Robin's bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin's house by Lynzi; that Robin spoke disparagingly of Lathaire in the children's presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten's time, they were in disagreement now. The judge apparently was persuaded by Lathaire's explanations for not paying child support when he was frustrated, and for his arrest in the children's presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody. Id. at 166, 189 S.W.3d at 480 (internal citation omitted) (emphasis added). Phillip *291contends that this court should award him of L.P."], "id": "3da7977c-a8e2-49e4-93b4-54d6789dae6b", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A custodial parent\u2019s conduct may warrant a change of custody if it reaches \u201cthe level of deliberately frustrating, denying or interfering with\u201d the parental rights of the noncustodial parent so as to raise doubts about the custodial parent\u2019s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child\u2019s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [\u201cWhile one parent\u2019s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children\u2019s bond to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention\u201d (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded , notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness."], "id": "2af2185e-990e-4c31-a922-2bf03463c0d0", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["2. After the divorce, the parties interacted seamlessly and frequently regarding the children and the children's needs. 3. Dr. Schreckhise married in July of 2014. In August of 2014, Dr. Schreckhise began implementing a series of rules about how the parties would communicate, including limited communications in person and preferably only when spouses were available; requiring communication by email unless it was an emergency or time-sensitive, with spouses copied on the communication; and limiting interaction at the children's events to a \"hi\" or a nod. 4. In the summer of 2015, Dr. Schreckhise expanded the rules to add that Dr. Parry was not to talk to him at work,[1 ] was not to come to his house, was not to walk on the street in front of his house on North Willow Avenue or his wife's house on Washington Street,[2 ] and that they were to have separate parent-teacher conferences for each child. 5. Dr. Schreckhise testified that on the advice of his marriage counselor, he requested Dr. Parry not be present for the children's medical appointments if they fell during his visitation. 6. Dr. Schreckhise refused to inform Dr. Parry about the minor children's overnight childcare providers when requested by Dr. Parry. 7. In July of 2016, Dr. Schreckhise and his wife, Suzannah Schreckhise, became concerned about Dr. Schreckhise's twenty-three-year-old step-son, David Garrison. *785Mrs. Schreckhise filed an emergency petition for appointment of temporary and permanent guardianship of the person and estate of David. P. Garrison. The affidavit of David Garrison's father, included with Ms. Schreckhise's Petition, noted that David Garrison \"since turning 18, has had multiple offenses evidencing a violent tendency including: destruction of property, violence toward family members, and violence toward past girlfriends.... [David has] engaged in reckless and dangerous activities.\" 8. Dr. Schreckhise allowed David Garrison to baby-sit his then ten-year-old children overnight in a hotel room in the spring of 2015. 9. Dr. Schreckhise did not communicate to Dr. Parry that his wife was seeking guardianship of David Garrison, though David Garrison was going to be in and out of Dr. Schreckhise's home with the parties' minor children present. 10. From September 2016 through December 2016, incidents with David Garrison occurred that resulted in Dr. Schreckhise seeking an order of protection and hiring off-duty police officers to provide security outside his house for a few days. 11. Dr. Schreckhise did not communicate to Dr. Parry about the need for the off-duty police officers or these incidents with David Garrison, except for one incident that occurred on December 25, 2016.[3 ] 12. Other than the Christmas day episode, Dr. Schreckhise's testimony was, \"I didn't think I needed to tell [Dr. Parry] about David ... I was handling it.\" 13. Parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. The parents' ability to cooperate in making shared decisions affecting the children is crucial and failure to cooperate in doing so constitutes a material change in circumstances. 14. August of 2014 clearly marked a significant shift in the way the parties communicated with each other. 15. This significant shift in the way the parties communicate, based on Dr. Schreckhise's rules, is clearly a material change in circumstances in the joint custodial arrangement, as the parties now are unable to effectively communicate about their children. 16. The joint custody arrangement is no longer in the minor children's best interest. 17. Dr. Schreckhise in an effort to assert his and his wife's autonomy has put up barriers for communication between Dr. Parry and himself. Dr. Schreckhise has followed the advice of his marital counselor to the detriment of his children by putting his new wife and their marriage ahead of the needs of the children. The rules set in place by Dr. Schreckhise are manipulative, controlling, and wholly inappropriate and are not in the minor children's best interest. 18. Dr. Parry has consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Dr. Schreckhise about the children. Dr. Parry encourages and fosters an open relationship between the children and Dr. Schreckhise and shares all information with him. Dr. Parry's efforts *786and communication with Dr. Schreckhise have been child focused. 19. Therefore, it is in the best interest of the children that be awarded to Dr. Parry, subject to visitation in Dr. Schreckhise. 20. Visitation shall continue under the schedule established in the original decree: Monday and Tuesdays with Dr. Parry, Wednesday and Thursday with Dr. Schreckhise, and alternating weekends. With regard to holidays, in the absence of any agreement otherwise, the parties shall follow the Washington County Suggested Visitation Schedule[.] Schreckhise has appealed the circuit court's order.4"], "id": "d70b18ef-2994-4cb8-ade5-514b71d5560e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["During the period of July 15, 1985 to April 21, 1988, the children spent approximately one half of their time with each party. The parties did not modify the separation agreement dated December 28, 1979, to reflect this change in custody, nor any change in child support. Defendant petitioned the Supreme Court, County of Nassau, for custody of the children. Said proceeding culminated in a decision by the Honorable Howard E. Levitt dated December 15, 1985, awarding joint custody of the children to the parties and substantially dividing physical custody equally between the parties. Furthermore, Justice Levitt\u2019s order provided as follows: \"Each party shall solely bear their respective costs for the upkeep and maintenance of the children while in their custody, and all extra expenses for help, camp and education shall be borne equally.\u201d By an order dated January 12, 1987, the Appellate Division, Second Department, reversed said order restoring to the wife as provided in the aforesaid separation agreement and divorce decree."], "id": "5f7bea2c-f458-4b56-900f-786bdcdec6b3", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["*476The IAS Court did not abuse its discretion in determining that the best interests of the children would be served by granting to plaintiff (see, Alan G. v Joan G., 104 AD2d 147, 152). Defendant\u2019s contention that the court did not adequately consider evidence that plaintiff administers corporal punishment to her children is without merit. It is not disputed that the children had indicated to counselors that plaintiff \"hits\u201d them on occasion. But there was no indication that the physical contact rose to a level beyond that of proportionate disciplinary measures."], "id": "9517f685-cf8f-4ee0-b314-c92c0bdeb2b8", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In Harris , a majority of the California Supreme Court decided which of these two statutes, section 3103 or 3104, applied in circumstances where a court had granted extensive visitation rights to paternal grandparents over the objection of the child's mother, who had obtained a judgment of dissolution and an order granting her years earlier. ( Harris , supra , 34 Cal.4th at pp. 214, 220, 17 Cal.Rptr.3d 842, 96 P.3d 141.) It concluded section 3104 governed because the Legislature intended section 3103 to govern grandparent visitation only until entry of judgment dissolving the marriage and awarding custody of the child. ( Id. at p. 222, 17 Cal.Rptr.3d 842, 96 P.3d 141.) The court reasoned \"both statutes contain a rebuttable presumption against grandparent visitation if the parents agree that such visitation should be denied. But only section 3104 also applies a rebuttable presumption against grandparent visitation if the parent granted sole custody of the child objects. We conclude that the Legislature did not include a similar provision in section 3103 because it would not be needed during marriage dissolution proceedings before a judgment awarding custody had been entered. There would be no need to include such a provision in section 3103 if, as we conclude, a request for grandparent visitation is governed by section 3104 once a judgment has been entered dissolving the marriage and awarding sole custody of the child to one parent.\" ( Id. at p. 223, 17 Cal.Rptr.3d 842, 96 P.3d 141.) The court went on to uphold the constitutionality of that section under the federal and California Constitutions. ( Id . at pp. 223-230, 17 Cal.Rptr.3d 842, 96 P.3d 141.)"], "id": "e58de539-4e25-45dc-ac74-9fa23f4257e5", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Morton I. Willen, J. The plaintiff mother in this proceeding, M.A.B., applied to the court in June 1985, seeking to modify a judgment of divorce entered June 14, 1984. She wishes the court to permit her to move to Florida with her three children. The defendant father, R.B., cross-moved for a modification of the same divorce judgment, seeking to have of their 12-year-old son, B., awarded to him. He does not seek custody of the two younger children and opposes their removal to Florida. The matters were consolidated and a trial was held starting in March 1986, and concluded in May. The matter was reopened at the mother\u2019s behest in September based on subsequent facts and finally completed in October."], "id": "a7f65de9-7473-47e4-8d8f-90c9ef2e45df", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After Mr. Kern went into the house, Mr. Crumb said he had desired to give Emma Crumb a little remembrance, and to give a half sister something, to which Mrs. Crumb said that his relatives had never done anything for him and had never treated him decently, and he was under no obligations to give them anything, and so far as the other persons were concerned, she would carry out his wishes if she lived the longest; whereupon Mr. Crumb said: \u201c I have *485had Mr. Kern draw the wills as we agreed, embodying this arrangement.\u201d At this point of time Mr. Kern said to Mr. Crumb he had drawn the wills in pursuance of what he had told him, and that they were ready for execution, whereupon Mr. Crumb signed the will, declaring it to be his last will and testament, and requesting Mr. and Mrs. Kern to sign the same as witnesses, which they immediately did in his presence; that the said will was not read by Mr. Crumb before its execution, nor was it read to him by anyone, nor had he seen it before this time; that from the time the will was drawn Mr. Kern had the of it, and he had not disclosed its contents to any one; that, immediately after the will was executed, Mr. Kern and Mr. Crumb left the house together and went down town, leaving the will upon the table, Mrs. Crumb\u2019s will being also executed at the same time, and left in the same place."], "id": "2921387b-fa8d-4083-b29e-4ff80027bad2", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Between January, 1978 and Donna M. Avery\u2019s death on June 15,1980, the child, Vincent Joseph Lester, continued *822in the physical custody of his father. However, the issue of custody appears to have been far from finally settled. In approximately September, 1979, a custody proceeding was commenced in Family Court, by the decedent, but dismissed, apparently on the basis that the issue of permanent custody was still pending in Supreme Court. Between that time and her death, the decedent sought advice from, at least, two attorneys concerning the issue of custody of her son. Testimony by the petitioner, Alan Avery, to the effect that his wife made almost daily wishes for , and testimony by Vincent Catlin to the effect that his daughter was attempting to obtain full custody of her son, was uncontroverted."], "id": "ca4b9597-0644-4b14-abca-3482c8269010", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["There is insufficient evidence to address those branches of the plaintiff\u2019s motion requesting and a declaration that her alleged partner, R.R., is the biological father of A.K. and R.K. The court\u2019s paramount concern as it relates to custody is to determine, under the totality of circumstances, what is in the best interests of the children, and what will best promote their welfare and happiness (Eschbach v Eschbach, 56 NY2d 167 [1982]). There are no absolutes in making that determination; however, the decision must be based upon sound and substantial evidence (Matter of Louis M. v Administration for *877Children\u2019s Servs., 69 AD3d 633 [2d Dept 2010]). Here, the plaintiff has failed to proffer even a scintilla of objective, scientific evidence in admissible form to establish that the children were conceived via in vitro fertilization using R.R.\u2019s biological material. Furthermore, R.R. is not a party to this action, nor is there a showing that the plaintiff served notice of the instant motion upon R.R."], "id": "9f81aae7-14c0-4e14-a036-484727a10b33", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The petition stated that the biological father was unknown, and both parties *417swore to that fact in separate depositions. A warning order attorney was appointed to attempt service on the unknown and unidentified father. In her response, Kali stated that she was waiving her rights to seek separate representation by counsel, as well as her superior right to of S.J.C. On March 10, 2015, the family court entered an order granting joint custody of S.J.C. to Kali and Jessica."], "id": "01b42012-0e6b-4590-b706-7db180d65fa7", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In many cases, a child who seeks SIJ status will be involved in proceedings in the juvenile court (for foster home placement) or the probate court (for the appointment of a legal guardian). However, where the child has reunited with one parent in the United States, it is more likely the child will be the subject of a custody proceeding in the family court. In this case, Bianka initiated a parentage action under the Uniform Parentage Act (Fam.Code, \u00a7 7600 et seq. ) naming her mother as the respondent. Although Bianka's mother did not file a response to the petition, it appears maternity is uncontested. Bianka also filed a pretrial request for *854order asking the court to place her in the sole legal and physical custody of her mother and to make the additional findings necessary to allow her to petition for SIJ status, namely that she cannot reunify with her father because he abandoned her and it is not in her best interest to return to Honduras. The court declined to make the requested findings primarily because it concluded Bianka's request for an award of to her mother in an action under the UPA necessarily implicated paternity and parental rights (if any), which in turn made Jorge an indispensible party to the parentage action."], "id": "ffb023cd-e85e-4dfe-92be-24b0b1717f61", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On an earlier appeal (187 AD2d 50, appeal dismissed 81 NY2d 1006, lv denied 82 NY2d 654, rearg denied 82 NY2d 803), we affirmed the trial court\u2019s award of permanent and of the child to respondent along with the sole and exclusive power with respect to him and ordered petitioner\u2019s visitation to be supervised. Thereafter, petitioner father brought on five orders to show cause to, inter alia, hold respondent mother in contempt for purportedly intentionally violating the terms of the custody/visitation order and to again seek the appointment of a law guardian/forensie psyehi*15atrist for the child, who is apparently still suffering the effects of the protracted custody battle. In view of petitioner\u2019s failure to establish that respondent\u2019s conduct was willful and contumacious, the court properly denied petitioner\u2019s request to hold respondent in contempt. Moreover, the court did not err in ruling without holding an evidentiary hearing since no factual dispute existed which could not be resolved on the papers alone (see, Matter of Benny v Benny, 199 AD2d 384, 388)."], "id": "6fdf02be-3ea2-4e4e-a26f-61d088b2107f", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["By a notice pursuant to CPLR article 31 dated January 31,1984, the defendant seeks to take the oral depositions of the plaintiff and her current husband with respect to evidence material and necessary in the prosecution of his application for . The notice states that \u201cthis is NOT A FINANCIAL EXAMINATION. IT IS NECESSARY FOR THE PROSECUTION OF THIS ACTION.\u201d"], "id": "94e15a21-b7d6-488f-a525-55a8b3d7ba7e", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After the parties\u2019 divorce in 1990, petitioner was awarded of their daughter, Aslinn (who is now six years old), with respondent having regular visitation. Beginning in 1992, the parties filed petitions and cross petitions seeking modifications of the prior order: petitioner sought changes in the visitation schedule, initially to facilitate his planned relocation out of State, and later because Aslinn had become enrolled in an area Head Start program, and respondent applied for sole custody and then for joint custody during the pendency of her custody petition. Family Court found that the parties\u2019 circumstances had not changed sufficiently to warrant a change in custody, but that more extensive visitation would be in Aslinn\u2019s best interest. The court also directed petitioner to consult with respondent on matters involving Aslinn\u2019s health care, education, discipline, moral development and travel. Petitioner appeals, contending that the consultation requirement is tantamount to an award of joint legal custody, and that such an arrangement is unworkable given the parties\u2019 continued animosity toward each other. He also argues that the newly ordered visitation schedule improperly deprives him of \"quality time\u201d with his daughter and, consequently, must be overturned. We are unconvinced."], "id": "bf3a2f0b-571f-44f2-99ab-bc43b45c4a8a", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In any event, we need not decide whether joinder of an alleged parent is required in every case in which is requested because the court's joinder order was appropriate in this case under the permissive joinder provision of California Rules of Court, rule 5.24. (Cal. Rules of Court, rule 5.24(e)(2).) That section of the rule states in pertinent part: \"The court may order that a person be joined as a party to the proceeding if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.\" (Ibid. ) For at least two reasons, the court did not abuse its discretion by requiring Jorge's joinder in this case."], "id": "e410b8e4-06e8-485a-8ce6-56dabe1ca0ba", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Nevertheless, there are circumstances in which joinder may be appropriate, as in the present case in which Bianka requests an order giving her mother sole legal and physical custody. \"The requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard.\" (In reMarriage of Torres (1998) 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344.) While joinder of an alleged parent who lives outside California may not be required in every case in which is requested, we are hard pressed to think of a circumstance in which it would not be prudent and consistent with principles of due process."], "id": "cbc870eb-4a45-4d3a-99d5-1b7bdd358564", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The balance shown by the above statement exceeds, by fifty cents, the balance found by the referee. The appellant excepted to being charged with any of the items added to the balance of $17,092.83 by the referee, but in the brief presented in his behalf the only item challenged is interest, $11,101.65, though the appellant also insists that he is not liable for principal or interest, because the fund was lost by the failure of his co-trustee, Hall. The appellant seeks to avoid liability for any part of the balance found due, upon the ground that he intrusted his co-trustee, Hall, a man in good credit, with the management of the trust estate. It appears that Hall was a banker at the city of Elmira at the time of the assignment, and continued in that business until July 22,1881, when he was found to be insolvent, and made a general assignment for the benefit of creditors. Hall managed the assigned estate substantially to the exclusion of Gillett, and he, Hall, testified that he used the trust funds in his private business. He also testified \u201cI am only an individual banker. As such banker I kept an account with Hall and Gillett, as assignees, credited these moneys collected; was with Gillet\u2019s knowledge.\u201d Hall also testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal *301Bank and in the Second National Bank, but it was shortly drawn out by the joint checks of the assignees and deposited with the defendant Hall. By signing these checks, the appellant, Gillet, voluntarily placed this money in the of his co-assignee. He knew that Hall was a banker, and must have known from the course of business, that it was being used by Hall individually; but if he did not know this, he did know that he was placing the money within the power of his co-assignee to so use it. This was gross negligence. The appellant was not examined in his own behalf before the referee, and made no attempt to show that he acted on good faith, or diligently. Hnder the well settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum. (Duffy v. Duncan, 32 Barb., 587; affirmed, 35 N. Y., 187; Berwick v. Halsey, 4 Redf., 18; 3 Will. Ex. [6th Am. ed], 1827.) The rule measuring the liability of a trustee for the devastavit of a co trustee in a continuing trust, is not quite applicable to this case. In continuing trusts, it may not, under some circumstances, be actionable negligence for a trustee to intrust his co-trustee with the securities of the estate, even though by such action loss accrues. The trust in question was an active one, and these assignees knew that it was their duty to speedily convert the estate into money, care for it with vigilance and promptly distribute it among the creditors; and neither truetee can escape liability by intrusting the sole management of the estate to his co-trustee. No excuse is shown why this money was not'promptly distributed, or for drawing it from banks and intrusting it to Hall. This appellant took a sufficiently active interest in the management of this estate to suppose himself to be entitled to a compensation of $3,000, which he paid himself September 18, 1878, less than six months after the date of the assignment. These assignees were allowed by the referee the same commissions which the most vigilant trustees are allowed by law. ($6,076.28, live per cent on the amount collected.) They might well have been charged with compound interest, but were only charged with simple interest. The defendants might well have been charged with the costs of this litigation, but instead of that they were charged against the fund. These defendants have been most liberally treated by the court below; unless it should be *302held that such trusts are to be administered for the benefit of the assignees, instead of for the benefit of the creditors."], "id": "7bbb94b7-46ac-4f78-81f0-ca9d7c217644", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Since the doctrine of res ipsa loquitur permits the trier of facts to infer negligence from the mere happening of accident where defendant is in exclusive possession and control of the instrumentality which caused the accident, it is within the power of this court to find negligence on the part of the corporate defendant in the exercise of its care and handling of the baggage which led directly to the injuries inflicted upon the plaintiff by the individual defendant\u2019s dog (Yandrasitz v. Teddy\u2019s House of Sea Food, 286 App. Div. 146; Curley v. Ruppert, 272 App. *332Div. 997). The New York case in point is Thomas v. Hudson Riv. Day Line (176 N. Y. S. 2). In Thomas the dog was delivered into the of the carrier, Hudson River Day Lines. While in the carrier\u2019s custody and control the dog escaped, jumped overboard and was lost. The count held the loss of the dog raised a presumption of negligence on the part of the carrier."], "id": "8dd9bb3b-9623-4cf5-9252-c9eb5165e1a4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["It is unclear if the arrangement would be considered voluntary under Maryland law, where in at least one case, a relative's voluntary assumption of responsibility over a minor child resulted in a legal obligation, even though there was no court order awarding custody. (See, e.g., Owens v. Prince George's County Dep't. of Soc. Servs. (2008) 182 Md.App. 31, 957 A.2d 191, 203-204.) In Owens, an aunt took responsibility for her niece when the mother was unwilling and the father was unable to do so, and the administrative law judge concluded that by her actions, she assumed a legal responsibility to her niece such that her subsequent unwillingness to provide shelter was a basis for a child neglect charge. (Ibid . ) We decline to draw a conclusion on this point because the Department focuses its appeal on the nature of Grandmother's relationship to J.H. after the court awarded her ."], "id": "081d9b63-4bc4-4ac1-b0d3-a1e1dcca6c7d", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["After the Warren Family Court granted Heidi's motion to continue the June 14, 2016 hearing on the primary residential parent, a dispute arose regarding the children's summer visitation with Roger. Roger had purchased tickets for a flight on June 20, 2016, for the children to visit him in Kentucky. Heidi, however, did not want to put the children on the plane until July 3 so that one of the children could celebrate his birthday with his friends in Oregon. A number of motions were subsequently filed,5 resulting in an order granting Roger emergency of the children on June 23, 2016. That same day, Heidi moved to alter, amend, or vacate the Warren Family Court's order, pursuant to CR 59.05, given that the emergency prompting the order of sole custody had ended. Roger returned to Kentucky with the children on June 24, 2016. On July 13, 2016, the Warren Family Court restored joint custody of the children, pending other motions and further court orders."], "id": "f04ef3dd-7e5c-4a16-9362-0473d0d592a4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Cardona, P. J., Mikoll, Mercure and Weiss, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as denied petitioner\u2019s request for of the parties\u2019 children and denied her request to relocate with the children to another *849State; petitioner\u2019s request for sole custody of the children granted and matter remitted to the Family Court of Fulton County for further proceedings not inconsistent with this Court\u2019s decision; and, as so modified, affirmed."], "id": "9f1e1fee-d639-4c73-91f3-ad910c3453db", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["To summarize Mr. B.\u2019s relationship with his children: he was never married to Antoinette M.; he has court orders of filiation *275for four of the five children; he had of the four older children from 1996-1997, and thereafter received court orders for visitation; from 1998 to June 2003 he was incarcerated; he has never lived with Shaqueal, does not have an order of paternity for him, and has had very limited contact with him (including three visits while incarcerated at Rikers Island in 1999); he filed new petitions for custody of all five children in 2002, while on \u201cwork release\u201d (Dockets No. V-20135/02, V-20139-42/02) which were dismissed without prejudice when he was reincarcerated later that year; and he opposes termination of his rights and adoption. The agency relies on Domestic Relations Law \u00a7 111 (1) (d) to assert that Mr. B. does not meet the statutory criteria for an unwed father whose consent to adoption is required, and specifically \u201cobjects to and disputes the characterization of Notice Father\u2019s relationship with any of the children as \u2018very significant.\u2019 \u201d Mr. B. argues that, based on the undisputed factual history summarized above, he has a substantial relationship with his children which is entitled to protection, and that application of Domestic Relations Law \u00a7 111 (1) (d) to him would deprive him of his constitutional rights."], "id": "cd1d6b17-e92d-484d-b0a7-ba78c4dd9eef", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Plaintiff, on the other hand, testified to the friction between the parties, the threats, harassment and intimidation she has *644suffered, the father\u2019s unwillingness to share in the care of the children while he lived at home, and his exposure of the children to his romance with her erstwhile friend. Plaintiff sees the joint custody arrangement, in which she acquiesced with reluctance, as failing to meet the needs of the children and she asks the court to award her with liberal visitation to defendant."], "id": "94d072ad-8f1e-4257-a952-784e77525138", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The trial court ruled that JW would attend school with his brothers in Berryville. Over Doby's objection, the trial court ruled that an attorney ad litem would be appointed, and an order was filed appointing Ryan Blue to represent the boys. On September 28, 2017, Shannon amended her complaint for divorce, alleging eighteen months' separation. Doby amended his counterclaim, alleging adultery and general indignities as grounds and asking that the joint-custody order continue or that he be awarded ."], "id": "3cc3502d-7962-48af-a90a-f8089d9c2ce4", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The biological parents also argue that the family court erred because the facts and circumstances exhibit a reasonable expectation of improvement. The Mother argues that since she was released from prison, she completed intensive outpatient treatment, parenting classes and counseling, paid child support, and gained employment, all without a court order, she shows signs of improvement. The Father argues that: (1) the family court never ordered child support; (2) the court awarded him joint custody in October 2015; (3) he maintained his visitation schedule until the court awarded L.B. and B.B. in June 2016; and (4) he has another adult daughter with whom he is significantly involved."], "id": "7d9e4bbe-7c88-46ed-8c02-d590850ec606", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Although we find no fault with Supreme Court\u2019s grant of primary physical custody to defendant, plaintiff argues persuasively that it would have been more appropriate to award the parties joint legal custody. Joint custody may be ordered when both parties are fit and loving parents who desire to share in the upbringing of their children, providing they have demonstrated a willingness and ability to put their differences aside and behave in. a \"mature civilized fashion\u201d for that purpose (Braiman v Braiman, 44 NY2d 584, 590; see, Matter of Clark v Dunn, 195 AD2d 811, 813). Here, while each party sought , they both also indicated that joint custody would be an acceptable \"second choice\u201d; thus, they are apparently willing to work together for the benefit of their children. And while the record indicates that the parties argued and bickered incessantly during their marriage, there is no evidence they they are \"so embattled and embittered\u201d that they will be unable to cooperate to the extent necessary to provide their children with proper care (Matter of Monahan v Monahan, 178 AD2d 829, 830; see, Matter of Venable v Venable, 122 AD2d 374)."], "id": "a6015233-566c-4734-bcda-8ad243e1e86b", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Awarding of C.W. to his father in these circumstances was an abuse of discretion. After reunification has failed, a permanent plan has been selected and the focus of proceedings has shifted from reunifying parent with child in favor of providing the child with a permanent and stable home, it thwarts the entire point of our dependency scheme for a juvenile court to surrender a child back to such a parent, by relinquishing its jurisdiction and awarding that parent full and exclusive legal custody of the child. \"It is a clear abuse of discretion to make findings that a minor is at risk in [a parent's] home, yet return the minor home and terminate supervision and dependency.\" ( In re I.G. (2014) 226 Cal.App.4th 380, 387, 171 Cal.Rptr.3d 867.) Doing so abrogates the court's statutory duty to protect every minor within its jurisdiction, wherever placed. (See id. at pp. 387-388, 171 Cal.Rptr.3d 867 [reversing order granting mother custody and terminating jurisdiction]; \u00a7\u00a7 300, 300.2; cf. Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, 51 Cal.Rptr.3d 816 [abuse of discretion to permit adjudicated child sex abuser to return to family home subject to monitored visitation after finding substantial danger still exists]; see also, e.g., In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1333, 253 Cal.Rptr. 161 [juvenile court properly declined at section 366.3 review hearing to return child to parents who presented no evidence demonstrating any change in their \"inability to recognize and admit the problems that required [their daughter's] removal from their home\"].) Here, by sustaining the jurisdictional allegations, the juvenile court found early on in the proceedings that C.W. was at substantial risk in his father's care. Thereafter, no evidence was presented Rusty no longer posed a danger and there were warning signs of significant problems related to Rusty's unfitness as a parent. By awarding permanent custody to Rusty in these circumstances (if that was the intent), the juvenile court just ignored the risks it previously found existed."], "id": "4a46f262-7b9d-4a0f-8ad8-d50c9c1b16c7", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Felice K. Shea, J. In this action for divorce, the court must determine whether or not to order joint custody of the parties\u2019 infant daughters, ages five and seven. The plaintiff mother seeks of *643the children, with liberal visitation to the defendant father. Defendant urges that custody be awarded jointly and that the children divide their time equally between the two homes. In the alternative, the father requests that he be the custodial parent."], "id": "53c12453-00a5-4eeb-bc9d-2e64d5235106", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["On November 9, 1954, two agreements, one of separation and another embodying a consent to any future adoption, were signed by the respondent. The separation agreement grants and control to the wife, in consideration of her waiving support for herself and the child. By its terms, the husband \u201c shall not have any right of access to nor any right to communicate with or visit with the child at any place at any time hereafter \u2019 \u2019. The separation agreement was mentioned and approved by the court in a decree of divorce granted in the State of Georgia on January 27, 1955."], "id": "58b9fe5c-ed21-47ee-b6b0-caaee586cc9c", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["The husband further pleads that he does not have an appropriate forum in which to adjudicate the matter of visitation. However, while the Nevada decree provides his wife with , it affords him reasonable visitation on making support payments and specifically reserves jurisdiction to make future orders for the support and maintenance of the minor children. It would thus appear that there is a forum in which the husband may seek continued visitation rights. Moreover, Nevada is the proper forum for this purpose since the children reside in and go to school in Nevada and if the concept of the State as parens patriae is to be applied, the only State which can presently claim such a role is Nevada. The husband\u2019s assertion that if he were to seek visitation rights in Nevada the wife would remove there*859from to thwart his efforts represents unsubstantiated fears; his claim that he would be put to undue expense if required to bring Rhode Island lawyers and others to Nevada is questionable as such testimony could be submitted to the Nevada courts in the form of depositions. In any case, the critical issue of the wife\u2019s bona fide residence in Nevada at the time the divorce was granted would appear to involve testimony from persons who live in Nevada since they would be best able to testify as to the wife\u2019s then actual residence."], "id": "7d2f94d5-f385-4aba-bf09-ec975fd191f1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["A second consideration warranting denial of prehearing depositions in this case also involves the best interests of this infant child. Without in any fashion prejudging the outcome of this custody battle, it is conceivable that an award of joint custody or an award of with visitation to the noncustodial parent will result. In either event, this young child will be exposed to the less than charitable feelings, which these parties have toward one *439another as reflected in the affidavits submitted on the underlying application for a change in custody. To the extent that prehearing depositions of the plaintiff and her current husband will add to the unfortunate bitterness and tension between these parties, all to the detriment of this young girl, such should be discouraged and avoided absent a compelling reason."], "id": "0659f567-025f-4429-939a-3446e63edfae", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["Furthermore, for the most part, courts are reluctant to grant pretrial discovery in child custody matters (46 NY Jur 2d, Domestic Relations, \u00a7 298). It is, however, a generally accepted principle that a party to a contested custody proceeding places their physical and mental condition in issue by seeking custody (Rosenblitt v Rosenblitt, 107 AD2d 292 [1985]; Proschold v Proschold, 114 Misc 2d 568 [1982]). Where both parties seek of the infant issue of their marriage, a parent\u2019s health is a relevant yet certainly not the only consideration (Matter of Darlene T., 28 NY2d 391 [1971])."], "id": "ec972285-9147-47a7-9d18-83fd7236d0d1", "sub_label": "US_Terminology"} {"obj_label": "sole custody", "legal_topic": "Family Law", "masked_sentences": ["In Bezio v Patenaude (410 NE2d, at p 1215) where a lesbian mother was opposed by the children\u2019s guardian in a custody case, the Trial Judge reached the conclusion that \" 'a Lesbian household, creates an element of instability that would adversely [a]ffect the welfare of the children.\u2019 \u201d The Supreme Judicial Court of Massachusetts, the State\u2019s highest court, reversed, stating that the Judge\u2019s finding was insufficient to support the Judge\u2019s conclusion that custody should remain in the guardian. The record did not support an inference that the mother\u2019s lesbianism would render her unfit to further her children\u2019s welfare. Another Massachusetts case (Doe v Doe, 16 Mass App 499, 452 NE2d 293 [1983]) reached the conclusion that a mother\u2019s homosexual relationship did not preclude granting of joint custody of her child to her. There, the court found no evidence to show that the mother\u2019s homosexual lifestyle would adversely affect the nine-year-old male child. In Medeiros v Medeiros (8 Fam L Rptr 2372 [1982]), a Vermont court, in determining whether the homosexual mother or heterosexual father would better serve the interests of the children, was unable to find that either of the parties has not (been) or would not be a proper custodial parent. Since the two boys, ages 8 and 11, were primarily taken care of by the *329mother, who provided them with emotional support throughout the marriage and during the period of separation, and since the boys were thriving in their mother\u2019s care at the time of the court\u2019s decision, the court awarded of the children to the defendant mother. The court found that the mother\u2019s homosexuality presented no substantial risk of harm to the children. Two years later, the father, who had married since the divorce, attempted a custodial change asserting that he was able to provide a better home than the mother. The mother moved to dismiss the father\u2019s motion for a change of custody. The motion was dismissed after a short, 13-minute hearing. (See, Judge\u2019s Log, Medeiros v Medeiros, Vt Super Ct, Bennington County, Nov. 26, 1984.) Similar results can be found in other neighboring States. See, DeBoise v Robinson (No. C-9104 Del Fam Ct, New Castle County, Nov. 17, 1980), cited in Rivera (op. cit, at 355) where a lesbian mother was awarded custody and the court imposed no restrictions on her living arrangement with another woman, and M.P. v S.P. (169 NJ Super 425, 404 A2d 1256, supra) where a mother\u2019s homosexuality and accompanying embarrassment to children were held not proper grounds for removal of custody. On the West Coast, the State courts of Washington and California have provided guidance in this area of the law. In Matter of Marriage of Cabalquinto (100 Wn 2d 325, 669 P2d 886 [1983]) the parties were married, had a son, and later divorced in Colorado. The divorce decree granted custody to the heterosexual mother with liberal visitation rights to the homosexual father. The mother remarried and moved to Washington and the father moved to California where he lived with a homosexual lover. The father decided he wanted his young son to visit in California and the mother refused. The father moved in a Washington State court to have his Colorado visitation rights enforced. The Trial Judge, in an oral opinion, refused to grant visitation in California stating a strong antipathy to homosexual living arrangements. \" '[A] child should be led in the way of heterosexual preference, not be tolerant of this thing [homosexuality] * * * it can[not] do the boy any good to live in such an environment. It might do some harm.\u2019 \u201d (Matter of Marriage of Cabalquinto, supra, p 328, p 888.) In remanding the case to the lower court for further consideration, the high court of Washington was emphatic: \"We now make specific the rule of law which was subsumed in the decision in Schuster v. Schuster, supra: homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. This *330rule is consistent with the decisions of other state courts\u201d (p 328, p 888). The court said that there was no evidence that a visitation of substantial periods in the summer months would endanger the physical, mental, or emotional health of the child. Visitation of such a duration was seen as reasonable and something which must be determined with reference to the needs of the child rather than the sexual preference of the parent. The California case of Batey v Batey, reported about in the New York Times, July 1, 1986, is a complex homosexual father-child custody case which involved proceedings in Colorado and California. Frank Batey, a homosexual, and Betty Lou Batey, a fundamentalist Christian, parents of a son, Brian, were divorced in California in 1980 and Betty Lou was given custody of Brian, then age nine. Frank was granted liberal visitation. In 1982 custody was changed to Frank, primarily because Betty Lou denied Frank visitation. Eleven days after the custody change, Betty Lou vanished with Brian for 19 months until she was found in Colorado in 1984. When she refused to produce the child, she was jailed for contempt. Colorado returned Brian to California and, in a complex case which involved kidnapping, contempt, and custody, San Diego County Superior Court Judge Judith McConnell determined that neither parent should have custody but only visitation. Judge McConnell decided that Brian would be in \"grave danger\u201d with the mother, who had caused him to form strong views opposing his father\u2019s homosexuality and who had failed to provide him with any education during the 19-month abduction. The Judge also decided that since the boy\u2019s views about his father were so deeply entrenched, a temporary foster home was in his best interest. Finally, at a closed hearing on June 18, 1986, Judge McConnell awarded Frank Batey custody of Brian, now age 15. Judge McConnell said that the father was better able to meet the needs of the boy."], "id": "0b5c5fc5-16dc-4d12-aa3a-45dafbffd3ca", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["At times, it appears the trial court accepted this description. For instance, its August 31, 2015, ruling stated: \"The sole issue before the Court is the characterization of Huddleston Crane Services, Inc. and its wholly owned subsidiary, HCS Mechanical, Inc. as community property or as David's .\" In contrast, the court's March 2016 judgment uses less specific language to describe the relationship of the two corporations. It refers to David's 50 percent ownership interest \"in Huddleston Crane Services, Incorporated, and its related entities, specifically including, HCS Mechanical, Incorporated.\" These documents and the other evidence in the record establish that H.C.S. Mechanical, Inc. is not a subsidiary (wholly owned or otherwise) of Huddleston Crane Services, Inc. Instead, both corporate entities are owned by David and Noerr, each owning 50 percent of each corporation's outstanding shares. There is no evidence in the record indicating the source of H.C.S. Mechanical's capital."], "id": "199f8540-883e-46d9-96f9-aec720611677", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["We distinguish the facts of the instant case, as well as those of Brandes and Somps , from In re Marriage of Zaentz (1990) 218 Cal.App.3d 154, 267 Cal.Rptr. 31 ( Zaentz ), a case Wife believes stands for the proposition that the efforts of other people should not factor into the trial court's apportionment decision. In Zaentz , the husband, through a production company founded prior to marriage, entered into an agreement during marriage to produce the movie \"Amadeus,\" which became a critical and financial success. ( Id . at pp. 158-159, 267 Cal.Rptr. 31.) Since the profits contractually inured to the husband's business, he argued wife had no right to any part of the money. ( Id . at p. 159, 267 Cal.Rptr. 31.) The trial court disagreed; \"In awarding wife an equal share of the community interest ($ 300,000), the court underscored the evidence of husband's unique value to SZC in producing 'Amadeus' and the scope of the community's and husband's investment in 'Amadeus'....\" ( Id . at p. 162, 267 Cal.Rptr. 31.)"], "id": "86dad6c5-e3ef-4a97-b046-887a0fffa488", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["This conclusion and analysis would comport with the conclusion reached by the Fourth Department in a similar situation. In Forcucci v Forcucci (83 AD2d 169) property acquired prior to the decree of separation was in issue. The court ruled that (p 172): \"[W]hat assets constitute marital or and what distribution of them is appropriate are matters of fact to be resolved in the first instance by the trial court in the sound exercise of its discretion after considering *335all the relevant facts and circumstances. The prior judgment, and the parties\u2019 conduct pursuant to it, are to be considered along with any other significant factors.\u201d"], "id": "534cf5f8-1f26-4b8f-9e6a-98e70b66860b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["If nothing more had taken place than is above stated it is plain that C would be sold first and B second. But after the last named conveyance Eliza and Cornelia gave their bond charging their to Van Loan, and secured it by a mortgage executed by both of them upon piece 0. The bond and mortgage are now held by-,."], "id": "bbe13d3f-6d9b-4ee5-95f6-b436cc157adf", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Based on all of the circumstances, plaintiff is granted exclusive use and occupancy of the marital home until the earliest occurrence of either the youngest child attaining the age of 18 or becoming sooner emancipated, or the plaintiff\u2019s remarriage, at which time the house is to be listed for sale at market value. Upon the sale plaintiff shall be paid a credit of $19,500. The remaining proceeds shall be divided equally between the parties subject to any portion of the distributive award and other sums awarded to plaintiff herein that remain outstanding at the time of the sale, which shall be paid to plaintiff from defendant\u2019s share of the sale proceeds."], "id": "8497ac02-f2aa-495b-bba5-f2d55556b1fe", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Following the trial, the court issued a 31-page statement of decision, detailing the many rulings which comprised its judgment. With respect to the issue of the disability insurance policy, the court pointed out the parties had originally purchased the policy because it was required by a lender. It found their intention in doing so was to replace Bryan's earnings, rather than to provide for their retirement, and that intention never changed. The court also noted \"the parties had invested in other assets (income producing realty) anticipating future retirement, had life insurance, and had IRA accounts.\" Based upon those findings, the court concluded the post-separation proceeds of the disability policy were Bryan's ."], "id": "a4c56321-c4d6-4369-a5cc-fd6fde5804b9", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["In making her claim for equitable distribution of his' pension, plaintiff contends that because the moneys in the pension were accrued while the couple was married, the pension should be considered marital property. Defendant argues that because the pension has matured and he has been receiving the money, it is to be treated as his income and thus, ."], "id": "dd6c2996-d78d-4f7c-875c-fcf595c068de", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The house was purchased in 2007 for $147,000 and paid for in full with money Wife inherited from her father. Later, the couple took out two home equity loans secured by the house. One loan was used to pay community debts, make improvements to the residence, and to invest in the couple's business. The other was used to pay the taxes on the house. The house was sold shortly after Husband and Wife separated for $177,000. After paying off the mortgages, the sale netted $34,800.57. Those proceeds were held in trust pending trial. It is clear from the record that there was considerable confusion as to characterization of the home. Wife claimed that the house was . She alternatively sought reimbursement for the separate property funds that she used to purchase *256the house. Husband argued that the house \"became\" community property when the home equity loans were acquired. The trial court quickly dispensed with this erroneous position. Community indebtedness secured by separate property do not convert separate property to community property. Husband made no argument that the Wife had \"gifted\" a portion of the home to him when the deed was purportedly taken in joint names,8 and again the trial court correctly advised counsel that had a gift occurred, the home would not be community property; a one-half interest would belong to the separate estate of each spouse. Simply stated, the home could never have been community property. The community estate may have had a claim for reimbursement, but Husband did not opt for that remedy. And he admitted at trial that the home was fully purchased with Wife's inheritance. We overrule Issue Five."], "id": "2adeec24-5d4d-491d-bc25-5b134129c822", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["To buy the sixty-nine shares of stock after the deceased married in 1877, the purchase price of which was $3,450, the deceased added to the dividends accruing from the stock the sum of $510 up to the time the last stock was purchased, and during the same period drew out from the dividends the sum of $242. If we assume that the $510 paid in be community property, it still leaves eighty-nine and four-fifths shares of stock as , and it is admitted that thirty shares of stock were pledged to make part of the purchase price."], "id": "7633bbdc-bed0-4533-8fad-ceca0c5595ef", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The law in our state commenced with the cautious and protecting rule, that a married woman was only to be treated as a single woman in this respect, as far as the instrument which gave her endued her with the powder of an owmer. Then' follows the maxim sanctioned by the court of errors, that she was to be considered as absolute owmer, except so far as expressly limited and restricted in the exercise of the ordinary rights of owmership."], "id": "cfaeec62-e927-4b7e-9945-050054139680", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Upon the trial the plaintiffs relied for a recovery upon the assumption that the defendant created a charge upon her , as security for the payment of the price of the goods sold. The referee has decided, as matter of fact, that no such charge was created, and his decision should not be reversed, unless the facts show that the conclusion which he has drawn from the evidence is clearly erroneous. It is not sufficient lor us to be satisfied that the defendant promised to pay for the goods, and that she made representations in regard to her separate property, and the rents which she expected to receive therefrom. All this may have influenced the plaintiffs in making the sale, yet it does not follow that a charge upon her separate estate has been thereby created. We are referred to the case of Conlin v. Cantrell (64 N. Y., 217), with apparent confidence, on the part of the appellants. Some of the features of that case are similar to those of the one we are considering; but others, which were mainly relied upon in deciding the case referred to, are found directly the reverse in this: In that case the wife lived separate and apart from her husband, and supported herself and children, and the work was done for her and the children, under a promise to pay therefor when rents were received from a separate estate ; but in this case, as has been before remarked, the defendant lived with and was supported by her husband. Although a charge may be created by a married woman upon her separate estate without a writing (Maxon v. Scott, 55 N. Y., 247), yet the evidence should be very clear and explicit, showing an intention to create the same by parol, before it should be declared by the court. A married woman might talk very freely about her separate estate, and of her intention to see that a debt should be paid, yet not have the remotest idea that she was creating an incumbrance upon her separate property. In this case the referee, from all the facts and circumstances, has determined that no such charge was created, *543and we think his conclusion is justified by the evidence, and should be sustained. (Eisenlord v. Snyder, 71 N. Y., 45; Weir v. Groat, 4 Hun, 193; Baker v. Lamb, 11 id., 520.)"], "id": "ca112295-9c6b-419f-8dad-920d08a61f82", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["In light of the suggestions raised by the legislative language and history, and the strong policy -- advanced by both the UFTA and section 911 of the Family Code -- of protecting the rights of creditors from fraudulent transfers, we conclude that the Legislature must have intended that UFTA can apply to premarital agreements in which the prospective spouses agree that each spouse's earnings, income, and property acquired during marriage will be that spouse's . The policy considerations in favor of applicability of the UFTA are especially strong in this case, where the agreement provides that all earnings and income, and property acquired with those earnings and income, dating back to the date of marriage will become community property when certain premarital debts no longer are enforceable, and where the agreement allows the debtor-spouse joint access to the non-debtor-spouse's earnings and income that are deposited in a joint account."], "id": "4f71f8b6-5ecc-4e19-9e2b-99538c40d55d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["While it may be that a title or label is not \"controlling\" where specific provisions of the writing dictate a definite interpretation, it is not true that the characterization of a transfer in a deed's title is irrelevant to the express declaration inquiry. Thus, in In re Marriage of Kushesh & Kushesh-Kaviani 27 Cal.App.5th 449, 238 Cal.Rptr.3d 174, the court reasoned that an \" 'INTERSPOUSAL TRANSFER GRANT DEED' \" presented a better case for finding an express declaration than the grant deed in Bibb , because \"not only did the writing use the verb 'grant'-the main point of Bibb-but the heading added the words 'interspousal'-denoting a spouse-to-spouse transaction-and 'transfer grant'-denoting that whoever was doing the granting was actually transferring something out of that person's estate.\" ( Marriage of Kushesh, at pp. 454-455, 238 Cal.Rptr.3d 174, italics added.) Absent an unambiguous statement that the transfer would change the character or ownership of Avonoak, the document's title makes it reasonable to entertain the possibility that Richard executed the deed for the purpose of making only a \"Trust Transfer.\" (See Barneson, supra, 69 Cal.App.4th at p. 591, 81 Cal.Rptr.2d 726 ; Starkman, supra, 129 Cal.App.4th at pp. 662, 665, 28 Cal.Rptr.3d 639 ; cf. Lund, supra, 174 Cal.App.4th at pp. 51-52, 94 Cal.Rptr.3d 84 [provision stating \" '[a]ll of the property, real and personal, held in the name of Husband having its origin in his ... is hereby converted to community property of Husband and Wife' \" was sufficient to meet express declaration requirement, notwithstanding \"recitals ... indicating the agreement was executed for 'estate planning purposes' \"].)"], "id": "787dd073-0427-455e-887f-328cb7571ac7", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["A party may not split a cause of action in order to circumvent the $3,000 jurisdictional limit applicable to a small claims action (see Hartley v Paul Props., 88 Misc 2d 205 [Binghamton City Ct 1976, Vitanza, J.]; cf. Board of Mgrs. of Mews at N. Hills Condominium v Farajzadeh, 185 Misc 2d 353 [Nassau Dist Ct 2000, Gartner, J.]). True, each plaintiff in this case is a separate person contributing to a joint *259venture, but each nonetheless sues as part of that joint venture, a concept in law akin to that of a partnership, and one that is thus to be regarded as having the same liabilities and rights as a partnership (see Forman v Lumm, supra). As with a member of a partnership, a joint venturer has no personal cause of action against a third party for recovery of a debt owed the joint venture, and he or she must bring the action against the debtor for the benefit of the joint venture (see Credit Francais Intl., S.A. v Sociedad Financiera de Comercio, C.A., 128 Misc 2d 564, 582 [Sup Ct, NY County 1985, Greenfield, J.]; cf. Kirschbaum v Merchants Bank, 272 App Div 336 [1st Dept 1947]; and see Partnership Law \u00a7 115). The fact that joint venturers have agreed to share in a particular manner money recovered in an action brought for the benefit of the joint venture does not work to confer subject matter jurisdiction it does not otherwise have on the court hearing the claim (cf. Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]; see also Cuomo v Long Is. Light. Co., 71 NY2d 349 [1988])."], "id": "8cda0b8b-3c84-4f84-a8bf-e0c6c2c0dc97", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["III. The Trial Court Did Not Abuse Its Discretion by Denying Appellant\u2019s Motion in Limine Patrick also contends the trial court erred by denying his motion in limine and allowing Barbara\u2019s heirs to change theories after the close of fact discovery. We disagree. Barbara\u2019s heirs originally asserted the PMA had been revoked, in part because the original could not be located. However, in January 2020, the attorney who prepared the PMA provided a copy of the original, along with a declaration certifying the document. In a deposition that same month, a rebuttal expert for Barbara\u2019s heirs opined, in response to questions asked by opposing counsel, that an asset taken solely in the name of one party would not fall under the joint title provision of the PMA. Approximately 10 months later, on the eve of trial, Patrick asserted, in a motion in limine, that the rebuttal expert had presented a new theory after the close of fact discovery. Based on that contention, he asked the court to exclude \u201cany evidence or argument to the effect that (i) although the express purpose of the [PMA] was to comprehensively \u2018defin[e] their respective property rights following their contemplated marriage\u2019 (Trial Ex. 1, p. 1), somehow it failed to address a circumstance where one spouse took title to an asset solely in his or her name, as happened with respect to the [F&S] stock (where Terence Fitzgerald took title alone); and (ii) as a consequence, statutory presumptions as to whether assets are community or were left undisturbed.\u201d He also asked the court to exclude the expert as not timely disclosed and not the subject of proper rebuttal. The trial court excluded the expert but concluded the theory was \u201ca matter of contract interpretation and argument\u201d and that \u201c[t]he failure to"], "id": "1967f3d9-e733-4325-9271-2480b33fa0a5", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["*694Family Code section 852, subdivision (a)1 ( section 852(a) ) provides that a \"transmutation,\" or an interspousal transaction changing the character of community or , \"is not valid unless made in writing by an *509express declaration \" by the adversely affected spouse. (Italics added.) In Estate of MacDonald (1990) 51 Cal.3d 262, 272 Cal.Rptr. 153, 794 P.2d 911 ( MacDonald ), our Supreme Court held that a writing satisfies the \"express declaration\" requirement only if it states on its face that \"the characterization or ownership of the property is being changed.\" ( Id. at p. 272, 272 Cal.Rptr. 153, 794 P.2d 911.) The MacDonald court also made clear that its construction of section 852(a) precludes the use of extrinsic evidence to prove an ambiguous writing effected a transmutation. ( Id. at p. 264, 272 Cal.Rptr. 153, 794 P.2d 911 ; In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100, 32 Cal.Rptr.3d 471, 116 P.3d 1152 ( Benson ).)"], "id": "8356a2a6-d5ee-4c02-8936-94ff94b3cb5b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The husband, in consequence of t'he statute, has no control over the of his wife; and cannot prevent her from asserting, in any form known to the law, her legal rights and claims in respect thereto. Not having the power to prevent or control siich acts, I am unable to discover any logical reason why he should be punished for their consequences. The complaint was properly dismissed as to the husband, and the motion for a new trial must therefore be denied."], "id": "0667896a-8ea4-4ceb-ba39-79d3cfb69c45", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["#The important question presented in this cause is, as to the construction and effect of the marriage-settlement. On this point, after much labor and reflection, I am compelled, notwithstanding my unfeigned and habitual deference for his great learning and distinguished talents, to dissent from the opinion of his honor the chancellor. He admits the rule, \u201c that a married woman is considered in equity, with respect to her , as a feme sole; and is held to have an absolute dominion or power of disposition over it, unless her power of disposition be restrained by the deed or will under which she became entitled to it.\u201d And as to the rule of construction, he also admits, that \u201c the weight of book-authority, and especially of the writers who have treated on this branch of the law, is against his conclusion and that \u201c they seem to hold, that there must be an express restriction upon alienation, either absolutely, or in some other mode than the one mentioned, or the wife will not be bound.\u201d The chancellor says, \u201c Such strong aversion to the wife\u2019s independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and color to the doctrine of the court.\u201d With great respect, I ask, in reply, May it not rather be said, that the \u201c tone and color\u201d of the modern decisions are accommodated to the excessive refinements of society, and the artificial innovations, in regard to the rights and duties of good old English matrimony ? In the language of Sir Wm. Blackstone, \u201c By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the mar*455riage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover she performs every thing.\u201d I confess, that I love and venerate the primeval notion of that mystical and hallowed union of husband and wife: when \u201cthey twain became one flesh;\u201d when they \u201c forsook father and mother, and clave to each other\u201d with unreserved confidence. Marriage, in that old fashioned sense, is the purest source of domestic joys, and the firm foundation of social order."], "id": "0d49b7c0-bb8d-4319-82cb-a03084e8801b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Section 16 of the Civil Eights Law, so far as pertinent, provides as follows: \u2018 \u2018 Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either wife or child shall be his or her sole and \u201d."], "id": "7024635d-6ee1-4e8f-a36b-d0585d864f5a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The fact that Dalia took no action for so many years with regard to the SPA demonstrates that she too regarded the arbitrator\u2019s decision to be a binding determination that she had no claim to the instrument. It was only after Arie sued Sagi on the SPA and the Appellate Division rendered its decision, with its confusing sentence referencing the coin toss, that Dalia was suddenly motivated \u2014 after close to a decade of inactivity \u2014 to demand and then proceed with the coin toss. The effort, however, was to no avail. Whatever happened when Sagi\u2019s attorney flipped a coin into the air on January 5, 2015 was of no force and effect. This is because the SPA was not, and is not, properly the subject of such a procedure. Although it is a nonliquid asset, the record establishes that it is not a marital asset; instead, the SPA is Arie\u2019s and thus not susceptible to division between the parties by coin toss or other means."], "id": "4c6a89f5-cb24-4e21-a85f-182467a73b34", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["We find Estate of Dye (2001) 92 Cal.App.4th 966, 112 Cal.Rptr.2d 362 instructive. There, the decedent's will provided the estate be given to his wife as her \" 'sole and .' \" ( Id. at p. 979, 112 Cal.Rptr.2d 362.) But the decedent's wife predeceased him. ( Id. at p. 970, 112 Cal.Rptr.2d 362.) Decedent's son subsequently claimed the phrase \" 'sole and separate property' \" was ambiguous and argued two \"adopted-away\" sons should not inherit. ( Id. at pp. 979, 970, 112 Cal.Rptr.2d 362.) The son attempted to introduce evidence demonstrating his father believed his relationship to the adopted-away children had been severed and indicated the remaining son would inherit the estate. ( Id. at p. 977, 112 Cal.Rptr.2d 362.) The court found such evidence did not create an ambiguity \"because they fail to raise a semantically plausible alternative candidate of meaning.\" ( Ibid . ) The court further explained: \"When courts speak of using extrinsic evidence to rebut a presumption, this means evidence that a decedent's expression in a will actually has a different meaning than first appears, or a \"latent\" ambiguity. [ Estate of] Dodge [ (1971) 6 Cal.3d 311, 98 Cal.Rptr. 801, 491 P.2d 385 ] is a good example. Lawyers use 'personalty' or 'personal property' in contrast to 'realty' and 'real property.' However, some people use 'personal property' to mean tangible personal effects, such as clothing, jewelry and so forth. Thus, when a will gives the 'personal property' to somebody, somebody else could come in with evidence outside the corners of the will to show what the decedent thought the word meant. [Citation.] ... [\u00b6] But an ambiguity, whether patent or latent, must reside in the will.\" ( Id. at pp. 977-978, 112 Cal.Rptr.2d 362.) The court concluded the son's position \"is not a reasonable construction of the language, but an effort to insert new language and ideas into the will. 'The instrument is silent upon the possibility of the wife predeceasing the testator. If he had contemplated a substitutional gift over he should have made such intention clearly appear.' [Citations.] 'Therefore, if having ascertained in the instant case that the provisions of the will are not reasonably susceptible of two or more meanings, we conclude that the only meaning to which the words expressed by testatrix are reasonably susceptible results in intestacy, we must give effect to her will accordingly.' \" ( Id. at p. 979, 112 Cal.Rptr.2d 362 ; accord Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, 1207-1208, 117 Cal.Rptr.3d 119 [court cannot rewrite trust to attach restrictions to a term the settlors did not expressly include, especially when the term was not ambiguous]; Estate of Canfield (1967) 256 Cal.App.2d 647, 654, 64 Cal.Rptr. 195 [\"The fact that fate, as it often does, thereafter proved *687decedent to have been mistaken in making this supposed assumption [ (that father would predecease his young children) ] does not authorize a trial or appellate court to rewrite a will under the guise of construing it to determine what the testator might have intended if he had survived to a later date and had written it in the light of subsequent developments.\"].)"], "id": "ecbfd825-4721-4c86-9f8c-b24b08492f5d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The Lucas court remanded the matter to the trial court for further proceedings and stated that if the trial court were to find that the residence was entirely community property on remand, the wife would be barred from seeking any reimbursement for her contributions to the property, absent an agreement providing for such reimbursement. ( Lucas , supra , 27 Cal.3d at p. 816, 166 Cal.Rptr. 853, 614 P.2d 285.) The Lucas court explained that a spouse who uses separate property for community purposes during marriage is presumed to have intended a gift to the community. ( Ibid. )"], "id": "ff25fb81-9cd7-460e-9f36-c659f5640815", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Decedent\u2019s will is short and simple in form: First, he gives to his wife $20,000, together with all the household furniture and other personal property in their dwelling, excepting certain family portraits and pictures to be selected by his daughter. Second, he gives to his daughter all of the rest, residue and remainder of his estate, both real and personal, and wherever situated. Fourth, he solemnly declares that all his estate therein devised is his and was the community property of his first wife and himself."], "id": "ccdcfdf9-3e26-48e7-84f5-34b4b96b5db5", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The parties owned a residence in Mine\u00f3la, New York, that, pursuant to the agreement, was sold and the proceeds were equally divided. The parties agreed that wife would maintain ownership of the parties\u2019 then new Nissan Versa, which was fully paid for utilizing funds from the parties\u2019 home equity line of credit; husband kept the lease on the 2008 Nissan Sentra. The parties agreed to sell their principal asset, the marital home, upon the high school graduation of their youngest child and equally divide the proceeds. This equal division is to take place notwithstanding husband\u2019s potential claim for a credit stemming from his premarital ownership of the parties\u2019 prior residence, which was sold and the proceeds of which were used to purchase the current marital residence."], "id": "b079ff37-f1e1-4984-939b-6dc7f32ebc84", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The parties did not ask the trial court to characterize the stock Husband received for DigiDesign; he earned that stock prior to marriage; clearly it was his .4 (See In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850, 21 Cal.Rptr.2d 642 ( Dekker ).) \"When a spouse's personal efforts increase the value of his or her separate property business, 'it becomes necessary to quantify the contributions of the separate capital and community effort to the increase,' because the 'community is entitled to the increase in profits attributable to the community endeavor.' [Citations.]\" ( Brandes , supra , 239 Cal.App.4th at p. 1472, 192 Cal.Rptr.3d 1.) Thus, the parties asked the trial court to apportion the post-marriage increase in the value of Husband's DigiDesign stock between his separate estate and the community. The key issue at the bifurcated trial was which method of apportionment to use-the Van Camp method, advocated by Husband, or the Pereira method, advanced by Wife."], "id": "eccf001c-b442-4a1c-b75f-35032c5a7f9e", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The court did not improvidently exercise its discretion in directing that the marital assets, including the marital residence, be distributed evenly between the plaintiff and the defendant, in consideration, inter alia, of the income and property of each party at the time of the marriage and at the commencement of this action, the duration of the marriage and the age and health of both parties, the plaintiff\u2019s waiver of maintenance, and the plaintiff\u2019s contribution to the marital property both directly as a wage earner for a period of time and indirectly as a spouse, homemaker, and mother of three children (see, O\u2019Brien v O\u2019Brien, 66 NY2d 576; Majauskas v Majauskas, 61 NY2d 481). It was also not an improvident exercise of discretion to refuse to grant the defendant a credit for his alleged contributions on the ground that the defendant\u2019s claims were not established by clear and convincing evidence (see, Waldman v Waldman, 196 AD2d 650; Cusimano v Cusimano, 149 AD2d 397; Lischynsky v Lischynsky, 120 AD2d 824; Bizzarro v Bizzarro, 106 AD2d 690)."], "id": "97d39a97-e4b7-480f-83ba-477a86c4d549", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["\"The Court: Okay, let me ask you some questions, and I'm going to tell you in a moment why I think it might be significant. In your mind, did you see bonus different than stock options? Ms. Cleary says she sees them as different concepts. \"[Tonya]: Yes, definitely. \"The Court: Why 'definitely'? Why is that different? *224\"[Tonya]: Because a bonus is something you get every year, you have to cash them out. Stock option is something you got every year. \"The Court: But at the time you entered into this agreement, 35 percent of any bonuses, you were thinking the year-end cash bonus? \"[Tonya]: Yes. \"The Court: And you were not thinking of stock options, exercising stock options? \"[Tonya]: I asked about the stock options. I don't-I was-only thought that I could get the ones that were awarded during the marriage, that was my understanding. \"The Court: All right. I want to be clear on this then. 35 percent of gross bonuses that you agreed to, in your mind, you felt that was 35 percent of the year-end cash bonus as opposed to 35 percent of the stock options; is that correct? \"[Tonya]: Well, I knew there was a difference, but as I tried-we had used cash from stock options to live the last seven years. \"The Court: Well, that wasn't my question. I'm trying to go into your state of *920mind at the time you signed this agreement, when you agreed to 7500 per month, plus 35 percent of gross bonuses, did you think the gross bonuses were limited to the year-end cash payment? \"[Tonya]: Yes. \"The Court: Okay. All right. \"[Tonya]: I was not aware I could get the other.\" Judge Pollack issued a written decision on the RFO in February 2012. He found that Tonya was aware Donald had accepted a new position and a relocation package at the time of the agreement, such that any related payments Donald received would have been included in the MSA as arrears. Similarly, he concluded that any amounts due to Tonya related to stock options Donald received between separation and August 15, 2009, would have been included in the MSA as arrearages, as the MSA divided the options received before the date of separation. Based on her testimony at trial, the court found that Tonya understood the term \"bonus\" in the MSA to refer specifically to the year-end cash bonus Donald typically received, and not the *225stock options. Thus, by terms of the parties' own agreement, stock options received after entry of the MSA were Donald's and were not bonus income."], "id": "7a6c7ee0-40d2-4a32-b126-24cc72be13b3", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["\u201cProperty acquired before marriage is not a product of the marital partnership and does not constitute marital property. However, wedding gifts are held to be marital or joint property, despite the source, unless the gift was something that could be used only by one spouse or was specifically earmarked as exclusively intended for one spouse [citations omitted]. Thus, it may be that at least certain types of property, acquired before the marriage but in contemplation thereof, may be \u2018marital\u2019 and not ."], "id": "e3f8f5c5-b32f-4bbf-9551-a1254210e12c", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["A trial was held over two days in July and August 2015. In October 2015, the circuit court entered its letter opinion deciding the case. After the court ruled that the pleadings would be amended to conform to the proof, the court granted Evelyn a divorce and distributed certain real property to Jim and Evelyn as his and her . The court ordered all marital property, real and personal, with the exception of a marital mineral interest, sold and the proceeds divided equally. The court found that any earnings and retirement benefits Evelyn had earned from her employment with the United States Postal Service (USPS) were marital property and awarded Jim half of those benefits, as well as any retirement benefits Evelyn had drawn during the pendency of the divorce. The court awarded Evelyn and Jim a judgment against Greg for $97,500 based on an oral agreement to buy five unspecified acres and a house from Jim and Evelyn. Evelyn and Jim were each awarded one-half of that amount. The court further entered judgment against Greg in favor of Evelyn and Jim for money used to pay a truck loan, with Evelyn and Jim each awarded approximately $11,500. The court further found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to the daughter, Dena. The court also found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to Evelyn and Greg as joint tenants with right of survivorship. Other tracts were found to be marital property, with Evelyn and Jim reduced to tenants in common, and the court ordered the property sold. On Jim's counterclaim seeking to set aside certain conveyances on the ground that Evelyn exercised undue influence over him, the court found that Jim failed to show that Evelyn had occupied a position of dominance over him and refused to set aside the conveyances."], "id": "64ed19af-7492-41e6-bbe4-cd4e0c6f6045", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The, first act bearing upon the question is that of chapter 90, Laws of 1860, the first section of which provides that the property, both real and personal, which any married woman now owns as her sole and separate estate, that which comes to her by descent, devise, bequest, gift or grant, that which she acquires by her trade, busi*270ness, labor or service carried on or performed on her sole and separate account, etc., shall, notwithstanding her marriage, be and remain her sole and , and may be used, collected and invested by her in her own name, etc."], "id": "beadf968-738f-46f9-a965-8f9a60fa121a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The contention on the part of the plaintiff is that she pledged !her inchoate right of dower as surety for her husband, and is to be treated as such, and that the defendant by taking the property charged primarily with the payment of the mortgage debt is not entitled to a position which will enable him to assert any right to her prejudice in that respect. And in view of that relation it is 'also insisted that if the plaintiff consents, it is her right unless the mortgage is unqualifiedly paid by the defendant Prick, and the lien of it discharged, to take decree to that effect and sell subject to her inchoate right of dower. This inchoate right cannot be impaired without her consent effectually given, and against any attempted invasion of it the same protection will be afforded as to the vested right of dower of a widow. (Mills v. Van Voorhies, 20 N. Y., 412; Garlick v. Strong, 3 Paige, 440 ; Youngs v. Carter, 10 Hun, 194, 198 ; Witthaus v. Schack, 24 Hun, 328 ; Babcock v. Babcock, 53 How. 97; Simar v.Canaday, 53 N. Y., 298.) And for that purpose the wife may have a right of action. But it is but a mere chose in action and is not an interest that she can dispose of by assignment or any sort of transfer; she may release it in such manner that by means of estoppel she is barred of claim of-dower when she becomes a widow. (Malloney v. Horan, 49 N. Y., 112, 118; Marvin v. Smith, 46 id., 571.) It is not an estate, nor is it an existing interest except as founded in possibility of becoming such. It cannot be treated as the of the wife, but it is her right to preserve and protect the possibility of its becoming such. (2 Bish. Mar. Women, \u00a7 42; Watson v. Church, 3 Hun, 80 ; In re N. Y. C. and H. R. R. R. Co., 90 N. Y., 345.) She did not, by the mortgage- executed by her, convey any interest or estate in the premises, but merely *127released and barred to the extent of the incumbrance produced by it, the right to assert or claim dower in the event that she survives her husband, so long as the mortgage remained an effectual extinguishment of it. And her right in that respect would be confined to the equity of redemption, and her remedy in equity to redeem. (Van Duyne v. Thayre, 14 Wend., 233 ; Mills v. Van Voorhies, 20 N. Y., 412.)"], "id": "63d42ef4-a5ed-4975-b484-0443fcc2b120", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["First, defendant cannot now avoid his stipulations at trial in regard to the Sun Life and Cantella accounts by taking a contrary position in summation. The stipulation had the effect of making unnecessary any further proof of those accounts\u2019 character as , and therefore to permit defendant to now make an argument that they are, in reality, marital property would deny plaintiff due process."], "id": "75e2a2e3-b1a3-4b87-a57c-302686e4a420", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Each of the four investment accounts at issue was opened during the marriage and the statements for these accounts all note husband and wife were joint tenants. Although wife and wife's forensic accountant testified about the source of the funds for these accounts, no written document was introduced to show the parties intended the investment accounts to be wife's . Instead, the testimonial and documentary evidence showed the source of the funds for these four investment accounts likely came from wife's separate property. By contrast, husband \"alluded to but did not establish through testimony or documentation that the *290source of these funds were from community funds.\""], "id": "c29c3922-4ae1-4376-b149-3c61cdb810de", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["In no part of the proceedings in probate is there more temptation to fraud or more opportunity to successfully employ it than in proceedings to set aside to the widow property to which she claims to be entitled, either because it was a homestead of the decedent selected by him in his lifetime, or ought to be selected as her homestead, because he had never made any selection. There are several cases denying relief from orders setting aside a homestead on the ground that the fraud complained of was not extrinsic, and that the court hence could not proceed without the re-examination of issues already tried and determined: Fealey v. Fealey, 104 Cal. 355, 43 Am. St. Rep. 111, 38 Pac. 49; Wickersham v. Comerford, 104 Cal. 494, 38 Pac. 101; Hanley v. Hanley, 114 Cal. 690, 46 Pac. 736. The case last cited is an extreme one, and, if carried to its logical *270result, should prevent relief being granted in nearly, if not in all, eases where fraud is practiced in probate proceedings. The action was brought to set aside a decree in the administration of the estate of Patrick Hanley, deceased, by which certain property was set aside to his widow as a homestead; and the complaint, among other things, alleged that the premises were the of the deceased, that his widow willfully, falsely, and fraudulently represented to the court, and testified, that they were community property; and also falsely represented to it that a certain declaration of homestead had been filed on the premises while she and her deceased husband were actually residing thereon; and it was further contended that the complainants had no notice of the proceeding to set aside the homestead. A demurrer to the complaint was sustained, on the ground that the proceeding, being in rem, all parties interested were bound by it without personal notice, and that the fraud alleged was not extrinsic or collateral to the matter which was tried and determined by the court. As the question was presented upon demurrer, there was no suggestion that the widow testified as she did through any mistake; on the contrary, the demurrer necessarily admitted that she acted willfully, fraudulently, and falsely. Proceedings of this character are ordinarily ex parte, and we do not think that the rule to which we refer should be applied to them where such is the case. As those who are adversely interested are not present in court and usually have no actual knowledge of the proceeding, it ought to be regarded as a fraud, entitling them to relief when one, taking advantage of their absence, willfully misrepresents facts to the court, though the facts so represented involve the merits and go to the very foundation of the proceedings. The ease of Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Rep. 98, 67 Pac. 282, though it does not profess to overrule any of the decisions referred to, seems to be necessarily in conflict with them, unless it can be said that the principles applicable to decrees of distribution differ from those applicable to orders setting apart homesteads. In the ease last cited relief was obtained from a decree of distribution, on the ground that a widow conspired with her son, who was not the son of the decedent, to procure for him a share of the latter\u2019s property as one of his children, filed a petition naming him as such, and obtained a decree in accordance therewith. The court proceeded, however, partly upon the ground that the widow, being the executrix of the decedent, was the trustee of all the heirs and of other parties in interest, was the mother and natural guardian of such heirs, and was obligated to protect their legal rights and see that the legal claims to the estate were properly presented to the probate court."], "id": "fe0ce96c-f179-4fa0-900a-a0776a14d6d2", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The remaining issues are equitable distribution of the marital assets, child support, maintenance and counsel fees. The court will address the question of equitable distribution first. It is a three-part process; initially the court will categorize the parties\u2019 assets as either marital property or (Domestic Relations Law \u00a7 23 [B] [1] [c], [d]). This is followed by the next step of evaluation. Once the process is completed, the question of the actual distribution of the assets can be accomplished."], "id": "04a89154-b8f6-4a98-b255-201afa1ce91d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Here, Husband's belated argument that only his military pension was used for mortgage payments is unavailing. The trial court was not required to credit Husband's self-serving testimony asserting that he only used his military pension to reduce the mortgage. See Schubert v. Schubert, 366 S.W.3d 55, 72 (Mo. App. E.D. 2012) (explaining that the trial court is free to disbelieve a party's testimony); Hart v. Hart, 210 S.W.3d 480, 487 (Mo. App. W.D. 2007) (same). Throughout the entirety of the marriage, Husband intentionally deposited his income into his Bank of America checking account. The account commingled separate and marital property.4 From that account. Husband regularly paid for both marital and non-marital expenses, including the Residence's mortgage. The case before us is not that of a single payment made on the from an account with commingled funds. Cf. Moore, 189 S.W.3d at 637-38. Nor does the evidence show that Husband's commingling of his incomes was incidental or inadvertent. Cf. id. Husband did not maintain separate accounting for the military pension or any records designating the military pension for specific expenses. Husband cannot account for the expenditures he credited to his military pension besides the purported mortgage payments. The record before us simply lacks sufficient evidence documenting and tracing Husband's incoming funds to payments on specific expenses.5"], "id": "b65e1e91-ec32-4c5d-8e5d-de315c5c2d9d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["We have no doubt that she is liable. By chapter 90 of the Laws of 1860, as amended by chapter 172 of the Laws of 1862, the powers conferred upon married women, and the obligations which they are authorized to incur, have been enlarged. They may acquire property by purchase as well as by devise, bequest, gift or descent; and they may, while married, sue and be sued in all matters having relation to the same, in the same manner as if they were sole. A lease for one year is a contract for the possession of the demised premises during that term for a stipulated price called rent. The lessee is, in legal effect, a purchaser of the term. Clearly the legis*214lature did ' not intend to confer the right to purchase, without imposing the correlative obligation of paying for the thing purchased. The authorities on the subject are decisive against the defendant. (Prevot v. Lawrence, 51 N. Y., 219; Frecking v. Rolland, 53 id., 422; Westervelt v. Ackley, 62 id., 505 ; Herrington v. Robertson, 71 id., 280; Cashman v. Henry, 15 id., 103, 115.) The case of Eustaphieve v. Ketchum (6 Hun, 621) is not conflicting because it was put upon the ground, that a lease to husband and wife jointly of a dwelling for their family was not a contract which had reference to the of the wife, but that the wife became merely a surety for her husband."], "id": "1967fbdc-be20-4824-81bd-13b437894221", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Finally, the petition for divorce alleged that Cohen had committed fraud on the estate and asked the trial court to \"reconstitute the community estate to its full value prior to [Cohen's] depletion of the community estate[.]\" Bar also alleged that he owned \"certain separate property\" and requested the trial court \"to confirm that as [his] separate property and estate.\""], "id": "65895b7e-1e15-4e3a-9112-c641c41dc97e", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["But this argument lacks evidentiary support. DeeDee has pointed to no evidence demonstrating Joe's separate funds and the community were in competition for unique investment opportunities. The investment accounts contained primarily publicly traded stocks and bonds, available to all investors. (Joe also invested in real estate, but DeeDee does not cite to evidence in the record demonstrating the real estate was a particularly unique and advantageous opportunity). A married person is free to invest his or her . (\u00a7 770, subd. (b);"], "id": "7721e03a-4fde-40a1-9220-909b3cbab977", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["\u25a0 The complaint alleges that for ten years before the commence- ' ment of the action plaintiff had been a married woman, the wife of John Morenus; that in and before the month of May, 1875, she \u2019was the owner of a valuable horse, which was her sole and ; that in May, 1875, the defendant Crawford resided in \u2022the village of Berkshire, Tioga county, in this State, and the 'defendant Hoag resided in the village of Richford, in said county; that each kept a hotel at his place of residence, and sold intoxi- \u2022 eating liquors;, that on the 15th day of May, 1875, \u201cthe said ' defendants wrongfully conspiring and intending to injure said \u2022plaintiff, at their places of residence aforesaid, gave and' sold : intoxicating liquors to the' said John Morenus, the plaintiff\u2019s said -husband, * * * which he drank, and from the effects of the :said intoxicating' liquors so sold and given to the plaintiff\u2019s said husband, as' aforesaid, by' said' defendants, he became and was \u2022intoxicated; and while so intoxicated, caused by drinking the \u25a0\u2022intoxicating liquors sold and given-to him by the said defendants, \u2022and by reason of the said intoxication, he killed plaintiff\u2019s said \u2022horse, which was of the valu\u00e9 of one hundred and fifty dollars.\u201d"], "id": "261761cd-0b44-44a8-ab57-116efb311d9e", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The JHO further erred in concluding that the photograph collection acquired during the marriage constituted defendant\u2019s . All property acquired during a marriage constitutes marital property subject to equitable distribution (Domestic Relations Law \u00a7 236 [B] [1] [c]). We conclude, therefore, that the photograph collection constitutes marital property. Inasmuch as the collection includes photographs of defendant\u2019s own family and other photographs that defendant generated, however, we further modify the judgment by awarding the photograph collection to him as part of the equitable distribution of the marital property. Additionally, we modify the judgment by granting plaintiff the right to obtain, at her own expense, duplicate copies of photographs from the photograph collection, excluding those photographs of defendant\u2019s own family."], "id": "e4d78e9b-8e47-4973-bbf5-c16540805d88", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The court, therefore, concludes the legislative intent to be that all property regardless of its source, in which a spouse acquires an interest during the marriage, except that which is deemed (Domestic Relations Law, \u00a7 236, part B, subd 1, par d; subd 5, par b) is marital property and shall be eligible for equitable distribution in the event of divorce."], "id": "ef48c4b8-1354-425a-957f-c5022bdca01d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["IV. Matching Distribution Carol\u2019s final argument is that the trial court erred in failing to rule on her claim that Paul breached the December 2015 order requiring him to make matching distributions to her for any draws he took from ABX. Paul responds that Carol waived this issue by failing to request findings on this issue, and, in any event, relinquished any claim when she stipulated, and the court ordered, that ABX was Paul\u2019s . A. Additional Facts The December 2015 order provided, in part, as follows: \u201cOther than the base salary stated in the existing child support order, Husband will not make any payment out of ABX or loan or distribution or pay any divorce expense or increase over current levels, whether business, entertainment, or credit card expense or do anything of any nature that the mind of mankind can conceive to take more than his base pay out of ABX, however labeled, unless he gives an identical amount to Wife or obtains a prior court order: The intent is if Husband were to take any distributions from ABX, other than his existing base salary as of June, 2015, Wife would get a comparable distribution unless the distribution is by agreement of the parties or by court order.\u201d The October 2018 order required Paul to pay Carol $875,000 and in exchange Carol \u201crelinquishe[d] any claim of entitlement, whether community, separate or otherwise, to the business known as ABX Engineering, including all accounts receivable & payable, cash, inventory, & intangible value . . . .\u201d In response to the proposed SOD, Carol objected that the trial court did not address her claim that Paul failed to comply with the December 2015 order that he pay her an amount equal to what he received from ABX. Carol listed numerous distributions Paul made between 2015 and 2018, the sum of which was in excess of $670,000."], "id": "c8ea503d-a391-450e-9455-a1037e219483", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["(1) The financial resources of the party seeking maintenance, including marital property apportioned to [her], and [her] ability to meet [her] needs independently; (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) The comparative earning capacity of each spouse; (4) The standard of living established during the marriage; (5) The obligations and assets, including the marital property apportioned to [her] and the of each party; (6) The duration of the marriage; (7) The age and physical and emotional condition of the spouse seeking maintenance; (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) The conduct of the parties during the marriage; and (10) Any other relevant factors. Id. (quoting Section 452.335.2). The trial court must award an amount of maintenance it deems just after carefully considering the Section 452.335.2 factors. Arndt v. Arndt, 519 S.W.3d 890, 900 (Mo. App. E.D. 2017). The trial court should apply *784the above factors so as to balance the reasonable needs of the maintenance-requesting spouse against the ability of the paying spouse to provide. Sheerin, 475 S.W.3d at 707. \"Again, the trial court has considerable discretion in determining the amount of the maintenance award.\" Valentine v. Valentine, 400 S.W.3d 14, 22 (Mo. App. E.D. 2013)."], "id": "fe60faec-b39a-40e6-a546-213b768398d2", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Plaintiff objects, contending that both EA & D and M. Studios are his . Although he does not dispute that EA & D was established during the marriage, he claims its formation was nothing more than a change in the name of the business from M. Studios, which was created prior to the marriage. Plaintiff asserts that defendant did not play a role in either business during the marriage. He claims that she has no training or knowledge of ecclesiastical art, design or restoration which would qualify her to have done the work she claims she performed for the businesses. Plaintiff states that the dinners defendant claims she made for clients of the business were purely social occasions with friends. He denies having any business related dinners at his home and asserts that the parties have not entertained anyone at their home for the past three to four years, except for a priest who was never a client."], "id": "f0a18eb5-1925-4a2d-a28c-fc13a143245a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["*270The decisions which insist upon the continuation of the common-law rule in spite of the enactment of the Married Women\u2019s Acts, can only be understood in the light of the legal principles which rest, at the foundation of that rule. One of the bases of the rule was: undoubtedly the fact that at common law a wife could not hold property separate from her husband. However, were this the only factor to be considered, the enactment of the Married Women\u2019s Acts enabling holdings and resulting in the ability of a wife to sue her husband for conversion (Whitney v. Whitney, 49 Barb. 319; Howland v. Howland, 20 Hun, 472), would dispel all reason for the rule."], "id": "f1d880f5-e3fc-465f-a91b-11caf6818d46", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Wife also points out the evidence supported the trial court's finding she was able to trace the source of the investment accounts to the sale of her residence. As we note above, tracing of assets from separate property sources does not overcome the joint title presumption. (Marriage of Weaver, supra, 224 Cal.App.3d at p. 486, 273 Cal.Rptr. 696.) To overcome the presumption, documentary evidence of intent to preserve the separate property nature of the investment accounts was necessary."], "id": "c3d23bb0-4e71-43a4-99a4-1a742af23eef", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The judgment rendered by the justice is erroneous as to the defendant Isaac Swayzee, and must be reversed. When the action relates to the of the wife, the husband ought not to be joined, (Brownson v. Gifford, 8 How. Pr. R., 395), and where the husband cannot be joined with the wife as provided by section 114 of the Code, she shall prosecute or defend by next-friend. (\u00a7 114). There is some conflict in the authorities on this question, but it is clear that the judgment in cases relating to the wife\u2019s separate estate where the husband is joined cannot be against him in personam."], "id": "d604fa67-b789-41a7-b148-1060986891aa", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Commencing with 1840, the Legislature has from time to time enacted laws which lifted the disabilities imposed upon a married woman by the common law. Some of these statutory enactments granted her the right to insure the life of her husband for her own benefit; to hold property for her sole and separate use as though single; to sue and be sued in actions relating to her sole and . By chapter 669 of the Laws of 1937, now section 57 of the Domestic Relations Law, the Legislature permitted suits between spouses for torts, which actions had theretofore been barred at common law. (See McKinney's Cons. Laws of N. Y., Vol. 14, p. 2.) However, all these emancipatory statutory measures related solely to the creation and enlargement of specified civil rights and liabilities. They did not create criminal responsibility where none such existed at common law. (Porter v. Dunn, 131 N. Y. 314.)"], "id": "fb091099-b8af-48fd-8877-9b0ac169a6ca", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["By Efforts of Either or Both Spouses.\u2014The fruits of the industry of husband and wife fall into the community. Indeed, it is the basic principle of the community system that whatever is acquired through the efforts of the husband and wife shall be their common property. All *45property acquired during marriage by the efforts of the wife alone or of the husband alone, or by their joint efforts, is community and not , unless it has come by gift, devise, bequest or succession, or unless it has sprung from the rents, profits, or increase of the separate property of* one of the spouses: Fennell v. Drinkhouse, 131 Cal. 447, 82 Am. St. Rep. 361, 63 Pac. 734; Otto v. Long, 144 Cal. 144, 77 Pac. 885; Succession of Manning, 107 La. 456, 31 South. 862; Picotte v. Cooley, 10 Mo. 312; White v. Lynch, 26 Tex. 195; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Abbott v. Wetherby, 6 Wash. 507, 36 Am. St. Rep. 176, 33 Pac. 1070. Said the supreme court of Nevada in Lake v. Lake, 18 Nev. 361, 4 Pac. 711, 7 Pac. 774: \u201cWe are satisfied it is not necessary to prove that property is, in fact, the product of the joint efforts of the husband and wife in order that it may be declared community estate. If it is acquired after marriage by the efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community. Such property is common, although the wife neither lifts a finger nor advances an idea in aid of her husband. She may be a burden and a detriment in every way, or she may absent herself from the scene of his labors, know nothing of his business, and do nothing for him; still it is common. On the other hand, property acquired by either spouse in any one of the ways mentioned in the statute\u2014that is to say, by gift, devise or descent, or by exchange of individual property, or coming from the rents, issues or profits of separate property\u2014belongs to him or her, as the ease may be, and the other has no more right to share it than a total stranger.\u201d"], "id": "b46edb0b-bc4e-43fc-ab8c-0827c3c41540", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Matthew retained attorney Clifford Chernick to represent Claudia in the negotiation and execution of the premarital agreement. Matthew did not believe he needed an attorney himself and never sought the advice of an attorney regarding the agreement. On February 29, 2008, Mathew emailed a copy of the draft premarital agreement to Chernick's office. On March 3, 2008, Matthew emailed a revised draft of the agreement to Chernick's office, which contained the same provisions regarding 538 Palomar Drive as the original *486draft. Chernick reviewed the drafts and made some notes regarding questions he had. *918Attorney Chernick met with Claudia and Matthew in person on March 4, 2008. Chernick advised Matthew he should seek independent legal counsel, but Matthew told Chernick he was able to represent himself. Chernick spoke to Claudia outside Matthew's presence to make sure she understood the agreement. He also discussed some of the provisions of the draft agreement with Matthew, including (1) what was meant by \"divorce\" (separation, filing for dissolution, final judgment of dissolution) in the provision giving Claudia a percentage interest in 538 Palomar Drive if they divorced before seven years of marriage; and (2) whether Matthew intended to waive his right to reimbursement of his interest in 538 Palomar Drive pursuant to Family Code section 2640 if that property was transmuted to community property after seven years, as provided in the agreement.2"], "id": "c6669d66-ba4c-4e49-baf8-bdcbc65294ab", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Having determined that the pension is not subject to equitable distribution as marital property, we must now determine whether it may be considered in determining maintenance. The law clearly requires the court to consider \"income and property\u201d of the parties together with their needs in determining an appropriate level of maintenance. As noted previously, this was a long-term marriage and both parties are over 70 years old. As noted previously, the defendant\u2019s veterans\u2019 pension is his for purposes of the equitable distribution portion of the statute. The maintenance portion of the statute, however, requires the court to consider the \"income and property\u201d possessed by the parties without any express or implied exclusion of separate property in determining a maintenance award."], "id": "f150f4ee-58a1-4cf2-b60a-177ebdbe8e59", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Although the cases cited by the parties and found by the court do not specifically hold that one of the parties bears this burden of proof, a review of decisions from two departments of the Appellate Division supports the position that defendant at bar has that burden because he is the party seeking to have certain property, i.e., the increased value of the stock assets, determined to be his ."], "id": "3273d91c-042e-41eb-b579-288c7faebc28", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["*316Husband did not object to the court's finding, in its October 2016 proposed statement of decision, that the property was partially Husband's . Rather, in his written objections, he argued only that the court failed to properly address his reimbursement request. In its proposed statement of decision, the trial court, as it did in the Judgment, stated its belief the parties agreed La Madrona was partly Husband's separate property. The court did not include a discussion of Husband's reimbursement request in the proposed statement of decision; the court ordered the property appraised and sold, with the proceeds distributed between Husband and the community in proportion to Husband's separate property ownership, which the court did not define. In objecting to the proposed decision, Husband asked the court to state the legal and factual basis for denying his requested contribution, but did not address the finding that the property was partly his separate property."], "id": "7d2a06b1-68fd-489f-a262-b287d4e3d993", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["With respect to the distribution of the appreciated value of the husband\u2019s , i.e., his stock and the DDI good will, the wife would be entitled under section 236 (part B, subd 1, par d, cl [3]) of the Domestic Relations Law to share in such appreciation but only to the extent that it was due to her \u201ccontributions or efforts.\u201d In this regard, the court finds that the Legislature in providing for the distribution of the appreciated value of \u201cseparate property\u201d, expressly omitted as a consideration \u201ccontributions and services * * * as a spouse, parent, wage earner and homemaker, *** to the career or career potential of the other party\u201d, which is expressly provided as 1 of 10 factors in determining a maintenance award under section 236 (part B, subd 6, par a, cl [8]) of the Domestic Relations Law and as similarly provided as 1 of 10 factors in determining equitable distribution of \u201cmarital property\u201d under section 236 (part B, subd 5, par d, cl [6]) of the Domestic Relations Law. It would appear therefore that the Legislature intended a construction of the meaning of a spouse\u2019s \u201ccontribution or efforts\u201d toward the appreciated value of \u201cseparate property\u201d to exclude considerations of services as a spouse, parent, wage earner, homemaker or other spousal career advancement factors."], "id": "1f511733-7f66-42d5-8efc-c98b304833a3", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": [". The Third Department recently disavowed a portion of the Matwijczuk decision in Ceravolo v DeSantis (125 AD3d 113, 117 [3d Dept 2015]), stating that \u201c[t]o the extent that Matwijczuk and Ciaffone can be read as holding that contributions made by a nontitled spouse toward the acquisition or improvement of premarital property can serve to transform such property into a marital asset, they should no longer be followed.\u201d The portion of the decision that was disavowed is not at issue here."], "id": "16ae83b1-3e59-4ab8-bbd0-41eec553177b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Wife argues that Van Camp applies only when market forces cause the increase of a business's value during marriage. She therefore argues it is \"irrelevant that 'others at DigiDesign' ... contributed to its growth during marriage.\" She relies heavily on Gotcher's testimony that DigiDesign was an \"active\" company. Gotcher confirmed the appreciation was active versus passive, as it was \"due to activity and things that were going on within the company, new products , new hires , all of those things ....\" (Italics added.) However, Gotcher's overall testimony and the testimony of the other witnesses at trial reveal it was the efforts of others in the company, rather than Husband's efforts or market forces, that led to the significant increase in the company's value after the date of marriage. Wife did not provide contradictory evidence or opinion at trial; Butera, her retained valuation expert, testified only to his valuation under the Pereira method, which he performed at Wife's attorney's request, explicitly stating he did not undertake a Van Camp analysis. He did not review the depositions of Husband, Gotcher, Lego, or Jeffrey in forming his opinions. He had limited information about Husband's job duties or DigiDesign's products and who was responsible for developing the products. He did not know whether Husband contributed to the increase in DigiDesign's sales during the marriage. And, Butera agreed Pro Tools was DigiDesign's most important product in terms of revenue at the time of the sale to Avid, although he did not know whose services were significant in developing the Pro Tools family of products."], "id": "f6c72e34-9825-4650-91ad-6b9facf2a2f1", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["It is uncontroverted that Lisa's inheritance was her . But Keith is correct that sometimes the nature of separate property may change to marital in the event commingling occurs. This result, however, occurs only when tracing the way nonmarital property and marital property have been commingled becomes so difficult as to be onerous. See Speer v. Speer , 18 Ark. App. 186, 191, 712 S.W.2d 659, 662 (1986). Here, there is no such difficulty. It is a well-settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. McCormick v. McCormick , 2012 Ark. App. 318, at 6, 416 S.W.3d 770, 775. The two estates own such property by way of a sort of tenancy in common. Id. The mere pouring of nonmarital funds in and out of a joint checking account does not render them forever funds owned by the entirety. Jackson v. Jackson , 298 Ark. 60, 63-64, 765 S.W.2d 561, 562-63 (1989). We therefore affirm the trial court's ruling on this point."], "id": "32c0e5ea-4916-43e2-b778-1cace9366a5b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["For the purposes of determining income tax liability, the parties agree and hereby partition 100 percent of the income, gain, loss, and deductions attributable to a party from that party's individual labor, that party's individual efforts, or the property awarded in this agreement to that party, as his or her sole and , as if that party had been single and unmarried from January 1, 2016, through the date of divorce. The partition further assigns to a party any exemptions, exclusions, estimated tax payments, and withholdings made by that party or for his or her benefit from January 1, 2016, through the date of divorce, as if the same were that party's separate property. The parties agree and IT IS ORDERED AND DECREED that, for purposes of determining income tax liability, any property awarded to a party in this decree shall be deemed to be partitioned to that party and have been that party's separate property as of January 1, 2016, and thereafter. The parties further agree and IT IS ORDERED AND DECREED that any tax payments and any payments that are tax deductible are assigned to the party who made those payments. At the default hearing, Donna requested that she \"be responsible for her taxes for 2016,\" and \"[Michael] be responsible for his.\" On appeal, Michael correctly points out that, contrary to the recitals in the decree, the record does not show that, for tax liability purposes, he and Donna agreed to partition property that would otherwise be treated as community property \"as his or her sole and separate property ... from January 1, 2016, through the date of divorce.\" See Marriage of O'Brien , 436 S.W.3d 78, 81 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (recognizing that assets earned during marriage, even during pendency of divorce proceedings, are community property). Nor did Michael and Donna agree \"that any tax payments and any payments that are tax deductible are assigned to the party who made those payments.\" In addition, no other evidence in the record supports the trial court's decision to characterize community party as separate property for purposes of 2016 tax liability."], "id": "b764774b-170f-40f7-8fa6-6f50b1bbf357", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["In the matrimonial litigation, the husband sought a ruling that the proceeds resulted from a sale of stock of his separate real estate business entity, and thus constituted his exempt from equitable distribution. As is readily discerned, this was a substantial \u201cchange of position\u201d from that taken on the tax return. The tax returns declared the ordinary income character of the proceeds when received by the husband, which created an estoppel, according to the Court of Appeals, precluding husband\u2019s separate property argument. (12 NY3d at 422.) Indeed, because the tax returns made an affirmative representation concerning the nature of the proceeds as Form 1099 ordinary income, the result would have been the same had the husband reported the transaction on a separate individual tax return. Thus, the election to file jointly was of no moment."], "id": "6a05fc60-9dc0-4dc4-b628-6c07a2915826", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["2. \"Exhaustion tracing\" is sometimes also called \"Recapitulation,\" \"Family expense,\" \"Family living expense,\" or \"Family income exhaustion\" tracing. Whatever the name, it attempts to trace a payment or purchase from a commingled mass to funds by process of elimination; i.e ., by showing that-because all community property funds were exhausted at the time the purchase or payment at issue was made-separate property funds necessarily must have been used. ( See v. See , supra , 64 Cal.2d at p. 783, 51 Cal.Rptr. 888, 415 P.2d 776.) This approach presumes that available *915community property funds are used for family expenses before separate property funds are used for that purpose. (See, e.g. , Marriage of Frick , supra , 181 Cal.App.3d at p. 1018, fn. 11, 226 Cal.Rptr. 766.)"], "id": "9521c58d-3356-4ec0-ab3d-266456e96e0f", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["However, the instant proceeding may be distinguished from such principle due to the fact that the marital domicile is indisputably the petitioner\u2019s property and is not considered to be a marital property. This fact is illustrated in the Nassau County Supreme Court\u2019s judgment of divorce, where it is stated *1015that the marital residence is the \u201c of the [husband].\u201d This indicates that the marital residence could not become the subject of dispute after the dissolution of marriage. Thus, as stated in Lally v Fasano (23 Misc 3d 938 [Nassau Dist Ct 2009]), there is no reason to leave the decision regarding who has a superior property interest to the discretion of another court, which in this case, is the Supreme Court of Nassau County. The marriage between petitioner and respondent has been dissolved, and the issues stemming from the possession of the marital home are separate from the prior divorce proceedings. Furthermore, there is no evidence that respondent has availed herself of the option of extending the deadline set forth by the Supreme Court. Although the Supreme Court of Nassau County is appropriate to determine ownership of the marital domicile, the District Court has jurisdiction to determine possession. Hence, this court holds that the District Court of Nassau County is the appropriate forum to resolve the issues presented."], "id": "cc3bf07c-331a-4ddf-8e63-67f3620304d7", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The court agrees with the position taken by the Washington court in Matter of Kittleson (21 Wash App 344) in which the court preferred not to take a hard and fast position as to what portion of the disability pay should be regarded as the of the primary recipient, on the one hand, or the community property of the spouses, on the other. Discussing some of the rationales that appeared in cases in other jurisdictions, including the rationale that a disability pension should be analogized to a personal injury recovery, the court stated generally that while the preferable course was to award to the retired spouse as part of his or her assets upon distribution, any compensation that arises from his or her disability, it was not required, that the court do so if the total distribution of assets would be unequitable. The court recognized that different circumstances may have led to the disability. The court stated (p 353): \u201cSome disabilities are the result of long term exposure to injury, disease or impairment while employed during marriage, and some, as here, flow from injury, disease or impairment which did not result from employment but which will prevent the employee from engaging in the particular employment thereafter. An inflexible rule that required a disability pension to be classified as separate property would ignore the fact that some \u2018disability\u2019 pensions step into the place of a regular retirement pension and permit an earlier retirement and/or retirement with increased payments, others contain elements in the award attributable to an earned regular retirement pension along with elements which compensate for physical injury, and yet other awards are made for disability alone. We hold that to require an unwinding of *589such awards in all cases would add a complexity to the trial court\u2019s task which is not warranted and which we find to be unwarranted in this case. Further, we hold that it would be unwise by our pronouncement of an absolute rule to preclude an award to the other spouse in the future from a \u2018disability\u2019 pension when the extreme situation arises that would find one spouse able to look to a more than adequate disability pension while the other would be left destitute.\u201d"], "id": "be6922d9-03e0-44b4-8a16-568c6a65645f", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["As the parties concede, the property in question had already been acquired by the defendant prior to the marriage. Therefore the property will likely be characterized by the court in the divorce action, as the \"separate\u201d property of the defendant. (Domestic Relations Law \u00a7 236 [B] [1] [d] [1].) Thus, the property itself will remain the defendant\u2019s *1028(Domestic Relations Law \u00a7 236 [B] [5] [b]), titled solely in him. And any claim by the plaintiff to a share of this asset in the divorce action will be limited to its increase in value during the marriage and then only to the extent that such appreciation was due in part to her contributions or efforts. (Domestic Relations Law \u00a7 236 [B] [5] [c]; [1] [d] [3]; Price v Price, 69 NY2d 8.)"], "id": "f3a29176-33be-4688-a7e4-b7829b79e5e4", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The prenuptial agreement provides at paragraph 4 (B) that: \u201cAssets belonging to parties [sic] individually at time of signing agreement remain their . Assets accumulated thereafter shall be shared equally.\u201d However, paragraph 4 in its entirety was declared null and void in the postnuptial agreement. The postnuptial agreement went on to provide at paragraph 2 that in the event of a divorce, \u201cthe parties agree to renounce their Joint Will, the specific bequests listed therein shall become the separate property of the party disposing of same and all of the remaining assets shall be appraised, sold or exchanged, and the proceeds divided equally.\u201d Significantly, neither the prenuptial agreement, the postnuptial agreement, or the joint will make any reference to defendant\u2019s pension."], "id": "9014a22e-59db-4541-852d-a5cd72705037", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["According to Old Republic, Bell's divorce decree \"awarded\" Bell the Property. Old Republic pleaded that the Property was a community asset and that Bell fraudulently misrepresented to Chandrasekaran that the Property was unencumbered and her . Specifically, Old Republic pleaded that Bell failed to inform Chandrasekaran that the Property was encumbered by a federal lien by way of the restitution lien against Benson's assets, which, ostensibly, included \"All community property ... incurred during [Bell and Benson's] marriage.\" Also according to Old Republic, Bell fraudulently signed a \"Marital Status Affidavit,\" wherein Bell \"swore that at the time she acquired the Property she was unmarried,\" in conjunction with the sale of the Property."], "id": "4f8f078d-9edd-420e-b345-745655fe88ca", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["\u201cProperty acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property\u201d (Steinberg v Steinberg, 59 AD3d 702, 704 [2009] [internal quotations marks omitted]). The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was (see Tsigler v Kasymova, 73 AD3d 1159, 1160 [2010]). Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, \u201cexcept to the extent that such appreciation is due in part to *669the contributions or efforts of the other spouse\u201d (Domestic Relations Law \u00a7 236 [B] [1] [d] [3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant\u2019s separate property, appreciated in value during the parties\u2019 marriage (see Patete v Rodriguez, 109 AD3d 595, 598 [2013]). Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC."], "id": "587fca70-d503-437a-87a0-a10d62bfc13e", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Mr. Reuben H. Lloyd was also consulted. Mr. Galpin never had any conversation with Mrs. Garcia in connection with the drafting of the codicil. Neither she nor Mrs. Gerrish was ever present at any of the interviews. Mrs. Scott always came alone. She gave the data and information obtained in drawing the will. At first, she \u2022 stated generally what she wanted to do; then when it came down to a division among the different parties in interest, she made a list of the names that she gave to witness and indicated what fractional interest each was to receive, and then from time to time she would keep changing these interests, substituting different fractions opposite different names. She was engaged in this way for two or three weeks. She Would come to his office, perhaps twenty times in all, and suggest changes in the will. The witness formed the opinion she was sane, and judged so from her manner and appearance and her conversation and mode of doing business. He had no reason to suspect her sanity. Witness had no other business with decedent for some short space prior to the time she commenced talking about the will. She began to consult him on that subject more than a month before the date of the execution of the codicil, October 22, 1897. During that period that was the only transaction between them as attorney and client. She said she desired to give Mr. Scott expressly what she had given him in the will which was drawn *351by the witness in 1891. She said that she was attached to his children and did not regard them as responsible for his shortcomings; that she was inclined to give them something which she had not done by the former will, and desired Mr. Galpin to so fix that Scott's share should be the same and that the amount to his children should be specified. She also said she was very apprehensive that the codicil would be broken and desired great pains taken.. She desired a will so drawn, if possible, that it could not be broken, and also she wanted great care taken that it should not be stolen, which she apprehended might happen. Decedent informed the witness that she was told that Mr. Estee and Mr. Ball would undertake to break this will. She was very anxious about the safety of the will and codicil and told the witness that she proposed to put it in her box in the Safe Deposit Building, and consulted him as to how she could do that and prevent some person obtaining access to the box and purloining the paper after her death. The codicil was drawn in duplicate, at his suggestion, to anticipate its possible loss. One copy was attached to the original will of 1891 and the other copy was retained by him for a while and kept in his safe and then Mrs. Scott took it away. She was a very suspicious woman. She said she would put that will where she thought it would be safe. . She did not disclose the place where she was going to put it. Subsequently it was returned to him and is now in his possession. The witness had no recollection of Mrs. Scott\u2019s saying anything about community or , but she did say that a large part of her property was derived from her first husband, Salvin P. Collins, and she thought that it was but right that she should remember his relatives in the will."], "id": "8ad32572-5aff-4a0d-bc2a-d77a55b3e5c1", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The answer does not intimate that Caroline Switzer was the plaintiffs wife and had a , nor does it aver that the plaintiff transacted any business in the name of \u201c Caroline Switzer,\u201d and that she was authorized by him to transact such business for him or to mortgage the property in question, either in his name or in her own."], "id": "179e0a15-f314-4a36-9f74-f0c6488d5b3d", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["And in Howorth v. Dewell (29 Beav., 18 [1860]), the devise was to the testator\u2019s wife, with power to dispose of the same among his children or any of them for such interest, temporary or lasting, as she should see fitting. So in Brook v. Brook (3 Sm. & Griff., 280) copyholds.were devised to a married women as sole and , with power to appoint the same to her children and husband, in such way and proportions as she might think fit. So in Curtis v. Rippon (5 Mad. Ch., 434) the testator gave all his property to his wife, trusting that she would use it for the spiritual and temporal good of herself and children, remembering always the church and poor. So in Winch v. Brutton (14 Sim., 379) the testator recited that he was desirous of making suitable provision for iiis wife, as well as for his daughter and grandchild; but in order to mark his unbounded confidence in his wife, and his belief that she would be actuated by the most maternal regard towards his child, he gave her all his property for her own use and benefit and disposal absolutely, implicitly relying on her attachment to his daughter and granddaughter."], "id": "350b37d7-f1fc-4778-ae42-5ca798ec7137", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Walter Schackman, J. Plaintiff Susan Lipton and defendant Charles Lipton were engaged to be married in December 1983. As a symbol of the parties\u2019 intentions and implied promises to marry, the defendant gave an engagement ring to the plaintiff at that time, and the parties were married in August 1984. In this action for divorce, the court must determine whether the engagement ring is marital or and thus whether it should be included in the property to be distributed pursuant to the Equitable Distribution Law.*"], "id": "e3c18688-e748-4c93-9e64-1bf54bdb3b5b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Other courts have refused to recognize a property interest in cases of this type. (See, e.g., Matter of Graham, 194 Col 429 [M.B.A. degree] lacks traditional property attributes; see, also, Mahoney v Mahoney, 182 NJ Super 598, revg 175 NJ Super 443 [M.B.A. degree] professional license is not for equitable distribution; also a wife is not entitled to reimbursement for contributions made to support husband in achieving his educational goals on termination of marriage; Wilcox v Wilcox, 173 Ind App 661 [Ph.D. degree] increased earning capacity is not property although enhanced by working spouse; Stern v Stern, 66 NJ 340 [law partnership] earning capacity enhanced and developed by other spouse, no entitlement for reimbursement on termination by other spouse.)"], "id": "8cdd0e84-c924-4589-97c3-97655b26a145", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Before the marriage, couples may change the character of property acquired during marriage from community property to by means of a premarital agreement under the Uniform Premarital Agreement Act ( Fam. Code, \u00a7 1600 et seq., hereafter the UPAA).6 The UPAA provides that the parties to a premarital agreement may contract with respect to various issues, including: \"[t]he rights and obligations of each of the parties in any of the property[7 ] of either or both of them whenever and wherever acquired or located\" ( Fam. Code, \u00a7 1612, subd. (a)(1) ), and \"[a]ny other matter, including their personal rights and obligations, not in violation of public policy or a *307statute imposing a criminal penalty\" ( Fam. Code, \u00a7 1612, subd. (a)(7) ). The premarital agreement \"becomes effective upon marriage.\" ( Fam. Code, \u00a7 1613.)"], "id": "1a162431-c177-4206-bdd6-3588670b3207", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["We are forced to disagree. The standard ITGD expresses an intent to transfer a property interest from one spouse to another: The constituent components of *176the word \"interspousal\"-literally between spouses-plus the words \"transfer\" and \"grant,\" plus the usual statement about the grantee (or grantees) taking the property as either community or , are all clear indicators the document constitutes an express declaration of an agreement to change the marital character of the property. This document includes all those features. We therefore reverse the trial court, and remand for further proceedings as to whether the beneficially-interested spouse in this case dispelled any presumption of undue influence (see \u00a7 721, subd. (b) ) that might have arisen from the circumstances giving rise to this ITGD."], "id": "2a13433a-496e-42a1-af49-8e7245d20bba", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["As we noted above, a spouse who uses funds after the date of separation to pay community debts is entitled to reimbursement out of the community property at dissolution absent circumstances that would make reimbursement inappropriate. (Epstein, supra, 24 Cal.3d at pp. 84-85, 154 Cal.Rptr. 413, 592 P.2d 1165.) Here, the trial court found that \"the Property taxes in the amount of $19,335.64 and homeowners insurance premiums in the amount of $8,948.68 are the sole responsibility of\" wife. However, the trial court awarded wife \"one-half reimbursement for the maintenance and repair\" of the marital residence for the period after separation during which wife had exclusive use of the property. The judgment states that \"[t]he community shall reimburse [wife] the amount of $36,040.25 as per evidence presented at trial, for expenditures to repair and maintain the\" marital residence."], "id": "fc7a9cf6-a3ec-4b6b-9a0f-74491444e2b9", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["It is incredible that the deceased assented to the handling of funds (which were undoubtedly his at least until deposited in the account) so that their expenditure for his benefit created a new debt equal to the amount so expended. He was the source of the funds. He could have directed his office to make the payments directly to the physicians and the hospitals. If the same funds had been handed to the wife with express instructions to pay the medical expenses there can be no doubt that no claim for reimbursement would arise in favor of the wife even if she had deposited the funds in her account and then checked them out. It is not sufficient here that the wife expected reimbursement, if in truth she did expect it. Even if the funds were derived from the of the wife, the circumstances here give rise to the presumption of a gift by her. (Matter of Hughes, 229 App. Div. 614, *750at p. 616.) So, too, unless there is clear proof that the recipient expected to pay there is no liability. (Robinson v. Munn, 238 N. Y. 40.) That there were paid by the wife charges which were the obligations of the husband gives rise to no claim in the circumstances here disclosed. (Hendricks v. Isaacs, 117 N. Y. 411, at p. 418; Matter of Hamilton, 70 App. Div. 73, at p. 76.) The claim of the administratrix is wholly disallowed. Submit decree settling the account accordingly."], "id": "2ee18e3a-c3d4-4480-93a1-12b722c03824", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Plaintiff also contends that Supreme Court erred in regard to its treatment of defendant\u2019s profit sharing plan and one of two snowmobiles awarded to defendant. We agree. The record establishes that the funds were deposited in defendant\u2019s profit sharing plan during the marriage and, therefore, should have been considered marital property, not defendant\u2019s (see, Majauskas v Majauskas, 61 NY2d 481, 485-486)."], "id": "f87ec150-2431-40c9-bd70-a9d895fe7100", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The wife\u2019s attorney also asked the defendant to produce any records regarding the credit card charges on the wife\u2019s credit card, so the wife could determine which charges were incurred for marital expenses during the marriage. The wife lists more than $36,000 in credit card accounts in her statement of net worth and she claims that she cannot identify the purchases and charges against these accounts. Wife\u2019s counsel also asked the husband to provide several items of personal property that the wife claimed were either or marital property that she wanted distributed to her. The husband asserted that he wanted to retrieve personal property in the wife\u2019s possession, and that he would come to Rochester and pick up the property he claimed. The court ordered that the property exchange would occur no later than August 24, 2012, and that the husband needed to give his wife 48 hours notice of when he would make the exchange."], "id": "5008a497-2b69-4047-8175-0de23a48f0d1", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Similarly, the joint checking account is likewise marital. It shall be awarded exclusively to the plaintiff. In so concluding the court observes that the defendant\u2019s portfolio doubled during this brief marriage. The plaintiff has not sought any claim to that portion of the increase in the defendant\u2019s occurring during this marriage (see, Price v Price, 69 NY2d 8 [1986]). During this same period of time that defendant\u2019s net worth increased by $100,000, the plaintiff\u2019s net worth decreased by $30,000 as a direct result of her largesse bestowed on the defendant. The great bulk of the funds in that account were derived from the plaintiff and the defendant\u2019s contribution to the sum on deposit was de minimis."], "id": "e3b96f31-9705-462c-ad90-2f60b8fee55a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The point is, however, that Minnie Grey Checkman did not lose any of her rights by such marriage. Section 3 of the Indian Law imposes the marriage and divorce laws of the State upon the Indian Nations. (Matter of Patterson v. Council of Seneca Nation, 245 N. Y. 433, 445.) The married Indian woman thus retains the same right to enjoy her as a white woman under section 51 of the Domestic Relations Law."], "id": "8349ca8b-e11e-4ccc-9ebd-2f4728078753", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The argument used by the defendants is briefly that the right of a married woman to deal with her sepa/rate property, to carry on business, etc., on her sole and separate account, and to have her earnings therein as her sole and , prevents her from being a partner with her husband; because parnership implies joint property. But if a married woman borrows money on her own personal obligation, stating that she has a business in which she is interested, and if she puts that money into a business carried on in fact by herself and her husband, does that disposition of the money afford any reason why she should not pay her debts ? \u201c The law does not dictate what she shall do with the money when it becomes her own.\u201d \u201cIt is none the less her separate property because she * * % consumes it for the benefit of others as well as herself.\u201d (Tiemeyer v. Turnquist, ut supra.)"], "id": "5452c872-cb51-40ce-b19b-eb759fb72c3a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["\u201cThe community shall be reimbursed $304,107[10] from [Crouch] for the sale of 1425 Bay Laurel, Menlo Park, CA. The court finds this property sold three months after separation, and accepts [Lane\u2019s] rendition of the undistributed funds. The court denies [Crouch\u2019s] claim for reimbursement with regard to 1425 Bay Laurel.\u201d \u201cThe community [interest] of the portion of the post-sale construction contract to DCCH for 1425 Bay Laurel was supported by sufficient evidence as (a) [Crouch] was 49 percent vested in the 1425 Bay Laurel partnership, (b) [Crouch] unilaterally controlled the $500,000 payment to DCCH as payment for construction as opposed to a portion of the purchase price of the home, (c) DCCH invoicing lagged behind actual work done, and (d) [Crouch] was compensated for post- separation work on 1425 Bay Laurel by his draws from DCCH and payment of his personal expenses by DCCH.\u201d Crouch argues that the family court erred in treating all profit from the project as a community asset, \u201cwithout allocating to [him] any portion at all for his post-separation efforts from July 2013 until sometime after December 2014 in creating that profit.\u201d His position is straightforward: \u201cFrom and after separation in July 2013, [he] was entitled to receive his separate property interest from working on that property.\u201d Crouch fails to establish error."], "id": "40da8dac-7468-4c92-a8ea-95f7dcc82935", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["If was converted to joint title, the reason for the conversion does not affect the burden of proof of requirement in section 2581 of a writing to show intent to retain the separate property nature of the asset. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 124, fn. 12, 200 Cal.Rptr. 341 (Neal ), disapproved on other grounds in In re Marriage of Buol (1985) 39 Cal.3d 751, 758, fn. 8, 218 Cal.Rptr. 31, 705 P.2d 354 ; In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13, 224 Cal.Rptr. 333, 715 P.2d 253.)"], "id": "2dc2e8bf-2970-4085-aec7-f1a3620111e7", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["After the trial court issued a proposed statement of decision that awarded G.C. a 28.47 percent interest in the appreciation in the value of the residence based on his contribution to the down payment, R.W. filed a written objection in which he raised the same argument that he raises on appeal. During a hearing on R.W.'s objection, the trial court stated that \"the better way [to divide the appreciation] was the Lucas case way,\" and overruled the objection. It is not entirely clear from the court's comments whether the court applied Lucas (rather than \u00a7 2581 ) in concluding that the joint title community property presumption was rebutted, or whether the court simply \"borrowed\" the Lucas formula for dividing appreciation without making any determination as to whether the community property presumption had been rebutted. The absence of any mention in the court's statement of decision suggesting that the court found that the joint title presumption had been rebutted suggests the latter. In either case, the trial court erred."], "id": "3b2e8606-c400-4f4f-9326-a354bb5daa49", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["By Acquisition of Mining Property.\u2014According to Jacobson v. Bunker Hill etc. Min. Co., 3 Idaho, 126, 28 Pac. 396, it is held that mining property acquired by a married man under the laws of the United States is community property. But the supreme court of Washington has disapproved the Idaho decision, and held that a locator\u2019s interest in a mining claim is his : Phoenix Min. etc. Co. v. Scott, 20 Wash. 48, 54 Pac. 777, citing Black v. Elkhorn Min. Co., 163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221, which was decided subsequently to the Idaho case. A locator of a mining claim has no such *61interest therein after a conveyance and abandonment thereof that the community interest of his wife attaches: McAllister v. Hutchinson, 12 N. M. 111, 75 Pac. 41."], "id": "c82fa209-c177-4979-b025-15611f3b8a36", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["the enumerated categories of each spouse\u2019s .15 In sum, we agree with the trial court that the F&S stock does not fall under the category of \u201cemployment benefits\u201d as defined by the PMA and is not otherwise specifically addressed in the PMA. Accordingly, the PMA does not alter the characterization of the F&S stock and, likewise, does not rebut the statutory presumption that the F&S stock is community property."], "id": "b7d668b0-2e5a-4856-8e89-425334a27638", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The trial court found that the deposit of husband\u2019s post-separation wages into the PDP account that, pre-separation, contained marital property, represented a commingling of with marital property. See Code \u00a7 20-107.3(A)(3)(d) (\u201cWhen marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution.\u201d). The trial court then concluded that the post-separation deposits to the PDP account were transmuted to marital property because, once deposited, the funds were not \u201cretraceable.\u201d Id. Husband does not challenge this portion of the trial court\u2019s ruling, stating on brief that his presentation of evidence and argument regarding \u201cthe use of marital funds was not an attempt to trace separate property for classification purposes, but to provide support for [h]usband\u2019s argument that granting [w]ife\u2019s motion to alternately value the PDP account was an abuse of discretion.\u201d - 21 - totaling nearly $1 million.\u201d (Emphasis added). Clearly, contrary to husband\u2019s assertion on brief,"], "id": "f47b59ab-f775-4ad3-afe4-74d4af3b7701", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Judge Gallagher determined the parties \"discussed, negotiated, and agreed to\" the provision of the PMA waiving spousal support and making custody provisions. She found the PMA \"expressed [the parties'] desires at the time of execution. The prenuptial agreement likewise disclosed each party's . While these disclosures were not perfect, the level of disclosure of each sides [sic ] assets and liabilities was fair, reasonable, and full.\" Judge Gallagher observed that Natalia was capable of understanding Peter's disclosures. Although Natalia was not working at the time she signed the PMA, Judge Gallagher noted that Natalia disclosed a net worth of $107,000 in her financial disclosures and admitted to owning a condominium in Siberia and stock from her former Russian employer, Gasprom, as well as a checking account. Peter disclosed net worth of $199,500, and testified his salary had increased about $4,000 annually by the time of the hearing. Judge Gallagher opined \"the evidence presented does not reveal a significant disparity in the income of the parties and their respective assets at the time they entered into the agreement,\" noting Natalia's earning history was similar to Peter's. \"Accordingly, based upon the record presented, [Natalia] failed to establish any significant inequality of bargaining power, or any surprise or oppression resulting therefrom.\""], "id": "c8e362c8-a088-4dbb-93fc-71a52e033e8c", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["David B. Saxe, J. In this divorce action the defendant husband seeks to sub*99stantially limit or remove certain discovery and trial issues by moving for (1) a protective order limiting disclosure of his net worth to a statement of his net worth through June 10, 1982 plus any sums received from subsequent sales of assets acquired prior to that date; and (2) for a ruling that all assets acquired by the defendant after June 10, 1982 constitute the defendant\u2019s , or for a ruling that, if such assets are marital property, the plaintiff is equitably entitled to no portion of it."], "id": "26bc415e-2160-48a9-a427-0e098352dd93", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["If the clause be added \u201cduring her minority,\u201d the mandatory provisions of the section are not followed, because said clause is a limitation\u2014just as much as if this court undertook to set it aside for one year or two years. It must be conceded that this could not be done. Section 1474, Code of Civil Procedure, alone provides when the court may set a homestead aside for a limited period, to wit: when it is taken from the of the decedent: Phelan v. Smith, 100 Cal. 170, 34 Pac. 667."], "id": "7fcaa4be-e8fb-41c7-afb0-ce42f4470f3b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["There is nothing in the term \u201c allotted to each,\u201d indicating an ultimate separation, and vesting the exclusive property in the chocolate in the parties severally; it was an allotment in contemplation of the mutual performance of the whole agreement. The agreement, if any, was entire. To carry it into effect, they must begin with some subject ; either by first bidding for and fixing the price of the machinery, or first weighing and dividing the chocolate. Whether they commenced with the one or the other, they must do both before the agreement was so far performed that either could insist upon a in the chocolate, unless the other consented that he should take it into his separate possession. There is not the slightest evidence of an express agreement to divide the chocolate only, and the acts done with a view to the performance. of the entire agreement do not show any such consent."], "id": "727472d6-9825-4154-8a33-e1683d1bb7aa", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["7. Stephanie R. Lauth agrees that any future increase in value of the now owned by or for the benefit of Thomas M. Heimann, as well as any appreciation in value thereof, and in particular those assets and expectancies disclosed and described in Exhibit A to this Agreement, and all dividends, interests, rents, issues and profits thereof, shall be and remain his sole and separate property, to use and dispose of as he sees fit as if no marriage had been entered into between the parties."], "id": "8da868a4-a230-443c-aafb-ace0ee51b80c", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Family Code section 7605 states the basic presumption that, except as otherwise *911provided by statute, all property acquired by a married person during marriage, while domiciled in California, is community property. Each spouse has a \"present, existing and equal\" interest in the community property. (\u00a7 751.) On the other hand, property acquired before marriage, or after separation, or at any time by gift, bequest, devise, or descent, is . (\u00a7\u00a7 770, subd. (a), 771). And the \"rents, issues, and profits\" of separate property also are separate property, whether earned before, during, or after marriage. (\u00a7 770, subd. (a)(3).) \"Except as otherwise provided by statute, neither spouse has any interest in the separate property of the other.\" (\u00a7 752.)"], "id": "b3fd00e9-08fb-4f59-9653-c25a283fa24b", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The only question in this case is, whether a promissory-note, made by her husband to her order and delivered by him to her, can be regarded as her separate estate, so as to authorize her to contract with reference to it\u2014that is, to bind herself for the payment of it by indorsement, where she transfers it to a third person for a good and valuable consideration. The note, as the written obligation of the husband to pay a certain sum of money, for value received, by a certain day, would be personal property in the hands of the person to whom the note was made payable. If it had been received by the wife from a third person, it would belong to her as her separate estate, and being a promise to pay a sum of money for value acknowledged to have been received, she could presumptively maintain an *212action upon it against the maker. It has been held, that, so far as the wife has, by the enabling statutes, the capacity to act as a feme sole, she may contract with the husband, or the husband with her; and that, as respects her , or contracts or obligations growing out of any trade or business carried on by her, she may sue the husband, or the husband may sue her (Adams v. Curtis, 4 Lans. 167, and cases there cited; Minier v. Minier, Id. 421; Devin v. Devin, 17 How. Pr. 515; Gage v. Dawchy, 34 N. Y. 293; Abbey v. Deyo, 44 Id. 345 ; Moore v. Moore, 47 Id. 467). A wife may enter into a contract for the purchase of personal property from her husband, which, though void in law, is good in equity, if founded upon a sufficient consideration passing from the wife, and will in equity be enforced against the husband ; and the wife may loan money to her husband, for which she will have a claim against him which she can enforce in equity (Savage v. O'Neil, 44 N. Y. 302, and cases there cited). In this case of Savage v. O\u2019Neil, the wife, during coverture, loaned money to her husband, which she had received from her mother, and took his notes for it. He afterwards executed a bill of sale to her of the goods in his store, in payment of the notes, and it was held that the bill of sale was good against creditors', and that the \u25a0wife was the legal owner of the goods transferred by the bill of sale. In Jaycox v. Caldwell, 51 N. Y. 395, a husband, who was married before the act of 1848, and who had declined to assert his marital rights to the personal property of his wife, borrowed money from her, with the understanding that it would be repaid. It was held that the agreement was founded upon a sufficient consideration ; that it imposed an equitable obligation upon the husband, and that hisj>reierring that debt in an assignment for the benefit of creditors was lawful, and did not vitiate the assignment. Phelkirk v. Pluckwell (2 M. & S. 394) was an action at law upon a promissory note, made by the defendant to the order of a married woman. The action was brought by the husband and wife, and the objection was taken, that as it did not appear upon the face of the note that it was on account of any meritorious consideration moving to the wife, the husband alone ought to sue; but the court held that *213the wife was the meritorious cause of the action; that she was the donee of the note; that it was acquired, by her, and that the note was a thing that of itself imported a consideration. \u201c Does not a promissory note,\u201d said Bayley, J., \u201c import prima facie a consideration for the promise to pay, according to the tenor\u2014that is, to the wife\u2014and what is there to show that the wife is not the meritorious cause of action ? It was incumbent upon the defendant to show the contrary.\u201d"], "id": "30ac148d-e6ce-4caf-9684-51037e0827a6", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Most of the equitable distribution provisions of the Domestic Relations Law endeavor to regulate the economic consequences *442flowing from the dissolution of that relationship, but the moral and societal context in which that law is presented cannot be ignored. The underlying rationale of the reforms of 1980 was the assumption that marriage was purely an economic partnership and should be treated as such. Yet the statute, if read narrowly, would exclude all contributions made in furtherance of that economic union if such contribution preceded the marriage in question. Such an approach provides a bright line, distinguishing marital from , but ignores what often transpires in relationships that ultimately result in marriage, to wit, that the economic partnership frequently is up and running prior to the marriage. Where no marriage results, dissolution of such a partnership is effected through resort to equitable and legal principles not statutorily established. However where, as here, the partnership and the contributions to it would not exist but for the impending consummation of the intended marriage contract, then the provisions of the Domestic Relations Law should control even as to property acquired prior to the marriage. To hold otherwise would permit the Equitable Distribution Law to be utilized as a sword rather than the shield for which it was intended and would encourage the unscrupulous to prey upon weak-minded or emotionally fragile people to part with their property in return for a potemkin (i.e., phoney) marriage."], "id": "f9121c93-1c1f-4ad9-89a7-ae81de257d2a", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["There is some dispute whether the contributions of a homemaker should be considered in the distribution of the increase in value of . (Cf. Jolis v Jolis, 111 Misc 2d 965, 979; Wood v Wood, 119 Misc 2d 1076, supra; see, also, New York State Assembly Memorandum in Support of Equitable Distribution Bill, reprinted in 11C Zett-Kaufman-Kraut, NY Civ Prac, Appendix B, p B-3.) The resolution of this issue appears to depend upon whether the property appreciated in value due to outside economic influences or whether the increased value was due to the labor, management, skill, or enterprise of the owner. In a recent decision, Justice O\u2019Connor of the Second Department utilized an \u201cactive-passive\u201d analysis. Because marriage is viewed as a partnership, the increase in value due to \u201cactive\u201d management would often not have been possible without the indirect contributions of the other spouse: \u201cThe inexorable conclusion to be drawn from these definitions is that partnership theory prevails in the distribution of the fruits produced through the efforts of either spouse during marriage, since any efforts not directly related to such production are deemed to have enabled the other spouse to engage in efforts that were so related. Whether these fruits are derived from efforts utilizing separate property or marital property is fundamentally irrelevant.\u201d (Conner v Conner, 97 AD2d 88, 99; emphasis added.) This \u201cactive-passive\u201d distinction is discussed further in a footnote to this portion of the Conner decision (p 99): \u201c4. Under this analysis, appreciation in passive investments such as bank accounts (as in the case at bar) or securities remains separate property, but appreciation of a *639business jointly managed by both spouses becomes marital property even though it is owned by one spouse who had managed it alone prior to their marriage. Without this active-passive management distinction, it would not be possible to characterize as marital property the appreciation of a business, owned and operated solely by one spouse before and during marriage, which happened to be the sole object of the owner-manager\u2019s remunerative labors during marriage and the sole pecuniary support of their household (but see Jolis v Jolis, 111 Misc 2d 965, 979-980)."], "id": "dc702806-31e2-48c9-af2a-fa8cb7897b66", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["It seems evident from the above adjudications that a married\"woman is invested, by the logical effect of our legislation, in regard to her separate estate and business, with all the attributes and powers of a feme sole, and so being, any contract made by her relative thereto is valid, including a copartnership agreement with her husband. An examination of the decisions in other States adverse to the above conclusion has not changed my opinion. (Lord v. Parker, 3 Allen, 127 ; Plumer v. Lord, 5 Allen, 460 ; 7 Allen, 481 ; Knowles v. Hull, 99 Mass. 562.) The principle adjudged by them is the entire want of power in a feme covert to contract with her husband. This is not in accord with the cases in the courts of this State already cited, and while justly entitled to great respect, those above should not, in such circumstance, be followed without question. In Chamboret v. Cagney (35 Superior Court R. 434) the eminent judge writing the opinion of the court admits it not necessary to definitely decide the question at bar in that case. In expressing his judgment, adverse to the conclusion here, he says: \u201c In case a wife has , although domestic circumstances may keep her home, or she may be kept there by the lawful exercise of a husband\u2019s power over her in a proper contingency, he will not have power to dispose of that property. If they were business partners he might legally keep her home, and legally dispose of the partnership property at the place of business.\u201d I have been led to differ from this reasoning, because the contingency suggested is equally likely to happen where her husband is general agent in the full control of her business, and also as to results when her personal estate is invested in a business wherein she is a partner with others. In re Kinkead (3 Bissell C. C. R. 405) is a decision confirming the views here expressed. In that case the firm, composed of husband and wife, was adjudicated bankrupt. An individual creditor of the husband, after proof of debt, claimed a dividend from the copartnership assets on the ground that *315the wife could not so contract with the husband, and the assets were therefore his in law, and subject to the payment of his debts equally with those of the firm. The creditor's application for a dividend was denied, and the decision of the District Court affirmed on appeal. In Scott v. Conway (58 N. Y. 619) a married woman who apparently carried on a separate business was held to the truth of that appearance, and in an action against her by one who dealt Avith her in ignorance of the partnership, she was precluded from interposing the defense of her husband being a dormant partner. The case is not fully reported, and Avhile the decision may not necessarily involve the point at bar, it is cited as possibly beneficial to those, if any, who may further consider this question and be able to examine the opinions of the court."], "id": "1629e2a5-f066-493f-a2ff-2a86d4915244", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["The difficulty with defendant\u2019s position is that he presents no facts whatever from which the court may find that his defense is based upon more than mere surmise and is not a sham. All that defendant shows is that the plaintiff assignee is the wife of a member of the firm of attorneys which represents her in this action. Such status gives no rise to any presumption or inference that plaintiff is an agent or nominee of her husband. Section 50 of the Domestic Relations Law provides that the of a married woman is her sole property as though she were unmarried and it is not subject to her husband\u2019s control. No citation is needed for the proposition that marriage does not, under the circumstances here, give rise to any presumed agency of the wife for the husband."], "id": "b659085f-3018-4867-8090-172880e673db", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Thus, R.W. is not entitled to the $6,705.88 that the trial court awarded to him as for his \"5.83% of the increase in value of the real property based on his separate property contribution of $23,028.13 to the down payment.\" On remand, the trial court shall ensure that R.W. is not awarded any portion of the appreciation as his separate property. We do not read R.W.'s brief as contending that he is entitled to this amount. Rather, R.W. contends that neither party is entitled to any portion of the appreciation of value of the marital residence as separate property, and that the entire $115,000 of appreciation is to be divided equally as community property. For the reasons stated in the text above, we agree with R.W."], "id": "e60c8d15-50d5-4dcb-acd3-124a02536c05", "sub_label": "US_Terminology"} {"obj_label": "separate property", "legal_topic": "Family Law", "masked_sentences": ["Upon the question that the consideration was inadequate and that an unfair and undue advantage was taken of the plaintiff by the deceased, the burden of proof was, in the first instance, cast upon the defendant, if, as I have attempted to show, the transaction was void at law, and that' the plaintiff was called upon to make proof sufficient to sustain the release in a court of equity. But. conceding for the purposes of this appeal, that the burden of proof was, in the first instance, upon the plaintiff to show by affirmative evidence that the release was procured by fraud, and that the husband\u2019s conduct was overreaching, unjust and unfair, then, when the plaintiff rested, a case was made for the consideration of the jury. One of the faults of the defendants\u2019 argument as to the force and effect of the evidence upon the question of fraud is, that they treat this bargain between the husband and wife concerning her , the same as if the contract was between ordinary contractors, and utterly ignore the confidential relations existing between the parties to the agreement, which was disclosed on the face of the agreement. The relation existing between husband and wife is a circumstance which *160does of itself raise the presumption, of the exercise of undue influence by the husband, and that an unfair advantage was taken, and casts the burden of proof upon the defendant to show that the consideration paid was adequate and that no unfair advantage was taken of the plaintiff by her husband. In speaking of transactions between parties occupying confidential relations towards each other, the court, In the Matter of the Will of Smith (95 N. Y., 516), remarked: \u201c Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by the one holding the dominating situation, naturally excites suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered, and of showing either by direct proof or by circumstances, that the transaction was free from fraud or undue influence, and that the other party acted without restraint and under no coercion or any pressure direct or indirect from the party benefited. This rule does not proceed upon a presumption of the invalidity of the particular transaction without proof. The proof is made, in the first instance, when the relation and the personal intervention of the party claiming the benefit is shown.\u201d It is not necessary to cite any other of the many cases in this and other States sustaining this proposition, but the following are referred to because they are in point: Cowee v. Cornell (75 N. Y., 91); Carpenter v. Soule (88 id., 256; Sears v. Shafer (2 Seld., 268; Platt v. Platt (2 Sup. Ct. R. [T. & C.], 25; 2 Pomeroy\u2019s Eq. Jur., \u00a7 951); Kline v. Kline (57 Pa., 120); Kline's Estate (61 id., 122); Fisher v. Bishop (N. Y. Ct. of App., 13 N. Y. St. Rep., 466)."], "id": "c48ee652-7469-4e7e-be44-f5b6b117d421", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["There is another reason for compelling the court to take the action it is taking. In an equitable distribution divorce action, the law in New York is well settled that both parties are entitled to a searching exploration of each other\u2019s assets and dealings at the time of and during the marriage, so as to delineate the extent of as distinguished from separate property, uncover hidden assets, discover possible waste of marital property, and, in general, gain any information which may bear on the issues of equitable distribution, spousal maintenance and child support. The entire financial history of the marriage must be open to inspection by both parties (Kaye v Kaye, 102 AD2d 682 [2d Dept 1984]; Lee v Lee, 93 AD2d 221 [2d Dept 1983]; Roussos v Roussos, 106 Misc 2d 583 [Sup Ct, Queens County 1980]; Aron v Aron, NYLJ, Sept. 3,1982, p 7, col 1 [Sup Ct, NY County, Stecher, J.]). In addition to the virtually unlimited disclosure now available in equitable distribution divorce actions, the cost of competent legal counsel is necessarily much greater (Ahern v Ahern, 94 AD2d 53 [2d Dept 1983]). The natural course of an equitable distribution divorce action may also entail the use of experts to evaluate the different kinds of marital assets (Domestic Relations Law \u00a7 237 [c]; Ahern v Ahern, supra; Gueli v Gueli, 106 Misc 2d 877 [Sup Ct, Nassau County 1981]; Fay v Fay, 108 Misc 2d 373 [Sup Ct, Suffolk County 1981]). The court may restrain a party from transferring or disposing items of marital property (Domestic Relations Law \u00a7 234; Leibowits v Leibowits, 93 AD2d 535 [2d Dept 1983]). Any attorney who has been called upon to properly answer a set of interrogatories propounded on his client or to prepare a statement of net worth in the form prescribed by the Rules of the Chief Administrator of the Courts (22 NYCRR 117.2) will attest to the fact that divorce actions are more costly and time consuming than ever before."], "id": "130a1228-d71f-4748-ab7f-22c77a1458b5", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The defendant husband contends, among other things, that the court erred in failing to give him credit, as separate property, for $5,000 used in 1973 and $2,000 used in 1974 to purchase real property, as well as $11,000 from the sale of a lease and option to purchase a portion of certain of his real property located in Brooklyn, New York. The defendant further argues that $25,000 he received when he mortgaged the Brooklyn property should also be treated as separate property. We disagree. The term \"marital property\u201d should be construed broadly, while the term \"separate property\u201d as an exception to is to be construed narrowly (see, Price v Price, 69 NY2d 8, 15). A court is not bound by a party\u2019s own account of his or her finances, and where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property (see, Sarafian v Sarafian, 140 AD2d 801, 804). With regard to the sums of $5,000, $2,000, and $11,000, respectively, the defendant relies solely on his own account of the origin of this money. With regard to the $25,000 he received when he mortgaged the Brooklyn property, the plaintiff cosigned the note and was obligated for its repayment. Although the defendant claims that the mortgage note was repaid with his separate funds, he again offers no evidentiary support for this assertion beyond his own testimony. Thus, the court properly declined to credit the defendant with the above amounts as separate property."], "id": "c92a3ab1-b48d-447a-8633-a07e36e8a20a", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["*777Clearly, Mr. Moll is an exceptional wage earner. His net worth statement indicates that his income in 1999 was $392,000. Plaintiff has also submitted proof sufficient to raise a triable issue of fact that defendant\u2019s career as a stockbroker and financial advisor carries with it significant goodwill in the form of his \u201cbook of business\u201d which can be valued. (Cf. Bystricky v Bystricky, 177 Misc 2d 914 [Sup Ct, Nassau County 1998].) It is noteworthy that the value attributed to defendant\u2019s \u201cbook of business\u201d by plaintiff is based upon defendant\u2019s previous 12 months of commissions and does not represent post-marital earnings. In the only reported decision found by this court, a similar \u201csigning bonus\u201d was found to be a marital asset subject to equitable distribution. (See, Reiss v Reiss, 654 So 2d 268 [Fla 1st Dist 1995].) This intangible career advantage possessed by and inseparable from the defendant is a valuable asset. To the extent that the plaintiff has made direct or indirect contributions during the marriage to the enhancement of defendant\u2019s career resulting in its goodwill, under the economic partnership theory of a marriage, she should share in the fruits of their joint labor. (See, Kelly, Sharing a Piece of the Future Post-Divorce: Toward a More Equitable Distribution of Professional Goodwill, 51 Rutgers L Rev 569, 602-603 [1999].) It would be inequitable and contrary to the expansive definition of as construed by the Court of Appeals to not consider defendant\u2019s \u201cbook of business\u201d or personal goodwill as marital property."], "id": "e6083877-f82d-45f6-ada8-5fb2bc0d4ef8", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Defendant judgment debtor and plaintiff judgment creditor are former husband and wife. This action was brought pursuant to CPLR article 54 to enforce the provisions of a New Jefsey judgment of divorce entered March 25, 1982 requiring judgment debtor (former husband) to pay judgment cifeditor alimony, child support, health insurance, life insurance premiums, attorneys\u2019 fees and costs, accountants\u2019 fees and equitable distribution of the . On July 2, 1982, a supplementary order was entered in the New Jersey court requiring defendant judgment debtor toiulfill his obligations under each paragraph of the judgn4\u00c9lSf Store* as they had accrued up to that date, *730and which also provided that in the event that defendant did not fulfill those obligations within 15 days from the date of the order, plaintiff could apply on an ex parte basis for the issuance of a bench warrant for the arrest of defendant. Defendant did not comply with the order, however, plaintiff\u2019s counsel avers it would have been useless to seek the bench warrant for defendant\u2019s arrest as defendant was not physically in the State of New Jersey. Nor was it possible to enforce any part of the judgment in New Jersey as there were no known assets of defendant within that State."], "id": "552c77bf-33a3-40d5-9b14-6b2c0a270ec7", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Further, the agreement included the following provision: \"It is the express intention of the parties to opt out of, and to waive, the community property system, the system, the matrimonial property system and out of any other system that provides for the acquisition of interest in property or the distribution of property, or both, by virtue of marriage. The only way in which community property can be created during the marriage is by a valid written transmutation signed by both parties changing separately owned property into community property or the acquisition of an asset with income and earnings of a party that are community property after the modification of this Agreement pursuant to paragraph 5.15.\""], "id": "fc293cf4-9dab-43b6-8226-575ce26e40a6", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The ETP funds are similar to the RPU stocks in Dotson to the extent that both were provided as incentives to reward the employee's long-term commitment to the employer. In the case of an employee benefit, the operative factor in determining whether benefits are marital or non- is not whether vesting has occurred. McGinnis v. McGinnis , 920 S.W.2d 68, 70 (Ky. App. 1995). Rather, the test is whether the spouse's right to participate in the plan was earned during the marriage. Id. If the benefits are a mere expectancy, then the asset is non-marital; but, if the employee's right to future participation in the plan accrued during the marriage, then it is a marital asset even though the employee's right to receive those benefits does not arise until after the marriage. Id. at 71."], "id": "96ddae72-b0ef-436a-992d-2d3188e8fb49", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["However, the court finds that under section 236 (part B, subd 5, par e) of the Domestic Relations Law it would be *982impractical and burdensome to compel the husband to distribute a portion of this fund as a cash distribution at this time. To compel an award now would unjustly and adversely affect the entire DDI plan and the other directors\u2019 interest, possibly destroying the unique nature and purpose for which it was established. Furthermore, it seems unnecessary, in view of the extent of the available for distribution, to force all or part of its liquidation now, especially because of the growth potential of this type of joint investment plan. Rather, this court determines that a deferred distribution of these funds as hereinafter provided is appropriate."], "id": "e803b3d9-a006-46a6-aa9f-2f546b23c51e", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u00b6116 Consistent with our discussion in this opinion, we remand to the district court to adjust the valuation, to make findings regarding Candi\u2019s tax liability and adjust the alimony award, to clarify whether Guy is must obtain security on Candi\u2019s alimony award, and to enter orders necessary to adequately secure Candi\u2019s interest in her unpaid share of the marital estate."], "id": "cf6e46f5-1daa-499d-8dc6-d3918e896b38", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["After consideration of the credible evidence offered by the plaintiff, and in light of the admissions made by the defendant, this court finds that the plaintiff has met her burden, and has established the elements of civil contempt by clear and convincing evidence. (See Manning v Manning, 82 AD3d 1057 [2d Dept 2011]; see also Soehngen v Soehngen, 58 AD3d 829 [2d Dept 2009].) Accordingly, the court hereby finds the defendant to be in contempt of the automatic orders that were served at the commencement of the underlying divorce action. Moreover, the defendant\u2019s sale of and the expenditure of the proceeds of sale was clearly calculated to, and/or actually did, defeat, impair, impede, or prejudice the rights of the plaintiff. (See Stempler v Stempler, 200 AD2d 733 [2d Dept 1994].) Plaintiff\u2019s motion to hold defendant in civil contempt is hereby granted."], "id": "74948de3-991a-491f-b8b4-4e38a02c309f", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Regarding the division of , the trial court determined that the mortgage on the Residence was $87,700, when the parties married; at trial, the mortgage balance was $26,833.50. Thus, the equity accrued on the Residence during the marriage was $60,866.50. The trial court found that the parties issued mortgage payments from Husband's Bank of America checking account, where Husband regularly deposited both his salary and his military pension. The trial court found that Husband commingled the deposits in his Bank of America checking account. Therefore, the trial court found a marital interest in the equity accrued via the mortgage payments made on the Residence. The trial court divided the $60,866.50 in accrued equity equally, ordering Husband to pay Wife $30,433.25. Additionally, the trial court determined that Husband provided no direct evidence that he used only separate funds to pay for any renovations to the Residence."], "id": "92faadd9-ea2e-43a4-8532-90a81c3274d4", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Howard Berler, J. The trial of this action took place on January 27, 28 and 29, 1998. After an inquest on the first day thereof, plaintiff was awarded a divorce on the ground of constructive abandonment. On January 28, 1998, the parties entered into a stipulation regarding all custody and visitation issues. Left for the court to resolve were issues of financial support and distribution of ."], "id": "312caf38-7cc7-424f-a2fc-84f5b7831d44", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Sometime thereafter Paula retained new counsel. With the assistance of her new counsel, on June 2, 2016, Paula filed a CR 59.05 motion to alter, amend, or vacate. In that motion, Paula argued that John had not resided in Kentucky for the 180 days preceding his filing the petition for divorce as required by KRS 9 403.140, meaning *362that the trial court lacked subject matter jurisdiction. In support of her claim, Paula contended that John maintains a Colorado driver's license, files Colorado tax returns, and receives mail in Colorado. Paula maintained her argument that John had failed to timely and completely provide her with all financial documents and-for the first time-alleged that John had stated during mediation that the Southgate Plaza had recently been appraised and received a new value. Paula claimed that this statement was a fraudulent material misrepresentation, which should render the Agreement unenforceable. Additionally, Paula contended that the Agreement was insufficient to comply with the requirements of KRS 403.180(4)(a) because it was not, on its face, a \"separation agreement\" and only separation agreements could be incorporated by reference as a continuing order in a decree of dissolution. Finally, Paula argued that the trial court had erred in considering her non- when determining whether the Agreement was unconscionable."], "id": "38f5096c-835e-4ce1-b4b1-99c93708d5bd", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In 1980, the Legislature abolished a law that had automatically barred a woman from receiving alimony if she was guilty of misconduct constituting marital fault. In its place, the Legislature enacted the Equitable Distribution Law (EDL) (Domestic Relations Law \u00a7 236 [B], L 1980, ch 281, \u00a7 9), a statute that contains no reference to marital fault in its list of factors for the court to consider in equitably distributing upon divorce."], "id": "e68cbf68-9707-4feb-9c91-e4087cff6f9e", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201cIt is well established that a spouse\u2019s pension constitutes only to the extent that the corpus of the fund accumulates during the marriage and prior to the commencement of the divorce action (see, Domestic Relations Law \u00a7 236 [B] [1] [c]; Majauskas v Majauskas, 61 NY2d 481. . .).\u201d (Cohn v Cohn, 155 AD2d 412, 413 [2d Dept 1989].) Contrary to defendant\u2019s argument, however, he had the burden to establish value. (Grenier v Grenier, 210 AD2d 557, 558 [3d Dept 1994] [\u201cThe burden of proving a pension\u2019s value is on the party seeking an equitable share of the pension\u201d which \u201cis typically established by actuarial evidence\u201d]; Michalek v Michalek, 114 AD2d 655, 657 [3d Dept 1985] [\u201cplaintiff has the burden, as the one seeking a portion of the pension interest, of establishing the value of said interest, usually by actuarial evidence, as well as evidence of the plan itself, establishing the pensioner\u2019s rights\u201d].) In Biagiotti v Biagiotti (97 AD3d 941 [3d Dept 2012]), the Court upheld the trial court\u2019s refusal to distribute any portion of an IRA on a similar failure of proof."], "id": "343ca623-5a97-4f15-9005-ddaf15e7ee5a", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["(a) At the time a divorce decree is entered: (1)(A) All shall be distributed one-half (\u00bd) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration: (i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (ix) The federal income tax consequences of the court's division of property. Specifically, Sandra argues that the court should have considered the length of the marriage, the age and health of the parties, and in particular, the contribution of each party in the marital home. In her view, that William keeps his inheritance, which is the Barling property, and also receives half of her inheritance, is unfair."], "id": "a2248466-3ca5-4767-b317-3c4277974e71", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Nor is there rational justification in holding certain careers to be and others not. Why is the \"celebrity status\u201d career of a model/actress (Golub v Golub, 139 Misc 2d 440, supra) or the career of an entertainer (Getz v Getz, Westchester County, Feb. 1989, index No. 13940/81, Colabella, *859J.) any more a marital asset than, for example, the career of a Judge, secretary, hairdresser, construction worker or chef? Webster defines career as \u201ca chosen pursuit, the general course and progression of life\u201d. Certainly neither the Legislature nor the Court of Appeals intended to provide relief in unequal measure to noncareered spouses."], "id": "100a91da-15fb-4479-8d12-407792d27ed2", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["We review a trial court's division of for an abuse of discretion. See Barras v. Barras , 396 S.W.3d 154, 164 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). The trial court has broad discretion when dividing the marital estate at divorce, and we must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981). \"To disturb a trial court's division of property, a party must show that the court clearly abused its discretion by a division or an order that is manifestly unjust or unfair.\" Barras , 396 S.W.3d at 164. A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without any reference to guiding rules and principles. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990)."], "id": "3019d9f1-4dde-4966-85fa-f1875e68fac6", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["As for the Arizona undeveloped realty valued at $70,000, the court finds that this property, although acquired during marriage and prior to July 14, 1980, was purchased in the sole name of Mona Giurescu. This property, too, was neither acquired in the name of either or both of the spouses, nor did the proof show it was intended by the husband to be his property notwithstanding his furnishing the cost thereof. Accordingly, this realty is also excludable from as a gift to a third party."], "id": "a09d6232-93df-4747-a93b-fd3b9e9a166c", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The court finds that the retained earnings attributable to the husband\u2019s DDI stock interest constitute separate property. The fair preponderance of the evidence showed that the husband\u2019s DDI stockholdings evolved from his father\u2019s premarital and marital gifts to him through a chain of intricate transactions involving stock exchanges, corporate mergers, note and loan transfers and stock reorganizations over the years. The court rejects the argument of the wife that the retained earnings upon which the DDI stock value is based constitute distributable . The unique nature and structure of this closely held family corporation requires extensive bank credit, the business being totally dependent upon it. The retained earnings are not in the nature of readily available independent personal assets of the husband but rather are incremental increases in the value of DDI stock, as DDI historically has never paid a dividend or distributed after tax profits. Moreover, in the event the husband withdrew from DDI under the DDI stockholder agreement his stock is required to be sold back to other shareholders to maintain family control. Significantly, the Internal Revenue Service has never objected, in audits, to DDI accumulating these after-tax profits as corporate retained earnings. Although upon dissolution of DDI or at his death, the hus*979band or his estate would be entitled to the book value commensurate with his stock interest, the crux of such interest is based on his stock shares, derived solely as gifts from his parents. Therefore, his DDI stock and his proportionate share of retained earnings are separate property and, as such, exempt from distribution."], "id": "6ec90247-9981-4c00-ba53-4fe65789b672", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Where equitable distribution of is appropriate but \"the distribution of an interest in a business, corporation or profession would be contrary to law,\u201d the court is required to make a distributive award in lieu of an actual distribution of the property (see, Domestic Relations Law \u00a7 236 [B] [5] [e]). Clearly, those words indicate that an interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-title-holding spouse, including financial contribution and nonfinancial contributions made by caring for the home and family (see, O\u2019Brien v O\u2019Brien, supra)."], "id": "ed1d1ef8-46c3-4367-9a41-4dc86a47b561", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The remaining issues are equitable distribution of the marital assets, child support, maintenance and counsel fees. The court will address the question of equitable distribution first. It is a three-part process; initially the court will categorize the parties\u2019 assets as either or separate property (Domestic Relations Law \u00a7 23 [B] [1] [c], [d]). This is followed by the next step of evaluation. Once the process is completed, the question of the actual distribution of the assets can be accomplished."], "id": "ad80d4df-62e5-4c9d-90eb-d363ddcf6d68", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201cSince section 234 was intended only as a procedural device to permit a court in a marital action to determine questions of possession and title arising within that action, and was not intended to alter existing substantive property law principles, we hold that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.\u201d (Kahn, supra at 210 [emphasis added].) Plaintiff suggests that Kahn actually supports his position because the subject property in this case is not owned by the parties as tenants by the entirety, but rather as joint tenants *551with rights of survivorship. However, this court finds such distinction of no consequence, since the subject property in Kahn just happened to be real property (i.e., the marital residence), owned by the parties as tenants by the entirety by operation of law. This court submits that given the discussion of the intended purpose of Domestic Relations Law \u00a7 234 by the Kahn court as quoted above, the result in that case would have been the same even if the property at issue in that case had been personal property held by the parties as joint tenants with rights of survivorship, as such a tenancy is certainly akin to a husband and wife owning real property as tenants by the entirety. In any event, Kahn clearly supports a finding that Domestic Relations Law \u00a7 234 is not applicable in this post-Equitable Distribution Law, nonmarital action which seeks to not only declare title and possession to the subject property, but seeks to distribute and/or liquidate titled jointly to the parties."], "id": "7a173453-4782-406e-9d78-fa6248216d8f", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["But nor can the court accept the contention that the broader \u201cfair and reasonable when made and not unconscionable at final judgment\u201d statutory test for maintenance agreements applies equally to agreements. Although the Practice Commentary suggests (id., C236B:5) that this language was inserted into the maintenance subdivision only due to a clerical error, it is not the proper role of this court to rewrite the statute. (See McKinney\u2019s Cons Laws of NY, Book 1, Statutes, \u00a7 73.) If in fact an error was made, it is for the Legislature, not the court, to correct. (Ibid.; see Meltzer v Koenigsberg, 302 NY 523, 525; Matter of State of New York v Strong Oil Co., 105 Misc 2d 803, 809, affd 87 AD2d 374.)"], "id": "3a096010-8e14-42f7-8860-208a4081aa1f", "sub_label": "US_Terminology"} {"obj_label": "Marital Property", "legal_topic": "Family Law", "masked_sentences": ["\u201cThe value of a newly earned license may be measured by simply comparing the average lifetime income of a college graduate and the average lifetime earnings of a person holding such a license and reducing the difference to its present value (see, O\u2019Brien v O\u2019Brien, supra, at 582; 2 McCahey, Valuation & Distribution of \u00a7 30.03 [3], at 30-19 \u2014 30-21). In contrast, where the licensee has already embarked on his or her career and has acquired a history of actual earnings, the *127foregoing theoretical valuation method must be discarded in favor of a more pragmatic and individualized analysis based on the particular licensee\u2019s remaining professional earning potential (see, Finocchio v Finocchio, supra, at 1045-1046; Schei-nkman, op. cit., C236B:6, at 48 [1995 Cum Ann Pocket Part]).\u201d (87 NY2d at 286.) The plaintiff argues that since the defendant has never used his license as a professional engineer in the course of his employment, he has never \u201cembarked upon\u201d such a career within the meaning of the second category defined in McSparron, and therefore his license should be valued on the basis of his potential earnings as a professional engineer, as if the license were \u201cnewly earned.\u201d"], "id": "b6ec2837-b417-4f36-a7c8-1753caf89093", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201cto \u2018be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses\u2019 (id.). To allow such duplication would, in effect, result in inequitable, rather than equitable, distribution. In contrast to passive income-producing having a market value, *220the . value of a professional license as an asset of the marital partnership is a form of human capital dependant upon the future labor of the licensee. The asset is totally indistinguishable and has no existence separate from the projected professional earnings from which it is derived. To the extent, then, that those same projected earnings used to value the license also form the basis of an award of maintenance, the licensed spouse is being twice charged with distribution of the same marital asset value, or with sharing the same income with the nonlicensed spouse.\u201d (Grunfeld v Grunfeld, supra at 704-705.) So also, this court is well aware that the principal source of income for plaintiff is the fees from the personal injury cases."], "id": "935a4a51-88aa-4843-a020-decd55ee0ebe", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["It appears that the parties were divorced by judgment of this court dated March 2, 1982 (McInerney, J.), which judgment directed that all other issues, including equitable distribution of the parties\u2019 , be referred for a subsequent trial. Defendant in this four-year marriage is seeking an order directing that his medical practice is separate property and that any increase in the value of the claimed separate property subsequent to the date of his marriage to plaintiff herein is also separate property, and, as such, is not property subject to equitable distribution. Defendant claims that plaintiff never worked at defendant\u2019s medical office and has done nothing to increase the value of his professional practice."], "id": "809a593b-529d-491c-bf87-4507efa6d8b6", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Specifically, the husband attacks clause (10) both in section 236 (part B, subd 5, par d) and section 236 (part B, subd 6, par a) of the Domestic Relations Law, which has been characterized in various decisions as the \u201ccatch-all\u201d or \u201cwildcard\u201d factor. Both subdivisions 5 and 6 of part B of section 236 enumerate 10 factors which the court is required to consider in making awards for equitable distribution of and for maintenance of the wife. In each case nine specific areas of consideration are enumerated; in each case the tenth factor states as follows: \u201c(10) any other factor which the court shall expressly find to be just and proper\u201d."], "id": "cebc15cd-b2bf-4e77-9e14-79c6b7232572", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["A trial court has broad discretion when fashioning an award of equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super. 2007). Our standard of review when assessing the propriety of an order effectuating the equitable distribution of is \u201cwhether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure.\u201d Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation omitted). We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. Id. This Court will not find an \u201cabuse of discretion\u201d unless the law has been \u201coverridden or misapplied or the judgment exercised\u201d was \u201cmanifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record.\u201d Wang v. Feng, 888 A.2d 882, 887 (Pa. Super. 2005). In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. Id. \u201c[W]e measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights.\u201d Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted)."], "id": "289f28a8-2e23-4090-a8b7-2bceeb1bf087", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u25a0The rationale of the authorities cited by defendant is that a person may not plead or prove his cause on the proscribed provision, nor seek the aid of the court in furthering or establishing and benefiting from his illegal purpose. For the purposes of this motion, the court will consider the separation agreement as one that was solicited to attain wife\u2019s- goal of settling her .separation action, obtaining support for her children, an equitable division of and a right to live separate and apart from husband without fear of molestation or interference. Wife and children would not hesitate to enforce the beneficial provisions of the agreement enuring to them. It is indeed an anomalous situation where an over-all agreement, not malum in se, may be declared valid by the court in all respects other than the provision of nonsupport and then declare the agreement not to be a separation agreement for use as a \u201c formal document \u2019 \u2019 upon which a divorce action may be predicated. In effect the court would be assessing a double penalty against husband for being a party to an agreement exacted by wife. To dismiss plaintiff\u2019s complaint is to broadly declare as a matter of law that wife, and wife alone, may benefit from a separation agreement containing one void provision. The husband may only be the victim, barred from enforcing the unrelated rights that can accord with statute to terminate a dead marriage."], "id": "86d036c6-5ad1-4016-8488-4f1402c45766", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The division of is inexorably connected with the issue of entitlement to maintenance by reason of \u00a7 452.335.1(1) which requires a finding that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to that party, to meet his or her reasonable needs before an award of maintenance may be ordered. Willbanks v. Willbanks , 251 S.W.3d 359, 361 (Mo. App. S.D. 2008)."], "id": "6dad97e9-c816-403c-9ef2-7eb1b60d5baa", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The Court of Appeals expanded on the concept of pension rights as for equitable distribution in Olivo v Olivo (82 NY2d 202 [1993]). In Olivo, the Court of Appeals explained that its decision in Majauskas (supra) was \u201cpremised on the idea that a pension is a form of deferred compensation\u201d. (82 NY2d, supra, at 207.) In so doing, disability payments *930which were calculated upon years of employment were found to be subject to equitable distribution. The Olivo Court determined that an early retirement incentive which was offered by the employer after commencement of a matrimonial action, and in fact, after the judgment of divorce, did not constitute a form of deferred compensation or money which was realized during the time of marriage and declined to equitably distribute same."], "id": "69c7234f-7f8c-43d0-ac54-9b702ceb2d46", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u00b663 First, we agree with Guy that Utah law does not support Candi\u2019s contention that the court was required to evaluate WBC as a going concern. In fact, our case law is clear that courts have broad discretion in determining the proper method for calculating the value of . See DeAvila v. DeAvila, 2017 UT App 146, \u00b6 12, 402 P.3d 184 (\u201cDistrict courts generally"], "id": "b78aff7b-7021-4814-829c-2d78772bc897", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["As a general matter, any bonus that accrues during the marriage is subject to division. Wilson v. Wilson , 294 Ark. 194, 741 S.W.2d 640 (1987). However, the circuit court did not specifically rule on the issue of Kerry's 2016 bonus. Our caselaw is clear that Phyllis had the burden of obtaining a ruling on this issue to preserve it for appeal. Sloop v. Kiker , 2016 Ark. App. 125, 484 S.W.3d 696. In the absence of a ruling, our court will not reach an issue, nor will we presume a ruling from the circuit court's silence. Id. For this reason, we affirm on this point without reaching the merits of Phyllis's argument."], "id": "e65ac3fa-f6ec-4e1f-8489-7842181e90fb", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["*527Furthermore, the new evidence indicates that Gary and his father opened the CDs at issue during the marriage, and nothing conclusively establishes that the CDs were property acquired by gift or by reason of the death of another as contemplated under Arkansas Code Annotated section 9-12-315(b). Because the CDs were opened and renewed during the marriage, we cannot say the circuit court clearly erred in finding that they were ."], "id": "28114788-3ac3-4f88-9f34-0f95e2550949", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["A textual analysis of Domestic Relations Law \u00a7 236 does not supply a ready answer to the issue of whether the ashes of a stillborn fetus conceived and miscarried during the marriage constitutes marital or separate property. Domestic Relations Law \u00a7 236 (B) (1) (c) and (d), in relevant part, defines as \u201call property [that is not otherwise defined as separate] acquired by either or both spouses during the marriage . . . , regardless of the form in which title is held.\u201d Separate property, as far as it could be relevant to this matter, is defined as \u201cproperty acquired before marriage\u201d (id. \u00a7 236 [B] [1] [d] [1])."], "id": "9e62f7bc-7f44-4999-a5d2-74e54b0c5b74", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Keith argues this was made in error because \"there was no factual basis for the award of the alleged reduction of debt on a non- paid for with alleged marital funds.\" We disagree. Here, the record demonstrates that Keith refinanced the Sherwood House in 2007 for $73,466 and, according to Keith's testimony, at the time of the hearing it was under contract to sell for $103,000. Keith further testified that after fees and commission they would receive roughly $89,000 from the sale and that about $59,000 is still owed on the note. Keith put on no evidence to demonstrate that the reduction in debt was not attributable to marital funds. Considering that a circuit court is given broad powers to distribute both nonmarital and marital property to achieve an equitable division, Smith v. Smith , 32 Ark. App. 175, 184, 798 S.W.2d 442, 447 (1990), and that a non-owning spouse is entitled to some benefit when marital funds have been used to pay off debts or make improvements on the owning spouse's nonmarital property, Box v. Box , 312 Ark. 550, 555, 557, 851 S.W.2d 437, 440, 441 (1993), we are not left with a definite and firm conviction that a mistake has been committed."], "id": "6204cc98-44a8-406e-8afa-de13141c3642", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["*303The trial court awarded Wife a small checking account and a few items of marital and nonmarital household and personal goods of nominal value. Husband was awarded the remainder of the , excluding the property and assets of the three businesses. Although the trial court found it was unable to assign a value to the three businesses, it found Husband had represented to financial institutions he had a net worth in excess of $7 million. The trial court further found the businesses were Husband's \"alter ego\" used to shield his income from creditors, and the \"corporate veil should be pierced in order that equity be done in this case.\" The trial court \"tabled\" division of the property and assets of the three businesses until the \"bankruptcy stay is lifted.\""], "id": "6549fead-6d13-48be-b00e-33375762e669", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The statute, as indicated above, provides that shall be divided equitably between the parties but where \u201cthe court shall determine that an equitable distri*598button is appropriate but would be impracticable or burdensome or * * * contrary to the law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties\u201d (Domestic Relations Law, \u00a7 236, part B, subd 5, par e; emphasis supplied)."], "id": "41cc1cd5-5987-450a-ad48-c9df4e0f56f3", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u00b679 \u201cWhen the district court assigns a value to an item of , the court must equitably distribute it with a view toward allowing each party to go forward with his or her separate life.\u201d Marroquin v. Marroquin, 2019 UT App 38, \u00b6 27, 440 P.3d 757 (quotation simplified). In situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. See Taft v. Taft, 2016 UT App 135, \u00b6 56, 379 P.3d 890; Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984). This avoids the necessity for the parties \u201cto be in a close economic relationship which has every potential for further contention, friction, and litigation.\u201d Argyle, 688 P.2d at 471 (quotation simplified)."], "id": "87c2908f-c2da-4a33-a214-27bff4a59e2f", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The current landscape in divorce matters, as dictated by the 37-year-old, pre-equitable distribution, pre-no-fault divorce, pretemporary maintenance guidelines holding in Kahn v Kahn, does not accommodate this real-world difficulty. Other courts have suggested some movement away from the strict rule in Kahn. In Stratton v Stratton (39 Misc 3d 1230[A], 2013 NY Slip Op 50808[U] [Sup Ct, Sullivan County 2013]), when the husband refused to pay the mortgage, the court ordered interim sale of a marital residence under the theory that the sale was required to preserve the asset. The court noted that under the equitable distribution law the \u201ccourts have recognized the judicial flexibility and discretion needed to issue orders necessary to preserve marital assets in danger of being dissipated during the pendency of the divorce proceeding.\u201d3 (2013 NY Slip Op 50808[U], *4; see also Lidsky v Lidsky, 134 Misc 2d 511 [Sup Ct, Westchester County 1986] [ordering the refinancing of to preserve family assets];4 St. Angelo v St. Angelo, 130 Misc 2d 583 [Sup Ct, Suffolk County 1985] [house in danger *1008of foreclosure could be sold over objection of one spouse pendente lite]; but see Shammah v Shammah, 22 Misc 3d 822 [Sup Ct, Nassau County 2008] [declining to order sale of property pendente lite].)"], "id": "3f64301a-5c84-46b3-ae85-7534df33d672", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["*873\u201cone date frequently mentioned as a date to be utilized for valuation is that of the date of the commencement of the matrimonial action. The valuation date would, in most cases, then coincide both with the date at which is identified and with the date at which a pension is valued. However, the rule could lead to injustice if the asset has significantly increased or decreased in value between the date of commencement and the date of trial of the action. If an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value, as would be the case, for example, if a closely held corporation lost a major customer, a court which values assets at the date of commencement of the action might make a distributive award that is beyond the owner spouse\u2019s ability to pay. A rule requiring valuation at the time of trial could be equally unworkable. In some cases, practical problems could arise if proof of value at the date of trial is unavailable. Injustice could result if the value of an asset significantly decreased after commencement of the action due to wasteful dissipation or other fault of the owner spouse. In this type of circumstance, it might be unfair to, in effect, force the blameless spouse to share a portion of the loss. An asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial. A \u2018fixed valuation date can never obviate all ills, depending upon what side of the fence one may position himself.\u2019 \u201d (123 AD2d at 234, supra [citations omitted].) Recognizing the difficulty involved in attempting to establish a fixed date for valuing assets, the Wegman court \u201cconcluded that there can be no strict rule mandating the use of a particular valuation date and that a trial court must have the discretion to select a date appropriate to the case before it in light of the particular circumstances presented\u201d (ibid.)."], "id": "3ba6e00c-c930-4641-8b06-2f211af1b5c8", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Additionally, we have held that a nonowning spouse is entitled to some benefit when marital funds have been expended to reduce the debt on the other spouse's non. Wilson v. Wilson , 2016 Ark. App. 256, 492 S.W.3d 534. However, that reduction in debt on nonmarital property is not considered to be marital property to be divided equally; instead, the nonowning spouse is simply entitled to have the marital contribution considered in balancing the equities involved in the property division. Id."], "id": "54a799dc-8ec6-440a-8b76-57582105983f", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The parties are possessed of which includes, inter alla, the marital home, which has concededly increased in value during the marriage, and property in Maine, which has not. The prior order of this court awarded the parties an equal share in both properties, and found that defendant had contributed $26,625 in separate property to the purchase of the marital home and $13,000 in separate property to the purchase of the Maine property."], "id": "2d672e09-20fb-4750-bb49-07d900c4c905", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Because this marriage was of long duration, i.e., 18 years, plaintiff\u2019s proof, at best, establishes an acrimonious, unhappy and incompatible relationship, and is insufficient to meet the degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, 64 NY2d 339, 345; Hessen v Hessen, 33 NY2d 406, 411-412; Walczak v Walczak, 206 AD2d 900; Marciano v Marciano, 161 AD2d 1163, 1164, lv denied 76 NY2d 707; Green v Green, supra). Consequently, the divorce was improperly granted, and the was not subject to equitable distribution (see, Domestic Relations Law \u00a7 236 [B] [5] [a]; Marciano v Marciano, supra). Defendant requests an award of maintenance even in the event that we reverse the judgment of divorce. Because the respective circumstances of the parties may have changed in the two years since the divorce was granted, we remit the matter to Supreme Court to determine that request (see, Domestic Relations Law \u00a7 236 [B] [6]). In making that determination, the court must take into consideration the marital standard of living and defendant\u2019s ability to be self-supporting (see, Hartog v Hartog, 85 NY2d 36; Pilato v Pilato, 206 AD2d 928; Burns v Burns, 193 AD2d 1104, 1105, mod on other grounds 84 NY2d 369). (Appeal from Judgment of Supreme Court, Erie County, Glownia, J.\u2014Divorce.) Present\u2014Fallon, J. P., Wesley, Doerr, Balio and Boehm, JJ."], "id": "3ae57828-b30d-48b8-9cda-10d57c92dffc", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": [". Fault was neither included nor excluded from the original 10 factors a court was required to consider in dividing , although some argued that the catchall tenth factor, \u201cany other factor which the court shall expressly find to be just and proper,\u201d encompassed fault (Domestic Relations Law \u00a7 236 [B] [5] [d] [former (10)]). The Court of Appeals ended this uncertainty with its decision in O\u2019Brien v O\u2019Brien (66 NY2d 576 [1985]), that fault could only be considered, and only as one of many factors, if it was egregious (id. at 589-590, citing Blickstein v Blickstein, 99 AD2d 287, 292 [2d Dept 1984], appeal dismissed 62 NY2d 802 [1984])."], "id": "454334ed-4d83-4421-93f5-8f3a7ed31acf", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In deference to this standard, courts have held that conduct consisting primarily of \u201cverbal harassment, threats and * * * acts of minor domestic violence, is * * * not so outrageous or extreme as to shock the conscience of the court and to justify [a party\u2019s] divestiture of * * * .\u201d (Kellerman v Kellerman, 187 AD2d 906, 907-908 [3d Dept 1992].) It has further been held that the combination of a wife\u2019s open adultery, physical abuse (including scratching, biting and hair pulling), verbal abuse, and wounding of her husband with a knife while breaking into his locked briefcase, does not constitute egregious fault."], "id": "bcabf0ec-74f4-4f81-a61d-ff774400aa9a", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201c[A] trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered .\u201d Ulsaker v. White, 2006 ND 133, \u00b6 13, 717 N.W.2d 567. \u201cThe trial court must then determine the total value of the marital estate in order to make an equitable division of property.\u201d Id. \u201cAfter a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.\u201d Id."], "id": "364db467-d713-4708-ae7a-4649bde6f067", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The Court of Appeals has clearly held that one spouse\u2019s contributions to the other spouse\u2019s profession or career represent an investment in the economic partnership of the marriage and the product of the parties\u2019 joint efforts, the professional license, should be considered subject to equitable distribution. The professional license is a valuable property right measured by the enhanced earning capacity it affords its holder. (O\u2019Brien v O\u2019Brien, 66 NY2d 576, 586.) Contributions to this economic partnership by the spouse not obtaining a license can include investment of substantial assets or income as wage earner, sacrifice of his or her own educational or career goals, performance of the bulk of household and child-rearing duties and responsibilities, and the deferment of the acquisition of marital assets other than the license which could have been acquired by the parties if the licensed spouse had been employed rather than occupied with the study and training necessary to acquire the license. (O\u2019Brien v O\u2019Brien, supra, at 585.)"], "id": "ffa66a04-01dc-4927-bd37-cf2ef1a5f444", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Courts throughout the United States have generally treated the continued enforceability of a division agreement as a question of the parties\u2019 intent, where the death of a party occurs prior to divorce (Annotation, Separation Agreements: Enforceability of Provision Affecting Property Rights Upon Death of One Party Prior to Final Judgment of Divorce, 67 ALR4th 237, \u00a7 2; Bruce v Dyer, 309 Md 421, 524 A2d 777 [1987]). In at least one case, the fact that a party was in ill health and had a limited life expectancy at the time of an agreement was considered in the court\u2019s determination that the couple intended the agreement to be effective regardless of death prior to obtaining a divorce (In re Garrity\u2019s Estate, 22 Wash 2d 391, 156 P2d 217). Partial performance during a party\u2019s life may also be looked at when considering enforcement of an agreement after death (Pavluvcik v Sullivan, 22 Mass App 581, 495 NE2d 869). In Darling v Darling (supra), the Appellate Division held that an agreement between spouses was enforceable despite the death of the wife prior to divorce and despite an oral agreement that transfers made under the agreement should not become effective until the wife obtained and entered a final decree of divorce. The Court in Darling held that the alleged oral pact was illegal and void. Matter of Violi (65 NY2d 392) held that a separation agreement did not transform a tenancy by the entireties unto a tenancy in common (Kahn v Kahn, 43 NY2d 203; see, General Obligations Law \u00a7 3-309). However, that Court did not consider whether the decedent\u2019s property interest, which was extinguished by his death, affects his right to enforce the decedent\u2019s separate and distinct contract rights. In Brower v Brower (supra at 94), the Court, in reaching that issue left open by Matter of Violi, determined that where the decedent\u2019s contract right was enforceable at the time of his death, the contract right survived decedent\u2019s death."], "id": "017a6551-b87a-4dbc-8cfd-54374d784b14", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["When this action was commenced, defendant held, in his name alone, 685,361 shares of EVCI stock and 349,963 stock options (together hereinafter the EVCI stock and options) that had been obtained during the parties\u2019 marriage. In addition, defendant owned a substantial stock portfolio in an account maintained by Dain Rauscher Securities (the Dain Rauscher ac*871count). It was agreed by the parties in the course of this litigation that the EVCI stock and options and the securities held in the Dain Rauscher account (hereinafter the Dain Rauscher stock) were that is subject to plaintiffs equitable distribution claims."], "id": "bae21519-4dfc-4840-a33d-b3209bda35a3", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Separately, the proof showed that one of the liens satisfied by the 2010 refinancing concerned an additional $80,000 lien against the marital residence, when it was still separate property, incurred to finance defendant\u2019s second business venture with his cousin, Gus Votsis and the third investor. Inasmuch as the 2010-2011 refinancing concerned what had shortly before become , the lien thereby constituted marital funds (in the form of a marital debt, Nidositko, 92 AD3d at 656, citing Loria v Loria, 46 AD3d 768, 770 [2d Dept 2007]). Although defendant might argue that the 2010-2011 series of transactions would be beyond the reach of the court under Mahoney-Buntzman v Buntzman (12 NY3d 415, 420-421 [2009]), the extraordinary history of financial malfeasance in this case requires consideration of it in determining whether any credit by reason thereof is warranted. (12 NY3d at 421-422, citing Do*658mestic Relations Law \u00a7 236 [B] [5] [d] [11].) The court determines that no credit to defendant arising from the refinancing is appropriate."], "id": "76e5713c-018f-4cce-b8e2-915f7502c9ae", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["We find defendant\u2019s remaining contentions lacking in merit. The essentially equal distribution of by in-kind distribution rather than by liquidation was well within Supreme Court\u2019s discretion and supported by the record. Nor do we find error in the bifurcation of the trial. Defendant\u2019s contention that Supreme Court lost jurisdiction to equitably divide the marital property by signing a judgment of divorce which contained a decretal paragraph scheduling a trial on the issue of equitable distribution is simply incorrect. It was not a final judgment of divorce (see, Garcia v Garcia, 178 AD2d 683) and may be characterized as \"nothing more than a decision stating the intention on the part of the court to *717divorce the parties in the future\u201d (Sullivan v Sullivan, 174 AD2d 862; cf., Zack v Zack, 183 AD2d 382)."], "id": "8636b376-1740-43fd-83b0-19bac9e9d7a8", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Defendant does not dispute that the three plans constitute subject to equitable distribution, and the parties have agreed that plaintiffs share shall be 50%. At issue is the method of distribution. Defendant contends that the marital portion of the plans is derived from the 9.5 months that elapsed from the implementation of the plans to the date of service of the summons in this action, and seeks to apply the distributive formula employed in Majauskas v Ma*270jauskas (61 NY2d 481), utilizing as the denominator the dates on which defendant is entitled to exercise the benefits provided by each plan. Plaintiff contends that the ISOP and RRP plans are not analogous to a pension or form of deferred compensation, since the benefits were fixed as of November 18, 1993, and there will be no incremental increase in benefit value as a result of defendant\u2019s continued employment, thus rendering the Majauskas formula inappropriate."], "id": "8e75b6e4-c61c-484b-b7b5-596998261f2c", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["*243\u201cIf the benefit is a thing of value and was earned in whole or in part during the marriage, it may be considered subject to equitable distribution. Domestic Relations Law \u00a7 236 (B) defines \u2018marital property\u2019 as \u2018all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.\u2019 In identifying nothing less than \u2018all property\u201d acquired during the marriage as marital property, this section evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date (see, DeJesus v DeJesus, 90 NY2d 643). There is, in fact, a presumption of marital property \u2018premised on the contemporary view of marriage as an economic partnership, crediting each party\u2019s contributions, whether monetary or not, to the growth and value of the marriage\u2019 (id., at 648). Thus, marital property consists of \u2018a wide range of intangible interests which in other contexts might not be recognized as divisible property at all\u2019 (id., at 647).\u201d (At 143-144.) After reviewing its prior holdings on what might constitute marital property, the DeLuca Court focused its analysis on whether the benefits at issue were \u201cintended as compensation for past services rendered\u201d (at 145), and then held as follows:"], "id": "e4d6ee4a-0cb3-4adf-bcb8-2370cd6b5f5b", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In 1993, upon granting plaintiff a divorce, Supreme Court distributed the parties\u2019 pursuant to the statutory factors deta\u00f1ed in Domestic Relations Law \u00a7 236 (B). It awarded, inter alia, a distributive award of $2,000 to defendant as well as permanent maintenance in the amount of $150 weekly until plaintiff reached age 70, reduced to $75 thereafter. The primary issues raised herein concern the valuation of plaintiff\u2019s pension and the maintenance award."], "id": "7ab6b857-a62b-4df0-8b07-7e09e39da513", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Husband challenges the trial court's award of maintenance to Wife and its division of . Because Points One and Two both focus upon the maintenance award, we will first explain the statutory provisions regarding maintenance, and then address the substantive arguments of Points One and Two. Then we will discuss the statutory provisions regarding the division of marital property before resolving Point Three."], "id": "d25e6a8e-75d7-49db-a606-db29da9add20", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In this action for a divorce, a trial was conducted of the contested issues of equitable distribution, child support to be paid to defendant and maintenance and counsel fees to be paid to plaintiff. The essential facts, as found by Supreme Court and supported by the record, follow. The parties were married for approximately 20 years. Defendant, employed primarily as an operating engineer, had estimated total annual earnings of $48,000. Plaintiff worked two jobs, for which *787she earned approximately $17,500 and received a free room. The parties have two daughters, Kimberly, a full-time college student, and Danielle, a high school senior who resides with defendant. Supreme Court rendered a decision and judgment of divorce, inter alia, (1) identifying and valuing the parties\u2019 and the debt attributable thereto and equally distributing the same, (2) awarding plaintiff maintenance of $400 per month for four years, (3) awarding plaintiff counsel fees of $1,000, and (4) relieving plaintiff of any child support obligation for the period commencing June 28, 1993. Defendant now appeals."], "id": "0d339527-0567-48a6-8484-3ab3cae1d604", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The defendant claims that prior to the commencement of the divorce, the home was rented to a tenant whose rental income paid for the majority of the costs of maintaining the property. However, the tenant has since moved out and the defendant claims that he has been paying approximately $2,540 a month for maintenance of the home for the past couple of months and can no longer afford to do so. The defendant states that he can no longer afford to make the payments on the . The defendant also avers that because the plaintiff is not communicating with him, he has been unable to get her to sign a listing agreement. The defendant claims that there was an offer for the purchase of the home at $650,000, and counteroffer made by him at $680,000, that require the plaintiffs consent."], "id": "d8b5a972-db6c-48ce-bc62-1241679dd063", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The defendant further claims that he enjoyed a possessory interest in the house as under section 236 of the Domestic Relations Law. This contention needs no extended discussion. Since the Domestic Relations Law deals with property rights between spouses, before a particular piece of property can be considered marital property there must be some showing that at least one of the spouses has a possessory right to the property in question. As discussed supra, the auction purchaser enjoyed a superior right of possession to that of the defendant, who had no possessory rights in the house at all. By the same reasoning, the purchaser\u2019s rights were superior to the (then nonexistent) rights of the defendant\u2019s wife subsequent to the auction. As a result, whatever the defendant and his wife owned as marital property, this house was not a part of it at the times relevant to this case, and the Domestic Relations Law cannot cause something to become marital property that was not at the time the property of either or both spouses."], "id": "2f707055-0bb2-4dc0-84ae-c86b1e40c9ac", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Domestic Relations Law \u00a7 236 (B) defines , in part, as \"property acquired by either or both spouses during the marriage\u201d (Domestic Relations Law \u00a7 236 [B] [1] [c]). The same statute defines separate property, in pertinent part, as \"property acquired before marriage\u201d (Domestic Relations Law \u00a7 236 [B] [1] [d] [1]) and that \"Separate property shall remain such\u201d (Domestic Relations Law \u00a7 236 [B] [5] [b])."], "id": "e4a3f3c9-d69e-4212-9ca4-90f66ceae6e7", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201cAfter divorce, the law practice will continue to benefit from that goodwill as it had during the marriage. Much of the economic value produced during an attorney\u2019s marriage will inhere in the goodwill of the law practice. It would be inequitable to ignore the contribution of the non-attorney spouse to the development of that economic resource.\u201d (Id., at 434, 457 A2d, at 6.) . Another New Jersey appellate court, relying on Dugan and focusing on the plaintiffs past earnings and the probability that such earnings would continue in the future, held that comedian Joe Piscopo\u2019s celebrity goodwill was no different than the professional goodwill of the attorney in Dugan and hence likewise . (Piscopo v Piscopo, 232 NJ Super 559, 557 A2d 1040 [1989].) Lastly, in California, the professional goodwill of a law practice is marital property. (See, In re Marriage of Fenton, 134 Cal App 3d 451, 184 Cal Rptr 597 [1982].)"], "id": "99853f28-e9c2-4135-912a-851dff6863a1", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In order to conclude, as this court does today, that property transferred or acquired before marriage between individuals who subsequently marry can be characterized as , certain rigorous criteria must be established lest the statutory restrictions be judicially nullified. First, the transfer of the property must be induced or motivated by the contemplated marriage. Second, the transfer must be consistent with, and in furtherance of, the contemplated economic and spiritual union. By way of example, a gift to one of the parties titled solely in that person\u2019s name would not be afforded status as marital property, in contrast to gifts given to both parties or held as joint owners (for example, wedding gifts of cash deposited in a joint account). Third, there must be a marriage in furtherance of the transfer.* Fourth, the failure to characterize the property as marital would lead to the unjust enrichment of one of the parties. Fifth, the potential unjust enrichment must be of such a magnitude or dimension as to shock the conscience of society and the court."], "id": "dc3416d6-f462-4215-9813-0b4dbe491915", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["(i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; *577(v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of , including services as a homemaker; and (ix) The federal income tax consequences of the court's division of property. Ark. Code Ann. \u00a7 9-12-315(a)(1)(A)(i)-(ix)."], "id": "b8b05bb2-76aa-4bb6-adf6-99991459d9fc", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": [". The Advisory Committee on the EPTL and SCPA, which proposed much of the 1992 amendments, was concerned about providing equity in light of modem ideas of marriage as an economic partnership. The Committee, however, concluded that the \u201cfailure to distinguish between \u2018marital\u2019 and \u2018separate\u2019 property and failure to evaluate the assets of both spouses\u201d could only be redressed by substantial overhaul of law, concerning rights both at divorce and at death. This, the Committee considered to be well beyond its mandate (1st Report of Advisory Comm on EPTL and SCPA, reprinted in 1993 McKinney\u2019s Session Laws of NY, at 2125, 2134)."], "id": "fd849e3a-c39a-4343-b65c-1090bb3b42bf", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["As to that portion of the defendant\u2019s interest in his business that was acquired before the marriage and is separate property (see Domestic Relations Law \u00a7 236 [B] [1] [d] [1]), in order for appreciation in the value of this asset to be deemed subject to equitable distribution, the plaintiff was required to \u201cdemonstrate the manner in which [her] contributions resulted in the increase in value and the amount of the increase which was attributable to [her] efforts\u201d (Embury v Embury, 49 AD3d 802, 804 [2008] [internal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18 [1986]). The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98 AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804; Tzanopoulos v Tzanopoulos, 18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770 [2000])."], "id": "67069a7c-c90b-4008-a346-8f266c4ddf90", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In this matter, both parties argue about the meaning of the language of the agreement and whether it restricts the wife\u2019s access to any further accumulation in the account. One salient factor emerges for this court: nowhere does the agreement explicitly state that the wife\u2019s share is determined and the agreement never explicitly defines the wife\u2019s \u201cmarital share\u201d as excluding gains or losses on the account. The husband can point to the \u201ccatch-all\u201d paragraph, set forth above, which follows the paragraph allocating the marital share. In that later paragraph, the agreement details that no property \u201cpresently owned by them\u201d or thereafter \u201cacquired\u201d by either of them \u201cshall be or become\u201d , and adds that only *307\u201cmarital property\u201d which is \u201cexpressly designated\u201d by them shall be subject to equitable distribution. In the next paragraph, the couple again mention that \u201call property owned by the parties\u201d currently or \u201cfrom this day on\u201d would be \u201cunequivocally separate property including any increases thereto\u201d regardless of how such increases occurred. The agreement then states an \u201cunequivocal intent\u201d that the parties are opting out of Domestic Relations Law \u00a7 236 (B) (6) as it relates to \u201cany increases . . . of their separate property even though said . . . increases thereto may have occurred subsequent to the physical separation of the parties.\u201d"], "id": "a33d627a-6f8c-450b-9e25-6c7d218c650f", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Arkansas Code Annotated section 9-12-315(a)(1)(A) provides that \"at the time a divorce decree is entered, all shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable.\" Nevertheless, our property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams , 82 Ark. App. 294, 108 S.W.3d 629 (2003)."], "id": "ec911008-c36b-4a37-9bb0-c20b5d34d766", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["(i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of , including services as homemaker; and (ix) the federal income tax consequences of the court's division of marital property. Ark. Code Ann. \u00a7 9-12-315(a)(1)(A)(i-ix) (Repl. 2015). In addition, \"[w]hen property is divided according to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in *859the order entered in the matter.\" Ark. Code Ann. \u00a7 9-12-315(a)(1)(B)."], "id": "17abdf69-a11e-4165-828f-e46a84effc85", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["This court reviews a circuit court's division of de novo, but we will not reverse the circuit court's findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. See Kelly v. Kelly , 2014 Ark. 543, at 5, 453 S.W.3d 655, 660. Further, a circuit court \"has broad powers to distribute property in order to achieve an equitable distribution.\" Keathley v. Keathley , 76 Ark. App. 150, 157, 61 S.W.3d 219, 224 (2001). The overriding purpose of the property-division statute, Arkansas Code Annotated section 9-12-315, is to enable the court to make a division of property that is fair and equitable under the circumstances, and a circuit court's unequal division of property will not be reversed unless it is clearly erroneous. Id. In reviewing a circuit court's findings, this court defers to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id."], "id": "cd855b60-faba-4ca7-96d0-df9f37d3cd4b", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\"[A] party is free to dispose of his marital assets as he sees fit so long as such disposition is not fraudulent or intended to impair the other spouse's interest such that it may properly be classified as a dissipation of the marital estate.\" Ensor v. Ensor , 431 S.W.3d 462, 472 (Ky. App. 2013). However, in determining a just distribution of the marital estate, it is proper for the trial court to consider whether one of the parties dissipated or wasted marital assets if the property is expended \"(1) during a period when there is a separation or dissolution impending, and (2) where there is a clear showing of intent to deprive one's spouse of his or her proportionate share of the .\" Robinette v. Robinette , 736 S.W.2d 351, 354 (Ky. App. 1987) ; See also Brosick v. Brosick , 974 S.W.2d 498, 500 (Ky. App. 1998). Dissipation must be demonstrated by a preponderance of the evidence, and the family court's findings of fact are upheld if supported by substantial evidence. Kleet v. Kleet , 264 S.W.3d 610, 617 (Ky. App. 2007). The family court acts as fact-finder and possesses the sole authority to *829assess the credibility of witnesses. If dissipation is found to have occurred, \"the court will deem the wrongfully dissipated assets to have been received by the offending party prior to the distribution.\" Brosick , 974 S.W.2d at 500. The equitable relief fashioned by the court must bear some relation to the evidence presented."], "id": "8d5ff73e-fcbe-44b1-a5cb-5f55c1b72cfc", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["This was the second time Evelyn and Jim had married each other. Their first marriage ended in divorce in 1987. They remarried in 1993. The parties separated in early January 2014, and Evelyn filed her complaint for divorce on January 23, 2014. Evelyn amended her complaint to seek an unequal division of the parties' property. Jim answered. He filed a counterclaim, claiming that Evelyn had kept all the money she had earned from her employment and her retirement benefits, which he asserted was separate from that of the parties' joint accounts, and he asked for an accounting. He sought to set aside two conveyances-a warranty deed and a mineral deed-made on June 12, 2012, on the basis that Evelyn exerted undue influence over him. Jim filed a third-party complaint against the couple's two children, Greg and Dena Lynn Smith, asking the court to set aside the June 12, 2012 conveyances in which the children had interests."], "id": "adad13c9-29f1-4174-b200-6fd71ac65524", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\"5. Disposition of property in certain matrimonial actions * * * [T]he court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declara*476tian of the nullity of a marriage, and in proceedings to obtain a distribution of following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.\u201d"], "id": "bf7d5b4a-2cf7-4b26-9c98-1fe3788da27c", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["It is difficult to conceive that any court applying the Equitable Distribution Law4 would require a wife who cosigned loans for her husband\u2019s medical school or living expenses to repay such loans on his behalf as part of a property distribution. Where there is no to distribute and the wife is not entitled to maintenance, a distributive award can ensure that the wife who invests her cash rather than her credit to further the same common purpose is treated no more harshly."], "id": "732c5f84-8780-40ec-8d32-2d36af1ad875", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In this court\u2019s view, Kahn v Kahn should be reexamined. While the ancient rules regarding how married couples hold title to real property embody important legal rights as to third parties, these rights clash with the practical reality of a divorce. When two residences are now required, and one spouse continues to reside in an expensive , family finances soon become drained to pay an exorbitant mortgage and high taxes. In addition, the recipient spouse sits on the nonresident spouse\u2019s equity (the payor\u2019s share of any equity) in the property\u2014without any recognized contribution\u2014until the final judgment of divorce. The resident spouse gets to use the nonresident spouse\u2019s equity without cost until the final judgment of divorce, a process that can take years, and when the judgment is finally granted, the sale of the property (and the equity payment to the payor spouse) may take even longer."], "id": "4dde94b8-f715-441c-b01b-ae252446b677", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Plaintiff commenced this action for a divorce by service of a summons with notice stating that the ancillary relief demanded by plaintiff was, inter alia, equitable distribution of marital assets. Upon defendant\u2019s default in appearing, and after due notice to defendant, an inquest was conducted on the issue of equitable distribution of . Supreme Court thereafter granted judgment in favor of plaintiff directing that the marital residence be sold, that plaintiff receive *555from the proceeds approximately $17,000, constituting the amount expended by plaintiff for mortgage payments and repairs after defendant abandoned the premises, the value of plaintiff\u2019s separate property that was applied toward the purchase of the property, and compensation for defendant\u2019s wasteful dissipation of marital assets, and that the balance be distributed 70% to plaintiff and 30% to defendant. More than two years following service upon defendant of a copy of the judgment of divorce with notice of entry, she moved to vacate the judgment upon the ground that, by failing to state that he was seeking more than half of the marital property, plaintiff deliberately misled her concerning the relief sought. Supreme Court denied the motion and defendant now appeals."], "id": "d90bc857-50bf-4e5c-8c81-4acce8029c49", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Apart from the survivor benefit of REA, ERISA does not mandate that other benefits be provided to a participant\u2019s spouse. In fact, ERISA expressly prohibits alienation of benefits by the plan participant, except by a Qualified Domestic Relations Order (QDRO) issued by a State court in a matrimonial action under the State\u2019s domestic relations law (29 USC \u00a7 1056 [d]). ERISA creates no substantive rights in the case of divorce, but only accommodates, by the provisions governing QDROs, rights created by State matrimonial law. In New York, vested or matured rights in a pension plan are considered subject to distribution in a divorce action to the extent that the benefits result from employment by the participant after the marriage and before the commencement of the divorce action (Majauskas v Majauskas, 61 NY2d 481). There is nothing in the matrimonial law of New York prohibiting a spouse from waiving his or her interest in such marital property by agreement made before or during the marriage in accordance with Domestic Relations Law \u00a7 236 (B) (3)."], "id": "8c604afb-c371-4f62-babf-95abc22e39f0", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The parties were married in 1980, and there is no issue of the marriage. In 1986, they executed a \"separation agreement\u201d which provides for little more than that the parties may separate, that neither could maintain an action for \"the reinstitution of conjugal rights\u201d, and that neither would contract debts in the name of the other. The parties specifically disclaimed any present intention to divide their . Paragraph \"second\u201d of the agreement provided: \"The parties have heretofore and do herein confirm that they have not divided their personal property nor do they intend to do so at this time. However, nothing herein shall be construed which may interfere with either party obtaining new personal or real property and both understand and undertake that they have full power to dispose of same as fully and effectually for all purposes as if he or she were sole and unmarried, except for joint or marital property which will be the subject of disposition at a later date.\u201d This proviso stops short of a blanket agreement that anything acquired by either party individually subsequent to the agreement would be considered separate property. The reference to \"joint or marital property\u201d is difficult to understand, unless the parties contemplated the possibility that they could still acquire marital property. The agreement further provides that \"[njothing herein shall be construed as a total, all inclusive agreement but merely a separation agreement to represent their present status and to effectuate the desires of the parties to file said agreement at the request of the parties.\u201d It should be noted that neither party was represented by separate counsel in drafting this agreement. The agreement recites that the parties reached their agreement on their own, and jointly retained a firm of attorneys to act essentially as scriveners in setting down the terms. It states twice that the parties were *801advised by the attorneys to retain separate counsel, but declined to do so."], "id": "091b8977-db98-417e-9da5-1a8d106f3eb2", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["My conclusion is supported by the decision of the First Department in a somewhat analogous situation (see, Match v Match, 179 AD2d 124 [1992]; but see, Lennon v Lennon, 124 AD2d 788 [2d Dept 1986]). The Court held in Match that when one spouse first obtained a judgment of a separation and the other spouse subsequently commenced an action for a conversion divorce, the cut-off date for the acquisition of was the date the divorce action was commenced. It reasoned that if the husband had no grounds for divorce (and therefore no right to equitable distribution) until the commencement of the action for a conversion divorce, it would be unfair to penalize the wife by selecting an earlier cut-off date (Match v Match, supra, at 132)."], "id": "f6a8e45b-a189-4a98-81d5-2a6b3e9f1888", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Here, the \u201cthing of value\u201d is the personal or professional goodwill of a stockbroker or financial advisor. Justice Silbermann\u2019s decision in Golub v Golub (139 Misc 2d 440 [Sup Ct, NY County 1988], supra) is particularly instructive in deciding whether personal or professional goodwill is as that decision equated the enhanced earning capacity of a celebrity with professional goodwill and the goodwill of a business. As stated in Golub, \u201cWhen a person\u2019s expertise in a field has allowed him or her to be an exceptional wage earner, this generates a value similar to that of the goodwill of a business.\u201d (Golub, supra, at 445-446.) In applying O\u2019Brien (supra), Justice Silbermann held that \u201cthe skills of an artisan, actor, professional athlete or any person whose expertise in his or her career has enabled him or her to become an exceptional wage earner should be valued as marital property subject to equitable distribution.\u201d (Golub, at 447.) The rationale of this holding was clearly not limited to the unique careers of celebrities. Rather, it was predicated on a logical, uniform extension of the rule established in O\u2019Brien. Again quoting Justice Silbermann:"], "id": "edb8d5ea-b953-449e-9384-b85d6b7cac49", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Because Mike acquired the property before his marriage to Bobbie Jo, it was non. The statutory definition of marital property excludes property acquired before the marriage. Ark. Code Ann. \u00a7 9-12-315(b)(1) (Repl. 2015). The trial court's finding that the property was \"converted\" into marital property by using it as collateral for loans is clearly erroneous. A non-owning spouse may be entitled to an interest in the other spouse's nonmarital property, but the nonmarital property itself is not transformed into marital property by virtue of the expenditure of marital funds to reduce debt or to make improvements. Jones, supra."], "id": "cf85aa42-8021-44ee-a183-22bddb84ae20", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["[4] A judicial abuse of discretion exists if the reasons or rul- ings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 9 ANALYSIS [5] In a dissolution action, the equitable division of property is a three-step process. 10 The first step is to classify the parties\u2019 property as either marital or nonmarital, setting aside the non- to the party who brought the property to the marriage. 11 The second step is to value the marital assets and marital liabilities of the parties. 12 And the third step is to cal- culate and divide the net marital estate equitably between the parties. 13 Here, the parties address three discrete issues within the three-step process. [6-8] The first two issues contest the district court\u2019s deter- minations regarding the extent to which assets and debts were marital or nonmarital. Any given property can constitute a mix- ture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. 14 The burden of proof rests with the party claiming that property is nonmarital. 15 Likewise, the burden to show that a debt is nonmarital is on the party making that assertion. 16 [9,10] The last issue addresses the division of specific assets. In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the parties. 17 Tierney v. Tierney, supra note 5. Vanderveer v. Vanderveer, ante p. 196, 964 N.W.2d 694 (2021). Id. Id. Id. Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020). Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). Vanderveer v. Vanderveer, supra note 10. Doerr v. Doerr, supra note 15. - 337 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KAUK v. KAUK Cite as 310 Neb. 329"], "id": "a0eb2e48-ada8-4d44-b558-60758efb3f39", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["As previously noted, the Darlings\u2019 divorce judgment \u201cordered and adjudged\u201d that, except for the coop, \u201cany and all [had] been previously divided between the parties to their mutual satisfaction.\u201d In addition, the judgment \u201cordered and adjudged\u201d that \u201cneither party shall have any claim against, or interest in, the property of the other\u201d; \u201cthe parties waive any claim for spousal support and/or maintenance as against the other party both now and in the future\u201d; and that \u201cthe parties waive any claim for counsel fees with respect to [the] proceeding as against the other party both now and in the future.\u201d"], "id": "c8f73c58-cce0-4226-ba17-fd04ded72194", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201c(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; \u201c(2) the duration of the marriage and the age and health of both parties; \u201c(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; \u201c(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; \u201c(5) any award of maintenance under subdivision six of this part; \u201c(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; \u201c(7) the liquid or non-liquid character of all marital property; *677\u201c(8) the probable future financial circumstances of each party; \u201c(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; \u201c(10) any other factor which the court shall expressly find to be just and proper.\u201d The statute makes no distinction between a contested matter and one in which there has been a default by one of the parties. The court appears to be required, even where there is an inquest taken on the nonappearance of a party, to consider the above factors when it equitably disposes of marital property in the final judgment. Indeed, the court must set forth the factors it considered and the reasons for its decision, and such may not be waived by either party or counsel. (See Domestic Relations Law, \u00a7 236, part B, subd 5, par g.)"], "id": "80df7eb8-c951-4a31-954e-f1460e9c65a6", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The trial court properly determined that the plaintiff wife should not have her equitable distribution award reduced to reflect the loss in value of property the defendant purchased in Lindenhurst, New York. One month after leaving the marital home, the defendant used $60,000 of marital assets to purchase the Lindenhurst property, without the knowledge or consent of the plaintiff, and the record supports a conclusion that the defendant did not intend to share this property with the plaintiff. Each item of need not be divided equally. The trial court possesses flexibility to mold a decree which is fair and just (see, Arvantides v Arvantides, 64 NY2d 1033, 1034; Rodgers v Rodgers, 98 AD2d 386, 391). Under the above circumstances, it was fair and equitable that the plaintiff not share in the loss of value on this property."], "id": "8105be9a-7a41-4463-80df-e43798d803e7", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Here, Marilyn Seyfarth lives with her youngest child, age 16, in a one-family Massapequa Park, home which she now owns solely, having been deeded her estranged husband\u2019s prior one-half interest.in August, 1971. In March, 1968, the husband alone had a judgment filed against him concerning his business transactions after he was separated from his wife. The property, having been purchased in both names in 1951, the judgment, of course, takes precedence over the husband\u2019s later transfer of his interest to his wife. The judgment creditor has initiated proceedings to execute upon that judgment by Sheriff\u2019s sale of Mr. Seyfarth\u2019s prior one-half interest in the , and now Mrs. Seyfarth, who supports herself from a combination of her own hospital employment, rent from a boarder and a local newspaper that uses her garage as a delivery drop, and sporadic support payments, seeks in this proceeding to stay execution pursuant to CPLB 5240."], "id": "35c5de6a-191d-4a18-9b0d-d179c67be697", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\u201c[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of , the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts\u2019 fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.\u201d (Domestic Relations Law \u00a7 170 [7].) The foregoing provides all due process protections and is not found in any other subdivision of Domestic Relations Law \u00a7 170, expressing an awareness by the drafters of the legislation that there is no defense to the no-fault ground while protecting the economic rights of the opposing spouse and children."], "id": "9713a0d9-00d6-4cf4-882a-f1a32c97e130", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Other factors to consider when making an alimony determination are the amount and nature of the parties' incomes, both current and anticipated; the earning ability and capacity of each party; and the extent and nature of each parties' resources and assets. Delacey, supra. In this case, by not modifying the original alimony award, the trial court was not granting Patricia a windfall of the increased value of previously distributed between the parties; it was instead upholding the original alimony award of $ 1059 per month based on Patricia's continuing need for the alimony and Roger's ability to pay from the resources available to him. Because Roger has not shown an abuse of discretion, we affirm the trial court's order finding that Patricia will continue to receive the monthly alimony."], "id": "9e177ff1-7b8f-4fcb-b782-7c9b3e383e4a", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["We agree with the court that plaintiff offered no. evidence \"to lead to a legal conclusion that the undergraduate degree was the sine qua non for the significant advancement of [defendant]\u201d and that defendant\u2019s attendance at the Harvard Advanced School for Banking did not constitute because it yielded no advanced degree or license. Thus, the court properly granted defendant\u2019s motion for summary judgment dismissing that portion of the complaint seeking equitable distribution of defendant\u2019s alleged \"enhanced earn*1027ing capacity\u201d. (Appeal from Order of Supreme Court, Erie County, Gorski, J.\u2014Equitable Distribution.) Present\u2014Den-man, P. J., Lawton, Fallon, Balio and Boehm, JJ."], "id": "dd1214fd-4b7f-4209-8eb3-905ba25bb7f6", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In order to initially award maintenance, a trial court must factually find that the spouse seeking such an award: (1) lacks sufficient property, including granted to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment. Creech v. Creech , 992 S.W.2d 226, 230 (Mo. App. 1999) ; see also section 452.335.1.2 Here, these determinations were made by the dissolution judgment, and the trial court found in the modification judgment that \"[Ex-wife] continues to lack sufficient property, including marital property apportioned to her in the original dissolution of marriage proceeding, to provide for her reasonable needs and is unable *26to support herself through appropriate employment and is in continued need of an award of maintenance.\" The trial court further expressly found that after Ex-wife obtained her bachelor's degree, she \"diligently sought employment[,]\" that Ex-wife's income from that employment was \"within the range of her capabilities of employment and were appropriate[,]\" and that \"[Ex-wife] is not under employed for the area in which she resides.\" These expressed factual findings support the reasonable inference that, although she had not become self-supporting at the time of the modification judgment, Ex-wife had made a good faith effort to become self-supporting in a reasonable amount of time."], "id": "41489047-5e95-40a6-885e-27a2188b6bed", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["With one option excluded by law, the court notes that while is generally valued at the time an action is commenced, Supreme Court is vested with broad discretion to set a valuation date anytime between the date of commencement and the date of trial. (Mesholam v Mesholam, 11 NY3d 24 [2008]; Fehring v Fehring, 58 AD3d 1061, 1063 [3d Dept 2009].) In exercising that discretion, this court is struck by the Court of Appeals\u2019 repeated guidance that the date of commencement for valuation purposes provides clarity for trial judges and litigants. In Anglin v Anglin (80 NY2d 553 [1992]), the Court noted that the economic partnership should be considered dissolved when a matrimonial action is commenced because this firm date *681provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. The Court cited Anglin v Anglin, and repeated its advice later in Mesholam v Mesholam (11 NY3d 24 [2008]), adding that the commencement date of a matrimonial action demarcates \u201cthe termination point for the further accrual of marital property.\u201d (11 NY3d at 28.) A close reading of cases in the wake of Anglin and Mesholam reflects a continued judicial preference for a \u201cdate of commencement\u201d valuation. (See e.g. Rich-Wolfe v Wolfe, 83 AD3d 1359 [3d Dept 2011] [Supreme Court properly valued several construction and demolition businesses, formed over the course of the parties\u2019 long marriage, as of the date of the commencement of the action rather than the date of trial]; Fox v Fox, 309 AD2d 1056, 1058 [3d Dept 2003] [date of commencement for valuation for law practice].)"], "id": "e2575326-d590-4c51-80e8-632bc94ee4f4", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The genesis of this motion lies in the amendment to the Domestic Relations Law and related statutes (L 1980, ch 281). Plaintiff\u2019s attorney candidly and unequivocally states that the purpose of the discontinuance is to enable plaintiff to commence a new action whereunder she could seek an equitable division of . Whereas the preamendment statute was drafted in accordance with rules of title, the amended statute adopted the concept of marriage as a partnership and authorizes judicial distribution of marital property in accordance therewith rather than necessarily in accordance with title. Informal assessment of the consensus of opinion among practitioners in the field of matrimonial law indicates agreement that the amendment will be beneficial to wives in the majority of cases."], "id": "11124fca-60a5-4b9a-acd1-df6ff775e7d2", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["12. We observe that arrangements such as this should be reserved for only the most unusual cases. As we have already emphasized, in distributing , courts should act \u201cwith a view toward allowing each party to go forward with his or her separate life,\u201d Marroquin, 2019 UT App 38, \u00b6 27 (quotation simplified), and avoiding the necessity of parties continuing \u201cin a close economic relationship which has every potential for further contention, friction, and litigation,\u201d Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984) (quotation simplified). The estate division and equalization payments in this case have the unfortunate result of keeping the parties tied together long after their divorce and depriving Candi of immediate access to her (continued\u2026)"], "id": "019180cd-af2b-46f1-8c13-a7a53a64a1ae", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["James T. Ryan and Anne Marie (Ryan) Boranian were married on February 14, 1993 and did not have any children. They physically separated in August 1995 and were divorced on April 10, 1997. The findings of fact in the matrimonial action provide \u201cthat there are no disputes as to separate or .\u201d Depositions were taken of the respondent, Anne Marie Boranian, and her attorney for the divorce, Adam C. Kandall, Esq. Respondent acknowledged that she never made a claim for decedent\u2019s retirement benefits at the time of the divorce and the divorce was intended to be an \u201ceven exchange.\u201d The parties split their savings equally, she retained the rental apartment and he took the car subject to liens. Adam C. Kandall testified that his file in this matter was destroyed in a fire, but that his custom was to produce a stipulation of settlement. He had no recollection of a division of pension benefits being discussed. No written stipulation of settlement, separation agreement or qualified domestic relations order was ever produced."], "id": "111593ad-eaa9-4e31-baed-8ca33f589b92", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["In this case, as was the case in Moore, the parties entered into a property settlement agreement which was incorporated into the dissolution judgment by reference. In the judgment the income that Stephen was currently receiving from the military pension was listed as income both for purposes of calculating his child support and maintenance obligations. The income that Karla was going to be receiving as soon as the paperwork from the dissolution was final and processed by the pension plan was used for determining her income for purposes of child support and for determining her ability to meet her reasonable needs regarding maintenance. The property settlement agreement and subsequently the final judgment did not place a total value on the military pension plan, but merely divided the monthly benefit payments equally between the parties. Neither party may collaterally attack the final dissolution judgment by arguing the income from the military pension was improperly treated for the calculation of maintenance in that judgment. Id. at 391-392. The trial court should consider the parties intentions when they reached a settlement on the division of property in the original dissolution. See Conrad-Neustadter v. Neustadter , 340 S.W.3d 660, 666 (Mo. App. W.D. 2011). Both parties treated the pension payments to each of the parties as income in the maintenance determination in the original dissolution and in presenting their evidence on the motion to modify that maintenance award. \"Although the Missouri Supreme Court held that trial courts were not required to include or exclude income attributable to retirement and IRA accounts awarded as in the calculation of maintenance *721awards, it did require trial courts to 'consider' such income when calculating maintenance. [Hill v. Hill , 53 S.W.3d 114] at 116 [ (Mo. banc 2001) ].\" Schubert v. Schubert, 366 S.W.3d 55, 65 (Mo. App. E.D. 2012). See also Tarneja v. Tarneja, 164 S.W.3d 555, 566 (Mo. App. S.D. 2005). \"Because of the untold number of 'pension plans' which appear to have their own singular and unique requirements for meeting 'vesting' and 'maturing' provisions, it is imperative that trial courts be authorized to apply a flexible approach to accommodate the particular facts of each case.\" Landewee v. Landewee, 515 S.W.3d 691, 695 (Mo. banc 2017) (internal citations and quotation marks omitted)."], "id": "9416ed60-61e0-41c3-a9f1-126b14e6d3c4", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The plain language of the stipulation, however, was that \u201cthe pension plans will be split according to the ruling in Majauskas.\u201d \u201c[P]ension benefits earned during a marriage and prior to the commencement of a divorce action constitute marital property\u201d and thus are subject to equitable distribution. (Brooks v Brooks, 55 AD3d 520, 522 [2d Dept 2008].) The entry of a QDRO is not a form of relief itself but, rather, is a means to carry out the equitable distribution of ."], "id": "e7116850-ad09-4ebc-a5ed-0b21c5036233", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["Husband acquired the Residence before the marriage and titled the Residence in his name only. The parties paid the mortgage from Husband's Bank of America checking account. The balance on the Residence's mortgage was $87,700 at the time of the marriage and the balance at trial amounted to $26,833.50. Husband concedes that he deposited both his salary and his military pension that he received during the marriage into his Bank of America checking account. Husband contends that he used only his military pension, which was earned before the marriage, to pay the mortgage each month. However, the record shows that Husband deposited his military pension into the same Bank of America checking account in which he deposited his salary. Accordingly, the issue is whether the trial court erred in finding that the commingling of Husband's military pension with his current salary rendered the funds used to pay the mortgage during the marriage to be ."], "id": "63b6fd94-0a60-4441-9f6f-8690edde0f2e", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["\"The trial court has broad discretion in identifying, valuing, and dividing .\" Alabach v. Alabach, 478 S.W.3d 511, 513 (Mo. App. E.D. 2015). This Court will interfere with the trial court's distribution of marital property only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion. Rallo v. Rallo, 477 S.W.3d 29, 38 (Mo. App. E.D. 2015)."], "id": "aad7a315-62d7-420e-ae03-7dcc830d2494", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["A waiver is the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable (Nassau Trust Co. v Montrose Concrete Prods. Corp., supra, at 184, citing City of New York v State of New York, 40 NY2d 659, and Davison v Klaess, 280 NY 252). An interest of a debtor in community property is property of the bankruptcy estate only when it is (a) under the sole, equal, or joint management or control of the debtor; or (b) liable for an allowable claim against the debtor and the debtor\u2019s spouse (11 USC \u00a7 541 [a] [2]). Neither defendant\u2019s pension nor deferred compensation plans fall within this definition of the property of the bankruptcy estate. \u201cThere are no vested present or contingent property rights or interests, legal or equitable, in such solely because it is marital property under the New York Domestic Relations Law\u201d (In re Frederes, supra, at 291-292, citing In re Hilsen, 100 Bankr 708, 711 [SD NY 1989]). When the bankruptcy estate was fixed upon the filing of the petition, neither plaintiff nor his subsequent chapter 7 trustee had any basis for claiming a legal or equitable interest in defendant\u2019s pension and deferred compensation plans (see, e.g., In re Hohenberg, 174 Bankr 487). Defendant\u2019s interest, if any, did not vest within 180 days thereafter and, in fact, has not vested to date. Such interest was not, therefore, available to the trustee in bankruptcy at any time prior to defendant\u2019s bankruptcy adjudication (In re Frederes, supra). Should plaintiff acquire any interest postbankruptcy, and well outside the 180 days provided for under 11 USC \u00a7 541 (a) (5), that interest does not automatically become part of the bankruptcy estate (In re Hohenberg, supra). Therefore, the failure to list such an interest, when it is questionable whether or not such listing was even required, cannot be considered an intentional waiver of a known right."], "id": "39437434-e869-4ef6-951f-e90f4910c8f2", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["(1) Alimony (maintenance); (2) Child support; (3) Counsel fees; (4) Custody of the infant issue; *680(5) Exclusive possession of the marital abode; (6) Equitable distribution of the ; (7) Permission to resume use of the maiden name; (8) Such other and further relief as to the court may seem just and proper. Plaintiff and defendant were married on or about August 30, 1969 in Queens, New York. There are two children of the marriage whose names are: Jason, age 8 and Brian, age 5. The parties were both over the age of 21 years when the action was commenced, and at the time of the commencement of this action and for a continuous period of at least one year immediately preceding such commencement, the plaintiff and defendant resided in this State, and the cause occurred in this State. Inquest was held on December 22, 1980."], "id": "beaa71ce-1077-4fac-996b-9c56ca559443", "sub_label": "US_Terminology"} {"obj_label": "marital property", "legal_topic": "Family Law", "masked_sentences": ["The facts in Kelly are strikingly similar to those here. In both cases a note was exchanged for shares of stock. In Kelly , our supreme court did not accept the argument that paying for the property with nonmarital funds changed the character of the property and we do not accept it now. Under these facts, the circuit court clearly erred when it found that the portion of the stock purchased during the marriage was non."], "id": "951d5bde-17be-4dbc-8829-92d70b1ed379", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["A may continue in existence after the parties have been divorced. The agreement may be incorporated by reference in a foreign matrimonial judgment when the court ratifies and incorporates it as part of the matrimonial judgment in lieu of alimony and orders performance of these obligations. (Fabrikant v Fabrikant, 19 NY2d 154.) If merger and nonsurvival are intended, the decree should make an appropriate provision rather than remain silent. (Haboush v Haboush, 56 Misc 2d 666.)"], "id": "bc67f4f0-7c20-4215-8d3c-13d0dd9278bc", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It is this court\u2019s conclusion that this cause of action now before it can be interposed, because of the repeal of section 1168, as a counterclaim in said action for divorce, that a cause of action to set aside or nullify the , if such is desired, can be heard at the same time, and that all matters in dispute between the parties herein can be heard also at the same time, subject always to the discretion of the Supreme Court under section 262."], "id": "b824290f-3feb-44a1-a6d4-52ae43dc9b7f", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Claimant contends that although she received up to the time of decedent\u2019s death, all of the payments due her under the , that many of the payments were made by checks drawn on corporate checking accounts of corporations controlled by decedent and by checks drawn on a personal \u201c Special \u201d checking account of the decedent and that this constitutes evidence showing payment of the sums due under the separation agreement that the decedent paid or assumed to pay by reason of his alleged oral agreement with her of August 11,1957. The evidence herein indicates however that claimant\u2019s husband was on the payroll of such corporations and that net salary payments due him were broken so that there was issued a check to her order of $65 and a check to him for the balance, and the corporate records so indicate. With respect to the *910checks drawn on decedent\u2019s personal \u201c Special Account,\u201d there is evidence that directly prior to the issuance of each of them by decedent that the claimant\u2019s husband had indorsed his entire current salary check to his father. This indicates that the son himself was making the payments he was obliged to make and that they were not being made by the decedent."], "id": "b5ccec1c-f3e6-4cee-9951-884c3438117e", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Joint custody has been tried by the Dodd family, and in the court\u2019s view, it has failed. For 14 months, the parents have lived apart without either a or a court order of custody. During that time they have shared in all decisions, and for most of that time they have divided physical custody equally. In all areas, in matters both major and minor, there has been conflict. There have been disagreements over medical care and psychotherapy, over the children\u2019s clothing, over discipline, over money, over the children\u2019s attendance at family functions. Overt, bitter hostility, criticism of each other, as well as angry words and obscenities have been observed repeatedly by the children."], "id": "bb5c96ae-34b7-4760-ace7-eaa0f01576e8", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Second, with regard to the best interests of the child, a husband and wife may include support and custody terms in a . Such terms, like any other contract clause, are binding on the parties. However, a child is not bound by the terms of an agreement between parents as to support and custody, and courts can modify these terms in the best interest of the child. (See, Family Ct Act \u00a7 461 [a]; Matter *25of Boden v Boden, 42 NY2d 210 [1977]; Sassian v Sassian, 126 AD2d 984 [4th Dept 1987].) Nevertheless, the provision at issue here does not concern the child\u2019s present support or custody. Placing money into an account for a five-year-old child\u2019s college education obviously does not concern the current welfare of that child. When the terms of an agreement are clear and unambiguous, the intent of the parties must be found therein. (Nichols v Nichols, 306 NY 490, 496 [1954], rearg denied 307 NY 677.) There is no precedent to support the defendant\u2019s contention that her breach should be forgiven because the child needs to attend private school now. The proper venue for modifying the Husband\u2019s current support obligation, including his contribution to the child\u2019s current education, is the Family Court, which issued the order of support that is currently in effect."], "id": "b5df9892-9d30-42d4-93d7-d6421bbc509d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It was also established that the parties were divorced on May 19, 1971 and a was incorporated but not merged therein. By the terms of the fifth paragraph of that agreement, petitioner agreed to pay $60 per week to respondent as alimony until either party dies or the wife remarried. Respondent argues that the existence of this paragraph of the separation agreement prevents the Family Court from terminating its support order pursuant to section 248 of the Domestic Relations Law \u2014 that to do so would be to rewrite the separation agreement."], "id": "5f6000b6-8b29-4851-b0be-86d3ee9ccf53", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In support of this contention he points to an order of Mr. Justice Schirick, dated April 26, 1957, made in the Supreme Court, Albany County, in which a claim was compromised under somewhat similar circumstances. The committee, however, urges that under the doctrine that this court may make the election *1013which the incompetent herself would have made if sane, the modification agreement may he approved. The attorney for the committee argues that any other course would compel the institution of periodic actions against the husband under the , resulting in as many applications to compromise."], "id": "0542b6fa-7709-4d87-a673-052ced981709", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The question presented hinges on an interpretation of the word \u2018 \u2018 activities \u2019 \u2019 as used in the commentary, and of the language of subidivision (a) of section 237. In opposition to petitioner\u2019s application, it is argued that the activities referred to in the discussion by Professor Siegel relate to activities in the matrimonial action, and not to such extracurricular activities in which the attorney may become involved in the negotiation of a . Our reading of subdivision (a) of section 237 and the commentary leads us to a stricter construction thereof than here urged by petitioner, and to the conclusion that the award of counsel fees therein provided is for services *565rendered or to be rendered in the prosecution or defense of the actions therein specified."], "id": "6180d32b-f47a-402d-9ccc-94961a72e39d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Defendant asserts that the execution of a in New York does not constitute a transaction of business in New York sufficient under the long-arm statute (CPLR 302) to subject him to the personal jurisdiction of the court. This contention runs contra to the holding in Kochenthal v. Kochenthal (28 A D 2d 117), in which the court determined that the provisions of subdivision (a) of CPLR 302 apply with equal effect to a separation agreement as it does to a commercial transaction and thus service outside the State of New York on a nondomiciliary party to a separation agreement executed in New York confers jurisdiction of his person in the New York courts."], "id": "1e1325e5-9717-45d3-80fc-1c2a834b1a23", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["While the facts presented here are somewhat unique, there are several cases that provide significant guidance. The Third Department case, Matter of Hartle v Cobane (228 AD2d 756), is instructive. In Hartle, the parents had a that obligated them to contribute to the college expenses of the children provided each approved of the college, course of study, and living arrangements. The father contended that the mother\u2019s petition seeking his contribution toward college expenses should have been dismissed because his approval was not sought for one child\u2019s decision to attend the University of Hartford. The Court held that, given the agreement\u2019s silence on the method of expressing approval, the father\u2019s failure to unequivocally disapprove of his daughter\u2019s college choice, along with the fact that he drove her to the school in the fall, signified his acquiescence and implicit approval of the daughter\u2019s decision. (Supra, at 757.)"], "id": "ffa22844-5df6-4442-894f-c8b3c025ec4c", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It appears that there are other issues raised by the objections filed to the account herein which require determination. Included within them is the claim of the executors of the estate of the first wife to a balance due and owing which became payable to her under the prior to the death of the testator. As to this amount, when established, her estate is a true creditor of the estate. If the parties can agree upon the exact sum to which she is entitled, they may file a stipulation fixing the amount in order to avoid the necessity of taking testimony thereon. If they cannot agree between themselves as to the amount due, the surrogate will determine that issue upon the hearing of the remaining issues raised by the objections. A hearing upon such issues has been set for the 18th day of July, 1940, at ten-thirty a. m."], "id": "ed2b8dc2-db83-43e9-a064-521dcab78022", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*381It is settled law that a between husband and wife may be terminated upon resumption of the marriage relation (Zimtbaum v. Zimtbaum, 246 App. Div. 778, affd. 272 N. Y. 416; Matter of Landon, 149 Misc. 832). It is also true that the law does not favor separation of husband and wife and encourages reconciliation (Schoonmaker v. Crounse, 18 N. Y. S. 2d 853). However, cohabitation between the parties of itself is insufficient to vitiate the separation agreement. A separation agreement is not terminated because the parties have engaged in sexual acts, unless the circumstances support the inference that a normal family life has been resumed. The proof must show that the cohabitation and reconciliation concurred with the intent to abandon the agreement (Dubin v. Dubin, 174 Misc. 952; Blumenthal v. Blumenthal, 194 Misc. 322; Hughes v. Cuming, 36 App. Div. 302, revd. on other grounds 165 N. Y. 81). In the last-cited case, the court said (p. 308): \u2018 \u2018 The \u2018 cohabitation \u2019 spoken of in the decisions as destructive of the separation agreement means something more than mere sexual intercourse * * * \u2018 to effect this end, the reconciliation must be permanent, and be followed by cohabitation. It must be a reconciliation which restores the former relations of the parties.\u2019 * * * Nor could either of them have intended to affect the separation agreement by such intercourse as they had, for the husband continued to make payments under the contract for a long time thereafter.\u201d It is noteworthy that the payments under the separation agreement have continued up to the time of the making of this motion and same were accepted by the plaintiff."], "id": "15f4948d-908b-4f8c-98a2-752ad629acaf", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The issues upon the complaint and the answer insofar as defendant urges violation by the plaintiff otherwise of the provisions of the are not ready for disposition. This is so hy reason of plaintiff\u2019s failure to meet the issues except by the assertion that the defendant appears presently to he precluded for failure to serve a bill of particulars."], "id": "72fc9cc2-de55-458c-a815-2194d5479006", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["This was introduced into evidence. After the usual recitals, it provides in stereotyped form that the parties shall live separately and that neither shall molest the other. It stipulated, however, that \u201c nothing herein contained shall be construed to prevent the first party [the husband] from bringing any action he may be advised to bring with reference to any claim he may allege to have to any property owned by the second party [the wife] and this agreement is without prejudice to any such action.\u201d"], "id": "9e7ba979-26d7-43b4-88e4-de8ed5e7b252", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Even if the agreement could be construed as a guarantee of payment of the $12,000 a year, the court would be required to look to the primary obligation of the son under the . The separation agreement provides that it shall be construed and governed by New York law. A man\u2019s obligation to pay alimony under an agreement or a decree of divorce does not extend beyond the husband\u2019s death unless the parties specifically agreed that an allowance should be made to the wife beyond the husband\u2019s lifetime. (Wilson v. Hinman, 182 N. Y. 408.) In the cited case the court said (p. 414): \u201c The security required might not be in the shape of a lien on any specific property, but merely the personal obligation of sureties. In that case it would *928hardly be contended that the obligation of the sureties would extend beyond that of their principal.\u201d"], "id": "1e6d18b9-2641-497f-b04c-7062e18ddaef", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["\u25a0The rationale of the authorities cited by defendant is that a person may not plead or prove his cause on the proscribed provision, nor seek the aid of the court in furthering or establishing and benefiting from his illegal purpose. For the purposes of this motion, the court will consider the as one that was solicited to attain wife\u2019s- goal of settling her .separation action, obtaining support for her children, an equitable division of marital property and a right to live separate and apart from husband without fear of molestation or interference. Wife and children would not hesitate to enforce the beneficial provisions of the agreement enuring to them. It is indeed an anomalous situation where an over-all agreement, not malum in se, may be declared valid by the court in all respects other than the provision of nonsupport and then declare the agreement not to be a separation agreement for use as a \u201c formal document \u2019 \u2019 upon which a divorce action may be predicated. In effect the court would be assessing a double penalty against husband for being a party to an agreement exacted by wife. To dismiss plaintiff\u2019s complaint is to broadly declare as a matter of law that wife, and wife alone, may benefit from a separation agreement containing one void provision. The husband may only be the victim, barred from enforcing the unrelated rights that can accord with statute to terminate a dead marriage."], "id": "183ef418-cd6f-4b19-b160-e0826938c261", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It is conceded that prior to the commencement of this separation action and on the 1st day of November, 1955, a written was entered into, a copy of which is annexed to the answer herein. It further appears that the defendant has been making the payments under said separation agreement and there is no claim of default. However, the plaintiff contends that on various occasions after the execution of the separation agreement the parties lived together as husband and wife and argues therefrom that the separation agreement came to an end. On the other hand, the defendant insists that at no time did he live with plaintiff as husband and wife following the separation agreement and that the separation agreement is still in force and effect."], "id": "220d5656-5cc6-42d0-89fc-67213a19be23", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The appeal is sustained. I hold that the was a valid obligation enforcible against the husband in his lifetime and against bis estate after his death. (Barnes v. Klug, 129 App. Div. 192; Matter of Golding, 127 Misc. 821; Wilson v. Hinman, *389182 N. Y. 408; Matter of Hoffman, 108 Misc. 612.) The obligation to pay the annual amount during the lifetime of the former wife was stated in the agreement to be binding upon the husband and his legal representatives. As an enforcible obligation against his estate^ it was as much a proper deduction from the gross estate as any other valid debt owed by him at the time of bis death. There is no claim here that the agreement was not contracted \u201c bona fide.\u201d The provisions of the agreement for the setting up of a trust fund in the lifetime of the husband, or by a trust in his will, were permissive only, and did not alter or defeat the nature of his liability, or that of Ms estate, to pay the annuity. These provisions were privileges accorded to Mm. By the terms of the agreement, wMch permitted the testamentary trust, security was afforded to Ms former wife and Ms estate was relieved from the necessity of impounding a fund sufficient to pay the annuity for her life. Thus the rights of the beneficiaries in the estate could be more easily and promptly established after death."], "id": "23310bd9-b445-4efb-bae7-6455702e3b38", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Examining the facts in the present case in light of these decisions and in light of the definitions of \u201cdwelling place\u201d and \u201cusual place of abode\u201d one can only conclude that the defendant did not reside, sojourn or abide at his former residence at the time service was made, and that his former residence was not his actual \"dwelling place\u201d or \"usual place of abode\u201d at that time. The undisputed facts presented in the affidavits established that at the time of service the defendant was stationed in Korea; that the parties had been separated and divorced for over two years prior to the date of service; that the defendant had not returned to his former residence; that the husband was required to own the property at 88 Hawthorne Road, San Remo, New York, pursuant to the until the wife remarried or the children reached the age of 21; and that the defendant subsequently remarried and established a residence elsewhere. It is evident that when the defendant left his former residence that he intended it to be permanent."], "id": "e891bf7f-0c64-422c-9c6e-20ef8336c964", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In opposition to the motion, the defendant, pro se, indicates that she is willing to sell the house, however, she had \u201ccertain concerns\u201d regarding the balance of the mortgage and equity in the house at present; who bore responsibility for repayment of any loans required to pay for mortgage, equity, and property taxes; whether there was proof that the plaintiff paid the mortgage after the was signed; her desire not to give up loss of inheritance or pension rights; the fact that mortgage payments were three months in arrears. As an \u201cExhibit\u201d to her motion, defendant asserts that she \u201cagreed to $449,000 [as a sale price for the house],\u201d but not to reducing the price by $5,000 per month and not to the amount which has been offered to buy the house ($375,000). No defects were raised by the plaintiff with respect to the defendant\u2019s affidavit."], "id": "6182b7cb-11ee-43fa-9339-87542e4aa398", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["As to plaintiff\u2019s causes of action alleging a breach of the warranty provision, it is clear that plaintiff\u2019s action is untimely. The at issue is a contract under New York law. (See, Borax v Borax, 4 NY2d 113 [1958]; see also, Schmitt v Schmitt, 123 AD2d 617 [2d Dept 1986], lv dismissed 69 NY2d 1038 [1987].) Whether plaintiff\u2019s causes of action under counts 1 and 5 are viewed as alleging a breach of that contract in general, or a breach of the warranty provision in particular, CPLR 213 (2) requires that this action have been commenced within six years after the cause of action accrued. As to these claims, the cause of action accrued on March 25, 1982, when the parties executed the separation agreement. Since plaintiff did not institute this action until June 1993, counts 1 and 5 are time barred. (See, Schmitt v Schmitt, supra.)"], "id": "3262dbce-18ef-474a-b9c0-251a5019b040", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*1020Although the Court of Appe\u00e1ls has said that by such an agreement the husband does not recognize, and join with his wife in measuring, his persisting liability to her, and that in lump sum agreements the husband allegedly buys his release for a price, it nevertheless has not laid down any definitive rdle as to the validity of lump sum separation agreements. (2 Foster-Freed, Law and The Family, \u00a7 28:18, p 406; Jackson v Jackson, 290 NY 512.) Nevertheless, it has been specifically held that a lump-sum payment provision in a by which a husband attempts to purchase exemption from his continuing duty or attempts to purchase a release from his continuing obligation to support his wife, is void even though the sum be adequate (General Obligations Law, \u00a7 5-311 [formerly Domestic Relations Law, \u00a7 5]; Van Dyke v Van Dyke, 278 App Div 446; Goldman v Goldman, 282 NY 296; Kyff v Kyff, 286 NY 71; Jacobson v Jacobson, 140 NYS2d 917); for in order that such agreements be upheld and not deemed \"void\u201d they must call for \" 'regular substantial, periodic payments\u2019 \u201d representing a mutual admeasurement in dollars of the husband\u2019s continuing obligation to support his wife (Haas v Haas, 298 NY 69, 72; Henderson v Henderson, 47 AD2d 801; Van Dyke v Van Dyke, supra, p 449; Nusbaum v Nusbaum, 280 App Div 315; Moat v Moat, 27 AD2d 895). \"They will not be countenanced if they constitute an attempt to release the husband from such obligation. (Jackson v. Jackson, 290 NY 512, 516.)\u201d (Van Dyke v Van Dyke, supra, p 449; General Obligations Law, \u00a7 5-311.) The theory of lump sum settlement has been extended also to a lump-sum payment plus weekly payments which are to continue for only a limited period of time. (22 NYCRR 699.9 [f] [4].) Rule 699.9 (f) (4) of the Supreme Court, Appellate Division, Second Department, provides:"], "id": "33737aa1-5b7d-46b2-a5ca-e76a018f4da3", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In another portion of the same affidavit, the decedent herein used the following language: \u201cThe plaintiff\u2019s statement in paragraph \u2018 10 \u2019 that the provides for the monthly payment to her for her lifetime is true. It is not true, however, that the payments will cease when I die. There is no such provision in the separation agreement.\u201d"], "id": "4097d6be-6d04-4a56-abf4-a5933d525790", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["On April 14, 1981 Christine P. Foundas, the decedent, entered into a with John, her husband. Among other things this agreement provided that the wife would have custody of the children with visitation *974rights to the husband. Various provisions were included for the support of the children during minority and for the wife until her death or remarriage. Further the parties agreed that the husband would deliver a deed to the wife conveying all his right, title and interest to a parcel of land in Saugerties, New York, on which was situated a one-family dwelling. The separation agreement also contained two paragraphs purporting to be releases found in paragraphs \u201c3\u201d and \u201c4\u201d. Because of their importance in this proceeding, paragraphs \u201c3\u201d and \u201c4\u201d are set forth here at length:"], "id": "78eb4b61-4f4b-4d40-86be-f4830e80979d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Thereafter, in Hurley v Johnson (4 Misc 3d 616 [2004]), the trial court determined that a , which had not been acknowledged in proper form as of the time plaintiff sought a so-called \u201cconversion divorce,\u201d was enforceable since \u201cacknowledgments . . . were [subsequently] added to the separation agreement ... in connection with plaintiffs reapplication for divorce\u201d and such acknowledgments complied with the requirements of Domestic Relations Law \u00a7 236 (B) (3) (id. at 617)."], "id": "33ecc368-ba9c-43b1-95fc-04743d00668c", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Under the the testator covenanted and agreed to pay to his then wife the sum of $5,000 per year during his or her life and he also agreed to pay certain other debts amounting to approximately $1,300, and further that he would make a valid will bequeathing to his wife \u201c after the payment of his debts and funeral and testamentary expenses one-third of his estate, real and personal.\u201d He further agreed that he would make no gift of any of his property in anticipation of death and in case of default specific performance might be enforced."], "id": "622134be-15e8-4e21-93d1-5f3a0176ef5b", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Before taking up the other issues there are a few matters upon which I think a word or two .should be said. I now have before me (it had not been presented to me until after my decision) the Meredith (Jan. 3, 1955) which immediately preceded the proceedings in Juarez. For its bearing upon the question of 1 \u2018 divorce by agreement \u201d \u2014 by submission to a foreign jurisdiction which asks no more than such submission \u2014 I note that the agreement, after the usual provisions, including the one that its terms may be incorporated in a divorce decree recites that if there is no divorce by December 31, 1955 \u201c the agreement shall cease to be binding upon either of the parties for any purpose \u201d."], "id": "471a1f30-23e1-4080-a9f4-3944dd8dd360", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["\u201cA husband and wife, in entering into a , may include in that agreement provisions pertaining to the support of the children of their marriage.\u201d (Matter of Boden v Boden, 42 NY2d 210, 212; emphasis added.) The absence of a support provision in a separation agreement or in the divorce decree in which the agreement is incorporated does not \u201celiminate *** either parent\u2019s duty to support a child of the marriage * * * In the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.\u201d (Family Ct Act, \u00a7461, subd [a].)"], "id": "445e25da-b41b-4640-8916-a6bc3acaf6c8", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["John P. DiBlasi, J. In Majauskas v Majauskas (61 NY2d 481, 485-486 [1984]), the Court of Appeals announced the rule that \"[v]ested rights in a noncontributory pension plan are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action\u201d. The question to be resolved on these summary judgment motions is whether defendant\u2019s failure to inform plaintiff, prior to their execution of a pre-Majauskas , that his pension rights, whose existence were known to plaintiff, were marital property subject to equitable distribution, constitutes fraud and breach of a warranty of disclosure of assets, which would require the award of damages or rescission of the separation agreement."], "id": "8d4599e9-1e99-4517-b3d8-226a9d891673", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Inasmuch as the judgment herein is neither appealable nor subject to the remedy of \"civil revision\u201d for fraud, the court now turns its attention to the question whether, notwithstanding the immunity of the judgment itself from attack for fraud under Dominican law, the plaintiff would be afforded relief under its laws insofar as fraud may affect the alone."], "id": "3a730a54-867a-4eec-9f4a-0e590c944d5b", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The motion is brought' in conjunction with a matrimonial action now pending in this court wherein the plaintiff seeks a divorce based upon a executed on or about the 8th day of October, 1971, by the plaintiff and the defendant, and filed in the office of the Clerk of Onondaga County on the 21st day of October, 1971. No request for temporary alimony is made."], "id": "f800ed8a-ee66-47dd-8710-7c3b665f25f2", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The prime objective of the was to deal with and dispose of matters of right. There is no apparent intent to limit either\u2019s privilege to give, or the other\u2019s ability to take, as much or as little as either might choose to will to the other. As to the wife, the only language which is susceptible *415of being regarded otherwise in any degree is the last part of above-quoted paragraph 5, ending with the words, \u2018 \u2018 other rights which would otherwise inure to her benefit \u201d. But this expression must be interpreted in relation to the context in which it is found. The obvious over-all intent and purpose of the instrument was and is to provide for unquestionably relieving decedent\u2019s property from dower or any other spousal incumbrance which it, apparently, was supposed might or could impede its free alienability by him as the sole owner during his lifetime, or by his legal representatives, distributees, legatees or devisees upon his death, as to any and all property of which he might die seized or possessed."], "id": "77a9d37c-5e31-45c4-a9cf-cb1af2a44b88", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In brief, it does not appear that the common definition of the term \"college\u201d has changed much since Judge Lehman spoke for the Court of Appeals in 1941. While the Neighborhood Playhouse is no doubt a well-recognized school with a distinguished faculty training its students in the theatre arts, it does not lead to a degree, which appears to be a significant factor in the definitions of the term \"college\u201d. Thus, after much deliberation, this court finds that the Neighborhood Playhouse is not a \"college\u201d as contemplated by the terms of the parties\u2019 ."], "id": "c607c8a4-687f-4faf-be6b-ba8e29118eca", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Admittedly, a search of the County Clerk\u2019s real property title and lien indices would not have disclosed Vita\u2019s interest, though the civil actions index would have included her name and would have led the searcher to the fact that a judgment of divorce had been entered. Further inquiry would have revealed that Vita had the right to sole and exclusive possession of a residence, at Gerald\u2019s expense, until one of the conditions (viz., remarriage) stipulated in the should occur, if ever. Such an interest, obviously, is inconsistent with an unfettered right of ownership, possession and use by Gerald Talandis, the holder of title."], "id": "f27d8e8e-ae39-454c-b0e4-a7b55d997621", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["5. That at the time of the execution of said alleged agreement, Exhibit \u201c A \u201d annexed hereto, and for a considerable period prior and subsequent thereto, plaintiff has been ill, nervous and in a rundown condition, (and her health has been impaired by reason of the continued cruel and inhuman behavior of the defendant, as previously stated,) and she was unable to judge wisely or prudently in relation to her affairs, or to comprehend and understand the full import of said alleged , and was readily susceptible to persuasion in respect to acceptance of the terms thereof. 6. That for many years prior to December 19, 1957, and up to and including that date and thereafter, the defendant has continuously concealed the sources and extent of his income and capital assets from the plaintiff; that up to the time of the\u2022 execution of said alleged agreement, Exhibit \u201cA\u201d annexed hereto, defendant has refused to reveal to plaintiff the source and extent of his income and capital; that at the time of the execution of said alleged agreement, Exhibit \u201cA\u201d hereto annexed, defendant still refused to reveal said information to plaintiff ; that on December 19, 1957, at the persuasions of her then attorney, Nathan Shapiro, the attorney for the defendant, and the defendant, and because of her ill health and nervous condition, as aforesaid, the plaintiff executed said alleged agreement, Exhibit \u201cA\u201d hereto annexed, without full or proper knowledge and information with respect to defendant\u2019s true financial condition. *7167. That subsequent to the execution of said alleged agreement, Exhibit \u201c A \u201d hereto annexed, defendant has continuously refused to disclose any information whatsoever with respect to the sources and extent of his income and capital assets to plaintiff, and although plaintiff has duly demanded that her former attorney, Nathan Shapiro, deliver to her all papers and memoranda in connection with her affairs with the defendant, such demands have been refused by the said Nathan Shapiro. 8. That upon information and belief, at the time said alleged agreement, Exhibit \u201cA\u201d annexed hereto, was executed, defendant was a man of substantial means, worth in excess of three and one-half million dollars, which fact plaintiff recently discovered, and was in ignorance of at the time of the execution of said Exhibit \u201cA\u201d. 9. That upon information and belief, the defendant is employed by various corporations, which he owns and controls, and owns various partnership interests; that subsequent to the execution and acknowledgment of said alleged agreement, Exhibit \u201c A \u201d hereto annexed, plaintiff has been advised that defendant receives a salary and other forms of remuneration and emolument therefrom well in excess of $85,000 per year, and that his present personal net worth is in excess of four million dollars. 10. That the provisions of said alleged agreement, Exhibit \u201cA\u201d annexed hereto, were and are unjust, inequitable and unconscionable, and the allowance therein provided is grossly inadequate to provide plaintiff with the comforts and necessities of life, to which she is entitled by reason of defendant\u2019s station in life, and the manner and style in which she and the defendant lived as husband and wife for many years. 11. That said alleged agreement, Exhibit \u201c A \u201d annexed hereto, is invalid, in that the defendant failed to disclose to the plaintiff the source and amount of his income and the extent of his capital assets at or prior to the time said alleged separation agreement was executed; that had plaintiff knowledge of defendant\u2019s true income and capital, as aforestated, the plaintiff would not have executed and acknowledged Exhibit \u201cA\u201d. In Hunter v. Hunter (10 A D 2d 291) decided by the Appellate Division, First Department, on April 12, 1960, the court stated (p. 292): \u201c Notable in this case is that the plaintiff wife does not disclaim sufficient knowledge of the husband\u2019s assets and income before the separation\u201d and further (p. 293): \u2018 \u2018 Indeed, the record in this case contains no flat assertion by either party as to the husband\u2019s aggregate income before or after the separation.\u201d And further (p. 294): \u201c Nevertheless, despite the cautious view with regard to granting examinations before trial in matrimonial actions, the courts have not hesitated to allow an examination if it will primarily serve a legitimate purpose. One such purpose would be to provide a wife with the necessary information to establish the pre-separation standard of living, the adequacy of such standard, or the present ability of the husband to maintain the appropriate standard, provided there is a showing that because of her ignorance of the facts or for other reasons it is desirable that she elicit such information before trial. Examinations with respect to these matters are permitted only because, substantively, they are *717relevant to the amount of the ultimate award to which the wife may be entitled.\u201d"], "id": "c51382af-6563-4a23-9b99-9ab1da4c07f1", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Michael (\"Mike\") and Margaret (\"Missy\") were divorced on May 5, 2014. Prior to the decree of dissolution being entered, Mike and Missy had negotiated and executed a , which divided the parties' many assets. A mediated agreement, which was incorporated into the separation agreement, indicated that Missy would retain the real property located at 535, 540 and 561 E. Second Street in Lexington, Kentucky (the \"Fleetwood Garage\"), which had a stated fair market value of $1.585 million. The agreement further provided that \"[u]nless otherwise noted herein, everything located in the Fleetwood [G]arage\" would go to Mike. Items specifically excluded were certain vehicles and furniture from the parties' marital residence that were being stored in the Fleetwood Garage. Per the terms of the separation agreement, Mike leased the Fleetwood Garage from Missy through November 2014. Among the items Mike *313took with him when vacating the Fleetwood Garage was a free-standing canopy bar (the \"Bar\")."], "id": "89d11ab5-5fdd-45c9-ac96-afed93e9f498", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*603(1) The trust for the testator\u2019s son, Donald Bloomingdale, designated in the will as Trust \u201c B,\u201d is entitled to priority over the provisions for the benefit of the testator\u2019s divorced wife, Rosalie Banner Bloomingdale, and his widow, Geanne Hughes Bloomingdale. The provisions for Donald were in performance of the terms of the entered into between the testator and Rosalie Banner Bloomingdale. So far as Donald is concerned, that agreement is valid and enforcible in his favor. Irrespective of the provisions for the other beneficiaries in the will and codicil, the obligation to bequeath $2,000,000 in trust for Donald is separate and apart from the provisions made by the testator for the benefit of Rosalie Banner Bloomingdale, and must first be given full force and effect."], "id": "58507cb4-8462-4cd3-8024-056178f62eab", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The court can, however, direct the wife to sign a that tracks the agreement reached by the parties in open court. In light of the fact that the wife expressly agreed to enter into and sign a separation agreement that encompassed the settlement reached, the signing of such agreement is a ministerial act and a mere formality. (See Rubenfeld v Rubenfeld, 279 AD2d at 153 [affirming trial court\u2019s order, in accord with an open court stipulation of settlement, compelling the wife to execute documents necessary to effectuate the separation of the marital property]; see also Vider v Vider, 46 AD3d 673 [2d Dept 2007] [lower court properly directed the plaintiff to execute certain deeds based on oral stipulation of settlement placed on the record]; Erdogan v Simone, 69 AD2d 931 [3d Dept 1979] [affirming trial court\u2019s granting of the plaintiff\u2019s motion to compel the defendant to execute an agreement pursuant to a stipulation of settlement].) Thus, the husband is directed to provide the wife with a written separation agreement that encompasses only the terms of the open court stipulation, and no other terms, and the wife is ordered to sign such agreement."], "id": "60e55dc2-a6af-42ae-9ac7-49a662f3dd38", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The motion is opposed by defendant on the ground that the action is based upon a . It is her position that a separation agreement is not an instrument for the payment of money only within the meaning of CPLR 3213 and, hence, the use of the procedural device afforded by that statute is not available to the plaintiff. (Wagner v Cornblum, 36 AD2d 427). Defendant also asserts that she has valid defenses to the action in that she was coerced, through physical force, to sign the December 29, 1973 modification of the separation agreement which provided for a reduced amount of support for herself and her children and added the provision for the sale of the house. She also claimed that if the house is sold she will be unable to provide a home for herself and the children."], "id": "9932ea37-3b0b-4578-b933-604fc5a6895b", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["While it is clear that separation agreements are not binding on the courts with regard to child support in that the courts are not bound by the amount of support agreed to by the parents (Riemer v. Riemer, 31A D 2d 482; Moat v. Moat, 27 A D 2d 895), it does not follow that parties are not bound by such agreement. The law of New York has always been that so long as a support agreement stands unimpeached, the court cannot alter or modify its provisions (Galusha v. Galusha, 116 N. Y. 635). The contractual obligations continue even if incorporated in a matrimonial decree, provided they are not merged therein (Hettich v. Hettich, 304 N. Y. 8, 14). As the court pointed out in Goldman v. Goldman (282 N. Y. 296, 305), \u201c the direction of the court that the defendant shall pay to the plaintiff a sum less than he agreed to pay does not relieve the defendant of any contractual obligation. The direction of the court may be enforced in maimer provided by statute and plaintiff may still resort to the usual remedies for breach of a contractual obligation if there has been such a breach \u201d; and in McMains v. McMains (15 N Y 2d 283, 28A-285) it was held that a u does not prevent a later modification increasing the alimony when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge \u201d, and in that case the court announced as parallel and congruent rules: \u201c first, that support agreements covered into divorce judgments are valid and binding until set aside for ab initio invalidity (Galusha v. Galusha, 116 N. Y. 635; Winter v. Winter, 191 N. Y. 462; Schmelzel v. Schmelzel, 287 N. Y. 21, supra); second, that subsequent decree modifications leave the prior nonmerged support contract still in existence qua contract (Goldman v. Goldman, 282 N. Y. 296, supra, and Holahan v. Holahan, 274 App. Div. 846, affd. 298 N. Y. 798).\u201d (See, also, King v. Schults, 29 N Y 2d 718; Skolnik v. Skolnik, 75 Misc. 2d 805.)"], "id": "117f381f-9b3b-4ec7-b12e-935d2f12d338", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["On the cause of action to set aside the March 25, 1958 , plaintiff fares no better. During the trial the complaint was amended to allege that plaintiff had expended all sums received by her under the separation agreement for necessary support and on the evidence presented, the court so finds. While section 5-311 of the General Obligations Law proscribes a contract \u201c to relieve the husband from his liability to support his wife \u201d, that provision does not necessarily invalidate a contract providing for a lump sum plus periodic payments over a fixed number of years (Rubinfeld v. Rubinfeld, 264 App. Div. 888, app. dsmd. 289 N. Y. 838; Levy v. Dockendorff, 177 App. Div. 249). Here, as in the Rubinfeld case, the \u201c agreement between the parties was valid as measuring the support to be provided by defendant for five years, but in so far as the agreement purported thereafter to exempt him from his duty to provide continuing support for plaintiff, it was invalid \u2019 \u2019. Invalidity of the provision exempting defendant is of no moment, however. Defendant\u2019s obligation prior to the Mexican decree has been carried out, and after that decree was validated by plaintiff\u2019s appearance he had no obligation to support her. Since no useful purpose will be served by declaring invalid the exemption provision of the separation agreement, the court in the exercise of discretion will decline to do so (see Lake v. Lake, 136 App. Div. 47). The foregoing constitutes the decision of the court pursuant to CPLB 4213, subd. (b)."], "id": "8a0223ea-4ff6-4cf6-8d72-2a43ab929cbe", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Mr. Santamar\u00eda argues that New York courts have no power to alter the Mexican decree, which is modifiable, he says, only by Mexican courts according to Mexican law. He asserts that since the parties could not confer this power upon this court by stipulation, the New York order made incorporating the in the Chihuahua Civil Court judgment is void. He suggests that Mrs. Santamar\u00eda can proceed to alter the divorce decree only by way of traveling to Mexico and initiating the proper proceedings there."], "id": "29969c06-c424-4778-9323-1e8a1b1e956d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["We now turn to the family court's finding that KRS 403.250(1) gave it authority to modify the Settlement Agreement despite the presence of non-modification clauses. Under KRS 403.180(1), the parties to a dissolution of marriage action may enter into a written containing provision for maintenance and the disposition of property. Unless the family court finds the separation agreement unconscionable, the agreement's terms shall generally be binding on the parties and the court. KRS 403.180(2). However, KRS 403.250(1) states that \"[e]xcept as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.\" Under KRS 403.180(6), the parties to a dissolution of a marriage \"may expressly preclude or limit modification of terms if the separation agreement so provides.\" By including such a clause in the separation agreement, \"the parties may settle their affairs with a finality beyond the reach of the court's continuing equitable jurisdiction elsewhere provided.\" Brown v. Brown , 796 S.W.2d 5, 8 (Ky. 1990)."], "id": "1eec3fe7-1a82-482f-aad9-16f7662eba2f", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The deceased and his first wife entered into a , wherein he agreed to designate her as the beneficiary of a life insurance policy. He, additionally, agreed to bequeath and devise at least one seventh of his estate to each of two sons of his marriage to the first wife. Decedent also entered into a separation agreement with his second wife, wherein he agreed to maintain a life *1022insurance policy for the benefit of his second wife and another such policy for the benefit of a son of his second marriage. The deceased complied with the terms of both separation agreements. There is no provision in his will with regard to the apportionment of estate taxes."], "id": "fe33a397-c4bc-44cd-a6a2-d5e2414f487c", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It appears that there is no provision in the relieving the wife of her liability imposed by section 101 of the Social Welfare Law, if of sufficient ability, to support her husband, if he is liable to become in need of public assistance. Whether such a provision would be binding on the objectant or would be void or voidable as against public policy (see General Obligations Law, \u00a7 5-311 [formerly Domestic Relations Law, \u00a7 51]), is not before the court."], "id": "a16dcb7a-1446-41e1-8969-6f47a8422a5a", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Perhaps the defendant would be correct if the issue in this case were the periodic support payments set forth in paragraph 9 of the . However, that is not the situation. The separation agreement at bar establishes two types of payments. Paragraph 9 provides for periodical support to the wife which obligation continues until each child attains the age of 21, becomes sooner self-supporting or marries or completes a college education."], "id": "c0bd8cbd-6bc5-435c-b202-9e48d0ff6197", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Matter of Baratta (199 Misc. 246, affd. 279 App. Div. 992) concerned a which did not expressly specify that payments by the husband were to continue during the wife\u2019s life and in fact the agreement was silent as to the duration of the payments. So also the agreement considered in Lepsch v. Lepsch (275 App. Div. 412) failed to evidence any intention to continue payments after the husband\u2019s death. This lack of a clear contractual provision also controlled the decisions in other cases relied upon by the executor herein."], "id": "60f458aa-4a5f-4df8-bfe4-fdb6562a1929", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["If the testator had obligated himself to leave his wife half of his net estate, the agreement would have been enforcible. (Matter of Bloomingdale, 278 N. Y. 435.) He did not do so. He made his will after the divorce and on December 5, 1940. The dispositions contained in it were based upon a justified belief in his mind that his former wife had no legal right to disturb them. The fact that she moved to alter the separation *945agreement only after Ms death is indicative of the inequities inherent in her present demands. The interests of the wife in the negotiations and consummation of the were protected by independent attorney chosen by her.The respondent is bound by the terms of her agreement and charged with knowledge of its effect. (Pimpinello v. Swift & Co., 253 N. Y. 159; Matter of Moore, 165 Misc. 683, affd. 254 App. Div. 856, affd. 280 N. Y. 733.) The agreement cannot be rewritten by the court to cure a disappointment or a discovery arising subsequently that the testator left a very large estate. The respondent suffered under no mistake of law in obtaining a divorce. In the light of history it might appear to her to be a mistake of judgment on her part. She took a handsome money settlement from her husband. She procured her own freedom and deliberately chose to forfeit all her rights by the dissolution of the marriage in Nevada. No right of election whatsoever exists in her favor and she has no interest in this estate."], "id": "0bad8c85-e3f7-426a-95d5-40dad718e57c", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*571In the second the following paragraph appeared: \u201c 5. Within thirty (30) days after the execution of this agreement, the husband shall effect life insurance covering his life in the principal amount of not less than Ten Thousand Dollars ($10,000.00) for the benefit of the children and shall within ninety (90) days after the execution of this agreement effect additional life insurance covering his life in an additional amount of not less than Ten Thousand Dollars ($10,000.00) for the benefit of the children, and shall at all times keep such insurance in full force and effect, so long as each child shall live, and shall pay all dues, premiums and assessments thereon, and each year transmit to the wife receipts showing that such dues, premiums and assessments have been paid. The husband shall not borrow against the insurance, nor shall he in any manner pledge or encumber the same.\u201d"], "id": "00762e82-54d6-486b-b0f0-fc53abbe1e9a", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["And that phase is here intensified by the failure of \u201c Albert\u2019s \u201d mother\u2019s second marriage. Unfortunately for him, this proceeding has revived the tensions which led to the original divorce and made him the victim of the resultant renewed hostility between the parents. Thus, although the provisions incorporated in the Florida decree contemplated that the child might reside in Florida and become available for visitation in New York State only during the summer months, respondent attempts to justify his inexcusably stopping in June, 1953, even the $25 weekly payments on the asserted ground that \u201c Albert \u201d shows no respect or affection for him and that therefore he refuses to make any further payments for what he callously characterized as a \u201c dead horse \u201d."], "id": "8dd9b0ed-c2af-4140-a0be-f5f6be190943", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The fact that the checks accepted and cashed by the plaintiff Millicent Magrill embraced support provided by a which was later approved and ratified in a decree of divorce rendered on the appearance of both parties did not prevent waiver of such support when there is no law preventing it. (Rehill v. Rehill, 281 App. Div. 855, revd. on other grounds 306 N. Y. 126.) Payments for the support of a child, though required to be made by agreement and judgment, may likewise be waived. (Axelrad v. Axelrad, 285 App. Div. 903, affd. 309 N. Y. 687.) Waiver, however, is \u201cthe intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.\u201d (Werking v. Amity Estates, 2 N Y 2d 43, 52; Cutler-Hammer Inc. v. Troy, 283 App. Div. 123, 125.) In addition, under paragraph \u201c eighteenth \u201d of the separation agreement set forth above, the waiver of the amount of any particular weekly installment by the acceptance and retention of a check for less than the aggregate amount called for by the agreement did not terminate it eo instante with respect to future support in the full amount therein provided. It has been held, moreover, that in the absence of an action to set aside a separation agreement it must stand unless repudiated by both parties. (Galusha v. Galusha, 116 N. Y. 635; Gavellier v. Gavellier, 4 A D 2d 600; Spade v. Spade, 6 Mise 2d 170; O\u2019Hara v. O\u2019Hara, 68 N. Y. S. 2d 649.) It follows, that accord and satisfaction if found to be any defense within the principles above set forth was only a partial defense as to the weekly installments of support represented by the checks that had been accepted and cashed. (Civ. Prac. Act, \u00a7 262; Rehill v. Rehill, 306 N. Y. 126, 133.)"], "id": "f8abf61a-0f51-43ab-9275-001309e38102", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*68Decedent was survived by his said wife and daughter who are the only parties concerned with this proceeding. It appears that they concur in the view that the provisions of the and payments made by the husband under the agreement are inconsistent with the provisions of the-will for -the benefit of the wife, and as to such provisions, it was the intent and effect of the agreement .to nullify and revoke the will. (Titus v. Bassi, 182 App. Div. 387.) The wife has in fact executed an assignment and release in favor of the daughter for all her rights in the estate under decedent\u2019s will including-any of decedent\u2019s property, real or personal."], "id": "b198e597-251d-41cc-b424-5aa82faab9c2", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The antenuptial agreement in this case is not complex. The only mention of the marriage is in the recital quoted above which referred to the testator\u2019s then incapacity to contract a new marriage. The petitioner waived any right to share in the estate *929or to elect to take against the will of the testator dated January 26, 1965 (or any other will), and in consideration of that promise the testator agreed that he would not make any testamentary provision that would adversely modify the provision which had been made for her in that will or that if he should revoke that will, he would execute a new will which would contain a substantially similar provision for her. That will (which has now been admitted to probate) gives her the income from 50% of the residuary estate (later increased by codicil to 55%). The only provisions in the will which encroach upon the residuary estate are one for his former wife which carries out the terms of the of 1953 and a general legacy to a friend in the sum of $100,000. The petitioner\u2019s legacy refers to her merely as a friend (the will having antedated the marriage by some months) but the codicil reflects her status as wife. Petitioner thus had interests under the will which were not dependent upon her marriage to the testator. Nothing in the antenuptial agreement bound the testator to procure a divorce. Nothing bound either party to marry the other. The agreement did not have a direct tendency to destroy the testator\u2019s then subsisting marriage, and the court holds that the agreement is not invalid as one directly tending to alter or dissolve the marriage."], "id": "0fef516d-8d81-46cd-a314-5472b275c9bd", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The court finds that the clear and unambiguous language of the parties\u2019 dated June 12, 1979 evinces the parties\u2019 intent that the provisions of the agreement relating to alimony were to be set forth in any subsequent judgment of divorce so as to create a judicial mandate with reference thereto. (See, Jensen v Jensen, 110 AD2d 679.) Amendment of a proposed judgment of divorce to include decretal provisions setting forth, at length, the terms and conditions of a stipulation or agreement, not set forth in the *488original judgment is appropriate where such amendment will effectuate the original intent of the parties. (Filippini v Filippini, supra; Cohn v Cohn, 100 AD2d 528.)"], "id": "67004c79-7f68-420d-b5a2-2986b3c68092", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["On June 8, 1966, decedent and his wife, Harriet H. Haley entered into a written , in and by the terms of which each party waived and relinquished their rights, under law, to share in the estate of the other, to elect against the last will and testament of the other, but not to waive any voluntary testamentary provision which might be made in his or her favor by the other."], "id": "a6256186-e1a8-4511-9120-253b74fabbec", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["First, he consulted a physician regarding possible reversal of his vasectomy and, when the doctor told him that his wife should see her doctor about other avenues to having a child, he reported that to his wife. (Record at 199.) Second, after plaintiff saw her doctor and presented the \u201cFrozen Donor Semen Specimen Agreement\u201d he signed it. (Law guardian mem, exhibit 2; record at 135-136.) He claims he signed under duress (record at 104), but nevertheless admits that he read the agreement before signing it. (Record at 134.) Third, he also signed the portion of the agreement for payment by credit card and he paid the bills out of their joint checking account. (Law guardian mem, exhibit 2; record at 78-79.) Fourth, after the agreement was returned he knew his wife was reviewing catalogs with donor characteristics and that she picked a donor with characteristics similar to his. (Record at 70-71, 154, 195-196.) Fifth, he knew when she went to the doctor\u2019s appointment to have the insemination performed (record at 140, 200-202) and he did not tell her not to do it. (Record at 201, 207.) He took care of the other two children while she was at the doctor. (Record at 205.) Sixth, after the insemination was performed, despite his objections, he continued to live with his wife and to sleep with her. (Record at 140-142.) Seventh, he read and signed the that included the provision stating that Alyssa \u201cwas conceived through a mutually agreed upon course of artificial insemination.\u201d (Record at 166.) He was asked at least four times about whether there was a mutual agreement to the insemination and each time he evaded a direct answer to the question. (Record at 106, 139, 166-167, 180-181.) Lastly, after plaintiff became pregnant while they were living together and before they separated, he admitted on cross-examination that he assumed he would take the role of father and never told plaintiff he would not support the unborn child. (Record at 74, 176, 180.)"], "id": "2018b7c0-07b1-4559-aa7b-be0fd566ad5e", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It is to be noted that in answer to the complaint for a (conversion) divorce the defendant herein has merely interposed denials, but not an unequivocal denial of the alleged having been executed by her; nor has defendant interposed any affirmative defense asserting the rescission or repudiation by her of said agreement even though she denies plaintiff\u2019s \"substantial performance\u201d thereof. Likewise, defendant does not affirmatively seek to have the agreement declared rescinded or invalidated for any reason."], "id": "245fcf79-74b2-4535-95de-2f493bb89d6e", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In the case at bar, defendant has asserted that he has been forced to retire due to ongoing emotional problems necessitating ongoing psychological treatment. Further, this early retirement has resulted in a massive change in his financial circumstances, wherein previously he was grossing approximately $1,051.25 biweekly, and subsequent thereto is grossing only $450 biweekly. Additionally, pursuant to the divorce decree and , the plaintiff is presently paying $75 per week for the support of the infant issue of the marriage, which he contends he is unable to pay due to his greatly changed financial circumstances. In this regard, the financial affidavit of defendant shows that his present expenses are approximately $1,032 per month, while his income is only $967.50 per month. *58No information is provided the court as to plaintiff\u2019s financial circumstances, or her ability to afford a readjustment of the support obligations of their child, or as to what are the support needs of this child. An unforeseen change of circumstances, a concurrent showing of need, and the financial capacity of each parent to contribute to the support of the child are necessary elements in considering defendant\u2019s request to modify the defendant\u2019s present child support responsibilities (Goldman v Goldman, 69 AD2d 758, 759 [1st Dept 1979]). Therefore, this matter must be referred to Trial Term for a hearing on defendant\u2019s request for a modification of his child support obligations set forth in his judgment of divorce and separation agreement."], "id": "a188bb6d-e68a-4c98-93db-92d644c386c0", "sub_label": "US_Terminology"} {"obj_label": "Separation Agreement", "legal_topic": "Family Law", "masked_sentences": ["We affirm the Oldham Family Court's May 25, 2016 and June 9, 2016 orders denying Clyde's motions to set aside the as unconscionable. We reverse the family court's August 19, 2016 order denying his motion to modify the maintenance provision upon Melissa's cohabitation and denying Clyde's request to deduct any maintenance paid for tax purposes. On these issues we remand for further proceedings as discussed above."], "id": "533b2e0f-9434-47f3-a53f-c887bb6c4886", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In most instances the marriage contract is deemed to be of very serious import by the parties to it. In some instances separation agreements are entered into without due and deliberate consideration. But the law and the instrumentalities for its administration instituted amongst us for the purpose of preserving to all of us our right to even-handed justice and the preservation of those institutions which the law and social usage and civilization have developed, must of necessity give the between husband and wife weight, force, validity and enforcibility."], "id": "f131bf11-5760-4fd5-b258-b37b6ae8b2d2", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In March 1993, plaintiff commenced this action for divorce; defendant apparently answered and asserted a counterclaim for plaintiff\u2019s alleged breach of the . Plaintiff thereafter moved to, inter alia, strike defendant\u2019s counterclaim. Supreme Court granted plaintiff\u2019s motion in this regard, finding that the January 29, 1993 letter from defendant\u2019s attorney constituted a rejection and counteroffer. This appeal by defendant followed."], "id": "f8682be4-2d6e-446d-b3e2-df4531bc8116", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Paragraph \u201c3\u201d of the stated above is found here to be but a general release only. EPTL 3-4.3 provides: \u201cA conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it.\u201d"], "id": "ba73e8fd-e745-4e13-935f-77e5da865625", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In Rosenthal v. Rosenthal (230 App. Div. 483) the First Department in 1930 likewise followed the cases set forth above. This action was by a wife to set aside and cancel a , and the plaintiff sought an examination with reference to the husband\u2019s financial condition during the year the agreement was made and up to the time of trial, in order that she might ascertain the financial condition of the husband and obtain support in keeping therewith. The court said (p. 485) : \u201c In Harding v. Harding (203 App. Div. 721), which was after-wards affirmed by the Court of Appeals (236 N. Y. 514), the court held that a wife who has brought an action to set aside *714a separation agreement on the ground that the lump sum which her husband paid to her was inadequate, inequitable and unjust, and that the contract was improvidently made by her, is entitled to examine her husband before trial as to his present financial condition, and should not be limited to an examination of his financial condition at the time the agreement was made, and that a husband\u2019s obligation to support his wife exists notwithstanding any separation agreement or any payment made thereunder to his wife.\u201d"], "id": "2b847a71-b8bf-414c-9b09-b3eabaafeedf", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In the leading case,of a downward modification because of the divorced husband\u2019s decreased income since the divorce, the court indicated its assumption that the decreed amount, while incorporated from a , had been commensurate with the husband\u2019s actual income at the time of the decree. (Goldman v Goldman, 282 NY 296, 299.) Nor does there appear to be any case of reference to a year\u2019s income as the base circumstance where, as here, the decreed alimony clearly was not fixed in relation to respondent\u2019s income for that year."], "id": "f9bac873-e34b-49e3-b728-d42ca5aa0e28", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["However, where a valid agreement is incorporated into a decree but is not merged therein, the power of the court becomes limited and the burden of showing on the party seeking the change is correspondingly greater. In McMains v. McMains (15 N Y 2d 283) where a valid whose terms were incorporated into a divorce decree but which survived the decree, it was held that a wife who sought an increase of support had the burden of showing that she would be unable to support herself on the amount allowed and would be in danger of becoming a public charge. Where sufficient need appears oh either side such a decree may be modified, without a discussion of the remaining effects of the agreements."], "id": "e2581e5d-16e2-4420-8bbc-328b0fcbaeb6", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*185The relator first married the respondent on December 21, 1947, when she was 16 years of age. Stephen was born on March 16,1949. On November 13, 1950 the parties entered into a , by the terms of which the sole and exclusive custody of Stephen was given to the relator; when the respondent obtained a divorce from the petitioner on February 28, 1951 in Arkansas, the terms of that separation agreement were incorporated in the decree."], "id": "e6fcd3ba-8f91-48c8-bc6c-ab836eb53474", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["If there was a provision in the or in the judgment requiring plaintiff to obtain defendant\u2019s consent as to the choice of the child\u2019s college, then Balk v Rosoff, Halligan v Wesdorp and Collins v Collins would be far more relevant to this case. Because there is no such provision, the cases are of limited applicability. Nevertheless, defendant relies heavily on them, citing the cases for the proposition that the SUNY cap should be applied where the proponent of private education fails to establish that the private college in question provides a superior education to that of a state college. In so doing, however, defendant is expanding the reach of these decisions far *1010beyond their particular facts. What defendant has done is seized upon language in the cases that might appear to support his position that if Syracuse University and SUNY Binghamton are of similar academic caliber then his contribution should be pegged to what it costs to attend Binghamton."], "id": "3553f552-e58d-4ccb-9725-ff4f7b6086a0", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The facts reveal that defendant and Edward Barth were the owners as tenants by the entirety of certain real property *575located in Shirley, New York, having taken title to said property by deed dated September 28, 1971. On or about October 24, 1975, defendant and Edward Barth entered into a written whereby defendant was given the right to exclusive possession of the former marital residence until such time as the youngest child of the marriage becomes emancipated. Edward Barth thereafter filed a petition in bankruptcy and by deed dated June 2, 1977 and recorded on November 16, 1981, Michael F. Friedman as trustee of Edward J. Barth, Jr., bankrupt, transferred the interest of Edward Barth to plaintiff herein. Defendant and Edward Barth were subsequently divorced. The separation agreement, which granted defendant exclusive possession of the marital premises, survived and did not merge in the judgment. Plaintiff commenced this action for partition of the real property in question and now moves for summary judgment on the complaint."], "id": "41d82d2a-14b7-4121-9cc6-eefb0e23d80a", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["As was pointed out in the prior decision, the donee of the power of appointment conditioned her gifts to her grand*460daughter and great-granddaughter upon their releasing her son from his obligations under a by which he had bound himself to provide for their support out of his interest in the estate of the testator. The granddaughter and the general guardian of the infant great-granddaughter of the donee have indicated their intention of perfecting the legacies upon the terms prescribed. It is the position of certain of the assignees-of the life tenant\u2019s son that the bequests to the appointees are liable for the payment of their assignments to the extent that the property which the son will receive under the appointment is insufficient to satisfy them. The position of the assignees in this connection is wholly without foundation or merit. Neither by implication nor purpose was the mother of their assignor a party to her son\u2019s assignments nor was she under any obligation to assume his obligations or to compel her appointees to do so as the assignees suggest. The court accordingly holds that neither of the other appointees is under any obligation to contribute to the fund required for the satisfaction of the assignments and that these are payable to the extent the property per-' mits solely from that part of the principal passing to the assignor under the will of the testator and the exercise of the power by his mother."], "id": "8f87fb49-205b-4a4d-8030-b0ec69796c58", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In this case the Appellate Division affirmed the judgment of the trial court which had approved the Surrogate\u2019s determination that :\u201cA careful reading of the fails to disclose an intent to revoke the will. No reference whatever is made to the testamentary instrument throughout the whole document, nor is there any language in the same susceptible of being understood as a revocation of the will offered for probate. \u2019 \u2019"], "id": "8adc6675-aa4d-4e62-8043-be9a05bb9ab2", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Michael\u2019s main contention is that Supreme Court erred in confirming that part of the Referee\u2019s report awarding $6,604.03 of surplus moneys to Roseann based on a provision in the stipulation which provided that Roseann was to receive said amount, which represented one half of Michael\u2019s savings and security plan and was to be payable \"after the martial residence is sold and/or transferred to one of the respective parties or sold to a third party\u201d. He argues that the foreclosure sale should not be considered a sale to a third party and that the $6,604.03 was expressly conditioned on a voluntary sale. We find no merit to this contention since the stipulation should not be read in such a limited manner, particularly in view of the fact that the $6,604.03 was noninterest bearing and was Roseann\u2019s share of Michael\u2019s savings and security account, which payment she had agreed to delay until the sale or transfer of the marital home, allowing Michael to keep his savings intact and to suffer no adverse tax consequences for early withdrawal. Therefore, we find the Referee was correct in characterizing a foreclosure sale as a sale within the terms of the , and that Supreme Court\u2019s confirmation of this award to Roseann was proper."], "id": "2da5de8c-3977-4db2-b0b6-a4c842d8774c", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to a which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought sole custody of both children on the grounds that respondent was not providing for the children\u2019s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody."], "id": "dd2b6706-12ef-44c1-a041-885d417c0e11", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Prior to Kaplan v Kaplan (82 NY2d 300 [1993]) an argument could be advanced that Rubenstein v Mueller (19 NY2d 228 [1967]) constituted precedent for concluding that any provision in a relating to the disposition of property after the decedent\u2019s death is \u201cbut an incident to the over-all settlement\u201d and, therefore, based upon equitable considerations, the rights of a former spouse and children under the agreement are subordinate to a surviving spouse\u2019s elective share (see Matter of Dunham, 63 Misc 2d 1029 [1970], affd 36 AD2d 467 [1971], Iv denied 29 NY2d 485 [1971]). However, after Kaplan v Kaplan (82 NY2d 300 [1993]), and notwithstanding that Kaplan did not deal with the issue of an elective share because the decedent died prior to the effective date of EPTL 5-1.1-A (b) (1) (G), such an argument is no longer tenable with respect to rights to pension benefits contained in separation agreements providing for the equitable distribution of marital property. The Kaplan case clearly holds that former spouses and dependent children obtain a present property right in the spouse\u2019s pension death benefits where such rights are granted in a separation agreement which equitably distributes the marital property and fixes the support obligations of the parties to the agreement. Thus, reading Rubenstein v Mueller (19 NY2d 228 [1967]) in conjunction with Kaplan v Kaplan (82 NY2d 300 [1993]) leads to the conclusion that the same equitable considerations that warrant the finding that a surviving spouse may not take an elective share against property passing to the beneficiary of a joint will where her husband already received his former spouse\u2019s property under the joint will, warrant a finding that the surviving spouse may not take an elective share against marital property (pension benefits) irrevocably transferred in accord with the terms of a separation agreement which divides marital property and fixes support obligations."], "id": "47116c94-8fcf-4560-9088-fdca160224fa", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It is clear to this court that a woman who entered into a providing for her support cannot be deprived of this right by virtue of a foreign divorce obtained by her hus*1001band. Public policy, statutory enactments and courts\u2019 decisions are unanimous in prohibiting the travesty which would take place were any other conclusion adopted. Accordingly, the defense of a foreign decree is stricken."], "id": "80f3e6a0-0424-4580-9d0f-fedc9e8f4b5a", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The respondent mother is married to the nonrespondent father. The subject child is the issue of this marriage. The respondent mother and the nonrespondent father reside in separate households, with the nonrespondent father maintaining his residence within New York County. There is no preexisting determination regarding the legal custody of the subject child, either through a formal or a court order. Accordingly, legal custody of the subject child rests in both the respondent mother and the nonrespondent father. Thus, this child protective proceeding is properly within New York County because New York County is a \"county in which the person having custody of the child [the nonrespondent father] resides or is domiciled.\u201d (Family Ct Act \u00a7 1015 [a].)"], "id": "f7d3e881-dfea-45bf-9174-414d2a9582a0", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*467Meanwhile, also, on January 27, 1945, the mother had instituted in the Supreme Court, Queens County, an action against the father praying that the afore-mentioned he declared null and void for fraud in inducing its execution and because of the asserted inequity and inadequacy of its provisions, the complaint alleging that \u201c defendant is possessed of property of the value of at least $75,000. and, upon information and belief, the defendant earns $35,000. per annum and did earn in the years 1943 and 1944 the said sum.\u201d"], "id": "6b967dda-8756-4f32-a31c-cdae5268f99a", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The late Surrogate Henderson, in Matter of Stolz (145 Misc. 799, 801) decided a case similar to the one at bar here, stating: \u201c The decedent in her lifetime could not have succeeded in an action for separation after the agreement of March 23, 1915. *823In 1912 the decedent left the claimant. Even if it is assumed, as the executor contends, that she was justified in leaving by reason of the cruel treatment of her husband, there was no abandonment by the husband. After the , there could be no abandonment, for the decedent consented to living separate and apart from her husband. (Powers v. Powers, 33 App. Div. 126.) To constitute an abandonment there must be a desertion without consent. The claimant performed his part of the separation agreement. No sufficient grounds to sustain a judgment of separation either for abandonment or neglect or refusal to provide exists.\u201d"], "id": "2b26b3a5-3c16-48f2-b222-c1ba10228dfb", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Nonetheless, in analyzing these relationships in the twenty-first century, the Court of Appeals has signaled a shift away from \u201cmorality\u201d \u2014 the shared bedroom and sexual relationship \u2014 to a more realistic and more provable \u201cshared economic unit\u201d in defining the \u201cintimate relationships\u201d that allow a payor spouse to discontinue paying maintenance. This shift in thinking is manifest by the Court of Appeals in Graev v Graev (11 NY3d 262 [2008]). Graev was not decided under Domestic Relations Law \u00a7 248. The sole issue was the interpretation of the term \u201ccohabitation\u201d in a . But the tussle between the four-member majority and three-member dissenting opinion involved whether evidence of \u201ceconomic interdependence\u201d was relevant in deciding whether cohabitation occurred. The ex-wife argued that cohabitation did not occur because the friend was economically independent. He owned and lived significant time in his own house and did not contribute to the ex-wife\u2019s housing or other personal costs. The majority held that \u201ccohabitation\u201d was the equivalent of \u201cliving together,\u201d and it was unclear whether that meant that the ex-spouse\u2019s economic life was intertwined with the friend. In reaching this conclusion, the Court majority acknowledged that several Appellate Division decisions had equated cohabitation to \u201cchanged economic circumstances.\u201d (Graev at 272; Matter of Ciardullo v Ciardullo, 27 AD3d 735 [2d Dept 2006]; Clark v Clark, 33 AD3d 836 [2d Dept 2006].) The majority even admitted that its own precedents \u2014 a one-line affirmance of Scharnweber v Scharnweber (65 NY2d 1016 [1985]) \u2014 may have contributed to that mistaken assumption by the Appellate Divisions. The majority corrected this mistaken assumption: \u201cWhile more recent Appellate Division decisions \u2014 particularly Ciardullo and Clark\u2014 *731may be read to imply, as the Appellate Division held in this case, that there can be no \u2018cohabitation\u2019 without changed economic circumstances, we have never taken this position and decline to do so now.\u201d (Graev at 273.) While the majority declined to expand their holding, nonetheless, four Court of Appeals Judges concluded that functioning as \u201can economic unit\u201d or \u201cchanged economic circumstances\u201d could be factors in resolving whether cohabitation existed."], "id": "b79bc105-3223-48c0-8f08-af35ea292cce", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["I hold that by the use of the words \u201c for the hying expenses of himself and family \u201d the testator intended that such income must be paid for the support of the widow and son of Fred Sewell. (Haynes v. Sherman, 117 N. Y. 433; Oberndorf v. Farmers\u2019 Loan & Trust Co., 208 id. 367; Ireland v. Ireland, 84 id. 321; Matter of Yard, 116 Misc. 19.) The gift was intended for the joint support of Fred Sewell\u2019s family. The direction to pay the income for that purpose was not a personal benefit for the son of the testator, but payment was to be continued after his death until the date fixed for the termination of the trust. In Haynes v. Sherman (117 N. Y. 433, 436) there was a gift \u201c to my wife Catharine M. Sherman, in trust, nevertheless, to have and to hold the same and use so much of the income and principal as she may deem necessary for her support and the support of our children, until our youngest child now living shall arrive at the age of twenty-one years.\u201d The Court of Appeals *204held that the children would have an enforcible right if the wife died before the youngest child became of age to compel the application of the income to their support. The opinion states: \u201c It cannot be well said that this trust was limited upon the life of the widow and to terminate at her death. It is doubtless true that the testator expected that his wife would live to the termination of the trust. But the trust was for the benefit of his children as well as his wife, and they have an interest in its execution. * * * The trust was not so far personal that it would disappear with the death of the widow.\u201d In Oberndorf v. Farmers\u2019 Loan & Trust Co. (208 N. Y. 367, 370) the conditions attached to the gift of income were almost similar to those contained in the will here. The income was to be paid \u201c to my son, William D. Oberndorf, during the period of his natural life, for the benefit of himself and his family.\u201d The wife brought an action in equity to have the will construed and to have it adjudged that the trustees pay to her annually the necessary expenses of her support, and particularly the amount fixed by a entered into between herself and her husband, the life tenant. Judge Gray in his opinion pointed out that the word \u201c family \u201d included the wife of the life tenant. He further observed, \u201c the Words \u2018 for the benefit of himself and his family \u2019 are explanatory of a testamentary purpose, which a court of equity may enforce, upon it being made to appear that that purpose is nullified by the beneficiary\u2019s conduct. * * * \u2022 Oberndorf [the husband] was not solely interested in the trust estate; he Was clothed with a power, in respect thereof, for the benefit of another, his wife, as Well as of himself.\u201d (Citing Ireland v. Ireland, 84 N. Y. 321; Haynes v. Sherman, 117 id. 433.)"], "id": "f1bed420-6288-4bce-8c51-71925c19c9d7", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Note must also be made of the fact that what the agreement purports to assign, effective after testator\u2019s death, is the right \u201cto receive\u201d 50% of the revenues. It does not give her any right to manage,' sell, lease upon royalty or otherwise administer the properties themselves or to interfere with them. The agreement gives her merely a right to receive revenues, a right that presupposes an overall management by someone else. It is significant, too, that the covered not only writings theretofore composed (that is, up to June 4,1946) but also covered revenues from anything written up to December 31, 1946."], "id": "991bd644-c6f3-4f2a-a3e5-51364965f2bd", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Wife argues that to deny her the requested relief will permit her to enforce the original divorce judgment, including those portions which were modified, according to their original form. That result does not follow. The modification agreement is a contract by which Wife explicitly agreed to limit her rights with respect to the matters dealt with; thus, by the terms of the \"new\u201d contract, the modification agreement, Wife is barred from enforcing the original judgment to the extent it was modified (compare, Greschler v Greschler, 51 NY2d 368, 376; Lynn v Lynn, 302 NY 193, 201-203 [discussing the situation where the judgment, but not the surviving , has been modified]). Wife\u2019s remedy, to proceed on the modified terms as though this were a contract action, may deprive her of certain procedural benefits while also offering Husband fewer defenses to enforcement. The benefits to be obtained by either party were items to be negotiated when the parties entered into the modification agreement. At the insistence of one side, the court will not alter the modification agreement more than seven years after it was signed."], "id": "4debc1b0-12fb-4e42-b7f5-907155e4067f", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The referee has properly held that the legacy of $25,000 to the three children of the testator constituted a debt of the estate and *123gave the legatees a priority in their status as creditors. The payment of the legacy was required to be made by the testator under a entered into between him and his wife. In this respect it is similar to the pecuniary provisions required to be given by the testator to Donald Bloomingdale pursuant to a separation agreement in Matter of Bloomingdale (278 N. Y. 435). The character of such a legacy, based upon a valid contract, and the right of the legatee to priority were also considered by the Court of Appeals in Matter of Cameron (278 N. Y. 352, 358)"], "id": "558487fe-2db3-44a8-916d-7c539f5741e7", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The between objectant and decedent provided in part as follows: \u201c seventh : The husband shall forthwith cause to be prepared and shall duly execute his valid and legal last will and testament, pursuant to the terms of which, upon his death, one-fourth of his net estate shall be devised and bequeathed to the wife. * * * The provisions of the foregoing paragraph may be specifically enforced.\u201d"], "id": "55740209-8963-460d-b62e-063ab4987809", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Examination of the papers further discloses that on October 18, 1968, petitioner previously commenced an action for a declaratory judgment to declare the , which was incorporated in the Mexican decree of divorce, null and void and for other related relief. The matter was brought to trial before Mr. Justice \"VVegmau on January 8,1969, at which time defendant (respondent herein) directed his attack upon plaintiff\u2019s (petitioner herein) complaint seeking dismissal of the causes of action stated therein. On January 14, 1969, the court granted defendant\u2019s motion dismissing certain causes of action in the complaint and the prayers for such relief. However, the court did not dismiss those portions of the complaint pertaining to the custody of the children and injunctive relief enjoining and restraining defendant from removing the children from the custody of the plaintiff. The court treated the complaint as a petition and the summons as an order to show cause and directed the plaintiff to serve an amended pleading on counsel for defendant in the form of a petition on or before January 20, 1969 and gave counsel five days to answer. The plaintiff in compliance with the court\u2019s direction, served the petition upon counsel for defendant."], "id": "6d2ff63d-6955-48a5-9ecb-97f35d90e601", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The case of Dorn v. Dorn (202 Misc. 1057, affd. 282 App. Div. 597 [2d Dept.]) is directly in point. In that case it was conceded that the Mexican divorce was totally invalid. The action was brought to increase payments under the terms of a . The defendant claimed that the action was based upon a private claim or demand and that the Mexican divorce, despite its invalidity, operated as an estoppel against such *1025action. The lower court held that the plaintiff was estopped from denying the validity of the Mexican divorce, stating at pages 1058, 1059 and 1060:"], "id": "e291e2f0-398c-45fd-a37a-4dff3ada9d8b", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*477The between the parties provided for custody in the wife and for the payment of $100 per month by the husband to the wife for the support of each of the three children of the marriage. In a following and separate paragraph the agreement also provides for the payment of the sum of $100'per month to the wife and uipon the youngest child reaching, his majority or emancipation the sum. of $200 a month to her."], "id": "98a991bc-cc85-4669-8a76-3e28b78aae82", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The facts here are utterly unlike those in Matter of Seitz (262 N. Y. 32). There an ante-nuptial agreement required the husband to give Ms prospective wife $20,000, conditioned upon her surviving Mm six months subsequent to Ms death and payable by Ms executors six months after death. The Court of Appeals in effect held that the transfer was one made in contemplation of death, or intended to take effect in possession or enjoyment at or after the death of the husband. In the present case the payments under the were a continuing liability, as valid as rent due under a lease, wMch might ext\u00e9hd beyo'nd the death of the lessee. There is no element here of any new benefit wMch arose out of the death of the decedent. No succession took place, or change in the nature of the liability nor any gift or benefit derived in contemplation of or intended to take effect hr possession or enjoyment at death. Other authorities, and particularly Matter of Vanderbilt (184 App. Div. 661; affd., 226 N. Y. 638); Matter of Baker (83 App. Div. 530; affd., 178 N. Y. 575); Matter of Orvis (223 id. 1); Matter of Schmoll (191 App. Div. 435; affd., 230 N. Y. .559), support the conclusion reached in tMs decision."], "id": "6d917809-d735-42f1-b033-acb86530529d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["election or a divorce or annulment decree, court order, or court-approved settlement agreement incident to such a decree, see 5 U.S.C. \u00a7 8445(a); or (2) \u201cthe statutorily re- quired notice is ineffective; and [] the evidence shows that the employee . . . intended to provide a former spouse sur- vivor annuity,\u201d Hairston v. Off. of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed. Cir. 2003); see also Wood v. Off. of Pers. Mgmt., 241 F.3d 1364, 1366 (Fed. Cir. 2001); Vallee v. Off. of Pers. Mgmt., 58 F.3d 613, 615\u201316 (Fed. Cir. 1995); Brush v. Off. of Pers. Mgmt., 982 F.2d 1554, 1562\u201364 (Fed. Cir. 1992). It is undisputed that neither the Crosses\u2019 nor their divorce decree expressly awards the survivor annuity benefit to Ms. Cross. This appeal therefore focuses on the second option available to Ms. Cross. Regarding intent, the Board found, and the Government does not challenge on appeal, that there is \u201cno doubt that Mr. Cross did intend until his death that [Ms. Cross] would receive a former spouse survivor an- nuity based on his federal service.\u201d Appx. 5; see also Oral Arg. at 31:36\u201332:17, https://oralargu- ments.cafc.uscourts.gov/default.aspx?fl=211116_12152021 .mp3. Accordingly, the dispositive question on appeal is whether OPM provided the statutorily required notice. For the reasons below, we conclude that the Board\u2019s finding that OPM provided notice to Mr. Cross is not supported by substantial evidence. OPM is \u201cunder a very clear and mandatory directive from Congress\u201d to provide annual notice of annuity election rights to all annuitants. Brush, 982 F.2d at 1563. \u201cWhen a nonfrivolous allegation is made that OPM has not sent\u201d the notice as required by statute, the burden of production falls to OPM to show, by \u201cmore than a bare allegation,\u201d that notice was sent and to offer proof of its contents. Id. at 1560\u201361. \u201cOPM presumably has access to the pertinent records, as well as to the people who deal with those rec- ords,\u201d and this burden of production cannot be \u201cupon the petitioner in the first instance to prove a negative.\u201d Id. Case: 21-1116 Document: 56 Page: 6 Filed: 01/24/2022"], "id": "bb0854e0-e030-4516-a883-f43b0c09fe7a", "sub_label": "US_Terminology"} {"obj_label": "Separation Agreement", "legal_topic": "Family Law", "masked_sentences": ["\u2019\u2019Mrs Grace Isaacs [mother of decedent\u2019s children and former wife of decedent, and objectant] 57 Nancy Blvd. Merrick, N. Y. Dear Grace, This will confirm our discussions today as follows: Notwithstanding anything to the contrary contained in the between us:\u2014 1. I will provide for the completion of Mark\u2019s present medical school education. 2. I will provide for such reasonable graduate work as Jane may elect to pursue. 3. I will maintain the existing $50,000 in life insurance presently existing for the three children in equitable proportions dependent on their needs for completion of their education. 4. I will provide in my last Will and Testament for a bequest for each of the children of no less than $5000 each. Sincerely, (signed) Jacob L. Isaacs [decedent] (signed) Grace F. Isaacs\u201d This instrument was inscribed entirely in the handwriting of the decedent, except for the signature of the former wife. The identification of handwriting and signature of the decedent and of the former wife\u2019s signature was made by decedent\u2019s former law partner."], "id": "33adc7f0-48a6-45e6-9b1c-b51a6118cc96", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It was then stated by plaintiff\u2019s counsel that the question of the legality of the and its relation to the reconciliation agreement was something that \u201cmight\u201d be argued in briefs. Both sides then rested, and requested three weeks for submission of findings of fact and conclusions of law. This court then reserved decision and requested counsel to submit such findings, and judgment."], "id": "f5bf73f4-0420-450d-9195-2c3c43cf3e2d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["However, in regard to whether the provisions of the survived the decedent\u2019s death, Cooke v. Cooke (208 Misc. 591, 594) quoted Lepsch v. Lepsch (275 App. Div. 412) as follows: \u201c If a separation agreement contains no specific provision as to survival of benefits, it must be read as a whole to determine whether it was the intention of the parties that such agreement survive the husband\u2019s death, and the burden of proving such intent is on the wife.\u201d"], "id": "03b21c87-ab69-4ef2-8bda-35d39f4f963d", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["*852\u2018\u2018 A judgment of divorce in this state embodying a may be modified as to the terms of support. Goldman v. Goldman, 282 N. Y. 296, 26 N. E. 2d 265; Civil Practice Act, \u00a7\u00a7 1155, 1170. The question presented is whether this court, having jurisdiction of the parties, may so modify a decree of a sister state. * * *"], "id": "d0d27f07-37b7-4f16-9cd3-d9cd7266e1d8", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In reference to the claim of Minge C. Peach by the terms of the between her and the decedent, she had agreed that she would not have any right, title or interest in the decedent\u2019s property. Such agreement expressly providing that each party released, relinquished and discharged \"any claim of any kind or nature whatever in, or to, any part of the estate or property of either party not effectually disposed of by such party during his or her lifetime, shall pass by testamentary distribution or by the laws of distribution with the same force and effect as if the parties heretofore had never been married.\u201d This language is clear and unambiguous and the court holds by virtue of the terms of this separation agreement, Minge C. Peach has released, relinquished and discharged any claims to the pension benefits which are in issue in this case. (Teachers Ins. and Annuity Assn. of Amer. v Rogers, 41 AD2d 1020; O\u2019Brien v Elder, 250d 275.)"], "id": "538be8a7-b9a5-4f97-b42d-1bc33e4044da", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of upon the express consideration \u201c of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained.\" The contract provided that the wife should have the sole custody of and control of the children \u201c without any interference on the part of the party of the first part.\" Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void."], "id": "dcad07d1-ade2-4f34-bf36-0a652c0dca43", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In opposition to the motion it is urged: (1) that the is illegal since it was conditioned upon the plaintiff obtaining a divorce; (2) that the plaintiff has violated the terms of the agreement by denying the defendant visitation privileges and by her misconduct with a named individual; (3) that conditions precedent to a recovery for orthodontic work and camp expense have not been complied with."], "id": "b21be0d7-761a-4f2a-982a-be973aa42a50", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Petitioner and respondent were married, in New York State in 1966. The marriage was dissolved by divorce decree entered in Israel on July 25,1971. The infant Daniel was born in New York State on September 19, 1968, and is now six years of age. A between the parties, entered into in Israel on June 20, 1971 and modified on July 7, 1971, was confirmed and ratified in the divorce decree. The agreement and divorce provides for custody of the child in the mother. The father has generous visitation rights, the right to have the child in this country periodically throughout the year and because of his apparent financial circumstances this poses no hardship to \u00a1him. Upon the happening of either of two conditions, custody would be given to the father. The condition which petitioner relies on at this time reads as follows:"], "id": "53fabd7c-3838-44ac-a387-36d689e81267", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["On the argument of this motion, the court was informed that negotiations had been carried on between the attorneys for the respective parties with the hope of a . The attorney for 'the plaintiff indicated that such an agreement could be worked out, but he did not feel that he should consent to any amount of alimony until he was fully and fairly apprised of the defendant\u2019s assets and income. If it is impossible for the parties to live together, and a separation agreement could be worked out, it should be done to avoid litigation. For this reason alone, the taking of the defendant\u2019s testimony should be permitted."], "id": "bfb25a00-718c-41a0-9971-fa3478aaf5df", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["Less than two months later (Jan. 30, 1952), plaintiff commenced this divorce action wherein she charged defendant with acts of adultery allegedly committed in May, 1939. Defendant appeared through counsel but did not contest the action and, on February 24, 1942, after an inquest, the court directed the entry of a judgment. Accordingly, on March 6,1942 the court entered an interlocutory judgment of divorce which specifically referred to the afore-mentioned and made it a part thereof \u201cas if the same were set forth in full \u201d and the judgment repeated verbatim all the provisions of the separation agreement referable to support, custody and rights and privileges of visitation afforded defendant."], "id": "3ec38410-45b1-4e95-a672-e5c3664b2bff", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["In addition, a conversion divorce was granted where the did not specifically provide that the parties had the right to live separate and apart. In Littlejohns v Littlejohns (76 Misc 2d 82 [Sup Ct, NY County 1972]), the court found that where the agreement contained support provisions and it was demonstrated that the parties did not live together after the agreement was signed, the agreement did qualify as a separation agreement under Domestic Relations Law \u00a7 170 (6)."], "id": "d74f4e51-7432-4f32-9c12-8f3fc56362a0", "sub_label": "US_Terminology"} {"obj_label": "separation agreement", "legal_topic": "Family Law", "masked_sentences": ["It seems that the rights granted to Zbig in the are similar to a life estate in real property. The agreement states that the former spouses are joint tenants with rights of survivorship, which shall not be affected by the dissolution of their marriage. Survivorship rights can only take effect upon the death of one party, which implies a life estate."], "id": "56f0b591-e3b4-4d7a-bc2d-d1ef5d5bcafa", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The letters reveal an attempt by the defendant to obtain false testimony from his wife in support of a fabricated alibi. The request to so testify is coupled with very thinly veiled threats of physical harm if the wife witness did not *505comply. This type of communication is clearly not within the since the threats indicate that it is not being made in reliance on the marital relationship (People v Dudley, supra; People v Patterson, 39 NY2d 288; People v Allman, 59 Misc 2d 209). Moreover, the letters are evidence of subornation of perjury and thus a criminal offense in themselves (criminal solicitation in fourth degree, Penal Law, \u00a7 100.05, subd 1). As such they should not be included within the privilege (People v Watkins, 89 Misc 2d 870, affd 63 AD2d 1033; see, also, Comment, proposed NY Code Evidence [1982], \u00a7 506, subd [d], par [1])."], "id": "b40eff52-5e18-49d0-9a53-b73078442909", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["At the same time, however, the information contained in the letters is privileged. \u201cA husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.\u201d (CPLR 4502 [b]; see CPL 60.10.) Not all communications between a husband and wife are protected. The only applies to those statements made in confidence and \u201cthat are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.\u201d (Poppe v Poppe, 3 NY2d 312, 315 [1957]; see also Parkhurst v Berdell, 110 NY 386, 393 [1888].) The term communication encompasses oral communications and conversations between husband and wife, as well as, \u201cknowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital relation and which would not have been performed except for the confidence so existing.\u201d (People v Daghita, 299 NY 194, 199 [1949].) Letters between spouses fall within the protection of this rule. (See Hopkins v Grimshaw, 165 US 342 [1897]; People v Harris, 39 Misc 2d 193 [Sup Ct, Bronx County 1963].)"], "id": "c5b1e082-0b42-4a70-813e-a910295d6feb", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["In this letter defendant says: \"I wrote a long letter to Mom which I am sure she will share with you\u201d. This sentence shows that the letter written to Mrs. Romer was to be published, even if only to other members of the family and to Mr. Halperin, defendant\u2019s friend and an attorney who acted as defendant\u2019s counsel on prior matters, but nonetheless to be published beyond the scope of the . Accordingly, it is not within the confidences protected by that privilege (see, e.g., People v Ressler, 17 NY2d 174). Moreover, in the case of Kenneth Romer, who is not an attorney, it is also outside of the ambit of the attorney-client privilege. Nor did Kenneth Romer acquire a privilege by virtue of giving the letter to an attorney."], "id": "78a54e8d-63b8-4c6c-8273-1412d118cd7d", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The testimony and the exhibits at the hearing revealed a marriage that was not only on the rocks but awash and about to sink. The defendant had beaten his wife to the point where she had to seek hospital treatment. The parties were living apart and the wife had sought an order of protection from the Family Court. The wife had consulted an attorney and was actively seeking an annulment. To say that this marriage was in a state of disarray is to indulge in the grossest form of understatement. If this court were to indulge in the fiction that a relationship existed in this case and ought to be protected, to the frustration of the fact-finding process, it would violate, not reinforce, the public policy underlying the ."], "id": "e73fdf2c-4422-4e83-b9f8-1322686ed2f5", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["*549So considered, the letters at issue herein are the form of communication to which the applies. It is evident by the sensitive nature of the statements and the language employed by defendant that he would not have made such statements but for the relationship shared between he and his wife. Nonetheless, where the criminal activity was aimed at a child of the marriage, the privilege is extinguished. (See People v Davis, 226 AD2d 125, 126 [1st Dept 1996], lv denied 88 NY2d 1020 [1996]; People v Allman, 41 AD2d 325 [2d Dept 1973]; People v Govan, 268 AD2d 689 [3d Dept 2000].) Therefore, the letters are admitted."], "id": "851ce1f2-5e3d-4265-91ae-f05b8b33ae63", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Another consideration that must be taken into account is the issue of admissibility. Clearly, the statements of Carney to both Ms. Ferranti and Mr. Galison are both hearsay. (Nucci v Proper, 95 NY2d 597 [2001].) However, the statements made to Ms. Ferranti could arguably qualify as a declaration against penal interest. (People v Settles, 46 NY2d 154 [1978].) This is *695particularly appropriate in the case at bar, as Carney could have been reindicted on the matter (CPL 210.45). Due to the fact Ms. Ferranti and Mr. Carney only had a \u201ccommon law marriage\u201d there is no that would bar disclosure. (People v Suarez, 148 Misc 2d 95 [Sup Ct, NY County 1990].) However, an attempt to admit into evidence any statements by attorney Ed Galison about Carney\u2019s role in the murder would clearly be hearsay and not fit into the exception of a declaration against penal interest. As all clients believe at the time they are confiding with their attorney, there can be no fear of discovery, as the confidential relationship \u201cexists to ensure that one seeking legal advice will be able to confide fully and freely in his [or her] attorney, secure in the knowledge that his [or her] confidences will not later be exposed to public view to his [or her] embarrassment or legal detriment.\u201d (People v Cassas, 84 NY2d 718, 723 [1995]; Matter of Priest v Hennessy, 51 NY2d 62, 67-68 [1980].) Thus, the declarant is unaware that any statement would be against his personal interest because of his belief it could not be used against him."], "id": "ac2e45a6-0c3f-4c80-ae27-79defd47856f", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["While there has been some support for the assertion that the absence of a viable marital relationship should in and of itself be considered an exception tp the *1054(see, e.g., People v Dudley, 24 NY2d 410, 414-415, supra; People v Oyola, 6 NY2d 259, 267-268 [dissenting opn of Burke, J.]), such a proposition has never attained separate recognition (see People v Fields, 38 AD2d 231, affd 31 NY 2d 713)."], "id": "bf26c374-11af-4825-94e0-7f1e3aeb421e", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Major developments in the area of , include the congressional enactment of rule 26 of the Federal Rules of *97Criminal Procedure in 1946 which left the interpretation of the privilege to the courts; and the 1975 enactment of Federal Rules of Evidence rule 501, which permits Federal courts to interpret the common law \"in the light of reason and experience\u201d except in cases governed by State substantive law in which State law privileges apply.3"], "id": "98223b3f-3fe1-4349-8116-14b866f1a766", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["In New York, by legislative modification, this once rigid rule of absolute spousal incompetence has been transformed into a decidedly more limited testimonial privilege. Embodied in its present form in CPLR 4502 (subd [b]), the provides that neither spouse be \u201crequired, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.\u201d"], "id": "fc75ae20-0bb9-4015-b926-7be754c4a69c", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["evidentiary privilege is claimed, as such privileges are highly disfavored. Bousamra v. Excela Health, 210 A.3d 967, 986 n.15 (Pa. 2019); Red Vision Sys., Inc., 108 A.3d at 61. A colorable claim of privilege must be asserted that implicates potentially privileged material. Red Vision Sys., Inc., 108 A.3d at 59; see also Twp. of Neshannock v. Kirila Contractors, Inc., 181 A.3d 467, 472 (Pa. Cmwlth. 2018) (where an order \u201cpurportedly directed the disclosure of allegedly privileged documents, it was immediately appealable under Rule 313\u201d). In the present case, Liokareas asserts that Harris is distinguishable on its facts from the instant case because the alleged privileged material already has been exposed and, consequently, there is no immediacy attendant to the review of the trial court\u2019s order. In support, Liokareas cites Commonwealth v. Buttolph (Pa. Super., No. 1471 MDA 2012, filed November 26, 2013),9 quashing an appeal taken from an order holding that was waived because the alleged privileged material was already exposed. In other words, the bell already had been rung. According to Liokareas, the alleged privileged material that already has been disclosed is the GBBE Report attached as Exhibit D to its Second Amended Complaint. While still maintaining that the Report was never privileged, Liokareas argues that the claimed privilege has been waived as to the Report itself and, therefore, to all communications related to the Report. Accordingly, it contends that the collateral order rule does not apply. Indisputably, the GBBE Report has been disclosed. As noted, \u201conce material has been disclosed, any privilege is effectively destroyed.\u201d Harris, 32 A.3d at 249. Consequently, as we discuss at greater length below, the case is moot with regard to that document. However, in light of the fact that the Master and the trial"], "id": "291fbc37-b99b-4acd-8f15-a879865e74b0", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Natalie Antonetti was assaulted in her Austin apartment in the early morning hours of Sunday, October 13, 1985. There was no sign of forced entry, and nothing was stolen. Antonetti was not sexually assaulted and had no defensive wounds. The blunt force trauma to her head, which the medical examiner found consistent with having been attacked with a club or small bat, caused skull fractures, brain contusions, and a coma from which Antonetti never recovered. Antonetti died after the withdrawal of life support. The crime remained unsolved after the death of Austin Police Department Sergeant Edward Balagia, a homicide detective who served as lead investigator and conducted most of the interviews and evidence collection. The unsolved \"cold case\" was reopened in 2007 after a call to a homicide tip line from Rebecca Davis, the wife of appellant Dennis Davis. Rebecca told police that in 1991 after a few drinks, Davis cried and said he had \"sinned against God and man,\" which she suspected was a reference to the unsolved murder of Davis's former girlfriend, Antonetti. Davis was charged with Antonetti's murder. Davis's wife Rebecca recanted her story and argued unsuccessfully that Davis's statement to her was shielded by . At trial, there was no physical or forensic proof connecting Davis to the crime; rather, his prosecution hinged on circumstantial evidence and testimony from witnesses, many of whom had not been contacted during the investigation back in the 1980s. The circumstantial evidence about Davis included Davis's relationship and last interaction with Antonetti, his arrival at the scene after the assault, his statements after the assault, his alibi, his ownership of a car similar to one seen in the parking lot of the apartments on the morning of the assault, and other acts of aggression in the years since Antonetti's assault. The jury also considered certain statements and a 911 call from Donn Chelli, Antonetti's neighbor at the time of the assault. Davis v. State , 413 S.W.3d 816, 820 (Tex. App.-Austin 2013, pet. ref'd). The jury convicted Davis in 2011 for Antonetti's *695murder, and the court sentenced him to thirty-six years' imprisonment. Id. at 819. The jury was not presented with evidence of a potential third-party perpetrator, including evidence of Antonetti's neighbor's identification of a different man from a photographic lineup as the person that he had seen holding a club or small bat while looking into the neighbor's apartment on the morning of Antonetti's assault. See id. at 827. This Court determined that Davis received ineffective assistance of counsel, reversed his conviction, and remanded this cause for a new trial. Id. at 838. The Texas Court of Criminal Appeals refused the State's petition for discretionary review. See In re Davis , No. PD-1520-13, 2014 Tex. Crim. App. LEXIS 183, at *1 (Tex. Crim. App. Feb. 5, 2014). This Court issued our mandate in Davis's appeal on March 6, 2014."], "id": "575eca62-c4d8-4fa0-ae15-de89ba6472bc", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["At the hearing, the objectant testified that she gave the diary to her husband and mother to review. The proponent *373alleges that the confidentiality of the communication was thereby waived by the objectant. The objectant contends that the privilege was not waived because the communication to the spouse is protected by the (CPLR 4502 [b]) and the communication to the mother by the \"parent-child privilege\u201d (Matter of A & M, 61 AD2d 426)."], "id": "3f2b3305-5819-41c9-8c75-97e57d41b70d", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["\u201cFind the strength to overcome this. I will do anything and everything to help [the complainant] .... And you as well [to] find joy to extinguish the pain in our hearts. This is our family, our unit, and I am the head of. With a loving wife by my side who is strong, smart and servant to the most high and who knows through him all is possible. Daddy is sick and I needed help. We will help daddy get better as a family. Let\u2019s help daddy .... I am in love *547with you and I am asking you to forgive me and to sacrifice yourself. I know it\u2019s a lot to ask but I wouldn\u2019t if I couldn\u2019t fulfill. I\u2019ve expressed my sorrow and offer my apology and my acknowledgment that I caused our family pain. And I will do everything in my power to ease it. I ask for another chance. The rest is up to you. Come back to me my darling wife and friend.\u201d Defendant asserts that these two portions should be deemed inadmissible as they do not fall within any exception to the hearsay rule and are protected by the . Defendant argues that the statements contained in the letters constitute confidential communication between a husband and wife and therefore should not be introduced at trial."], "id": "1243ad5d-54a2-485c-9941-282da6e1497c", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Jaunita Bing Newton, J. The court, in the case at bar, must determine the availability of the in the context of a criminal *96proceeding in which one \"spouse\u201d is the defendant.1 Surprisingly, there is a dearth of reported case law on the topic as it relates to the facts of this case. That is, where the couple live together in an admittedly nonformalized relationship and a colorable argument can be made for the existence of a common-law marriage."], "id": "4837e652-7cfc-4f9e-94df-91a09ae80391", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The developed historically from the common-law rule which completely disqualified a wife from testifying for or against her husband. She was held to be incompetent because spouses were considered as a single entity and, therefore, interested in the outcome of the litigation in which the other spouse was a direct party. At common law, interested witnesses were deemed disqualified from testifying (see, Croker v New York Trust Co., 245 NY 17, 20). The privilege was also deemed necessary to avoid subjecting domestic tranquility to the disturbance which was thought to flow from a spouse giving adverse testimony against the other (People v Rodriguez, 38 NY2d 95, 99, citing 1 Coke, Commentary upon Littleton \u00a7 6b [19th ed 1832]; 2 Kent\u2019s Commentaries 179)."], "id": "e5333968-2625-467b-8213-4f0f53bc54ca", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["No statutory \"parent-child\u201d privilege exists in New York State, though the Legislature has codified the early common-law privileges of \"attorney-client\u201d (CPLR 4503), \"husband-wife\u201d ( \u2014 CPLR 4502), and that of \"self-incrimination\u201d (CPLR 4501; cf. US Const, 5th Arndt; NY Const, art I, \u00a7 6; CPL 50.20). Additional privileges not found in the common law, but enacted by New York State, include the following: *715\"physician/dentist/nurse-patient\u201d (CPLR 4504), \"clergy-penitent\u201d (CPLR 4505), \"psychologist-patient\u201d (CPLR 4507), \"social worker-client\u201d (CPLR 4508), the qualified privilege granted to newspersons and journalists (Civil Rights Law, \u00a7 79-h) and many State statutes deeming information in the possession of public officials as privileged from disclosure in varying degrees (see Fisch, New York Evidence [2d ed], \u00a7 744, at p 440)."], "id": "9fb18ded-545e-41b4-8054-d735c79e03a2", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The against self incrimination is an extension of the Fifth Amendment right. It is grounded upon the theory that just as one may not be convicted by his own compelled testimony, so may he not be convicted by the testimony of his spouse as to a communication uttered in reliance upon the sanctity of the marital relationship (CPLR 4502, subd [b]). The court finds that the production of the subpoenaed material would not violate the marital privilege. That privilege is no greater than the right not to incriminate oneself, and the court has held no such right exists in this case because the records are those of a separate business entity. Furthermore, the entries and other records of the nursing home are not communications from one spouse to the other, and there is no indication that any entry or record was made in reliance upon and in respect of the marital relationship (Richardson, Evidence [10th ed], \u00a7 448)."], "id": "fc631a62-47e5-4680-844f-1950f434e17b", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The three documents at issue were all generated during his disappearance. One was a letter addressed to his wife, with an attachment that sets forth a list of his \"obligations\u201d. The People now are offering only the list but reserve their right to offer the entire letter to Mrs. Romer at a later time. Mr. Romer alleges that this letter is protected by the ."], "id": "7ef47834-6bbe-4bd6-b8bc-dd3641505f82", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The court in State v Briley (supra, p 506) explained: \u201cIt is the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at a trial. Rule 7 of the New Jersey Rules of Evidence; N. J. S. 2A :84A-16. Privileges expressly granted to persons to refuse to testify or to prevent another from testifying are exceptions to that policy. See Rules 23-32, 34, 36-40; N. J. S. 2A:84A-17 to 32. Since rigid adherence to the letter of the privileges promotes the suppression of truth, they should be construed and applied in sensible accommodation to the aim of a just result. In view of the obvious policy of the law to enlarge the domain of competency of witnesses and to adapt rules of evidence to the successful development of the truth, competency should be regarded as the rule and incompetency as the exception. This approach is plainly applicable to the so-called .\u201d"], "id": "bb9ec21d-876b-4a72-ab49-bc50c754ae44", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The violation of a statute by law enforcement will not necessarily result in suppression of the fruits of such violation (People v Patterson, 78 NY2d 711 [violation of CPL 160.50 does not warrant suppression of identification]; People v Sampson, *60373 NY2d 908 [violation of Vermont\u2019s \"fresh pursuit statute\u201d does not mandate suppression]; People v Harris, 48 NY2d 208, 216 [suppression not warranted where defendant\u2019s statutory rights, as opposed to constitutional rights, were violated]; People v Bialostok, 80 NY2d 738 [violation of CPL 700.50 (3) requiring written notice of wiretap does not necessitate suppression]). It is only where a constitutionally protected right is implicated (e.g., People v Taylor, 73 NY2d 683; People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97) that a violation of a statute warrants suppression (People v Patterson, 78 NY2d, at 715-716, supra). Suppression is appropriate only where a \"statutory imperative operates directly to protect and preserve a constitutionally guaranteed right\u201d (People v Patterson, 78 NY2d, at 717, supra). In contrast, the does not implicate a constitutionally protected right.* Indeed, as set forth above, the motivation for the enactment of the marital privilege statute was to encourage husbands and wives to share confidences with assurance that they would not be divulged in legal proceedings (Poppe v Poppe, 3 NY2d 312, supra; People v Daghita, 299 NY 194, supra) and to avoid the \"feeling of indelicacy and want of decorum\u201d (Prink v Rockefeller Ctr., 48 NY2d 309, 318, supra) that would arise from requiring a person to condemn or be condemned by his or her spouse, or by prying into the marital relation (see, Prink v Rockefeller Ctr., 48 NY2d, at 318, supra; see also, Richardson, Evidence \u00a7 447 [Prince 10th ed]; 8 Wigmore, Evidence \u00a7 2228 [McNaughton rev ed]). There does not appear to be anything in the legislative history of the marital privilege to indicate that its enactment was premised upon constitutional underpinnings or intended to bar law enforcement from investigating criminal acts."], "id": "ea9aae7a-b8c9-4975-b1ac-60a085531d37", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Both parties to a must consent to divulgence of confidential communications between them. (CPLR 4502, subd [b]; People v Wood, 126 NY 249, 271; Parkhurst v Berdell, 110 NY 386, 393; cf. Poppe v Poppe, supra, at pp 314, *721315.) Such a mutuality of privilege must exist in a parent-child situation, as well (Matter of A. & M., 61 AD2d, at p 435, n 9) as by its nature, the family relationship forms a common bond wherein the interests of the parties are similar, i.e., maintenance of the sanctity of the family, and injury by the State to one party of such familial unit effectually acts against all."], "id": "6796f831-f181-4dec-b4df-7e86adf3a296", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["As a final matter, plaintiff insists that the should not be permitted to assist fraud, again citing G-Fours (supra) and a number of out-of-State cases cited therein. As before, this court restates that there has been no showing by plaintiff of any fraud committed by this witness or of her concealment of fraud by refusal to disclose the information protected by the privilege. Frustration in fact finding by reason of a statutory privilege based upon public policy considerations, is not fraud in and of itself. No precedent which is binding, or even persuasive, has been demonstrated to the contrary."], "id": "37fb08b9-5090-4f29-9ddc-07049633365f", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Defendant, in his moving papers, has, at the very least, established the need for the court to conduct an evidentiary hearing on the issue of whether defendant\u2019s particular relationship satisfies the above criteria. Inasmuch as the defendant is seeking to establish the existence of a valid common-law marriage, he has the burden of proving that the marriage existed. (Matter of Benjamin, 34 NY2d 27 [1974].) The evidentiary hearing would afford the court the opportunity to question, under oath, Wanda Silva, Douglas Suarez, or other witnesses regarding this \"marriage\u201d in an effort to determine whether the defendant has sustained his burden of proof and whether the would be available to him."], "id": "7811f3b4-8aa5-4bec-a1f7-f2a5ae35f6d1", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["CPL 60.10 and CPLR 4502 (b) are the applicable statutory provisions. These statutes and the relevant case law dictate that the invocation of the requires the existence of a marital relationship at the time of the subject communication.4 Query, can the defendant in the instant case who has lived with Wanda Silva without the benefit of a ceremonial marriage, invoke the marital privilege?"], "id": "b40e346f-5dab-4734-9626-ad095ddc6c79", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["A parent-child privilege may be waivable, however. (Cf. People v Wood, supra; Parkhurst v Berdell, supra; Poppe v Poppe, supra.) Indeed, the court in Matter of A. & M. (supra, p 435, n 9) expressed concern with the spectre of a child in Family Court proceedings invoking \"such a privilege to prevent his parents from testifying about matters in which they were seeking the intervention and assistance of the court in controlling the child\u2019s behavior\u201d, i.e., those provisions concerning the determination as to whether a person is \"in need of supervision\u201d (P.I.N.S.) (Family Ct Act, art 7). It is possible in such a proceeding a parent would wish to divulge to the court certain confidential communications made by the child in order to gain the help of the court in gaining or regaining supervisory control over a child. In such a situation the position of the State is one of attempting to maintain and foster the family relationship rather than simply invade it for its own purpose, and no rational purpose would apply to allow the child to claim the protection of a parent-child privilege in such case. This concept is recognized by analogy to those situations in which the interest of the State has been found to be paramount in invading the prerogatives of parental guidance \"in the best interests of the child,\u201d i.e., child protection proceedings under article 10 of the Family Court Act. The interest of the child in such instances is viewed as so worthy of State intervention that by statute the and those of physician-patient, and social worker-client do not apply. (Family Ct Act, \u00a7 1046, subd [a], par [vii]; cf. Social Services Law, \u00a7 411 et seq.) The interests of the State have been \"balanced against the rights of individual privacy, guaranteed by the Constitution,\u201d (cf. Matter of A. & M., supra, at p 433) and the former found of greater benefit. It is likely that the same is true for the P.I.N.S. situation and the privilege must fall in such cases and be deemed by law or statute inapplicable."], "id": "a1b88381-45d0-495d-aa3e-f14b0511accc", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Section 137 of the Restatement, Second, Conflict of Laws (hereafter referred to as the Restatement) provides that \u201c[t]he local law of the forum determines what witnesses are competent to testify and the considerations that may affect their credibility.\u201d (See, also, Shepard & Gluck v Thomas, 147 Tenn 338.) This is so because a rule of witness competency is a rule of evidence governed by the law of the forum (see Hausman v Buckley, 299d 696, 700, cert den 369 US 885; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 381, mot for rearg den 25 NY2d 959; Kilberg v Northeast Airlines, 9 NY2d 34, 41). Thus the New York rule governs the instant situation."], "id": "00a476c2-8816-4014-a8ed-a250d574d31e", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The underlying rationale for the creation of the by the Legislature as codified today was: (1) to encourage husbands and wives to share confidences by the assurance that they would not be divulged in legal proceedings (see, Poppe v Poppe, 3 NY2d 312, People v Daghita, 299 NY 194), and (2) to avoid the \"feeling of indelicacy and want of decorum\u201d (Prink v Rockefeller Ctr., 48 NY2d 309, 318) that would arise from requiring a person to condemn or be condemned by his or her spouse, or for prying into the secrets of the marital relation (see, Prink v Rockefeller Ctr., 48 NY2d, at *601318, supra; see also, Richardson, Evidence \u00a7 447 [Prince 10th ed]; 8 Wigmore, Evidence \u00a7 2228 [McNaughton rev ed])."], "id": "58288e44-3fd8-49a9-9040-e8ed64e5a05a", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["As for the alleged privilege arising by reason of the marital relationship, the court finds that the subject matter was not of a confidential nature, but the information was intended to be imparted at least between the spouses and, in addition thereto, the information was divulged to a third party, to wit, the attorney-draftsman. Therefore, the court finds that the does not exist (5 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 4502.15, 4502.17; Richardson, Evidence [9th ed.], \u00a7\u00a7 460, 462; Fisch, New York Evidence, \u00a7 597; 4 Bender\u2019s New York Evidence, \u00a7 245.03 [2])."], "id": "af4ac2d3-bff8-4f77-9426-f033368ae2fa", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["\u201cOne spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)\u201d (People v Fediuk, 66 NY2d 881, 883 [1985]). While a suicide note can be a communication made during marriage for the purpose of the privilege (see Matter of Vanderbilt [Rosner\u2014Hickey], 57 NY2d 66, 73 [1982]), the spousal privilege falls \u201cwhen the substance of a communication ... is revealed to third parties\u201d (id. at 74; see People v Weeks, 15 AD3d 845, 846 [2005]; People v Beard, 197 AD2d 582, 583 [1993]; People v LaPlanche, 193 AD2d 1062, 1063 [1993]). Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the (see People v Thomas, 288 AD2d 405, 406 [2001])."], "id": "bd37bf5a-782a-46ce-8d1b-5cede87528b6", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The public policy underlying the New Jersey statute is to preserve the sanctity of the marital relationship (State v Briley, 53 NJ 498, 505, supra) by basically prohibiting one spouse from testifying against the other. However, as previously noted, New Jersey case law has limited the scope of its privilege statute. New *89York, while also concerned with the marital relationship, limits the scope of its marital privilege to \u201cconfidential communications.\u201d (See CPLR 4502; People v Rodriguez, 38 NY2d 95, 100.) The public policy underlying the New York privilege is to encourage \u201cthe parties to a marriage [to] speak freely to each other of intimate confidences without the fear of thereafter being confronted in litigious matters with confessions\u201d (Federated Dept. Stores v Esser, 96 Misc 2d 567, 569). New Jersey, as the place of the marital domicile, has an arguable interest in applying its marital privilege statute. However, since: (1) New Jersey judicially narrowed the scope of its marital privilege (cf. Trammel v United States, 445 US 40); (2) Jane Doe is now apparently separated from her husband; (3) New York is now conducting an investigation into the three murders which occurred within its boundaries, this State has a greater interest in applying its marital privilege statute. Moreover the fact that the Does\u2019 marital relationship has apparently deteriorated strongly militates against New Jersey\u2019s interest in having its statute applied in this proceeding. Thus, under either the Restatement approach or a governmental interest analysis approach, I find that Jane Doe may not invoke subdivision (2) of Rule 23 of the New Jersey Rules of Evidence."], "id": "35c9ffe2-41ef-4479-af19-3b838b804b35", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The court finds that the defendant\u2019s wife freely and voluntarily consented to and in fact requested the law enforcement officers to accompany her and be present in the marital *990residence on the occasion of the recovery of the property, and she was not coerced or maneuvered in any manner by law enforcement authorities. The disclosure which she made to the District Attorney and the police did not violate the , but was in fact an exception to the privilege (People v Scull, 37 NY2d 833). These disclosures which she made to the District Attorney imposed upon him a duty to act. Such disclosures constituted probable cause to arrest the defendant, based on a reasonable belief that he had committed the crimes of perjury and subornation of perjury (People v Scull, supra)."], "id": "bad34c11-d72e-4952-9473-25770682ae46", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Over defense objection, the People introduced into evidence four suicide notes, which were left on the kitchen counter of the home where the defendant\u2019s wife and children resided. The notes either were directly or indirectly addressed to the defend*1080ant\u2019s wife and/or children and one of the notes mentioned taking Xanax. The defendant contends that the Supreme Court should have barred the admission of the notes into evidence based upon the ."], "id": "3367e527-922a-4fa3-8c80-adac9ecbd7d9", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Almost as an afterthought, at the conclusion of his memorandum of law, the defendant seeks to have this court reconsider its ruling respecting the inapplicability of the . (People v Gearhart, slip opn, supra, at 6-7.) The reason for this apparent request for reargument is evidently contained in two cited cases the defendant wishes the court to consider. (CPLR 2221; Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C2221:7, C2221:8, at 157, 158.) Although not properly raised, in its discretion, this court has considered the cases posited by the defendant. The original decision of August 25, 1989 will be adhered to. (See, *259People v Gomez, 112 AD2d 445, 447 [2d Dept 1985]; People v Allman, 41 AD2d 325 [2d Dept 1973]; Richardson, op. cit., \u00a7\u00a7445, 446.)"], "id": "7455adf8-f468-4cca-b584-3f059bb68919", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The Court of Appeals, in Prink v Rockefeller Ctr. (48 NY2d 309), held that neither the physician-patient nor the permits a plaintiff to claim affirmative relief and, simultaneously, to refuse to disclose information bearing upon his right to maintain his action. The rationale is simple, i.e., \"the unfairness of mulcting a defendant in damages without affording him an opportunity to prove his lack of culpability\u201d (48 NY2d, at 316)."], "id": "d06ff9e5-fb56-4d83-b0ad-6eef71665f30", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["This contention is without merit. Defendant has not established that as a police officer, Mr. Scotti acquired knowledge of his wife\u2019s condition through his participation in this investigation (United States v Morell, 524d 550, 555; cf, Pina v Henderson, 752d 47, 49). Mr. Scotti gained knowledge of his wife\u2019s condition, if at all, in his capacity as a husband and not as a police officer, and on this basis his knowledge cannot be imputed to the prosecution (People v Bracy, 98 Misc 2d 346, 351, affd sub nom. People v De Pasquale, 75 AD2d 751, affd 54 NY2d 693). Indeed, defendant has not adduced any facts showing that Mr. Scotti even possesses any relevant information, save the equivocal plea allocution minutes. Moreover, assuming defendant can make this showing, he has not addressed the issue of whether the (CPLR 4502 [b]) prohibits revelation of such information."], "id": "1663ea04-2814-4aae-9215-bf6ac6965cf1", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["Since neither New York nor Puerto Rico recognizes common-law marriage, the issue presented was whether the mari*359tal privilege applied to what are euphemistically but not legally called common-law marriages. As common as \"common-law marriages\u201d are in this day and age, the court was astonished to find that the last reported case dealing with this issue was decided by the Court of Appeals in 1937 and in dicta at that (People v Woltering, 275 NY 51, 61). In Woltering, the court held that the issue of whether or not a prosecution witness was the common-law wife of the defendant should have been submitted to the jury with instructions to disregard her testimony if she was in fact the defendant\u2019s wife. Disregarding the dubious value of instructing a jury to strike testimony in the jury room, it is reasonable to assume that the court was not extending the to the unmarried but, instead, was allowing for the possibility that a valid common-law marriage had been contracted prior to abolition on April 29, 1933."], "id": "ac65dd69-4b5c-4ddf-b705-03415a8b30eb", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The appellate court in Matter of A. & M. (61 AD2d 426, 429, supra) concluded that communications between the parent and child did not fall within the protection of the (CPLR 4502, subd [b]) of confidential communications. However, as stated above, the rationale for the existence of a parent-child privilege is most closely analogous to the marital privilege which is \"[djesigned to protect and strengthen the marital bond, [so that it] encompasses only those statements that are 'confidential,\u2019 that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship\u201d (Poppe v Poppe, 3 NY2d 312, 315)."], "id": "e5d2d67d-beab-430d-8ded-3d541e30f68a", "sub_label": "US_Terminology"} {"obj_label": "marital privilege", "legal_topic": "Family Law", "masked_sentences": ["The is founded in public policy considerations. The Legislature has determined that the confidences exchanged between husband and wife must be protected even at the cost of frustrating the fact-finding process. The same policy rationale could logically be applied to relationships such as the one in question. However, the Legislature has also expressed a clear public policy on common-law marriages by denying them validity (Domestic Relations Law, \u00a7 11). The marital privilege operates to preclude competent and material testimony, and the Legislature has found this is justified only to protect those who are legally husband and wife."], "id": "e268cfd9-2682-47bc-b4ad-6acf8c109e1f", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["\"Spousal [s]upport clearly was not the focus of this case. The Court finds that the parties spent little time presenting evidence on or arguing the mandated ... section 4320 factors. Based upon the evidence actually presented, the Court finds that the parties had an upper-class life style [sic ]. [Joe] made significant amounts every year; [DeeDee] did not work outside the home. The parties easily paid off a multi-million dollar house and there did not appear to be any real spending curbs in place for either party. The parties enjoyed several country club memberships (one in Georgia), travel, luxury automobiles and extensive investments. There is no doubt [Joe] currently has the ability to pay a award. Both parties are in good health from an employment perspective. The Court finds that [DeeDee] has had some health challenges in the past, but there is no evidence that they currently prevent her from working. Regarding the other section 4320 factors, the Court finds that there is little evidence concerning them. The Court finds there are no special circumstances in this long term marriage; there are no unusual tax considerations. There is no documented history of domestic violence or the criminal conviction for domestic violence; to the extent that there was any domestic violence it did not impair in any way [DeeDee's] ability to work. [DeeDee] worked until the birth of her children and has not worked for several years. [DeeDee] clearly supported [Joe's] career and stayed at home raising the children. There is no evidence that care for these two older children impair in any way either party's ability to work; in fact, they currently enjoy a 50/50 custodial arrangement, thus, freeing [DeeDee] to seek and maintain employment. Neither children nor either party have any special needs that causes the Court to consider an increased spousal support award. The Court does not impute an income to [DeeDee] but does recognize she has significant investment income. Capital gains are income for purposes of support, nonrecurring or not. The Court further finds that the $884,305 that [Joe] received was a return on equity, not income. It is not a taxable income amount. The Court took no further factors into consideration in rendering the support award ....\"13"], "id": "0e925020-9c2d-42ef-b67c-9c563e99cbe9", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["4. PROPERTY. The Court finds the following distribution of property to be equitable: The Plaintiff is awarded the following property: the residence at 411 North Oakley, the 2011 Cadillac CTS, the 2004 Pontiac Grand Prix, one-half (1/2) of Defendant's Union Pacific Retirement account, one-half (1/2) of her own Arkansas Public Employee Retirement System (APERS) account, and whatever funds presently exist in the parties' joint bank account. The Defendant is awarded the following property: the 2011 Cadillac DTS, the 1994 Pontiac Grand Am, the GMC truck, the GMC Denali, the 2008 Suzuki Hayabusa Motorcycle, one-half (1/2) of his own Union Pacific Retirement account, one-half (1/2) of Plaintiff's APERS account, all of his ITW Retirement Account, and all of the cash he admitted to possessing and withholding from Plaintiff at and around the time of the separation which the Court finds would well exceed $ 6,000.00. 1. DEBTS. The Court makes the following debt distributions: The Plaintiff shall be responsible for the following marital debts: Capital One ($ 1,584.06); IRS/2015 ($ 983.46); IRS/2016 ($ 1,200.00); JCPenney ($ 386.46); LAC Collections ($ 65.51); Best Buy ($ 1,521.72); TJ Max/Synchrony Bank ($ 607.21); RCA ($ 50.00); Fordyce Bank & Trust ($ 2,703.27); Discover Card ($ 1,337.17); Exxon ($ 326.45); Dr. Brotherton ($ 64.67); Jefferson Regional Medical Center ($ 232.00); Avenue ($ 354.05); Credit One ($ 1,827.85); Children's Place ($ 199.00); Midland Funding ($ 2,095.32); and GM Financial for the 2011 Cadillac CTS ($ 14,172.56). The Defendant shall be responsible for the following marital debts: Sears Credit Card ($ 1,091.49); Best Buy ($ 1,158.00), IRS taxes owed for 2014, 2015, 2016, and 2017; debt on the 2011 Cadillac DTS (approximately $ 14,000.00); and other credit card debt in Defendant's name. 2. ALIMONY. The Court finds after considering the financial circumstances of both parties; the financial needs and obligations of both; the couple's past standard of living; the amount and nature of the income, both current and anticipated, of both husband and wife; the extent and nature of the resources and assets of each of the parties; the amount of income of each that is spendable, the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses; the earning ability and capacity of both husband and wife; property awarded or given to one of the parties, either by the court or the other party; the disposition made of the homestead or jointly owned property; the relative *191fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both; and the duration of the marriage; that the Plaintiff should receive . Defendant shall pay the amount of $ 500.00 per month for a period of forty-eight (48) months at which time the support shall cease. Support shall cease earlier if the Plaintiff remarries prior to the conclusion of the forty-eight months. Stanley's appeal timely followed."], "id": "229681ca-2f3b-4d42-a0ff-8d2ddda4ecca", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["On December 30, 2016 Leon filed a new request for order (RFO) seeking termination of . Both Leon and Sandra were 56 years old at the time of the motion. The primary basis for Leon's request was that he was retiring and Sandra would therefore begin receiving an amount from her portion of his retirement benefits that was close to the amount of spousal support Leon had been paying."], "id": "548d27ea-91a4-446d-9504-d9f5a0c0429b", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["We see no legal basis to distinguish between the enforcement of a premarital agreement to waive , and a postmarital agreement to do the same. Parties prior to marriage or in dissolution proceedings are entitled to reach agreements about spousal support, and so long as the circumstances surrounding the formation of the agreement are conscionable and lawful, courts will not intervene in the unintended consequences to the parties in the future. From Natalia's perspective, circumstances changed after Judge Gallagher *12determined the PMA was enforceable. We do not see any legal or factual authority that allowed the trial court to override Judge Gallagher's decision based on that change. We find Judge Towery properly denied Natalia's request for spousal support and affirm the judgment accordingly. *864F. Conclusion***"], "id": "e99bb003-fec6-444d-8b94-cfc3e128186e", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["\u201cNew York and Federal laws exempt certain income from debt collection. Creditors cannot seize income such as Social Security, disability, pensions, public assistance, child support, and veteran\u2019s benefits. Federal law specifically prohibits the use of the legal system to satisfy debts from veteran\u2019s benefits, Social Security (SS), Social Security Disability (SSD), and Supplemental Security Income (SSI). For 750,000 New Yorkers, Social Security is their *960only source of income. New York law also exempts benefits, such as pensions, public assistance, workers compensation, unemployment insurance, as well as child support, and or maintenance. To ensure that money judgments do not render working New Yorkers unable to care for their or their families\u2019 most basic needs, New York also protects a baseline amount of every person\u2019s earnings. It exempts 90 percent of earnings deposited into a bank account within 60 days prior to the date the bank receives the restraining notice. \u201cNew York law also protects from garnishment a set amount of wages which is equivalent to thirty hours per week of employment at minimum wage. The exemption laws were enacted to ensure that safety-net income is not diverted from its intended purpose: helping the: elderly, disabled, and poor to maintain the resources needed for food, rent, medicine and other basic necessities. Despite existing law, bank accounts containing legally exempt income are frozen with \u2018restraining notices\u2019 issued pursuant to CPLR 5222, and hundreds of vulnerable New Yorkers lose access to the funds required for basic needs. The impact on low-income New Yorkers is devastating and puts families in peril of hunger, illness, loss of utilities, eviction and further loss of their limited income to bank fees. CPLR 5222 enables creditors to ignore exemption laws by empowering them to freeze an account regardless of its contents. CPLR 5222 permits a judgment creditor\u2019s attorney to send a restraining notice to a bank holding a judgment debtor\u2019s account. Direct deposit of benefits has become nearly universal. Currently, over three million or 80 percent of all SS, SSD, and SSI beneficiaries in New York receive their benefits through direct deposit, consistent with federal policy. Banks can easily identify accounts holding directly-deposited exempt income because each electronic deposit clearly states its source. However, under current law, CPLR 5222 makes no allowance for direct deposit of exempt funds and, instead, requires the bank to freeze the account or to risk being held in contempt of court. Only after the account is frozen, does a debtor receive notice of the restraint. Working New Yorkers are even further disadvantaged because they are given no notice that *96190% of their wages from the 60 days prior to the restraint is exempt. The burden is on the account holder to show that the account contains exempt income. In the interim, the debtor is left without any financial resources. To make matters worse, currently the CPLR provides no specified procedure for a claim of exemption, and debtors are left guessing as to how to enforce their exemption rights. The system conflicts with federal and New York State\u2019s policies of protecting certain funds from forcible collection to satisfy a judgment. The problem has reached epidemic proportions in New York. Debtors often have difficulty getting an account released even though the creditor has no legal right to its contents. Banks can provide little help, as only the creditor or a judge can release the account. \u201cAll too often, however, creditors ignore calls from debtors, demand a debt payment as a condition of releasing the account, or insist on proof of the exemption that an elderly, disabled or poorly-educated person may be unable to produce, even when the bank possesses the necessary proof. Moreover, using the courts to claim an exemption is complicated and extremely difficult without the aid of a lawyer. Seeking relief in court takes at least two weeks and usually longer. While the courts have pro se forms to help litigants with a range of legal problems, there are no forms for exemption claims. In the worst cases, account holders do not understand their rights, while others give up trying to overcome the obstacles to releasing their accounts. The result is that creditors often take safety-net income from New Yorkers living on the margins. Those effected are unable to provide basic necessities for themselves and their families. Those who regain access to their accounts discover that the bank has debited their accounts for legal processing, overdraft and bounced check fees, often totaling hundreds of dollars. For low income debtors, such a loss often means skipping meals or forgoing medical treatment in order to pay the rent. The experience is so costly that many give up their bank accounts and revert to using expensive nontraditional financial services, including check cashing services. \u201cNumerous stories have been featured in the press regarding the seizure of exempt funds. Both the Wall *962Street Journal and the Christian Science Monitor have recently published stories which called attention to the problem. It has become clear that a legislative solution is required. This bill will create a legal procedure by which judgment debtors are informed of which funds are exempt and provided an opportunity to assert that the funds in their account are exempt from seizure before the account is completely restrained or executed against. However, creditors will be able to restrain funds above the threshold levels and access non-exempt funds after the procedure has run its course. Connecticut and California have recently enacted similar laws to protect their most vulnerable citizens. The Assembly Judiciary and Consumer\u2019s Committees held hearings on debt collection which brought to light the serious harm caused by the inability of the system to prevent the seizure of exempt funds. This bill will resolve the problem of seizing exempt funds and allow both judgment debtors and judgment creditors to protect their rights under the law.\u201d (Senate Introducer Mem in Support, 2008 NY Senate Bill S6203B [emphasis supplied].) In addition to this statement of legislative intent, the court also notes that Assemblywoman Helene Weinstein, Assembly sponsor of Bill A8527-A/S6203-B wrote to Governor Paterson urging him to sign the measure into law, as it was unanimously passed by the Assembly and Senate, and it established a procedure which would permit debtors to assert that their income is exempt from the execution of a money judgment. The Assemblywoman further stated:"], "id": "79f03786-5680-4190-addc-8e3af06c571c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["(1) the relative earning abilities of the parties; (2) the ages and physical, mental, and emotional conditions of the parties; (3) the retirement benefits of the parties; (4) the duration of the marriage; (5) the standard of living of the parties established during the marriage; (6) the relative education of the parties; (7) the relative assets and debts of the parties, including but not limited to any court-ordered payments by the parties; (8) the time and expense necessary of the spouse seeking support to acquire education, training, or job experience; (9) the tax consequences for each party of an award of ; and (10) any other factor that the court expressly finds to be relevant and equitable."], "id": "760485e6-767b-43fc-b837-2012d590c1b6", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The prenuptial agreement provides in article III, \u00a7 2 as follows: \u201cEach of the parties waives, releases, relinquishes, and forever renounces any and all right to maintenance from the other to the fullest extent permitted by law including, but not limited to, any right to maintenance under Section 236.6, Part B, of the Domestic Relations Law.\u201d Article III, \u00a7 3 of the prenuptial agreement further provides: \u201cIn the event that the parties should become involved in an action or other proceeding for or for divorce, separation and/or annulment, then each of Ms. Covello and Mr. Arizin agrees not to seek or request or to accept permanent or temporary or interim maintenance, support or alimony or to seek or accept counsel fees from the other in, or in connection with, that action or proceeding.\u201d The prenuptial agreement further provides in article III, \u00a7 4:"], "id": "5724e9c3-c00f-4ce0-90ed-75d5cf43e5ce", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Ashlyne filed a responsive declaration to Vikash's request. She stated that she did not have a work permit because Vikash stole her green card and she was still waiting for replacement papers. Ashlyne reported that when she tried to apply for jobs, she was asked for proof of residency, and that after Vikash abandoned her, she was on cash aid and food stamps until she started receiving . Ashlyne attached the I-864 affidavit to her response, and asked the court to continue support \"because [Vikash] swore to the US Government he would take care of me for 10 years or 40 working quarters....\""], "id": "1afa2976-0bee-468a-9a6c-cdc078aad9f5", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Pointing to the fact that the wife receives $75,000 a month in combined temporary child and and that she stands to walk away from the marriage with somewhere in the vicinity of $10 million in equitable distribution, the husband asserts that it is time for the wife to assume some of the burden for the cost of the litigation. In so doing, he invokes a phrase that might not be found in a legal dictionary or used in any reported case, but is heard frequently in the context of matrimonial proceedings. The phrase is \u201cskin in the game,\u201d and it refers to the belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation.2"], "id": "8d29180b-2e8f-43d9-ba52-1bffdaaca6fe", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In mid-July 2015, the parties came to an agreement that resolved the amount of permanent Cuellar would pay Mendoza without the need for a trial. The signed stipulation and order indicated support would be in the amount of $800 per month, beginning July 1, 2015. It also stated \"retroactivity of spousal support\" was an outstanding issue the court would decide at a hearing scheduled for the following month."], "id": "564282ba-b497-4906-ae73-b62f8d3632c2", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["[t]he parties experienced a moderate standard of living during the marriage. Both parties testified credibly that most of their income was spent on their children\u2019s education, and most of their savings was in the form of equity in the marital residence and in the IRA divided above. This factor weighs slightly against [Csilla\u2019s] request for . [Kevin\u2019s] testimony was credible in that he stated the parties\u2019 plan for the future was for the business entities to become more valuable over time as their cross collateralized loans were paid down, so that they could either be sold at substantial profit, or so that the shareholders could take a larger annual distribution. Nothing in the magistrate\u2019s well-reasoned analysis remotely suggests"], "id": "61e3e35d-4bde-4ed7-99a0-5136aedf39cd", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Thus, construing Domestic Relations Law \u00a7 236 (B) (9) (a) in a vacuum distracts the reader from the true intent of the Act. This statute was enacted as part of a series of procedural measures to aid in the implementation of family support obligations, which were enacted in Laws of 1985 (ch 809). They are known collectively as the New York State Support Enforcement Act of 1985. In Governor Mario Cuomo\u2019s approval of the bill dated August 2, 1985, he stated that the \"bill * * * will enact dramatic and comprehensive reforms of the child and enforcement system.\u201d (1985 McKinney\u2019s Session Laws of NY, at 3324; emphasis by the court.) The legislative data indicated that the Act will bring New York into compliance with recently enacted Federal child support requirements (see, 42 USC \u00a7 651 et seq.) and bring comprehensive reform of child support enforcement in New York State (see, Governor\u2019s mem on approving L 1985, ch 809, 1985 McKinney\u2019s Session Laws of NY, at 3324). It is clear that equitable distribution awards were not within the Legislature\u2019s contemplation when the Act was considered. The mischief intended for legislative remedy was, according to the Governor\u2019s memorandum, overdue support obligations, and the remedy chosen was, inter alia, expedited judicial resolution of these matters. This act should be construed in a manner which suppresses the evil and advances the remedy (McKinney\u2019s Cons Laws of NY, Book 1, Statutes \u00a7 95)."], "id": "d2f615d2-d4af-4e33-86d3-17b03629881f", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Unclean Hands Lisa also claims that the district court abused its discretion in failing to deny Mark\u2019s complaint for modification on the basis of his unclean hands. She argues that Mark \u201cwillfully and intentionally refused to pay child and , despite his clear ability to do so.\u201d Brief for appellant at 14. [9] As applicable to complaints for the modification of child support and alimony obligations, the Nebraska Supreme Court has stated that in cases in which a party owes past due alimony or child support, \u201cthe courts have generally held that the failure to pay must be found to be a willful failure in spite of an ability to pay before a request for modification of a decree may be dismissed on the basis of \u2018unclean hands.\u2019\u201d Voichoskie v. Voichoskie, 215 Neb. 775, 777, 340 N.W.2d 442, 444 (1983) (Voichoskie I). See, also, Marr v. Marr, 245 Neb. 655, 515 N.W.2d 118 (1994); Voichoskie v. Voichoskie, 219 Neb. 670, 365 N.W.2d 467 (1985) (Voichoskie II); Richardson v. Anderson, 8 Neb. App. 923, 604 N.W.2d 427 (2000). In its order modifying the decree, the district court did not make an express finding as to whether the doctrine of unclean hands barred any modification of Mark\u2019s support obligations. - 467 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456"], "id": "01ec0b1a-0c9b-4229-8694-67387305551d", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In Shimkus , supra, 244 Cal.App.4th 1262, 198 Cal.Rptr.3d 799, the trial court granted an ex-husband's post-judgment motion to terminate he had been ordered to pay to his ex-wife. On appeal, the court rejected the ex-wife's claim that the trial court erred in failing to consider the declaration that she filed prior to the hearing on the motion. The ex-wife never moved to admit the declaration as an exhibit at the hearing. The court noted that \"[s]ection 217 instructs that in a hearing on a motion or order to show cause, except under limited circumstances, i.e., the parties' stipulation or good cause, live testimony is required. (\u00a7 217, subds. (a), (b).) And the court made it clear the hearing would be conducted using live testimony.\" ( Id. at p. 1270, 198 Cal.Rptr.3d 799, fn. omitted.)"], "id": "bbb9abf9-4bd0-4909-8883-b459bebfebd3", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The Italian civil separation action continued. While that action was pending, on July 24, 2001, plaintiff instituted the instant action for divorce and for ancillary relief, including equitable distribution, custody, child support, and counsel fees. On March 20, 2002 the Italian court issued a decision in the Italian separation proceeding. The Italian court found that the parties were entitled to a judicial decree of separation. The court further found that both parties were at fault and, therefore, denied the applications for alimony. Plaintiff was given custody of C. Defendant was awarded annual visitation with C., in Italy, every July 1 through July 31 and for 10 days during the Christmas vacation period. Defendant was also directed to pay child support in the amount of $413.17 euros per month and 50% of all medical, schooling and extraordinary expenses. The decision of the Italian court was affirmed on appeal."], "id": "c9954ac8-59e7-4a7c-b797-978ffe71f098", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In August 1986, pursuant to stipulation, the trial court entered a final judgment. It provided: \"The Court finds that [Janice] has a 43.1% interest in [Robert]'s United States Air Force Pension, and that she shall receive the sum of Two Hundred Thirty ($230) Dollars per month, or 43.1% of said pension, whichever sum is greater. Said payments to commence on May 1, 1986, providing that [Robert] shall make such payments to [Janice] until such time as the United States Air Force is able to process [Janice]'s claims so that her share of the military pension can be paid directly to her.\" The judgment reserved jurisdiction over the issue of ."], "id": "40ffcd9b-ff66-4809-9b8d-6026d79bf61c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The judgment is reversed with respect to the modification of the 2014 pendente lite child and awards, and the permanent spousal support award, and remanded for the limited purpose of recalculating those awards consistent with this opinion. In all other respects, we affirm the judgment. We reverse and remand the postjudgment attorneys' fee order. Petitioner Dorothy Ciprari is awarded her costs on appeal."], "id": "097b3a2a-91ff-45b0-a4f4-831d98ee69fe", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In 1975, the Court of Appeals, in a case involving the arbitration of , held that \"Notably, in matrimonial *512cases, public policy considerations abound: viz. * * * parents are chargeable with the support of their children (Family Ct Act, \u00a7\u00a7 413, 414) * * * Nonetheless, arbitration provisions in separation agreements have been enforced as to the amount a husband must pay for the support of his * * * child * * * (Schneider v Schneider, 17 NY2d 123)\u201d (Hirsch v Hirsch, 37 NY2d 312, 315-316). The Hirsch case also noted that agreements to arbitrate custody and visitation rights have been upheld, citing the Sheets case (supra). Later that year, however, the Court of Appeals noted that \"Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may also restrict the freedom to arbitrate. School matters are but one example; indeed, matters affecting marriage, child custody, and the like, are not subject to unbridled arbitrability\u201d (Matter of Susquehanna Val. School Dist. [Susquehanna Val. Teachers\u2019 Assn.], 37 NY2d 614, 616-617). In so holding, the Court in the Susquehanna case cited the Schneider and Sheets cases (supra)."], "id": "007ce743-01a6-4e42-969a-06e627a1dfd7", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In May 2014, Mendoza filed a petition for dissolution, seeking to dissolve her more than 22-year long marriage to Elias R. Cuellar. She used the relevant Judicial Council form for the petition and checked the box indicating she was seeking . Following a mandatory settlement conference, the parties came to an agreement on certain issues. Spousal support was among the few issues left for trial."], "id": "489fc411-a1f6-4938-8353-9f41a7e07f78", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The court recognizes that the provisions in this decision and order will greatly affect the parties\u2019 respective post-separation standards of living. They need to consider the financial predicament they are in, and how to deal with the future. They are now suffering the consequences of their prior high standard of living. It is beyond dispute that two cannot live as cheaply as one, and that \u201chardship\u201d at any economic level follows drastic losses of income. It is time for the parties to recognize the financial reality they may well face in the future, given their ages, work experience and future prospects for employment. The court urges that the parties\u2019 focus should be on financial planning with asset and debt liquidation. The continuance of this costly litigation will not heal their wounds, both economic and emotional, already suffered, but rather will exacerbate them."], "id": "94c926e5-f298-4a43-a053-9db1035b25fb", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["*482The Support Collection Unit argued that it was established under Social Services Law \u00a7 111-h (1) \u201cto collect, account for and disburse funds paid pursuant to any order of child support or child and issued under the provisions of section two hundred thirty-six or two hundred forty of the domestic relations law, or article four, five, five-A or five-B of the family court act.\u201d It is the position of the Support Collection Unit that Social Services Law \u00a7 111-h (4) requires that \u201cAny and all moneys paid into the support collection unit pursuant to an order of support made under the family court act or the domestic relations law, where the petitioner is not a recipient of public assistance, shall upon payment into such support collection unit be deemed for all purposes to be the property of the person for whom such money is to be paid.\u201d They argued that there is no authority under the enabling statutes or regulations which mandates the collection and disbursement of attorney fee payments in addition to child support and spousal support. The Support Collection Unit asserted that it has no legal duty or power to decide fee disputes between attorneys and their clients."], "id": "0055432c-68f8-49c7-8eb6-4b80857e3746", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Defendant\u2019s reliance on Matter of Cox v Cox (181 AD2d 201 [3d Dept 1992]) is misplaced. Cox concerned issues of spousal *254maintenance. As previously discussed, since 1986 child support and have been treated differently. Moreover, the right to maintenance belongs to the parties. They have broad discretion to fashion the parameters of those rights between them. The rights of children to parental support, however, belong to the children and not the parties. Parents are not free to contract away the child\u2019s rights of support and a child is not bound by the terms of any agreement. (Matter of Boden v Boden, 42 NY2d 210 [1977]; Strenge v Bearman, 228 AD2d 664 [2d Dept 1996].)"], "id": "c53781cd-c6eb-4e31-a604-1eda5adb1b45", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The judgment awarded father and mother joint legal custody of the children, and ordered father to maintain health insurance for the children and to pay $1,454 per month in child support, half of school or child care costs, and half of uninsured medical expenses. The judgment awarded the family home to father, who was to continue to maintain and pay all debts concerning the home, but also provided that mother and the children could continue to live there with father until M.F.'s 18th birthday. Mother and father both waived , and the trial court retained no jurisdiction to later award spousal support."], "id": "6066e715-0351-4e30-9d48-3c0935993872", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The pertinent ruling in the Putative Spouse Order is that Florencia is Juan's \"spouse or putative spouse\" and that she may proceed with the claims in her Nullity Petition. The pertinent ruling in the Support Order is that Juan must pay Florencia specified amounts of arrears, temporary monthly spousal support and attorney fees and costs. Juan argues that, in reviewing these rulings, we must decide whether the judgment of dismissal in the Dissolution Action bars Florencia's claims in this Nullity Action."], "id": "20155836-3951-483e-9780-a6c0e0f6e307", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["While those cases are instructive, the court has identified some cases that provide even more direct support for the wife\u2019s position. In both Adler v Adler (224 AD2d 282 [1st Dept 1996]) and Berger-Carniol v Carniol (273 AD2d 427 [1st Dept 2000]), the Appellate Division for the First Department affirmed orders directing that the husband\u2019s retirement funds be used to pay counsel fees incurred in order to enforce the wife\u2019s child and awards. In both decisions, the Appellate Division cited CPLR 5205 (c) (4), which provides that"], "id": "1478a827-a966-4fdd-972d-865d87a46a5d", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Kevin also argues that because the court considered his wife's contribution to the couple's monthly expenses (which presumably were paid out of earnings from Berman & Ely), it was a \"double dip\" to further impute those earnings to Kevin for purposes of . We do not find this persuasive. Although the court in analyzing the factors under section 4320 noted that Kevin had reported that his wife contributed $5,000 a month to their combined expenses, there is no indication that the court considered that $5,000 as being in addition to the presumed future business income from Berman & Ely, or indeed that the $5,000 was a material factor at all in setting the amount of spousal support."], "id": "f3f5b57b-7741-4b1c-86d1-1ca00abf126b", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["After the decree was entered, Martens made only two spousal-support payments. Martens unilaterally ceased his alimony payments, believing Blasingame had begun cohabitating with her boyfriend in March 2015. In May 2015, Blasingame remarried. On December 15, 2016, the Office of Child Support Enforcement notified Martens that it would begin withholding past-due and future claims for child and from his wages.1 As a result, Martens filed a motion to clarify the divorce decree relating to alimony. Citing Arkansas Code Annotated section 9-12-312, Martens argued that he no longer owed spousal support because his liability for alimony automatically ceased in March 2015 upon Blasingame's cohabitation, or at the very latest, in May 2015 when Blasingame remarried."], "id": "013dd250-2bae-4168-996f-bc977a363905", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["On March 15, 2016, the trial court signed temporary orders, requiring Michael to pay Donna $25,000 per month in and ordering him to pay various debts, including credit card balances and various property taxes owed on the couple's Houston home. The trial court also required Michael's employer to withhold income from Michael's paycheck to satisfy the spousal support."], "id": "fd89aaa8-33f3-455c-9989-b799ce1b5f91", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": [". The petition specifies the grounds of the application, the name, date of birth, place of birth, age and residence of the petitioner and the name which he proposes to assume. The petition also specifies that the petitioner has not been convicted of a crime or adjudicated a bankrupt; that there are no judgments or liens of record against him or actions or proceedings pending to which the petitioner is a party; and that the petitioner is not responsible for child or obligations."], "id": "cb853a1d-3399-4a03-a1c3-24762d6538e1", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["After conducting a court trial on the petition, the trial court issued a statement of decision and entered a judgment incorporating that statement. Among other issues, the court determined that the parties' date of marriage was February 6, 2009, the date G.C. and R.W. married in Connecticut. The court also concluded that the parties had separate property interests in the appreciation in the value of the marital residence, in amounts proportional to their separate property contributions to the down payment.3 The court declined to award R.W. any permanent or to order that G.C. pay any of R.W.'s attorney fees.4"], "id": "17d03601-53df-4b83-8a8f-7389ce7edff0", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["We find the trial court's reliance on Thornton to be misplaced. In Thornton , the stipulated judgment dissolving the marriage required husband to pay $ 400 a month in , \"commencing May 15, 1997, and continuing until further Order of the Court, death of either party, or for a period until March 1, 2003, whichever first occurs. Said spousal support shall be non-modifiable.\" ( Thornton , supra , 95 Cal.App.4th at p. 253, 115 Cal.Rptr.2d 380.) Two days after judgment was entered, husband moved to stay entry of judgment based on the \"omission of wife's remarriage as an event terminating spousal support.\" ( Ibid . ) No one appeared at the hearing, and the motion was taken *1201off calendar. ( Ibid . ) Later, after wife remarried, husband moved unsuccessfully to terminate spousal support. ( Ibid. ) The Court of Appeal reversed on the ground the parties failed to expressly waive the requirements of section 4337. ( Thornton , at pp. 254, 115 Cal.Rptr.2d 380 [\"there was no express waiver\"], 257 [\"If the parties wish to make a written agreement to waive the remarriage provision of section 4337, they must at a minimum expressly state that the supported spouse's remarriage will not terminate spousal support.\"].)"], "id": "3c48bd17-6f82-4d95-be97-8e1249505c64", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Juan challenges Florencia's legal entitlement to an award of temporary and fees and costs, not the amounts awarded. More specifically, he contends that, because the Dissolution Action and the Nullity Action \"involve [ ] identical petitions, the same parties, and the same requests for relief\" and because the dismissal of the Dissolution Action is final, application of the doctrine of res judicata to the order dismissing the Dissolution Action precludes the claims in the Nullity Action. We disagree. As we explain, since the Dissolution Action and the Nullity Action do not involve the same primary right , the finality of the dismissal of the Dissolution Action is not a bar to the prosecution of the Nullity Action."], "id": "4bc0ba83-275e-456a-94d4-d18e0c0f0cc5", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["\u201c[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of , the payment of child support, the payment of counsel and experts\u2019 fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce\u201d (id.). Mr. Schiffer claims that he is entitled to summary judgment because the statute requires one party to subjectively decide whether the marriage is over. He further claims that the statute does not require an examination of objective criteria for determining what constitutes an irretrievable breakdown of the marriage nor does it provide for any defenses. While Mr. Schiffer concedes that equitable distribution and custodial issues have yet to be addressed, he avers that this lack of resolution does not equate to a failure to establish his prima facie case. Instead, he argues that he has fulfilled the necessary requirements of the statute by making a statement under oath that the marriage is irretrievably broken for at least six months, and he is thus entitled to the relief that he is seeking."], "id": "beabd6fd-3853-4c6b-8f03-c8fb65be2ce7", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In Blair , the plaintiff was a nurse hired by a father to care for his and his wife's disabled infant. ( Blair , supra , 86 Cal.App. at p. 678, 261 P. 539.) After separation, the father moved to California; he thereafter helped the mother, child, and nurse move to California. ( Ibid . ) Prior to dissolution, the father was paying *71the nurse's salary. ( Ibid . ) In the divorce proceeding, the court ordered the father to pay child and to the mother, with the understanding the mother would pay the nurse, who knew the contents of the court order.15 ( Ibid . ) The Court of Appeal, upon reviewing the relevant statutory provisions concerning child support, including the predecessor to section 3950, determined that the father was not obligated to pay any more than what was ordered for support in the divorce decree. ( Id . at pp. 687-688, 261 P. 539.) In doing so, the court adopted a holding from the supreme court of Nebraska: \" 'When in a divorce action there has been such a judicial ascertainment of the amount the father should pay for the support of his minor children, that amount is presumed to be just and reasonable *785until it is reversed or modified by a subsequent order of the court. The amount thus ascertained , so long as the decree remains in full force, is in this state the legal measure of the father's liability for the support of his child .... While the decree in the divorce action awarding the custody of the minor children to the mother and providing for an allowance for their support and maintenance remains in force, the father is not required to provide further clothing or shelter for his minor children, the measure in that respect being the amount provided in the decree .' [Citation.]\" ( Ibid. , italics in original.) The appellate court gave great credence to the fact the nurse was fully aware of the trial court's order. ( Id . at pp. 684-685, 261 P. 539.) The Court of Appeal reversed the trial court to the extent it required the father to pay the nurse any money after entry of the support order. ( Id . at p. 688, 261 P. 539.)"], "id": "d8d020ca-2763-48d3-96b0-79e3759a9c98", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["We reject Vikash's argument that the applicable standard of review is abuse of discretion. Vikash argues we should review whether the trial court abused its discretion in terminating temporary under the considerations set forth in the Family Code. Ashlyne, however, is not challenging the *1079trial court's determination that she is not entitled to additional spousal support under California's statutory scheme. Her appellate claim is solely that the trial court erred \"in denying enforcement of a contract formed by an I-864 Affidavit requiring financial support.\" Whether Ashlyne could enforce the I-864 affidavit in state court and whether she had duty to mitigate are questions of law."], "id": "8dfe23d6-30d0-4bc5-ae75-36b76bd6a89c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["By the 1970's, an action for legal separation was regarded as implementing the judicial concept of \"divisible divorce,\" which recognizes that the economic aspects of a marital separation can be judicially resolved separately, in time and place, from the issue of marital status. (See generally Hull v. Superior Court (1960) 54 Cal.2d 139, 147-148, 5 Cal.Rptr. 1, 352 P.2d 161 ; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1248, 251 Cal.Rptr. 846.) As the remedy was characterized in Faught , \"Separate maintenance (now legal separation) is essentially a device to determine and settle the spouses' financial responsibilities to one another and to their minor children. While the law may once have been to the contrary [citation], a decree of separate maintenance now operates as a final adjudication of such financial aspects of the matrimonial relationship as , division of community property, and settlement of property rights, and to the extent the decree deals with such matters it is conclusive.\" ( Faught , supra , 30 Cal.App.3d at p. 878, 106 Cal.Rptr. 751.)"], "id": "f50699ff-0d40-456e-8782-64fa15af86ee", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["may order a party to (a) maintain any existing life insurance policy on the insured party\u2019s life that was purchased during the marriage . . . provided that . . . the payee has been designated as a beneficiary of such policy during the marriage . . . ; (b) designate the other party as beneficiary of all or a portion of the death benefit of such life insurance for so long as the insured party so ordered has an obligation to pay to the other party, provided that . . . the payee has been designated as a beneficiary of such policy during the marriage . . . ."], "id": "c3af6255-04e8-4847-a0f8-3be71c152aea", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["To modify , a trial court must first find \" ' \"a material change of circumstances since the last order.\" ' \" ( Minkin , supra , 11 Cal.App.5th at p. 956, 218 Cal.Rptr.3d 407 ; Dietz , supra , 176 Cal.App.4th at p. 396, 97 Cal.Rptr.3d 616 ; see also In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480, 274 Cal.Rptr. 911 ( Smith ) [\"Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order.\"].) In its changed-circumstances analysis, the court considers all factors affecting the supported spouse's needs and the supporting spouse's ability to pay. ( In re Marriage of West (2007) 152 Cal.App.4th 240, 246, 60 Cal.Rptr.3d 858.) An \"increase in the supporting spouse's ability to pay\" may constitute a change in circumstances. ( In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, 48 Cal.Rptr.2d 864, citing In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173, 208 Cal.Rptr. 345.) When support is governed by a marital settlement agreement or stipulated judgment, the trial court's changed-circumstances determination must \" ' \"give effect to the intent and reasonable expectations of the parties as expressed in the agreement.\" ' \" ( Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.)"], "id": "41b3080f-9a84-4d39-8054-e4c66a1c42c4", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["However, in its journal entry dated December 7, 2020, the court denied Lisa\u2019s \u201cMotion for New Trial\u201d in which she claimed that the court failed to make a finding regarding her \u201callegation of \u2018unclean hands\u2019 when the evidence was undis- puted that [Mark] had the ability to pay child support and , yet [he] intentionally elected not to pay sup- port due.\u201d Based on this journal entry, it is evident the district court concluded the doctrine of unclean hands did not bar the requested modification of Mark\u2019s support obligations. In our de novo review, we cannot say the court abused its discretion in reaching that conclusion. The payment history reports for Mark\u2019s child support and alimony obligations indicate that prior to the termination of his employment with Union Pacific, Mark was generally con- sistent in paying both child support and alimony. While Mark occasionally fell behind on these obligations, the accumu- lated arrears during this period were generally not substantial. However, the payment history report for Mark\u2019s alimony obli- gation indicates that after a payment of $931.41 on September 15, 2019, Mark paid only $0.94 in alimony to Lisa through September 8, 2020. At that date, Mark\u2019s alimony arrearage under the parties\u2019 decree of dissolution totaled $12,190.06. As for child support, Mark\u2019s payments were sporadic after his termination of employment in September 2019. The record indicates that in the last third of 2019, Mark\u2019s child sup- port payments included $73.58 in September, $1,202.50 in November, and $500 in December. In 2020, he paid $942.55 in May, $1,405 in June, and $565.38 in August. By September 8, 2020, Mark\u2019s child support arrearage under the parties\u2019 decree of dissolution totaled $8,791.84. Lisa directs our attention to the Nebraska Supreme Court decisions in Voichoskie II, supra, and Marr v. Marr, supra, as analogous to the facts in the present case. In Voichoskie II, the Nebraska Supreme Court noted that the former husband, in addition to his poor history of child support payments which had frequently \u201cbeen forcibly extracted from him by - 468 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456"], "id": "3e5d7af4-baa5-445f-baac-e58a7a63cdf3", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Husband and wife married on January 31, 2004, and separated on February 1, *5612013. Six months later, husband petitioned to dissolve their marriage, and on December 2, 2013, a judgment was filed using the Judicial Council of California form FL-180 and a seven-page attachment (form SB-12035),2 which set forth the court's orders respecting the parties' agreement. According to form SB-12035, husband was required to pay in the sum of $ 1,000 a month, commencing on October 1, 2013 and continuing until August 1, 2017. The parties agreed that spousal support shall not \"terminate upon the death of either party or the remarriage of the supported *1198party, or further order of the court, whichever occurs first\" when they did not check the box next to this requirement.3 The parties executed the necessary paperwork without the assistance of counsel."], "id": "43ac2441-bf2f-4a9e-9f29-359c32cfd38b", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["DeeDee's principal complaint about the $5,000 per month permanent award is that it is disproportionately low when compared to Joe's income and ability to pay, particularly considered in light of the \"upper class\" marital standard of living described by the trial court. \"[W]e review spousal support orders under the deferential abuse of discretion standard. [Citation.] We examine the challenged order for legal and factual support. 'As long as the court exercised its discretion along legal lines its decision will be affirmed on appeal, if there is substantial evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld \"as long as its determination is within the range justified by the evidence presented.\" ' \" ( In re Marriage of Blazer , supra , 176 Cal.App.4th at p. 1443, 99 Cal.Rptr.3d 42 ; In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197, 52 Cal.Rptr.3d 744.)"], "id": "ce0a28ee-0216-410e-9ec7-381eb2a9407c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Prior to the dissolution hearing, Mendoza filed a trial brief and various other documents, including some related to factors the court considers in *942determining whether to award permanent and the appropriate amount. The trial brief specified she was requesting \"[t]he court make a permanent spousal support order, ordering [Cuellar] to pay monthly spousal support to [her] in accordance with her 'Proposed Needs.' \" Nowhere in the trial brief or in the accompanying documents did Mendoza request temporary spousal support."], "id": "97767a78-d531-4889-836d-8d30a96c29f3", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The only evidence that the transfer was in good faith came from Kevin's declarations and papers below, in which he insisted that he did not transfer the business to avoid his support obligations. The court did not believe him, and that credibility determination is binding on this court. ( Hill & Dittmer, supra , 202 Cal.App.4th at pp. 1051-1052, 136 Cal.Rptr.3d 700 ; see In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 162, 13 Cal.Rptr.2d 799 [determination of good faith is a credibility determination within the trial court's discretion].) Although Kevin argues that, unlike in Dick , there was no evidence that he continued to have access to the business, the burden was on him, as the party seeking modification, to prove a material change of circumstances. (Stephenson, supra , 39 Cal.App.4th at p. 78, 46 Cal.Rptr.2d 8.) Here, the court found that the \"material change\" of the business transfer was a sham and therefore could not justify further modification of the order.7"], "id": "3b508d0d-503a-4f12-ab1b-ddae5f461c11", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["*1344However, \"a necessary exception to the one final judgment rule\" is the collateral order doctrine, pursuant to which an interlocutory order is appealable if it finally determines the rights of the parties in relation to that matter, leaving no further judicial acts to be done in regard thereto, and directs the payment of money or performance of an act. ( Skelley , supra , 18 Cal.3d at p. 368, 134 Cal.Rptr. 197, 556 P.2d 297.) In Skelley , for example, our Supreme Court held that a direct appeal lies from an order reducing temporary and denying attorney fees and costs. ( Ibid . ) As specifically applicable here, In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 147 Cal.Rptr.3d 453 reaffirms that an order initially setting temporary spousal support is \" ' \"directly appealable as a final judgment independently of the main action.\" ' \" ( Id. at p. 1074, 147 Cal.Rptr.3d 453, quoting In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595, 124 Cal.Rptr.2d 342.) This is not a new concept; even prior to the Family Code, orders granting or denying temporary alimony were also \"directly appealable.\" ( Greene v. Superior Court (1961) 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249.)"], "id": "2ef835f3-8bd2-426a-aa45-e0092e30ed13", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["It must be emphasized that the payments required over a 10-year period represent Mrs. Maloney\u2019s equitable share in plaintiff\u2019s medical license, and not . The equitable distribution statute created this new class of property, heretofore unknown to the common law, when it classified all property as \"marital\u201d or \"separate\u201d. The fact that the license is not property in the traditional sense, as something with a market value, is irrelevant. It is nonetheless property as opposed to the concept of maintenance, which attempts to permit the recipient an opportunity for financial independence. All of the foregoing has been well settled by the Court of Appeals in OBrien v O\u2019Brien (66 NY2d 576). Following the lead of O\u2019Brien the Second Department has recently held that it is error for the court to treat the wife\u2019s award of a portion of her husband\u2019s pension, i.e., marital property, as an additional source of maintenance rather than as a property division (Buzzeo v Buzzeo, 141 AD2d 490)."], "id": "128f8086-7cca-4fc4-9b9a-a1fcee9ea13a", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Here, the trial court did not explain why it was just and reasonable to fix DeeDee's support award at $5,000 per month when (1) Joe's expected monthly income was $47,040, and (2) $5,000 per month in support, even when combined with DeeDee's monthly income of $20,790 would not support a standard of living equivalent to the marital standard of living described by the court. Having apparently disregarded DeeDee's FL-150 expense calculator, we are left to guess what evidence, if any, supported the trial court's determination that the support award is *111sufficient to meet DeeDee's \"needs.\" Nor did the trial court relate the amount of the award to the marital standard of living. We therefore reverse the permanent award and remand for recalculation and clearer findings."], "id": "0e66ee94-a168-4eb2-9120-99cc91f1e7ee", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["As a threshold matter, we conclude substantial evidence supports the trial court's finding of changed circumstances sufficient to justify reduction of the additional paid by Wife. But the court erred when, in fashioning the specific modification, it failed to consider the parties' reasonable expectations as expressed in their dissolution agreement that Wife's earnings would continue to increase. We therefore reverse and remand for modification of Wife's spousal support obligations consistent with the principles expressed in this opinion."], "id": "926220d0-fa86-4a8d-8c77-3695ea180b59", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The Family Code does not specifically define \"income\" for purposes of section 271. But section 4061 does explain that for purposes of allocating additional child support obligations in proportion to the parents' net disposable income, \"the gross income of the parent receiving the shall be increased by the amount of the spousal support received for as long as the spousal support order is in effect and is paid.\"7 (\u00a7 4061, subd. (c).) Similarly, it is well settled that spousal support is includable in gross income for tax purposes. (See Hogoboom & King, Cal. Prac. Guide-Family Law (TRG 2017 rev. ed.) \u00b6 10:504.) Thus, the standard income and expense declaration, form FL-150, that the court requires parties to file in connection with requests for orders to modify spousal support lists spousal support from either the marriage at issue or a different marriage as a form of reportable income. Not surprisingly then, courts have referred to *926spousal support as \"income\" in the context of sanctions awards. (See, e.g., In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180, 110 Cal.Rptr.2d 111 [\"Wife also receives income from rental properties, part-time work, and spousal support.\"].) As there is no indication the Legislature intended to preclude the payment of sanctions from spousal support funds, we decline Tonya's request that we exclude spousal support from the meaning of the term \"income\" in section 271 subdivision (c)."], "id": "58cfe12e-decd-441b-bf8c-9e635cfaef13", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In October 2013, the trial court entered findings and order after hearings that awarded Launa temporary child support of $981 for the parties' son and $1,634 for their daughter. The order also awarded temporary of $2,774 per month. The order included a DissoMaster report that showed the court's determinations of various factors relevant to calculating the support payments. The order denied without prejudice Launa's request for the valuation of Huddleston Crane Services, Inc. and any related corporations. The court concluded that the ownership interest of David was obtained as a gift from Father."], "id": "36ea1b70-eb21-43dd-84eb-c36a1719a295", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Joseph and Diane were married in 1988 and had two sons, born in February 1991 and November 1994. In August 2004, the marriage was dissolved and the El Dorado County Superior Court (the California court) ordered Joseph to pay Diane $400 a month in . Joseph, Diane, and the children then moved to Utah. Joseph returned to California in March 2005, where he remained until he returned to Utah in May 2010. He stayed in Utah until July 2013, at which time he returned to California."], "id": "2a80584d-ac3f-4813-a751-e5c5ee36efdf", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The parties were married on April 30,1978, had no children from their union, and by February 1, 1982 entered into a separation agreement which specifically waived maintenance and support by either party. On April 26,1982, petitioner filed a petition in Rensselaer County Family Court alleging, in part, that if she did not receive the relief requested, she would be forced to become a public charge. On August 31, 1982, Family Court directed a permanent order of spousal support, payable by respondent, in the amount of $50 per week."], "id": "1394805d-387c-454b-b521-575b2d2f14d9", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["As previously noted, the Darlings\u2019 divorce judgment \u201cordered and adjudged\u201d that, except for the coop, \u201cany and all marital property [had] been previously divided between the parties to their mutual satisfaction.\u201d In addition, the judgment \u201cordered and adjudged\u201d that \u201cneither party shall have any claim against, or interest in, the property of the other\u201d; \u201cthe parties waive any claim for and/or maintenance as against the other party both now and in the future\u201d; and that \u201cthe parties waive any claim for counsel fees with respect to [the] proceeding as against the other party both now and in the future.\u201d"], "id": "4eb79884-ddbf-48d5-87ec-2ea66fe9ad92", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Less than a year after the court entered the MSA, Tonya filed her first request for orders (RFO) asking the court to modify the agreement. Donald's annual bonus for 2009 had been significantly lower than previous years2 and, although it was primarily due to the poor performance of the region he had recently taken over, Tonya read some articles discussing changes to the compensation of executives in the banking industry and believed Donald may have received additional shares of restricted stock or stock options in lieu of a portion of his typical cash bonus. In addition, Tonya asserted she was only working part time for less than $15 per hour, and had been unable to find another more lucrative position. She therefore asked the court to award her additional support, and also argued the court should interpret the bonus provision in the MSA to include 35 percent of any stock options that Donald received in lieu of a cash bonus. In response, Donald filed a motion for sanctions claiming that Tonya submitted her motion to modify support in bad faith."], "id": "c8428caa-913b-4af5-a8c0-bba4a18165c8", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Likewise, the \" 'trial court's discretion to modify the order is constrained by the terms of the marital settlement agreement.' \" ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616.) Marital settlement agreements incorporated into a dissolution judgment are interpreted under the same rules governing contract interpretation generally. ( In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012, 151 Cal.Rptr.3d 553 ; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439, 64 Cal.Rptr.2d 766.) \" ' \"The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs.\" ' \" ( Hibbard , at p. 1013, 151 Cal.Rptr.3d 553.)"], "id": "d8126116-5d44-4451-9831-95056bda112f", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["*859The 3-23 Order sets forth wife's objections stating the court does not have the authority to reconsider the prior ruling, and the court's response that the Le Francois court \"found that while legislation may limit what matters are *207brought by parties before the court, it may NOT limit a court's power to reconsider its rulings on its own.\" The court explained \"[w]hile there was no math error\" in the 2-21 Order, there were three other factors the court wanted to address. The 3-23 Order, among other things, modifies downward from the 2-21 Order the temporary amount awarded to wife, and imposes an effective date retroactive to March 1, 2017. Wife appeals."], "id": "5607bd67-a167-4027-82a1-cbfe391c2a82", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Prior to the hearing, the trial court issued a tentative ruling denying Mendoza's request. After hearing from the parties, the court adopted its tentative as the final ruling. In an oral statement of decision, the court explained that in the absence of a separate request for temporary , it may not make a spousal support order retroactive to the filing date of a petition for dissolution. Mendoza did not appeal that decision."], "id": "e3dea102-4b9e-46d0-a18c-1ea2412cf850", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Husband argues the Agreements themselves reflect the parties' reasonable expectations upon entering the agreements that an increase in Wife's salary would not constitute changed circumstances. Specifically, he points to the fact the parties did not cap the but did include a termination date in 2020, years before spousal support obligations would ordinarily terminate after dissolution of a lengthy marriage.4 Alternatively, Husband argues there *425is insufficient evidence of changed circumstances. He contends the 2012 marital standard of living \"was roughly *455$475,000,\" based on Wife's 2012 taxable income of $189,000 and Husband's income of $156,516, $151,899 of which was nontaxable. Husband further points out that at the time of Wife's petition, he was earning $125,000, while Wife's base salary was $265,000, which is short of the marital standard of living even without accounting for inflation."], "id": "e7eea880-3dad-4b02-9644-dde6469a736d", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Under UIFSA, the rules differ for and child support. A state *896issuing a spousal support order has continuing, exclusive jurisdiction over the spousal support order throughout the existence of the support obligation. (1996 UIFSA \u00a7 205, subd. (f); Former Fam. Code, \u00a7 4909, subd. (f), added Stats. 1997, ch. 194, \u00a7 1, p. 882 [see Fam. Code, \u00a7 5700.211, subd. (a) ].)"], "id": "df30b1ed-e2b9-46a6-9b93-15e5cb9d73d8", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["KAHN, J. The issue before us in this appeal is whether the trial court correctly determined that the enforce- ment of a prenuptial agreement executed by the plain- tiff, Laura Grabe, and the defendant, Justin Hokin, was not unconscionable at the time of the dissolution of their marriage. Shortly before the parties\u2019 marriage in 2010, they executed a prenuptial agreement in which each party agreed, in the event of a dissolution action, to waive any claim to the other\u2019s separate property, as defined in the agreement, or to any form of support from the other, including alimony. The agreement also provided that a party who unsuccessfully challenged the enforceability of the agreement would pay the attor- ney\u2019s fees of the other party. In 2016, the plaintiff brought this action seeking dissolution of the marriage and enforcement of the prenuptial agreement. The defendant filed a cross complaint in which he claimed, inter alia, that the agreement was unenforceable because it was unconscionable at the time of the disso- lution under General Statutes \u00a7 46b-36g (a) (2).1 After a trial to the court, the court concluded that, with the exception of the attorney\u2019s fees provision, enforcement of the terms of the prenuptial agreement that the parties entered into was not unconscionable, even in light of certain events that had occurred during the marriage. Accordingly, the trial court rendered judgment dissolv- ing the marriage and enforcing the terms of the prenup- tial agreement, with the exception of the provision requiring the party who unsuccessfully challenged the enforceability of the agreement to pay the attorney\u2019s fees of the other party. On appeal,2 the defendant con- tends that the trial court incorrectly determined that the occurrence of the unforeseen events found by the trial court did not render the enforcement of the entire agreement unconscionable at the time of the dissolu- tion. We affirm the judgment of the trial court. The record reveals the following facts that were found by the trial court or that are undisputed. Shortly before the parties\u2019 marriage on October 2, 2010, they entered into a prenuptial agreement. The agreement provided that it would be \u2018\u2018governed and construed in accordance with the Connecticut Premarital Agreement Act, [General Statutes] \u00a7 46b-36a et seq. . . .\u2019\u2019 Under the agreement, each party waived any claim to the prop- erty of the other during the marriage. In the event of a marital dissolution, each party agreed to waive \u2018\u2018all claims and rights to any equitable distribution of [s]epa- rate [p]roperty [of the other party, as defined in the agreement],\u2019\u2019 and to \u2018\u2018any claim for temporary or perma- nent maintenance, support, alimony, [attorney\u2019s] fees (including [pendente] lite [attorney\u2019s] fees) or any simi- lar claim . . . .\u2019\u2019 In addition, each party agreed that, if either party \u2018\u2018unsuccessfully seeks to invalidate all or any portion of [the] [a]greement or seeks to recover alimony (other than pendente lite [attorney\u2019s] fees) or property in a manner which deviates from the terms of [the] [a]greement, then the prevailing party shall be entitled to recover all reasonable and necessary [attor- ney\u2019s] fees and other costs incurred in successfully defending his or her rights under [the] [a]greement.\u2019\u2019 The agreement also contained a severability provision stating that, \u2018\u2018[i]n case any provision of [the] [a]gree- ment should be held to be invalid, such invalidity shall not affect, in any way, any of the other provisions herein, all of which shall continue in full force and effect, in any country, state or jurisdiction in which such provisions are legal and valid.\u2019\u2019 In addition, the agreement provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscio- nable if enforcement hereof is sought at any time in the future.\u2019\u2019 At the time that the parties executed the prenuptial agreement, the plaintiff\u2019s annual income was $1,312,225, and her net worth was $12,319,380. The defendant\u2019s estate had a fair market value of $5,150,295,3 and he disclosed income of $97,719.06 over the previous six months. The primary sources of the defendant\u2019s income were a director\u2019s fee of approximately $60,000 per year from an entity known as Intermountain Industries and guaranteed payments ranging from $80,000 to $100,00 per year from an entity known as 4H, LLC Family Part- nership (4H, LLC).4 The defendant received no other income from employment. Before their marriage, both the plaintiff and the defendant would frequently stay out all night socializing and drinking with friends. The plaintiff changed her behavior when she became pregnant shortly after the marriage, but the defendant did not. After the parties\u2019 oldest daughter was born in late 2011, the defendant continued to neglect his responsibilities to his family. For example, ten months after his daughter\u2019s birth, the defendant left the plaintiff at home alone with her while Hurricane Sandy struck their neighborhood, and the plaintiff was forced to seek shelter at her parents\u2019 home. After the parties\u2019 second daughter was born in 2013, the defendant\u2019s family planned an intervention for him, as his drinking was out of control and he was being com- pletely unproductive. The intervention never occurred, and the defendant continued to stay out all night, sleep most of the day and ignore the needs of his wife and children. In August, 2014, the plaintiff contacted a divorce law- yer. Two weeks later, the house in Norwalk where the parties resided, which the defendant owned, was com- pletely destroyed by a fire. The parties then leased another residence in Norwalk. In November, 2014, the plaintiff filed an action for the dissolution of the mar- riage, but she later withdrew it. In 2015, the parties\u2019 third daughter was born. During this period, the plaintiff started building a house in the Rowayton neighborhood of Norwalk. In March, 2016, the plaintiff separated from the defendant and moved into the Rowayton house with their three young daughters. Several weeks later, she filed this action seeking the dissolution of the marriage and enforcement of the prenuptial agreement. In February, 2017, the defendant filed an amended answer and cross complaint, alleging, inter alia, that the prenuptial agree- ment was unenforceable under \u00a7 46b-36g (a) (2) because it was unconscionable when enforcement was sought.5 Thereafter, in September, 2017, a yacht club in the Caribbean known as the Bitter End Yacht Club (Yacht Club), which was owned by the defendant\u2019s family and in which the defendant had an indirect, fractional own- ership interest, was destroyed by Hurricane Irma. Also in 2017, Intermountain Industries failed due to a down- turn in the price of crude oil. As a result, it no longer paid the defendant a director\u2019s fee, and its guaranteed payments to 4H, LLC were discontinued. Evidence presented at trial showed that, since the execution of the prenuptial agreement, the defendant\u2019s assets had decreased in value from $5,150,295 to $2.1 million. A note on the defendant\u2019s financial affidavit dated February 11, 2019, which was introduced as an exhibit at trial, indicated that $1,845,000 of these assets were held in the Justin Hokin Grantor Trust, represent- ing the trust\u2019s ownership interests in other assets, \u2018\u2018pri- marily [4H, LLC],\u2019\u2019 and that \u2018\u2018[t]he most significant asset in [4H, LLC], is [the Yacht Club], which was destroyed by Hurricane Irma in the summer of 2017.\u2019\u2019 The note also indicated that the trust was \u2018\u2018wholly illiquid\u2019\u2019 and that its value was not \u2018\u2018accessible\u2019\u2019 to the defendant. The defendant had liabilities of $1,351,262, more than $1 million of which was debt owed to his father and to 4H, LLC, for \u2018\u2018legal fees . . . .\u2019\u2019 The affidavit showed that the defendant had no significant income.6 The defendant contended in his posttrial brief to the trial court that the births of the parties\u2019 three children, the destruction of his house by fire, the destruction of the Yacht Club by Hurricane Irma and the failure of Intermountain Industries were not contemplated when the prenuptial agreement was signed and that enforce- ment of the agreement would be unconscionable in light of these unforeseen events. Accordingly, the defendant requested that the trial court not enforce the agreement and, instead, order a property division \u2018\u2018[that] . . . would permit the defendant to purchase a home in close proximity [to the plaintiff\u2019s home] to provide the minor children a comparable quality of life between both par- ent households.\u2019\u2019 The plaintiff contended before the trial court that, to the contrary, the events cited by the defendant were not beyond the contemplation of the parties when they executed the prenuptial agreement. She also referred to evidence presented at trial that would support findings that, after the defendant received insurance proceeds for the destruction of his house, paid off two mortgages on the house and sold the land, he retained net proceeds of $775,587.73, as compared with equity of $20,309.58 at the time that the prenuptial agreement was executed; the value of the Yacht Club property on December 31,2017, was $14,900,000, $3,000,000 more than its value on the date that the prenuptial agreement was executed; and the defendant\u2019s family was responsible for the fail- ure of Intermountain Industries. Accordingly, the plain- tiff argued that, even if the events were not contem- plated, it would not be unconscionable to enforce the prenuptial agreement, in part because it would be unfair to require the plaintiff bear the burden of the defen- dant\u2019s neglectful and unproductive behavior. In its memorandum of decision, the trial court found that, at the time of trial, the plaintiff was forty-one years old and in good health. She had a bachelor\u2019s degree in journalism and was two credits short of receiving her master\u2019s degree in science from New York University. She had a net weekly income of $34,284,7 and the fair market value of her assets was $27.4 million. The defen- dant was forty-four years old and in good health. He had a bachelor\u2019s degree in geography from the University of Montana. He had no significant income8 and his assets had a fair market value of $2.1 million.9 The trial court determined that the defendant was at fault for the breakdown of the marriage. The court observed that, after the parties\u2019 three children were born, \u2018\u2018the defendant continued to live a life full of drinking and partying. Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his mar- riage.\u2019\u2019 The marriage \u2018\u2018suffered as the defendant slept most of the day, stayed out all night, and did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 The trial court further found that, at the time that they entered into the prenuptial agreement, the parties had not contemplated that they would have three chil- dren, the defendant\u2019s house would be destroyed by fire, the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail, depriving the defendant of his primary source of income.10 Although the court concluded that these events were not specifi- cally contemplated by the parties when they entered into the agreement, it determined that they were not events that would render enforcement of the terms of the agreement unconscionable. When it came to the enforcement of the attorney\u2019s fees provision, however, the trial court concluded that, under the circumstances existing at the time of trial, enforcement of that provision would be unconsciona- ble. The court observed that the plaintiff \u2018\u2018has great financial wealth and [was] not incapable of paying for her own attorney\u2019s fees.\u2019\u2019 In addition, the court found it \u2018\u2018unlikely that the parties considered paying millions of dollars in attorney\u2019s fees to the other party in the event of a marital dissolution\u2019\u2019 and that the enforcement of the attorney\u2019s fees provision \u2018\u2018would financially crip- ple the defendant\u2019s remaining assets . . . .\u2019\u201911 In light of these findings, the court concluded that, \u2018\u2018while the totality of the agreement is not unconscionable, [the provision requiring a party who unsuccessfully chal- lenges the prenuptial agreement to pay the attorney\u2019s fees of the other party] is unconscionable and should be stricken from the antenuptial agreement. The remainder of the parties\u2019 antenuptial agreement shall be enforced . . . .\u2019\u2019 Accordingly, the trial court rendered judgment dissolving the parties\u2019 marriage, striking the attorney\u2019s fees provision from the prenuptial agreement and, consistent with the severability provision of the agreement, concluding that the remainder of the agree- ment was enforceable. The court also incorporated the final parenting plan into the judgment, pursuant to which the children were to reside primarily with the plaintiff but would spend time with defendant pursuant to a regular visitation schedule. In addition, the parties stipulated that the defendant would pay weekly child support in the amount of $57, in accordance with the child support guidelines. Thus, although the parties had joint legal custody of the children, the plaintiff was to have primary physical custody. This appeal followed.12 On appeal, the defendant con- tends that the trial court incorrectly determined that it would not be unconscionable to enforce the prenuptial agreement when it found that the parties did not initially contemplate that the defendant would be helping to raise three young children at a time when he had no income and greatly diminished assets.13 The plaintiff contends that, even if the parties did not initially con- template these events, the trial court correctly deter- mined that they were not so far beyond their contempla- tion as to render the enforcement of the agreement unconscionable.14 We agree with the plaintiff. We begin our analysis with the standard of review. Pursuant to \u00a7 46b-36g (a), \u2018\u2018[a] premarital agreement . . . shall not be enforceable if the party against whom enforcement is sought proves that . . . (2) [t]he agree- ment was unconscionable when it was executed or when enforcement is sought . . . .\u2019\u2019 Whether the pre- nuptial agreement is enforceable is a mixed question of fact and law. See Friezo v. Friezo, 281 Conn. 166, 180\u201381, 914 A.2d 533 (2007), overruled in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). Although the underlying historical facts found by the trial court may not be disturbed unless they are clearly erroneous; see Kovalsick v. Kovalsick, 125 Conn. App. 265, 270\u201371, 7 A.3d 924 (2010); whether a prenuptial agreement is unconscionable in light of those facts, if not clearly erroneous, is a question of law subject to plenary review. See Crews v. Crews, 295 Conn. 153, 163\u201364, 989 A.2d 1060 (2010); see also General Statutes \u00a7 46b-36g (c) (\u2018\u2018[a]n issue of unconscio- nability of a premarital agreement shall be decided by the court as a matter of law\u2019\u2019). \u2018\u2018Unconscionable is a word that defies lawyer-like definition. . . . The classic definition of an unconscio- nable contract is one which no [individual] in his senses, not under delusion, would make, on the one hand, and which no fair and honest [individual] would accept, on the other.\u2019\u2019 (Internal quotation marks omitted.) Beyor v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). We have previously recognized that \u00a7 46b-36g was intended to endorse, clarify and codify the standards set forth in this court\u2019s decision in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v. Friezo, supra, 281 Conn. 185\u201386 n.23. In McHugh, this court held that \u2018\u2018an antenuptial agreement will not be enforced where the circumstances of the parties at the time of the dissolution are so far beyond the contempla- tion of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice. . . . Thus, where a marriage is dissolved not because it has broken down irretrievably, but because of the fault of one of the parties, an antenuptial waiver of rights executed by the innocent party may not be enforceable, depending [on] the circumstances of the particular case and the language of the agreement. . . . Likewise, where the economic status of [the] parties has changed dramatically between the date of the agree- ment and the dissolution, literal enforcement of the agreement may work injustice.\u2019\u2019 (Citations omitted.) McHugh v. McHugh, supra, 489. Other unforeseen changes that may, depending on the circumstances, render a prenuptial agreement unenforceable include the birth of a child, loss of employment or a move to another state. Bedrick v. Bedrick, supra, 300 Conn. 706. \u2018\u2018Absent such unusual circumstances, however, ante- nuptial agreements freely and fairly entered into will be honored and enforced by the courts as written.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489. \u2018\u2018Unfairness or inequality alone does not render a [prenuptial] agree- ment unconscionable;15 spouses may agree on an unequal distribution of assets at dissolution. [T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agree- ment unconscionable. . . . Instead, the question of whether enforcement of an agreement would be uncon- scionable is analogous to determining whether enforce- ment of an agreement would work an injustice. . . . Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly antici- pate all future events.\u2019\u2019 (Citations omitted; footnote added; internal quotation marks omitted.) Bedrick v. Bedrick, supra, 300 Conn. 705\u2013706. Indeed, if every event that the parties did not anticipate could provide a basis for invalidating a prenuptial agreement, no such agreement would be enforceable. Thus, \u2018\u2018the party seek- ing to challenge the enforceability of the antenuptial contract bears a heavy burden.\u2019\u2019 Crews v. Crews, supra, 295 Conn. 169; see id., 170 (\u2018\u2018proving uncontemplated, dramatically changed circumstances requires a signifi- cant showing\u2019\u2019); see also id. (\u2018\u2018McHugh requires an extraordinary change in economic status and . . . the threshold for finding such a dramatic change is high\u2019\u2019 (internal quotation marks omitted)). In the present case, we assume without deciding that the trial court correctly found that the parties did not contemplate the births of their three children, the destruction of the defendant\u2019s house by fire, the destruc- tion of the Yacht Club by a hurricane or the failure of Intermountain Industries when they entered into the prenuptial agreement.16 We further assume that the resulting diminishment in the value of the defendant\u2019s assets and his loss of income from Intermountain Indus- tries also were not contemplated. As we explained, however, it is clear under our case law that, standing alone, the fact that existing circumstances were beyond the parties\u2019 initial contemplation does not establish that enforcement of a prenuptial agreement would be uncon- scionable. Rather, we must determine whether these circumstances were \u2018\u2018so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489; see also Crews v. Crews, supra, 295 Conn. 168 (if court determines that circumstances at time of dissolution were beyond parties\u2019 initial contemplation, court must then determine \u2018\u2018whether enforcement would cause an injustice\u2019\u2019). In making this determination, we must con- sider all of the relevant facts and circumstances. See, e.g., Crews v. Crews, supra, 163. We first address the defendant\u2019s contention that the trial court improperly failed to recognize that enforce- ment of the prenuptial agreement would be unconscio- nable in light of the uncontemplated births of the par- ties\u2019 children and his loss of assets and income because the \u2018\u2018children are entitled to continue the lifestyle to which [they were] accustomed and the standard of liv- ing [they] enjoyed before the divorce . . . .\u2019\u201917 (Internal quotation marks omitted.) Hornung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912 (2016). We are not per- suaded. There is no question in the present case that the children are being supported by the plaintiff at the same standard of living that they enjoyed before the dissolution. As far as the record reveals, they continue to live in the same house, to sleep there most nights, to attend the same schools, to receive the same level of health care and to enjoy the same food, clothing, vacations, entertainment and the like as they did before the marital dissolution. Thus, it is difficult to perceive the relevance of Hornung in the present case. Contrary to the defendant\u2019s suggestion, the fact that a child spends a limited amount of time with a noncustodial parent who has a somewhat lower standard of living than the child does not, ipso facto, mean that the child\u2019s standard of living is reduced. See Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the defendant concedes that, as a noncustodial parent, he would not be entitled to a child support award under any circumstances. As we stated in Tomlinson v. Tom- linson, 305 Conn. 539, 46 A.3d 112 (2012), \u2018\u2018the legisla- ture viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines . . . child support award is defined as the entire payment obligation of the noncustodial parent . . . .\u2019\u201918 (Empha- sis in original; internal quotation marks omitted.) Id., 554. The defendant also appears to claim that, for the sake of the children, he is entitled to enjoy his predissolution standard of living because an \u2018\u2018extraordinary disparity in parental income may hinder [the] lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) See Maturo v. Maturo, supra, 296 Conn. 101. Again, we are not persuaded. This court recognized in Maturo that, when there is an \u2018\u2018extraordinary disparity\u2019\u2019 in parental income, the court may depart from the child support guidelines when the custodial parent has the higher income and deviation from the presumptive sup- port amount \u2018\u2018would enhance the lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) Id.; see also Regs., Conn. State Agencies \u00a7 46b-215a- 5c (b) (6) (B) (when there is extraordinary disparity between parents\u2019 net incomes, court may deviate from presumptive support amounts if deviation would \u2018\u2018enhance the lower income parent\u2019s ability to foster a relationship with the child\u2019\u2019 and \u2018\u2018sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation\u2019\u2019). In other words, Maturo recog- nized that a lower income noncustodial parent may be permitted to pay less than the presumptive child sup- port amount to a higher income custodial parent if there is an extraordinary disparity in their incomes and the other conditions of the regulation are met\u2014relief that the defendant in the present case did not seek. Thus, although \u00a7 46b-215a-5c (b) (6) (B) admittedly was intended to address the problems that may arise when divorced parents have disparate incomes and standards of living, the remedy that it provides is quite limited. Maturo does not suggest that a lower income noncusto- dial parent has any right under the regulation to receive child support from a higher income custodial parent for the purpose of enhancing the ability of the noncustodial parent to \u2018\u2018foster a relationship\u2019\u2019 with a child who shares the custodial parent\u2019s higher standard of living. Cf. Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69 (2021) (under Maturo, trial court improperly ordered parent with higher income to pay supplemental, lump sum child support to custodial parent with no income other than child support on basis of \u2018\u2018significant dispar- ity\u2019\u2019 in parties\u2019 income). In Maturo, the court recognized that, \u2018\u2018[w]hen a parent has an ability to pay a large amount of support, the determination of a child\u2019s needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered sup- port that is more than reasonably needed for the child becomes, in fact, [tax free] alimony.\u2019\u2019 Maturo v. Maturo, supra, 105\u2013106. (Emphasis altered; internal quotation marks omitted.) Indeed, as we have already explained, a noncustodial parent is not entitled to a child support award under any circumstances. See Tomlinson v. Tomlinson, supra, 305 Conn. 554. The defendant contends that the fact that a noncusto- dial parent cannot receive child support supports his argument that the prenuptial agreement is unconsciona- ble because it demonstrates that, if the agreement is enforced, the trial court will be \u2018\u2018without the tools to account properly for the best interests of [the] children, putting both the noncustodial parent and them in an untenable place.\u2019\u2019 (Emphasis added.) Thus, the defen- dant appears to suggest that, in the absence of the prenuptial agreement, the trial court would be author- ized to award alimony or a property distribution to him for the purpose of ensuring that he can provide for the children in the same manner as the plaintiff. This court has held, however, that it is improper to disguise a child support award as alimony, and that alimony should be used only to address the needs of the recipient parent.19 See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d 963 (2006). Moreover, we observed in Tomlinson v. Tomlinson, supra, 305 Conn. 555, that \u2018\u2018permitting the diversion of funds away from the [custodial] parent [who is] providing for the care and well-being of minor children . . . would contravene the purpose of child support.\u2019\u2019 Although we were referring in Tomlinson to a situation in which a former noncustodial parent takes custody of the children and becomes responsible for supporting them but continues to pay child support to the former custodial parent; see id., 541\u201342; the same principle would hold true whenever a custodial parent is required to pay any form of support to a noncustodial parent based on the fiction that the payment is for the support of the children.20 In short, we see nothing in our statutes or case law to suggest that it is the public policy of this state that a noncustodial parent is entitled to receive any form of postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent.21 Indeed, \u00a7 46b-215a-5c (b) (6) (B) of the regula- tions expressly contemplates that, after a marital disso- lution, the parents of a child may have an \u2018\u2018[e]xtraordi- nary disparity\u2019\u2019 in income. It follows that the regulation contemplates that a child may well have a higher stan- dard of living than his or her noncustodial parent while continuing to have a relationship with that parent. We conclude, therefore, that Maturo does not support the proposition that it would be unfair, much less uncon- scionable, to enforce a prenuptial agreement merely because there is an extraordinary disparity between the incomes or standards of living of the custodial parent and the children, on the one hand, and the noncustodial parent, on the other hand.22 The defendant also relies on this court\u2019s decision in Bedrick v. Bedrick, supra, 300 Conn. 691, to support his contention that enforcement of the prenuptial agree- ment would be unconscionable. In Bedrick, the parties executed a postnuptial agreement in 1977, providing that, in the event of a marital dissolution, neither party would receive alimony.23 Id., 693\u201394. Instead, the plain- tiff wife would receive a cash settlement in an amount to be periodically reviewed. Id., 694. A May 18, 1989 addendum to the agreement provided for a cash settle- ment in the amount of $75,000. Id. The plaintiff waived her interest in the defendant\u2019s car wash business, and the defendant agreed that the plaintiff would not be held liable for his personal and business loans. Id. In the early 1990s, the defendant\u2019s car wash business became successful. Id., 707. In 1991, when the parties were forty- one years old, their child was born. Id. By the time of trial, the plaintiff had worked for that business for thirty-five years, providing administrative and book- keeping support. Id. Since 2001, when the business began to deteriorate, the plaintiff had managed all busi- ness operations except for maintenance. Id. In 2004, the plaintiff worked outside of the business to provide the family with additional income. Id. The trial court concluded that \u2018\u2018[t]he economic circumstances of the parties had changed dramatically since the execution of the agreement and that enforcement of the postnuptial agreement would have worked injustice.\u2019\u2019 (Internal quo- tation marks omitted.) Id. Accordingly, it concluded that the agreement was unenforceable. Id. This court concluded that \u2018\u2018[t]he facts and circumstances . . . clearly support the findings of the trial court that, as a matter of law, enforcement of the agreement would be unconscionable.\u2019\u2019 Id., 708. In the present case, the defendant contends that Bedrick stands for the proposition that a prenuptial agreement is unenforceable whenever (1) a child was unexpectedly born during the marriage, and (2) a spouse has undergone dramatic economic changes. We conclude that Bedrick is easily distinguishable from the present case. First, in Bedrick, the plaintiff gave birth to the parties\u2019 child after sixteen years of marriage when both parties were forty-one years old. See Bedrick v. Bedrick, Docket No. FA-XX-XXXXXXX, 2009 WL 1335100, *4 (Conn. Super. April 24, 2009). By contrast, in the present case, the parties\u2019 three children were all born within five years of the marriage, when both parties were in their thirties. Although the children may not have been \u2018\u2018contemplated\u2019\u2019 when the parties executed the prenuptial agreement, it is reasonable to conclude that their births were less of a bolt from the blue than the birth of the parties\u2019 child in Bedrick. Indeed, when asked at trial whether he and the plaintiff \u2018\u2018plan[ned] on having children during the course of the marriage,\u2019\u2019 the defendant replied, \u2018\u2018[y]eah.\u2019\u2019 When asked what his plan was, he replied, \u2018\u2018[t]o be fruitful and multiply.\u2019\u201924 Second, the plaintiff in Bedrick worked for the defen- dant\u2019s car wash business for thirty-five years, including the entire thirty-two year duration of the marriage, often seven days per week. Bedrick v. Bedrick, supra, 300 Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100, *3. The business floundered after the dissolution action was instituted and the plaintiff ceased working for it. Bedrick v. Bedrick, supra, 300 Conn. 707. In the present case, there is no evidence that the defendant contrib- uted to the success of any business or enterprise of the plaintiff. Third, in Bedrick, the plaintiff secured employment \u2018\u2018outside of the [car wash] business in order to provide the family with additional income.\u2019\u2019 (Emphasis added.) Id. Although the defendant in the present case may have contributed to the support of his children during the marriage, there is no evidence that he provided financial support to the plaintiff.25 Finally, the plaintiff in Bedrick was fifty-seven years old at the time of the marital dissolution, did not have a college degree and had been diagnosed with diabetes, which was controlled by medication. Bedrick v. Bedrick, supra, 2009 WL 1335100, *3\u20134. In the present case, the defendant was forty-four years old at the time of dissolu- tion, had a college degree and was in good health. We further note that the defendant had significant assets at the time of the marital dissolution and is ade- quately provided for, at least in the near term. Although we recognize that his assets may not be sufficient to meet his needs for his entire lifetime, nothing in the record would support a conclusion that he is incapable of earning an income.26 To the contrary, the evidence showed that the defendant was an educated, healthy forty-four year old with some business experience, and he testified at trial that, once he expended his assets, he was \u2018\u2018going to have to hustle and figure some things out, get . . . some salaried or . . . contract work . . . and hope that what [he\u2019s] been working on for the last three years will come to fruition down in the . . . Virgin Islands.\u2019\u2019 In addition, the defendant\u2019s counsel admitted to the trial court that the defendant \u2018\u2018is intelli- gent, he is healthy, and he is capable of working.\u2019\u2019 Accordingly, we cannot conclude that it would be unconscionable to expect the defendant to obtain employment to replace the unexpected loss of his income from Intermountain Industries.27 Indeed, if we were to conclude otherwise, an employed person who entered into a prenuptial agreement and, after the mar- riage, lost his or her job could simply refuse to seek employment and then claim that his or her lack of employment was a dramatic change in circumstances warranting invalidation of the agreement. Moreover, there is no evidence that the defendant, unforeseeably or otherwise, gave up any income earn- ing or asset building opportunities as a result of his marriage or the births of the children, or that he made significant and ongoing contributions to family life, such as shopping, doing household chores, entertaining the plaintiff\u2019s associates and family, or caring for the children, for which it would be unfair, much less uncon- scionable, not to compensate him. Cf. Hornung v. Hor- nung, supra, 323 Conn. 163 (\u2018\u2018[b]ecause the plaintiff\u2019s efforts as a homemaker and the primary caretaker of the children increased the defendant\u2019s earning capacity at the expense of her own, she is entitled to [an alimony award that will allow her to] maintain [her high predis- solution] standard of living after the divorce, to the extent possible\u2019\u2019). To the contrary, the trial court found that the defendant \u2018\u2018did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 We conclude, therefore, that the trial court correctly determined that enforcement of the prenuptial agreement in the present case would not be unconscionable in light of all of the relevant facts and circumstances. Finally, the defendant contends that it was inconsis- tent for the trial court to conclude that it would be unconscionable to enforce the provision of the prenup- tial agreement requiring a party who unsuccessfully seeks to invalidate any portion of it to pay the attorney\u2019s fees of the other party but not unconscionable to enforce the remainder of the agreement. We disagree. Significantly, the prenuptial agreement contained a sev- erability clause that expressly contemplated that, if one or more of its terms were found to be invalid, the rest of the agreement would survive. See A. Rutkin et al., 8A Connecticut Practice Series: Family Law and Prac- tice with Forms (3d Ed. 2010) \u00a7 50.53, p. 256; cf. Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 118, 679 A.2d 372 (1996) (discussing principles of severability under Connecticut contract law). In sis- ter states that, like Connecticut, have premarital agree- ment statutes like \u00a7 46b-36g that are modeled after the Uniform Premarital Agreement Act; see, e.g., Friezo v. Friezo, supra, 281 Conn. 183\u201384; the presence of a severability clause renders enforceable the remainder of a prenuptial agreement that contains a provision that is unconscionable or invalid as a matter of law. See, e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906 (Ill. App. 2014) (concluding that severability clause left \u2018\u2018remainder of the agreement . . . unaffected by [court\u2019s] holding\u2019\u2019 that agreement\u2019s \u2018\u2018[attorney fee shift- ing] ban as to [child related] issues violates [Illinois] public policy and is unenforceable\u2019\u2019 as to those issues); Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005) (emphasizing presence of savings clause in concluding that \u2018\u2018[p]rovisions in a prenuptial agreement purporting to limit or waive are void and unen- forceable as they are contrary to public policy, and [that they] may be severed from valid portions of the prenuptial agreement without invalidating the entire agreement\u2019\u2019); cf. Rivera v. Rivera, 149 N.M. 66, 72\u201373, 243 P.3d 1148 (N.M. App.) (premarital agreement was unenforceable because it contained provision waiving right to seek spousal or child support in violation of state statute, and \u2018\u2018agreement [did] not contain a sever- ability clause, and [w]ife [made] no argument that the remainder of the agreement should not be affected by the invalidity of the support provisions\u2019\u2019), cert. denied, 149 N.M. 64, 243 P.3d 1146 (2010). Accordingly, the trial court did not act inconsistently as a matter of law in concluding that the effect of enforcing the attorney\u2019s fees provision was unconscionable because it would \u2018\u2018financially cripple\u2019\u2019 the defendant, while also finding that the remainder of the agreement was enforceable. Because enforcement of the remainder of the agree- ment would, as we explained, leave the defendant with significant assets sufficient to provide for his needs until he can obtain a source of income, the trial court properly allowed the parties the benefit of the bargain to which they had agreed before their marriage. The judgment is affirmed. In this opinion the other justices concurred. * November 17, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. General Statutes \u00a7 46b-36g provides in relevant part: \u2018\u2018(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: *** \u2018\u2018(2) The agreement was unconscionable when it was executed or when enforcement is sought; *** \u2018\u2018(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.\u2019\u2019 The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes \u00a7 51-199 (c) and Practice Book \u00a7 65-1. Financial disclosures attached to the prenuptial agreement indicated that the value of the defendant\u2019s assets at the time of the marriage was $13,267,952.81. It was discovered during the dissolution proceedings that this figure had been established by using generally accepted accounting practices, rather than fair market value, and that the fair market value of the assets was $5,150,295. Intermountain Industries was an oil and gas exploration business in which the defendant\u2019s father had a controlling interest. Intermountain Indus- tries made dividend payments to an entity known as Century American, which, in turn, made guaranteed payments to 4H, LLC, the members of which were the defendant\u2019s father and his lineal descendants, including the defendant. The trial court made no findings in connection with the defendant\u2019s claim at trial that the prenuptial agreement was unconscionable when the parties executed it, and the defendant does not pursue that claim on appeal. Specifically, the financial affidavit indicated that he had a weekly income of $2 from dividends and interest payments. In determining this amount, the trial court relied on a child support guidelines worksheet dated February 12, 2019, in which the plaintiff stipu- lated that she received $48,361 in gross weekly income and mandatory deductions of $14,077, for a net weekly income of $34,284. The plaintiff submitted a subsequent financial affidavit to the trial court dated February 20, 2019, indicating that her net weekly income was $24,505. This figure appears to have been a clerical error, as the same affidavit indicates that her gross weekly income was $48,361, and mandatory deductions were $14,491, which would yield a net weekly income of $33,870. The parties stipulated that, for child support purposes only, the defendant had a gross weekly income of $3720 and a net weekly income of $2569. The trial court made no finding on the issue, but the undisputed evidence showed that the defendant had liabilities of $1.35 million, yielding a net worth of approximately $750,000. The trial court stated that, \u2018\u2018[a]lthough the defendant was not financially crippled after his home burned down, the Yacht Club was underinsured, and the insurance proceeds could not fully restore the property to its prior form. In addition to the defendant\u2019s financial losses from these unforeseen events, he was no longer able to generate revenue from the Yacht Club after it was destroyed, significantly diminishing his assets.\u2019\u2019 Evidence presented at trial showed that the plaintiff had paid attorney\u2019s fees in the amount of $1,559,713.17 defending against the defendant\u2019s cross complaint seeking invalidation of the prenuptial agreement. After this appeal was filed, the plaintiff filed a motion for leave to file a late conditional cross appeal in which she requested permission to cross appeal from the trial court\u2019s ruling invalidating the attorney\u2019s fees provision in the event that the Appellate Court reversed the judgment and remanded the case to the trial court for a new trial without resolving the issue of the enforceability of the prenuptial agreement. The Appellate Court denied the motion, and this claim is not before us. The defendant also claims that the trial court improperly precluded him from soliciting testimony as to whether the parties contemplated certain events when they entered into the prenuptial agreement. Because we con- clude that enforcement of the agreement is not unconscionable, even assum- ing that the events at issue were not contemplated by the parties, we need not address this claim. The plaintiff also contends, essentially as an alternative ground for affirmance, that the trial court incorrectly determined that the parties did not contemplate that they would have children, that the defendant\u2019s house would be destroyed by fire, that the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail. There appear to be two separate bases for this claim. First, the plaintiff appears to contend that these events were contemplated by the parties as a matter of law because the prenuptial agreement expressly provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscionable if enforcement hereof is sought at any time in the future.\u2019\u2019 Second, the plaintiff claims that these events were, as a factual matter, within the contem- plation of the parties. We are doubtful, however, whether a \u2018\u2018no change in circumstance\u2019\u2019 provision could save a prenuptial agreement that otherwise would be unenforceable as unconscionable. We need not resolve these issues here, however, because we conclude that the trial court correctly determined that the existence of these uncontemplated events did not render the enforcement of the prenuptial agreement unconscionable. Bedrick involved the enforceability of a postnuptial agreement. See Bedrick v. Bedrick, supra, 300 Conn. 693. The same principle, however, applies to prenuptial agreements. See id., 696\u201397; Crews v. Crews, supra, 295 Conn. 167 (\u2018\u2018equitable considerations codified in our statutes . . . have no bearing on whether [a prenuptial] agreement should be enforced\u2019\u2019 (inter- nal quotation marks omitted)). As we indicated; see footnote 14 of this opinion; we need not address the plaintiff\u2019s challenge to the trial court\u2019s factual findings on these issues because, even assuming that, contrary to the plaintiff\u2019s claim, the findings were correct, we agree with the trial court\u2019s legal conclusion that those facts did not render the prenuptial agreement unconscionable. The defendant testified at trial that, since the dissolution action was brought, he has paid rent of $3500 per month for a 983 square foot, three bedroom house in the Rowayton neighborhood of Norwalk. He further testified that the house has a garage that he has converted into a playroom, laundry room, workshop and storage area. See Regs., Conn. State Agencies \u00a7 46b-215a-1 (6). The current version of the child support guidelines recognizes that there has been \u2018\u2018a trend away from \u2018custodial/noncustodial\u2019 and \u2018visitation\u2019 language toward the concept of shared parenting.\u2019\u2019 Child Support and Arrearage Guidelines (2015), preamble, \u00a7 (g), p. xii. The guidelines also recognize that, \u2018\u2018within the context of shared physical custody, both parents are essentially custodial.\u2019\u2019 Id. When that is the case, the guidelines provide that \u2018\u2018the most practical approach [is] for [child support] to be paid by the parent with the higher income.\u2019\u2019 Id. As we have indicated, in the present case, the plaintiff has primary physical custody of the children, and the defendant has made no claim that he is entitled to child support on the ground that the parties have shared custody. To the contrary, he agreed to pay child support to the plaintiff and concedes that he is not entitled to receive child support from her. We note that there is considerable overlap between the factors that the trial court must consider when crafting an alimony award pursuant to Gen- eral Statutes \u00a7 46b-82 and the factors that it must consider when assigning property pursuant to General Statutes \u00a7 46b-81. Neither statute authorizes the court to consider the ability of a spouse to support his or her children, and the defendant has cited no authority for the proposition that, unlike an alimony award, it is proper to assign property for that purpose. The court in Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990), observed that the failure to award an indefinite award of alimony to the plaintiff wife might be unconscionable because \u2018\u2018it could not help but have some effect upon the child to go back and forth between a father who can afford to live in luxury and a mother who is required to exercise some degree of frugality.\u2019\u2019 Id., 197. Melrod involved a Maryland statute providing that a court may award alimony for an indefinite period if the court finds that, \u2018\u2018even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.\u2019\u2019 Md. Code Ann., Fam. Law \u00a7 11- 106 (c) (2) (1984); see Melrod v. Melrod, supra, 196. Connecticut has no such statute, and, as we explained, alimony may not be used in this state to disguise child support. Although we recognize that it may be difficult for some children under some circumstances to grapple with the fact that their parents have disparate standards of living, we do not agree with the court in Melrod to the extent that it concluded that it is unconscionable to permit a child who enjoys the same high standard of living that he or she did before the dissolution to have a relationship with a parent who lives in a somewhat more modest manner. Indeed, spending time with a less affluent parent could be just as beneficial to a child as time spent with an affluent parent. As we indicated, if the parents have shared physical custody of the children, the parent with the lower income can make a claim for child support. See footnote 18 of this opinion. That is not the case here. If the legislature believes there is a gap in the statutory scheme governing marital dissolutions and financial awards in this regard, it is free to address that gap legislatively. It is not the role of this court to create public policy in this highly regulated area. In such a situation, the fact that the lower income noncustodial parent is unable to provide for himself in the same manner as when the prenuptial agreement was executed may, depending on all of the relevant facts and circumstances, justify invalidating the agreement and awarding alimony on that ground. See footnote 27 of this opinion. We are aware of no authority, however, for the proposition that a noncustodial parent who otherwise would not be entitled to alimony would be entitled to it solely on the basis of his \u2018\u2018need\u2019\u2019 to provide for his children in the same manner as the custodial parent. See, e.g., Loughlin v. Loughlin, supra, 280 Conn. 655 (it is improper to disguise child support as alimony). This court concluded in Bedrick that postnuptial agreements are subject to stricter scrutiny than prenuptial agreements when a court is determining whether they are enforceable at the time of execution. Bedrick v. Bedrick, supra, 300 Conn. 703\u2013704. Specifically, unlike prenuptial agreements, post- nuptial agreements \u2018\u2018are subject to special scrutiny and the terms of such agreements must be both fair and equitable at the time of execution . . . .\u2019\u2019 Id., 697. Courts apply the same standard, however, when determining whether postnuptial and prenuptial agreements are enforceable at the time of enforcement, namely, whether the agreement was unconscionable. Id., 704. The defendant suggests that this testimony related to his expectations during the marriage, not at the time that he executed the prenuptial agree- ment. As we have indicated, we assume, without deciding, that the trial court correctly determined that the parties did not \u2018\u2018contemplate\u2019\u2019 having three children when the agreement was executed. As we have also suggested, however, the question of whether an event was \u2018\u2018contemplated\u2019\u2019 is not a black and white one but involves shades of gray. Although the parties may not have \u2018\u2018contemplated\u2019\u2019 having three daughters within five years of the marriage in the sense that they did not expressly discuss the matter and had no specific plan when they entered into the agreement shortly before the marriage, it seems highly implausible that they had a conscious plan to have no children at that time but that several months after the marriage when the plaintiff became pregnant, the defendant suddenly developed a plan to \u2018\u2018be fruitful and multiply.\u2019\u2019 We conclude, therefore, that, even if the births of the three children were not contemplated when the agreement was executed, in the sense that the births were not consciously and explicitly planned, they were not so completely beyond or contrary to expectation that enforcement of the agreement would work an injustice. See McHugh v. McHugh, supra, 181 Conn. 489. The defendant points out that, after the marriage, the parties lived in the defendant\u2019s house, \u2018\u2018where he paid the carrying costs,\u2019\u2019 until it was destroyed in the fire. They then leased another house using insurance pro- ceeds. The evidence also showed, however, that the plaintiff provided approximately 75 percent of the furnishings for the defendant\u2019s house, for which she received insurance compensation, and she spent $50,000 to $60,000 on improvements to the defendant\u2019s property, for which she never made any claim. The trial court made no finding as to whether the evidence that the plaintiff lived in the defendant\u2019s house supported the conclusion that the defendant provided financial support to the plaintiff, and we con- clude that the evidence does not compel the conclusion that he did. The only finding that the trial court made on this issue was that \u2018\u2018[t]he parties kept their money separate and devoted vastly different amounts of effort and respect into their marriage . . . . Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his marriage.\u2019\u2019 The defendant contends that this court is precluded from considering his ability to provide for himself because the trial court did not expressly specify his earning capacity. See, e.g., Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013) (trial court must specify dollar amount of party\u2019s earning capacity when that factor provides basis for financial award because failure to do so \u2018\u2018leaves the relevant party in doubt as to what is expected from him or her, and makes it extremely difficult, if not impossible, both for a reviewing court to determine the reasonableness of the financial award and for the trial court in a subsequent proceeding on a motion for modifica- tion to determine whether there has been a substantial change in circum- stances\u2019\u2019). The defendant fails to recognize that the trial court in the present case was not determining the amount of a financial award pursuant to \u00a7 46b- 82 (a) and General Statutes \u00a7 46b-86, as in Tanzman, but was determining whether enforcement of the prenuptial agreement would be unconscionable under \u00a7 46b-36g (a) (2) in light of all of the relevant facts and circumstances. The defendant bore the heavy burden of proving an extraordinary change in circumstances to prevail on that issue. See, e.g., Crews v. Crews, supra, 295 Conn. 169. The defendant has pointed to no evidence that would support a finding that, as of the date of the dissolution, he was no longer capable of earning an income, and he made no such claim to the trial court or on appeal. The defendant\u2019s counsel contended at oral argument before this court that the defendant should not be required to establish that he will be unable to provide for his basic needs before the enforcement of the prenuptial agreement can be found to be unconscionable under \u00a7 46b-36g (a) (2), because such an interpretation of that statute would render \u00a7 46b-36g (b) superfluous. See General Statutes \u00a7 46b-36g (b) (\u2018\u2018[i]f a provision of a premar- ital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility\u2019\u2019). We agree with the defendant that there may be circumstances in which the enforcement of a prenuptial agreement would be unconsciona- ble even though the party seeking to invalidate the agreement would be able to provide for his or her basic needs if the agreement were to be enforced. Cf. Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 273\u201374, 242 A.3d 542 (2020) (trial court correctly concluded that enforcement of prenuptial agreement would be unconscionable when \u2018\u2018there was evidence in the record that [a motor vehicle accident resulting in a mild traumatic brain injury] impaired the plaintiff\u2019s ability to work full-time, and, as a result, she was forced to obtain part-time employment at a salary far lower than the one she earned at the time the agreement was executed\u2019\u2019). That does not mean that the question of whether the party seeking to invalidate the agreement will be able to provide for his or her basic needs if the agreement is enforced is always irrelevant to the determination of whether enforcement would be unconscionable. Indeed, there may be cases in which, under all of the relevant facts and circumstances, the enforcement of a prenuptial agreement would not be unconscionable despite a significant reduction in the income of the party seeking invalidation, provided that the court finds that the party can still provide for his or her basic needs. We need not resolve that issue in the present case, however, because the defendant presented no evidence that he is no longer capable of earning an income comparable to the income that he was earning when he executed the prenuptial agreement. See foot- note 26 of this opinion."], "id": "a72e3032-6c6e-405c-964d-d0d96a7e52fb", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Civil Code section 47, subdivision (b)(1) is not ambiguous about the judicial filings to which it applies. It applies to \"any pleading or affidavit filed in an *224action for marital dissolution or legal separation.\" ( Civ. Code, \u00a7 47, subd. (b)(1), italics added.)8 It does not say that it applies only when a particular type of relief is sought. Nor does it exclude any category of filings. Orders in marital dissolution actions typically provide many different types of relief in addition to an order changing the status of the parties, including orders concerning: (1) child custody; (2) child support; (3) ; (4) settlement of property rights; and (5) attorney fees. ( Fam. Code, \u00a7 2010.) In addition, during the dissolution proceeding, a court may issue temporary orders concerning custody and support, the restraint and disposition of property, and the protection of the parties. (See Fam. Code, \u00a7\u00a7 754, 2045, 2047, 3022, 3060, 3600.) Thus, the category of pleadings filed in a dissolution action is much broader than the category of pleadings filed for a change in marital status. A statute specifying the former category cannot reasonably be read to include only the latter."], "id": "4745b383-3f84-4656-b60c-eb0b4ec70f84", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["After stipulating to a temporary support order, Donald and Tonya attended a mandatory settlement conference and reached an agreement regarding the division of marital assets and ongoing . Tonya's attorney read the agreement into the record and also filed a written MSA delineating the terms of the agreement. The agreement required Donald to pay Tonya spousal support in the amount of $7,500 per month plus 35 percent of \"any gross bonuses received by [Donald], commencing August 15, 2009, and continuing thereafter until the death of either party or the remarriage of [Tonya], whichever occurs first, subject to the jurisdiction of the Court to alter, modify, or terminate this provision upon a proper showing having first been made to the Court.\" The agreement noted the spousal support was premised on *223Donald's monthly income of approximately $25,000 per month, less expenses, and an imputation of 40 hours of work per week at an hourly rate of $16 for *919Tonya. The court incorporated the written agreement into a final judgment of dissolution entered on December 8, 2009."], "id": "b8914d45-3128-4a32-9de1-51fc1f395586", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The court issued its decree on June 21, 2017, in which it granted Jose an absolute divorce and granted sole custody of the children to Maria. It ordered Jose to pay $346 biweekly in child support and $100 per pay period in , both effectuated through wage assignment. The court awarded Maria the couple's home and mortgage and awarded Jose title to the Nissan and Honda vehicles. The court found that neither party could afford the couple's 2016 Chevrolet Traverse and ordered that it be immediately sold or returned to the dealership. The parties were ordered to evenly split the debt remaining on the truck after the sale, with Maria getting credit for the monthly payments she had made on the vehicle. The court awarded Jose \"the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District.\""], "id": "9c803ce7-97e8-4f12-aded-5047aba0a5d7", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Subject to exceptions not applicable here, a court may order temporary *921 in \"any amount\" during the pendency of a dissolution proceeding, based on the moving party's need and the other party's ability to pay. (\u00a7 3600.) The purpose of pendente lite spousal support is to maintain the parties' standards of living in as close as possible to the preseparation status quo, pending trial. In fixing temporary spousal support, trial courts are not *104restricted by any set of statutory guidelines. The amount of the award lies within the trial court's sound discretion, and is reversible only on a showing of clear abuse of discretion. ( In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327, 16 Cal.Rptr.3d 489.)"], "id": "ee42075e-f01b-480e-887d-dc0d264da58e", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Tonya asserts the court erred in its decision by: (1) concluding the term \"bonus\" in the MSA did not include certain restricted stock and relocation monies; (2) placing a cap on the amount of Donald's future bonuses available for support; (3) determining that she had the ability to work; (4) awarding Donald attorney's fees in the form of sanctions pursuant to Family Code section 2711 ; and (5) denying her request for additional needs-based attorney's fees pursuant to section 2030. With respect to most of these rulings, we conclude the court did not err. With respect to the orders modifying , we conclude the court correctly determined that Donald's increase in bonus pay constituted a change of circumstances sufficient to warrant a modification of spousal support, but that substantial evidence does not support *918certain of the court's findings regarding Tonya's ability to work. We therefore affirm in part, reverse in part, and remand the matter for limited further proceedings in accord with this opinion."], "id": "b0a73150-d19e-4606-8f25-d518c885af9c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The provisions of UIFSA do not determine jurisdiction over orders. California, as the issuing state, had *897continuing, exclusive jurisdiction over spousal support. (Former Fam. Code, \u00a7 4909, subd. (f), Stats. 1997, ch. 194 [see Fam. Code, \u00a7 5700.211, subd. (a) ].) Further, California had jurisdiction over child support because Joseph was a resident of California and Diane consented to jurisdiction. (Former Fam. Code, \u00a7 4905, subd. (2) ; Stats. 1997, ch. 194, \u00a7 1, p. 880; [see Fam. Code, \u00a7 5700.201, subd. (a)(2) ].) Thus, California had jurisdiction to issue the 2015 order."], "id": "29738671-d3db-4953-ba95-3afd43581d77", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["George contends that Swain , supra , 21 Cal.App.5th 830, 230 Cal.Rptr.3d 614 supports her position because it held that the family court was required to exclude a declaration filed by a party in connection with a motion in family court when the opposing party was unable to cross-examine the declarant. However, Swain is inapposite because of the specific circumstance there, in which the appealing party had no opportunity to take the appropriate steps to make the declarant available for cross-examination. In Swain , a former husband filed a motion to terminate , and the former wife did not respond and did not appear at the hearing. ( Id . at p. 833, 230 Cal.Rptr.3d 614.) The family court continued the hearing and ordered the parties to file updated income and expense declarations. ( Ibid . ) Prior to the next hearing, the former wife filed an updated income and expense declaration, but she did not serve it on the former husband. ( Id . at pp. 832, 833, 230 Cal.Rptr.3d 614.) He saw the former wife's updated income and expense declaration for the first time at the hearing, at which the former wife did not appear. ( Id . at p. 834, 230 Cal.Rptr.3d 614.) At the hearing, the former husband objected *485that the family court should not consider the income and expense declaration because he had no opportunity to cross-examine his former wife about its contents. ( Ibid . ) The family court assured the former husband that it would not consider the declaration. ( Ibid . ) Nevertheless, the family court did end up considering the contents of the declaration in issuing its subsequent order ruling on the motion to terminate spousal support. ( Id . at p. 835, 230 Cal.Rptr.3d 614.) Swain held that, pursuant to section 217, the family court erred in relying on the former wife's declaration because the former husband was not able to conduct a cross-examination. \"We agree that section 217 ... precludes reliance on inadmissible hearsay over a party's objection (subject to the good cause provision of section 217, subdivision (b)), at least where the party has no opportunity for cross-examination.\" ( Swain , at p. 837, 230 Cal.Rptr.3d 614.) Swain explained that the hearsay exception created by Code of Civil Procedure section 2009, which allows a party to proceed by declarations in the context of a motion, \"does not apply to a motion to modify a family law judgment where, as here, the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant. In that situation, the opposing party's objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party's right under section 217 to 'live, competent testimony that is relevant and within the scope of the hearing.' \" ( Swain , at p. 841, 230 Cal.Rptr.3d 614.)"], "id": "3e8f3af6-69c3-40c3-ba2c-b8568ef5675e", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The parties met with the paralegal and signed the PMA on October 26, 1996. While Peter claimed he obtained a boilerplate agreement from the paralegal on October 17, 1996, and brought it home for Natalia to review, Natalia denied seeing the agreement prior to visiting the paralegal's office. Peter testified the parties had previously discussed a waiver of and that Natalia would be awarded custody of their children in the event of a dissolution of the marriage. At the time the parties executed the agreement, the \"paralegal said that the agreement could be drafted by an attorney and had the parties sign an acknowledgment that the parties knew she was not giving legal advice.\" The parties agreed \"that they went to the paralegal's office to sign the agreement in anticipation of their marriage and that financial disclosures were completed at the paralegal's office.\""], "id": "5133269c-d9fa-452c-ab77-fd8e14e6edc4", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The unpublished parts of this opinion resolve the following issues. First, substantial evidence supports the trial court's explicit finding that David acquired the interest *411in his father's Huddleston Crane business as a gift and its implicit finding that the gift was not remuneratory. Consequently, the trial court did not err in determining David's ownership interest in the business was his separate property. Second, the questions involving the child support award in the June 2016 judgment are not moot. Third, the calculation of that child support award erroneously failed to account for the percentage of time each party had custody of their daughter and did not properly analyze David's voluntary contributions to a health savings account (HSA) in determining his net income available for child support. Fourth, as to permanent , the trial court's determination of David's income for purposes of evaluating his ability to pay support erroneously excluded David's California and federal income tax refunds and did not properly analyze David's voluntary contributions to a 401(k) plan and to a health savings account. Fifth, the trial court's finding that David's net rental income is $7,650 per month-a finding that affects both the child support and the spousal support calculations-is supported by substantial evidence and, therefore, will be upheld."], "id": "d65a6607-b5ce-4cbd-b5c7-2d09c4bb3b71", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["We do not mean to say that the trial court was wholly barred from awarding Janice as a result of Robert's waiver. His waiver, and the resulting reduction in her income, were changed circumstances which would tend-ceteris paribus -to increase her need for support. Howell specifically permitted a state court to take account of a military spouse's waiver of retirement pay in recalculating spousal support."], "id": "170ee250-732a-4b10-8428-bd1ddbea6493", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In addition, DeeDee seeks to overturn the trial court's temporary and permanent *90child and awards.2 We affirm *910that part of the judgment awarding permanent child support, and the trial court's temporary child and spousal support awards for two periods in 2015. But, we hold the trial court abused its discretion when it retrospectively modified 2014 pendente lite child and spousal support, because it based the modification on the parties' 2013 tax returns, rather than their 2014 tax returns, which were then available. We reverse that part of the judgment, and remand for the limited purpose of recalculating the 2014 awards in light of the 2014 tax returns. We also reverse the permanent spousal support award and remand for recalculation of that amount as well."], "id": "38f8bcbd-cb1e-49b5-9418-5d7030eb9386", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["A court may modify a order upon a showing of a material change of circumstances since the last order. ( In re Marriage of Olson (1993) 14 Cal.App.4th 1, 9, 17 Cal.Rptr.2d 480.) The *610party seeking the modification bears the burden of establishing a material change. ( In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78, 46 Cal.Rptr.2d 8 ( Stephenson ).) \"In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in ... Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order.\" ( Id. at pp. 77-78, 46 Cal.Rptr.2d 8, fn. omitted.) These criteria include, among other things, the earning capacity of each party, the ability of the supporting party to pay spousal support, the needs of each party, the age and health of the parties, the balance of hardships to the parties, and any other factors the court determines are just and equitable. ( \u00a7 4320.) In evaluating the supporting party's ability to pay support, the court may take into account not only income actually earned, but also unearned income and assets. ( \u00a7 4320, subd. (c) ; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305, 111 Cal.Rptr.2d 755.)"], "id": "a6384b71-a5c4-445c-830a-cde32ab069fa", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Both parties submitted briefs. Husband argued \"[t]he only problem is that [the amount ordered in the 2-21 Order] greatly exceeds [husband's] monthly cash flow.\" Husband requested that the court either change the amount of the to below the guideline amount or order each party to pay his or her own attorney and professional fees, and for wife to pay all of the house-related expenses."], "id": "0ae93232-bd55-4b8e-be98-a75819a84788", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Judge Towery continued the trial for a third day of proceedings on February 11, 2014. Notwithstanding his previous rulings regarding , the issue came up again, with regard to a pending request for child and spousal support set for hearing on February 20, 2014. Judge Towery reconfirmed that the issue of spousal support was \"closed\" based on Judge Gallagher's Trial Decision, and Judge Johnson's denial of the set aside motion. Natalia conceded she did not put the issue of section 1612, subdivision (c) before the court."], "id": "dd8377be-cee8-4dea-9629-6dfb7c66df37", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Substantively, the Putative Spouse Order provides in full as follows: \"Without determining at this time whether Florencia is actually married to Juan, the Court finds that Florencia is the spouse or putative spouse of Juan such that she may pursue her claims as set forth in her petition(s), including support, award of property and obligations, attorney fees, and litigation costs.\"7 (Some capitalization omitted.) The family court continued the *326hearing to a date certain for the purpose of considering Florencia's requests for and attorney fees and costs."], "id": "47eacb6d-39cc-4979-b2d8-9671fb9ef818", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["\"(a) Purpose \"Under Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing. \"(b) Factors \"In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217 : \"(1) Whether a substantive matter is at issue-such as child custody, visitation (parenting time), parentage, child support, , requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties; \"(2) Whether material facts are in controversy; \"(3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses; \"(4) The right of the parties to question anyone submitting reports or other information to the court; \"(5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c) ; and \"(6) Any other factor that is just and equitable. \"(c) Findings \"If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing. The court is required to state only those factors on which the finding of good cause is based.\" (Cal. Rules of Court, rule 5.113 (a), (b), (c), bolding omitted.)"], "id": "ea3d79f0-548c-4e7b-8001-e32806238e33", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Subsequently, Ashlyne filed an amended memorandum of points and authorities in opposition to Vikash's request to terminate .5 In this brief, Ashlyne asked the court to enforce the specific support requirements of the I-864 affidavit, requesting an order that Vikash \"pay support at $1,196.15 per month.\" Ashlyne explained that the poverty guideline for a one-person household for 2014 was $11,670 per year, and she claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per month."], "id": "8941f4c7-9487-44da-b961-c19bf4810b5b", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Domestic Relations Law \u00a732 and Family Court Act \u00a7 412 are likewise determined to be inapplicable given the circumstances at bar. Both statutes speak to a spouse\u2019s duty of \"support\u201d, not the responsibility to pay specific third-party expenses incurred by the other spouse. Further, both statutes establish a spouse\u2019s financial responsibility to support the other spouse only if possessed of sufficient means or able to earn such means. In the case at bar, plaintiff has never so much as alleged that the defendant is possessed of sufficient means to pay the subject medical bills. Finally, any application, or cause of action, which seeks should be initiated in the appropriate Family Court. (Family Ct Act *454\u00a7 411; see, Doctors Hosp. v Curtis, 135 Misc 2d 71 [1987]; State Univ. Hosp. v Moyer, 62 Misc 2d 761 [1970].)"], "id": "1551a991-2dda-4efe-94cd-cb44bab5fa68", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Wife argued there was no arithmetic error in the 2-21 Order and \"there has been no additional findings or new evidence presented whatsoever \" to support reconsideration under Code of Civil Procedure section 1008, \"which governs and limits the grounds upon which a motion for reconsideration can be heard to new facts or law-neither of which exist[s] here.\" Wife disagreed that the court had authority under Le Francois to reconsider its ruling in the absence of a motion. She further argued husband should be barred from affirmative relief regarding the 2-21 Order under the disentitlement doctrine because he violated the 2-21 Order by failing to make the first required payment due on March 1, 2017."], "id": "1f8d0395-55ef-4dda-90af-4fd8c371a2bc", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Section 4320 requires the court to consider the following factors in ordering : (1) the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; (2) the extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties; (3) the ability of the supporting party to pay spousal support; (4) the needs of each party based on the marital standard of living; (5) the obligations and assets of each party; (6) the duration of the marriage; (7) the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the other party; (8) the age and health of the parties; (9) any history of domestic violence; (10) the immediate and specific tax consequences; (11) the balance of hardships to each party; (12) the goal that the supported party be self-supporting within a reasonable period of time; (13) any criminal conviction of an abusive spouse; and (14) \"[a]ny other factors the court determines are just and equitable.\" (\u00a7 4320, subds. (a) -(n).)"], "id": "77c166bd-f04b-4540-a6db-5abb1103a63c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["On September 25, 2015, Kevin filed a request for an order terminating further . He submitted a series of declarations in support of his request. In these declarations, he explained that he had turned 65 in July 2015 and decided to retire, handing his business, Berman & Ely, a private investigation and security firm, over to his current wife. He stated that his wife now ran the business \"full time,\" and he was \"not involved in the *608operation and do[es] not work there.\" Kevin stated, \"[M]y wife ... has learned the trade and is running the business.\""], "id": "4ebdfbdb-f4c9-4b1c-8e69-393f3ef2ea53", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Father filed a timely \"Request for Hearing Regarding Registration of Support Order\" and \"request[ed] that service of the registration of support be vacated (canceled) because\" Italy is not a \"state\" as defined by UIFSA, and thus, the Department lacked authority to enforce the order. In his accompanying points and authorities, Father asserted that the Italian support order was not enforceable in California unless the Department could show that Italy had enacted a law or established procedures for issuance and enforcement of foreign support orders which are substantially similar to the procedures under UIFSA. In a supplemental brief, Father outlined what he described as \"the vast differences between Italian support laws and the support laws in the State of California.\" He argued that Italy, unlike California, \"has no ... laws detailing formulas and guidelines the courts are to follow in setting child support and ,\" there is no presumption in Italy that \"permanent spousal support in a marriage lasting less than ten (10) years will only be payable for one-half (1/2) the length of the marriage,\" and there is no set age for child support to terminate."], "id": "a4a1c72e-ac64-4225-b5bb-a7d0277c134e", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["*428Because of its history with the parties and firsthand experience, it is for the trial court to craft a specific modification to in light of its finding of changed circumstances. But any restriction on additional spousal support should not deny Husband what the parties reasonably contemplated at the time they entered into the Agreements. For our part, we only direct that on remand the court (1) take account of the parties' reasonable expectation that Wife's earnings would continue to increase, and (2) modify the spousal support obligations accordingly.9"], "id": "179691cf-80a0-402a-8b7d-9cb6838af7ca", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Third, while the court did not hold a hearing, it did invite the parties to argue the issues but indicated it \"prefer[red] a 5 page written argument from each of [them].\" Wife argues she requested that the court \"adopt a briefing and hearing schedule that complied with the Code\" but the record shows she only asked for \"the standard briefing protocol and schedule.\" Wife did not ask for a hearing on the court's reconsideration of the 2-21 Order. Wife's request for a hearing schedule pertained to her request for an \"expedited hearing date and briefing schedule\" to seek relief from the court \"to address [husband's] failure to comply with the Order After Hearing by failing to make the first payment that was due on March 1, 2017.\" The court responded that wife would have to file an appropriate motion because the matter was not before the court."], "id": "c382d1c8-fd02-4a0e-ab0d-c0a8ef334211", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Before trial, through one or more stipulations and/or stipulated orders, the parties divided approximately $6.9 million of assets and additional funds were frozen. They also agreed to temporary child and payments without prejudice to retroactive adjustment after trial. Joe's accountant prepared a reconciliation and reimbursement schedule indicating *913how the previously allocated assets should be reallocated based on his tracing. The trial court adopted it and attached it to the judgment. DeeDee does not challenge the mathematics of the reconciliation, just the tracing on which it was based."], "id": "721b2973-6135-475b-84b4-9f00741071ac", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["We conclude that as a matter of law, the order, agreed to by both husband and wife via form SB-12035 attached to the judgment, is not subject to termination by operation of law ( \u00a7 4337 ).8 In reaching this conclusion, it should be borne in mind that forms SB-12035 and FL-343 leave a lot to be desired. Although these forms contain language that acknowledges section 4337 's termination of spousal support by operation of law, the parties must affirmatively \"opt in\" to have the statutory requirement apply. However, logic suggests that the parties should affirmatively \"opt out\" of the statutory requirement in order to waive section 4337 's application. We urge the Judicial Council of California and the local courts to revise their forms so that the parties must specifically check a box to waive section 4337 's application."], "id": "03b0285b-97d2-4272-b078-2d8dd633203d", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["in circumstances occurring after the February 2018 decree not contemplated when the decree was entered. This material change in circumstances was also deemed to be good cause to modify Mark\u2019s alimony obligation. The court concluded that \u201cthere was no bad faith motive\u201d in Mark\u2019s reduced level of income, that the reduction did not result from \u201cthe mere passage of time\u201d or Mark\u2019s \u201cwrongdoing or voluntary dissi- pation,\u201d and that the change was permanent. Based on these findings, the court ordered Mark to pay $750 per month in alimony to Lisa and $797 per month in child support, with a 50-percent abatement of child support in August if Mark exer- cised 28 consecutive days of his summer parenting time. The order set March 31, 2020, as the effective date of modification and also required Mark to maintain health insurance for the minor child. Following the entry of the district court\u2019s order, Mark filed a \u201cMotion to Reconsider, Alter or Amend Order\u201d that requested the court to set the date of modification back to January 1, 2020, and to further reduce his alimony obligation to $600 per month. Lisa also filed a \u201cMotion for New Trial\u201d alleging that the September 2020 order modifying Mark\u2019s support obligation was \u201cnot sustained by sufficient evidence\u201d and was \u201ccontrary to law.\u201d Lisa also claimed that the district court\u2019s order of modification \u201cdid not address or make findings of fact con- cerning [her] allegation of \u2018unclean hands\u2019 when the evidence was undisputed that [Mark] had the ability to pay child support and , yet intentionally elected not to pay sup- port due.\u201d Following a hearing held on October 19, the court denied the parties\u2019 respective motions in a journal entry entered on December 7. Lisa appeals. ASSIGNMENTS OF ERROR Lisa claims the district court abused its discretion in modify- ing Mark\u2019s child support and alimony, because Mark\u2019s reduced income was his own fault and thus could not be either a material change in circumstances or good cause justifying - 462 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456"], "id": "9719d4f3-3c29-464d-b9dc-e4d4428b54b5", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In October 2013, Joseph moved in the California court to terminate . This motion was not heard until the following October; in the meantime, California courts addressed various other motions by the parties, such as for contempt and sanctions. The California court reduced the amount of spousal support to zero effective October 28, 2013, but found it \"inappropriate\" to disturb the Utah judgment on spousal support arrearages."], "id": "3dbf425b-2c4d-432b-96e5-816f627555f1", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In September 2009, the parties each filed a marriage dissolution action against the other in the Los Angeles Superior Court family law court, which *433actions they stipulated to consolidate. On December 14, 2011, Jeffery filed a stipulation and order regarding their final property division, , and attorney fees and costs, which both parties, their counsel, and the family law court, through Judge Keith M. Clemens, signed."], "id": "ad655abf-9020-4a53-af74-5b6caa961c0e", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["With respect to Tonya's ability to work, the court went on to address the factors set forth in section 4320. In that context, it found that Tonya had not followed up on the recommendations for acquiring additional skills set forth in the 2008 vocational evaluation, and that her treating orthopedic surgeon, *230Dr. Gelb, did not agree she was unable to work. The court conceded that Dr. Gelb had testified Tonya had some limitations, but found that Tonya had no restrictions using a keyboard, nothing precluded her from working full time, and most of her complaints could be ameliorated by surgery. The court also addressed the remaining section 4320 factors, noting specifically that spending had been a source of friction throughout the marriage and that it appeared Tonya had continued to overspend after the marriage despite her limited ability to work. Thus, the court declined to make any modifications to the beyond the cap on Donald's bonuses."], "id": "3db506c8-10bf-4b60-82ac-24dc5cca6bef", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Judith J. Gische, J. Defendant moves to dismiss that part of plaintiffs complaint which seeks the ancillary reliefs of custody, child support and . He claims that such issues have been fully litigated in the Italian courts and are barred here by principles of res judicata. Plaintiff opposes the motion and, instead, cross-moves to discontinue this divorce action, in its entirety and without prejudice. Defendant opposes the cross motion. He argues that there is no reason why these parties should delay ending their marriage. He is also claiming that because the Italian decree is res judicata, any dismissal of the ancillary issues should be made on the merits and with prejudice. Defendant fears that if plaintiff is allowed to discontinue this case without prejudice she will continue to bring in seriatim actions for the same relief."], "id": "050b0d74-9f7d-4dbe-9009-a32f10114532", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Assuming the trial court in the instant matter could have considered unconscionability at the time of enforcement in evaluating the validity of the waiver contained in the PMA, we are persuaded by the policy permitting bifurcation of trials that the effective enforcement date of the spousal support waiver occurred at the September 2012 trial before Judge Gallagher, not the February 2014 trial on reserved issues conducted by Judge Towery. \"The court may separately try one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues.\" (Rule 5.390(b) [formerly rule 5.175(c) ].) Appellate courts discussing the goals of bifurcation contemplate a final resolution of the bifurcated issues to aid in the later resolution of other issues. (See In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 257, 10 Cal.Rptr.2d 157 ; In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 893-894, 219 Cal.Rptr. 337.) The goal of simplifying the determination of other issues by first determining the validity of a premarital agreement would not be served if the parties could argue that the date of enforcement of the agreement was after the date of the bifurcated trial. Thus for purposes of evaluating unconscionability at the time of enforcement, we find the September 2012 trial to be the relevant point in time."], "id": "071bef51-46db-4889-b6d1-feb9e01ddef8", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["It found that \"[Robert's] voluntary election and the resulting termination of [Janice's] share of the military retirement\" was a material change of circumstances. It further found that it would be a \"miscarriage of justice\" to allow Robert, acting unilaterally, to increase his military-source income from $791 (taxable) to $3,132 (tax-free) while reducing Janice's military-source income from $541 to zero. After discussing each of the factors listed in Family Code section 4320, it concluded that Janice was entitled to receive $541 a month in ."], "id": "68016394-2bdb-4eae-a2da-5ae75355fdad", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Here, in setting forth their agreement regarding , the parties used form SB-12035, which required them to check a box if they wanted the section 4337 termination provision to apply. The trial court agreed that the form represented \"an agreement between the parties.\" However, it found the argument that section 4337 does not apply \"because there appears to be a check box and it wasn't checked\" to be \"a bit disingenuous.\" We disagree. Form SB-12035's check box provides a sufficient \"writing\" to represent the parties' agreement to waive section 4337. ( Cesnalis , supra , 106 Cal.App.4th at p. 1276, 131 Cal.Rptr.2d 436.)"], "id": "ccd22ffd-67f5-4f81-b3ba-6654e33d0e89", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["In this action, plaintiff seeks to enter, register, and enforce a judgment of divorce and order of custody rendered by the courts of Abu Dhabi where both parties appeared and fully participated in the proceedings. The issues presented are the extent to which, under the doctrine of comity, this court should recognize and enforce the foreign judgment of divorce and the provisions for child and , custody of the children, and a distributive award for $250,000 under a mahr agreement, and whether either party is entitled to counsel fees pursuant to Domestic Relations Law \u00a7\u00a7 236 (B) and 237 (a) and (b). For the reasons set forth at length below, this court finds no compelling public policy for refusing full recognition of the Abu Dhabi judgment of divorce under the doctrine of comity and, therefore, the defendant is precluded from attacking the validity of the foreign judgment of divorce in a collateral proceeding in the New York courts. The plaintiff is entitled to an award of counsel fees on her qualifying matrimonial claims, consisting of her efforts to obtain maintenance or distribution of property following a foreign judgment of divorce (Domestic Relations Law \u00a7 237 [a] [5]), and custody and maintenance of the children (Domestic Relations Law \u00a7 237 [b]). The defendant\u2019s request for counsel fees is denied based upon lack of merit of his application."], "id": "8acce741-ff2e-4abf-bf26-9b82e8a4388c", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Goodson argues that reversal of the decree is warranted because (1) he was not served with the complaint and summons in accordance with Rule 4 of the Arkansas Rules of Civil Procedure ; (2) the circuit court failed to exercise discretion or utilize any analysis under Arkansas Code Annotated 9-13-101 when it denied Goodson visitation with his minor son; (3) the circuit court abused its discretion by denying Goodson's motion for a continuance; (4) the circuit court abused its discretion when it admitted the transcript of a hearing on a petition for an order of protection; (5) the circuit court unequally divided the marital assets without making the findings required by Arkansas Code Annotated 9-12-315 ; (6) the circuit court erred when it awarded without analyzing the parties' financial needs, ability to pay, and other relevant factors; (7) the circuit court erred in awarding attorneys' fees to the appellee, Sharon Bennett; (8) the circuit court erred by not allowing Goodson to impeach Bennett's credibility; (9) the circuit court erred by denying Goodson's motion to reopen the record based on newly-discovered evidence; and (10) the circuit court's errors cumulatively denied Goodson a fair trial."], "id": "78c216a5-84a9-43a5-a034-d7f40f1a7cb1", "sub_label": "US_Terminology"} {"obj_label": "SPOUSAL SUPPORT", "legal_topic": "Family Law", "masked_sentences": ["\"3. [\u00b6] ... [\u00b6] \"? SPOUSAL SUPPORT PAYMENTS. ?Petitioner Respondent shall pay spousal support to the other Party the sum of $ 1,000.00 per month, \"?due one-half on the first and one-half on the fifteenth day of each month \"due on the first of the month \"due on the _____ day of each month \"commencing 10/1/13 and continuing until 8/1/17. Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first.\""], "id": "58ed93aa-fdd7-4e8c-8be8-c93049a9f671", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Importantly, while New York authorizes the use of these enforcement tools, the federal law similarly draws no distinction between arrears and future support. Federal law defines a qualified domestic relations order as including any \u201cjudgment . . . which . . . relates to . . . alimony payments.\u201d (29 USC \u00a7 1056 [d] [3] [B] [ii] [I].) There is nothing in ERISA which distinguishes between a QDRO for arrears in maintenance\u2014as the judgment in this case represents\u2014and a QDRO for ongoing maintenance payments. Because the federal statute does not differentiate between these two types of QDROs, this court declines to do so. In addition, any differentiation between a QDRO for unpaid arrears and QDRO to assure future payments would be contrary to the federal scheme, which is designed to allow spouses and families to have a privileged status under the law to collect state-mandated support payments from assets that other creditors of the truant spouse cannot access. There is no suggestion that a spouse, who converts the unpaid to judgment, should be left without access to pension funds, but a spouse, who seeks to assure future payments, is granted such access. For a spouse, the unpaid past obligations\u2014which may leave past expenses unpaid and lead to accumulated debt\u2014are at least as important as the security for the future payments. In this court\u2019s view, the federal statutory scheme was designed to permit families, *587seeking support from scofflaw spouses through their pension assets, to both obtain recovery of past obligations and secure future payments. In that respect, the federal hand\u2014the QDRO exception to the ERISA anti-alienation rules\u2014fits neatly into the many fingers of the state glove, starting with CPLR 5205 (c) (1). The later provision specifies that trust property\u2014the pension in this instance\u2014is exempt from money judgments except as provided in paragraph (4) of that section. Subdivision (c) (4) of that section expressly provides that the exemption does not bar collection through a \u201cqualified domestic relations order\u201d or any order of maintenance \u201cwhether or not such arrears/past due support have been reduced to a money judgment.\u201d In this instance, the money judgment, which the wife seeks to enforce, is indisputably maintenance arrears. A second finger in the state\u2019s glove of remedies further supports the wife\u2019s claim: CPLR 5241 envisions that a judgment for maintenance arrears can be collected from income from a \u201cprivate pension or retirement program.\u201d (CPLR 5241 [6].)"], "id": "f4626f2f-9ed2-4139-9bd0-14a97c4d60d0", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["Nonetheless, citing Shimkus , supra , 244 Cal.App.4th at pages 1270 through 1271, 198 Cal.Rptr.3d 799, husband maintains that the trial court erred in relying on evidence in wife's declarations when they were never admitted into evidence. In Shimkus , the husband moved for a postjudgment order terminating . ( Id . at p. 1266, 198 Cal.Rptr.3d 799.) Both parties submitted declarations. At the start of the hearing, *1130the wife sought a ruling on her objections to the husband's declarations, but the trial court replied that \"it would take oral testimony and would rule on any objections made when questions were asked.\" ( Ibid . ) Following testimony, and during closing argument, the wife referenced her declaration as containing specific evidence; however, the court stated \"the evidence in the hearing was the testimony and documents admitted, and '[n]othing else.' \" ( Id . at p. 1267, 198 Cal.Rptr.3d 799.) The court took the *363matter under submission and later granted the husband's motion. Regarding the declarations, the court characterized them as \" 'un-received evidence,' \" ruling that \"the only evidence was that presented by oral testimony and exhibits introduced into evidence.\" ( Ibid . )"], "id": "8b8513e4-5523-455b-a31d-991a6d407533", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["The wife\u2019s counsel seeks a declaratory judgment that the award of counsel fees to her is in the nature of support, and therefore not subject to the statutory exemptions from execution of money judgments under CPLR 5205 (\u201cPersonal property exempt from application to the satisfaction of money judgments\u201d) and 5222-a (i) (\u201cService of notices and forms and procedure for claim of exemption\u201d), the latter of which provides: \u201cThe provisions of this section do not apply ... if the debt enforced is for child support, , maintenance or alimony.\u201d Subdivision (i) of section 5222-a of the CPLR, which provides for notification of the debtor of the statutory exemptions from debt collection and a procedure for the debtor to assert exemption claims, became effective on May 4, 2009. Not surprisingly, the court has not been able to locate any cases interpreting whether subdivision (i) applies to attorneys\u2019 fees."], "id": "33329eea-41a9-4f65-aa74-46d590a94e3f", "sub_label": "US_Terminology"} {"obj_label": "spousal support", "legal_topic": "Family Law", "masked_sentences": ["DeeDee filed a request for order on December 5, 2013, seeking, among other things, to modify temporary child and . For reasons the parties' briefing does not reveal, the trial court did not act on that request before trial. It did, however, rule on that motion after trial. Its judgment, entered March 18, 2016, retrospectively modified child support and temporary spousal support for three prior periods: calendar year 2014; January 1, 2015-May 31, 2015; and June 1, 2015-December 31, 2015. Also, the trial court set permanent child and spousal support for January 1, 2016 forward. DeeDee seeks reversal of all of these determinations. For the reasons set forth below, we reverse the trial court's pendente lite spousal and child support awards for 2014, and the permanent spousal support award. We remand for further proceedings consistent with this opinion."], "id": "87ded8b7-798f-4ede-b72e-2c8313732acf", "sub_label": "US_Terminology"} {"obj_label": "consent divorce", "legal_topic": "Family Law", "masked_sentences": ["*169Pursuant to this section and subdivision (6), and for whatever reason, spouses may enter into a separation agreement, and upon compliance with the conditions of this subdivision either party may, upon notice to the other party, apply for a judgment converting such agreement to a judgment divorcing the parties and dissolving the marriage. This subdivision preempts the field of divorce following a separation agreement. The claim is raised that this subdivision permits a \u201c \u201d and for this reason is contrary to the interest of the State in regulating the marital status of its residents. Whatever the merit of this claim, the claim must fail because of the language of this subdivision. It is the purpose of the Legislature by this subdivision to require a 11 cooling off \u201d-period allowing the parties to examine their new status and hopefully lead to reconciliation, short of a separation agreement being converted to a judgment of divorce."], "id": "fd194276-f436-43c3-ae25-70b790744e7e", "sub_label": "US_Terminology"} {"obj_label": "consent divorce", "legal_topic": "Family Law", "masked_sentences": ["Nor is a different conclusion required by the ruling in Averbuck v. Averbuck (270 App. Div. 116) that a spouse is not precluded from questioning the validity of a sister State decree based on an appearance in the granting court which was induced by fraud, coercion or duress. Although there is here presented an instance of the too frequent, questionable practice of a consensual divorce arranged by an attorney retained by one spouse but purporting to act for both, there is not a scintilla of evidence that \u201c Elizabeth A. Cannon \u201d was deceived or forced to sign the formal paper necessary for procurement of the both spouses then desired. The record is clear that she knowingly co-operated toward her husband\u2019s procuring a divorce in some State of easy requirements, though she may have later regretted her acquiescence, either because still fond of respondent and resentful of his speedy remarriage or because she had come to realize the disadvantages and financial burdens of a divorced mother of two young children."], "id": "e25ec2a5-06d3-446e-942f-566d8155f72b", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The court is also required to consider the non-monetary contributions that the parents will make toward the children\u2019s care and well-being. In this matter, both parties make tremendous contributions to the children\u2019s care and well-being. Due to the joint agreement, both parties are involved in decision making for the children as well as taking the children to medical and dental appointments and extracurricular activities. They are involved with the children\u2019s educational pursuits and are engaged in the routine day-to-day care of the children. Plaintiff\u2019s and defendant\u2019s love, affection and concern for their children\u2019s well-being were evident in their demeanor during trial. Neither has shown there is any breakdown of communication."], "id": "ea6f4365-d451-45b8-9d06-843a2feeabd6", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Eliza and Helen each expressed the desire to live with both parents and both said they were satisfied with the present scheme of . These views are consistent with the children\u2019s love for both parents, and with what the plaintiff\u2019s expert characterized as a typical childish wish that separated parents will reunite. The interviews with the children reinforce the court\u2019s finding that neither parent is unfit and that both parents should be involved in their upbringing, but the children, at ages five and seven, are too young to guide the court on the issue of what custodial arrangement will best serve their needs."], "id": "7a524d66-ad64-457f-8eb7-c2f5ac3eb65d", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Finally, the court may consider any other factor the court deems relevant. A primary consideration in this case is the parties\u2019 shared parental access schedule. Although defendant suggests that the Court of Appeals\u2019 determination in Bast v Rossoff (91 NY2d 723 [1998]) prohibits the court from considering as a factor in child support, a review of the decision suggests otherwise. In Bast, the Court held that the CSSA is applicable to joint custody cases. In its holding, the Court continued that in shared custody cases, child support must first be calculated using the three-step formula set forth in the CSSA and there is no exception carved out in CSSA for shared custody cases. Significantly, the appellate court in Bass recognized, inter alia, that"], "id": "7f3e2400-b93a-49da-85a2-5961f5c56df5", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["2. None of the trustees performed any of the duties essential or characteristic of a trust, during the lifetime of the father: (a) There was no record made of the transaction, either originally by the settlor or subsequently by the trustees. There was no list-made of the securities, for identification, either originally by the settlor or subsequently by the trustees. There was no unequivocal delivery of the securities as long as father and son . On such tentative basis, in the event of the death of the son, the opportunity was available to cancel out the whole transaction. The testimony shows that the surviving other trustee had practically no knowledge of the matter. In the event of the death of the father, we depend upon the interpretation of the son. Although he contends for an inter vivos trust, *393his testimony clearly favors the training of the son for the testamentary trust."], "id": "3b6ec96f-2543-40e5-bab2-27408d87e4ea", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["These parents divorced after a 17-year marriage. The father is a doctor and the mother is a pharmacist. They have four children, ages 19, 13, 7 and 6. The order of custody provides that physical custody of the two younger boys is shared. The daughter resides with the mother, and the oldest boy with the father. Accordingly, the mother and father have equal of two children and split custody of the other two children."], "id": "445ec18d-a8ff-4e50-a451-67fbb82e3db3", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The majority of cases from other jurisdictions, however, have declined to extend child custody precepts to dog disputes. Some have been plainly dismissive (see e.g. Desanctis v Pritchard, 803 A2d 230, 232 [Pa Super Ct 2002] [ of a dog, Barney, not permissible because he is personal property and as such, said arrangement would be \u201canalogous, in law, to (custody of) a table or a lamp\u201d]). Particularly notable is the language used in Clark v McGinnis (298 P3d 1137 [Kan Ct App 2013] *457[table; text at 2013 WL 1444421, 2013 Kan App Unpub LEXIS 305]). There, the Kansas Court of Appeals declined to award the appellant \u201ccustody\u201d of Dinky, one of the parties\u2019 three dogs. In holding that the \u201cargument that child custody laws should be applied to dogs is a flawed argument,\u201d the court observed, with the classic midwestern gift for stating the obvious, that \u201c[o]ne relevant difference between children and dogs is that children are human beings and dogs are domestic animals\u201d (2013 WL 1444421, *2; 2013 Kan App Unpub LEXIS 305, *7)."], "id": "04736cb3-a6c8-4660-9814-afaa922f67c5", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Defendant did not contest plaintiff\u2019s fitness to have custody at trial. His position is that joint custody promotes close nurturing by both parents. He describes himself as stable and competent whereas he views the children\u2019s mother as nervous, indecisive and easily frustrated. Defendant seeks joint responsibility and equal voice in the decisions affecting his daughters, as well as a continued 50-50 division of the children\u2019s time. He maintains that the children have flourished under the arrangement and asks the court to order its continuance."], "id": "936dd958-d4de-419a-bbbd-b2ba5a27e175", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Father G.L. appeals from the juvenile court\u2019s jurisdictional and dispositional orders establishing jurisdiction over his three children pursuant to Welfare and Institutions Code section 3001 and removing them from his custody. He challenges the sufficiency of the evidence to support the court\u2019s jurisdictional findings based on allegations of domestic violence and marijuana abuse. He also contends the court erred in finding that the removal of the children from his custody was necessary to prevent substantial danger to them. We affirm. BACKGROUND I. Referral and Petition Father and mother A.W. (mother) have three children: sons Ka. (born 2014), Ke. (born 2016), and Ku. (born 2017). Mother also has an older son, K. (born 2010), from another relationship.2 Mother and father of Ka., Ke., and Ku. under a 2019 family law order, which awarded mother primary physical"], "id": "524b96bb-25d4-48ff-a2ce-4debaad319fe", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["*757The simple conclusion is that the child support percentages in the CSSA make no sense if \"adjusted\u201d for extensive \"visitation\u201d. This court does not conclude that the Legislature intended the court to apply the support percentages blindly. Rather, where there is extensive time sharing the court must look at the totality of the circumstances in both homes rather than rely on the percentages. The decision to view the totality of the circumstances, or the \"factors\u201d in Domestic Relations Law \u00a7 240 (1-b) (f) (1)-(10) is not inconsistent with the cases. In Holmes v Holmes (supra), the majority found the CSSA to apply to but seemed to suggest that the Hearing Examiner correctly refused to adjust for time sharing. On the other hand the dissent concluded that the CSSA did not apply because one parent can always be designated as the primary custodian. The dissent would then use the \"factors\u201d to reduce child support."], "id": "1db9057f-bb52-4589-880a-4c8874aeaff9", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The June 2017 dispositional report recommended that the petition's allegations be sustained, the petition be dismissed, and mother, who was in the process of divorcing father, be awarded sole custody of Daniela. Mother stated that she believed stepdaughter \"100 percent\" and had \"no doubt\" that the allegations of sexual abuse were true. Father continued to deny the allegations and said he did \"not know why [stepdaughter] would lie,\" though he speculated that she was aware his and mother's \"relationship [was] disintegrating\" and might be taking mother's side. He opposed the Agency's recommendations and expressed a desire for of or visitation with Daniela. Although Daniela had stated during her CASARC interview that she would be \"sad\" if separated from father, she now said she did not want visits with him."], "id": "d4f27aed-e4c4-412c-bece-3c9f21a612dd", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["A pro rata reduction based on visitation time is not necessarily related to a reduction in the costs of support. The formulas often do not take into consideration the generally accepted fact that does not reduce the costs in either household but actually increases the total child-related costs that must be borne by both parents. That is, there is no statutory recognition that shared custody necessitates duplication of costs such as housing and clothing and increases the need for transportation expense so that the total required to be expended for the children is generally in excess of the CSSA mandated percentage of the joint income. These increased costs has led one researcher to conclude that joint custody is workable for parties with joint income \"in the upper-middle income brackets\u201d but is \"out of range for couples with modest income\u201d (Reichler, New York Child Support Manual, at 35-3, 35-7 [1993]). For that reason States such as Colorado increase the basic child support computed under the regular percentage formula by an additional 50% to reflect the increased total costs caused by duplication, before applying the percentage reduction for time in excess of 92 overnights (Colo Rev Stat \u00a7 14-10-115 [10] [c])."], "id": "1bc8ae92-271b-4175-abe8-6f5ccbf7afaf", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The analysis of the \"factors\u201d in Domestic Relations Law \u00a7 240 (1-b) (f) yields the following results. The child has no resources other than those of her parents; the parents have no substantial assets. Morton has no \"special needs\u201d. The child would have lived in a substantial upper middle income family if the household were not being dissolved. There are no tax consequences of the payment of child support. Both parents would make substantial nonmonetary contributions to the care and well-being of the child during the time she is with each of them. Both parents spend substantial time with Morton, but she spends a great deal of time with a nanny who travels from house to house with her. Both parents are attorneys and have no educational needs. As noted the income of the parties is *758roughly equivalent. The expenses Father incurs \"in exercising visitation\u201d are not \"extraordinary.\u201d Nor does the parties\u2019 agreement discuss \"extended visitation.\u201d There are however expenses for \"routine and essential services\u201d which have traditionally been excluded from consideration under Domestic Relations Law \u00a7 240 (1-b) (f) (9) (see, Matter of Pandozy v Gaudette, 192 AD2d 779, 780 [3d Dept 1993]; Matter of Deborah D. v Theodore G., 149 Misc 2d 299, 304 [Fam Ct, Columbia County 1990] [Peters, J.]). In a case it is, however, reasonable and appropriate to consider the expenses of the child incurred by each of the parties as one of the \"any other factors\u201d referred to in Domestic Relations Law \u00a7 240 (1-b) (f) (10), in order to find a number that is just and appropriate. Thus, for example, the court is aware that Father purchased a two bedroom apartment which is larger than his own needs warrant so as to provide space for Morton and her clothing. The court has considered the net worth statements of the parties, which reflect their expenses for Morton, as well as the testimony at the trial. Based on the totality of other circumstances the court fixes the child support to be paid by Father to Mother at $750 per month. Further Father is to bear 48% of costs of child care and 48% of the private school and health care costs for Morton."], "id": "c0cfaa4a-63f1-4aac-959e-e565d660479c", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["showing that in April 2018, after Mother failed to return the children to Father for his custodial time, she and the children were involved in a rollover car accident that resulted in ambulance transportation and emergency medical care. During her trial testimony, Mother confirmed she returned the children to Father nine days later. The record includes written communications showing Mother claimed to Father their oldest child, who had sustained a laceration to the arm in the accident, had been injured by falling off a bicycle. At trial, Mother explained she did not tell Father about the vehicle accident because she knew the healthcare provider would provide necessary information to Father. Father testified he did not learn the details about what happened to his children until he received their medical records for the accident four months later. Father testified Mother had not shared information about the accident despite his repeated attempts to communicate with Mother. Father also presented evidence Mother did not allow him to be with his children during Father\u2019s Day, Thanksgiving, and one of the children\u2019s birthdays even though the days had occurred during his custodial time. Father also testified that Mother did not comply with court orders to allow Father to have visitation calls with the children. Mother admitted at trial to violating on several occasions the court\u2019s temporary order for of the children. At the conclusion of the fourth day of trial in November 2019, the trial court entered a minute order denying \u201c[Mother]\u2019s Request for Order as her request to relocate to San Luis Obispo.\u201d The minute order also found \u201cit [wa]s in the best interest of the minor children\u201d for the court to \u201corder[] joint legal custody of the minor children, with primary physical custody awarded to\u201d Father."], "id": "ec8c9338-96b8-474d-8622-353a3effae26", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Viewing the evidence in the light most favorable to the judgment, the trial court reasonably could have concluded that maintaining supervised visits and limiting Connie's periods of possession were the minimal restrictions necessary to protect the children's best interests. The record reflects that Connie displayed an inability to follow court orders grounded on the children's best interests, secreted the children *133from Cliff when she with him, and attempted to alienate the children from Cliff. Alienation of a parent can be a guiding consideration in making possession and access determinations. See , e.g. , In re J.W.H. , No. 14-09-00143-CV, 2010 WL 1541679, at *6-7 (Tex. App.-Houston [14th Dist.] Apr. 20, 2010, no pet.) (mem. op.) (affirming trial court's modification order changing which parent had primary custody based in part on evidence parent who originally had primary possession had repeatedly attempted to interfere with other parent's periods of possession); In re Marriage of Chandler , 914 S.W.2d 252, 254 (Tex. App.-Amarillo 1996, no writ) (affirming order divesting parent of managing conservatorship due in part to interference with other parent's relationship with child). Both of the children's counselors testified positively about supervised visitations, and V.H.'s counselor explicitly stated that the \"structure of the supervised visits provides a level of comfort and stability\" for V.H. See P.A.C. , 498 S.W.3d at 220 (no abuse of discretion to place restrictions on possession and require visitation remain supervised when mother's mental health status was \"uncertain,\" coupled with concerns that mother would not follow court orders and might damage children emotionally by demeaning their father when alone in her custody)."], "id": "00b8c6dc-3b1e-4a56-88e7-8071b4727ae8", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["had suggested they \u201ctry to resolve [their] issues\u201d regarding the of their son and he thought this was a good opportunity to talk. Mother refused to speak with him because it was several minutes before their scheduled exchange time. She rolled her window up as he began to speak. He knocked on the window and told her he would leave. After she rolled the window down again, he said he was there to accommodate her, and that they could exchange in San Diego per their custody agreement \u201cif [she was] going to be rude.\u201d When she said she would call the police, he replied \u201c[c]all them.\u201d He left, got gas, and then returned and exchanged their son. The police arrived and Mother gave a statement. Father stated that once the police arrived, Mother exited her vehicle and started \u201ccrying uncontrollably.\u201d Father later approached the officer and offered to cooperate. In his response to the restraining order request, Father explained that he believed Mother was seeking a restraining order \u201cfor the sole purpose of attempting to influence the [j]udge to limit [his] time with [their] son.\u201d He denied coming toward Mother \u201ccursing and demanding to talk\u201d; denied getting \u201cinto her face\u201d; denied \u201cbait[ing] her to a deserted portion of [the] parking lot\u201d; and denied that he was \u201cupset or angry.\u201d Mother, who had filed the initial restraining order request in propria persona, retained counsel and filed a supplemental declaration in support of her restraining order request. She stated that Father \u201cwas verbally abusive\u201d during their marriage after their son was born and \u201cused his physicality to"], "id": "b10c9813-93f2-4a9a-8fb1-9767d3d04c80", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Matter of Kerr v Bell (supra) appears to be the seminal authority on the subject. That case actually dealt with a \"split custody\u201d arrangement, where one parent had custody of four children and the other had custody of one child; it was not a \"shared\u201d custody case. The Court noted that both parents were \"simultaneously\u201d \"custodial and non-custodial\u201d parents. The Court, therefore, concluded, without extended discussion, that *751it would not hold the CSSA inapplicable. In Matter of Holmes v Holmes (supra), a case, the mother had physical custody of the children 60% of the time. The majority of the Third Department would not designate her the \"primary custodian\u201d rather the Court found the parents to be both custodial and noncustodial simultaneously. The Third Department majority relied on Matter of Kerr v Bell and again refused to conclude that the CSSA should not apply. The two-Justice dissent noted that in joint, or \"shared\u201d, custody the designation of \"custodial parent\u201d shifts with the child\u2019s location. Therefore the dissent would look for the parent who had the majority of custodial time and designate that parent as the \"custodial\u201d parent for the purposes of the support statute. In both Holmes and Kerr the matter was remanded for further calculations. In Kerr the Court required the fact finder to look at each individual household rather than apportioning one fifth of the CSSA amount to one child. That of course followed from the parties\u2019 split custody arrangement (see, Riseley v Riseley, 208 AD2d 132 [3d Dept 1995] [applying the CSSA percentages to each household in a split custody case]). In Holmes the Appellate Division offered no guidance on how the CSSA should apply (see, Florescue, Allegations of Waste, NYLJ, May 10, 1993, at 3, col 1)."], "id": "dc520a36-0756-4224-9e29-a079bb1f9d2b", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["\u201chad among its objectives the assurance that both parents would contribute to the support of the children, and that the children would not \u2018unfairly bear the economic burden of parental separation\u2019 (Governor\u2019s Program Bill Mem, Bill Jacket, L 1989, ch 567, at 1). Emphasis was to shift \u2018from a balancing of the expressed needs of the child and the income available to the parents after expenses to the total income available to the parents and the standard of living that should be shared with the child\u2019 (Reichler and Lefcourt, NY St BJ, op. cit., at 44; see also, Governor\u2019s Approval Mem, 1989 NY Legis Ann, at 250 [\u2018children will share in the economic status of both their parents\u2019]).\u201d (Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995].) To accomplish these diverse objectives, the CSSA created a system with greater uniformity that nonetheless maintained \u201cthe degree of judicial discretion necessary to address unique circumstances\u201d (id.). Thus, when the Court of Appeals first addressed the application of the CSSA to a arrangement, it did not create a categorical definition of the \u201cnoncustodial parent,\u201d but rather held that \u201cfi]n most instances, the court can determine the custodial parent for purposes of *578child support by identifying which parent has physical custody of the child for a majority of time\u201d (Bast v Rossoff, 91 NY2d 723, 728 [1998] [emphasis added]).8"], "id": "d96d7221-6866-4347-bca5-42e9c1bd71b9", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The facts and adoption statutes must be considered in order to appreciate the dilemma presented by this case. The child was deliberately conceived more than two years after his parents had entered into a long-term, stable relationship. Both parents, however, have decided not to marry because they are convinced \u201cthat marriage would be harmful to their family and their relationship.\u201d The parents have of the child; they live within a few blocks of each other. The child resides most of the time *658with his mother, but he spends a great deal of time with his father. In addition, the parents spend a great deal of time together and with the child."], "id": "ffc51f60-d4c4-4f41-a530-8572285ad96b", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["\"i. L.G. had resided with her from his birth until the temporary order entered on August 27, 2018. \"ii. The mother left Arizona, where L.G. was born, in an effort to place distance between herself and the child's father due to his volatile behavior. \"iii. In late July/early August 2018 mother re-located from Hutchinson, Kansas to Kansas City, Kansas. \"iv. She complied with the temporary order obtained by an older child's father which resulted in both L.G. and his older sister residing with the older sister's father. \"v. L.G. and his older sister are extremely close. \"vi. The mother elected to return to live and work in the Hutchinson, Kansas area and completed the move in October 2018. \"vii. The case workers assigned to the case had no objections to her household. \"viii. The mother has 4 children. The oldest resides with his father in Arizona. She has primary custody of her oldest daughter. She has a arrangement of her youngest daughter. \"ix. The mother has had minimal difficulty in arranging for parenting time or sharing parenting responsibilities with her other children's fathers. \"x. The mother has had extreme difficulty in arranging any meaningful contact with L.G. during the time the child has been in Arizona. \"xi. L.G.'s father has frequently bullied or belittled her and refused to cooperate with phone calls or video conferencing visits. \"xii. The father has suggested that she 'give up' and allow his significant other to adopt L.G. \"xiii. This behavior continued when the mother attempted to use text messaging to schedule a FaceTime visit with L.G.\""], "id": "8cb4ad9f-f25f-460f-bc07-75c2d362b4d5", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Thus, while this court concludes that while the CSSA \"applies\u201d to , it holds that the basic support percentages should not be used in any shared custody case. The threshold for true shared custody varies by State from 25% to 35%; the maximum figure used appears to be 35% of the overnights. This case meets that standard under Mother\u2019s or Father\u2019s computation."], "id": "f53af212-f681-4e70-ac86-c9cd90068b4c", "sub_label": "US_Terminology"} {"obj_label": "Shared Custody", "legal_topic": "Family Law", "masked_sentences": ["Each of the formulas used by the other States have infirmities. One of the problems with a \"threshold\u201d is that small differences in \"visitation\u201d may result in vast differences in support. For example, where there is a 25% threshold, an increase of 10%, in visitation from 20% to 30%, may well result in a 45% reduction in support (Getman, Changing Formulas For Changing Families: Must Not Shortchange Children, 10 Fam Advoc 47, 49, 54 [Spring 1988]). One commentator has noted that the complex calculations required by pro rata reductions do not produce an equitable result and are not \"fundamentally fair\u201d (Florescue, CSSA Statutes and Their Effect on Practice, NYLJ, May 11, 1992, at 2, col 6)."], "id": "7fb7726e-3cea-4577-ac25-c5d0f82f7a00", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The other Departments have not spoken directly on the issue. (Cf., Harmon v Harmon, 173 AD2d 98, 110 [1st Dept 1992]; Matter of Isaac v Clay, 202 AD2d 1047 [4th Dept 1994].) The reported cases offer little guidance. In Harmon, a \"joint custody\u201d case, the First Department did not discuss the theoretical problems by the application of the CSSA; the Court merely noted that the mother was \"primary caretaker and de facto custodian of the children.\u201d It is interesting, but not informative, that without any description of the time-sharing arrangement, other than to note that the child \"resides\u201d with the mother, the Third Department in Nicholas v Cirelli (supra) found the mother to be \"the primary caretaker and de facto custodian\u201d since there was no \"actual shared or split physical custody of a child\u201d (209 AD2d, at 840-841). The Fourth Department shed little light on the subject when it held that child support was not due to the parent with the substantially greater income because \"both parties have extensive custodial rights under the stipulated joint custody order\u201d (Matter of Isaac v Clay, supra). In Harrington v Harrington (NYLJ, July 18, 1991, at 27, col 3 [Sup Ct, Westchester County] [Colabella, J.]) the court awarded joint custody but awarded child support *752to the mother as the \"primary caretaker\u201d relying on Matter of Kester v Kester (151 AD2d 815 [3d Dept 1989]), a pre-CSSA case. In Sally R. v Stewart R. (151 Misc 2d 307, 309 [Fam Ct, Dutchess County 1991]) the court criticized the application of the CSSA to a joint situation where the mother had \"primary physical custody\u201d and apportioned reduced child support based on the needs of the children and the proportion of needs provided by each parent. In Roy v Roy (188 AD2d 274 [1st Dept 1992]) the First Department in a split custody case rejected the application of the child support percentage of the CSSA and found the statutory formula \"unjust and inappropriate\u201d."], "id": "925b5392-c429-4e14-9613-2f36ebb868e4", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["\u201c[t]here will certainly be cases where the statutory formula yields a result that is just and appropriate, notwithstanding the additional time spent with the child ... Of course, there will also be shared custody cases where the statutory formula yields a result that is unjust or inappropriate. In those cases, however, the court can resort to the \u2018paragraph (f)\u2019 factors and order payment of an amount that is just and appropriate\u201d (Bast at 729). Indeed, the Court noted, \u201c[w]hile it reduces certain costs for the custodial parent, shared custody actually increases the total cost of supporting a child by necessitating duplication of certain household costs in each parent\u2019s home\u201d (id. at 730). While the Court of Appeals explicitly rejected use of a \u201cproportional offset\u201d formula in shared custody cases, its ruling simply directed courts to calculate child support in accordance with the CSSA. In this case, the parties share equal parenting time with the children and incur their separate expenses for the children\u2019s basic necessities, including food, clothing, and toiletries."], "id": "8168eca1-5f6a-40f8-9229-9aa44eb543c3", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The circumstances in Lee are fundamentally different from those presented here. In contrast to Lee , this is not a situation where the trial court refused to enforce a validly executed MSA because, in the court's view, the custody terms contained therein were not in the children's best interest. Rather, the trial court incorporated *139the MSA terms into the Interim Order it signed in April 2014. From April until September 2014, the parties of the children under the Interim Order.34 Thereafter, and based on events occurring after the MSA was signed and after the entry of the Interim Order-including the trial court's findings that Connie materially failed to comply with the MSA terms to the children's detriment-Cliff amended his petition to allege that a material and substantial change had occurred and the custody terms (which were incorporated into the Interim Order) were no longer consistent with the children's welfare. Cliff moved for temporary orders on parent-child issues, which the trial court granted on September 3, 2014, signing an order that day. Pursuant to these orders, the trial court removed Connie as a joint managing conservator of J.H. and V.H., and appointed Cliff temporary sole managing conservator."], "id": "f84c4783-668d-448f-8ffd-3401d4c2277f", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["Pursuant to Federal mandate every State has adopted child support standards. Yet, the child support statutes of the States show substantial variation in their application to . Some States have adopted a formula to reduce child support by the time the child spends with the \"non-custodial\u201d parent once a certain threshold is reached. For example in Colorado the threshold is 92 overnights (Colo Rev Stat at \u00a7 14-10-115 [8]). Once that 25% threshold is reached there is a pro rata reduction in support by the amount of time spent with the \"non-custodial\u201d parent (Colorado Child Support Guideline, in Rutkin, Fam Law & Prac, 22A-19 [1993]). In California under the current statute there is a complex formula in which the percentage of visitation with each parent is a factor in the amount of support in all cases (Cal Civ Code \u00a7 4055). Some States have no mechanical formulation but allow adjustments *754to the support standard amount based on the spending of \"substantial amount of the time\u201d with the other parent (e.g., Fla Stat Annot \u00a7 61.30 [11] [g]), although in Florida consecutive visitation in excess of 28 days may give rise to a temporary reduction in child support not to exceed 50% (Fla Stat Annot \u00a7 61.30 [11] [g]). In yet other States, such as Massachusetts (Child Support Guidelines, Part II-D [1]), the guidelines stated that they \"are not applicable\u201d to shared custody. That is, \"extraordinary visitation\u201d does not impact the support award (see, Wolfson & Cohen, Child Support: Finding a Fair Solution, Complete Lawyer 43, 45 [Winter 1995])."], "id": "83e719ef-1a4b-4b39-9199-039bda4e63f7", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["The father also objects that some version of an offset formula was not used when determining his child support obligation in the split custody situation regarding the two oldest children. As noted above, in Bast v Rossoff (91 NY2d 723, 730 [1998]), the Court of Appeals held that the Legislature did not authorize the use of the offset formula in cases. Bast teaches that, if the CSSA formula does not produce a fair child support obligation, then only the section 413 (1) (f) factors can be used to deviate above or below the formula amount."], "id": "6f2d008d-c12d-4b26-869f-b3e2fade760f", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["*298Those factors are broad enough to consider the amount of time that the children are in the care of each parent. The support magistrate correctly determined that this was both a case and a split custody case. Based on that determination, the support magistrate deducted the mother\u2019s support obligation for one child from the father\u2019s support obligation for the three other children. This offset, which is really just an accounting process, is the only one permitted by the CSSA. Therefore, this objection is denied."], "id": "d7f50c34-1428-4a5d-b820-bb8c754108d3", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["As time went on, however, the relationship between defendant and plaintiff became strained. In October of 2008, Audria and plaintiff moved out of the marital residence with J.M. A divorce action was commenced by plaintiff against defendant in 2011. Plaintiff testified credibly that after the divorce action was commenced, defendant no longer considered her to be J.M.\u2019s parent. Prior to this divorce, a custody case was commenced by defendant against Audria. Defendant and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to defendant.3 The plaintiff still resides with Audria and J.M., and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights for J.M. because she fears that without court-ordered visitation and , her ability to remain in J.M.\u2019s life would be solely dependent upon obtaining the consent of either Audria or the defendant."], "id": "97b2363a-4eae-4e6a-967d-707564bd55a7", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["It is clear to this court that in New York the mere designation of the parents as \"joint custodians\u201d should not affect the outcome of the case. There is obviously no reason why the sharing of legal decision making should have any impact on the need for or amount of child support. Also as noted above even the courts which apply the CSSA to do not have any theoretical concerns when there is a clearly designated \"primary physical custodian\u201d (e.g., Nicholas v Cirelli, supra; Matter of Karen G. v Leroy G., NYLJ, Sept. 15, 1992, at 24, col 6 [Fam Ct, Queens County] [Cozier, J.]), or where the court can readily discern which parent is the de facto custodial parent (Harmon v Harmon, supra). The reality of the situation governs. When it comes to \"joint custody\u201d \"the court must not be misled by nomenclature\u201d (Reichler, NY Civ Prac: Matrimonial Actions [Matthew Bender 1993])."], "id": "bf4b2450-d8e2-4478-b2dd-2941b7482166", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["In 2013, [Co-defendant] had a two-year old daughter, [Victim], from a previous relationship with [Father]. [Co-defendant] of [Victim] with [Father], but there was no formal custody agreement in place. [Co-defendant] informally communicated with [Father] and his then girlfriend, [K.E.,] about exchanging custody of [Victim]. They also communicated generally about things that were going on in [Victim's] life. Sometime in the beginning of 2013, [Co-defendant] began a relationship with [Brown]. [Father] and [K.E.] came to believe from their own observations that [Co-defendant] was staying with ... Brown on a regular basis and that [Victim] would stay there as well. Between February 24, 2013, and March 5, 2013, [Co-defendant] had custody of [Victim]. When [Father] gave custody of [Victim] to [Co-defendant] on February 24, 2013, [Victim] did not have any visible injuries beyond a slight bump on the head. On March 4, 2013, [Co-defendant] sent [K.E.] a text message stating that [Victim] had fallen off of ... Brown's porch. [Co-defendant] further stated via text message that she had sat [Victim] on a heating pad after [Victim] appeared to have a bruise from the fall. [K.E.] and [Victim]'s grandmother advised [Co-defendant] via text message to alternate heat and ice on the injury. [Co-defendant] also informed [Father] and [K.E.] of blisters on Victim's buttocks. [Co-defendant], [K.E.], and [Father] continued to text and call discussing when [Father] and [K.E.] could have custody of [Victim]. [Co-defendant] seemed to be hesitant to give over custody of [Victim]. Eventually, [Co-defendant] agreed that [Father] and [K.E.] could pick up [Victim] on March 6, 2013. [K.E.] picked [Victim] up because [Father] was at work. [K.E.] picked up [Victim] between 5:30 and 6:00 P.M. on March 6, 2013. At that time, [Victim] was quiet and was \"staring off into space,\" which was abnormal. [K.E.] drove [Victim] home and, after further examination, noticed that [Victim] was missing some hair, had sustained some injuries to her face and side, and had burns on her buttocks. [Victim] stated that \"Josh\" had hurt her. [K.E.] took [Victim] to the emergency room. [Father] met them there. At the hospital, it was discovered that [Victim] had multiple small bruises on her face and spine which appeared to have occurred at different times. There were scratches on [Victim]'s face. [Victim]'s left index finger was red, swollen, and had a small lesion. She had also sustained second-degree burns to her buttocks. There were open blisters on [Victim]'s buttocks from the burns. The emergency room nurse did not believe that these types of burns could result from resting on a heating pad for less than two hours. There were areas of hair loss on [Victim]'s head with signs that the hair had been pulled out. Medical professionals confirmed that all of these injuries were consistent with physical abuse. [Victim] was very upset and \"was not easily consoled.\" At 12:30 A.M. on March 7, 2013, law enforcement officers went to [Brown]'s residence. [Brown] came to the door and allowed the officers to enter. [Co-defendant] was also in the residence and appeared upset. [Brown] spontaneously told officers that he had put [Victim] on the heating pad, that it was all his fault, and that [Co-defendant] had nothing to do with it. [Brown] also stated that [Father] and his family had told [Co-defendant] to put [Victim] on the heating pad. In the weeks after March 6, 2013, [Victim] made more statements regarding her injuries. [Victim] stated that \"Josh\" had hurt her, put her in the corner, pulled her hair, and burned her \"bottom.\" She also stated that \"Josh\" had hurt her finger. [Victim] would start crying \"out of the blue\" at bath time. Other times, [Victim] would suddenly wake up and \"be screaming and crying and kicking saying he hurt me, he hurt me.\" (internal citations to the record are omitted)."], "id": "566b3f3e-e865-4892-a099-769d6be1c847", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["2. Smith Family: This case is governed by the Baraby doctrine (Baraby v Baraby, 250 AD2d 201 [1998]), which holds that, in situations, the higher incomed parent is deemed the noncustodial parent for child support purposes. The father in the Smith family would owe to the mother 29% of his income for three children or $43,500. The mother would owe $8,500 to the father for the one child fully in his custody. The mother would receive a net child support payment of $35,000 and have a household income of $85,000. Similarly, the father would have a household income of $115,000. In this scenario, the father would have 35% more income than the mother with which to support the children in his care. (Tax consequences would probably narrow this disparity to around 25%.)"], "id": "7ffe3983-47fd-40d5-b276-5762293318d4", "sub_label": "US_Terminology"} {"obj_label": "shared custody", "legal_topic": "Family Law", "masked_sentences": ["KAHN, J. The issue before us in this appeal is whether the trial court correctly determined that the enforce- ment of a prenuptial agreement executed by the plain- tiff, Laura Grabe, and the defendant, Justin Hokin, was not unconscionable at the time of the dissolution of their marriage. Shortly before the parties\u2019 marriage in 2010, they executed a prenuptial agreement in which each party agreed, in the event of a dissolution action, to waive any claim to the other\u2019s separate property, as defined in the agreement, or to any form of support from the other, including alimony. The agreement also provided that a party who unsuccessfully challenged the enforceability of the agreement would pay the attor- ney\u2019s fees of the other party. In 2016, the plaintiff brought this action seeking dissolution of the marriage and enforcement of the prenuptial agreement. The defendant filed a cross complaint in which he claimed, inter alia, that the agreement was unenforceable because it was unconscionable at the time of the disso- lution under General Statutes \u00a7 46b-36g (a) (2).1 After a trial to the court, the court concluded that, with the exception of the attorney\u2019s fees provision, enforcement of the terms of the prenuptial agreement that the parties entered into was not unconscionable, even in light of certain events that had occurred during the marriage. Accordingly, the trial court rendered judgment dissolv- ing the marriage and enforcing the terms of the prenup- tial agreement, with the exception of the provision requiring the party who unsuccessfully challenged the enforceability of the agreement to pay the attorney\u2019s fees of the other party. On appeal,2 the defendant con- tends that the trial court incorrectly determined that the occurrence of the unforeseen events found by the trial court did not render the enforcement of the entire agreement unconscionable at the time of the dissolu- tion. We affirm the judgment of the trial court. The record reveals the following facts that were found by the trial court or that are undisputed. Shortly before the parties\u2019 marriage on October 2, 2010, they entered into a prenuptial agreement. The agreement provided that it would be \u2018\u2018governed and construed in accordance with the Connecticut Premarital Agreement Act, [General Statutes] \u00a7 46b-36a et seq. . . .\u2019\u2019 Under the agreement, each party waived any claim to the prop- erty of the other during the marriage. In the event of a marital dissolution, each party agreed to waive \u2018\u2018all claims and rights to any equitable distribution of [s]epa- rate [p]roperty [of the other party, as defined in the agreement],\u2019\u2019 and to \u2018\u2018any claim for temporary or perma- nent maintenance, support, alimony, [attorney\u2019s] fees (including [pendente] lite [attorney\u2019s] fees) or any simi- lar claim . . . .\u2019\u2019 In addition, each party agreed that, if either party \u2018\u2018unsuccessfully seeks to invalidate all or any portion of [the] [a]greement or seeks to recover alimony (other than pendente lite [attorney\u2019s] fees) or property in a manner which deviates from the terms of [the] [a]greement, then the prevailing party shall be entitled to recover all reasonable and necessary [attor- ney\u2019s] fees and other costs incurred in successfully defending his or her rights under [the] [a]greement.\u2019\u2019 The agreement also contained a severability provision stating that, \u2018\u2018[i]n case any provision of [the] [a]gree- ment should be held to be invalid, such invalidity shall not affect, in any way, any of the other provisions herein, all of which shall continue in full force and effect, in any country, state or jurisdiction in which such provisions are legal and valid.\u2019\u2019 In addition, the agreement provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscio- nable if enforcement hereof is sought at any time in the future.\u2019\u2019 At the time that the parties executed the prenuptial agreement, the plaintiff\u2019s annual income was $1,312,225, and her net worth was $12,319,380. The defendant\u2019s estate had a fair market value of $5,150,295,3 and he disclosed income of $97,719.06 over the previous six months. The primary sources of the defendant\u2019s income were a director\u2019s fee of approximately $60,000 per year from an entity known as Intermountain Industries and guaranteed payments ranging from $80,000 to $100,00 per year from an entity known as 4H, LLC Family Part- nership (4H, LLC).4 The defendant received no other income from employment. Before their marriage, both the plaintiff and the defendant would frequently stay out all night socializing and drinking with friends. The plaintiff changed her behavior when she became pregnant shortly after the marriage, but the defendant did not. After the parties\u2019 oldest daughter was born in late 2011, the defendant continued to neglect his responsibilities to his family. For example, ten months after his daughter\u2019s birth, the defendant left the plaintiff at home alone with her while Hurricane Sandy struck their neighborhood, and the plaintiff was forced to seek shelter at her parents\u2019 home. After the parties\u2019 second daughter was born in 2013, the defendant\u2019s family planned an intervention for him, as his drinking was out of control and he was being com- pletely unproductive. The intervention never occurred, and the defendant continued to stay out all night, sleep most of the day and ignore the needs of his wife and children. In August, 2014, the plaintiff contacted a divorce law- yer. Two weeks later, the house in Norwalk where the parties resided, which the defendant owned, was com- pletely destroyed by a fire. The parties then leased another residence in Norwalk. In November, 2014, the plaintiff filed an action for the dissolution of the mar- riage, but she later withdrew it. In 2015, the parties\u2019 third daughter was born. During this period, the plaintiff started building a house in the Rowayton neighborhood of Norwalk. In March, 2016, the plaintiff separated from the defendant and moved into the Rowayton house with their three young daughters. Several weeks later, she filed this action seeking the dissolution of the marriage and enforcement of the prenuptial agreement. In February, 2017, the defendant filed an amended answer and cross complaint, alleging, inter alia, that the prenuptial agree- ment was unenforceable under \u00a7 46b-36g (a) (2) because it was unconscionable when enforcement was sought.5 Thereafter, in September, 2017, a yacht club in the Caribbean known as the Bitter End Yacht Club (Yacht Club), which was owned by the defendant\u2019s family and in which the defendant had an indirect, fractional own- ership interest, was destroyed by Hurricane Irma. Also in 2017, Intermountain Industries failed due to a down- turn in the price of crude oil. As a result, it no longer paid the defendant a director\u2019s fee, and its guaranteed payments to 4H, LLC were discontinued. Evidence presented at trial showed that, since the execution of the prenuptial agreement, the defendant\u2019s assets had decreased in value from $5,150,295 to $2.1 million. A note on the defendant\u2019s financial affidavit dated February 11, 2019, which was introduced as an exhibit at trial, indicated that $1,845,000 of these assets were held in the Justin Hokin Grantor Trust, represent- ing the trust\u2019s ownership interests in other assets, \u2018\u2018pri- marily [4H, LLC],\u2019\u2019 and that \u2018\u2018[t]he most significant asset in [4H, LLC], is [the Yacht Club], which was destroyed by Hurricane Irma in the summer of 2017.\u2019\u2019 The note also indicated that the trust was \u2018\u2018wholly illiquid\u2019\u2019 and that its value was not \u2018\u2018accessible\u2019\u2019 to the defendant. The defendant had liabilities of $1,351,262, more than $1 million of which was debt owed to his father and to 4H, LLC, for \u2018\u2018legal fees . . . .\u2019\u2019 The affidavit showed that the defendant had no significant income.6 The defendant contended in his posttrial brief to the trial court that the births of the parties\u2019 three children, the destruction of his house by fire, the destruction of the Yacht Club by Hurricane Irma and the failure of Intermountain Industries were not contemplated when the prenuptial agreement was signed and that enforce- ment of the agreement would be unconscionable in light of these unforeseen events. Accordingly, the defendant requested that the trial court not enforce the agreement and, instead, order a property division \u2018\u2018[that] . . . would permit the defendant to purchase a home in close proximity [to the plaintiff\u2019s home] to provide the minor children a comparable quality of life between both par- ent households.\u2019\u2019 The plaintiff contended before the trial court that, to the contrary, the events cited by the defendant were not beyond the contemplation of the parties when they executed the prenuptial agreement. She also referred to evidence presented at trial that would support findings that, after the defendant received insurance proceeds for the destruction of his house, paid off two mortgages on the house and sold the land, he retained net proceeds of $775,587.73, as compared with equity of $20,309.58 at the time that the prenuptial agreement was executed; the value of the Yacht Club property on December 31,2017, was $14,900,000, $3,000,000 more than its value on the date that the prenuptial agreement was executed; and the defendant\u2019s family was responsible for the fail- ure of Intermountain Industries. Accordingly, the plain- tiff argued that, even if the events were not contem- plated, it would not be unconscionable to enforce the prenuptial agreement, in part because it would be unfair to require the plaintiff bear the burden of the defen- dant\u2019s neglectful and unproductive behavior. In its memorandum of decision, the trial court found that, at the time of trial, the plaintiff was forty-one years old and in good health. She had a bachelor\u2019s degree in journalism and was two credits short of receiving her master\u2019s degree in science from New York University. She had a net weekly income of $34,284,7 and the fair market value of her assets was $27.4 million. The defen- dant was forty-four years old and in good health. He had a bachelor\u2019s degree in geography from the University of Montana. He had no significant income8 and his assets had a fair market value of $2.1 million.9 The trial court determined that the defendant was at fault for the breakdown of the marriage. The court observed that, after the parties\u2019 three children were born, \u2018\u2018the defendant continued to live a life full of drinking and partying. Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his mar- riage.\u2019\u2019 The marriage \u2018\u2018suffered as the defendant slept most of the day, stayed out all night, and did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 The trial court further found that, at the time that they entered into the prenuptial agreement, the parties had not contemplated that they would have three chil- dren, the defendant\u2019s house would be destroyed by fire, the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail, depriving the defendant of his primary source of income.10 Although the court concluded that these events were not specifi- cally contemplated by the parties when they entered into the agreement, it determined that they were not events that would render enforcement of the terms of the agreement unconscionable. When it came to the enforcement of the attorney\u2019s fees provision, however, the trial court concluded that, under the circumstances existing at the time of trial, enforcement of that provision would be unconsciona- ble. The court observed that the plaintiff \u2018\u2018has great financial wealth and [was] not incapable of paying for her own attorney\u2019s fees.\u2019\u2019 In addition, the court found it \u2018\u2018unlikely that the parties considered paying millions of dollars in attorney\u2019s fees to the other party in the event of a marital dissolution\u2019\u2019 and that the enforcement of the attorney\u2019s fees provision \u2018\u2018would financially crip- ple the defendant\u2019s remaining assets . . . .\u2019\u201911 In light of these findings, the court concluded that, \u2018\u2018while the totality of the agreement is not unconscionable, [the provision requiring a party who unsuccessfully chal- lenges the prenuptial agreement to pay the attorney\u2019s fees of the other party] is unconscionable and should be stricken from the antenuptial agreement. The remainder of the parties\u2019 antenuptial agreement shall be enforced . . . .\u2019\u2019 Accordingly, the trial court rendered judgment dissolving the parties\u2019 marriage, striking the attorney\u2019s fees provision from the prenuptial agreement and, consistent with the severability provision of the agreement, concluding that the remainder of the agree- ment was enforceable. The court also incorporated the final parenting plan into the judgment, pursuant to which the children were to reside primarily with the plaintiff but would spend time with defendant pursuant to a regular visitation schedule. In addition, the parties stipulated that the defendant would pay weekly child support in the amount of $57, in accordance with the child support guidelines. Thus, although the parties had joint legal custody of the children, the plaintiff was to have primary physical custody. This appeal followed.12 On appeal, the defendant con- tends that the trial court incorrectly determined that it would not be unconscionable to enforce the prenuptial agreement when it found that the parties did not initially contemplate that the defendant would be helping to raise three young children at a time when he had no income and greatly diminished assets.13 The plaintiff contends that, even if the parties did not initially con- template these events, the trial court correctly deter- mined that they were not so far beyond their contempla- tion as to render the enforcement of the agreement unconscionable.14 We agree with the plaintiff. We begin our analysis with the standard of review. Pursuant to \u00a7 46b-36g (a), \u2018\u2018[a] premarital agreement . . . shall not be enforceable if the party against whom enforcement is sought proves that . . . (2) [t]he agree- ment was unconscionable when it was executed or when enforcement is sought . . . .\u2019\u2019 Whether the pre- nuptial agreement is enforceable is a mixed question of fact and law. See Friezo v. Friezo, 281 Conn. 166, 180\u201381, 914 A.2d 533 (2007), overruled in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). Although the underlying historical facts found by the trial court may not be disturbed unless they are clearly erroneous; see Kovalsick v. Kovalsick, 125 Conn. App. 265, 270\u201371, 7 A.3d 924 (2010); whether a prenuptial agreement is unconscionable in light of those facts, if not clearly erroneous, is a question of law subject to plenary review. See Crews v. Crews, 295 Conn. 153, 163\u201364, 989 A.2d 1060 (2010); see also General Statutes \u00a7 46b-36g (c) (\u2018\u2018[a]n issue of unconscio- nability of a premarital agreement shall be decided by the court as a matter of law\u2019\u2019). \u2018\u2018Unconscionable is a word that defies lawyer-like definition. . . . The classic definition of an unconscio- nable contract is one which no [individual] in his senses, not under delusion, would make, on the one hand, and which no fair and honest [individual] would accept, on the other.\u2019\u2019 (Internal quotation marks omitted.) Beyor v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). We have previously recognized that \u00a7 46b-36g was intended to endorse, clarify and codify the standards set forth in this court\u2019s decision in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v. Friezo, supra, 281 Conn. 185\u201386 n.23. In McHugh, this court held that \u2018\u2018an antenuptial agreement will not be enforced where the circumstances of the parties at the time of the dissolution are so far beyond the contempla- tion of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice. . . . Thus, where a marriage is dissolved not because it has broken down irretrievably, but because of the fault of one of the parties, an antenuptial waiver of rights executed by the innocent party may not be enforceable, depending [on] the circumstances of the particular case and the language of the agreement. . . . Likewise, where the economic status of [the] parties has changed dramatically between the date of the agree- ment and the dissolution, literal enforcement of the agreement may work injustice.\u2019\u2019 (Citations omitted.) McHugh v. McHugh, supra, 489. Other unforeseen changes that may, depending on the circumstances, render a prenuptial agreement unenforceable include the birth of a child, loss of employment or a move to another state. Bedrick v. Bedrick, supra, 300 Conn. 706. \u2018\u2018Absent such unusual circumstances, however, ante- nuptial agreements freely and fairly entered into will be honored and enforced by the courts as written.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489. \u2018\u2018Unfairness or inequality alone does not render a [prenuptial] agree- ment unconscionable;15 spouses may agree on an unequal distribution of assets at dissolution. [T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agree- ment unconscionable. . . . Instead, the question of whether enforcement of an agreement would be uncon- scionable is analogous to determining whether enforce- ment of an agreement would work an injustice. . . . Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly antici- pate all future events.\u2019\u2019 (Citations omitted; footnote added; internal quotation marks omitted.) Bedrick v. Bedrick, supra, 300 Conn. 705\u2013706. Indeed, if every event that the parties did not anticipate could provide a basis for invalidating a prenuptial agreement, no such agreement would be enforceable. Thus, \u2018\u2018the party seek- ing to challenge the enforceability of the antenuptial contract bears a heavy burden.\u2019\u2019 Crews v. Crews, supra, 295 Conn. 169; see id., 170 (\u2018\u2018proving uncontemplated, dramatically changed circumstances requires a signifi- cant showing\u2019\u2019); see also id. (\u2018\u2018McHugh requires an extraordinary change in economic status and . . . the threshold for finding such a dramatic change is high\u2019\u2019 (internal quotation marks omitted)). In the present case, we assume without deciding that the trial court correctly found that the parties did not contemplate the births of their three children, the destruction of the defendant\u2019s house by fire, the destruc- tion of the Yacht Club by a hurricane or the failure of Intermountain Industries when they entered into the prenuptial agreement.16 We further assume that the resulting diminishment in the value of the defendant\u2019s assets and his loss of income from Intermountain Indus- tries also were not contemplated. As we explained, however, it is clear under our case law that, standing alone, the fact that existing circumstances were beyond the parties\u2019 initial contemplation does not establish that enforcement of a prenuptial agreement would be uncon- scionable. Rather, we must determine whether these circumstances were \u2018\u2018so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.\u2019\u2019 McHugh v. McHugh, supra, 181 Conn. 489; see also Crews v. Crews, supra, 295 Conn. 168 (if court determines that circumstances at time of dissolution were beyond parties\u2019 initial contemplation, court must then determine \u2018\u2018whether enforcement would cause an injustice\u2019\u2019). In making this determination, we must con- sider all of the relevant facts and circumstances. See, e.g., Crews v. Crews, supra, 163. We first address the defendant\u2019s contention that the trial court improperly failed to recognize that enforce- ment of the prenuptial agreement would be unconscio- nable in light of the uncontemplated births of the par- ties\u2019 children and his loss of assets and income because the \u2018\u2018children are entitled to continue the lifestyle to which [they were] accustomed and the standard of liv- ing [they] enjoyed before the divorce . . . .\u2019\u201917 (Internal quotation marks omitted.) Hornung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912 (2016). We are not per- suaded. There is no question in the present case that the children are being supported by the plaintiff at the same standard of living that they enjoyed before the dissolution. As far as the record reveals, they continue to live in the same house, to sleep there most nights, to attend the same schools, to receive the same level of health care and to enjoy the same food, clothing, vacations, entertainment and the like as they did before the marital dissolution. Thus, it is difficult to perceive the relevance of Hornung in the present case. Contrary to the defendant\u2019s suggestion, the fact that a child spends a limited amount of time with a noncustodial parent who has a somewhat lower standard of living than the child does not, ipso facto, mean that the child\u2019s standard of living is reduced. See Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the defendant concedes that, as a noncustodial parent, he would not be entitled to a child support award under any circumstances. As we stated in Tomlinson v. Tom- linson, 305 Conn. 539, 46 A.3d 112 (2012), \u2018\u2018the legisla- ture viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines . . . child support award is defined as the entire payment obligation of the noncustodial parent . . . .\u2019\u201918 (Empha- sis in original; internal quotation marks omitted.) Id., 554. The defendant also appears to claim that, for the sake of the children, he is entitled to enjoy his predissolution standard of living because an \u2018\u2018extraordinary disparity in parental income may hinder [the] lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) See Maturo v. Maturo, supra, 296 Conn. 101. Again, we are not persuaded. This court recognized in Maturo that, when there is an \u2018\u2018extraordinary disparity\u2019\u2019 in parental income, the court may depart from the child support guidelines when the custodial parent has the higher income and deviation from the presumptive sup- port amount \u2018\u2018would enhance the lower income [non- custodial] parent\u2019s ability to foster a relationship with the child . . . .\u2019\u2019 (Internal quotation marks omitted.) Id.; see also Regs., Conn. State Agencies \u00a7 46b-215a- 5c (b) (6) (B) (when there is extraordinary disparity between parents\u2019 net incomes, court may deviate from presumptive support amounts if deviation would \u2018\u2018enhance the lower income parent\u2019s ability to foster a relationship with the child\u2019\u2019 and \u2018\u2018sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation\u2019\u2019). In other words, Maturo recog- nized that a lower income noncustodial parent may be permitted to pay less than the presumptive child sup- port amount to a higher income custodial parent if there is an extraordinary disparity in their incomes and the other conditions of the regulation are met\u2014relief that the defendant in the present case did not seek. Thus, although \u00a7 46b-215a-5c (b) (6) (B) admittedly was intended to address the problems that may arise when divorced parents have disparate incomes and standards of living, the remedy that it provides is quite limited. Maturo does not suggest that a lower income noncusto- dial parent has any right under the regulation to receive child support from a higher income custodial parent for the purpose of enhancing the ability of the noncustodial parent to \u2018\u2018foster a relationship\u2019\u2019 with a child who shares the custodial parent\u2019s higher standard of living. Cf. Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69 (2021) (under Maturo, trial court improperly ordered parent with higher income to pay supplemental, lump sum child support to custodial parent with no income other than child support on basis of \u2018\u2018significant dispar- ity\u2019\u2019 in parties\u2019 income). In Maturo, the court recognized that, \u2018\u2018[w]hen a parent has an ability to pay a large amount of support, the determination of a child\u2019s needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered sup- port that is more than reasonably needed for the child becomes, in fact, [tax free] alimony.\u2019\u2019 Maturo v. Maturo, supra, 105\u2013106. (Emphasis altered; internal quotation marks omitted.) Indeed, as we have already explained, a noncustodial parent is not entitled to a child support award under any circumstances. See Tomlinson v. Tomlinson, supra, 305 Conn. 554. The defendant contends that the fact that a noncusto- dial parent cannot receive child support supports his argument that the prenuptial agreement is unconsciona- ble because it demonstrates that, if the agreement is enforced, the trial court will be \u2018\u2018without the tools to account properly for the best interests of [the] children, putting both the noncustodial parent and them in an untenable place.\u2019\u2019 (Emphasis added.) Thus, the defen- dant appears to suggest that, in the absence of the prenuptial agreement, the trial court would be author- ized to award alimony or a property distribution to him for the purpose of ensuring that he can provide for the children in the same manner as the plaintiff. This court has held, however, that it is improper to disguise a child support award as alimony, and that alimony should be used only to address the needs of the recipient parent.19 See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d 963 (2006). Moreover, we observed in Tomlinson v. Tomlinson, supra, 305 Conn. 555, that \u2018\u2018permitting the diversion of funds away from the [custodial] parent [who is] providing for the care and well-being of minor children . . . would contravene the purpose of child support.\u2019\u2019 Although we were referring in Tomlinson to a situation in which a former noncustodial parent takes custody of the children and becomes responsible for supporting them but continues to pay child support to the former custodial parent; see id., 541\u201342; the same principle would hold true whenever a custodial parent is required to pay any form of support to a noncustodial parent based on the fiction that the payment is for the support of the children.20 In short, we see nothing in our statutes or case law to suggest that it is the public policy of this state that a noncustodial parent is entitled to receive any form of postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent.21 Indeed, \u00a7 46b-215a-5c (b) (6) (B) of the regula- tions expressly contemplates that, after a marital disso- lution, the parents of a child may have an \u2018\u2018[e]xtraordi- nary disparity\u2019\u2019 in income. It follows that the regulation contemplates that a child may well have a higher stan- dard of living than his or her noncustodial parent while continuing to have a relationship with that parent. We conclude, therefore, that Maturo does not support the proposition that it would be unfair, much less uncon- scionable, to enforce a prenuptial agreement merely because there is an extraordinary disparity between the incomes or standards of living of the custodial parent and the children, on the one hand, and the noncustodial parent, on the other hand.22 The defendant also relies on this court\u2019s decision in Bedrick v. Bedrick, supra, 300 Conn. 691, to support his contention that enforcement of the prenuptial agree- ment would be unconscionable. In Bedrick, the parties executed a postnuptial agreement in 1977, providing that, in the event of a marital dissolution, neither party would receive alimony.23 Id., 693\u201394. Instead, the plain- tiff wife would receive a cash settlement in an amount to be periodically reviewed. Id., 694. A May 18, 1989 addendum to the agreement provided for a cash settle- ment in the amount of $75,000. Id. The plaintiff waived her interest in the defendant\u2019s car wash business, and the defendant agreed that the plaintiff would not be held liable for his personal and business loans. Id. In the early 1990s, the defendant\u2019s car wash business became successful. Id., 707. In 1991, when the parties were forty- one years old, their child was born. Id. By the time of trial, the plaintiff had worked for that business for thirty-five years, providing administrative and book- keeping support. Id. Since 2001, when the business began to deteriorate, the plaintiff had managed all busi- ness operations except for maintenance. Id. In 2004, the plaintiff worked outside of the business to provide the family with additional income. Id. The trial court concluded that \u2018\u2018[t]he economic circumstances of the parties had changed dramatically since the execution of the agreement and that enforcement of the postnuptial agreement would have worked injustice.\u2019\u2019 (Internal quo- tation marks omitted.) Id. Accordingly, it concluded that the agreement was unenforceable. Id. This court concluded that \u2018\u2018[t]he facts and circumstances . . . clearly support the findings of the trial court that, as a matter of law, enforcement of the agreement would be unconscionable.\u2019\u2019 Id., 708. In the present case, the defendant contends that Bedrick stands for the proposition that a prenuptial agreement is unenforceable whenever (1) a child was unexpectedly born during the marriage, and (2) a spouse has undergone dramatic economic changes. We conclude that Bedrick is easily distinguishable from the present case. First, in Bedrick, the plaintiff gave birth to the parties\u2019 child after sixteen years of marriage when both parties were forty-one years old. See Bedrick v. Bedrick, Docket No. FA-XX-XXXXXXX, 2009 WL 1335100, *4 (Conn. Super. April 24, 2009). By contrast, in the present case, the parties\u2019 three children were all born within five years of the marriage, when both parties were in their thirties. Although the children may not have been \u2018\u2018contemplated\u2019\u2019 when the parties executed the prenuptial agreement, it is reasonable to conclude that their births were less of a bolt from the blue than the birth of the parties\u2019 child in Bedrick. Indeed, when asked at trial whether he and the plaintiff \u2018\u2018plan[ned] on having children during the course of the marriage,\u2019\u2019 the defendant replied, \u2018\u2018[y]eah.\u2019\u2019 When asked what his plan was, he replied, \u2018\u2018[t]o be fruitful and multiply.\u2019\u201924 Second, the plaintiff in Bedrick worked for the defen- dant\u2019s car wash business for thirty-five years, including the entire thirty-two year duration of the marriage, often seven days per week. Bedrick v. Bedrick, supra, 300 Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100, *3. The business floundered after the dissolution action was instituted and the plaintiff ceased working for it. Bedrick v. Bedrick, supra, 300 Conn. 707. In the present case, there is no evidence that the defendant contrib- uted to the success of any business or enterprise of the plaintiff. Third, in Bedrick, the plaintiff secured employment \u2018\u2018outside of the [car wash] business in order to provide the family with additional income.\u2019\u2019 (Emphasis added.) Id. Although the defendant in the present case may have contributed to the support of his children during the marriage, there is no evidence that he provided financial support to the plaintiff.25 Finally, the plaintiff in Bedrick was fifty-seven years old at the time of the marital dissolution, did not have a college degree and had been diagnosed with diabetes, which was controlled by medication. Bedrick v. Bedrick, supra, 2009 WL 1335100, *3\u20134. In the present case, the defendant was forty-four years old at the time of dissolu- tion, had a college degree and was in good health. We further note that the defendant had significant assets at the time of the marital dissolution and is ade- quately provided for, at least in the near term. Although we recognize that his assets may not be sufficient to meet his needs for his entire lifetime, nothing in the record would support a conclusion that he is incapable of earning an income.26 To the contrary, the evidence showed that the defendant was an educated, healthy forty-four year old with some business experience, and he testified at trial that, once he expended his assets, he was \u2018\u2018going to have to hustle and figure some things out, get . . . some salaried or . . . contract work . . . and hope that what [he\u2019s] been working on for the last three years will come to fruition down in the . . . Virgin Islands.\u2019\u2019 In addition, the defendant\u2019s counsel admitted to the trial court that the defendant \u2018\u2018is intelli- gent, he is healthy, and he is capable of working.\u2019\u2019 Accordingly, we cannot conclude that it would be unconscionable to expect the defendant to obtain employment to replace the unexpected loss of his income from Intermountain Industries.27 Indeed, if we were to conclude otherwise, an employed person who entered into a prenuptial agreement and, after the mar- riage, lost his or her job could simply refuse to seek employment and then claim that his or her lack of employment was a dramatic change in circumstances warranting invalidation of the agreement. Moreover, there is no evidence that the defendant, unforeseeably or otherwise, gave up any income earn- ing or asset building opportunities as a result of his marriage or the births of the children, or that he made significant and ongoing contributions to family life, such as shopping, doing household chores, entertaining the plaintiff\u2019s associates and family, or caring for the children, for which it would be unfair, much less uncon- scionable, not to compensate him. Cf. Hornung v. Hor- nung, supra, 323 Conn. 163 (\u2018\u2018[b]ecause the plaintiff\u2019s efforts as a homemaker and the primary caretaker of the children increased the defendant\u2019s earning capacity at the expense of her own, she is entitled to [an alimony award that will allow her to] maintain [her high predis- solution] standard of living after the divorce, to the extent possible\u2019\u2019). To the contrary, the trial court found that the defendant \u2018\u2018did not make the plaintiff or the children even a remote priority in his life.\u2019\u2019 We conclude, therefore, that the trial court correctly determined that enforcement of the prenuptial agreement in the present case would not be unconscionable in light of all of the relevant facts and circumstances. Finally, the defendant contends that it was inconsis- tent for the trial court to conclude that it would be unconscionable to enforce the provision of the prenup- tial agreement requiring a party who unsuccessfully seeks to invalidate any portion of it to pay the attorney\u2019s fees of the other party but not unconscionable to enforce the remainder of the agreement. We disagree. Significantly, the prenuptial agreement contained a sev- erability clause that expressly contemplated that, if one or more of its terms were found to be invalid, the rest of the agreement would survive. See A. Rutkin et al., 8A Connecticut Practice Series: Family Law and Prac- tice with Forms (3d Ed. 2010) \u00a7 50.53, p. 256; cf. Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 118, 679 A.2d 372 (1996) (discussing principles of severability under Connecticut contract law). In sis- ter states that, like Connecticut, have premarital agree- ment statutes like \u00a7 46b-36g that are modeled after the Uniform Premarital Agreement Act; see, e.g., Friezo v. Friezo, supra, 281 Conn. 183\u201384; the presence of a severability clause renders enforceable the remainder of a prenuptial agreement that contains a provision that is unconscionable or invalid as a matter of law. See, e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906 (Ill. App. 2014) (concluding that severability clause left \u2018\u2018remainder of the agreement . . . unaffected by [court\u2019s] holding\u2019\u2019 that agreement\u2019s \u2018\u2018[attorney fee shift- ing] ban as to [child related] issues violates [Illinois] public policy and is unenforceable\u2019\u2019 as to those issues); Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005) (emphasizing presence of savings clause in concluding that \u2018\u2018[p]rovisions in a prenuptial agreement purporting to limit or waive spousal support are void and unen- forceable as they are contrary to public policy, and [that they] may be severed from valid portions of the prenuptial agreement without invalidating the entire agreement\u2019\u2019); cf. Rivera v. Rivera, 149 N.M. 66, 72\u201373, 243 P.3d 1148 (N.M. App.) (premarital agreement was unenforceable because it contained provision waiving right to seek spousal or child support in violation of state statute, and \u2018\u2018agreement [did] not contain a sever- ability clause, and [w]ife [made] no argument that the remainder of the agreement should not be affected by the invalidity of the support provisions\u2019\u2019), cert. denied, 149 N.M. 64, 243 P.3d 1146 (2010). Accordingly, the trial court did not act inconsistently as a matter of law in concluding that the effect of enforcing the attorney\u2019s fees provision was unconscionable because it would \u2018\u2018financially cripple\u2019\u2019 the defendant, while also finding that the remainder of the agreement was enforceable. Because enforcement of the remainder of the agree- ment would, as we explained, leave the defendant with significant assets sufficient to provide for his needs until he can obtain a source of income, the trial court properly allowed the parties the benefit of the bargain to which they had agreed before their marriage. The judgment is affirmed. In this opinion the other justices concurred. * November 17, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. General Statutes \u00a7 46b-36g provides in relevant part: \u2018\u2018(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: *** \u2018\u2018(2) The agreement was unconscionable when it was executed or when enforcement is sought; *** \u2018\u2018(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.\u2019\u2019 The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes \u00a7 51-199 (c) and Practice Book \u00a7 65-1. Financial disclosures attached to the prenuptial agreement indicated that the value of the defendant\u2019s assets at the time of the marriage was $13,267,952.81. It was discovered during the dissolution proceedings that this figure had been established by using generally accepted accounting practices, rather than fair market value, and that the fair market value of the assets was $5,150,295. Intermountain Industries was an oil and gas exploration business in which the defendant\u2019s father had a controlling interest. Intermountain Indus- tries made dividend payments to an entity known as Century American, which, in turn, made guaranteed payments to 4H, LLC, the members of which were the defendant\u2019s father and his lineal descendants, including the defendant. The trial court made no findings in connection with the defendant\u2019s claim at trial that the prenuptial agreement was unconscionable when the parties executed it, and the defendant does not pursue that claim on appeal. Specifically, the financial affidavit indicated that he had a weekly income of $2 from dividends and interest payments. In determining this amount, the trial court relied on a child support guidelines worksheet dated February 12, 2019, in which the plaintiff stipu- lated that she received $48,361 in gross weekly income and mandatory deductions of $14,077, for a net weekly income of $34,284. The plaintiff submitted a subsequent financial affidavit to the trial court dated February 20, 2019, indicating that her net weekly income was $24,505. This figure appears to have been a clerical error, as the same affidavit indicates that her gross weekly income was $48,361, and mandatory deductions were $14,491, which would yield a net weekly income of $33,870. The parties stipulated that, for child support purposes only, the defendant had a gross weekly income of $3720 and a net weekly income of $2569. The trial court made no finding on the issue, but the undisputed evidence showed that the defendant had liabilities of $1.35 million, yielding a net worth of approximately $750,000. The trial court stated that, \u2018\u2018[a]lthough the defendant was not financially crippled after his home burned down, the Yacht Club was underinsured, and the insurance proceeds could not fully restore the property to its prior form. In addition to the defendant\u2019s financial losses from these unforeseen events, he was no longer able to generate revenue from the Yacht Club after it was destroyed, significantly diminishing his assets.\u2019\u2019 Evidence presented at trial showed that the plaintiff had paid attorney\u2019s fees in the amount of $1,559,713.17 defending against the defendant\u2019s cross complaint seeking invalidation of the prenuptial agreement. After this appeal was filed, the plaintiff filed a motion for leave to file a late conditional cross appeal in which she requested permission to cross appeal from the trial court\u2019s ruling invalidating the attorney\u2019s fees provision in the event that the Appellate Court reversed the judgment and remanded the case to the trial court for a new trial without resolving the issue of the enforceability of the prenuptial agreement. The Appellate Court denied the motion, and this claim is not before us. The defendant also claims that the trial court improperly precluded him from soliciting testimony as to whether the parties contemplated certain events when they entered into the prenuptial agreement. Because we con- clude that enforcement of the agreement is not unconscionable, even assum- ing that the events at issue were not contemplated by the parties, we need not address this claim. The plaintiff also contends, essentially as an alternative ground for affirmance, that the trial court incorrectly determined that the parties did not contemplate that they would have children, that the defendant\u2019s house would be destroyed by fire, that the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail. There appear to be two separate bases for this claim. First, the plaintiff appears to contend that these events were contemplated by the parties as a matter of law because the prenuptial agreement expressly provided that \u2018\u2018[n]o change in circumstances of the parties shall render [the] [a]greement unconscionable if enforcement hereof is sought at any time in the future.\u2019\u2019 Second, the plaintiff claims that these events were, as a factual matter, within the contem- plation of the parties. We are doubtful, however, whether a \u2018\u2018no change in circumstance\u2019\u2019 provision could save a prenuptial agreement that otherwise would be unenforceable as unconscionable. We need not resolve these issues here, however, because we conclude that the trial court correctly determined that the existence of these uncontemplated events did not render the enforcement of the prenuptial agreement unconscionable. Bedrick involved the enforceability of a postnuptial agreement. See Bedrick v. Bedrick, supra, 300 Conn. 693. The same principle, however, applies to prenuptial agreements. See id., 696\u201397; Crews v. Crews, supra, 295 Conn. 167 (\u2018\u2018equitable considerations codified in our statutes . . . have no bearing on whether [a prenuptial] agreement should be enforced\u2019\u2019 (inter- nal quotation marks omitted)). As we indicated; see footnote 14 of this opinion; we need not address the plaintiff\u2019s challenge to the trial court\u2019s factual findings on these issues because, even assuming that, contrary to the plaintiff\u2019s claim, the findings were correct, we agree with the trial court\u2019s legal conclusion that those facts did not render the prenuptial agreement unconscionable. The defendant testified at trial that, since the dissolution action was brought, he has paid rent of $3500 per month for a 983 square foot, three bedroom house in the Rowayton neighborhood of Norwalk. He further testified that the house has a garage that he has converted into a playroom, laundry room, workshop and storage area. See Regs., Conn. State Agencies \u00a7 46b-215a-1 (6). The current version of the child support guidelines recognizes that there has been \u2018\u2018a trend away from \u2018custodial/noncustodial\u2019 and \u2018visitation\u2019 language toward the concept of shared parenting.\u2019\u2019 Child Support and Arrearage Guidelines (2015), preamble, \u00a7 (g), p. xii. The guidelines also recognize that, \u2018\u2018within the context of shared physical custody, both parents are essentially custodial.\u2019\u2019 Id. When that is the case, the guidelines provide that \u2018\u2018the most practical approach [is] for [child support] to be paid by the parent with the higher income.\u2019\u2019 Id. As we have indicated, in the present case, the plaintiff has primary physical custody of the children, and the defendant has made no claim that he is entitled to child support on the ground that the parties have . To the contrary, he agreed to pay child support to the plaintiff and concedes that he is not entitled to receive child support from her. We note that there is considerable overlap between the factors that the trial court must consider when crafting an alimony award pursuant to Gen- eral Statutes \u00a7 46b-82 and the factors that it must consider when assigning property pursuant to General Statutes \u00a7 46b-81. Neither statute authorizes the court to consider the ability of a spouse to support his or her children, and the defendant has cited no authority for the proposition that, unlike an alimony award, it is proper to assign property for that purpose. The court in Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990), observed that the failure to award an indefinite award of alimony to the plaintiff wife might be unconscionable because \u2018\u2018it could not help but have some effect upon the child to go back and forth between a father who can afford to live in luxury and a mother who is required to exercise some degree of frugality.\u2019\u2019 Id., 197. Melrod involved a Maryland statute providing that a court may award alimony for an indefinite period if the court finds that, \u2018\u2018even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.\u2019\u2019 Md. Code Ann., Fam. Law \u00a7 11- 106 (c) (2) (1984); see Melrod v. Melrod, supra, 196. Connecticut has no such statute, and, as we explained, alimony may not be used in this state to disguise child support. Although we recognize that it may be difficult for some children under some circumstances to grapple with the fact that their parents have disparate standards of living, we do not agree with the court in Melrod to the extent that it concluded that it is unconscionable to permit a child who enjoys the same high standard of living that he or she did before the dissolution to have a relationship with a parent who lives in a somewhat more modest manner. Indeed, spending time with a less affluent parent could be just as beneficial to a child as time spent with an affluent parent. As we indicated, if the parents have shared physical custody of the children, the parent with the lower income can make a claim for child support. See footnote 18 of this opinion. That is not the case here. If the legislature believes there is a gap in the statutory scheme governing marital dissolutions and financial awards in this regard, it is free to address that gap legislatively. It is not the role of this court to create public policy in this highly regulated area. In such a situation, the fact that the lower income noncustodial parent is unable to provide for himself in the same manner as when the prenuptial agreement was executed may, depending on all of the relevant facts and circumstances, justify invalidating the agreement and awarding alimony on that ground. See footnote 27 of this opinion. We are aware of no authority, however, for the proposition that a noncustodial parent who otherwise would not be entitled to alimony would be entitled to it solely on the basis of his \u2018\u2018need\u2019\u2019 to provide for his children in the same manner as the custodial parent. See, e.g., Loughlin v. Loughlin, supra, 280 Conn. 655 (it is improper to disguise child support as alimony). This court concluded in Bedrick that postnuptial agreements are subject to stricter scrutiny than prenuptial agreements when a court is determining whether they are enforceable at the time of execution. Bedrick v. Bedrick, supra, 300 Conn. 703\u2013704. Specifically, unlike prenuptial agreements, post- nuptial agreements \u2018\u2018are subject to special scrutiny and the terms of such agreements must be both fair and equitable at the time of execution . . . .\u2019\u2019 Id., 697. Courts apply the same standard, however, when determining whether postnuptial and prenuptial agreements are enforceable at the time of enforcement, namely, whether the agreement was unconscionable. Id., 704. The defendant suggests that this testimony related to his expectations during the marriage, not at the time that he executed the prenuptial agree- ment. As we have indicated, we assume, without deciding, that the trial court correctly determined that the parties did not \u2018\u2018contemplate\u2019\u2019 having three children when the agreement was executed. As we have also suggested, however, the question of whether an event was \u2018\u2018contemplated\u2019\u2019 is not a black and white one but involves shades of gray. Although the parties may not have \u2018\u2018contemplated\u2019\u2019 having three daughters within five years of the marriage in the sense that they did not expressly discuss the matter and had no specific plan when they entered into the agreement shortly before the marriage, it seems highly implausible that they had a conscious plan to have no children at that time but that several months after the marriage when the plaintiff became pregnant, the defendant suddenly developed a plan to \u2018\u2018be fruitful and multiply.\u2019\u2019 We conclude, therefore, that, even if the births of the three children were not contemplated when the agreement was executed, in the sense that the births were not consciously and explicitly planned, they were not so completely beyond or contrary to expectation that enforcement of the agreement would work an injustice. See McHugh v. McHugh, supra, 181 Conn. 489. The defendant points out that, after the marriage, the parties lived in the defendant\u2019s house, \u2018\u2018where he paid the carrying costs,\u2019\u2019 until it was destroyed in the fire. They then leased another house using insurance pro- ceeds. The evidence also showed, however, that the plaintiff provided approximately 75 percent of the furnishings for the defendant\u2019s house, for which she received insurance compensation, and she spent $50,000 to $60,000 on improvements to the defendant\u2019s property, for which she never made any claim. The trial court made no finding as to whether the evidence that the plaintiff lived in the defendant\u2019s house supported the conclusion that the defendant provided financial support to the plaintiff, and we con- clude that the evidence does not compel the conclusion that he did. The only finding that the trial court made on this issue was that \u2018\u2018[t]he parties kept their money separate and devoted vastly different amounts of effort and respect into their marriage . . . . Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his marriage.\u2019\u2019 The defendant contends that this court is precluded from considering his ability to provide for himself because the trial court did not expressly specify his earning capacity. See, e.g., Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013) (trial court must specify dollar amount of party\u2019s earning capacity when that factor provides basis for financial award because failure to do so \u2018\u2018leaves the relevant party in doubt as to what is expected from him or her, and makes it extremely difficult, if not impossible, both for a reviewing court to determine the reasonableness of the financial award and for the trial court in a subsequent proceeding on a motion for modifica- tion to determine whether there has been a substantial change in circum- stances\u2019\u2019). The defendant fails to recognize that the trial court in the present case was not determining the amount of a financial award pursuant to \u00a7 46b- 82 (a) and General Statutes \u00a7 46b-86, as in Tanzman, but was determining whether enforcement of the prenuptial agreement would be unconscionable under \u00a7 46b-36g (a) (2) in light of all of the relevant facts and circumstances. The defendant bore the heavy burden of proving an extraordinary change in circumstances to prevail on that issue. See, e.g., Crews v. Crews, supra, 295 Conn. 169. The defendant has pointed to no evidence that would support a finding that, as of the date of the dissolution, he was no longer capable of earning an income, and he made no such claim to the trial court or on appeal. The defendant\u2019s counsel contended at oral argument before this court that the defendant should not be required to establish that he will be unable to provide for his basic needs before the enforcement of the prenuptial agreement can be found to be unconscionable under \u00a7 46b-36g (a) (2), because such an interpretation of that statute would render \u00a7 46b-36g (b) superfluous. See General Statutes \u00a7 46b-36g (b) (\u2018\u2018[i]f a provision of a premar- ital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility\u2019\u2019). We agree with the defendant that there may be circumstances in which the enforcement of a prenuptial agreement would be unconsciona- ble even though the party seeking to invalidate the agreement would be able to provide for his or her basic needs if the agreement were to be enforced. Cf. Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 273\u201374, 242 A.3d 542 (2020) (trial court correctly concluded that enforcement of prenuptial agreement would be unconscionable when \u2018\u2018there was evidence in the record that [a motor vehicle accident resulting in a mild traumatic brain injury] impaired the plaintiff\u2019s ability to work full-time, and, as a result, she was forced to obtain part-time employment at a salary far lower than the one she earned at the time the agreement was executed\u2019\u2019). That does not mean that the question of whether the party seeking to invalidate the agreement will be able to provide for his or her basic needs if the agreement is enforced is always irrelevant to the determination of whether enforcement would be unconscionable. Indeed, there may be cases in which, under all of the relevant facts and circumstances, the enforcement of a prenuptial agreement would not be unconscionable despite a significant reduction in the income of the party seeking invalidation, provided that the court finds that the party can still provide for his or her basic needs. We need not resolve that issue in the present case, however, because the defendant presented no evidence that he is no longer capable of earning an income comparable to the income that he was earning when he executed the prenuptial agreement. See foot- note 26 of this opinion."], "id": "b7a1824a-d828-4cd3-9174-d669916e8f2b", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["The more difficult question has to do with section 465 (2). The first question was whether the failure here was \u201cwillful\u201d (i.e., deliberate and knowing). That cannot be known on this record, one way or the other. The defendant himself did not fill out or sign the form himself; his wife did. The plaintiff therefore would have to demonstrate that the defendant instructed her not to answer these questions, an issue not even discussed by the parties \u2014 and which is an inquiry made even more problematic by the possible bar of (CPLR 4502 [b]). However, even assuming that willfulness could be proved, the court cannot permit a statutory section 462 (2) claim to proceed in this case."], "id": "5ac4c593-bb5d-4ab2-a831-9282b1ca7164", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["There are many private interests in a matrimonial case. The most intimate relations of the parties and their finances may be subject to scrutiny. The broad (CPLR 4502 [b]) is inapplicable in divorce. Also the court is well aware that one of the problems in open matrimonial proceedings is the effect it would have on children of the marriage. While adult parties in today\u2019s media-conscious world may be found to have no valid objection to having their dirty linen aired, the same cannot be said of the children who are the innocent victims of both their parents and the media (but see, Anonymous v Anonymous, supra). Even when custody is not involved in the trial, there are long-lasting scars caused by public humiliation of one or both parents. The court often tries to protect the children in pendente lite orders by precluding the parents from \"bad mouthing\u201d each other. The media have no such concerns. The issue of child protection in public divorce battles is one the Legislature should address (see, Brandes & Weidman, Privacy: Whose Right Is It, Anyway?, NYLJ, Oct. 24, 1995, at 3, col 1). *823The courts are unfortunately limited in their enforcement of the parties\u2019 privacy."], "id": "b62b7ce3-827c-426a-a08e-ee08996049e9", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["Rodriguez's ex-wife,2 Donna Malone, testified. Rodriguez objected to Malone testifying regarding statements he made the day of the shooting on the basis of , but the trial court overruled the objection. Malone testified that, on the day of the shooting, as they drove past the Danaher house on the way to Walmart, Rodriguez said, \"[T]hey're going to shut that down.\" Malone testified that Rodriguez seemed \"[c]onfident that it would stop.\" They returned home from Walmart around 9:00 p.m., and as they drove by the Danaher house, Rodriguez said, \"They're still at it.\" When they got home and out of the car, Rodriguez asked Malone \"if [she]"], "id": "f56648f4-9cd7-4849-b983-9f75afdf6e2d", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["Furthermore, when partners manifest the commitment to their relationship and family (see Braschi v Stahl Assoc. Co., 74 NY2d at 211, 213; East 10th St. Assoc. v Estate of Goldstein, 154 AD2d 142, 145 [1st Dept 1990]) by solemnizing that commitment elsewhere, through one of life\u2019s most significant events, and come to New York, whether returning home or setting down roots, to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon that solemnized commitment. It is both a personal expression of emotional devotion, support, and interdependence and a public commitment. (Turner v Safley, 482 US 78, 95-96 [1987]; East 10th St. Assoc. v Estate of Goldstein, 154 AD2d at 143, 145.) With that validity, they expect equal treatment with other married couples in legal protections and economic benefits for the couples and for their children: owning property as a unit, insurance, workers\u2019 compensation, health benefits, medical decision-making, wrongful death claims, intestacy, inheritance, and , for example. The emotional, familial, financial, *654and legal stability that accompanies marriage establishes a strong presumption in favor of the marriage\u2019s continued validity. (See Matter of Lowney, 152 AD2d 574, 576 [2d Dept 1989]; Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [3d Dept 1987]; Amsellem, v Amsellem, 189 Misc 2d 27, 29 [Sup Ct, Nassau County 2001].)"], "id": "c596597f-925a-4dc6-a7ff-f1a0f7252f71", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["As to the defendant\u2019s claim that she needs her attorney to facilitate her assertion of the , the court notes that anything said by the defendant in the course of her *837presentence interview is strictly confidential and cannot be used as evidence at some future date against her husband. The contents of the probation report are for the exclusive use of this court in sentencing the defendant and therefore there is no critical issue concerning the spousal privilege. Moreover, as stated by the assistant general counsel, the interviewing probation officer will, as a matter of course, inform the defendant that she may decline to answer any questions that she does not wish to talk about. Thus, the defendant may simply tell the probation officer that she does not wish to discuss her husband."], "id": "cc775386-6c00-44ed-9b3d-dc905e994b49", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["He claims that her testimony would have shown that she con- taminated the crime scene by helping to cut tape from Pedro\u2019s face, ankles, and wrists. This claim is affirmatively refuted by the record. Paula Chadwick was not a witness at trial, and no testimonial state- ments from her were offered into evidence at the trial. U.S. Const. amend. VI provides, in relevant part, that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .\u201d Because Paula Chadwick was not a witness against Betancourt, U.S. Const. amend. VI does not grant him the right to confront her. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (observing that \u201c\u2018witnesses\u2019 against the accused,\u201d for Confrontation Clause purposes, are \u201cthose who \u2018bear testimony\u2019\u201d). A hearing on this claim was not warranted. ( j) Ortiz\u2019 Testimony on Domestic Assault Betancourt claims that appellate counsel was ineffective for failing to assign that trial counsel was ineffective when counsel did not object to the testimony of Betancourt\u2019s wife, Ortiz. Such an objection would be based on the grounds of and relevance. Ortiz testified that she had two children with Betancourt, that she left Betancourt without telling him where she went, that she intended to hide from Betancourt, and that she had been hiding from Betancourt for 13 years. Betancourt claims that trial counsel performed defi- ciently by not informing Ortiz that, if she chose, she would not be compelled to testify against her husband. See Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980). Further, Betancourt claims that his trial counsel should have objected to Ortiz\u2019 testimony based on relevance and forced a hearing pursuant to Neb. Rev. Stat. \u00a7 27-403 (Reissue 2016) to determine if her testimony was relevant and, even if relevant, whether its probative value was outweighed by its prejudice to Betancourt. Betancourt claims a \u00a7 27-403 hearing - 458 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440"], "id": "4c496fa5-3d35-43c6-ac9e-ee345528375d", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["would have prevented him from being found guilty by the jury on an \u201cemotional basis.\u201d Brief for appellant at 42. With respect to , this claim is affirmatively refuted by the record. Betancourt\u2019s trial counsel objected to Ortiz\u2019 testimony on spousal privilege grounds and was over- ruled on the basis of Neb. Rev. Stat. \u00a7 27-505(3)(a) (Reissue 2016) (providing, in relevant part, that spousal privilege may not be claimed \u201c[i]n any criminal case where the crime charged is a crime of violence . . .\u201d) Trial counsel was not deficient and, similarly, appellate counsel was not deficient in not pursuing this argument. A hearing on this claim was not warranted. (k) Jury Instructions Betancourt next claims that appellate counsel was inef- fective for not raising trial counsel\u2019s ineffectiveness for not objecting to jury instructions Nos. 2 (presumption of inno- cence), 4 (prior inconsistent statements), 8 (definition of intent), 13 (presence in Madison County), and 15 (elements of conspiracy). Reading the jury instructions together, and as a whole, the record affirmatively refutes Betancourt\u2019s claims with respect to instructions Nos. 2, 4, 8, and 15; the instruc- tions are a correct statement of the law, not misleading, and adequately cover the issues supported by the pleadings and evidence. Instruction No. 13, regarding Betancourt\u2019s physical presence in Madison County, was correct as to count I, kidnap- ping, and count II, use of a firearm to commit a felony, but was erroneous with respect to count III, conspiracy. However, this error is harmless. Jury instruction No. 2, regarding the presumption of inno- cence, read in relevant part as follows: \u201cThe defendant has pled not guilty to each of these crimes. He is presumed to be innocent. That means you must find him not guilty unless you decide that the State has proved him guilty beyond a reason- able doubt.\u201d Contrary to Betancourt\u2019s assertion, the court\u2019s use of the word \u201cunless\u201d rather than the phrase \u201cunless and until\u201d in instruction No. 2 did not make the instruction defective. See, e.g., State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). - 459 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440"], "id": "adc37ee7-df2d-415a-9626-5100930beceb", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["The circumstances that the defendant in this case asserts to be exceptional are several. First, the defendant claims that because she is a 20-year-old, non-English speaking woman with a third-grade education and little understanding of the legal system, she needs the assistance of counsel at her interview. Secondly, the defendant argues that she needs her counsel to be present because she is under a great deal of emotional strain and pain stemming from this incident. Thirdly, the defendant states that she needs the assistance of counsel in order to satisfactorily assert her with respect to any questions which may be asked regarding the charges as they relate to her husband (who was arrested at the same time as she and against whom charges are still pending). And finally, the defendant argues that the Assistant District Attorney\u2019s consent to her attorney\u2019s being present at the presentence interview provides an additional exceptional circumstance."], "id": "7ecfefa9-0eb8-4983-be91-408aaac819ae", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["\u201cOne spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)\u201d (People v Fediuk, 66 NY2d 881, 883 [1985]). While a suicide note can be a communication made during marriage for the purpose of the privilege (see Matter of Vanderbilt [Rosner\u2014Hickey], 57 NY2d 66, 73 [1982]), the falls \u201cwhen the substance of a communication ... is revealed to third parties\u201d (id. at 74; see People v Weeks, 15 AD3d 845, 846 [2005]; People v Beard, 197 AD2d 582, 583 [1993]; People v LaPlanche, 193 AD2d 1062, 1063 [1993]). Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege (see People v Thomas, 288 AD2d 405, 406 [2001])."], "id": "fbaa69f6-028b-4d81-a5f2-a9ca75ea2130", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["Indeed, while States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. Valid marriage under state law is also a significant status for over a thousand provisions of federal law.51 *714Given this, an argument could be made that classifications based upon marriage always survive rational-basis review absent a concern that the classification significantly interferes with the right to marry.52 We need not reach that determination in this case because is unnecessary to do so. As discussed above, the statute is rationally related to a legitimate governmental interest in punishing bigamy or polygamy and sexual assault pursuant to bigamous or polygamous relationships. It is unnecessary to go further than that in our holding."], "id": "0d2a25a5-0b0b-4db9-a722-c082a488a7d8", "sub_label": "US_Terminology"} {"obj_label": "spousal privilege", "legal_topic": "Family Law", "masked_sentences": ["The Federal courts have held that statements of a spouse that would be privileged at trial can nonetheless be used to establish probable cause to obtain a search warrant or investigate a suspect based upon such communications (United States v Cleveland, 477d 310; United States v Harper, 450d 1032; United States v Winfree, 170 F Supp 659). In essence, the Federal courts held that the is applicable in the trial context only and has limited application outside that context (supra; see also, United States v Tsinnijinnie, 601d 1035 [third party permitted at trial to testify to out-of-court utterance of privileged communication of defendant spouse]; State v Burden, 120 Wash 2d 371, 841 P2d 758)."], "id": "c483783e-a4d7-4cc9-bdcc-95e57a829e0b", "sub_label": "US_Terminology"} {"obj_label": "wage attachment", "legal_topic": "Family Law", "masked_sentences": ["There is a conflict of authority whether arrears may be enforced pursuant to a . In de Jongh v. de Jongh (13 Misc 2d 882). and Langus v. Langus (16 Misc 2d 648), the courts ruled that section 49-b could not be used to collect arrears claiming it was not authorized or was not intended to be used for such purposes. Payment of arrears through use of the section was approved in \u201cDoe\u201d v. \u201cDoe\u201d (37 Misc 2d 788) and Nicoletti v. Nicoletti (N. Y. L. J., Nov. 5, 1973, p. 20, col. 5). No authority has been cited for any of these decisions other than the statute itself."], "id": "287b1b7f-4bb0-493f-ae75-78a23c0fd09a", "sub_label": "US_Terminology"} {"obj_label": "wage attachment", "legal_topic": "Family Law", "masked_sentences": ["The plaintiff husband contends that CPLR 5241 is a method of enforcing monetary judgments only for child or spousal support and not for equitable distribution. More specifically, the plaintiff contends that CPLR 5241 allows an income execution where a default has occurred under an order of support. The term \"order of support\u201d is specifically defined as \"any temporary or final order, judgment or decree in a matrimonial action or family court proceeding, or any foreign support order, judgment or decree, registered pursuant to section thirty-seven-a of the domestic relations law which directs the payment of alimony, maintenance, support or child support.\u201d (CPLR 5241 [a] [1]; emphasis added.) The plaintiff further contends that equitable distribution, and any award thereof, is clearly not a form of support within the confines of the term \"order of support\u201d."], "id": "e8dec447-bedc-4502-9d5c-54f27e2b86c3", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["In Jane J. , when the parents of two boys divorced, the mother lived in Wisconsin with the boys (three and seven years old). The father was in the military, stationed in Hawaii. The parents' , deemed a final custody order, stated that, because the father was serving in the military, the mother was given primary physical custody. ( Jane J. , supra , 237 Cal.App.4th at p. 898, 188 Cal.Rptr.3d 432.) Three years later, the mother moved to California with the boys. The Wisconsin court approved the move. A year later, the father was transferred to Alabama, registered the Wisconsin 2009 custody order in California, and petitioned for an order modifying the Wisconsin custody order to increase his visitation or give him primary physical custody over the boys. ( Id . at pp. 898-899, 188 Cal.Rptr.3d 432.) The father accused the mother of blocking him from seeing the boys. The parties agreed to share the cost of an Evidence Code section 730 expert evaluator (730 expert evaluator) providing recommendations regarding the boys' best interests. The trial court, however, declined to appoint a 730 expert evaluator. ( Jane J., at p. 899, 188 Cal.Rptr.3d 432.)"], "id": "242a497f-7d69-492d-a45c-a0429ae45403", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Likewise, the \" 'trial court's discretion to modify the spousal support order is constrained by the terms of the .' \" ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616.) Marital settlement agreements incorporated into a dissolution judgment are interpreted under the same rules governing contract interpretation generally. ( In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012, 151 Cal.Rptr.3d 553 ; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439, 64 Cal.Rptr.2d 766.) \" ' \"The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs.\" ' \" ( Hibbard , at p. 1013, 151 Cal.Rptr.3d 553.)"], "id": "f0185896-82ab-4973-8bf3-17634b1f67e0", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["To modify spousal support, a trial court must first find \" ' \"a material change of circumstances since the last order.\" ' \" ( Minkin , supra , 11 Cal.App.5th at p. 956, 218 Cal.Rptr.3d 407 ; Dietz , supra , 176 Cal.App.4th at p. 396, 97 Cal.Rptr.3d 616 ; see also In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480, 274 Cal.Rptr. 911 ( Smith ) [\"Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order.\"].) In its changed-circumstances analysis, the court considers all factors affecting the supported spouse's needs and the supporting spouse's ability to pay. ( In re Marriage of West (2007) 152 Cal.App.4th 240, 246, 60 Cal.Rptr.3d 858.) An \"increase in the supporting spouse's ability to pay\" may constitute a change in circumstances. ( In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, 48 Cal.Rptr.2d 864, citing In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173, 208 Cal.Rptr. 345.) When support is governed by a or stipulated judgment, the trial court's changed-circumstances determination must \" ' \"give effect to the intent and reasonable expectations of the parties as expressed in the agreement.\" ' \" ( Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.)"], "id": "18b9182f-3e6a-470e-b011-acb9e8d40d86", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Anne Catambay's husband was sued in Santa Clara County for embezzlement. That lawsuit resulted in a judgment against him for over one million dollars. A corporation--Longview International, Inc.--is the judgment creditor. Longview International recorded an abstract of judgment in San Mateo County, creating a judgment lien on real property owned by Catambay's husband in that county (a house in Redwood City). Two days later, Catambay's husband conveyed the Redwood City house to her as part of a in their then-pending dissolution proceeding."], "id": "e1c2eeb8-7342-4d50-96b4-621517224ada", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["\"article 2. SPECIFIC BEQUESTS in accordance with a marital SETTLEMENT. \"In accordance with our , I give, devise and bequeath to my former wife, Frances R. Rhoades, any right, title or interest I may have in the premises located at 26 Pointview Drive, in the Town of East Greenbush, County of Rensselaer and State of New York, including the contents thereof. In the event Frances R. *264Rhoades shall predecease me, then in that event, I devise said right, title and interest to the two children of said marriage, Ralph W. Rhoades and Pamela Ann Rhoades, or to the survivor thereof and also, all right, title and interest in the contents thereof, including family heirlooms, furnishings and furniture to the said children or to the survivor thereof, share and share alike.\u201d Decedent\u2019s former wife, Frances R. Rhoades, has appeared in this proceeding by her attorney and has joined with the executor of the decedent\u2019s estate in denying that petitioner can exercise a right of election against the East Greenbush property."], "id": "ad938412-a825-4e77-9a51-f70ba48ce6cc", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["On June 22, 2009, the parties entered into a (the Agreement) which resolved the disputed issues relating to the dissolution of their marriage. In pertinent part, Phillip agreed to pay maintenance to Mary in the amount of $3,000 per month for eleven years or until Mary's remarriage. The Agreement further provided, \"There shall be no modification of this Agreement except by written agreement of the parties with respect to issues of property division, maintenance or payment of child expenses.\" The trial court found that the terms of the Agreement were not unconscionable and incorporated them into the decree entered on June 26, 2009."], "id": "57ac0e30-0831-4a1f-b3ba-6c8745636218", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["The Hibbard court cited to other examples where intervening circumstances did not circumvent an agreement that spousal support would be *863non-modifiable, despite the outcome being \"possibly unfair.\" A wife's receipt of monthly payments on a note for the sale of a residence did not justify reducing spousal support where the parties agreed the sale of the residence would not be considered a change in circumstances. ( In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1077-1081, 225 Cal.Rptr. 219.) A party cannot obtain modification of support based on the recipient's non-marital cohabitation with another person when the parties agreed support was not modifiable and would terminate only on the recipient's remarriage. ( In re Marriage of Sasson (1982) 129 Cal.App.3d 140, 146-147, 180 Cal.Rptr. 815.) The concurring opinion in Sasson noted, \"as unjust, one-sided and warped as such a state of affairs may appear to be, Husband is unfortunately bound by his own since Wife's testimony that she has never remarried is uncontradicted.\" ( Id. at p. 150, 180 Cal.Rptr. 815.) The Hibbard court described the result as \"patently unfair,\" yet confirmed the Sasson court made the correct decision in light of the parties' agreement. ( Hibbard , supra , 212 Cal.App.4th at p. 1015, 151 Cal.Rptr.3d 553.)"], "id": "6e073e1b-de8f-4287-a139-47f9c677bef2", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["In July of 2015, during the children's summer break, Roger filed a verified petition for dissolution of marriage in the Warren Family Court. The petition cited Roger's and Heidi's separation since August of 2014, and stated that it was in the best interest of the children that Heidi and Roger be awarded joint custody, with Heidi designated as the primary residential parent. Heidi and Roger subsequently entered into a (the \"MSA\"). The MSA made arrangements for parenting time, child support, and division of property, among other things. It also stated: \"The parties understand that, at this time, Kentucky is considered the 'home state' of the children for all custody and time-sharing issues. Likewise, the parties understand that Kentucky shall continue to have ongoing, exclusive jurisdiction of all custody and co-parenting issues, unless the Court of another state assumes jurisdiction.\" The parties now concede, however, that Kentucky did not actually qualify as the children's \"home state\" as that term is defined in the UCCJEA.3 Nevertheless, based on the *452MSA, the Warren Family Court assumed jurisdiction over the marriage dissolution and custody of the parties' children. On November 20, 2015, the Warren Family Court entered a decree of dissolution, incorporating, by reference, the MSA. The Warren Family Court found that the MSA was not unconscionable and that its provisions with respect to custody and time-sharing were in the children's best interest."], "id": "a54e4af7-903d-412c-a6b2-ed8bf3833fa0", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["The parties agree that the issue of when interest begins to accrue on an amount included in a monetary judgment is a question of law that we review *1178de novo. (See Chodos v. Borman (2015) 239 Cal.App.4th 707, 712, 190 Cal.Rptr.3d 889 ( Chodos ).) We also independently interpret a incorporated into a dissolution judgment unless there is conflicting parol evidence affecting its meaning. ( In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518, 18 Cal.Rptr.3d 377.) Here, there is no parol evidence to interpret. We therefore apply a de novo standard to our review of the trial court's order concerning the relevant date for computing interest on the Equalization Payment."], "id": "30ef9060-a2ad-4aad-942a-bd53f7e4d049", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Although its ability to modify a spousal support order is constrained by *456the terms of the ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616 ), the trial court has significant discretion when weighing the various section 4320 factors. (See, e.g., Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.) For the same reasons substantial evidence supported the court's changed-circumstances finding, particularly Wife's dramatic earnings increase, substantial evidence likewise supports the court's conclusion that some reduction of Wife's spousal support obligations was appropriate. However, by revising the parties' agreement to cap additional spousal support payment at \"10% of Wife's income above $180,000.00 per year, up to $189,900\" (i.e., the amount of Wife's earnings in 2012), the order fails to account for the parties' reasonable expectation that Wife's earnings would continue to increase. The order thus exceeds the constraints imposed by the terms of the marital settlement agreement. (See Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616 ; In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1476, 143 Cal.Rptr.3d 81.)"], "id": "18a0148a-bc40-48b8-8900-633855014754", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["\"The Family Code requires the parties to a dissolution proceeding to serve on each other a preliminary, sworn declaration, on forms prescribed by the Judicial Council, identifying all assets and liabilities. ( Fam. Code, \u00a7 2104, subds. (a) & (c).) Similarly, before the parties to a dissolution proceeding enter into an agreement for the resolution of property issues, or before any trial, each must serve on the other 'a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council ....' ( Fam. Code, \u00a7 2105, subd. (a).) These mandatory statutory requirements cannot be waived, except in strict compliance with provisions of the statute. [Citation.]\" ( In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 745-746, 43 Cal.Rptr.3d 181, fns. omitted; see In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1060, 1064-1066, 64 Cal.Rptr.2d 522 [affirming a judgment setting aside an original judgment of dissolution and , based upon an impermissible waiver of the mandatory exchange of disclosure declarations at the time of dissolution].) Section 2105, subdivision (d), which permits such waiver, still requires that \"[b]oth parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged\" ( \u00a7 2105, subd. (d)(1) ), and that \"[t]he waiver is knowingly, intelligently, and voluntarily entered into by each of the parties.\" (Id ., subd. (d)(4).)"], "id": "12d62210-d4d8-4bf4-90f9-5a57d35e63a2", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Robert J. Gigante, S. In this pending proceeding, petitioner, John Kelly, decedent\u2019s son and administrator of his estate, moves for an order granting summary judgment pursuant to CPLR 3212 to confirm the decedent was divorced from the respondent, Donna Gagliano, and to further order the respondent to turn over all assets duly belonging to the estate of the decedent. The movant contends the assets to be returned to the estate include proceeds from the Federal Employees Group Death Benefit, Federal Employees Life Insurance Policy, a Federal Employees Thrift Savings Plan, hereinafter referred to as TSI] and certain personal items as set forth in the . The respondent offers a myriad of opposing arguments which will be discussed below."], "id": "f2710ff2-850d-4ac4-81de-8d7a28ba5051", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Applying Cesnalis to the facts in this case, we conclude that husband and wife expressed their agreement to waive the *565section 4337 termination *1203provision by choosing not to check the applicable box on form SB-12035.7 By holding that no particular words are required to waive section 4337, Cesnalis impliedly acknowledges the use of Judicial Council forms, or local court forms, is sufficient to set forth the terms of the parties' . When using such forms, the parties check the boxes next to the applicable terms expressly stated; section 4337 does not suggest that any greater specificity is required. Thus, the trial court erred in finding otherwise."], "id": "f4d48e18-7fff-4204-9a84-4d128feffbe6", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["The parties to this appeal are the first (respondent Amy Ju Wong) and second *468(appellant Elizabeth Wong) wives of Wallace Loy Tim Wong, who *1052died in 2010. A between Wallace and respondent was entered as a judgment in 1996. Respondent contends that the 1996 judgment requires appellant to remit to respondent a portion of the proceeds from the sale of trust assets that occurred after the death of Wallace."], "id": "61648ffc-8767-42da-874e-ffb43face8d2", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["The second claim, also filed May 7, 2008, is for the return of \u201cparts of a Gypsy wagon\u201d and \u201csculpture of the head of an Indian.\u201d Lily testified at her deposition that these items were purchased by decedent\u2019s mother, Jean McLaughlin, as a gift. Lily alleged these items belonged to her, but were being held by decedent at her request and for her benefit. Although she admitted neither items was mentioned in the property division in the , nor were they in her possession after the divorce (deposition of Fahime \u201cLily\u201d McLaughlin, transcript at 189-232)."], "id": "cb216718-65f5-4bea-b6c3-163894b1ece8", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Lily McLaughlin testified that she knew both the arrowheads and the parts to the Gypsy wagon were in decedent\u2019s possession. The arrowheads were sent to New York in 1993 to become part of a museum decedent intended to establish (deposition transcript at 230). She agreed with establishing the museum (deposition transcript at 189-232). These items may also have been part of the inventory of The Book Sail. In the it was noted that items were stored in New York. (Exhibit G to affidavit of Robert R. Jones dated Feb. 1, 2010.)"], "id": "6b54c072-2463-409b-a663-46980450faaf", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Michelle brought a civil action in Orange County Superior Court asserting fraud, fraudulent transfer, and breach of A.P. Express, LLC's operating agreement based on an allegation that Jeffery was attempting to reduce Michelle's \"share of the former community estate\" with \"[t]he end result ... that Michelle ... received substantially less from the .\" Michelle asserted the two fraud claims against Jeffery, Shantal, and Hand Air Express, LLC. She asserted the breach of contract claim against Jeffery."], "id": "3679bcaa-01a8-4f1c-8003-215bb69d6463", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Decedent died domiciled in Endicott, New York on June 30, 2005. His will was admitted to probate by this court on August 29, 2007. John and Fahime \u201cLily\u201d McLaughlin were divorced in California on November 18, 2002 and their was incorporated in the divorce decree. (Exhibits F, G to affidavit of Robert Jones, Esq. dated Feb. 1, 2010.) Lily McLaughlin is and was always domiciled in Villa Park, California. Exhibit A to the marital settlement agreement provides that John McLaughlin shall receive \u201c[a]ll stock, fixtures, inventory, *302furnishings associated with the business known as \u2018The Book Sail,\u2019 located within the store premises, storage units and stored at the New York properties.\u201d The Book Sail was a store operated by decedent dealing in movie memorabilia, artworks, books and collectibles."], "id": "845af884-51d4-4af2-a320-39c358387740", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Another part of the claim is for $10,990.07 that respondent paid on a credit card on June 17, 2003. (Exhibit C to Lily Me*304Laughlin affidavit dated Mar. 5, 2010.) In her deposition testimony, Lily was unable to say who made the charges on the credit card or what they were for. (Deposition transcript at 167-172.) Inasmuch as this debt was not listed as chargeable to decedent in the between the parties dated November 18, 2002 (exhibit A to affidavit of John M. Thomas dated July 14, 2008), it is unclear if this is even an obligation of decedent\u2019s. Assuming it was his obligation, the liability accrued on June 17, 2003 or at the latest on June 30, 2005, when he died without making payment."], "id": "42f418ef-feab-44c5-a382-b809df5fc4ee", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["complex timeshare regarding the physical custody of each child. Under the timeshare, the oldest 3 children are in Aaron's custody approximately 90 percent of the time, while the younger 4 children are in Tracy's custody approximately 95 percent of the time. The agreement indicates that both parties will make efforts to have the minor children spend more time with the other parent. Although the timeshare does not meet the at-least-40- percent-physical-custody standard for joint physical custody, the parties agreed to joint physical custody of the children, regardless. In June 2019, after the parties resolved custody, they stipulated to a (MSA), which provides terms regarding alimony, income, and child support. Pursuant to the MSA, Aaron owes Tracy $1,138 per month per child, the presumptive maximum for child support at the time, for the four youngest children and $569 per month for one of the older children. The MSA further provides that the prevailing party in litigation concerning the terms and conditions of the MSA or a breach of the MSA is entitled to attorney fees and costs. Roughly eight months later, Aaron filed a \"Motion to Confirm De Facto Physical Custody Arrangement of Children.\" In it, he requested that the court modify the custody order to reflect that he had primary physical custody of the three oldest children, while Tracy had primary physical custody of the four youngest children. He further requested the court to modify the child-support obligations because of the actual physical custody timeshare as well as an increase in Tracy's monthly income from $0 to $6,018.67. Tracy opposed, arguing that their global settlement did not warrant modification, as it reflected what the parties contemplated and stipulated to in court, such that there were no changed circumstances. As"], "id": "b623d9bd-8f7b-44ed-a849-c4e8ab6d556f", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["Actually, the place of injury is New York since the chattels were lawfully located in New York, either pursuant to the transfer of The Book Sail inventory in exhibit A of the or by Lily\u2019s admitted agreement that *308they were in New York to be used in establishing the museum. (Deposition transcript at 192-232.) The cause of action for recovery of the chattels only accrued on the filing of the claim on May 7, 2008 and the denial of the claim by the administrator c.t.a."], "id": "1629aafa-767b-47c7-8a72-12a6d56eeac3", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["About four years later, on February 9, 2016, Michelle filed a civil lawsuit against Jeffery, Shantal, and Hand Air Express, LLC in the Orange County Superior Court. Michelle asserted causes of action for actual intent to defraud and constructive fraudulent transfer against all three defendants, and breach *434of A.P. Express, LLC's operating agreement against Jeffery. Michelle alleged, \"In an effort to reduce the assets of the AP companies in anticipation of reaching a final divorce based on a , defendant Jeff Pont with the assistance of defendant Shantal Pont began transferring AP assets, money and customer accounts to Shantal Pont as the CEO for Hand Air Express, LLC.\""], "id": "9e36dc90-0c9c-4e30-a02d-01d093a587f4", "sub_label": "US_Terminology"} {"obj_label": "marital settlement agreement", "legal_topic": "Family Law", "masked_sentences": ["In In re A.L. (2014) 224 Cal.App.4th 354, 168 Cal.Rptr.3d 589, the Court of Appeal struck down a blanket order applicable to the Los Angeles dependency courts concerning the admission *789of the public to juvenile court hearings because the order conflicted with the Welfare and Institutions Code and the California Rules of Court. ( Id. at pp. 363-368, 168 Cal.Rptr.3d 589.) Similarly, the Court of Appeal ruled that a local rule cannot override state law setting the date on which the time period for filing a peremptory challenge to a judge commences. ( Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463, 1469-1471, 136 Cal.Rptr.3d 544.) The Courts of Appeal have invalidated local rules that: established an expedited procedure for summary judgment that shortened the statutorily prescribed minimum notice period and altered the standards for production of evidence for summary judgment motions ( Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 652-655, 40 Cal.Rptr.3d 501 ); required a joint statement of disputed and undisputed facts in conjunction with summary judgment motions that conflicted with the statutory requirement of separate statements ( Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1158, 57 Cal.Rptr.2d 200 ( Kalivas )); dispensed with the Code of Civil Procedure's requirement that the moving party meet its initial burden of proof when moving for summary judgment and permitted trial courts to grant summary judgment based solely on the absence of opposition ( Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1084-1087, 94 Cal.Rptr.2d 575 ); imposed requirements on a beyond those required by the Evidence Code and the Code of Civil Procedure ( In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 894-900, 163 Cal.Rptr.3d 551 ); and required a party to file a particular form to support a request for attorney fees and costs that conflicted with the California Rules of Court ( In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 167, 166 Cal.Rptr.3d 818 ). Local rules that conflict with state law are unenforceable: for instance, trial courts may not refuse to file complaints that *503comply with state requirements because they fail to comply with a local rule ( Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1279-1282, 80 Cal.Rptr.2d 601 ), nor may they delay filing arbitration awards on the basis of a local court practice when that practice conflicts with state law requiring documents to be filed on the date they are received by the court clerk ( Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1367-1372, 34 Cal.Rptr.2d 214 )."], "id": "c51cc633-295b-49dd-ad76-a17f19803ed9", "sub_label": "US_Terminology"} {"obj_label": "Marital Settlement Agreement", "legal_topic": "Family Law", "masked_sentences": ["Finally, even if his maintenance was subject to modification for unconscionability, Phillip has failed to establish grounds sufficient to warrant such relief. In its contempt order, the family court found that Phillip's bankruptcy and subsequent diminishment in his income were \"designed to avoid his responsibilities under the ....\" The court was not convinced that Phillip is unable to earn enough to pay his maintenance obligations, but that he deliberately rendered himself insolvent to escape those obligations. It is significant to note that Phillip does not challenge the sufficiency of the evidence supporting these findings. Thus, in any event, we must conclude that Phillip failed to state sufficient grounds to set aside the Agreement based upon unconscionability."], "id": "441a551e-417b-46c3-984e-f280f41e3fc8", "sub_label": "US_Terminology"} {"obj_label": "emancipation of minors", "legal_topic": "Family Law", "masked_sentences": ["E.g. , Tex. Const. of 1869, art. III, \u00a7 25 (\"The Legislature shall not authorize, by private or special law, the sale or conveyance of any real estate belonging to any person, or vacate or alter any road laid out by legal authority, or any street in any city of village, or in any recorded town plat, but shall provide for the same by general laws.\"); id. art. XII, \u00a7 13 (\"General laws, regulating the adoption of children, , and the granting of divorces, shall be made; but no special law shall be enacting relating to particular or individual cases.\"); Tex. Const. of 1869, art. XII, \u00a7 40 (as amended, 1873) (providing that the Legislature \"shall not pass local or special laws\" in specified enumerated cases, and in \"all other cases where a general law can be made applicable, no special law shall be enacted\")."], "id": "5abad4fe-4846-41b9-8c96-468fe87da4c9", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["13 See INS v. Aguirre-Aguirre, 526 U.S. 415, 427\u201328 (1999) (guidance issued by the Office of the UN High Commissioner for Refugees regarding the interpretation of the Convention \u201cmay be a useful interpretative aid, but it is not binding on the Attorney General, the [Board of Immigration Appeals], or United States courts\u201d); Observations of the United States of America on the Human Rights Committee\u2019s Draft General Comment 35: Article 9, 2014 Digest of United States Practice in International Law ch. 6, \u00a7 A(2)(b), at 179 (\u201cThe United States believes the views of the Committee should be carefully considered by the States Parties. Nevertheless, they are neither primary nor authoritative sources of law.\u201d)."], "id": "9c6b0924-3b74-4ad7-ae2d-1c0028e2f45d", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["\u201c \u2018 The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. * * * \u201c 6 [D]ue process,\u2019 unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.\u201d It is \u201c compounded of history, reason, the past course of decisions * * Joint Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 162-163, 71 S. Ct. 624, 95 L. Ed. 817 (concurring opinion).\u2019 Cafeteria and *572Restaurant Workers Union v. McElroy, supra, 367 U. S. at 895, 81 S. Ct. at 1748."], "id": "bddad7eb-b7ea-4fda-94b9-d46594ff8fd7", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Counsel for the parties herein in their very excellent and thorough briefs have referred us to no case in the New York courts directly in point with the case at bar, and the court after a considerable search has found none. However, in the noteworthy case, Matter of Barter (30 Cal. 2d 549, 551-552) decided by the Supreme Court of the State of California in 1947, the court in construing a will which left the residue of the estate \u201c to the British Government to be administered & applied for the benefit of British children or similar purpose \u201d, in a well-reasoned opinion, held that a valid trust had been created by the will, that the British Government, being a foreign sovereign State was incapacitated from acting as trustee, and confirmed the designation of the Combined British Charitable Fund, a California corporation, as trustee. This case construing a will whose provisions are strikingly similar to the provisions of the will in the case at bar, while not controlling on the courts of New York State, is worthy of consideration of the court in the determination of the present case."], "id": "4e26306e-d19d-468a-b060-c471efc101e4", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["probative evidence on the record considered as a whole.\u2019\u201d Ade- femi v. Ashcroft, 386 F.3d 1022, 1026\u201327 (11th Cir. 2004) (en banc). Credibility determinations constitute fact findings that are reviewed under this deferential standard. D-Muhumed v. U.S. Att\u2019y Gen., 388 F.3d 814, 818 (11th Cir. 2004). An applicant may obtain asylum if he is a \u201c.\u201d Forgue v. U.S. Att\u2019y Gen., 401 F.3d 1282, 1286\u201387 (11th Cir. 2005). To qualify as a refugee, he must be unable or unwilling to return to his country of nationality \u201cbecause of persecution or a well- founded fear of persecution on account of\u201d a protected ground. 8 U.S.C. \u00a7 1101(a)(42). These grounds include, among other things, political opinion and membership in a particular social group. Id. The asylum applicant bears the burden of proving statutory \u201cref- ugee\u201d status with specific and credible evidence. Forgue, 401 F.3d at 1286\u201387. An adverse credibility determination alone \u201cmay be suffi- cient\u201d to support the denial of relief. Id. at 1287. The IJ, however, must still consider all the evidence of persecution the asylum ap- plicant produced. Id. If the applicant produces no evidence in ad- dition to his testimony, the IJ may rely solely on an adverse credi- bility determination to deny the asylum application; if there is ad- ditional testimony, the adverse credibility determination will not alone be sufficient. Id. \u201cThe IJ must offer specific, cogent reasons for an adverse credibility finding.\u201d Id. (cleaned up). A credibility determination may not be overturned unless the record compels it. Id. And the applicant shoulders the burden of showing that an USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 6 of 11"], "id": "9f769ae5-9f56-4b7a-80e7-029b87ee49f6", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Petitioner contends that her status is no longer that of an alien and thus no longer subject to the provisions of the said Relief Act; that she need not show \u201c compelling necessity \u201d for personal occupancy in a two-family house under section 55 of the State Rent and Eviction Regulations; that she has paid more than 20% of the purchase price or the assessed value of the premises, required by subdivision 4 of section 55 of such regulations, and finally, that she has made application in good faith to recover possession of the housing accommodation. The Administrator found that the petitioner and her relatives violated the Refugee Relief Act."], "id": "02cb0f9e-2d5b-4c8a-ad91-b8cfd14e9314", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["At this point, it will not be amiss to make the observation that in this present day and age of abnormal world-wide stress, it cannot be gainsaid that inter-country adoptions, when properly supervised by official authority, are deserving of laudatory commendation. That recognition of this view on the subject of adoptions was publicly given by high authority, is best attested by the passage in Congress of emergency legislation for the admittance of 100,000 immigrants a year for two years following the sending of a letter addressed to Congress by President Eisenhower on April 22, 1953, in which he had urged the enactment of such legislation to meet a then existing international emergency. This step taken by Congress resulted thereafter in the adoption of a statute which, in time, became popularly known as the \u2018 \u2018 Relief Act of 1953. \u201d (67 U. S. Stat. 400.) And, a vital part of this bill of enactment became known as the \u201c Orphan Program.\u201d Then, in September, 1957, Congress passed an amendment to the Immigration and Nationality Act, recorded as Act September 11, 1957 (71 U. S. Stat. *831639; U. S. Code, tit. 8, \u00a7 1205). Its aim was the granting of a non-quota immigration status to alien children under 14 years of age adopted by United States citizens abroad or those immigrated to this country for adoption here. In this legislation, Congress declared, inter alia, that an \u2018 \u2018 eligible orphan \u2019 \u2019 was one who was lawfully adopted abroad by a United States citizen and his spouse."], "id": "7563cdcb-26b1-46e9-839b-d01914f2b369", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Inasmuch as I am basing my decision entirely upon the question whether the evidence adduced before the Grand Jury was legally sufficient to Avarrant the direction for the filing of these informations pursuant to the applicable penal laws of this State, there is no need for a discussion of the point whether the supremacy clause of the United States Constitution, the \u201c Federal Orphan Program \u2019 \u2019 embodied in the \u2018 \u2018 Relief Act of 1953 \u201d (67 U. S. Stat. 400) and the amendments thereto, and any other statutes enacted thereafter, affect the validity of the New York State statutes in their regulation of the manner and the procedure by which children may be adopted."], "id": "c3d9ac12-6ea0-4f77-8539-545e15e0176c", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["See, e.g., CRS Immigration Report at 20\u201323; Cong. Research Serv., ED206779, Review of U.S. Resettlement Programs and Policies at 9, 12\u201314 (1980). And in 1990, INS implemented a \u201cFamily Fairness\u201d program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (\u201cIRCA\u201d), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (\u201cFamily Fairness Memorandum\u201d); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of deferred action: 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (\u201cVAWA\u201d), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immi- gration status, without having to rely on their abusive family members to petition on their behalf. Id. \u00a7 40701(a) (codified as amended at 8 U.S.C. \u00a7 1154(a)(1)(A)(iii)\u2013(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, \u201con a case-by-case basis, whether to place the alien in deferred action status\u201d while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that \u201c[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.\u201d Id. But because \u201c[i]n an unusual case, there may be factors present that would militate against deferred action,\u201d the agency instructed officers that requests for deferred action should still \u201creceive individual scrutiny.\u201d Id. In 2000, INS report- ed to Congress that, because of this program, no approved VAWA self- petitioner had been removed from the country. See Battered Women"], "id": "27323af4-c20e-48f2-9390-1a8a0126abef", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Since the shortage in housing accommodations continues to constitute a serious public emergency, it seems presumptuous for the petitioner and her sponsors, in so short a period of petitioner\u2019s residence, to attempt displacement of the tenant from the housing accommodation which they guaranteed would be safe from such an attempt. The requirements of the Relief Act against displacement of housing accommodations is a statutory condition for entry into this country. Its violation forms the basis of the Administrator\u2019s apparent determination that petitioner makes this application in bad faith. To say that the Administrator may not consider such violation because the regulations are silent as to it, is to imply that he had no power to issue and enforce Bulletin No. 185 having reference to the Federal law. But this overlooks such power granted to him by section 4 of the State Residential Rent Law (L. 1946, ch. 274, *534as amd.). Moreover, the Administrator\u2019s co-operation with the Federal Government as to the purpose of the rent control act is specifically mandated (State Residential Rent Law, \u00a7 7; Matter of Archer v. Abrams, 145 N. Y. S. 2d 230)."], "id": "b6ffb3c4-27e0-48c5-834c-1f5d1f891902", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: Manjinder Kumar seeks review of the order of the Board of Immigration Appeals (\u201cBIA\u201d) dismissing his appeal of the Immigra- tion Judge\u2019s (\u201cIJ\u201d) denial of his application for cancellation of re- moval, pursuant to the Immigration and Nationality Act (\u201cINA\u201d), 8 U.S.C. \u00a7 1229b(b). After careful review, we deny his petition. I. Kumar, a native and citizen of India, entered the United States in 2000 as a . In 2004, his status was adjusted to lawful permanent resident. In 2018, the Department of Homeland Secu- rity issued Kumar a Notice to Appear (\u201cNTA\u201d), charging him as removable under the INA. The NTA alleged that Kumar had been convicted in March 2018 of family violence battery, in violation of O.C.G.A. \u00a7 16-5-23.1, and was sentenced to 12 months\u2019 imprison- ment. Based on this conviction, the NTA alleged that Kumar was removable under 8 U.S.C. \u00a7 1227(a)(2)(A)(iii), because he was con- victed of an aggravated felony; under 8 U.S.C. \u00a7 1227(a)(2)(E)(i), because he was convicted of a crime of domestic violence; and un- der 8 U.S.C. \u00a7 1227(a)(2)(E)(ii), because he violated a protective or- der under which he was enjoined. Kumar moved to terminate his removal proceedings, admit- ting that he had been convicted of violating Georgia law but argu- ing that his conviction did not render him removable. He argued USCA11 Case: 21-11619 Date Filed: 01/20/2022 Page: 3 of 9"], "id": "b7e8c5a8-675a-4409-846e-d9b31cef2cd5", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["He petitions for review of the BIA\u2019s final decision. Relying for the most part on decisions from other circuits, he argues the BIA erred in ruling that he failed to demonstrate past persecution and a well-founded fear of future persecution, making him eligible for exercise of the Attorney General\u2019s discretion under the Immigration and Nationality Act (INA) to grant asylum to a noncitizen who qualifies as a . See 8 U.S.C. \u00a7 1158(b)(1)."], "id": "92244eb9-4fb5-48e5-a95a-f786215ccdfa", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Fadiga v. Att\u2019y Gen., 488 F.3d 142, 160 (3d Cir. 2007) (quoting United States v. Charleswell, 456 F.3d 347, 361 (2006)). Id. at 154. A.R. 6. Earlier, during the July 17, 2020 hearing, Kamara testified that the only documents that he provided to the U.S. Government as part of his packet were a high school ID and a paper from the embassy of the Republic of The Gambia saying that he is from Sierra Leone. A.R. 159\u201361. Neither of these documents are necessary to support his report of past harm, and he does not mention these documents in his briefs to either the BIA or this Court."], "id": "cb64918e-86b9-410e-8eb1-dcc15c3589f8", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Our courts have long held that the right of a stockholder to a voice in the management of a corporation is a property right and vested interest entitled to protection under the Constitution (Page v American & British Mfg. Co., 129 App Div 346). These petitioners who are shareholders of MCU, and have held office therein, and developed a reputation in connection therewith, are constitutionally protected with the requirements of due process before any governmental action may be undertaken to cause an abridgment or deprivation of their right to seek continuation. Our Court of Appeals has determined that any person whose property rights are adversely to be affected by governmental action is entitled to the elementary due process, right of notice of such pending action and any charges to be leveled, and a hearing affording an opportunity to confront and refute such charges. This right has been implied by law, irrespective of whether a particular statute, or regulation so provides. (Matter of Hecht v Monaghan, 307 NY 461, 468; Bernard-Charles, Inc. v Cuomo, 58 AD2d 535.) This constitutional right to confrontation and due process has consistently been articulated by the United States Supreme Court and our State courts (Joint Anti-Fascist Committee v McGrath, 341 US 123, 137, 138; Board of Regents v *571Roth, 408 US 564; Matter of Chant v Department of State of State of N. Y., 60 AD2d 535, 536; Matter of Roy Anthony A., 59 AD2d 662)."], "id": "1d1f6d44-376d-4a05-a638-76f9d9c1772b", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": [". According to the memorandum, submitted by the Attorney-General, New York is only one of 21 States offering general assistance in addition to the AFDC programs, and only five States offer general assistance in an amount greater than the State of New York. It should be noted that an exemption to the durational residency requirement was extended to \"any person entitled to federally funded cash assistance under Title IV of the Immigration Nationality Act.\u201d (Social Services Law \u00a7 158 [f].)"], "id": "e4c45b2f-6ab5-4f68-a811-707a8e544071", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["The August 12, 2016 last minute information from DCFS indicated that the social worker is \"very good at using his *752[social worker's] cellphone to translate English to Burmese.\" Father did not have a cellphone, but the social worker had recently reminded father to call the random drug testing number by communicating with a friend of father's. Father had tested negative on one date, but had three \" 'No Shows,' \" which DCFS attributed to failures to communicate.3 Other than this limited success with drug testing, DCFS reported that it had been \"unable to locate any treatment options for father that are given in the Burmese language.\" *621The adjudication hearing was continued for another month in an effort to provide notice to mother, who was still living in the camp. Father's counsel represented to the court that father had difficulties understanding when he was to randomly test. He requested that father's alcohol testing be changed from random-which required phoning in and listening for direction-to on-demand-which was at the social worker's direction. The trial court agreed, and made that its order."], "id": "ac6c0d13-0e8a-4da3-9379-1f456ff9f586", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Applying the above standards, the procedures set forth in CPL 100.40 (2) for determining the sufficiency of simplified in-formations do not operate to deprive defendants of their due process rights. The statute incorporates the \"guarantee\u201d of a supporting deposition upon demand (see, People v Zagorsky, 73 Misc 2d 420; People v De Feo, 77 Misc 2d 523), a procedure which provides the defendant with fair notice of the conduct upon which the People seek prosecution (Mathews v Eldridge, 424 US 319; Joint Anti-Facist Comm. v McGrath, 341 US 123; see also, Greene v Lindsey, 456 US 444). Although, as defendant notes, the requirements for facial sufficiency of a simplified information are less than those for facial sufficiency of an information, those requirements are sufficient to insure that the defendant is adequately informed of the specific conduct to be prosecuted (People v Keindl, 68 NY2d 410, 416; People v Morris, 61 NY2d 290, 293; People v Iannone, 45 NY2d 589, 594; People v Bogdanoff, 254 NY 16, 23). Therefore, the mere fact that CPL 100.40 incorporates different standards for the facial sufficiency of informations and simplified informations does not, without more, violate defendant\u2019s right to due process."], "id": "ae1c41ea-13e4-4c1a-a891-b856325d2bf6", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Finally, and most persuasive, is the report of a Senate Committee on the Judiciary of April 20, 1950 (Senate Report No. 1515, 81st Cong., 2d Sess.). In discussing whether to give consuls authority to require a bond to be posted, the committee stated that the usual sponsor\u2019s affidavits are moral obligations only and are not enforeible as contracts. There are many similar declarations of policy and interpretation with regard to later special statutes on immigration, notably the displaced persons and relief laws. These are not deemed of value on this application because the acts in question were emergency measures designed in the particular circumstances affected, to relieve against the rigors of the immigration laws. *406An interpretation by the executive departments of the duties of sponsorship under these laws is of no value in determining the duty under the law of 1924. The report of the Senate Committee above referred to speaks in connection with the law of 1924. Hence it shows what was reported to the Senate and presumably what they understood that law to mean. If the consuls had no authority to require a contractual promise, it was because the Congress had given them none and the understanding of Congress must be the controlling interpretation."], "id": "af459848-8ef3-45be-985e-51ce0c3af17d", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Mercantile Nat. Bank v. Langdeau (371 U. S. 555) is decisive. There, the issue was whether a Federal statute (U. S. Code, *449tit. 12, \u00a7 94), rather than a Texas statute, determined in which State court a national bank may be sued (p. 558) and the court concluded \u201c that national banks may be sued only in those state courts in the county where the banks are located \u201d (p. 561) and that the Federal \u2018 \u2018 statute must be given a mandatory reading \u2019 \u2019 (p. 562). (See, also, Rev. Stat., \u00a7 5198 [1878], U. S. Code, tit. 12, \u00a7 94; Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 145; Buffum v. Chase Nat. Bank of City of N. Y., 192 F. 2d 58, 60, cert. den. 342 U. S. 944; Leonardi v. Chase Nat. Bank of City of N. Y., 81 F. 2d 19, 22, cert. den. 298 U. S. 677; International Organization v. Bank of America, 86 F. Supp. 884; Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 312; Crofoot v. Giannini, 196 Misc. 213; Raiola v. Los Angeles First Nat. Trust & Sav. Bank, 133 Misc. 630.) Motion granted."], "id": "1fd812c6-808a-48d3-b02c-857ac1b4c7db", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Sometime in 2005, Mother left the children in the care of her mother in El Salvador and unlawfully entered the United States. She settled in Saline County, Missouri. Ten years later, in April 2015, Son unlawfully entered the country to reunify with Mother. Son was apprehended by immigration officials and placed in the custody of the Department of Health and Human Services' Office of Resettlement. In May 2015, Son was released into Mother's custody pending disposition of his immigration case."], "id": "ed71c505-5f0c-4bab-a18d-c0ff3546a490", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Petitioner complains of a determination by the Rent Administrator which denies her application for a certificate of eviction of a tenant occupying the upper four-room apartment of a two-family house in which petitioner owns a half interest. Petitioner entered the country in October, 1955, when she became bound by the provisions of the Relief Act of 1953 (U. S. Code, tit. 50, Appendix, \u00a7 1971e), which provides for assurance by the alien and her sponsors that she will be housed in \u201c housing \u201d accommodations \u201c without displacing some other person from such housing.\u201d Thus legally restricted as to her housing needs, petitioner came to live with the sponsoring-relatives in the five-room lower apartment of the subject premises owned by the latter, without any then apparent threat to the tenant. In February, 1957, a year and a half after' her *533arrival, petitioner purchased her one-half interest from such sponsoring relatives. On the strength of that transaction petitioner and the relatives who vouched for her accommodations seek to oust the tenant of the upper apartment for occupancy by the petitioner and her brother."], "id": "e94204aa-4db4-4e25-9be1-ad747eafe891", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["As a general rule, Social Services Law \u00a7 122 does not link eligibility to PRUCOL status, but provides that eligibility depends on whether the alien is a \u201cqualified alien\u201d under the PRWORA and whether the qualified alien entered the United States on or after August 22, 1996. The PRWORA defines a \u201cqualified alien\u201d in substance as follows: (1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act (8 USC \u00a7 1101 et seq.); (2) an alien who is granted asylum under section 208 of such Act (8 USC \u00a7 1158); (3) a who is admitted to the United States under section 207 of such Act (8 USC \u00a7 1157); (4) an alien who is paroled into the United States under section 212 (d) (5) of such Act for a period of at least one year (8 USC \u00a7 1182 [d] [5]); (5) an alien whose deportation is being withheld under section 243 (h) of such Act (8 USC \u00a7 1253 [h]); (6) an alien who is granted conditional entry pursuant to section 203 (a) (7) (8 USC \u00a7 1153 [a] [7]) of such Act as in effect prior to April 1, 1980; (7) an alien who is a Cuban and Haitian entrant; or (8) certain aliens who have been battered or subjected to extreme cruelty. (8 USC \u00a7 1641 [b], [c].) Social Services Law \u00a7 122 incorporates the definition of qualified alien by reference (Social Services Law \u00a7 122 [1] [b] [i])."], "id": "5a21274b-01e7-423d-83f2-2cf0a176bf48", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Judicial review of any determination made under [\u00a7 1225(b)(1)] is available in habeas corpus proceedings, but shall be limited to determinations of\u2014 (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under [\u00a7 1225(b)(1)], and (C) whether the petitioner can prove . . . that the petitioner is [a lawful permanent resident], has been admitted as a . . . , or has been granted asylum . . . ."], "id": "f68d8045-3e39-486d-8256-ee368c139319", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["*752Although determining whether a particular individual is actively \"involved [in the gang] and the level of involvement is not a simple matter,\" here the determination was made unilaterally by the SCDA, or, more accurately, by a single gang investigator within the SCDA, without providing notice and an opportunity to be heard to the affected individual. ( Rackauckas , supra , 734 F.3d at p. 1046 ; Valdez , supra , 58 Cal.App.4th at pp. 506-507, 68 Cal.Rptr.2d 135.) As the SCDA alone made the determination that an individual could properly be subjected to the injunction's wide-ranging restrictions, the determination was rendered opaque and unreviewable at precisely the same time that the threshold for prosecution of that person was drastically lowered by virtue of approval of the injunction itself. (See Englebrecht , supra , 88 Cal.App.4th at pp. 1255-1256, 106 Cal.Rptr.2d 738 [noting that because a gang injunction restricts lawful, commonplace activity, it is an extraordinary remedy]; also see Am.-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995) 70 F.3d 1045, 1069 (quoting Joint Anti-Fascist Comm. v. McGrath (1951) 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (Frankfurter, J. concurring)) [\" 'fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights' \"].)"], "id": "303abe87-cf2c-4a42-b3b5-d3d2ba809495", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Implicit in the theory of parole is the presumption that the parolee is entitled to retain his liberty as long as he substantially adheres to the conditions upon which his parole is predicated. Whether the requirements of due process apply to parole revocations depends on the extent to which the individual will \"suffer grievous loss\u201d (Joint Anti-Fascist Comm. v Megrath, 341 US 123, 168 [1951]). In Morrissey (supra), the court found that \"the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss\u2019 on the parolee\u201d (supra, at p 482). Thus, the parolee\u2019s right to liberty is rendered within the protection of the 14th Amendment."], "id": "79295f0c-8874-4886-820d-684274b3f08a", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church (\u201cEthiopian Church\u201d) owns property on Welch Road in Nashville, Tennessee. Four buildings sit on the Welch Road property: a building used as a sanctuary; a fellowship hall; a residence for visiting priests and deacons; and a structure used for storage and, on occasion, for housing. The sanctuary building and fellowship hall were located next to each other, while the other buildings were off to either side."], "id": "cab9283b-b103-4b3a-88ee-0d8b99f6f15d", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Pending determination of his illegal stay in Canada, the defendant seeks status in that country. He has not personally appeared in this court on this application. He has chosen to remain in Canada during these proceedings to assist his ailing wife, to avoid arrest by New York authorities should he cross the border, and to avoid the difficulty he would experience should he try to re-enter Canada. However, he assures us that if this court rules against him he will r\u00e9turn to New York and serve out his sentence."], "id": "bdc13a55-ca18-4fd1-81c7-cc8e10dad0fb", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["The facts warrant that determination, although, in my view, subdivision 1 rather than subdivision 4 of section 55 of the regulations seems additionally applicable. When petitioner purchased her half interest she was in the country for a year and a half. She may, in a sense, have ceased to be an alien and to have acquired many rights and privileges enjoyed by aliens of long residence and by citizens as well; but she remained bound by the Relief Act which forbade her and her sponsors to displace the tenant. This was her concrete undertaking. Nowhere in the applicable statute is there any intimation that following any specific period of residence shall the refugee be relieved of that obligation. To contend that the obligation ceased any time after the giving of the assurances and the entry by the alien is quite absurd."], "id": "be3f4bff-bf5d-4e9b-a891-355285d6ab9d", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["The trust company had further stated in a report filed in tMs proceeding in respect of the source and status of the *942securities and moneys on deposit, that as a consequence of the influx of so-called \u201c claims,\u201d following the German occupation of European countries, it adopted a new method of entries upon its books. It said that the practice was adopted merely as a precautionary measure against overlooking the adverse claim pending a legal or other determination as to its validity. In accordance with that method, when a claim was asserted as to the securities here involved, the trust company placed them in a subaccount designated \u201c DeTwentsche Bank, The Hague, Claimant: Emanuel Kahn.\u201d"], "id": "4763bd03-285c-410a-856d-11b9a427cf28", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["in the LDP, his corroborative evidence was not reliable, and his de- meanor was unsure and nervous, and therefore, he was only par- tially credible. 8 U.S.C. \u00a7 1158(b)(1)(B)(iii); Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (stating we view the evidence in the light most favorable to the agency\u2019s decision and draw all reasonable inferences in favor of that decision); Kueviakoe v. U.S. Att\u2019y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009) (explaining under the substantial evidence test, a decision \u201ccan be reversed only if the evidence \u2018compels\u2019 a reasonable fact finder to find oth- erwise\u201d (quotation marks omitted)). B. Persecution The Attorney General may grant asylum to an alien who meets the definition of a \u201c.\u201d 8 U.S.C. \u00a7 1158(b)(1)(A). A refugee is defined as\u2014 any person who is outside any country of such per- son\u2019s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail him- self or herself of the protection of, that country be- cause of persecution or a well-founded fear of perse- cution on account of race, religion, nationality, mem- bership in a particular social group, or political opin- ion."], "id": "d612901e-f568-47d5-9406-6d2a6afbd033", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["In mitigation, the respondent asks the Court to consider the following circumstances: his relatively young age; his cooperation with the Grievance Committee; his sincere remorse; the fact that he has learned from his mistake and presents no risk of engaging in misconduct in the future; the fact that he overcame his personal and family circumstances as a from Ukraine; and his excellent reputation as an honest and ethical attorney."], "id": "3e780b98-71fa-4d43-aab6-d31718eb2fe0", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Any person, including an alien, should be allowed to change his name in good faith as he desires, provided such change would not violate any statutory provision or overriding public policy. No public policy will be served by requiring this petitioner to wait until six months after she becomes a citizen *1008before she may apply for a name change. Most refugees enter our land with some measure of confidence that the future will somehow be \"a better one\u201d in this great country. To be fettered by an unwanted, even hated, surname would most substantially interfere with the ability of this to experience the legitimate blessings of freedom. Particular is this true where no statutory proscription exists to deny petitioner what appears to be a lifelong desire."], "id": "59cee6c8-8508-4447-8635-5b5864196cf3", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["A. The Standard of Review. The INA defines as a noncitizen who is unable or unwilling to return to his home country \u201cbecause of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.\u201d 8 U.S.C. \u00a7 1101(a)(42)(A). \u201cPersecution is the infliction or threat of death, torture, or injury to one\u2019s person or freedom on account of a statutory ground such as religion.\u201d Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir. 2004) (quotation omitted). At the outset, He argues that we review the BIA\u2019s persecution determinations de novo because they are questions of law. Though there are circuit court decisions supporting this contention, it is contrary to controlling Supreme Court precedents."], "id": "8ca087c3-b5d6-43b4-a2f6-11532f5960fb", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["On June 20, 2016, DCFS completed its report for the upcoming jurisdiction/disposition hearing. The report contained further evidence of father's drinking history, including uncle's statement that father had been abusing alcohol since he was a teenager. It also included an allegation by another relative that father's drinking in the camp led to an act of domestic violence in which father kicked then-pregnant mother so hard she nearly died and the baby was born early."], "id": "bb6b96bc-9cb6-4b89-9026-8869087b6181", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["UNSC, which determined in Resolution 1973 that the \u201csituation\u201d in Libya \u201cconstitute[d] a threat to international peace and security.\u201d S.C. Res. 1973. As this Office has previously observed, \u201c[t]he President is entitled to rely on\u201d such UNSC findings \u201cin making his determination that the interests of the United States justify providing the military assistance that [the UNSC resolu- tion] calls for.\u201d Military Forces in Somalia, 16 Op. O.L.C. at 12. 4 Qadhafi\u2019s actions not only endangered regional stability by increasing flows and creating a humanitarian crisis, but, if unchecked, also could have encouraged the repression of other democratic uprisings that were part of a larger movement in the Middle East, thereby further un- dermining United States foreign policy goals in the region. Against the background of widespread popular unrest in the region, events in Libya formed \u201cjust one more chapter in the change that is unfolding across the Middle East and North Africa.\u201d March 18, 2011 Remarks. Qadhafi\u2019s campaign of violence against his own country\u2019s citizens thus might have set an example for others in the region, causing \u201c[t]he democratic im- pulses that are dawning across the region [to] be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power.\u201d March 28, 2011 Address. At a minimum, a massacre in Libya could have imperiled transitions to democratic government underway in neighboring Egypt and Tunisia by driving \u201cthousands of additional refugees across Libya\u2019s borders.\u201d Id. Based on these factors, we believe the President could reasonably find a significant national security interest in preventing Libyan instability from spreading elsewhere in this critical region. The second important national interest implicated here, which rein- forces the first, is the longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security. Since at least the Korean War, the United States government has recognized that \u201c\u2018[t]he continued existence of the United Nations as an effective interna-"], "id": "928caa2e-3aef-4471-9462-e33be614bbc5", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["While seven years is usually adopted as the basis for a presumption of death yet it is not absolutely necessary that such a period should elapse. In reviewing the evidence, I find circumstances which tend to show an earlier death. There is no reasonable ground to believe the former husband of the prosecutrix was alive at the time of the Connecticut marriage. There was no reason for concealing his indentity and no information had been received from him. Furthermore, it is common knowledge that in the years 1905, 1906 and 1907, there took place in Odessa, Eussia, a series of riotous outbreaks; estates of landowners were set afire, attacks and murders of police officials and representatives of the authorities occurred. In the matter of the application for the extradition of Jan Janoff Pouren, a political , TJ. S. Commissioner Hitchcock delivered an opinion on March 30, 1909, wherein he stated that the counsel for the demanding government (Eussia) admitted that a state of revolution existed in the Eiga district. It also appeared in that case that political disturbances in other sections of the Eussian domain were of frequent occurrence and that the conflicts with the soldiers and police in which many were killed were numerous, covering about that period of time. The papers in the Pouren case, supra, show that a state of so-called rebellion existed all over the land. - These circumstances coupled with others would tend to prove that there is substantial support for the claim that the former husband of Josepha Eaczkowski was killed as she was informed."], "id": "6d490de9-fd52-429c-86e5-31b72865c241", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["\u201c * * * Warning! Members of subversive organizations may lose their United States citizenship. \u201c During this coming fall, such vitally needed legislation as the Mundt-Nixon Bill or other propositions directed against elements unfriendly to the government of the United States will go into effect. According to these, all persons who are members of subversive organizations are subject to loss of their American citizenship. According to these laws, such elements will be expatriated, considered as enemies of the State, and \u2018 shall be treated as such \\ *840\u201c We believe ourselves to be dealing in a proper manner when, without making assertions of any nature ourselves, we warn our readers against maintaining any sort of contact with the two so called Austrian organizations to be listed below. We mean the Austrian organization and the newspaper which formed a merger in January 1948 and which work together with the youth group: Austro American Council and Austro American Tribune. Whether these two as well as the Youth Group Fellowship Club are to be considered as communist or subversive, we leave to our readers to decide. Let them judge whether an organization and a paper, each having at least two members of the Board of Directors who have been put behind bars in connection with the Oerhardt Eisler case, are to be considered American or Anti-American. \u201c Those people who have their doubts as to the loyalty of these two groups will do well to remain aloof from them, to demand that their names be taken off the registers, should they already have been entered there, and keep the copy as well as the postal receipt of mailing in a safe place; \u2018 \u2018 Harmless, loyal minded Austro-Americans are at the present time being requested under the guise of innocent pretexts, such as cultural gatherings or collection of restitution claims, to join the ranks of the Austro American Council and Austro American Tribune. \u201c For example: We have before us the following circular letter: \u2018 New York, June 1948. Mr. * * * New York, N. Y. We have the honor to inform you that as a result of our efforts to secure the aid of a larger organization in pursuing Austrian restitution claims we have succeeded in winning the support of the Austro American Council. After thorough conferences in which Regierungsrat Dr. Herman Oppenheim, Dr. Victor Menschel and Jacob Herzig, secretary of the Austro American Council, took part, it was decided to begin the action under the aegis of the Austro American Council. We invite you to join the Council without delay and to get all of your acquaintances, interested, to join as well. Enclosed please find an application for membership which we ask you to fill out. Please send it with check or money order ($1.00) to Austro American Council, 13 West 106th Street, New York 25, NY. Very truly yours, Simon Jacob Wugen M. Hoffmann Fred Reiss (signed) F. Reiss. \u2019 \u2018\u2018 For our readers \u2019 further information and so that they may judge for themselves we advise: *841\u201c Regierungsrat Herman Oppenheim is, according to the list before us, sponsor of the Austro American Council. Before that he was the vice President of Mr. Ferdinand Czernin who is known to favor the cession of the Kaerntner regions to Yugoslavia. \u201c Dr. Victor Menschel is Vice President and Jacob Herzig is Secretary of the Austro American Council. \u201c Dr. Franz Goldner, a former lawyer in Wiener Neustadt, is legal advisor to these groups. \u201c Furthermore we present the following for our readers to judge: In the July 1,1948 issue of the Austro American Tribune we read as follows regarding the commencement of the prison terms of its founder and first president and of other functionaries of the merged association. \u201c \u2018 Among the ten board members of the joint Anti-Fascist Committee who were sentenced along with Howard ' Fast are Dr. Jacob Auslander, founder and first president of the Austro American Tribune, and Professor Lyman Bradley, member of our paper\u2019s Board. The management of the Austro American Tribune is proud of its connection with these courageous men.\u2019 \u201c Let it be understood. We do not intend to make converts. To the contrary. He who feels himself drawn in any way to these organizations should remain there. We are for clear differentiation. The purpose of these lines is exclusively to keep our readers, who are all loyal citizens, out of embarrassing situations * * When complainant helped organize the council he acted on the recommendation of a Count Czernin whom he had known abroad. He knew few of the other organizers. He also became a member of the board of directors of the council, knowing little of the background or the political beliefs of his fellow officers. He freely admits having made no investigation or inquiry concerning them. Indeed, though he remained an officer of the council for four years, he neither met or now knows the main body of the officers of the council. He attended no more than three meetings, of any kind, during all those years. He did not inquire into the actual use of the funds of the council. While declining to state whether he \u201c sponsored \u201d the council, he does not deny his connection therewith until a few weeks prior to the date of the publication complained of. There were persons prominent in public life who were his fellow officers, but he did not get to meet or to know them. Believing the purposes of the council to be those of culture for its members, *842assistance to Austrians abroad and pursuit of Austrian restitution claims, he never made any investigation of its actual purpose, activity or political work."], "id": "6d9be2b9-584f-4f5d-bc0f-386e324b035d", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["The plaintiff here, however, is not shown to have any connection with the Soviet government, nor to have acquired his policy from, through or under that regime. He has on the contrary been the owner and holder in his own right of both the policies sued on for many years and is in fact a from Russia residing at present in France. Besides the contracts or policies provide that Russian policyholders were to share in the general assets of the company, not merely in the profits on Russian business. They are participants in the company\u2019s earnings throughout the world. The insured is pledged as a fund for payment of his policy, not only the property of the company in Russia but \u201c all other property belonging to the company.\u201d"], "id": "e635150f-4b5d-40ea-bd59-44423d570a1c", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["True, parole is a privilege not a right. It is equally true that parole revocation proceedings place a parolee\u2019s liberty at stake. *654As such, a minimal amount of due process is owed to a parolee, and courts must ensure that such rights are not discarded (Joint Anti-Fascist Comm., 341 US at 200-201). Indeed, procedural protections of due process are warranted if an individual would be \u201ccondemned to suffer grievous loss of any kind\u201d (Joint Anti-Fascist Refugee Comm. at 168). Revocation of parole exposes a parolee to a return to prison. By all accounts, that certainly constitutes a \u201cgrievous loss\u201d particularly where the potential maximum sentence is life imprisonment."], "id": "b80c379d-7dbb-4d8d-9ab6-30c3363c34cd", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the \ufb01rst time on appeal and denied Osmani\u2019s motion to remand for additional fact\ufb01nding on the conditions in Kosovo. We \ufb01nd the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on no- tice of, or develop any record evidence to support. In denying Osmani\u2019s motion to remand, the BIA also abused its discre- tion by engaging in impermissible fact\ufb01nding. Accordingly, we grant Osmani\u2019s petition for review and remand to the BIA. I. Background Petitioner Ilir Osmani, a native of the former Yugoslavia, fled the Kosovo War and was admitted to the United States as a on June 25, 1999. Osmani was convicted for posses- sion of illegal narcotics in 2019. On December 23, 2019, shortly after his release from jail on the narcotics conviction, DHS de- tained Osmani and placed him into removal proceedings. The government sought to remove Osmani to Kosovo based on a prior conviction for aggravated felony theft, see 8 U.S.C. \u00a7 1227(a)(2)(A)(iii), commission of two or more crimes involv- ing moral turpitude, see 8 U.S.C. \u00a7 1227(a)(2)(A)(ii), and his narcotics conviction, see 8 U.S.C. \u00a7 1227(a)(2)(B)(i). The Immigration and Nationality Act (\u201cINA\u201d) permits ref- ugees to petition for legal permanent resident status. 8 U.S.C. \u00a7 1159. Osmani applied to adjust his status to legal permanent resident under 8 U.S.C. \u00a7 1159(a) on April 1, 2020. Aliens con- victed of certain crimes, such as those involving moral turpi- tude or for violating narcotics laws, are ineligible for visas or admission into the United States. 8 U.S.C. \u00a7\u00a7 1182(a)(2)(A)(i)(I), (II). Osmani\u2019s prior convictions No. 20-3318 3"], "id": "016d005f-c00a-4805-a30e-eb8faff0155f", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["In Joint Anti-Fascist Committee v. McGrath (supra) three organizations included in a list of groups designated as communist by the Attorney General under the above Executive Order brought actions for injunctive and declaratory relief to have their names deleted from these lists upon various constitutional grounds. The majority of the court reversed the lower court\u2019s dismissal of the complaint, expressing several different views. Clark, J., took no part in the case. Burton, J., with Douglas, J., concurring, held that on the facts alleged in the complaint the Attorney General\u2019s action was patently arbitrary."], "id": "b50e9930-4f44-4a9e-a0f6-4b60b7461953", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["It seems clear that Congress, in enacting the Gwinn Amendment, had in mind excluding persons who advocate the overthrow of our Government by force and by violence, from enjoying the bounties granted by the low-rent housing acts. Actually, Congress did not do this. What Congress did was to exclude all persons who are members of organizations designated as subversive by the Attorney General, based upon the latter\u2019s ex parte findings of subversiveness. No notice or opportunity to be heard is provided for in Executive Order 9835 to the organizations listed to disprove these findings. That fact was admitted by the pleadings in Joint Anti-Fascist Committee v. McGrath (104 F. Supp. 567). There the court said (p. 572): \u201cWith respect to the admitted fact that there was no adequate notice or hearing, the cases are now in precisely the same posture that they were when considered by the Supreme Court.\u201d"], "id": "b3552fba-b2d2-4fde-9cb4-17eb5ae10e79", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["Nancy J. Kelly, with whom John Willshire Carrera, Harvey Kaplan, and Harvard Immigration & Clinic were on brief, for petitioner. M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. Mark C. Fleming, Arjun K. Jaikumar, Cristina Salcedo, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for Harvard"], "id": "cd43cabe-ad1d-4c08-9261-789bed1a89e6", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["It is indeed deplorable that the attorney for the petitioner thought it necessary to urge in this court that an officer of the landlord is a German and that any finding in favor of the landlord would encourage emigrants to take the law in their own hands. Definitely no such danger exists in a democracy where principles of law and justice apply impartially to all."], "id": "f66c0573-fb66-48c6-a201-cb2433c49872", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["\u201c A citizen may sign an assurance on his own behalf; on behalf of a church, welfare agency, or other bona fide group of citizens; or on behalf of a noncitizen. \u2019 \u2019 Although the date of publication of this pamphlet is some seven years later than that of the execution of the affidavit in suit, nevertheless the questions and answers hereinabove quoted illustrate and indicate the long established view, which was never different. Nor do the statutes and regulations presently in effect differ so substantially from those which were operative at the time these defendants executed their affidavit that a different interpretation or result would be indicated or warranted. Indeed, the Displaced Persons Act of June 25, 1948 (U. S. Code, tit. 50, ch. 647; 62 U. S. Stat. 1009) and the Relief Act of August 7,1953 (U. S. Code, tit. 50, ch. 67 U. S. Stat. 400), are more specific than earlier statutes in force when the affidavit in hand was made in requiring \u201c assurances \u201d that aliens applying for admission into the country will not become public charges. Yet even under these later statutes the view of administrative officials, which, as already indicated, they have freely conveyed to the public, has uniformly been that such \u201c assurances \u201d do not impose a legal obligation."], "id": "76720614-0bf3-4826-bf6b-7fc9deb38ff4", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["For jurisdictional purposes, a national bank is a \u201c citizen \u201d of the State in which it is established or located and in that district alone can it be sued (U. S. Code, tit. 12, \u00a7 94; Michigan Nat. Bank v. Robertson, 372 U. S. 591; Cope v. Anderson, 331 U. S. 461, 467; First Nat. Bank of Charlotte v. Morgan, 132 U. S. 141; Buffum v. Chase Nat. Bank of City of N. Y., 192 F. 2d 58, 60; Leonardi v. Chase Nat. Bank of City of N. Y., 81 F. 2d 19, cert. den. 298 U. S. 677; International Organization v. Bank of America, 86 F. Supp. 884; Chaffee v. Glens Falls Nat. Bank & Trust Co., 204 Misc. 181, affd. 283 App. Div. 694; Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 312; Crofoot v. Giannini, 196 Misc. 213; Raiola v. Los Angeles First Nat. Trust & Sav. Bank, 133 Misc. 630). A national bank is established, within the meaning of the Federal statute in question, only in the place where its principal office and place of business is as specified in its organization certificate, a suit against such a bank being maintainable only in the place of its establishment, i.e., its location, if there be no waiver or consent (Buffum v. Chase Nat. Bank of City of N. Y., supra). The resulting consolidated national bank not being established in New York and there being no waiver or consent it cannot be sued here."], "id": "9eebf9eb-81ab-4041-8a1f-17dc1f78db89", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["While seven years is usually adopted as the basis for a presumption of death, yet it is not absolutely necessary that such a period should elapse. In reviewing the evidence I find circumstances which tend to show an earlier death. There is no reasonable ground to believe the former husband of the proscutrix was .alive at the time of -the Connecticut marriage. There was no reason for concealing his identity and no information had been received from him. Furthermore, it is common knowledge that in the years 1905, 1906 and 1907 there took place in Odessa, Russia, a series of riotous outbreaks; estates of landowners were set afire, attacks and murder of police officials and representatives of the authorities occurred. In the matter of the application for the extradition of Jan Janoff Pouren, a political , United States Commissioner Hitchcock delivered an opinion on March 30, 1909, wherein he stated that the counsel for the demanding government (Russia) admitted that a state of revolution existed in the Rigi district. It also appeared in that case that political *542disturbances in other sections of the Russian domain were of frequent occurrence and that the conflicts with the soldiers and police in which many were killed were numerous, covering about that period of time. The papers in the Pouren case (supra) show that a state of so-called rebellion existed all over the land. These circumstances coupled with others would tend to prove that there is substantial support for the claim that the former husband of Josepha Raczkewski was killed as she was informed."], "id": "ecb62046-03ec-4fab-84d6-9838674a303f", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Although it is the People\u2019s position that the materials do not contain Rosario or Brady material, even a cursory inspection shows otherwise. Critical to the issues in this case is the credibility of the victim. The defendant is charged with three separate incidents of forcible rape in which his wife is the alleged victim. There is no physical or testimonial evidence linking the defendant to those crimes other than her testimony. There are most unusual circumstances surrounding these allegations. The defendant is a Cuban who spoke little, if any, English at the time he met and subsequently married his wife and at the time these allegations arose. His wife is English speaking and it is clear from the testimony that the defendant was almost exclusively reliant on her ability to assist him in day-to-day activities in the Rochester community, as well as working towards obtaining resident alien status through United States Immigration. At the core of these allegations is the victim\u2019s assertion that the defendant convinced the victim to undergo a civil wedding ceremony in advance of their planned religious ceremony in order to avoid immigration complications. It was between the time of the civil ceremony and the planned religious ceremony that the alleged rapes took place. The victim claimed that the agreement for the civil ceremony was grounded in an agreement between the two that no sexual intercourse take place until the religious ceremony occurred. Hence, the status of the immigration claims, the credibility of the victim, their status as a married couple in the community and their admitted consensual sexual relations before and during the time of the alleged forcible rapes was very relevant in this case."], "id": "4eba1dbe-9c40-4fa3-88b9-122499282101", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["Before KANNE, WOOD, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. In 2019, the Department of Human Services (\u201cDHS\u201d) sought to remove Ilir Osmani, a of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (\u201cIJ\u201d) granted Os- mani\u2019s petition for an adjusted status under 8 U.S.C. \u00a7 1159(a) and for waiver under 8 U.S.C. \u00a7 1159(c). The Board of Immi- gration Appeals (\u201cBIA\u201d) reversed the IJ\u2019s ruling based on new 2 No. 20-3318"], "id": "b560a663-1e95-4235-a615-905276680cda", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["\u201cOur established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, \u2018deeply rooted in this Nation\u2019s history and tradition,\u2019 id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (\u2018so rooted in the traditions and conscience of our people as to be ranked as fundamental\u2019), and \u2018implicit in the concept of ordered liberty,\u2019 such that \u2018neither liberty nor justice would exist if they were sacrificed,\u2019 Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a \u2018careful description\u2019 of the asserted fundamental liberty interest. [Reno v Flores, 507 US 292, 302 (1993); Collins v Harker Hgts., 503 US 115, 125 (1992); Cruzan v Director, Mo. Dept. of Health, 497 US 261, 277-278 (1990).] Our Nation\u2019s history, legal traditions, and practices thus provide the crucial \u2018guideposts for responsible decisionmaking,\u2019 Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment \u2018forbids the government to infringe . . . \u201cfundamental\u201d liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.\u2019 507 U.S., at 302 .... \u201c[T]he development of this Court\u2019s substantive-due-process jurisprudence, described briefly above, . . . has been a process whereby the outlines of the \u2018liberty\u2019 specially protected by the Fourteenth Amendment \u2014 never fully clarified, to be sure, and perhaps not capable of being fully clarified \u2014 have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review. In addition, by establishing a threshold requirement \u2014 that a challenged state action implicate a fundamental right\u2014 before requiring more than a reasonable relation to *780a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case.\u201d (Washington v Glucksberg, 521 US 702, 720-722 [1997] [Rehnquist, Ch. J.].) To satisfy the first prong of showing that he has identified a fundamental right, defendant invokes the United States Supreme Court\u2019s decision in Paul v Davis (424 US 693 [1976]), which held that a public defamatory injury, or harm to reputational interests, if it is properly combined with some specific, demonstrable harm to a person\u2019s \u201cmore tangible interests such as employment,\u201d can constitute a liberty interest worthy of substantive due process protection. (Id., 424 US at 701.) As part of its explanation of its reasoning, the Davis court quoted Justice Douglas\u2019s concurring opinion in Joint Anti-Fascist Comm. v McGrath (341 US 123 [1951]): \u201cThis is not an instance of name calling by public officials. This is a determination of status \u2014 a proceeding to ascertain whether the organization is or is not \u2018subversive.\u2019 This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General\u2019s determination to penalize or police these organizations.\u201d (Id., 341 US at 175.)"], "id": "a039ee47-e578-42b5-ba89-205c4ccacbd6", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["President\u2019s determination that \u201c[i]f the war in the former Yugoslavia resumes, \u2018there is a very real risk that it could spread beyond Bosnia, and involve Europe\u2019s new democracies as well as our NATO allies.\u2019\u201d Pro- posed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another important precedent, President Clinton justified extensive airstrikes in the Federal Republic of Yugoslavia (\u201cFRY\u201d) in 1999\u2014military action later ratified by Congress but initially conducted without specific authorization, see Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000)\u2014based on concerns about the threat to regional security created by that government\u2019s repressive treatment of the ethnic Albanian population in Kosovo. \u201cThe FRY government\u2019s violence,\u201d President Clinton ex- plained, \u201ccreates a conflict with no natural boundaries, pushing refugees across borders and potentially drawing in neighboring countries. The Kosovo region is a tinderbox that could ignite a wider European war with dangerous consequences to the United States.\u201d Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia ( Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 527, 527 (Mar. 26, 1999). As his statements make clear, President Obama determined in this case that the Libyan government\u2019s actions posed similar risks to regional peace and security. Much as violence in Bosnia and Kosovo in the 1990s risked creating large movements, destabilizing neighboring countries, and inviting wider conflict, here the Libyan government\u2019s \u201cillegitimate use of force . . . [was] forcing many [civilians] to flee to neighboring countries, thereby desta- bilizing the peace and security of the region.\u201d March 21, 2011 Report to Congress. \u201cLeft unaddressed,\u201d the President noted in his report to Congress, \u201cthe growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.\u201d Id. Without outside intervention, Libya\u2019s civilian population faced a \u201chumanitarian catastrophe,\u201d id.; as the President put it on another occasion, \u201cinnocent people\u201d in Libya were \u201cbeing brutalized\u201d and Qadhafi \u201cthreaten[ed] a bloodbath that could destabilize an entire region.\u201d Press Re- lease, Office of the Press Secretary, The White House, Weekly Address: President Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011), http://www.whitehouse.gov/the-press-office/2011/03/26/weekly-address- president-obama-says-mission-libya-succeeding (last visited ca. Apr. 2011). The risk of regional destabilization in this case was also recognized by the"], "id": "7059e6df-7d72-46a1-8dc9-e0a8c1213968", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["\u201c If however, at the time of the settlement and distribution of my estate, all three of the foregoing conditions exist, but my sister be. a resident in or citizen of or in a country not at war with America and there be no prohibitive restrictions *26against the transmission of funds to her, then I expressly order and direct that said payment shall be made to her."], "id": "330b81b2-1b85-4003-b199-b5239f4fe161", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["\u20181 If however, at the time of the settlement and distribution of my estate, all three of the foregoing conditions exist, but my sister be a resident in or citizen of or in a country not at war with America and there be no prohibitive restrictions against the transmission of funds to her, then I expressly order and direct that said payment shall be made to her."], "id": "6eff3ca0-a88d-498d-8920-ea31ea1cd244", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["The question is solely one of effectuating the charitable purposes of this testator and the duty of the court is to accomplish this purpose by a liberal construction of the testator\u2019s will (Matter of Potter, 307 N. Y. 504). The testator\u2019s plan was to employ his residuary estate for the assistance of education, aged persons generally, aged Jews, Jews, aged colored persons and the blind. He bequeathed half of his residuary estate for educational purposes and distributed the balance equally among the *48groups of needy persons whom he identified. If at all possible, this carefully conceived plan should be carried into effect subject only to the discretion granted to the executors to deviate, to the extent permitted by this will, in the event the fulfillment of the testator\u2019s intent should not prove practical. The court does not consider the will as designating either a home or an institution devoted exclusively to the care of aged colored persons and it is apparent that the intent of the testator will be complied with by payment to an organization which includes the care of such persons in its services, particularly since the functioning of charities is subject to control by State authorities and application of the fund can be supervised. The conclusion of this court is that either of the two mentioned organizations now aiding aged colored persons is qualified to receive the bequest and, from the facts presented, there appears to be no practical reason for declining to distribute to one of them. The objection based upon the fact that the foundation was not in legal existence at the date of the testator\u2019s death is met by section 12 of the Personal Property Law, as amended by chapter 715 of the Laws of 1953, which applies to this will. It is within the authority of the executors to choose the recipient of the legacy and to exercise the discretion given to them to determine whether distribution shall be practical."], "id": "98c50c1c-8bc1-4a86-9e3d-68d7dd4ef62d", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["*474Defendant proved a deed from plaintiff to defendant June 2, 1873, of 150 acres of lot 161, tract, with sucb covenant; a deed from plaintiff to defendant, September 9, 1873, of 266 acres, more or less, of the same lot, with same covenant; a quitclaim from plaintiff to defendant, November 21, 1874, of all of the lot except fifty-two acres. Defendant proved a comptroller\u2019s \u2022deed, October 2, 1880, to George W. Palmer and another, of the whole of lot 161, made by virtue of a sale in October, 1877, for unpaid taxes prior to 1871, the lot being therein described as containing 420 acres. The defendant testified that in November, 1880, he was in possession of the whole lot, except fifty acres, which he did not own; that, after receiving the notice (the statutory notice to redeem, which had been served November 9, 1880), he redeemed by paying, January 21, 1881, the sum of $362.12, paying the tax \u2022on the whole lot and redeeming the whole lot."], "id": "91110580-cc82-4d27-b30a-1259a98402f1", "sub_label": "US_Terminology"} {"obj_label": "refugee", "legal_topic": "Immigration", "masked_sentences": ["WL 2120292, at *7 (three of four interagency agreements were too vague in their descriptions to establish the rights and duties of the Department of Defense and GovWorks\u2014e.g., \u201cequipment through the Pentagon IT Store\u201d); Status of Purchase Order as Obligation, B-196109, 1979 WL 11928, at *1 (Comp. Gen. Oct. 23, 1979) (order lacking a description of the products to be provided, but which relied on \u201crequisitions\u201d to be sent under separate cover, was not \u201cfirm and complete\u201d); Director, Interna- tional Operations Division, B-155708-O.M. (Comp. Gen. Apr. 26, 1965), http://redbook.gao.gov/4/fl0016226.php (last visited ca. Mar. 2012) (loan agreement between United States and Brazil was not sufficiently \u201cdefinite or specific\u201d in providing that the funds would be used to finance programs in certain areas \u201cas may, from time to time, be agreed upon in writing by A.I.D. and the Government\u201d); To the Honorable Secretary of State, B-147196, 1965 WL 2883, at *2\u20134 (Comp. Gen. Apr. 5, 1965) (contracts were not specific as to services to be rendered when they provided for funds for assistance \u201cas determined by the supervising officer\u201d). As we have noted, the fact that a particular regulatory step had to be taken after the agencies signed Part B of the interagency agreement com- plicates our assessment of the agreement\u2019s specificity and definiteness. We have not found definitive analysis on this point by the Comptroller General. For purposes of discussion, we accept the VA\u2019s and GSA\u2019s view that review and concurrence by OMB and OPM in the VA\u2019s planned private-private competition was a necessary regulatory step to be com- pleted in the process before GSA was free to use the funds in conducting the acquisition. This step appears to have been the responsibility of the VA, the requesting agency. See IA \u00a7 A.6, Requesting Agency Roles and Responsibilities, #4 (requesting agency must \u201ccomply fully with applica- ble procurement regulations and policies in all matters related to this IA\u201d). Nevertheless, we do not perceive the requirement that the VA pursue this consultation-concurrence step as negating either the certainty or definite- ness of the obligation the VA undertook with GSA. In at least one in- stance, the Comptroller General concluded that a contract with an express regulatory contingency was nonetheless sufficiently definite to create a valid obligation. See Lawrence W. Rosine Co., 55 Comp. Gen. 1351, 1354\u201355 (1976) (award to a business on the condition that the contract would be terminated at no cost if the Small Business Administration found that it was not a small business was sufficiently definite to create a"], "id": "e37b534f-8fcf-4339-8ee7-d5069136eacb", "sub_label": "US_Terminology"} {"obj_label": "Refugee", "legal_topic": "Immigration", "masked_sentences": ["It is well recognized that parole revocation proceedings are separate and distinct from criminal prosecutions as the former are governed by an administrative agency rather than through judicial intervention. As such, the full array of constitutional rights and protections afforded a criminal defendant is unavailable to parole revocation proceedings (see Morrissey v Brewer, 408 US 471, 480 [1972]). Identifying those protections that must be extended to parolees, however, is neither simple nor clear especially when wading through the murky waters of the administrative process. Just as criminal constitutional protections cannot be applied wholesale to administrative hearings (Morrissey, 408 US at 480; Matter of State of New York v Floyd Y., 22 NY3d 95, 103 [2013]), though, so too reliance upon civil proceeding precedent, as respondent argues, is inapposite. To equate a civil commitment proceeding where an attorney need only represent the interests of his mentally incompetent client with a parole revocation proceeding requiring a parolee to assist in his own defense is patently absurd. Aside from \u201cnotice and hearing[s] [being a] prerequisite to due process\u201d (Joint Anti-Fascist Comm. v McGrath, 341 US 123, 164 [1951]), there exists a fundamental difference between criminal, administrative, and civil proceedings."], "id": "ec24d5e9-d892-4e4c-8b70-751dd0009431", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Turning to the source of defendant\u2019s liability, subdivision 4 of section 3202 of the Education Law, that statute reads as follows: \u201c4. [Effective until July 1, 1981. See also subd. 4 below.] Except as provided in subdivision six of this section, children cared for in a duly incorporated orphan or other institution for the care, custody and treatment of children, other than the children of the officers and employees of such institution, shall not, by reason of their presence in such institution, be deemed to be residents of the school district in which such institution is located. The trustees or other authorities in charge of any such institution may contract with the trustees or board of education of the school district in which such institution is located for the secular instruction of such children. If such children are supported and maintained at the expense of a public welfare district, the cost of the secular instruction of such children in the school or schools in the district shall be paid by the public welfare district which is liable for the payment of the cost of their support and maintenance. If such children are not supported and maintained at the expense of a public welfare district, the cost of the secular instruction of such children in the school or schools in the district shall be a charge upon and shall be paid by the school district responsible for their instruction at the time of their admittance to said duly incorporated orphan asylum or other institution for the care, custody and treatment of children. The trustees or board of education of the school district in which such institution is located shall receive such children in the school or schools of the district for instruction for a compensation to be fixed by the trustees or board of education, unless such trustees or board of education shall establish to the satisfaction of the commissioner of education that there are valid and sufficient reasons for refusal to receive such children.\u201d"], "id": "0a7c4c75-4797-4ed1-b072-0dfe78242a4c", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["After filing for political , plaintiff found employment in the construction industry, working for Fine-Line Building Services, Inc., which hired plaintiff to renovate and to paint the lobby area of the premises located at 17 East 89th Street, New York County. While working for Fine-Line Building Services, plaintiff was injured on June 13, 2006. A large mail cart, being handled by defendant\u2019s employee, fell over upon plaintiff as he painted the baseboard in the hallway of defendant\u2019s building. The instant case followed."], "id": "ddad046c-43dd-41c4-b7d5-9048edc2cf24", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["A careful examination of the affidavits presented in the case lead me to\" the conclusion that, at present at least, the father should not have the custody of the child. The evidence is quite convincing that his desire to get the custody of the child is less on account of his affection for it than his disposition to deprive its grandfather, and especially Agnes Riemann, of it. It is not questioned that at the time the father obtained possession of it the child was receiving every kind and gentle treatment which loving and affectionate relatives could give it; that their affection for the child is unquestioned; that its care and education will be looked after without expense to Holzer; that Mr. Riemann promises, in his affidavit, that if the ctiild shall continue to live with him the interest in his property to which its mother would have been entitled shall go to it on his.decease. On the contrary, when the father took the child on the 13th day of November, he at once took it to the , with a view to placing it there. The asylum authorities refused to receive the child without some reason being shown, when he went away, and at night returned with it, with a statement that he had been unable to find any place for it, when they consented to take it on the agreement that he should at once take steps to procure the consent of the trustees of the institution. It appears that at this time there were 125 homeless and destitute children in the asylum; that many of them were sick, and some had died from contagious disease. With this state of things the child was permitted by the father to remain there until he was sent for by the managers on the following Sunday, without once calling to inquire after its comfort or welfare. This, of itself, indi*518-cotes strongly to my mind that Holzer had no affection for the child, and only \u2022cared to deprive its grandfather of the custody of it."], "id": "5cfabf58-c88f-49f5-aa1d-696388f79538", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c[E]ven assuming the respondent\u2019s eligibility to apply for ,\u201d the BIA found no nexus to a particular social group. Because Plancarte had not established a particular social group, the BIA affirmed the IJ\u2019s denial of both asylum and withholding relief. The BIA affirmed the IJ\u2019s denial of CAT relief on the ground that \u201crespondent did not show that she is more likely than not to be tortured, by or with the acquiescence . . . of a government official upon return to Mexico.\u201d The BIA wrote, \u201cThe Immigration Judge . . . noted that there is no evidence that Mexican public officials were involved in the respondent being pressed into service for a criminal organization as a nurse.\u201d"], "id": "089b7984-ace2-4429-9402-323fb77adb3f", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["See Cham v. Att\u2019y Gen., 445 F.3d 683, 687\u201389, 691\u201392 (3d Cir. 2006) (finding that IJ \u201ccontinually abused an increasingly distraught petitioner,\u201d including by repeated commands to speak through the interpreter). Morales also relies on Ignatov v. Ashcroft, 71 F. App\u2019x 157 (3d Cir. 2003), an unpublished decision, which is of course non-precedential. See, e.g., Wallace v. Mahanoy, 2 F.4th 133, 144 n.16 (3d Cir. 2021). Even if Ignatov were designated as precedential, it would be unhelpful for Morales. Ignatov distinguished Ponce-Leiva on the basis that the petitioner had a facially valid reason to request ; therefore, the absence of a lawyer was prejudicial. See 71 F. App\u2019x at 161\u201362. Here, as we will discuss, Morales cannot show prejudice. 611 F.3d at 173\u201375; see 8 CFR. \u00a7 1240.10(a)(1)\u2013(2). Pet. Br. at 22 (\u201c[W]hether Mr. Morales was aware of the existence of pro bono counsel bears no relationship to whether he felt adequately represented by his attorney.\u201d). The Government suggests that Morales may have forfeited his ineffective assistance argument by not squarely raising it on appeal. Indeed, claims raised only in passing are deemed forfeited. Fed. Trade Comm\u2019n v. AbbVie Inc., 976 F.3d 327, 368 n.3 (3d Cir. 2020). But here, Morales filed a motion to remand for ineffective assistance of counsel before the BIA, and he alleges that his prior counsel was ineffective throughout his brief. Furthermore, the BIA found that Morales had complied with the factors from Matter of Lozada for the preservation of a claim of ineffective assistance of counsel on appeal. See 19 I. & N. Dec. 637, 638\u201339 (BIA 1988). As a result, we consider the claim."], "id": "3663c58c-cd10-4668-a64d-30baf677f091", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c [W]here there has been a practical construction placed by the representatives of the people upon the constitutional provision, and where great public works in localities have been carried out through the assistance of large loans and investment of moneys, advanced upon the faith of the validity of the legislation which authorized them, it would not do for the courts to construe in too strict or illiberal a sense.\u201d (Matter of Henneberger, 155 N. Y. 420, 429.) \u201c When the parties to a contract of doubtful meaning, guided by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to give it a practical meaning, the courts will treat it as having that meaning, even if as an original proposition they might have given it a different one. * * * So, when the meaning of a statute is doubtful, a practical construction by those for whom the law was enacted, or by public officers whose duty it was to enforce it, acquiesced in by all for a long period of time * * * \u2018 is entitled to great if not controlling influence \u2019 \u201d. (City of New York v. New York City Ry. Co., 193 N. Y. 543, 548-549; italics added; Matter of Kolb v. Holling, 285 N. Y. 104; Matter of Washington St. , 115 N. Y. 442, 447.) We have here a practical construction by the Town Board of its own ordinance, which to me approaches the conclusiveness of interpretations by administrative agencies of their own regulations. (Franconia Vil. Co-op. v. Lincoln Sav. Bank, 33 Misc 2d 540 and cases therein *1034cited.) I conclude that in adopting the 1935 amendment to section 56 of its zoning ordinance, the Town Board thereby intended that procedures to further amend the ordinance were to be governed by the provisions of the Town Law as they might exist at the time future amendments were sought and that notice of the hearing preceding adoption of the July 25,1957 amendment was timely published."], "id": "afbded81-c27d-4d53-b1e4-bd6e99d4d9ad", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The statute provides, in substance, that the assessed valuation of the entire property, including land and building, shall be presumed to be the fair value of the premises. For the purposes of this proceeding, the respective parties agreed that the assessed value shall be controlling. However, there is dispute as to whether the 1956/1957 assessment of $1,050,000 or the 1957/1958 assessment of $1,075,000 should prevail. It appears that the 1957/1958 assessment was fixed by the tax commission on February 1, 1957, and taxed at $43,752.50. The testimony established that no application had been filed with the tax commission to reduce this assessment, nor was any court or other proceeding pending for a reduction. So that, prior to the commencement of the instant proceeding, the 1957/1958 assessment was fixed and determined. Consequently, that figure is adopted as the value of the property for computing a fair return. The statute further provides that an annual return of 8% on the fair value of the entire property is presumed to be reasonable. A return of 8% is justified and adopted (Matter of Trustees of Masonic Hall & Fund [Liggett Drug Co.], 1N Y 2d 616, supra)."], "id": "f8025fdd-4b9d-41c4-9b63-26522c49780b", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["In April, 1886,' was the first time she saw Brumagim at No. 1 Fifth street; Mrs. Churchill followed him out; he only remained a few minutes; she never saw her father alone in that place; she made a visit there in May, 1886; her father said he wanted her to speak to Mrs. Churchill and Mrs. Churchill to speak to her, and they did so; Mrs. Churchill said, \u201cRobert, Mrs. McGregor is the only one of the family who understands this case.\u201d On Sunday, the 23d of May, 1886, the daughter being on a visit to the father, he turned to Mrs. Churchill and asked her to leave the room, as he had occasion to speak to his daughter; she did not leave the room, nor make answer. When the daughter visited No. 1 Fifth street, Mrs. Churchill and Miss Baty, one or both, were always there; sometimes Mr. Brumagim was there, sometimes a Mr. Pat Lynch; one time the daughter at her own home heard her father say he was going to marry Mrs. Churchill at Pioneer Hall, and would drive the family there in a coach and four (Judge\u2019s Notes, pages 9 to 13). A witness Mrs. Catherine Donnelly, testifies that she was employed at No. 1 Fifth street by Mrs. Either as chambermaid; that Mrs. Churchill at that time was also a chambermaid; that there was a kitchen on the second floor, and she saw the wife of deceased there when Mrs. Churchill was in the kitchen, and the wife was making beef tea. Mrs. Churchill said to her, \u201cIf she was his wife she would buy him a barrel of rotgut, *523and let him drink himself to death; that he would go to the gutter, anyhow.\u201d On one occasion she testifies that she heard the deceased say to Mrs. Churchill, \u201cDon\u2019t call me Mr. Robert; call me your dear Robert,\u201d and kissed her. On another occasion she had conversation with Mrs. Churchill about the deceased, and Mrs. Churchill had said that his wife had thrown him out, and she had picked him out of the gutter; and his wife was only a common whore, and that he had caught her in a house of assignation with a hackman. This last conversation spoken of was in March, 1885. Again she met her on Kearny street and had a conversation with her, and the witness said to Mrs. Churchill, \u201cI see you have bought a lot; how did you get the money so quick?\u201d to which inquiry the response was, \u201cI have made a great deal of money in stocks, and have bought the lot and paid for it.\u201d Once again, on Fifth street, Mrs. Churchill said, \u201cI have had a handsome Christmas present, a pair of blankets, two oil paintings and a diamond ring, which Mr. Tiffany gave me. \u2019 \u2019 This was in April or May, 1886 (Judge\u2019s Notes, pages 16, and 17). All of these statements are denied by Mrs. Churchill (Judge\u2019s Notes, page 184). The deceased went to room at 628 Sutter street, in the house of Mrs. Kate E. Learned, in December, 1884, and was there about a year and a half; he came with a Mr. Rapp; he stayed in the first room six or seven months, then he took a small room for eight or nine months; he went away five or six months after he came, and then returned; his attorney, Joseph M. Wood, paid for three or four months: Mrs. Churchill paid one month, the rest of the time he paid himself; he did not stay there half the time in the first period referred to; during the second period he was absent for a month at a time; Mrs. Churchill had a key to his room, also of his trunk; Mr. Tiffany introduced Mrs. Churchill to Mrs. Learned; he said that Mrs. Churchill was a dear friend of his; she lived at 1 Fifth street, and did the chamber work for Mrs. Either; Mrs. Churchill may have remained there fifteen or twenty minutes at the time in his room; she was introduced to the witness two or three months after Mr. Tiffany first came, and the witness saw her there afterward during the first period of his stay at the house; she would come sometimes two, or three, or four times a *524month; she would be accompanied by him, and remain a half hour at a time, and he would go out with her; she would always be at his room. The witness learned from Mr. Tiffany that he went from her house to 504 Sutter street, to a Mrs. Meyers; he subsequently returned to the house of Mrs. Learned to see if he could get a room, and said, \u201cI was sorry I left your house, but Mrs. Churchill desired it, as she and Mrs. Meyers were friends, but now they have quarreled and I now want to come back.\u201d He and the witness had a conversation about Mrs. Churchill; he said, \u201cWhat is the rent of the front suite of rooms, and what will you board me and Mrs. Churchill for? I am going to get a divorce, and am going to marry Mrs. Churchill.\u201d The witness had a great many conversations with him upon that topic. She had also a conversation with Mrs. Churchill in the latter part of 1885. Mrs. Churchill came to her house and said she wanted his things. The witness said she was glad, as she did not want him in her house; Mrs. Churchill said she had taken a room for him in O\u2019Farrell street, that his family had tried to put him in the insane , that she would take care of him, that his family were willing that she should take care of him, but were not willing to do anything for him; that she would show them she should take care of him, and would do so to spite his wife. Mrs. Churchill took his trunk and other things belonging to him. The witness said Mr. Tiffany would very seldom come in before 12 or 1 o\u2019clock at night; he was always intoxicated when he came in; he wore ornaments on his person during the second period, a tooth in his necktie. The tooth, he said, was Mrs. Churchill\u2019s, a diamond ring, which he said she gave him as a present. He told her he gave to Mrs. Churchill all the money, and she paid the bills and collected the rents. There was another conversation on that subject, in which he said he had given her certain property, and had her name put in large letters, \u201cChurchill Court.\u201d The witness told her that on the occasion of the divorce trial he told her he ivas going to appeal, and would beat them, and said, \u201cI will beat them, you bet your bottom dollar, and on the first of the month I will marry Mrs. Churchill.\u201d This was in August or September, 1885 (Judge\u2019s Notes, page 31). Another witness, Mrs. Sallie Johnson, an *525old friend of the deceased, saw him frequently in 1885, and observed him closely, and was frequently with him, and visited him in November, 1885. On one occasion he was lying on a lounge too short for him, in the room, his clothes were badly disordered and uncleanly. This was on November 7, 1885. He was very glad to see her; he wanted to kiss her, and said, \u201cI am very glad to see you, good lady, that you have come to see me.\u201d She said she was very sorry to see him so ill; he spoke of some of his family very abusively. There was a woman in the room to whom she was introduced as Mrs. Churchill. The second time this witness called the deceased was very ill and very excitable, and said to her, \u2018\u2018Do you see that on the mantle-piece there [pointing to what appeared to be a glass of jelly] ! They have brought that to poison me.\u201d He said his daughter brought it; he asked witness to drink with him, liquor of some kind, which she declined; the liquor was handed to him by Mrs. Churchill; the deceased got angry and abusive to the witness when she declined, and said, \u2018\u2018Damn it, cannot you take a drink with an old friend!\u201d He abused the members of his family, said they were going to rob him and poison him; the witness communicated to the daughter the information of the conversation with her father (Judge\u2019s Notes, pages 33 and 34). Another witness, Mrs. Sarah B. Cooper, an old acquaintance and friend of the deceased and his wife, and superintendent and manager of the kindergarten system of schools, relates many peculiarities of the deceased as a basis of her opinion that he was insane in November and December, 1885. From May to November of that year he visited her school as often as forty-eight times; that she believed him to be unsound of mind (Judge\u2019s Notes, pages 34 to 38). A witness, E. H. Neville, a twenty-five years\u2019 acquaintance of the deceased, very intimate with him from 1878, testifies to peculiarities indicating a change in his character, from daily observations, and recites numerous incidents and instances of his conduct indicating insanity. For five years the deceased occupied a desk in the office of the witness, and was in there every day, or nearly every day. Once in 1884, the deceased showed to the witness a human tooth, mounted as a pin on his scarf, which he told him came from the mouth of *526Mrs. Churchill, whom he described as \u201cthe loveliest and most angelic woman on earth,\u201d and that he was going to marry her. The deceased also showed to the witness a picture of a woman pasted in his hat, on which was written, \u201cFrom Lura to Robert. \u2019 \u2019 The witness related that the deceased brought several persons to his office upon one occasion and introduced them to him, one as his dear friend \u201cShorty Simpson,\u201d whom he kissed and embraced; another was Herbert Slade (known as the \u201cMaori,\u201d a prizefighter); also another one, \u201cSconchin\u201d Maloney, and others of more or less like character. One time, after the divorce suit was brought, the deceased came to the witness\u2019 office with -his wife, and said it was the happiest day of his life, all his troubles were arranged, he and his wife were going to see his Mission property, and they went out together; subsequently on the same day the deceased came into the witness\u2019 office and said he was much pleased that it was all arranged. The witness asked him, \u201cHow about the divorce suit?\u201d The deceased said that was \u201call nonsense,\u201d he would not have brought it, but he \u201cwas persuaded to do so by that Brumagim,\u201d using an opprobrious epithet. Another witness, John Mason, an old citizen and acquaintance of the family, testified that after the witness had gone into business as a brewer at the Mission, Twenty-ninth and Tiffany avenue, in March, 1884, he saw the deceased as often as four times a week, from that time to his last sickness, except when he was sick and away from there; he had drank with the deceased may times, too numerous to mention; sometimes at the place called Cody\u2019s, on Twenty-ninth and Mission streets; he had numerous conversations with the deceased, which occurred during the progress of the work of construction of the Tiffany block, when the witness, at the instance of deceased, noted the manner in which the work was done. The witness saw Mrs. Churchill once at Cody\u2019s, and was introduced to her by the deceased, who came down to the brewery and insisted on the witness going to be introduced, which the witness did not desire. The witness said to deceased that he did not want to go; that the deceased had no grounds for separation or divorce from his wife; but he went, and in the back room adjoining the bar-room saw Mrs. Churchill; he was introduced *527by the deceased to her as the lady to whom he was going to be married as soon as he got a divorce; she made no remark; the three had a drink together. The witness saw her subsequently several times out there, and saw the deceased in the fall of 1885, sometimes at the brewery and sometimes at Cody\u2019s. Once the deceased came out to the brewery; the deceased said that he was something of a pugilist himself, and took off his coat and vest and rolled up his shirt sleeves to show his muscles, and said he was as vigorous as a man of twenty-five or thirty years of age; that when John L. Sullivan came out he would have a set-to with him; he could not live without sleeping with a woman and Mrs. Churchill \"just filled the bill.\u201d The witness said to him that he was foolish to talk in that manner. Subsequently, and in the same conversation, the deceased said he was going back to his \"mamma\u201d; that she was a good wife to him and true, and he was going back, as his advisers were not advising him right. The deceased also said he had made his will, and everything was going to his two sons, his \"mamma,\u201d his daughter and his grandchild. Another witness, D. B. Jackson, an acquaintance of the deceased from 1843, when he worked with him in New York City, after testifying to many events during that period, says that in the fall of 1884 he met the deceased at the Bay District Race Course, accompanied by Mrs. Churchill, whom the witness identified in the courtroom as the person to whom the deceased introduced him at the time; the deceased showed the witness her card photograph in his hat. Prior to the introduction the deceased said to the witness, \"I want to introduce you to my daisy\u201d; that was after the State Pair in October, 1885. He often said to the witness, of Mrs. Churchill, that \"she was the dearest creature on earth, taking the nicest and best care of him.\u201d A few days before the deceased was taken down finally, he came to the office of the witness with his daughter and grandchild, and said that they were provided for; he had made everything all right."], "id": "54f7a476-325f-4f09-9ec9-1d14dd20887c", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The relator\u2019s claim that the proceedings here are defective in that the indictment does not state the date the alleged crime was committed is without merit. The indictment annexed to the request for the warrant of extradition was found in compliance with the laws of the State of Alabama which provide that it is not necessary to state the precise time at which the offense was committed, but it may be alleged to have been committed on any day before the finding of the indictment. The indictment does state that the crime charged was committed before the finding of the indictment. This meets the requirements of the Alabama statute (Code of Alabama, tit. 15, \u00a7 237; Kimbell v. State, 165 Ala. 118). Under Alabama law, the particulars as to the time, place and circumstances not constituting essential elements of the crime charged, may be dispensed with by statute and be left as a matter of proof (Noles v. State, 24 Ala. 672; Boyd v. State, 3 Ala. App. 178). It is to be noted that the Alabama statute is similar to section 280 of our Code of Criminal Procedure. It is thus apparent that the indictment according to the laws of Alabama is a valid one and is not subject to attack in the State of New York (People ex rel. Marshall v. Moore, 167 App. Div. 479, 486, affd. 217 N. Y. 632; People ex rel. Gilbert v. Babb, 415 111. 349; Ex Parte Beggel, 114 U. S. 642). If the indictment is in substantial conformity with the laws of the demanding State, its sufficiency as a matter of technical pleading cannot be inquired into on habeas corpus."], "id": "fbeed1cd-133d-47e5-8246-35ef3c5194b5", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["*4632. The most important question arises under the following facts: A bond and mortgage had been executed by Louisa Uhl to the decedent and his wife. The decedent died before his wife, and the point to be decided is whether or not the bond and mortgage became the property of the wife on the death of her husband by right of survivorship, or whether the estate of the husband was entitled to some portion thereof. The objectors concede that in the case of real property, in case of a transfer of this kind, the right of survivorship would exist, but claim that a different rule prevails with respect to personal property. The referee held that there was no difference and cites authorities to sustain his position. The case of Bertles v. Nunan, 92 N. Y. 152, proceeded on the theory that the statutes enlarging the powers of married women with reference to property rights, being m derogation of the common law, must be strictly construed, and that these statutes did not abrogate the common-law rule that a conveyance to husband and wife created an estate by the entirety, with the right of survivorship as an incident of that quality of title. The common-law rule as to the right of survivorship was based upon the unity of husband and wife, and a conveyance in the joint names of husband and wife was presumed to be a gift and advancement to the wife by the husband, unless evidence of a different intention was adduced. That the case of Bertles v. Nunan, supra, is an authority as to the continuance of the common-law rule with respect to personal property as well as real estate is apparent from the language of the court, who say: \u201cThe claim is made that the legislature referred to and destroyed the common-law unity of husband and wife, and made them substantially separate persons for all purposes. We are of the opinion that the statutes have not gone so far. \u201d Again, the court say: \u201cThe statutes had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her.\u201d In re Brooks, 5 Dem. Sur. 326; Orphan v. Strain, 2 Bradf. Sur. 37; Platt v. Grubb, 1 N. Y. St. Rep. 494; Sanford v. Sanford, 45 N. Y. 723, 58 N. Y. 72. The exceptions to the report of the referee are overruled, and the report confirmed."], "id": "8216705d-f969-4e65-a6f6-386d553084af", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The findings of the court do not indicate that these proceedings in question were had under that branch of the statute. The finding is, that the petition asked leave to mortgage real estate to raise $1,500 to pay this debt. A reference to the certified copy of the papers shows that this was the nature of the proceedings, and that it must be governed by the rules laid down in sections 6 to 13 of the- act. Indeed, proceedings to pay this claim of the lunatic could not be taken under the authority given to mortgage or sell to pay the debts of the lunatic. This claim was not a debt of the lunatic. It was contracted for the maintenance of the lunatic by the committee who has no power to contract for the lunatic. (Pearl v. McDowell, 20 Am. Dec., 199.) If he paid it the court might allow it in his accounts, or the court could authorize real estate to be disposed of to pay it under title 2, section 9, but not under sections 17, et seg."], "id": "f08946fe-dc32-4e77-9869-22674395fe8b", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Mrs. Swall was a witness for proponent and is the wife of George Swall and lived for a part of the time with her sister, who before her decease was the wife of the present husband of witness and had charge of the children, of whom she is stepmother and aunt, and who are minors and legatees under the will in contest. Witness used to live off and on for years with her uncle, Salvin Perry Collins, and subsequently for some time with his widow, and she says that Mr. Collins was a kind and courteous gentleman. He seldom quarreled or gave offense to anyone. Mrs. Collins was not an untruthful woman, but her temperament was excitable. She did accuse witness of trying to poison her, which witness denied, and she thinks that decedent believed her, although she afterward repeated the accusation. Decedent said that Mr. Scott was trying to poison her and trying to put her in an insane . Witness asked her why she married him, and she said it was in a business manner, as she wanted somebody to attend to her affairs and she thought he ivas capable, but she found he was very different. Decedent did say that Mr. Scott was running after other women; but did not specify any particular person. She had made similar remarks about\" Mr. Collins, her first husband. She said that Scott was trying to get her out of the way and that he had told her that all that he had married her for was her money."], "id": "d2fbcd7a-483a-40e5-bede-e482721b75c0", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["word formation and sentence structure, and a phonetic system which are not similar to English\u201d as well as a vocabulary \u201cderived from a variety of sources, including . . . indigenous languages, English[,] and French.\u201d). Yet on June 9, 2019, a border patrol of- ficer interviewed Mr. Johnson in English. Before asking Mr. John- son any substantive questions, the officer made a statement in English to Mr. Johnson about the nature of the interview and asked Mr. Johnson if he understood. Mr. Johnson said that he did and then proceeded to answer the officer\u2019s questions. In contrast, though, two months later, an officer filed a memo saying that Mr. Johnson \u201ccould not effectively communicate [in] Eng- lish\u201d because he spoke Cameroonian Pidgin English and only re- sponded in that language. Because no Cameroonian Pidgin Eng- lish translator was available, he did not interview Mr. Johnson. On his I-589 application for asylum and withholding of re- moval, Mr. Johnson wrote that his native language was Bangwa, that he spoke Pidgin English fluently, and that he was not fluent in English. He requested and received a Pidgin English interpret- er for the merits hearing. At that hearing and through the inter- preter, Mr. Johnson explained to the IJ that although he generally did not understand English, he could understand some things. He also testified that he could not read English. Even with the inter- preter, there were several moments of confusion due to transla- tion issues during the hearing. Much of this case turns on inconsistencies between state- ments Mr. Johnson made without an interpreter and statements USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 11 of 11"], "id": "02f54336-c38c-4266-968e-06ea18554205", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The proceeding whereby the plaintiff was restrained of his liberty may be briefly summarized as follows: A son-in-law, with whom the plaintiff did not reside, on his petition, accompanied by a certificate of two medical examiners, whose sworn statement shows; that they did not believe the plaintiff to be insane, but \u201c devilish \u2019* only, made application to the county judge, and thereupon, without *388any personal service upon, or notice to, the plaintiff, the county judge made an order committing him to an insane , and the following day made a certificate that he had dispensed with personal service because the plaintiff \u201c would not comprehend motive of the proceeding.\u201d"], "id": "9b67994b-947b-4496-94d9-9a0f44acd78e", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["description of her encounter with the police inconsistent and lacking important details. In both her declaration in support of her application and her hearing testimony, she had said that the police grabbed her by the hair and hit her head against the wall; however, in her declaration in support of her asylum application, she also had stated that the police forced her to kneel, slapped her repeatedly, and kicked her after she had fallen to the floor. The nature of her injuries differed as well. In her asylum declaration, she recounted that she had suffered a bloody nose and had become dizzy. However, in her testimony she said only that she was bruised and swollen. The IJ noted that \u201cthe respondent was asked both during di- rect and cross-examination to explain the assault and extent of her injuries, but [had] failed to provide details consistent with her written declaration.\u201d \u201cIn sum,\u201d the IJ concluded, the respondent\u2019s testimony was internally in- consistent and inconsistent with other evidence in the record, including with the notes from the respondent\u2019s asylum interview. The court addi- tionally note[d] certain omissions in her testi- mony. Moreover her testimony was often vague and failed to explain discrepancies. While the court acknowledge[d] that each of these find- ings alone might [have been] insufficient to war- rant an adverse credibility finding, the court [wa]s concerned with the cumulative effect of these inconsistencies."], "id": "92d3eda3-a5fa-4175-8fd6-41fd30dcb4dc", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["It will be observed a trust was created expressly \u201c for the benefit of my son, John H. Holden, during his natural fife.\u201d The fund clearly was to be used for the benefit of the son, both interest and principal. The one thing that was to be done was to devote the money to the care, comfort and maintenance of the son, and the amount only was left to the discretion of the trustee. In that case the evidence showed that the son was forty-seven years of age, unmarried, that he repaired clocks and sewing machines and sewed in families whenever he could get such employment; that he possessed many eccentricities and vagaries; that he had been insane and was at one time the inmate of an , and possessed neither a vigorous or healthy body or a well-balanced mind. In that case, we may well conclude, taking the language of the will and the circumstances into consideration, that the father did not intend that his son should be subjected to the stress on his mind or body to earn a livelihood but did intend that his trustee should amply provide for his support and comfort and allow him to work whenever he saw fit to do so and accumulate a little fund of his own, thinking occupation would no doubt tend to make him happier and prevent his lapsing again into insanity."], "id": "51a4e553-a77d-4497-8360-8d68804c31e6", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["Furthermore, the doctrine of prescriptive right is not a defense available to the State of New York herein, for the law is that there can be no prescriptive right against property affected with a public interest or dedicated to a public use. (Driggs v. Phillips, 103 N. Y. 77; St. Vincent Orphan v. City of Troy, 76 N. Y. 108; Matter of City of New York, 217 N. Y. 1.) Although the foregoing eases are instances where individuals or private corporations attempted to assert a prescriptive right in a public thoroughfare they are applicable as authorities herein because by section 8 of the Court of Claims Act the State of New York stands in no different situation than an individual, having consented that like rules of law shall apply to it. Moreover, since prescriptive right is based upon the fiction of a lost grant it would be absurd to make a determination which would in effect hold that the town officials gave the State the right to flood and destroy a public highway every year or so at a certain season. Such action would be clearly beyond their authority, illegal and void. (Burbank v. Fay, 65 N. Y. 57, 66, 67.)"], "id": "f0f4a048-27e1-4b96-962d-57415ea0e2bd", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201cSection 40. After his incapeity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity he may make a will, though his restoration is not thus determined.\u201d *387Counsel for contestant claims that the section as amended in 1878, and as it has continued since, is a conclusive bar to testator\u2019s act, until he shall be restored to capacity by judicial decree. But the section of the Civil Code speaks of \"a person of unsound mind,\u201d and would seem to refer to those \u00a1persons whose minds are so deranged as to necessitate committal to an for the insane, and even in such case it is not at all clear that \"restoration to capacity\u201d means a judicial ascertainment and declaration to that effect. If it were intended to have such meaning, one word only was necessary to place it beyond doubt; the legislator could easily have employed the epithet \"judicial,\u201d qualifying \"restoration to capacity\u201d; instead of which he has amended by striking out the clause \"is judicially determined\u201d after those words, leaving it to be implied, if it be not explicit and in no need of implication, that actual restoration to capacity is the true intent of the section."], "id": "73bfe6b9-a804-4d44-94d9-581b1f5caf5b", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["\u00a7 1158(b)(3). The Board of Immigration Appeals (BIA) dismissed Tomas- Perez\u2019s appeal from the denial of her application, and she now petitions for review of that decision.1 We review the decision of the BIA and will consider the Immigration Judge\u2019s decision only to the extent it influenced the BIA. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 785 (5th Cir. 2016). Factual findings are reviewed for substantial evidence and legal conclusions de novo. Id. at 785- 86. Under the substantial evidence standard, the BIA\u2019s determination will be upheld \u201cunless the evidence is so compelling that no reasonable factfinder could fail to find otherwise.\u201d Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006). Tomas-Perez cannot show that she is unable or unwilling to return to her country because of persecution or a well-founded fear of persecution on account of membership in a particular social group defined as \u201csingle indigenous Guatemalan women.\u201d See 8 U.S.C. \u00a7 1101(a)(42)(A); see 8 U.S.C. \u00a7 1158(b)(1). Even assuming arguendo that the group she defined meets the requirements of a particular social group (a decision we need not make here), substantial evidence supports the BIA\u2019s decision that the demands for money and the attempted rapes she faced were motivated by private criminality, which does not constitute persecution on account of a protected ground. See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004); see also Herrera Morales v. Sessions, 860 F.3d 812, 815 (5th Cir. 2017). Because Tomas-Perez failed to demonstrate her entitlement to , she necessarily failed to satisfy the more stringent standard for"], "id": "00750dad-dc7a-4ea6-a748-d72e689183ce", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["III. The BIA affirmed the IJ\u2019s determination that Ibarra\u2019s application was untimely and did not warrant an exception for changed circumstances. It then denied Ibarra\u2019s request for withholding of removal and found that, even if Ibarra\u2019s asylum application was timely, it would fail for the same reasons as did Ibarra\u2019s request for withholding of removal. Lastly, it denied Ibarra\u2019s request for CAT relief. Because the BIA evaluated Mexico\u2019s country conditions and other evidence offered by Ibarra in the context of withholding of removal, we first address that claim before considering Ibarra\u2019s application for asylum. 3 We conclude with Ibarra\u2019s claim under the CAT. A. To qualify for withholding of removal, an alien must demonstrate a \u201cclear probability\u201d of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (citing Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994)). Persecution is defined, in relevant part, as the infliction or suffering of harm \u201cunder government sanction\u201d or by \u201cgroups the government is unable or unwilling to control.\u201d See Chen, 470 F.3d at 1135 (citation omitted); Adebisi v. I.N.S., 952 F.2d 910, 914 (5th Cir. 1992)"], "id": "372c5527-c848-4354-afbd-1484e453ab27", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["See 8 U.S.C. \u00a7 1158(b)(2)(A)(ii), (B)(i) (precluding for aliens who have been convicted of a \u201cparticularly serious crime,\u201d which includes aggravated felonies); id. \u00a7 1229b(a)(3) (providing that conviction for \u201cany aggravated felony\u201d renders aliens ineligible for cancellation of removal); id. \u00a7 1231(b)(3)(B)(ii) (providing that an alien convicted of one or more aggravated felonies with an aggregate prison sentence of at least five years is barred from seeking withholding of removal). See 8 C.F.R. \u00a7 1001.1(p) (providing that a lawful-permanent-resident status \u201cterminates upon entry of a final administrative order of exclusion, deportation, removal, or recission\u201d). See, e.g., 8 U.S.C. \u00a7 1182(a)(2)(A)(i)(I) (crimes of moral turpitude), (II) (drug crimes). See id. \u00a7 1182(a)(6)(E)(i). See id. \u00a7 1255(a) (providing that any inadmissible alien is ineligible for an adjustment of status). See id. (providing that an adjustment of status may be granted in the discretion of the Attorney General to aliens who are eligible to receive an immigrant visa and are \u201cadmissible to the United States for permanent residence\u201d)."], "id": "dca0d1b6-9bd6-4b42-98de-9a5829be5e80", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["47 Because Ms. Dai did not establish her eligibility for , she cannot meet the higher burden for withholding of removal. See supra note 28. Ms. Dai did not make any argument before this court regarding relief un- der the CAT; she therefore has forfeited any argument regarding that re- lief. See Silais v. Sessions, 855 F.3d 736, 742 n.5 (7th Cir. 2017)."], "id": "d4f9b257-17cd-4351-8602-908933026005", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["After July 6, 1912, until he was taken away to an , or sanatorium, Mr. Martin was at the summer hotel at Kittery Point. The various inmates of the hotel have given in great detail their evidence of what he did and said while there. Most of these witnesses were, however, before this summer strangers to Mr. Martin, and their opinions have not the fullest weight. Certainly Mr. Martin\u2019s conduct between July 6 and 31, 1912, was in many respects very peculiar and lacking in good taste. Whether it bears evidence of the incapacity which certainly soon followed is another question. The proponents introduced circumstantial evidence which they thought tended to break the 'force of the evidence of insanity and to show that Mr. Martin was at this time sufficiently under the influence of liquor, to enable me to infer that the eccentricities and bad manners testified to may have been occasioned by drink and were not due to any mental impairment. But as Mr. Martin was shown to be always a temperate man and no witness at any time ever saw him drink to excess or actually under the influence of liquor, I cannot infer from such circumstantial evidence alone that the rather gross eccentricities and conduct of Mr. Martin testified to by the witnesses were due solely to a bare possibility of drink. These particular incidents of eccentricity and folly are, however, most important according as they tend to corroborate or *305rebut the medical testimony given in evidence or as they bear directly on the act of testamentation taking place on the 31st of July, 1912. That eight days after the 31st of July, 1912, Mr. Martin was insane the evidence conclusively demonstrated. During this last severe attack Mr. Martin died. The real question remains, Was Mr. Martin sufficiently sane in law to make his will on the 31st of July, 1912? The stupendous mass of evidence now before me is all addressed to that one narrow, definite and great question. This evidence has been exhaustively and laboriously presented and its legal effect argued by counsel in this case with the utmost ingenuity, learning and skill. That the will on its face bears internal evidence of rationality is not enough. The mere fact that an allographic will bears internal evidence of sanity does not establish capacity to make it. I know of but one authoritative case, not cited to me (Cartwright v. Cartwright, 1 Phill. Ecc. 90), where a will was held to afford internal evidence of sanity, and that was a holograph. Now, a holograph is a declaration which may be given in evidence on an issue of sanity. The logic of the adjudication in Cartwright v. Cartwright in any respect has been criticised, and I think justly, for the will in that instance was allowed to prove sanity, and sanity being thus established the will was held valid. This is an example of the logical fall\u00e1cy called circle in the proof\u2014\u201c circulando in probando\u2022"], "id": "7c097830-55f8-4749-beca-1869d7b78604", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": [",: The evidence in this case satisfies me, and I think it must satisfy everybody, that this man might have and did have a lucid interval at that time; and that a will may be made in a lucid interval, of course, is established over and over again. It is not necessary to quote any. authority for that. The fact that this man had been committed to a lunatic may be presumptive evidence of his insanity, although that is controverted by Mr. Spink, (and I am inclined to think that he is right about it,) but for the sake of the case we will admit that. I have a case here, Matter of Pendleton, 1 Connoly Surr. Rep. 480, where the will of a person (who, at the time the will was made, was under the care and custody of \u00e1 commission in lunacy) was admitted to probate. That, however, proves nothing. That case is no authority to us, except that the existence of the commission in lunacy was not regarded as conclusive at all upon the question of capacity. As to that, the court inquired independently, *452and came to the conclusion that the lunacy commission was wrong, and that the woman was sane, or \u00a1that she had a lucid interval. The number of .witnesses called by the contestants to sustain their, case,' by count\u2014if we were to count them, and to thus talk about the weight of evidence\u2014falls some five . or six short of the number called by the proponent \u00a1upon the very same question. There was one witness:.in .this case whose testimony was, to my mind,, a gem. Every word that fell from that woman\u2019s lips-1. believe, was golden truth; and, if her testimony is true of the details of the conversation that she had with this man,\u2014 if what she said was true, as I believe it to have been beyond the possibility of a doubt,\u2014then this man, Kiedaisch, the testator, was competent to execute a will; and quite aside from the testimony of. anybody else, taking that witness\u2019 testimony\u2014the. young \u00a1woman, Mrs. Beiser\u2014taking her testimony as true, (aind I, as I have said, believe it to be,) there could be no question in the mind of anybody but that this\u00a1.:man' was capable of making a will at the time he made, this one; and I have come to the conclusion, as you-,see, that on all the evidence I am satisfied beyond /any doubt that this decedent had capacity to make-this will, and that it is entitled to probate.- . And'I think that the testimony should satisfy the friends and \u00a1relatives of this man, who have so fairly and properly sought this contest and this inquiry. Let a decree be presented admitting the paper to probate."], "id": "c878537e-8e85-4733-837b-2046ddd22711", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The contentions of the beneficiary are overruled and her application for the payment to her of the amount of unpaid income or of future total net income is denied. In so far as they affect the interests of Julia Littman, the terms of the will were drawn with precision and foresight by the testator. He knew his sister\u2019s unfortunate condition and her long record of confinement in various institutions. She was a special object of his solicitude. He intended in every possible way to provide for her comfortable support, but at the same time planned to guard her against her own improvidence or against the imposition of designing persons. The broadest powers were given to the trustees by paragraph tenth to apply \u201c so much of the income \u201d as may be necessary for her support and maintenance so long as she remained an invalid and the inmate of an or sanitarium or \u201c if the executors and trustees deem she is unable to care for herself.\u201d The testator himself defined what he meant as the tests of her incapacity by his further statement that should she at any time recover her reason \u201c and be able to properly manage and care for herself and her property \u201d the trustees might pay the total net income to her after a method which he fixed for the determination of her mental strength and her capacity to care for herself and her property. A return to a condition of incapacity was foreseen and provided for. An additional formula of action for the trustees was outlined by the testator in the event that the beneficiary should again become mentally incompetent or an inmate of an institution. In such event the mandate was changed again from a direction to pay to a direction to apply. The draftsman plainly knew the technical distinction between these two legal forms of distribution of the income of testamentary trusts. (Matter of Connolly, 71 Misc. 388.)"], "id": "7aada376-97d5-4403-982e-3fb4b8fbc6b3", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The listed exemptions under section 1801(c) are: \"[r]ental units in hotels, motels, inns, tourist homes and rooming and boarding houses\"; \"[r]ental units in any hospital, convent, monastery, extended medical care facility, , non-profit home for the aged, or dormitory owned and operated by an institution of higher education\"; \"[r]ental units which a government unit, agency or authority owns, operates, manages, or in which governmentally subsidized tenants reside\"; \"[r]ental units in owner-occupied dwellings with no more than three (3) units\"; \"[r]ental units and dwellings constructed after the adoption of this Article\"; and \"[w]here a unit is actually used for purposes of providing, on a non-profit basis, child care or other residential social services.\" None of these exemptions are applicable in this case."], "id": "f13f9c9c-4047-4ba4-9387-c6de972ccbf4", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["I am also satisfied that, at the time the wills of 1874 and 1877 were executed, she possessed sufficient testamentary capacity. The very fact that she made the \u201cmem. of my will,\u201d for the latter will, which was drawn in strict accordance therewith, is the strongest evidence of that fact. It shows that she carried in her mind the provisions of the next prior one, together with the important intermediary acts, and also the condition of her pecuniary matters: That she omitted the Whelpley children from' its provisions, cannot be regarded as remarkable when it is shown that, for some cause, whether *382just or not, she had no particular regard, for them. Being of sound mind, her will stands as the reason for the act. The testimony of her attending physicians shows her competency. I agree with Surrogate Bradford, as to what he says, in Allen v. The Public Administrator (supra), in regard to the importance of such testimony. They saw, conversed with and observed her, and they give the facts and conclusions derived from them. It is, to my mind, much more satisfactory than the testimony of experts, based solely upon hypothetical questions. About three years subsequent to making the will of 1877, the old lady became palpably insane, laboring under very marked delusions, and it was not until she reached this stage, that the expert, Dr. Schmid, saw her. Able and skillful as he is, I am unwilling, from his inferences, as against the testimony of the attending physicians, to reach the conclusion that she was mentally unsound three years before. Dr. Nichols, the distinguished Superintendent of the Bloomingdale , to whose enlightened testimony I listened with great interest and pleasure, because of his thorough candor, large experience and perfect mastery of the subject, never saw the deceased. This witness failed, likewise, to impress my mind with a conviction of the mental incompetency of the testatrix in 1877. Had he been her attending physician at that time, and subsequently to the period of the manifestation of positive delusions, and had he then testified to her mental unsoundness throughout, giving the facts and the reasons, I should have felt bound to be guided by his mature judgment. As it is, I find that she was competent to make the will, and that it must be admitted to probate."], "id": "d2b16b2a-08ad-4e79-83bd-b89362c63930", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The meaning of this law seems to be that Italy holds those who remain its citizens and who return to its jurisdiction, to obey the laws of the country to which they migrate and will punish them for an infraction of certain domestic laws of the country *698of their stay and whose they accept, when they are found guilty thereof."], "id": "ec550b76-ebbc-4f79-85f8-b79b4610cce4", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c Sixteenth. In case the sum of all the bequests above made \u25a0should exceed in value one-half of the personal estate of which I may die seized and possessed, I hereby direct my executors, hereinafter named, to take such a proportionate sum from the bequests made in Second, Third, Fourth, Fifth, Sixth and S'eventh clauses of this my said will, namely the bequests to the Home for Aged Men and Couples, the Home for the Homeless in the city of Utica; the House of the Good Shepherd; St. Luke\u2019s Home and Hospital;\" St. Elizabeth\u2019s Hospital and Home; and the Utica Orphan , as will reduce the sum of all bequests heretofore made in this my will to one-half of my personal estate. \u201c Seventeenth. In case the sum of all the bequests above made should not equal in value one-half of the personal estate *274of which I may die possessed, I hereby direct my executors, hereinafter named, to add such an equal sum to each of the bequests made in the Second, Third, Fourth, Fifth, Sixth and Seventh clauses of this my said will as will cause the sum of all bequests heretofore made in this my said will to equal in value one-half of my personal estate. \u201c Eighteenth. All the rest, residue and remainder of the property of which I may die seized and possessed, or which may come to my estate after my decease, real, personal and mixed, of every name and nature and wheresoever situated, not herein-before disposed of, I hereby direct my executors, hereinafter named, to divide into five equal parts; and I hereby direct my said executors to divide one of such equal parts equally between John 3VI. Barton and Jennie Rowland, the children of my deceased brother, John Barton, or their descendants per stirpes One-half of the estate of testator, at the time of his death, amounted to much more than the total of legacies; hence, instead of any of the six legacies to charity abating as provided by-clause sixteenth, they were each more than doubled under the provisions of clause seventeenth."], "id": "03a38d53-3585-4d9e-9377-e45844f2bc08", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["a member of a particular social group. An applicant who requests or withholding of removal based on membership in a particular social group must establish that the group is: \u201c(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.\u201d Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))."], "id": "f91b5433-856a-4368-8246-b7470f65510c", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["A writ de iMnabico inquirendo having been granted, and it appearing upon inquisition that he was.a lunatic, and had personal property in this city, proved upon the inquest to be about-$40,000, the care of 1ns person was committed to Conner Jones, esq., and of his estate to Nathaniel Jarvis, Jr., esq. Upon the appointment of a committee of his person, Colah was trans*531ferred from the Bellevue Hospital, to a private lunatic , at Fishkill, and it subsequently appearing that Major A. Gr. Constable had, from motives of humanity, taken a very active interest in his case, that that gentleman had been for some years a resident of Bombay, was familiar with the religious views, usages, and peculiarities of the Farsees, and could communicate with Colah in Mahratta, the only tongue in which he can or will converse since his insanity, it was deemed judicious by the court to transfer the future custody and care of him to Major Constable, by whom he was afterwards removed to the insane asylum at Flushing, where he is now under medical care and treatment."], "id": "e19ca688-e232-40fb-8516-47cae86f8037", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The deceased was horn in 1827; she came from ancestors distinguished in the public service of this State in the early period of its history; her father died in 1830' and her mother in 1833. She was reared and educated by relatives as became her station in life and according to the custom and practice of early days. In 1840 she married. In 1865 she became insane through the birth of a child, and was thereafter confined in a lunatic until 1878, although from 1872 until her discharge in 1878, she was in the convalescent hall attached to the hospital, attending to various duties that had been assigned to her. Upon leaving the asylum she went to live with her aunt Emma Sanford in Gowanda. In 1881 on account of treatment and under the belief that her aunt intended to send her back to the asylum she left the home of Mrs. Sanford, to live with the family of Samuel M. Stuart, in Hamburg. In 1881 she applied to the Supreme Court for the removal of one George J. Greenfield, then her committee, for the restoration of her property. The proceeding resulted in the continuing of the committee, but allowed the deceased to select her residence and the persons with whom she desired to live. In 1888 her sister\u2014 this contestant\u2014was substituted for Greenfield as committee of her person and estate. In 1889 the deceased again applied to the Supreme Court for the discharge of her sister, as committee, and also asked that the property held as such committee be transferred to the deceased. Then followed a protracted litigation between the sisters. Mr. George Gorham, to whom the matter was referred, reported that the deceased was competent to manage herself and her affairs. His report was confirmed by Mr. Justice Lambert, and on appeal to the General Term, the same was affirmed; and in 1895 the Court of Appeals die-*17missed the apptal of Mrs. Mitchell to that court. In 1893 the decedent received from her committee, after deducting costs and expenses, approximately the sum of $64,000. About that time the decedent gave to Samuel M. Stuart a power of attorney to act for her, and Stuart seems to have continued to do business for her until she died."], "id": "ffa20280-c437-49e7-92e0-d68f20c2db40", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["III. The JBoard of Home Missions of the Presbyterian Church has a provision in its charter (chapter 287 of 1872), in section 5, subjecting it to all the provisions of law relating to devises and bequests by last will and testament, and it is therefore brought under the rule we have stated as to the orphan . Those words were held, it is true by a divided court, in Kerr v. Dougherty (79 N. Y., 327), sufficient to subject the corporation to the restrictions and limitations in section 6 of the act of 1848. We must follow the majority, and the decision rendered by the court."], "id": "36195ce3-45c2-43de-95c3-0de8531d64e5", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The same publication states elsewhere that \u201cit is the general rule, but by no means an invariable rule, that where a preceding estate is made to depend upon a contingency which never happens, the contingency affects only the estate to which it is annexed and does not extend to the ulterior limitations; the mere lapsing of intervening estates will never be allowed to defeat the remainder over unless they be coupled with conditions upon which the subsequent limitations are in some way made to depend.\u201d (Citing Pennington v. Pennington, 70 Md. 418; 3 L. R. A. 816.) \u201c * * * It is a question in each case of the reasonable interpretation of the words of the particular will, with a view of ascertaining through their meaning the testator\u2019s intention. If it appears to have been the testator\u2019s intention not to extend the contingency beyond the estate to which it is annexed it will be limited to that estate and will not extend to the ulterior limitations. If, however, the testator seems to have contemplated no distinction between that estate and those which follow it, the contingency will equally affect the whole ulterior train of limitations.\u201d (23 R. C. L. 554, citing Robison v. Portland Female Orphan , supra.)"], "id": "4f5cb907-46fc-4ce8-a597-5774f9bf6ead", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The disputed lands belonged formerly to a State institution, St. Lawrence State , and were annexed to the City of Ogdensburg in 1901. The parties agree that prior to the annexation, the asylum property lay within the educational jurisdiction of the Town of Lisbon Common School District No. 1. The City School District maintains \u2014 and the Commissioner agreed \u2014 that the expansion of the municipality in 1901 worked an identical expansion of the Ogdensburg School District. Petitioner denies that the municipal annexation lawfully could enlarge the City School District and argues that the asylum property remained part of the Town of Lisbon Common School District No. 1 until petitioner annexed that district in 1956."], "id": "8ebb76eb-e780-4128-b849-4647479b2022", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Amanda Johnson was employed by Mrs. Scott for nine months in 1893. Decedent was delicate, just sick. She did not tell witness what was the matter. She took massage treatment while witness was there, who used to have to stay in the room during the time. While the rubbing was going on decedent would have some covering over her. Never heard her say that she was in danger of being poisoned. *347She was not easy to get along with. She used to become angry sometimes. She said she had too much business to attend to; that she thought Scott did not care for her because she was too old; that he drank sometimes; that they would try to break her will when she was dead by trying to prove that she was crazy, that Scott would try and do this. Once when the witness was with her passing in sight of an insane , decedent pointed in that direction and said that Ball and her husband had picked out a room in that institution for her. In the opinion of the witness Mrs. Scott was sane."], "id": "5c6cfae2-c271-4458-a441-282119834df3", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["While the mother was in the , the brother, Edward ft. Kimball, Jr., acted as her guardian by appointment of the court. From time to time he made reports of his stewardship to his sister, the decedent, and the report and schedules annexed of his dealings with the estate amount to the round figures of $46,000. These reports were submitted to the decedent from time to time, the last one being presented to her on March 18,1924, with the court making its final decree thereon on April 24, 1924. The mother had died on March 18, 1924, permitting the final decree of guardianship as hereinbefore stated."], "id": "dbd24bed-8f88-463d-a6f1-57698e66fc48", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["but Ms. Dai only would admit to being a Christian. Accord- ing to Ms. Dai, \u201c[t]he police became very angry and grasped [her] hair and banged [her] head on the wall and ordered [her] to confess.\u201d At this point, her nose was bleeding, but the po- lice ignored it. They then \u201cordered [her] to kneel down on the ground and criticize [her]self.\u201d They further ordered her to give the names of her fellow churchgoers; when she re- sponded that she did not know who they were, the police \u201ckept slapping [her] on [her] face.\u201d Ms. Dai \u201cfelt dizzy and fell down on the ground,\u201d at which point her interrogators \u201ckicked [her] hard.\u201d After this encounter, she was placed in a detention room for five days with little food and water. She was released after her family paid a fine and after she signed a statement promising not to participate in religious activities and to report to the police on a regular basis. B. Ms. Dai next had an interview with an officer. The officer concluded that Ms. Dai was not credible for several reasons. First, Ms. Dai\u2019s statements about her religious prac- tices were inconsistent. She gave varying dates for when she started attending church and, when asked to explain the dis- crepancy, she \u201cwas non-responsive and continued to"], "id": "691578b1-1fca-4366-920a-0c2ebdd04877", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The present interest of the Richfield Springs Lodge No. 482, F. & A. M. in the trust under paragraph \u2018 \u2018 seventh \u2019 \u2019 of the will is void as an illegal suspension of the power of alienation, and the remainder will be accelerated, so that said paragraph *970will be construed as an outright bequest of one half of the residuary estate to the Trustees of the Masonic Hall and Fund of the Grand Lodge of Free and Accepted Masons of the State of New York, free from any trust for the benefit of the local lodge, but to be used for the benefit of the Masonic Home at Utica, New York."], "id": "2bb2220c-12a6-49e1-8401-30f53c9095b9", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Thus, under proper circumstances, hearsay alone can be sufficient to warrant a finding of probable cause to extra*70dite. In the case at bar, the affidavit, although based on hearsay, is, as in Goeschel {supra), exceedingly detailed. It specifies many of the factors surrounding the investigation of the burglary and alleges how petitioner was found near the scene of the crime under incriminating circumstances. The primary sources of information are two police officers personally known to the affiant. The statement by petitioner\u2019s alleged coconspirator is against his penal interest and probably admissible even at a trial, if he is \u201cunavailable.\u201d (People v Settles, 46 NY2d 154.) Additionally, there is a statement by an employee of the company allegedly burglarized and a statement on affiant\u2019s personal knowledge is incorporated into the affidavit. On these facts, without doubt, there is probable cause to believe that petitioner participated in the crime of burglary under sections 943.10 (subd [1], par [a]) and 939.05 of the Wisconsin statutes. For the foregoing reasons this State must honor the extradition demand and the writ must be dismissed. Petitioner is herewith remanded to the State of Wisconsin for further proceedings."], "id": "73c10b63-adaa-49ef-b9a5-ac72d09c29bc", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The proofs show that, until about six years before his death pleasant relations had existed between the decedent and his wife and children, and that he was accustomed to speak of them in terms of praise by reason of their devotion to his interests. A change was observed in his feelings toward them about the time that his daughter Isabella, against his wishes, had become enamored of a young man named Noot, a resident of Chicago, and she, rather than forego her preference for her affianced husband, left her home and joined him in Chicago, Avhere they were married. In the instrument the decedent expressly states that the bequest of $>10 to Mrs. Noot is to show her that \u201c he had not forgotten her in his will and to recall to her her disobedience at the time of her marriage.\u201d Her disinheritance under the circumstances reflects no light on the question of the decedent\u2019s mental condition. But soon thereafter he made state*513ments to different witnesses, all intimate friends of the family, in which he represented that his children were persecuting him in various ways, and at times he stated that his wife was a party to their conduct. These statements were repeated from time to time during the remainder of his life; they were in substance, that his children were endeavoring to get his property away from him; that a son and daughter had attempted to poison him; that his children, or some of them, had declared that he ought to be in an insane ; that they had employed men to watch him for the purpose of taking him to an asylum; that his son had spoken with the captain of a steamer, in which he went to Europe, to have him arrested as a lunatic when he arrived at Bremen; that his children had conspired to place him in a lunatic asylum; that they had caused carriages to be employed to remove him from his house to an asylum; had threatened to have a lawsuit begun against him by the government because he had once brought from Europe a pair of earrings without paying duty thereon, and that they had caused the children in the street to cry out to him as he passed."], "id": "3973e90b-fedc-4bc6-8a5f-60f7445957ef", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["It is well established that, except in the rarest of cases, once the Governor of the State has ordered extradition \" 'a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding State; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive\u2019 \u201d (People ex rel. Strachan v Colon, supra, at 502; Michigan v Doran, 439 US 282)."], "id": "99fd0de2-a2f1-4e6f-89b0-4c2892fee168", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["interview with the officer, she first stated that she had attended only one church meeting prior to her arrest, but then stated that she started attending meetings in September 2009. Moreover, \u201c[w]hen asked to explain the inconsistency, [Ms. Dai] was non-responsive and continued to contradict herself.\u201d Thus, the record supports the IJ\u2019s determination that there were discrepancies regarding how long Ms. Dai had been practicing her faith before the incident with the po- lice. Concerning the second discrepancy\u2014whether her grand- mother attended church services with her\u2014Ms. Dai acknowl- edges that she gave conflicting testimony. Her counsel sug- gests that \u201c[w]e cannot speculate as to why the Petitioner ini- tially answered incorrectly\u201d and maintains that whether Ms. Dai\u2019s grandmother attended church with her is trivial. However, certainly one reasonable conclusion from Ms. Dai\u2019s different recollections is that she is prevaricating. Moreover, the IJ acknowledged that each of the inconsistencies, standing alone, \u201cmight be insufficient to warrant an adverse credibility finding,\u201d but was \u201cconcerned with [their] cumulative ef- fect.\u201d"], "id": "573c30bc-6a38-48ae-ad5f-4eb25eab455d", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["In addition to the evidence of the acts and conversations of the testator, extending over a period of several years immediately prior to his death, and the opinions of some of the witnesses, who were called to detail them as to the impressions made at the time by such acts and speech, and the opinions of the subscribing witnesses to the will and codicil, expert testimony has been given. Four physicians on the part of the contestant; and three, including the state commissioner in lunacy and the superintendent of the State for Insane Criminals, on the part of the proponents, were produced as witnesses. They testified to their opinion, in response to hypothetical questions, propounded by the respective counsel. To a question presenting very fairly the principal facts established by the whole evidence five of these witnesses agreed in giving the opinion that a person thus described, would be one of sound mind. The other two witnesses answered adversely in reply, to a question embracing only the facts testified to by a portion of the contestant\u2019s witnesses, and without the benefit of the entire history given in the case."], "id": "9460007c-b4bd-46ab-8180-5d0a9ad6956f", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["Testatrix left a will, executed in October, 1925, and two codicils dated respectively April 19 and November 29, 1929, all of which have been admitted to probate. By the first item of the will she left certain specified real and personal property to \u201c the Orphan Association of New York; \u201d and in the second bequeathed to her brother \u201c the shares of stock of the Brooklyn City Railway Company which my mother left to us upon her death, about the year 1912, together with any accretions thereto by way of stock dividends upon the shares that I received from my mother.\u201d The remaining dispositive items of the will gave a considerable number of legacies and various specific articles to various individual legatees and disposed of the residue to Princeton University."], "id": "6994ba55-13c3-4b4d-9773-7f8aba16757b", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Section 124 of the Domestic Delations Law provides tha-t an orphan or charitable institution for the care of orphans, friendless or destitute children, may bind out as an apprentice, clerk or servant an indigent or poor child by an indenture in writing. It also provides that such child must have been absolutely surrendered to the care and custody of such asylum or institution, in pursuance of the provision of the Poor Law, or have been placed therein as a poor person, as provided in section 56 of said law, or have been left to the care of such asylum or institution with no provision by the parent, relative or legal guardian of such child, for its support for a period of one. year next preceding."], "id": "818ca519-7765-4402-ac92-d7040c0bf069", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["*Honorable Liles C. Burke, United States District Judge for the Northern District of Alabama, sitting by designation. 1 Johnson\u2019s native language is Cameroonian Pidgin English. He says he has a limited English proficiency. 2 officers conduct credible fear interviews when a person seeking entry into the United States is subject to expedited removal and he or she USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 3 of 11"], "id": "c4669477-1795-44b2-ba57-c286d485abbd", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\" Tenth: Subject to the life-estate of my said husband, X dis*471pose of the'property so held in trust for him as follows, viz: * * * I give, devise and bequeath a one-fourth part thereof to the said Syracuse Home Association and I give, devise and bequeath a one-fourth part thereof to the Onondaga County Orphan located on East Genesee Street, Syracuse, New York.\u201d The first paragraph of the will directs the payment of debts; the second gives $250 to a cemetery association; the third gives $500 to the Methodist Episcopal Ohurch at North Manlius; the fourth gives $500 to the Syracuse Home Association; the fifth bequeaths $600 to each of six children of James Adams, her cousin."], "id": "346ac195-5782-44ca-a797-c827b3fd1819", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Dear Sir : You will easily call to\" recollection the case of James C. Griffen, whom you sent to this , from Norwich. He appears to me to be well. For a while he was in *128a confused state, but the entire removal from all the exciting causes of his insanity, with occupation, has seemed to restore his mind. He is now somewhat anxious, though reasonably so, to leave and go to live with his brother, in Wisconsin territory, and does not wish, or intend, ever to see his wife again, or go to the neighborhood where she is. His brother here, and other relatives, will join with Mm in giving any assurance you may wish that he will thus go away; and I think it would be proper, for he is, I find, naturally a very amiable and peaceful man. I have told Ms friends that all this is left to you, and I hope you will have the kindness to write me soon upon the subject, and state what kind of a writing, if any, will be acceptable in order to induce you to see fit to discharge Mm. I again repeat, that I tMnk him well and not likely to relapse, and that the community will not be endangered by Ms release."], "id": "5318d560-70d7-4478-a75a-aecdf818cafc", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["sor, INS, have long employed guidance instructing immigration officers to prioritize the enforcement of the immigration laws against certain categories of aliens and to deprioritize their enforcement against others. See, e.g., INS Operating Instructions \u00a7 103(a)(1)(i) (1962); Memorandum for All Field Office Directors, ICE, et al., from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum for All ICE Employees from John Morton, Director, ICE, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al., from Doris Meissner, Commissioner, INS, Re: Exercising Prosecutorial Discretion (Nov. 17, 2000). The policy DHS proposes, which is similar to but would supersede earlier policy guidance, is designed to \u201cprovide clearer and more effective guidance in the pursuit\u201d of DHS\u2019s enforcement priorities: namely, \u201cthreats to national security, public safety and border security.\u201d Johnson Prioritization Memorandum at 1. Under the proposed policy, DHS would identify three categories of undocumented aliens who would be priorities for removal from the United States. See generally id. at 3\u20135. The highest priority category would include aliens who pose particularly serious threats to national security, border security, or public safety, including aliens engaged in or suspected of espionage or terrorism, aliens convicted of offenses related to participation in criminal street gangs, aliens convicted of certain felony offenses, and aliens apprehended at the border while attempting to enter the United States unlawfully. See id. at 3. The second-highest priority would include aliens convicted of multiple or significant misde- meanor offenses; aliens who are apprehended after unlawfully entering the United States who cannot establish that they have been continuously present in the United States since January 1, 2014; and aliens determined to have significantly abused the visa or visa waiver programs. See id. at 3\u20134. The third priority category would include other aliens who have been issued a final order of removal on or after January 1, 2014. See id. at 4. The policy would also provide that none of these aliens should be prioritized for removal if they \u201cqualify for or another form of relief under our laws.\u201d Id. at 3\u20135."], "id": "e3b834be-e4d3-4f08-9781-07efb5121299", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["None of these several provisions seem to have been complied with by the committing magistrate in this case, and inasmuch as the authority of the protectory to receive and keep in custody is limited to cases where compliance with those requirements appears, the commitment to that institution must be regarded as unauthorized. There is nothing in section 291 of the Penal Code which increases the authority of the protectory to receive and take charge of minors beyond that conferred upon it by statute. On the contrary, it limits the power of the magistrate in designating the charitable reformatory or other institution as the place of commitment to one authorized bylaw to receive and take charge of the childand power is not given to commit to any such institution, whether authorized by law to receive and take charge of minors or not. The warrant in this case committed the child to the house of reception of the New York Catholic Protectory, but it failed to show the case to be one upon which that house is authorized to receive the child, and none of the subsequent steps were taken, as required by law, to authorize commitment to the after the expiration of twenty days."], "id": "e4fa8e73-8599-4a4a-b9df-c5bb17b3a859", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["clarify the discrepancies \u201cprovide[d] ample support\u201d for an ad- verse credibility finding). Johnson also contends that the IJ and the BIA failed to properly consider the country conditions report, which he con- tends corroborates his claim of past persecution. We disagree. The report describes incidents of government violence toward some Anglophone activists. But it says nothing about Johnson\u2019s personal circumstances, including details about his detention or mistreatment by police or whether he personally would face harm if he returned to Cameroon. Given the inconsistencies in Johnson\u2019s testimony and the record, as well as the lack of other corroborating evidence for his claims, substantial evidence supports the BIA\u2019s denial of Johnson\u2019s application. Further, because Johnson failed to establish his eligibility for asylum, he has also necessarily failed to meet the higher standards for withholding removal and CAT relief. See Forgue, 401 F.3d at 1287\u201388 & n.4. PETITION DENIED. USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 9 of 11"], "id": "630e41e4-bae5-4fc6-90fe-b1acfd822daf", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The decedent was committed to the Lunatic at Bloomingdale on the 21st of January, 1853, on the -affidavits of Dr. Edward Gray and Dr. John Hart. Dr. Hart says he was introduced to the decedent on the 21st of January. \u201cHe was represented to me to be insane by Dr. Gray, his attend*218ing physician.\u201d \u201cIt was represented to me that he was pretty wily, and for that reason I was not introduced as a physician, hut simply as Hr. Hart.\u201d The doctor conversed with the decedent, \u201cfound him exceedingly cautious,\u201d and perceived no indication of insanity. Being \u201c completely foiled,\u201d he withdrew .and \u201c conferred with his children to ascertain the leading points of his insanity\u2014the direction in which his mind wandered.\u201d He learned that \u201c he was in a state of delusion as to his children\u2014that some of them were not his, but were palmed upon him as his, but he thought they were spurious;\u201d with this information he returned and made another trial. He says: \u201cI touched upon that point on my return, and he became excited, and demanded my right to question him on that subject.\u201d The doctor finally gained his confidence, and he adds, \u201c he then gave me an indubitable evidence of his insanity, by denying part of his own children, stating that some of them were his, and some of them were not.\u201d Dr. Hart came to the conclusion that he was insane on that point, and he also thought there were other indications of insanity besides. He says: \u201c The family wished him removed, and stated that he had been violent and attempted to injure himself, and that he was unsafe to be at large.\u201d The effect of the delusion is thus stated by the doctor : \u201c those he regarded as his children he was fond of, and those he did not so regard he was not attached to. That was my general impression. He spoke simply of his children\u2014 some were his and some were not. Some he acknowledged and some he repudiated. He was very excited, particularly when I questioned him on his family.\u201d"], "id": "cd16da4b-c95d-4bd5-8f84-b0f4ee837fe7", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["Proponents produced the subscribing witnesses to the execution of both the will and the codicils, all of whom answered \u201c rational \u201d to the customary question asked of such witnesses. Each of the instruments included an attestation clause. In the envelope with the will was found a paper in the handwriting of decedent in which were set down the names or titles of the beneficiaries in this will and opposite each the amounts to be bequeathed to each. Then on the back thereof were certain figures which apparently represented a statement of his then available property and calculations of the aggregate amounts of certain groups of bequests. Copies of addresses made by decedent on various occasions, various letters written by him at about the time of the execution of the will and codicils were the strongest evidence of a brilliant and clear thinking mind and a dominant character and commanding personality. The most impressive array of witnesses who had contact with the maker of a will and have testified in contested will trials in the *606court\u2019s experience took the witness stand in this trial and attested the rationality of testator. They included Mr. F. Coit Johnson, of J. H. Lane & Co., Percy W. Rockefeller, Bertram E. Hood, Charles G. Coster, George J. Gillespie and Henry B..Johnson, members of the bar, Lucien Jauvaud, president, and Dr. Robert H. McConnell, chief medical officer, of the French Hospital, Mary E. Brewer, Mary Cathleen Hennessy, Ex-Governor Alfred E. Smith, Rev. Dr. Lawrence T. Cole, rector of Trinity (Protestant Episcopal) School, George McAneny, former president of the board of aldermen and ex-transit commissioner, Walter H. Bennett, president of Emigrant Industrial Savings Bank, George H. B. Mitchell and Robert J. Cuddihy, president of Literary Digest. The testimony of these witnesses, of the subscribing witnesses, of Rt. Rev. Thomas J. Shahan, of Reverend Sister M. Carolus, of Mount Loretto Orphan , and Reverend Sisters M. Isabella and Clothilde, of St. Agnes Hospital for Crippled and Atypical Children at White Plains, together with the documentary evidence presented by the proponents, constituted evidence of a most preponderating character upon the question of testamentary capacity. Moreover, all the wills and codicils and trust deeds made by testator in his lifetime manifested the Same general plan of distribution of his property as set forth in the propounded papers. At the close of the trial there could not be the slightest doubt that testator when he executed the will and the codicils knew the nature of the act that he was performing, the extent and scope of his property and the names and identities of those who would be the natural objects of his bounty and his relations with them. Little if any weight may be given to the alienists who appeared for the contestants. They had never known nor met testator, they had never analyzed nor read the propounded papers previously to formulating their answers to the hypothetical question, they had not known the exact proportions of his estate bequeathed to his relatives, they frankly admitted that they knew nothing about the Catholic religion nor about Catholic doctrines. Moreover, the assumptions set forth in the hypothetical question embodied a most inadequate part of the proofs submitted during the trial and in fact no part of the proponents\u2019 case and even that part of the testimony which was condensed in the hypothetical questions was in many instances clearly exaggerated and in almost every instance weak and unimpressive. In conclusion it should be noted that Dr. Riley, one of the alienists, testified as follows (p. 702): \u201c Q. May I ask you this: It [the paper in testator\u2019s handwriting found with the will] would show he knew what he was disposing of, would it? A. Yes. Q. And it would show to him he was disposing of it, would it not? A. Yes. Q. And your *607hypothetical question assumes that he .knew, does it not, of his sister and relatives? A. Yes. Q. So that he knew who his relatives were when he made this will? A. Yes. Q. And he knew what he was disposing of, is that so? A. Yes; \u201d and that Dr. Orton, the other alienist, testified as follows (p. 750): \u201c Q. And if you found a will like that fortified by this letter to the executors and fortified by the memorandum in his own hand, what he wanted to do, you would say that he knew that he was disposing of his property, wouldn\u2019t you? A. Would he know that he was disposing of his property? Q. Yes. A. Of course. Q. And if he mentioned in that will every one, every surviving nephew or niece and other relatives you believe that he had in mind those in whom he was interested would you not? A. No question of it.\u201d"], "id": "b482eb3d-f4c1-44a3-ae17-c6d338d88dba", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["And where a will provided, \"I give to my nephew .... and to his son all my interest, either real, personal or mixed, in the Jimeno Eanch.....And I recommend to my said nephew to leave his portion thereof after his own death, and the death of his wife\u201d to his son and his children, or descendants, and, in default of such, to Harvard College, the court held that no trust was created in favor of the college: In re Whitcomb\u2019s Estate, 86 Cal. 265, 24 Pac. 1028. In the case of Succession of Hutchinson, 112 La. 656, 36 South. 639, the bequest was to a university for the sole benefit of its medical department. The will contained numerous recommendations, but they were held not to amount to conditions. A somewhat similar bequest was made in Pratt v. Trustees, 88 Md. 610, 42 Atl. 51, where the residuary estate was given to an insane . One clause of the will stated that, while testator did not wish to alter the management of the asylum, it was his \"wish and will\u201d that the estate given be used to complete the present buildings, etc. The court held that no trust was created."], "id": "98ea325f-654e-4f3a-af16-01afe29de477", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Margaret Donlon, a witness to this alleged will and the executrix named therein, testified that she Avas the Avife of John Donlon, of the age of forty years, had known Bridget Fox for twenty-three years, and that she had always lived in the same place where she died, and was at her house often during the time she knew her; that she lived near her and Avas well *678acquainted with her and had been to her house a good deal during that time; that she knew Martin Fqx very well during five years until he died; that the relations between Martin Fox and Bridget Fox were always pleasant; that she knew Honora Fox during the time she lived on Warren street; that she knew she lived with them and made it her home there until she went to the ; that up to that time Honora Fox was a strong, healthy girl and worked out for people -in the city; that Martin and Bridget Fox were at witness\u2019 house in Busti during the year he died, going on eighteen years ago; that witness scolded Martin for putting Mora in the asylum, and Mr. Fox told witness in his wife\u2019s presence that he wcmted witness to take care of Nora, cmd that after his death witness wcmted Nora to ha/ve what belonged to him / that Bridget was always a good wife to him, and after she was through with it he wanted all to go to Nora / Bridget said in reply that she was satisfied with that; Bridget used to come out and see witness and said that she was well satisfied with that; that witness was the first person called when Bridget was taken sick; that Oonway told her that she was very sick and that he would be glad to have her go over; that this was nine or ten days before she died; that witness staid right along every day and nights between times, doing the best she could, and that Bridget was very glad to have her; that Mary Higgins was there as a nurse; that Father Coyle was there the Sunday night before Bridget died, being the Sunday night before the first will was drawn; and that he was in the bedroom with her alone a few minutes with the door shut; witness testified about Mr. Fowler, Davidson and Conway being there on Tuesday, January twelfth, in the morning; that Mr. Fowler asked witness how Bridget was; that she told him that she had been dying since seven o\u2019clock that morning; that during that day the old lady could not talk at all, could not take any nourishment, even a teaspoonful; she further testified that the old lady never spoke a word after Mr. Fowler and the others went away; that she died at half-past eleven o\u2019clock that night, and she took no nourishment; that she had taken no-*679nourishment after seven o\u2019clock on the morning of the day she died."], "id": "9358f8ad-adf1-493e-9a0d-149a0db3acd9", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The court\u2019s research, as well as that of counsel, has failed to disclose any case having to do with the establishment of joint accounts in commercial banks. All of the cases refer to deposits in savings banks. There have been court decisions, later written in the statute, with regard to the form of the deposit in savings banks in order to create survivorship. When deposits are made in checking accounts in commercial banks, there is no thought that it is there as the poor man\u2019s will, or for the purpose of paying funeral expenses, or latterly, for the purpose of going to the survivor of the account, unless the account is evidenced by proven intent, either by words or in writing. Here there is evidence to the contrary by the words of the bank official (Matter of Thompson, 167 App. Div. 356, 360; affd., 217 N. Y. 609), and the right of survivorship'in the face of this evidence cannot be presumed. The presumption is rebutted. It is a business account. A difference is written into the law in relation to joint accounts, between parties who do not take on the relationship of husband and wife, and where that relation exists. The pioneer cases where evidence of indebtedness belonging to the husband was taken in the name of husband and wife, in which the court held it showed that the husband intended to give it to her in case she should survive him, and that a delivery to her was unnecessary to effect the gift, are Draper v. Jackson (16 Mass. 480 [1820]); Borst v. Spelman (4 N. Y. 284 [1850]); Roman Catholic Orphan v. Strain (2 Bradf. 34 [1851]); Sanford v. Sanford (45 N. Y. 723 [1871]); Curry v. Powers (70 id. 212 [1877]). The later cases are Augsbury v. Shurtliff (180 N. Y. 138); West v. McCullough (123 App. Div. 846); Matter of Thompson (167 id. 356; affd., 217 N. Y. 609)."], "id": "df26cb17-ef8d-4b60-af9c-91a1dac49ac2", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Through all her trials the evidence discloses the Stuarts to be steadfast in their friendship. In a postscript to a letter written by the deceased to Mrs. Blackmon in 1893' she says:. \u201cYou speak of my generosity to uncle Samuel\u2019s family. I never shall have money enough to reward them for services rendered me for the past thirteen years. They have watched and protected me constantly from enemies fax and near. They have advanced money to carry on a long litigation not knowing that they would ever be compensated for either money or services, and were it not for their true friendship I would to-day be in an or in my grave. Yours was the service of a day. Theirs for years.\u201d"], "id": "308d0a8b-33a9-469c-8a74-a076df930c67", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Under our deferential substantial evidence standard, we will not disturb the agency\u2019s finding that Tomas-Ramos failed to establish the requisite nexus to his Christian religion. As the officer reasoned, there is insufficient evidence that his faith was a central reason why gang members threatened him. On Tomas-Ramos\u2019s own account, gang members did not mention his religion in their threats. And although Tomas-Ramos reports that gang members killed a man belonging to his church, they did not inform him why they killed that man, so there is no ground for concluding that it was an act of religious persecution. The government does not argue that the IJ\u2019s third finding \u2013 that \u201c[Tomas-Ramos] also had difficulty articulating his fear,\u201d A.R. 1 \u2013 provides a basis for affirmance, and we agree. We do not understand that finding to be an independent ground for the IJ\u2019s determination; rather, it appears to have been offered as an explanation for why the IJ was not persuaded that Tomas-Ramos had established nexus to a protected ground."], "id": "72aa9644-be3e-4f84-82bc-ab933bb8f964", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["evidence supports the BIA\u2019s determination that Garcia-Gonzalez is not eligible for .1 Garcia-Gonzalez next argues that the BIA abused its discretion by failing to fully analyze her withholding of removal claim. However, the BIA \u201cdoes not have to \u2018write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.\u2019\u201d Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002) (quoting Becerra\u2013Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). In this case, the BIA correctly concluded that because Garcia-Gonzalez \u201cdid not meet her burden of proof for asylum, it follows that she cannot meet the higher standard for withholding of removal.\u201d See Dayo v. Holder, 687 F.3d 653, 658\u201359 (5th Cir. 2012) (\u201cAn applicant \u2018who has failed to establish the less stringent \u201cwell-founded fear\u201d standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.\u2019\u201d (quoting Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir. 2008))).2 Because further analysis was unnecessary, the BIA did not abuse its discretion by declining to analyze Garcia-Gonzalez\u2019s withholding of removal claim further. Finally, Garcia-Gonzalez argues that the BIA erred by affirming the IJ\u2019s finding that she is ineligible for protection under the CAT. An applicant"], "id": "4126e865-c835-4673-83db-ec79f7678399", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c Seventh. I hereby give, devise and bequeath all of the rest, residue, and remainder of my property, whether real, personal or mixed, of every kind, nature and description whatsoever, hereby intending to include any property that may be acquired by me after the date of this, my Last Will and Testament to be divided as follows, to wit: One-half thereof to be given to the Rev. Father McCarthy of St. Augustine\u2019s Church, Sixth Avenue and Sterling Place, Brooklyn, New York, to be applied towards starting a home for the benefit of unmarried working girls, who are abused at home, after the death of their parents, and one half to the Brooklyn Roman Catholic Orphan .\u201d Rev. Father McCarthy predeceased the testator, and testator\u2019s next of kin contend that the half of the residue bequeathed to him lapsed in consequence, and is to be administered as intestate property. Their position is based largely upon the language of the Court of Appeals in Matter of Shattuck (193 N. Y. 446). This decision has, however, been so often criticised and limited by subsequent opinions of the Court of Appeals as to render it little more than an authority on the precise facts and language then passed upon. Thus it was said in Matter of Durbrow (245 N. Y. 469, 475): \u201c This conclusion seems unsound. It is based on Matter of Shattuck (193 N. Y. 446) which has been strictly confined to its own facts by later and better considered cases.\u201d"], "id": "7e7a0477-b636-4794-8d8b-1657e2682dbb", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The remaining objection involves the provision contained in the Constitution and statute to the effect that \u2018 \u2018 For the purpose of * * * voting no person shall be deemed to have gained or lost a residence * * * while kept at any welfare institution, or other institution wholly or partly supported at public expense or by charity \u201d (Election Law, \u00a7 151; N. Y. Const., art. II, \u00a7 4)."], "id": "42008a92-fece-400c-b6d0-815155c4a93e", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Let us pursue the argument a step farther. It is simply that a failure in one part of a will defeats the whole, and lets in the statute of descents. Those who think so are certainly to be admired for great boldness and originality of conception, and their happy escape from those legal maxims which have heretofore allowed something to human frailty. Formerly, though a man might commit a mistake in one part of his will, he had some reason to hope for the salvation of other parts. Suppose Mr. James had devised the 85- shares to one of his sons by a wrong name; the devise must have failed, but the mistake would not affect the devises of the 8\u00a3 shares, where all the devisees were correctly named. Suppose the trustees and executors had all been misnamed so that the trust term had failed, the devises or administration would not fail for want of form. If trustees were necessary, the chancellor might appoint them ; and the surrogate could appoint an administrator cum testamento annexo. When Mrs. James renounced the devise to her and took one third of the real estate, the general residuary devises were all impaired; }ret it has not been contended that such partial failure should destroy the will. Suppose *186one half the devisees had died before the testator, one half the devises would have failed by lapse: yet such a circumstance was never holden to affect the residue. In any of these cases, whatever devise may fail, the subject takes the direction which the chancellor gave to the 3J shares ; it descends to the heirs. Suppose the testator had converted his whole estate into stocks of different banks, bequeathing the stock in one bank to his son John, in another to Edward, and so on to each legatee specifically, and before his death he had sold out all his stocks in one half the banks ; one half the legacies would then have failed by ademption; yet the other stocks would pass to the legatees, while the proceeds of those which were adeemed would go to the next of kin under the statute of intestacy. I shalknot stop to show that a partial failure from mistake in the creation of an estate or interest would be no more fatal than a failure from any other cause; nor am I aware of any middle ground, where we can select one valid distinct part and reject another. The same principle which would save the legacies even to the orphan and to Mrs. Gourley\u2019s children, will save the valid devises ; and the same principle which would repudiate the latter would reduce this whole will to a tabula rasa. These few rules and illustrations will, I apprehend, be found applicable to most of the objections raised against the decree."], "id": "2353bc3b-c54e-46de-9bef-5b922011ebd8", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["By the commitment the Sheriff was bound to receive the prisoner into Ms custody, and detain him until he was legally discharged. He had no authority to take him to the county of Trinity, except to place him in confinement there in case the jail of that county was made, by a proper order, the jail of Klamath. If he voluntarily, or without legal authority, took him there for any other purpose, he rendered himself liable for an escape, and this offense was committed in Klamath county as soon as the intention was formed to remove him from that county, as his subsequent acts relate hack to that period, and the offense would 1)0 triable in Klamath county. From the facts that the petitioner Holt disobeyed this commitment\u2014took hjs prisoner to the county seat of Trinity, and instead of placing him there in confinement, went before the County Judge of that county, received from him am order, in conflict with the command of his commitment, to convey Mm to the Lunatic , and without awaiting the action of the Courts of Klamath, of which only he was an officer, voluntarily obeying the order of the County Judge of a county in which he was not an officer, and proceeding with his prisoner as far as \u00a1Sacramento\", suffering him there to go at large, and giving his consent to his making a visit to Fan Francisco alone, are very suspicious and unexplained circumstances, which present a strong j>rima facie case against Holt. He may have acted in good faith; he may have supposed he was obey*24ing v&Ed and legal orders when he removed Donelly from Klamath and Trinity, but whilst I have no disposition to pre-judge his ease in this preliminary investigation, I am unwilling to reconcile his conduct with innocence. I must, therefore, after having heard the testimony and proofs, under sections 16 and 22 of the Act concerning the writ of habeas corpus, (Compiled laws, p\u201e 167,) award a warrant to recommit him to custody, and that he be taken before the nearest or most accessible magistrate of the c-eunty of Klamath."], "id": "c5bf35c8-007e-475c-bb75-cbdf3fc3a3e6", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The word \u201c corporation \u201d has a definite legal meaning and differs essentially from an \u201c association,\u201d which may or may not be incorporated. (Matter of Graves, 171 N. Y. 40, 47.) It cannot be soundly or logically argued that two or three trustees of a charitable trust become an \u201c association \u201d as the word is used in section 17 *716of the Decedent Estate Law. Any reasonable or clarifying definition of the word \u201c association \u201d may not be interpreted to include any person selected by a testator to execute a trust created by him. That term usually means an unincorporated organization, composed of a body of men partaking and assuming in its general form and mode of procedure with the characteristics of a corporation. Such an association cannot be the donee of a bequest, even for charitable purposes. (Pratt v. Roman Catholic Orphan , 20 App. Div. 352; Matter of Graves, 66 id. 267, 271; revd., 171 N. Y. 40, upon other grounds; Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524.)"], "id": "e3a01dfb-74eb-4e8e-9b38-f62ae6a46299", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The parcel in question was purchased in 1865 to establish a home for orphans. An orphan farm school was built *1081in 1866. In 1869 a charitable corporation was formed with power to purchase and hold real estate and to \u201cestablish, maintain, control, govern and manage any orphan house, farm school, industrial school, hospital, , retreat or other institution necessary and proper for the carrying out of the general object of the said corporation\u201d. In 1897 a home for the aged was constructed. Thereafter, intervenorrespondents, hereinafter referred to as \u201cWartburg\u201d, established a three-level concept of elderly care consisting of residences providing minimal care, intermediate facilities providing detailed care and a nursing home to provide intensive care. The proposed construction contemplates a fourth level of elderly care in single-family attached units. In each unit the wall behind the bed will be fitted with lifesaving equipment and the wall opposite the bed will be equipped with a closed-circuit television camera. This arrangement will allow the administration of all needed care short of hospitalization without moving the patient and enable a healthy spouse to live with a sick partner. The attachment of the units enables the residents to be close to their neighbors yet independent and facilitates the rendering of care."], "id": "fb9e02e6-a401-495b-88bb-420b3f29995b", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Defendant cites Balbuena v IDR Realty LLC (supra) for the proposition that a jury may consider immigration status when future lost wages are in issue. In Balbuena, the High Court pointed out lack of a \u201cgreen card\u201d is a factor in assessing total lost wages. Further, defendant relies upon the immigration court\u2019s conclusion that improved political conditions in Kosovo bar political because plaintiff supports the now ruling political party. Given the likely denial of political asylum, any jury determination of future damages based upon costs in the United States would be an unconscionable windfall to plaintiff if he is required to return to his homeland. Doubly compounding this injustice is plaintiffs opposition to adjourning this litigation until the federal immigration proceedings are finalized. Legal Discussion"], "id": "6b6f4d4f-f2e6-415f-ae6c-50cd641a0928", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The testator devises all the rest, residue and remainder of his estate real and personal, (which includes the premises in question,) to The Orphan Society, to be applied to the charitable purposes, for which the association was established; to take effect immediately after the payment of debts and legacies, if he should leave no child; but if he should leave a child, then to take effect upon the death, intermarriage, or attaining of age of such child."], "id": "b69856b8-3270-49ac-be5a-b74035575660", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c a. A certificate shall be issued where the landlord establishes that he seeks in good faith permanently to withdraw occupied housing accommodations from both the housing and non-housing rental markets without any intent to rent or sell all or any part of the land or structure; and * * * \u201c (3) where the landlord is a hospital, convent, , public institution, college, school or any institution operated exclusively for charitable or educational purposes on a nonprofit basis, that the landlord requires the housing accommodations or the land for its own immediate use in connection with its charitable or educational purposes. * * * \u201d (Emphasis supplied.) The question is whether the two store leases having several years to run preclude the petitioner from securing relief under section 59. That section relates to occupied housing accommodations. The purpose of the law in general is to preserve housing accommodations which petitioner intends to use under the special grant of power to recover possession in good faith for dormitory use. Of course, the commercial space could be converted to educational purposes as respondent suggests if the space were available, but that space is not occupied as housing accommodations. In any event, dealing solely with occupied housing accommodations under section 59 is not inconsistent with the purpose of the act. (Dezelle v. Weaver, N. Y. L. J., Aug. 27, 1957, p. 3, col. 7, Sup. Ct., N. Y. County, Stevens, J., now Presiding Justice, App. Div., 1st Dept.)"], "id": "a9bfd0e9-3f84-48aa-ab66-47a5f935c231", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["application for , withholding of removal, and relief under the Convention Against Torture (CAT). Acha contends that the IJ\u2019s adverse credibility determination was not automatically fatal to his claim that he is entitled to protection under the CAT. The BIA erred, he explains, by failing to independently analyze the merits of his CAT claim. The Government contends that Acha\u2019s claim is unexhausted, but we disagree. That claim is properly before this court because it was first raised in Acha\u2019s appellate brief before the BIA. See Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). It is true that Acha has abandoned any possible claim that he is entitled to asylum or withholding of removal because he does not challenge the determination that he lacked credibility. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008). But an adverse credibility finding is not determinative of a CAT claim. To establish entitlement to relief under the CAT, an alien must prove it is more likely than not that he will be tortured with the consent or acquiescence of public officials if he returns to the country in question. 8 C.F.R. \u00a7\u00a7 1208.16(c)(2), 1208.18(a)(1). The BIA based the denial of Acha\u2019s CAT claim solely on the adverse credibility finding. Because Acha \u201coffered non-testimonial evidence that could independently establish his entitlement to CAT relief,\u201d his lack of credible testimony does not preclude him from meeting his burden for protection under the CAT. Arulnanthy v. Garland, 17 F.4th 586, 598\u201399 (5th Cir. 2021). Acha\u2019s petition for review is GRANTED and these proceedings are REMANDED to the BIA to address Acha\u2019s claim for protection under the CAT."], "id": "5ecfd666-3587-449b-95bd-159cbf279165", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["In Matter of A-B-, the Attorney General acknowledged that an applicant may have a cognizable claim based on past harm or fear of future harm by private actors. 28 I. & N. Dec. at 308\u201309. But an asylum applicant must still establish nexus, and Ms. Hueso-Choto has not argued or presented evidence tying harm to her identity as a Salvadoran woman unable to leave an abusive relationship with her mother. So even if we were to consider this proposed particular social group, this claim would have failed based on the failure to prove a nexus. Appellate Case: 21-9542 Document: 010110632110 Date Filed: 01/14/2022 Page: 7"], "id": "f02f0235-6518-4d50-80ed-70e47e195afa", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["It is contended on the part of the defense that the liability of the plaintiff as bail was occasioned by his own fault or neglect to protect himself, which his duty to the defendants required him to do in their bebalf, and that for his failure to do so they were relieved from liability to him. It appears that the reason why Warren-was not found and taken on the execution issued against his person, was because he had been taken to the Inebriate ,- at Binghamton, by virtue of an order to that effect made by the county judge of Erie county. That order seems to have been void, and was so treated by the trial court. The action against the plaintiff was commenced April 10, 1879, and on the fourteenth of that month the plaintiff, as such sheriff, caused the return of Warren into his custody, and might have retained him in his custody and exonoration have been obtained by the sheriff, as such bail, prior to April 30, 1879, as his time to answer the complaint did not until then expire. (Id;, \u00a7\u00a7 591-595.) On the fifteenth April, and while Warren was in such custody, the defendants' sought to make a formal surrender of him to the sheriff, and if it was in their power to do so it would have been an effectual relief for them, but their relation as bail, by reason of their failure to justify, had terminated and did not exist at the time of such attempted surrender, and it was, therefore, ineffectual as such. (Clapp v. Schutt, 44 N. Y., 104.) The plaintiff did not continue the retention of-Warren in hi's custody, but on the twenty-fourth of .April he accepted an undertaking in behalf of the judgment debtor and discharged him, caused his rearrest on the twenty-eighth of the month by the coroner, and on the next day he was again set at liberty on giving, with sureties, another undertaking, both of which were in the form of that first before mentioned. This arrest was evidently caused with \u00e1 view to the exoneration of the sheriff as bail, and an application was by him made to the court, and the order granting it was reversed. (Douglass v. Warren and Same v. Haberstro, 19 Hun, 1.) And after the *207plaintiff\u2019s term of office expired, and in February, 1880, be surrendered Warren to the sheriff, by whom he was taken into custody, and again moved for his exoneration as bail, and the order then granting his application was also reversed. (Douglass v. Haberstro, 21 Hun, 320; 82 N. Y., 572.) The opportunity of the plaintiff to obtain, as matter of right, his exoneration as bail, was lost by the discharge of Warren from custody after he was placed there in April, 1879. The taking of the undertakings thereafter received was without authority of law, and the discharge of the judgment debtor thereupon permitted, is treated as an escape, and of this the defendants complain, and allege such release from custody as matter of defense. It cannot well be claimed that the failure of the plaintiff to keep the judgment debtor in custody was caused by any bad'faith on the part of the plaintiff, or with any view to charge the defendants with liability. They denied to themselves the rights and privileges of bail when they refused or neglected to justify. The plaintiff owed to them good faith, hut no active duty to protect them against the consequences of such' omission on their part. It is not, therefore, a defense for them that he may, by a different course of proceeding than that taken by him, have protected himself and them against liability. When the defendants made the undertaking and he accepted it, the judgment debtor was entitled to his discharge from custody. (Code Civil Pro., \u00a7 573; Arteaga v. Conner, 88 N. Y., 403.) And it was only after he, by force of the statute, became bail that the sheriff was permitted to surrender or take him into custody. At the time he became such, the defendants ceased to have any rights or privileges as bail, and their liability became his indemnity for the damages that he might legitimately sustain as the consequence of the relation imposed upon him. The fact that the plaintiff misjudged or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from liability as bail, does not constitute a defense for the defendants without the support of had fajth on his part towards them, which does not appear to be a feature in the case: As the case is now viewed, the plaintiff was entitled to recover."], "id": "b6130f58-be1f-4e1d-b0b9-dbcebb707062", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The immigration judge issued an oral decision concluding that, due to his criminal history, Pascal was ineligible for relief and withholding of removal. He then denied Pascal\u2019s claim for CAT relief on the grounds that his fears of persecution were speculative. Pascal appealed to the BIA, stating that the immigra- tion judge erred as a matter of law when he (1) sustained the charges of removability against Pascal, because DHS failed to es- tablish that he was removable as charged, (2) denied Pascal\u2019s re- quest for a continuance because he sought to apply for adjustment of status based on his marriage to a United States citizen, and (3) denied Pascal\u2019s application for relief under CAT. Before the BIA ruled on Pascal\u2019s appeal, Pascal filed a motion to remand proceedings. In the motion, Pascal explained that he had married Ebony Hughes, a United States citizen, several months be- fore the immigration judge\u2019s ruling, and that shortly after their wedding, she had filed an I-130 petition seeking a visa on his behalf. He argued that, although United States Citizenship and Immigra- tion Services had not yet adjudicated the I-130, it entitled him to reopen his deportation proceedings. He argued that he was prima facie eligible for adjustment of status as the beneficiary of a visa petition filed by a United States citizen, and that, though his crimi- nal history rendered him inadmissible by statute, he was prima fa- cie eligible to seek a waiver of inadmissibility in conjunction with his application for adjustment status under INA \u00a7 212(h)(1)(B), 8 U.S.C. \u00a7 1182(h). USCA11 Case: 20-13993 Date Filed: 02/03/2022 Page: 6 of 10"], "id": "7e69c012-b47d-4c68-9296-733c13cd2de0", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201c Seventh. I give and bequeath to my executor hereinafter named the sum of One Thousand Dollars ($1000.00) in trust, however, for the following purposes, viz: To invest the same and keep the same invested in some good interest bearing security or securities, for and during the life of the present wife of Milton P. Reese, son \u2022 of Evelin P. Reese, and upon the death of the said wife of the said Milton P. Reese, to pay over to the said Milton P. Reese, the said sum of One Thousand Dollars ($1000.00) with all accumulations of interest thereon, and in the event of the death of the said Milton P. Reese prior to the death of his said wife, then said sum of One thousand dollars ($1000.00) together with all accumulations of interest thereon to be divided between The House of the Good Samaritan of Watertown, New York, and The Jefferson County *698Orphan of Watertown, New York, equally share and share alike.\u201d The Northern New York Trust Company was named as executor and trustee, qualified and has been and is acting as such. Milton P. Reese died December 1, 1930, and Rose B. Reese, referred to in the 7th paragraph of the will as \u201c the present wife of Milton P. Reese,\u201d died January 9, 1931. No part of the income or principal of the trust fund has been paid out and the trustee now has on hand in the trust fund the $1,000 principal and $940.35 income. The residuary legatees named in the will are, with some conditions, the same as named in said paragraph 7. The trustee asks for the construction or interpretation of the will (1) as to the validity of the trust provision as to principal; (2) as to the validity of the trust provision as to the accumulation of income, and (3) for instructions as to whom the trust fund shall be paid."], "id": "ad6e4db0-4c1e-4c10-aeac-e4678bcbae2d", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["*374It is not the ease of an alleged lunatic, within the legal meaning of the term, or of a person who sometimes has understanding and sometimes not; although it is in evidence that respondent spent five years as a patient in a sanitarium or private hospital for mental diseases in Brookline, Massachusetts, from 1881 to 1886, committed thereto by a magistrate upon physician\u2019s certificate, at which time she was thirty-four years old and the mother of one child; she herself testifies that she went to this institution voluntarily, because she had peritonitis and uterine trouble and sought rest and treatment under the care of her friend, Dr. Channing, the superintendent of this retreat or home for persons suffering from nervous disorders. This doctor was not allowed by the court to testify as to her condition mentally or her acts while in his charge, but another physician, Dr. Jelly, of Boston, an alienist of experience, chairman of the Massachusetts State Board of Insanity and supervisor of all the insane hospitals in the state, and examiner in insanity in Suffolk county, was permitted to give in evidence the result of his observation when he saw her in a social way several times during her sojourn in the sanitarium, and he relates that on one occasion shortly before her release he had quite a conversation with her about herself; he was familiar with her history, and he took great interest in her because she was suffering very much, and he and Dr. Channing thought it was a case that ought to get well, and the two physicians talked it over many times, but his own calls at the were social and he did not there visit her as a patient; her mental malady was acute suicidal melancholia, and this condition might have arisen without any physical ailment and it might have been caused by bodily illness ; but he had not seen her in nearly twenty years."], "id": "99785ca2-17c6-4036-8ef1-58a971594532", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The dismissal of the complaint at the Circuit was ordered undoubtedly on the ground that the assured did not truthfully answer questions propounded to him in his application for insurance. To the usual question, whether any members of his family, parents, brothers or sisters, had died of or been afflicted with insanity, epilepsy, disease of the heai\u2019t, scrofula, or other hereditary disease, he answered, \u201cno; \u201d and in answer to the question, as to the disease of which his father died, he answered, \u201cfrom\"a brain disease caused by a hurt.\u201d The case shows that his father had been insane, and twice an inmate of an insane ; and that he died insane; and further, that the assured knew of these facts when he made his application for insurance. The negative answer then to the question, whether his father had died of, or been afflicted with insanity, was untrue. In the ordinary understanding of > words, his father died of insanity, for he died of a chronic affection of the brain which caused insanity. It was to this fact that this branch of the inquiry was directed. Fevers, *599and some other general and some local disturbances of the system, will and often do produce temporary insanity. But a settled disturbance of the mental faculties, continuing for months and years, is quite a different matter. In the former case, that of a fever, for instance; a death occasioned by it would not be a death from insanity, but death from fever. In the latter case, however, a disease of the brain continuing for years, causing periods of insanity and ultimate death, would, according to common understanding, be a death from insanity. When, therefore, the assured answered that his father did not die of insanity, he answered untruly. So, too, when he answered that his father had not been afflicted with insanity, ho answered untruly. But it is urged that his insanity was not in his case an hereditary disease, and, therefore, the answer was not untruthful. Now, insanity, epilepsy, disease of the heart, and scrofula, are held to be of the class of diseases known as hereditary, and the question was, did he die of, or- had he been afflicted with insanity * * * or other hereditary disease? The question was not, in its full scope and meaning, did he die of, or had he been afflicted with hereditary insanity, but did he die of, or had ho been afflicted with insanity or other hereditary disease? The question was answered untruthfully, according to its fair import. It is suggested that the record evidence, that the father of the assured had been adjudged insane, was improperly admitted. It is here unnecessary to consider this point, inasmuch as his insanity was established by other competent and satisfactory evidence. It is also urged by the respondent, that the answer to the effect that the father died of a brain disease \u201c caused by a hurt \u201d was untruthful. I confess I am not satisfied with the integrity of this answer under the facts of this case. But its discussion is unnecessary, in view of the conclusion above reached, with reference to other answers, Of course, if the answers above considered were untruthful, the policy was void. Such is the express stipulation contained in the policy itself; and the cases which bear on this point are too numerous and familiar to require citation. It was also provided in the policy, that in case the assured should \u201c die by his own hand,\u201d then that the policy should be void. He did die undoubtedly by his own hand. He swallowed a fatal dose of laudanum,' and purposely to produce death. But whether he was entirely *600himself, and responsible for the act may be well doubted. Had this been the turning point in the ease, it _ might well be insisted that this was, on all the evidence, a proper question for the jury."], "id": "8944e9f7-ccef-45a8-a53f-1722deb43cc1", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["(a) Prior to the execution of said will and said codicil the said residuary legatee induced the deceased to separate from his said wife and children, and to occupy the same apartments occupied by her at a lodging-house situated at the southeast corner of Fifth and Market streets, in the city and county of San Francisco, and thereafter prevailed upon the deceased to continue his said separation and occupation *484of said apartments with her, and he was so occupying them at the times of the execution of said will and said codicil. (b) Prior to the execution of said will and said codicil, and prior to the time he separated from his wife and children, and while he was so living separate from them, as last above stated, the said residuary legatee poisoned the mind of the deceased against the contestants by falsely asserting to the deceased that the contestants had caused him, the deceased, to be placed in an insane and in the Home for the Inebriates, situated in the city and county of San Francisco, without any cause; and that they, the contestants, were inimical to him, and would again place him in an insane asylum or Home for the Inebriates if he should return and live with his wife and children; that deceased believed these assertions of the residuary legatee, and at the times of the execution of said will and said codicil the deceased was laboring under the delusion that they were true; and the contestants allege that said assertions, each and all of them, were false, and known to the residuary legatee to be such. (c) Prior to the execution of said will and said codicil said residuary legatee abused contestants in the presence of deceased, and told him that contestants had turned him out of his own home and into the streets; that contestants had no love for him, and that she was the only true friend that he had; and that the reason why contestants desired the deceased to live again with his wife and' children was that they, the contestants, might thereby obtain control of his property, and, if they did so, they would then turn him into the streets penniless; and at the times last above mentioned said deceased was laboring under the delusion that these statements were true; and the contestants allege that said assertions, each and all of them, were false, and known to the residuary legatee to be such. (d) While deceased was living at the same apartments as the residuary legatee, as above stated, and for some time prior to the execution of the said will or codicil, and even subsequent thereto, said residuary legatee was not willing that any of the contestants should see the deceased except *485in her presence; and on one occasion she ordered his said wife out of the said apartments, and told deceased, in the presence and hearing of his wife, that he must choose between \u201cthat woman,\u201d referring to his, deceased\u2019s, wife, and herself. (e) Prior to the execution of the said will and the codicil said residuary legatee persuaded deceased to transfer to her, without any consideration, certain of his real estate and certain of his personal property; that she concealed all these transfers from contestants, and at the times of the execution of said will and the codicil she had complete control of the deceased\u2019s mind. (/) Said deceased for several years prior to his death was in the habit of using intoxicating liquors to excess, and was easily influenced by anyone who would supply him with such liquors; and that said residuary legatee, contrary to the advice and directions of the physicians of deceased, prior to, at the time of and subsequent to the execution of said will and the codicil, constantly supplied the deceased with intoxicating liquors, and thus obtained such control over deceased as to unduly influence him. RESPONSE OF PROPONENTS."], "id": "06c5acbd-dcbc-4680-a73b-e7082b7b2c6d", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The decedent, Eldora Cress, was admitted voluntarily to Utica State Hospital on February 3, 1927, when she was 19 years of age. At that time the hospital record indicates she was \u201c seelusive, quite emotional, cried, wrung her hands and appeared to be in a state of panic.\u201d She expressed no definite delusional ideas of a persecutory nature. On May 7, 1927, a position was obtained for her at Camp Healthmore and she was paroled. She was returned from parole on May 20, 1927, and again paroled on August 16, 1927 to take a position at Onondaga County Orphan , but because of \u201c peculiar \u201d behavior was returned from parole on August 25, 1927. Following treatment administered to her, she showed some improvement."], "id": "e04f6706-f1bd-4bbf-9d75-8d3617c172e6", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["This conclusion derives no slight support from McCartee v. Orphan Soc. (9 Cow., 437) and Bowen v. Lease (5 Hill, 221). In the former case the defendant, by the act incorporating it, was empowered to obtain real estate by purchase. It wTas nevertheless incompetent, because of the restrictions of the Statute of Wills, to take real estate by devise, unless those restrictions had been impliedly removed by the terms of its charter. In declaring that such removal had not been effected, Woodwoeth, J. (p. 507), said: \u201cThe Statute of Wills prohibits a devise to a corporation. The act incorporating the Orphan Asylum Society declares that they may purchase real estate. In the most extensive signification of the word purchase, it includes a devise, and therefore relates to the subject which by the Statute of Wills is excepted. These statutes, I apprehend, ought to be construed together; and inasmuch as the right claimed is by the former statute expressly denied, it would seem to be more congenial to the spirit of both acts to understand the word purchase in a restricted sense, and as so intended by the legislature.\u201d"], "id": "13d8366e-6ae5-4e96-a31a-4a94dacc9a50", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["*523In our view, the Legislature never intended the RSL to apply to adult care facilities operating under the comprehensive statutory and regulatory scheme provided by Social Services Law article 7. Review of both Social Services Law article 7 and the RSL reveals that the two statutory schemes represent wholly separate and essentially incompatible regulatory schemes. On an elemental level, the RSL applies only to certain multiple dwellings (Administrative Code \u00a7 YY51-3.0), and since we conclude that the petitioner\u2019s facility is not a multiple dwelling, it is necessarily exempt from the RSL. Multiple Dwelling Law \u00a7 4 (7) provides in pertinent part: \u201cA \u2018multiple dwelling\u2019 is a dwelling which is either rented, leased let or hired out, to be occupied, or is occupied as the residence or home of three or more families2 living independently of each other * * * A \u2018multiple dwelling\u2019 shall not be deemed to include a hospital, convent, monastery, or public institution * * * For the purpose of this chapter \u2018multiple dwellings\u2019 are divided into two classes \u2018class A\u2019 and \u2018class B\u2019 \u201d (see also, Administrative Code \u00a7 YY513.1)."], "id": "0ec2beec-6c5f-45ed-8d2a-496f78388d51", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["In Coit v. Patchen (77 N. Y., 533), the will was contested, and delusions alleged as to the conduct and affection of testatrix\u2019s, husband, and as to the want of affection for her on the part of some of her children; *101among others, that they desired to confine her in an , whereby she was led to discriminate against them. The testatrix was a strong-minded woman. She had had a severe sickness some years before making her will; she continued thereafter, however, to manage and control her business, to collect her rents and make improvements. She conversed intelligently. No act of insanity or improvidence as to her business affairs was shown. She was passionately jealous of her husband, and quarreled with him frequently. The children discriminated against sided with the husband, and those favored sided with the mother. Lunacy proceedings were instituted and then stopped by the husband. It was held, that the evidence failed to show any insane delusions, such as rendered testatrix incompetent to make a will. In Children\u2019s Aid Society v. Loveridge (70 N. Y., 387), it was held that the fact that an aged person is forgetful, and at times labors under slight delusions, does not, per se, establish testamentary incapacity."], "id": "c0f82915-8c78-44e9-a9bc-472f5d3a507b", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["It is objected by defendant that this section prohibited the performance by Dr. Macdonald of the services as above stated, because he was their holding the position of medical' superintendent of the for the Insane, and that therefore no compensation for such services could be paid. It is contended that the case is covered by \u2022the phrase in the section \u201c or other officer of the corporation.\u201d This *91raises tbe question whether the medical superintendent of the New York Oity Asylum for the Insane, is an officer of the city corporation. In Maxmilian v. The Mayor (62 N. Y., 160) it was held that the subordinates appointed by the commissioners of charities and corrections were not agents or servants of the city, for whose negligence the city is liable. This was placed upon the ground that the commissioners of charities and corrections are public officers who discharge duties for the general public .benefit imposed upon them by the legislature; and the fact that the legislature have conferred the power of appointing such commissioners upon officers of the city does not change their relation- or character of public officers so as to make the city responsible for their acts in the performance of their official duties. They are likened to the overseers of the poor of a town who are public officers though getting their right of office from a circumscribed locality; and the court says: \u201c The acts which they may do are to be done in their capacity as public officers in the discharge of duties laid upon them by the law for the public benefit, - and far removed from acts done by city or town, in its municipal character, in the management of its property for its own profit or advantage.\u201d"], "id": "b7548379-bfdf-4781-a0aa-afd8bf007714", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Section 830 of the Code of Criminal Procedure serves to implement the provisions for extradition in the Constitution of the United States (art. IV, \u00a7 2, subd. 2) which pertains to \u201c A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State The constitutional mandate is that \u201c on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime \u201d (U. S. Const., art. IV, \u00a7 2, subd. 2). It is the duty of the State of to deliver to the demanding State a fugitive from justice. The requirements of the Constitution of the United States and the provisions of section 830 of the Code of Criminal Procedure having been met, there is no discretionary power to refuse the demand for extradition of a fugitive from justice. (People ex rel. Higley v. Millspaw, 281 N. Y. 441; People ex rel. Marshall v. Moore, 167 App. Div. 479, affd. 217 N. Y. 632.)"], "id": "f75fb1ff-6752-4a19-be92-475c417d4421", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Contending that equitable doctrines may not be asserted against a school board acting in a governmental capacity (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33 [1984]), petitioner argues that the Commissioner\u2019s ruling was affected by an error of law. But this is not merely a case of laches or estoppel, nor, for that matter, even one of longstanding acquiescence.* Time can shift burdens, and its long passage uninterrupted by protest or challenge raises a justified presumption that matters settled in the distant past were accomplished regularly and agreeably to law. It was not the Ogdensburg District\u2019s burden to show how the lands were transferred to its jurisdiction, and the case is long past the point where the City School District need prove that it relied to its prejudice on some word or deed of petitioner or its predecessor. Acts bespeak intention, so too does a long course of inaction unveeringly sustained. For nearly a century, the Ogdensburg District has delivered educational services to the residents of the disputed lands without challenge from any quarter. Lisbon Common did not protest in 1901 when the City District first assumed that responsibility. Nor did it assert any claim of jurisdiction in 1943 when a map prepared by the Education Department purported to show that the asylum property lay within its boundaries. Similarly, petitioner asserted no claim of jurisdiction in 1956 when it annexed Lisbon Common, although the map prepared in 1943 allegedly was still in effect. Nor did it raise such a claim in *4141958 when the State Master Plan for School District Reorganization clearly reaffirmed Lisbon Central\u2019s jurisdiction over the former Lisbon Common District. Furthermore, there was no evidence that Lisbon Central or Lisbon Common was ever considered a school district partly within a city until the City of Ogdensburg annexed additional territory in 1979."], "id": "46fe050c-1c5e-4adf-a659-32d5435d9840", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["It follows by analogy that children who, if adults, would be classified as vagrants or poor persons, are city charges; while children who, if adults, would be classified as disorderly persons, are county charges, and truant children are, in Buffalo, city charges. But the St. Agnes Training School for Girls is not primarily a poorhouse or orphan ; it is, as alleged in the complaint, a reformatory, a correctional institution; nor are delinquent children necessarily to be classed with paupers or vagrants; nor are .poor persons, as such, committed by magistrates to jails or reform*654atories. As pointed out by Gaynor, J., in the Clark case, sufra, a common prostitute is not necessarily ,a vagrant, as she may have a lawful .employment whereby to support herself ; nor does it follow that she is a \u201c poor person,\u201d pecuniarily, at least. The statutes relative to poor persons have, therefore, no .necessary \"nor exclusive application to the question of liability for the support of children committed to this institution."], "id": "bfc706a6-46a0-4f96-b65a-171d77d9648e", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS\u2019s decision not to seek an alien\u2019s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483\u201384 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. \u00a7\u00a7 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action\u2014like certain other categories of aliens who do not have lawful immigration status, such as applicants\u2014 may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. \u00a7 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an \u201ceco- nomic necessity for employment\u201d); see also id. \u00a7 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien\u2019s accrual of unlawful presence for purposes of 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admis- sion of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS\u2019s discretion. See Johnson Deferred Action Memorandum at 2, 5. For the reasons discussed below, we conclude that DHS\u2019s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS\u2019s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion."], "id": "75f96a6c-a076-4954-91dd-ff7cac09d521", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The by-laws provided that neither the corporation nor any officer, member or employee shall receive any salary or other emoluments except such as may be commensurate for services actually rendered; also \u201c no retreat maintained by this corporation shall be used for any purpose other than for the moral and mental improvement of men or women and no person shall be admitted to any such retreat unless he or she shall be actively or usefully engaged in some creative art and no such person shall be entitled to the privileges of such retreat, unless in the opinion of the executive committee the enjoyment of those privileges shall tend to furnish assistance and inspiration in some creative art that is of benefit to humanity. The executive committee in granting or refusing applications for admission to such retreat shall, in all cases, be governed by the desire of the founders that this corporation contribute to the advancement of mankind by assisting those who, by creative art, have contributed to the mental or moral improvement of humanity, rather than as an for those who have mistakenly applied their talent."], "id": "9f23d003-68d6-4d2a-98bc-c7701ea9cac6", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["In reviewing probable cause, what are the standards to be applied by the State? Petitioner argues that where extradition is challenged, hearsay evidence alone cannot support a finding of probable cause. He would have this court apply a stricter standard than in other probable cause evaluations where he concedes hearsay may be admissible. There are no New York cases squarely addressing the issue raised. Nevertheless, after applying established constitutional standards, this court must reject the argument."], "id": "90706563-a36f-438d-a32d-5aa2050664a1", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["Hew York Infant v. Roosevelt (35 Hun, 502) was an action for libel, the complaint, as amended, contained allegations in respect to damage, after setting forth the alleged libel, as follows: \u201c That' by reason thereof, a number of persons, viz., J. Fisher, Charles Parke (whose real first name is unknown to plaintiff) and John Doe and Richard Roe and others, whose names are unknown to plaintiff, who had theretofore been accustomed to contribute and donate sums of money to the plaintiff, ceased to have confidence in his management, and ceased and refused to contribute and donate any further sums of money to the plaintiff.\u201d It was held proper for the court to grant an order requiring the -plaintiff to furnish a bill of particulars of the names of the persons who, by reason of the mat*167ters alleged in the complaint, have ceased or refused to make contributions to the plaintiff."], "id": "5d85f021-04ef-4007-871e-67f9538163de", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["\u201cAn author must be supposed to be consistent with himself; and therefore if, in one place, he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect the work of the legislature is treated in the same manner as that of any other author; and the language of every enactment must be so construed, as far as possible, as to be consistent with every other which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction when the words may have their proper operation without it.\u201d And further (at p. 198): \u201c Repeal by implication is not favored. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.\u201d To similar effect see Hayden v. Carroll (Ridg. Parl. Cases, 545, 599; Bowen v Lease (5 Hill, 221); O\u2019Flaherty v. McDowell (6 H. of L. Cases, 149, 162); Burnham v. Onderdonk (41 N. Y., 425); Henderson\u2019s Tobacco (11 Wall., 652); Taylor v. Taylor (10 Minn., *479107); McCartee v. Orphan (9 Cow., 437, 507); Escott v. Mastin (4 Moore, P. C. C., 104,130); Bruce v. Schuyler (9 Ill., 221); Hill v. Hall (L. R., 1 Ex. D., 414); Bishop on Written Laws, \u00a7 119."], "id": "412942fb-6d71-41ac-b218-3aa6ce93414a", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Petitioner is incorporated under section 7 of the Benevolent Orders Law of the State of Hew York. Its purposes, insofar as pertinent here, are stated as follows in its charter: \u201c To build and maintain a building for its meetings and the meetings of the bodies comprising this corporation, or subordinate bodies of the Masonic Fraternity, and for the accommodation of other fraternal bodies or associations; to receive and maintain a fund or funds of real or personal property or both and subject to the restrictions and limitations herein set forth to use and apply the whole or any part of the income therefrom and the principal thereof exclusively for the foregoing purposes; provided, however, that the entire net income shall be exclusively applied or used to build, furnish and maintain an or asylums, a home or homes, a school or schools, for the free education or relief of the members of the fraternities comprising this corporation or for the relief, support and care of worthy and indigent members of such fraternities, their wives, widows and orphans, and provided that no part of such income or such principal shall enure to the benefit of any private individual (except that reasonable compensation may be paid for services rendered to or for the corporation affecting one or more of its purposes), and no member, trustee, officer, or any private individual shall be entitled to share in the distribution of the corporate assets on dissolution of the corporation; nor shall any part be used for the carrying on of propaganda or otherwise attempting to influence legislation or participating in or intervening in any political campaign on behalf of any candidate for public office.\u201d"], "id": "d39cf037-6ee0-4c25-bd5e-5f10359b2a34", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["The complaint sets forth the petition and certificate of the two medical examiners presented' to the county judge of Eranklin county on the application of the defendant to have the plaintiff adjudged to be insane and to be committed to an , and alleges that they were insufficient to confer jurisdiction on the county judge to make the order of commitment."], "id": "3d4ae4ef-31f4-44f9-95f6-9bce8b2dea32", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["As a part of the application, which was nominally for admission to the Masonic Home, was an agreement which she signed and which read in part as follows: \u201c As a condition for admission to the Masonic Home, I hereby agree * * * to transfer to the Trustees of the Masonic Hall and Fund all property I may now be possessed of, and all which may hereafter come to me.\u201d"], "id": "85e32c15-c4de-4fd8-98e7-0bd63d85da66", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["The court will now consider the other issue submitted for its determination, viz., the validity and effect of the assignment executed by the remainderman Cornelia. On May 12, 1951, when she was 83 years of age, the said Cornelia was admitted to the Masonic Home at Utica, New York, which is owned by respondent, trustees of the Masonic Hall and Fund, where she remained as a guest until the date of her death in 1963. At the time of her admission and in accordance with the rules and regulations of the home she executed an \u2018 \u2018 Agreement by Applicant \u201d wherein she agreed \u201c to transfer to the Trustees of the Masonic Hall and Asylum Fund, on their demand, any and all my property, both real and personal, of which I may now be possessed, or which may hereafter come to me, or to which I may become entitled.\u201d It is undisputed that upon her admission to the said home, pursuant to demand made upon her, the said Cornelia transferred and assigned to respondent, trustees of the Masonic Hall and Asylum Fund, all of the property she then owned or was entitled to, in the value of about $900. The respondent alleges in its answer that said transfer of property was one of the considerations for admission to the home and they are entitled to the remainder interest of Cornelia in the trust fund by virtue of the aforesaid assignment and the demand which was made and understood to cover all property \u201c of which I may now be possessed, or which may hereafter come to me, or to which I may become entitled.\u201d (Emphasis supplied.) The special guardian appearing on behalf of the unknown distribu*1095tees of 'Cornelia, on the other hand, contends that the said assignment was ineffective to transfer her remainder interest in the trust to respondent as no express demand therefor was made during her lifetime. Accordingly, he recommends that \u201c the principal and accrued income after payment as enumerated in the accounting, of the subject trust fund be set aside for the heirs of said Cornelia Van Zandt Freed \u201d."], "id": "86eff4a9-cac0-4a39-95e2-736f517ea72b", "sub_label": "US_Terminology"} {"obj_label": "Asylum", "legal_topic": "Immigration", "masked_sentences": ["Where the validity and effect of certain dispositions of personal property are put in issue, it is the duty of the surrogate to pass upon the issues, *546before admitting the will to probate. (Effray v. Foundling , 5 Redf. 557; Hagenmeyer v. Hanselman, 2 Dem. 87; Potter v. McAlpine, 3 Dem. 108; Pfaler v. Raberg, 3 Dem. 360; Lynch v. Loretts, 4 Dem. 312; Wardlow v. Home for Incurables, 4 Dem. 473; Matter of Tifford, 5 Dem. 524; Ludlam v. Holman, 6 Dem. 194; Matter of Pettit, 6 Dem. 391; Matter of Havens, 6 Dem. 456, 2 N. Y. Supp. 639; Matter of Hall, 39 Misc. 281; Matter of Zimmerman, 22 Misc. 411; Matter of Mullen, 25 Misc. 253; Matter of Counrod, 59 N. Y. Supp. 164; Matter of Howland, 37 Misc. 114; Matter of Probate of Will of Kelman, 126 N. Y. 75.)"], "id": "a893e68f-88df-404e-8166-7584f3b09d3c", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["under oath, and considering the circum- stances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the De- partment of State on country condi- tions), and any inaccuracies or false- hoods in such statements, without re- gard to whether an inconsistency, inac- curacy, or falsehood goes to the heart of the applicant\u2019s claim, or any other rele- vant factor. 8 U.S.C. \u00a7 1158(b)(1)(B)(iii) (emphasis added). And, after consider- ing the totality of the circumstances, the IJ must support her ad- verse credibility determination with \u201cspecific, cogent reasons.\u201d Forgue, 401 F.3d at 1287. So, while \u201cinaccuracies and falsehoods\u201d don\u2019t have to be material to the basis for the application to support an adverse credibility determination, they still have to be consid- ered in context and they still must make sense as reasons to disbe- lieve the applicant. Taking each of the IJ\u2019s offered \u201cinconsistencies\u201d in turn re- veals that, when considered within the totality of the circum- stances, they cannot be used to provide the requisite specific, co- gent reasons for an adverse credibility determination. Before I explain why, I note that we must remember that Ahmed seeks on the basis that he has been persecuted for USCA11 Case: 20-12580 Date Filed: 01/28/2022 Page: 16 of 20"], "id": "606209ab-857f-4b2a-95bf-ca8ea80b8f12", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["To corroborate his statements that he had nothing to do with the disposition of the property, he introduces a witness, Dr. Thomas Grant, who testified that he knew Mrs. Ingram, and also Dr. Hatch, the latter of whom lived in the same house for awhile with them. Grant saw Mrs. Ingram on Polk street before she went to Paso Robles Springs, and she said she had everything all fixed in case she did not come back; she left everything to Dr. Hatch, he and his family had been kind to her; only $5 to her husband; he had been unkind to her; all he wanted was her property; he had tried to get her in the ; she left $5 each to her nephews; they had been unkind; this was about the sum and substance of what she said to the witness Grant, according to his testimony. She asked him to remember what she told him in case she didn't come back from the springs. Upon the *249cross-examination of this witness it appeared' that his relations with Dr. Hatch were quite friendly, and that he went to see Mrs. Ingram at the instance of and in company with him. What was the purpose of this joint visit? Although this witness, according to his statement, had been at one time a regular physician, it is many years since he pursued that calling as a profession, and not at all in this city, his nearest connection with the practice being that he deals in medicines in a small way, being occupied at other times in the building of houses, and his medical attentions to Mrs. Ingram were of the slenderest character."], "id": "8083c705-1ae8-4af8-aacc-40de0c7aefff", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["Plaintiffs rely upon section 2(g)(6) of the Code of the Rent Stabilization Association, which code was adopted pursuant to powers granted the association by the Rent Stabilization Law. Section 2(g)(6) was adopted as an amendment to the code, purportedly \"in accordance with the provisions of Chapter 576 of the Laws of 1974 of the State of New York.\u201d Section 2(g)(6) provides that: \"Notwithstanding the foregoing definition of 'dwelling units\u2019, this Code shall not apply to the following: * * * Dwelling units owned or operated by a hospital, convent, monastery, , public institution, or college or school dormitory or any institution operated exclusively for charitable or educational purposes on a non-profit basis.\u201d"], "id": "bc9ca3b3-172c-4c75-971a-760b3f7d785c", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["While I realize that a substantial argument might be made from which directly opposite conclusions would be warranted than those reached by me, along the lines of an enfeebled mind, long confinement in the lunatic , and certain eccentricities developed either through the encroachments of old age, or from such feebleness and enforced confinement and the dis*19tressing effect such, circumstances might have made upon the decedent who was a woman of an extremely delicate and nervous temperament, and that the beneficiaries under this will are not blood relatives or relatives by marriage, and that such beneficiaries have received in the course of their association with the deceased many substantial gifts of large sums of money, with all the pathos and struggles which mark the life history of this woman, it nevertheless seems to me that the deceased, from motives of affection and gratitude, chose the Stuarts to be the objects of her bounty, rather than her sister, and this view of the case, I am constrained to follow."], "id": "beed1cf1-693a-49b1-83a4-8d432ad90d82", "sub_label": "US_Terminology"} {"obj_label": "asylum", "legal_topic": "Immigration", "masked_sentences": ["So, here the bar invoked by the petitioner must be raised in Rhode Island. To an extent, the restricted powers which may be exercised in an State in extradition reflects the demands of the Federal system and the comity which must be always recognized between the States of the Union. The process of extradition would be imperiled if the asylum State could, prior to the proceedings in the demanding State, decide the validity of the indictment or the compliance of State procedures with the constitutional safeguards. The writ is, therefore, dismissed, the application denied, and the petitioner remanded."], "id": "d2b2e869-07b9-4f9f-8e3e-f6261e77bc49", "sub_label": "US_Terminology"} {"obj_label": "asylum seeker", "legal_topic": "Immigration", "masked_sentences": ["was not long lasting; (3) the abuse was not as extensive as in A-R-C-G-; (4) she moved out of her former partner\u2019s home; and (5) she took her former partner to court and received child support and a protective order. The BIA also recognized that the Attorney General\u2019s decision in A-B-I overruled A-R-C-G-. Citing A-B-I, it reiterated that claims involving domestic violence will generally not qualify for asylum unless the violence was inflicted \u201con account of\u201d a protected ground. And that protected ground, in turn, \u201cmust exist independently\u201d of the harm from which the flees. The BIA concluded that Jaco\u2019s group failed this requirement because it was defined by the very persecution from which she flees. Quoting A-B-I, it determined that the group was \u201ceffectively defined to consist of women . . . who are victims of domestic abuse because the inability \u2018to leave\u2019 [is] created by harm or threatened harm.\u201d See 27 I. & N. Dec. at 334\u201335 (alteration in original). Finally, the BIA held that the proposed group was neither particularized nor recognized in society as a distinct group. Because Jaco had failed to show a cognizable particular social group, the BIA found it unnecessary to address whether the Honduran government was unwilling or unable to protect her. After affirming its prior decision that CAT relief is unavailable, the BIA denied the motion for reconsideration and dismissed the appeal. III. Jaco now petitions from the BIA\u2019s decision dismissing her appeal and denying her timely motion for reconsideration. Our jurisdiction is governed by 8 U.S.C. \u00a7 1252. Normally, petitioners wishing to challenge both the dismissal of an appeal and the denial of a motion for reconsideration must file separate petitions. See Kane v. Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009); 8 U.S.C. \u00a7 1252(b)(6). Here, however, because of our prior remand to the BIA, the Board addressed both Jaco\u2019s appeal and her motion to reconsider in"], "id": "6d1b410b-6d3d-430d-9fe8-36c0ee352258", "sub_label": "US_Terminology"} {"obj_label": "asylum seeker", "legal_topic": "Immigration", "masked_sentences": ["tells Customs and Border Protection that he or she wishes to apply for asy- lum, fears persecution or torture, or fears returning to his or her home coun- try. While detained by Customs and Border Patrol, the re- ceives information about the credible fear interview process. Ordinarily, an asylum-seeker waits 48 hours to participate in the interview, but he or she may waive that waiting period. See U.S. CITIZEN AND IMMIGRATION SERVICES, QUESTIONS AND ANSWERS, CREDIBLE FEAR SCREENING, https://www.uscis.gov/humanitarian/refugees-and- asylum/asylum/questions-and-answers-credible-fear-screening (last visited Dec. 29, 2021). USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 4 of 11"], "id": "58ed7f8e-0bc6-4530-aa84-55749d73c0ca", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["(Department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. \u00a7 1901 et seq.) because the Department failed to investigate mother\u2019s filing of an ICWA-020 form stating either a parent or the child possessed an identification card indicating or membership in an Indian tribe, which conflicted with another ICWA-020 form filed on the behalf of mother the same day indicating she had no Indian heritage. Specifically, father complains the Department failed to interview mother and her extended relatives and also failed to review the identification card and contact pertinent Indian tribes. For the reasons explained herein, we find the record does not establish the Department and juvenile court complied with their continuing duty to investigate whether the minor was an Indian child within the meaning of ICWA. Accordingly, we will conditionally reverse and issue a limited remand directing the Department and court to comply with ICWA. I. BACKGROUND Because father\u2019s challenge on appeal is limited to ICWA compliance, we limit our recitation of the facts and procedural history to those necessary to determine that issue. Following the minor\u2019s premature birth and report that he had tested positive for methamphetamine and cannabis, mother and father agreed to a protective emergency placement.2 However, neither parent complied with their informal services plan, resulting in the filing of a dependency petition. At an interview on December 17, 2019, both parents denied they had any Native American ancestry. The parents were then present at the 9:00 a.m. detention hearing on"], "id": "963cf239-fa57-44dd-8f97-0e3c0aafcb63", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Additional instructions to the voter concerning when the ballot should be mailed so as to ensure timely receipt by the Board *521of Elections and the requisite \u201cstatement of absentee voter\u201d by which the voter confirms his/her qualifications to vote (, registered voter, inability to appear personally on election day, absence of intention to vote elsewhere or a prior vote in the subject election, and absence of impediment to voting) appear next. Finally, four blank lines appear on the envelope. These four lines are labeled as follows:"], "id": "fd3ca982-fb29-4ab9-9ac3-d091ec6207b4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["When he entered his plea, Olvera signed a form with boilerplate language about immigration consequences: he acknowledged that the law concerning *1115the effect of \"a criminal offense of any kind on my legal status as a non-citizen will change from time to time,\" so \"I hereby expressly assume that my plea ... will, now or later, result in my deportation, exclusion from admission or readmission,\" and \"denial of naturalization and .\" He acknowledged that his attorney \"has gone over this form with me.\" His attorney represented that he \"explained the direct and indirect consequences of this plea,\" to Olvera. At the change of plea hearing, Olvera again acknowledged that he went over the form with his attorney and an interpreter. There was no specific colloquy about immigration consequences."], "id": "4c2d7951-6021-47e1-a813-914e912d9676", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["It appears from the evidence that he had not visited Nassau previous to 1937 except in one or two isolated instances. Apparently his original intent when he built the house there in 1937 was to maintain it for his winter vacations. His children continued to be educated at schools in New York. But the true nature of his intent not to abandon his New York domicile is found in his own declarations as described by his uncle, who accompanied, him on his last trip abroad just before his death. His uncle testified that the testator had spoken of the possibility of his intention of changing his residence to Nassau. The testator declared, however, that it was not decisive, that it gave him a period of five years to acquire in a foreign country and \u201c I have got that long to make up my mind finally what I will do.\u201d During the few days before his death he stated that he had not decided definitely to change his domicile. He had often mentioned that New York city was his home."], "id": "cf9ac5f5-59be-4c20-aaea-e76aa85eef2c", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["On cross-examination by Mr. Piasecki, Hotz said that the purpose of the checkpoint was related to immigration, checking and whether noncitizens were legally in the country. He was reasonably certain that Jock was a United States citizen when he said that he was. He took possession of Jock\u2019s license *460during the questions, as a precautionary measure so that the agents would have a motorist\u2019s identification if he were to flee. He also used the license to determine where Jock lived. He remembered asking the passenger about his citizenship, but does not recall whether he asked for identification. Hotz did not recall Jock\u2019s residence address. Hotz asked Jock where he was coming from, and was told \u201cHogansburg.\u201d"], "id": "0827ce89-113a-4103-b12a-cc456df407ff", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The petitioner has heretofore voted in the city of New York and heretofore produced his naturalization papers. Section 170 of the Election Law prescribed the procedure by which a naturalized citizen desiring to register should satisfy the board of the fact of his naturalization. In the first instance, he is required to produce the naturalization papers upon which his depends. However, in 1952 the Legislature enacted an important amendment (L. 1952, ch. 169) which dispensed with the production of the naturalization papers if the person seeking registration had theretofore produced the papers before an appropriate board. The amendment reads:"], "id": "3e223689-f56d-4c2a-87f1-ce1bf16dd3a2", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*1082Mr. Justice Butledge (p. 167) in another concurring opinion in Schneider man, although concerned with canceling , too, spoke of the limitations upon the Government \u2014 and, yes, the courts themselves \u2014 in denying citizenship to an alien: \u201cNo citizen with such a threat hanging over his head could be free. If he belonged to \u2018 off-color \u2019 organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could not open his mouth without fear his words would be held against him. For whatever he might say or whatever any such organization might advocate could be hauled forth at any time to show \u2018 continuity \u2019 of belief from the day of his admission, or \u2018 concealment \u2019 at that time. Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is not citizenship. Nor is it adjudication.\u201d"], "id": "28aa609c-3eaf-427d-85bf-20adb6a89f81", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Jury service is an obligation of and its incidence is to be borne as widely as possible. The creation of a permanent pool changes the obligation into a burden to be avoided by all who cannot afford the demands that repetitive service entails. It is unfair to those members of the community who perform this duty willingly; it is unfair to the defendants who *883are entitled to a judgment from a cross section of the community."], "id": "23a04282-3492-412e-b072-c1f54ce6014b", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["It will now be proper to observe the course and practice followed by the superior court of the city of New York in matters of naturalization. Prior to 1858 the preliminary proofs and the oath of allegiance of the applicants were in many, if not in most, cases written out by the clerk and kept upon loose sheets of paper. The declarations of intention, however, were, since November, 1846, kept in a separate book. These loose papers were filed away, after the action of the court upon them, as of the date of the respective applications and kept in the' office of the clerk in the same manner as other records were preserved. In passing upon each application the judge holding the court neither signed the papers, nor did he affix his .initials, but the clerk was required to- note the fact of the judgment of admission by an entry in the minutes, lip to 1858 these entries were made in the minutes; but in that year, no doubt in consequence of the large increase in the number of applications, the practice was changed. Printed blanks came into general use for making the preliminary proofs and taking the oath of allegiance. If the applicant and his witness, after having been duly sworn to make true answers, answered all questions put to them to the satisfaction of the court, the presiding judge, on admitting the applicant to , signified the fact of having made such adjudication by affixing the initials of his name to the application, and thereupon handed the papers to the clerk, with directions to do whatever might remain to be done; the clerk then,- in pursuance of such adjudication, fiat and directions, administered, and the applicant in open court took, the oath of allegiance, and a certificate was given to the applicant as evidence of the fact of his admission. The papers containing the fiat of the presiding judge, as aforesaid, were thereupon indorsed and filed among the records of the court as a part thereof, and marked filed as of the date of the respective application. An entry was also made in a book, kept in *16alphabetical order, showing the date of the admission, the name of the applicant, his nationality, the name of his witness and the residence of such witness, and if the admission was ordered without a previous declaration of intention, either on a discharge from the army or on the ground that the applicant had arrived in this country during his minority, such fact was specially alluded to. As often as necessary a new book of like character was opened upon the same-plan. All the books thus kept were permanently preserved among the records of the court. The first thus opened and kept bears upon the outside the simple title or label \u201c Naturalization.\u201d The one next in order of time is labeled H Naturalization Index.\u201d Those opened since October 16, 1868, bear the title \u201c Naturalization Record.\u201d The practice, however, of braking an entry in the regular minute book was discontinued. The course and practice as now detailed was observed by the court for the following fifteen years, and under it the promovents now before the court were admitted in 1868."], "id": "c1863c43-9151-4f71-94f9-8e50e2a9f4d9", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["There is no provision in article 4 of the Family Court Act which makes residence or domicile a prerequisite to the commencement of a support proceeding. It is a well-established principle of law that a party may subject himself to the jurisdiction of a court for the purpose of commencing a proceeding before such court, regardless of his residence or . (Anderson v. N. V. Transandine Handelmaatschappij, 28 N. Y. S. 2d 547, affd. 263 App. Div. 705, affd. 289 N. Y. 9 [1942] ; \u201cEngland\u201d v. \u201cEngland\u201d, 205 Misc 2d 645; Catalanotto v. Palazzolo, 46 Misc 2d 381.) The fact that dependents may be residents or even citizens of a foreign country does not in any way diminish the husband\u2019s or father\u2019s obligation to support them. The party liable for support should not be able to avoid this responsibility by claiming that the foreign residence or citizenship of his dependents automatically precludes them from the relief which they seek."], "id": "7d5ca70c-6b29-496c-b031-27af560342ee", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*282Hopefully, as these and other issues are considered in the future, our appellate courts will provide needed guidance. In its absence, however, the trial courts must continue to deal with the issue on a case-by-case basis, with due consideration for the underlying principle of both Batson and Kern (supra). Plainly, those cases preclude purposeful discrimination in the selection of a jury, which not only violates the defendant\u2019s due process and equal protection rights when practiced by the prosecution, but also, when committed by defense counsel, impinges upon the civil rights of citizens, which includes jury service as a privilege of and as a means of participation in government."], "id": "05c0637b-cf34-4361-8c58-3d258b577b81", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The motion to dismiss, based upon application of the doctrine of collateral estoppel grows out of the fact that this plaintiff previously commenced an action in the United States District Court for the Western District of New York against the same defendants for the same relief, upon the same grounds alleged here and that the complaint was dismissed there upon the ground inter alia thatf< the complaint does not contain allegations sufficient to state a cause of action arising under and involving the interpretation and application of the Railway Labor Act as amended \u201d. Leaving aside the question of whether that earlier determination fits within the doctrine of collateral estoppel, rather than that of res judicata, it could only act as a bar to this action if it constituted a final adjudication on the merits. However, the District Court dismissed for lack of jurisdiction of the subject matter in the absence of a diversity of of the parties, the lack of any jurisdiction conferred pursuant to sections 1331 and 1337 of title 28 of the United States Code, and, as stated, the lack of allegations sufficient to state a cause of action arising under and involving an interpretation of a Federal statute, i.e., the Railway Labor Act. The argument of the defendants is that Federal laws control this case because it involves a collective bargaining representative, Division 421 of the Brotherhood of Locomotive Engineers, certified by the National Mediation Board, under the Railway Labor Act, as the representative of a class of employees in the service of an employer engaged in interstate commerce, and is argued, a cause of action arising out of a Federal labor statute, the Railway Labor Act. This last refers to the duty of fair representation, which the defendants claim arises from Federal law. Concluding from these propositions that Federal law applies exclusively, the defendants reason that the earlier dismissal by the District Court is a conclusive determination that no cause of action exists under Federal law and that therefore none can exist under State law."], "id": "df6e9f24-382f-4602-9785-9121f270110b", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["reinstatement of a question regarding on the 2020 decennial census questionnaire. The letter stated that citizenship data is critical to the Department of Justice\u2019s enforcement of the Voting Rights Act and its protections against racial discrimination in voting. The Department ex- plained that, to enforce the Act\u2019s requirements, it needs a reliable calcula- tion of the citizen voting-age population in localities where voting rights violations are alleged or suspected, and that the census is the most appro- priate vehicle for collecting that data. Approximately three months later, on March 26, 2018, the Secretary announced that he was reinstating a citizenship question on the census in response to the Department\u2019s re- quest. On January 8, 2019, the Committee sent a letter to the Secretary re- questing an extremely broad set of documents regarding the Secretary\u2019s decision to include the citizenship question on the census questionnaire. On February 12, 2019, the Committee sent a letter to the Acting Attorney General requesting similar documents regarding the Department of Jus- tice\u2019s role in that decision. The Departments promptly began producing thousands of responsive documents to the Committee on a rolling basis, and made multiple witnesses available for interviews. Despite these efforts, the Committee issued separate subpoenas to the Secretary and me on April 2, 2019, seeking many of the documents re- quested in the Committee\u2019s January 8 and February 12 letters. The sub- poena issued to the Secretary requested eleven specific documents, in- cluding e-mails between the Secretary and his close advisers, as well as e-mails and documents produced by or sent to an attorney in the Depart- ment of Commerce\u2019s Office of General Counsel. The subpoena also requested all communications from January 20, 2017 through December 12, 2017 among Department of Commerce officials or between such officials and outside entities concerning the citizenship question. The subpoena issued to me requested a memorandum and note to the Acting Assistant Attorney General for the Department of Justice\u2019s Civil Rights Division from the same Department of Commerce attorney regarding the citizenship question. The subpoena also requested all documents and communications from January 20, 2017 through December 12, 2017 within the Department of Justice and with outside entities regarding the Department of Justice\u2019s request to include the citizenship question."], "id": "e47470a1-7319-4b41-8b57-f191b20803ec", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In United States v. Keller, decided in 1882, in the Circuit Court for the Southern District of Illinois, it was held, that by the marriage of a resident alien woman with a naturalized citizen, she, as well as her infant son, dwelling in this country, became citizens of the United States as fully as if they had become such by the special mode prescribed by the naturalization laws. In that case Keller was indicted for illegal voting. Eis parents were aliens, being subjects of Prussia, and his father died without ever having been in this country. Subsequently his mother removed to the United States, bringing her infant son with her, and in 1868 she intermarried with a naturalized citizen. Keller claimed, as he was under the age of twenty-one years when his mother married a citizen of this country, he, by force of the act of 1855, was immediately invested with the privileges of , and as he was otherwise qualified by the laws of the State of Illinois to become an elector, he was not guilty of any offense. As this decision was rendered by Mr. Justice HaelaN, one of the highest judicial officers in the federal system of courts, and involves the construction of an act of congress, we readily adopt his views as they are in accord with our own interpretation of the same laws. As a general rule, when the question to be determined arises as to the proper construction to be placed upon an act of congress the State courts follow the interpretation given to the same by the federal courts."], "id": "0e08a47e-18e1-4ca4-ad84-c76bbca2a318", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["March 18, 2020, wherein through their attorneys they filed ICWA-020 forms denying heritage, and the court determined the minor was not an Indian child and ICWA did not apply. The same day at 3:31 p.m., mother (acting in pro per) filed another ICWA-020 form with a box checked that indicated \u201cEither parent or the child possesses an Indian identification card indicating membership or in an Indian tribe.\u201d However, mother failed to complete the associated portion of this form where she should have identified the name of a tribe or a membership/citizenship number. According to the combined jurisdiction and disposition report, the next week on March 24, 2020, both mother and father were interviewed by the Department and again denied having any Native American ancestry. This report did not acknowledge mother\u2019s statement under the penalty of perjury on the second ICWA-020 form that either mother or the minor possessed an \u201cIndian identification card indicating membership or citizenship in an Indian tribe.\u201d This report also noted that the Department had located and interviewed a paternal grandmother, T.G., and a maternal great-grandmother, T.D., but neither of them were able to provide a secure placement for the minor. The report did not indicate whether the social worker discussed Native American ancestry with either of these extended family relatives. The Department then filed an amended dependency petition preceding the jurisdiction and disposition hearing, which attached a copy of an ICWA-010(A) form completed August 21, 2020. This form identified the parents as the individuals interviewed in order to determine there was \u201cno reason to believe the child is or may be an Indian child.\u201d It also did not acknowledge mother\u2019s second ICWA-020 form or any efforts undertaken to resolve the issues created by it. On September 2, 2020, the juvenile court sustained the dependency petition and ordered reunification services for the parents. Nothing in the record indicates the court engaged in a new consideration of ICWA in light of mother\u2019s filing of the second ICWA- 020 form, including whether the Department\u2019s successive interview with the parents a"], "id": "352200af-ae32-4a12-8c29-b20b514909ef", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Section 1780 of the Code of Civil Procedure makes provision for the cases in which a foreign corporation may be sued in this State. It provides, first, that an action against a foreign corporation may be maintained by a resident of the State or by a domestic corporation for any cause of action ; secondly, that an action against a foreign corporation may be maintained by another foreign corporation or by a non-resident in one of the following cases only: 1st. *392Where the action is brought to recover damages for the breach of a contract made within the'State, or relating to property situated within the State at the time of the making thereof. 2d. Where it is brought to recover real property situated within the State, or a chattel which is replevied within the State; and 3d. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State. It is apparent that this action is not one within either of those provisions. It is brought for a cause of action which arose in the State of Pennsylvania upon a contract made and wholly to be performed, and the- all\u00f3ged breach of which occurred, within that State. Both parties being foreign corporations and each having its place of business in another State, are of course non-residents of this State. In Ervin v. Oregon Navigation Company (28 Hun, 269) this court held that since the adoption of section 1780 of the Code a foreign corporation can only be sued by a non-resident in one of the cases mentioned therein. But it is insisted by the counsel for the appellant that section 1780 is in conflict with the provisions of the Constitution of the United States, which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. But without considering fully the elaborate and able arguments of the counsel upon that question, it is enough to say that the plaintiff in this case, being a corporation of Pennsylvania, is not, within the meaning of the Constitution, a citizen of that or any other State, and therefore may not claim in another State whatever rights and immunities are preserved by that instrument to the citizens of all the States. By section 1 of article 14 of the amendments to the Constitution, is expressly defined and declared as follows: \u201c All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.\u201d"], "id": "be25ccee-f98e-4ea5-b164-34afd8cc09c4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*882Defendant asserts that, when he recently attempted to apply for U.S. , he was informed that his \u201cprior conviction posed a problem in terms of immigration.\u201d Specifically, defendant asserts that his bail jumping conviction constitutes an \u201caggravated felony\u201d under the relevant immigration laws. Defendant also asserts that an aggravated felony conviction bars him from obtaining U.S. citizenship, and that such a conviction will also result in his deportation. Therefore, defendant seeks to vacate his judgment of conviction."], "id": "a5085ede-89b8-49f0-8853-ec9caf80d1b0", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["It appeared that at the general election held at the place mentioned in the indictment the defendant offered to vote, and hex-right being challenged she- took the usual and requisite oath, and the ballots offex-ed by her wex-e received by the inspectors and deposited in the ballot boxes. The statute, pursuant to which the prosecution was instituted and had, provides that \u201c any person not duly qualified to vote under the laws of this State, who shall knowingly vote or offer to vote at any general or special town or charter *200election in this State, shall be adjudged guilty of a misdemeanor, and on conviction shall be imprisoned for a period not exceeding six months,\u201d etc. The disqualification in view to support the charge of offense was that the defendant was a female. It is contended that the fact so relied upon is not alleged in the indictment, and that the reference made to the fact that the person charged was a female was mere matter of description rather than of allegation. \"We think the indictment was sufficient in that respect. And that founded upon that fact assuming that it was a disqualification the offense was sufficiently described. It is true that a statement .of the facts constituting an alleged crime is essential to support an indictment. (Code Crim. Pro., \u00a7 275.) And such has been the long standing rule founded upon the reason that by a presentment so made the party should be well advised of the character of the offense charged^against him. (Wood v. People, 53 N. Y., 511; People v. Wilber, 4 Park. Cr. R., 19; People v. Standish, 6 id., 111; Pearce v. State, 1 Sneed, 63; 60 Am. Dec. 135.) The sufficiency of statement is dependent upon the information it may furnish, and when an offense may result from one of two or more causes, the one upon which the alleged crime is sought to be predicated must be stated. (People v. Dumar, 106 N. Y., 502.) In the case at bar the alleged crime was illegal voting, and the alleged disqualification was that the defendant was a female. This was a sufficient statement of the facts constituting and which produced the offense upon the assumption before mentioned. (Hamilton v. People, 57 Barb., 625.) It is, however, said that the defendant does not come within the \u201c meaning of \u201d a person not duly qualified to vote under the laws of this State, \u201c because the provision of the Constitution defining the qualification of voters is not law as that term is ordinarily applied, and therefore the statute creating the crime and providing for its punishment, has no application to the case presented by the indictment. This view cannot be supported. The provision referred to of the Constitution is the law of the State upon that subject and must be so treated as effectually as if it were engrafted into a statute, and the fact that the section of the act of 1842, which contained the word \u201c male,\u201d was repealed by the act of 1847 (chap. 240), and that since then there has been no statute on the subject embracing that term by way of limitation, we think has no significance on *201the question now under consideration. That provision of the Constitution required no legislation to give effect to it as a governing rule of law, nor can we adopt the view of the learned counsel for the defense, that persons not designated in that provision of the Constitution are not excluded from the right to vote. The view thus contended for would render the provision substantially nugatory, except as a guaranty to those so designated against disfranchising legislation, and lead to the conclusion that while it declares that male citizens of the requisite term of , inhabitancy and residence, are entitled to vote at elections, it has the effect to exclude none from the exercise of the elective franchise (Const., art. 2, \u00a7 1), and that no persons are denied such right other than such as may come within the second section of that article and those who may by statute be disqualified."], "id": "7332e1c8-bcee-4a10-86d4-1ec8d85a6402", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["The full text of Code of Civil Procedure section 155, subdivision (a), reads: \"A superior court has jurisdiction under California law to make judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101(a)(27)(J) and 8 C.F.R. Sec. 204.11 ) (July 6, 2009), which includes, but is not limited to, the juvenile, probate, and family court divisions of the superior court. These courts may make the findings necessary to enable a child to petition the United States and Immigration Service for classification as a special immigrant juvenile pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code.\""], "id": "e6682274-799c-4db3-8794-45d64f55e07a", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The experts disagreed, however, upon the ultimate question in this case, i.e., the Swiss rule applicable to the distribution of the Swiss realty of a person of hybrid nationality domiciled not in Switzerland but in the country of his second . Under Swiss law the decedent herein was vested with dual nationality. The law of that country provides that a citizen, in order to divest himself of the cloak of citizenship must formally renounce his allegiance in the manner prescribed by statute. Such formal act of renunciation was not performed by the decedent. The assumption of a new allegiance by naturalization in the United States did not of itself suffice to free him of fealty to Switzerland. In such event, he became a *1026person of twin or dual citizenship, a status which is recognized under Swiss law (see e.g., Matter of Community of Feldis, 24 B. E. [1] 312 [Switz.] )."], "id": "46ba7977-3244-4aef-9b6a-3a1015860db3", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["There appears to be no dispute that the plaintiff, a foreign corporation, was at the time of contract an unlicensed corporation doing business in this State. A first litigation was instituted in the Federal jurisdiction where the action was dismissed, the court finding that there was no such diversity of as would confer jurisdiction upon that court, since under the pertinent statute the plaintiff had a principal place of business in this State. In its decision the court there declared that the cause of action before it was one in conversion. In any event, a determination on the question of diversity of citizenship is not a determination of the issues here involved. Thereafter, this action was commenced in this court upon an original complaint in which it was alleged that the plaintiff was and is the owner and entitled to the immediate possession of certain *824moneys advanced by plaintiff and to be received and held in trust by the defendant for the plaintiff in connection with the importation and sale of certain food products pursuant to a written agreement. Thereafter, the plaintiff demanded that the defendant return such moneys to the plaintiff and the defendant failed and refused to do so. Upon motion of the defendant the complaint was dismissed and on appeal the order of dismissal was unanimously modified on the law and the facts and in the exercise of discretion to delete the provision of the order directing the entry of judgment and to provide that the plaintiff shall have leave to serve an amended complaint. In the course of its decision the court stated (13 A D 2d 919-920): \u201c The plaintiff, a foreign corporation, doing business in the State, may not maintain this action on the basis of the contract made with the defendant in this State; it appearing that it did not, prior to the maldng of such contract obtain a certificate of authority to do business within the State. (General Corporation Law, \u00a7 218.) \u201d There was no doubt, however, that the plaintiff claimed that the action was not brought on the contract but upon a claim of conversion of moneys belonging to the plaintiff. Concerning that contention the court stated (p. 920): \u201cIt is clear, however, that the particular cause of action pleaded here is one upon contract. The writing annexed to the complaint, constituting in whole or in part the contract between the parties, contains no provision justifying plaintiff\u2019s allegation that the moneys advanced were received and held in trust by defendant for plaintiff. The plaintiff should have been given leave, however, to plead a cause of action in conversion if he has such a cause.\u201d And it further stated (p. 920): \u201cIt is true that the statute (\u00a7 218) would not be available as a defense to an action grounded solely in conversion.\u201d An amended complaint was served and it is this pleading which is now under attack. It is to be noted that the Appellate Division decision referred to the writing attached to the original complaint as \u201c constituting in whole or in part the contract between the parties \u201d. In the amended complaint the plaintiff appears to allege upon a contract which is broader than the writing that was attached to the original complaint and it does not appear that any writing is attached to the amended complaint. While the writing contains no provision justifying an allegation that the moneys advanced were received and held in trust by the defendant for the plaintiff, yet the writing does contain a provision, as follows: \u2018 \u2018 The undersigned agrees that any moneys received from the sale of such goods, shall be received and held in trust by the undersigned, and turned over to you forth*825with upon receipt thereof in its original form, with proper endorsement, if necessary.\u201d"], "id": "f383477d-6b44-441c-8845-f7e41f327bfe", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["No action for an annulment of the marriage has been instituted in the Supreme Court and, therefore, the present status of the relationship between the parties is that of husband and wife. Since the marital relationship now exists, this court has jurisdiction over the parties and may enter an order for the support of the wife and the child. In fact, the respondent does not deny his liability for the support of his child and states that he is willing to support her as soon as his means will permit. Although respondent has made sincere efforts to secure employment, he has not been successful. He is still under the age of eighteen and is not a citizen because his father has not yet received final papers. It appears unlikely that respondent will secure employment in the immediate future. In view of the respondent\u2019s financial condition, his lack of assets and his inability to secure employment, the proceeding is reserved generally with leave to the petitioner to renew in the event of a change in the respondent\u2019s economic condition. The petitioner\u2019s case is referred to the department of welfare for investigation and assistance."], "id": "a6c39211-4ad9-48a4-a02e-b334439e4cf4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["After the divorce of her parents it appears that the infant (in whom alone I am interested in this proceeding, as her clearly follows that of her father, and she now resides in my jurisdiction and is committed to my care) was taken by the father from Germany via New York to Mexico. In July, 1910, the child was brought thence to New York. In November, 1910, as I am informed by the papers submitted to me, a writ of habeas corpus issued out of the Supreme Court of this State, at the instance of the mother, directing the father, Otto Wagner, to produce the infant before the court for its further action. Pending this proceeding, the father and mother entered into some sort of convention in writing, dated November 30, 1910, providing for the future custody, maintenance, support and education of the infant. Thereupon the writ of habeas corpus in question seems to have fallen without further action of the court. The father then took the infant to Berlin, Germany, in December, 1910, apparently pursuant to the agreement mentioned. Both parties now allege ultimate breaches of the said agreement. Which is in the right I cannot determine, and, according to my view of the status of the child, it is of no consequence in this proceeding before me. In any event, the infant was brought back to New York almost immediately by the father, and since January, 1911, has been continuously in the county of my jurisdiction. Thereafter the mother procured to be *30issued out of the Supreme Court of this State a second writ of habeas corpus directed to the father and requiring the production of the child. This writ also was allowed to lapse without further action of the Supreme Court."], "id": "db35b70b-880e-4e58-8141-16687a73da04", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Whether this result is good law or bad law is not for the court to discern. Whether any change in the law is called for remains within the sound discretion of the legislature. That does not, however, leave the People or the tribal police department without some remedy. The court can perceive no obstacle, under such circumstances, to the responding officers, suspecting the commission of a crime, seeking the assistance of sister agencies who could effect an arrest, even upon the sworn statements of the responding officers. They remain, most generally, citizens who are permitted, even called upon, to cooperate with law enforcement and provide statements of their observations. Alternatively, in some cases, they could be called before the grand jury, in a direct presentment, and give testimony of their observations. In these instances, they would simply be exercising the prerogatives of and not \u201cthe duties or functions of a police officer\u201d (see Indian Law \u00a7 114 [8])."], "id": "72c7ef74-a8c5-45ef-8358-901ee8a947a0", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Thus, if due process concerns, rather than competence concerns, underlie the requirement of jurisdiction over the marital res, then the question remains whether such jurisdiction acquired at the commencement of an action may be retained when the jurisdictional predicate is lost. The general rule with respect to jurisdiction of the person or of the res is that jurisdiction acquired at the commencement of the action is not defeated by subsequent events occurring during the pendency of an action, even if they are of such character as would have prevented jurisdiction from attaching in the first instance. (21 CJS, Courts, \u00a7 72; see also Primavera v Primavera, 195 Misc 942.) Such jurisdiction is retained until final disposition of the case. (21 CJS, Courts, \u00a7 73.) In the instant action, the Court clearly had jurisdiction over the marital res at the time of commencement by virtue of plaintiff\u2019s New York domicile. Due process having been satisfied, there is neither precedent nor rationale for the proposition that due process is undone by virtue of plaintiff\u2019s mid-action change of domicile. To the contrary, public policy militates against allowing a litigant to divest a court of jurisdiction in a pending action by his own volitional acts. (Cf. McEachron v Glans, 983 F Supp 330 [ND NY 1997], citing 28 USC \u00a7 1332 [a] [federal subject matter jurisdiction based on diversity of is determined at the commencement of an action and can neither be created nor destroyed by a party\u2019s subsequent change in domicile].)"], "id": "200b67af-56de-446a-9034-fccfce131cf8", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["\u201c \u00a7 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then, at the next session of the court in which such suit or prosecution is pending, file a petition stating the facts and verified by affidavit, for the removal of the cause for trial to the next Circuit .Court-of the United States, to be holden in the district where the suit *596is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court, and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or 1 prosecution,\u2019 and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the of the parties, any former law to the contrary notwithstanding.\u201d"], "id": "fa0726ce-59a8-43bd-9799-4f6c17ba0194", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Two other New York cases have passed upon this question (Clemente v Little, NYLJ, Jan. 5, 1977, p 19, col 3; Holt v City of Troy, 78 Misc 2d 9). In Clemente the court observed, in *15reliance upon Judo (supra), that State courts exercise concurrent jurisdiction over section 1983 claims, but dismissed the claim against the municipality. In Holt the court sustained a section 1983 claim against a police officer, primarily upon the rationale that absent diversity of the Federal courts could not enforce such a claim. However, insofar as the latter rationale is concerned, the overwhelming weight of Federal authority is that diversity, like the monetary jurisdictional requirement, is not a prerequisite to access to the Federal courts for redress of section 1983 violations (see US Code, tit 42, \u00a7 1933, cases cited Ann No. 762; Later Case Service, CLS, US Code, tit 42, \u00a7 1983, cases cited Ann No. 71), although the United States Supreme Court has not, as yet, specifically resolved the issue (cf. Scheuer v Rhodes, 416 US 232, 234, n 2; Collins v Hardyman, 341 US 651; Douglas v Jeanette, 319 US 156)."], "id": "2b178f91-c380-4ad4-bc05-f16641a76d6a", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*387In the opinion of the court the prima facie case made by the plaintiff by the offering of the policies in evidence (Campanaro v. Prudential Insurance Co., supra) has been overcome by the documentary evidence offered by the defendant to the effect that the age of the plaintiff was seven years greater than that stated in each policy. The statements of the plaintiff made to the various public authorities, passport, immigration, , election, license, at a time when no motive for falsifying existed or appeared to exist, that his correct birth date is 1878, is accepted by the court as the correct statement of the fact. Each written instrument signed or the information therein supplied by the plaintiff is documentary evidence. Documentary evidence may be any written instrument to which the plaintiff did or did not affix his signature and from which written instrument evidence material to the issues is supplied. \u201c A public document is one recording facts which may have been inquired into or taken notice of for the benefit of the public by an agent authorized and accredited for the purpose.\u201d (22 C. J. 791, note 14.) Public documents may include records generally, registers of births, baptisms, marriages, deaths and other registers, such as immigration, citizenship, election and license."], "id": "4f2704a7-e35a-42f4-b3ca-ab0fe7f752d4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Defendant also contends that since she is a resident alien contemplating application for and since implication in a crime involving moral turpitude may subject her to deportation (United States v. Unger, 26 F. 2d 114 [U. S. Dist. Ct., S. D. N. Y.]), she may still assert her privilege. However, it is well settled that deportation proceedings are civil rather than criminal in nature and therefore the constitutional guarantees, of which the privilege against self incrimination is one, are not applicable to such a proceeding. (United States ex rel. Bilokumsky v. Tod, 263 U. S. 149.)"], "id": "ec237402-6b00-40db-9769-6c75d817f934", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In any case, the mere mention of State-wide would not be sufficient compliance with recent case law development. That is, the Court of Appeals, in its second Heller decision, stated that the applicable community standard in New York has been, and will continue to be, defined and administered by our appellate courts as a matter of State law. (See People v Heller, 33 NY2d, at pp 326-327, supra.) Apparently, then, it is incumbent on a Trial Judge to fully explain and define that standard in his charge, as a matter of law. This was not done in appellant\u2019s case, wherein the entire matter was specifically left up to the jury as the trier of fact."], "id": "b1dce36a-5eeb-45ca-92f6-d38e07894ebf", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The opinion in O\u2019Rourke (730d 842, supra) begins with a *860determination of the appropriate substantive law to be applied on the ground that choice-of-law \"is necessary before we may consider in particular the prejudgment issue\u201d (730d, at p 846). In accordance with the rule that \"[w]here jurisdiction rests upon diversity of , the court must apply the whole law of the state in which it sits\u201d (supra, p 846). New York\u2019s substantive law was found applicable to the claim against Eastern.2"], "id": "c14594d4-1357-433d-8e04-e2b1d70f17c3", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In an election of general interest, restrictions on the franchise other than residence, age and must promote a compelling State interest in order to survive a constitutional attack (Kramer v Union School Dist., 395 US 621 [1969] [emphasis added]). However, in special interest elections, where one group of citizens is distinctly affected by the action or proposed action of a governmental entity, restrictions for such elections will be upheld as long as a reasonable basis for the limitation exists (Salyer Land Co. v Tulare Water Dist., 410 US 719, supra; Moorman v Wood, 504 F Supp 467 [ED Ky 1980]; Adams v City of Colorado Springs, 308 F Supp 1397, 1403, affd 399 US 901 [1970] [emphasis added])."], "id": "6024493f-c202-4cac-b99c-c3c4259feb82", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Plaintiffs\u2019 original complaint, filed on or about June 29, 2004, had sought a judgment declaring that the Does are the legal *426parents of the three children and enjoining the defendants from recording the birth mother and/or her- husband as the parents on the children\u2019s respective birth certificates. Mrs. Roe\u2019s obstetrician and the hospital, originally named as defendants, stipulated to comply with any final order issued by the court. DOHMH answered the complaint on or about July 27, 2004. DOHMH opposed the grant of a prebirth order, arguing that it violates article 8 of the Domestic Relations Law, as that statute declares all surrogate parenting contracts void and unenforceable in New York State. DOHMH further argued that the hospital and its physicians are required to report to DOHMH the true medical facts surrounding a live birth, including the identity of the woman giving birth to a child, so that the medical records remain accurate and to prevent fraud or mistake in the determination of such matters as identity, , inheritance and insurance coverage."], "id": "6bb9673b-76fe-4ce4-a571-24d47ffecd8e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["But even if this were not so and were not a constitutional qualification of a juryman, nevertheless it is of such magnitude and importance as to justify a new trial when the objection is not discovered in the exercise of reasonable diligence until after the trial. The statutory qualifications of a juryman are rarely inquired into, but on the contrary it is uniformly assumed that every juryman summoned is a citizen and otherwise generally *383qualified as required by statute. The examination on voir dire is almost universally directed to his bias, prejudice and partiality and it is not strange that neither the district attorney nor the defendant\u2019s counsel asked the jurymen in this instance if they were citizens. In the face of an almost universal pract'ee of accepting the persons chosen by public officers to serve as jurymen as statutably qualified, it would be straining for a reason not based upon experience to say that the defendant should have asked the jury in this instance whether or not they were citizens. The question of age is sometimes brought out in the examination by counsel but usually because of the appearance of some juryman, but there is nothing in the appearance of an ordinary man to indicate whether or not he is a citizen. A man above or below the required age or one lacking the property qualifications (People v. Cosmo, 205 N. Y. 91) may make an excellent juryman. These are formal prerequisites. But not so with the qualification of citizenship. There is no presumption that an alien owing allegiance to a foreign government can act acceptably where the life of a citizen is at stake. A jury entirely made up of those not qualified as to age, residence or property may still render an impartial and just verdict but one made up entirely of aliens to try a citizen is fundamentally obnoxious. And if it is proper to convict of homicide with one alien, where shall the line be drawn when the number of those disqualified by alienage becomes sufficiently serious to vitiate the verdict? The defect in the personnel of the jury in this instance is too grave and profound to pass over with a mere expression of opinion that the defendant ought to have discovered the disqualification before trial. We pride ourselves that under our judicial system a plea of guilty to a charge of murder in the first degree will not be accepted and that however guilty the accused may appear to be, he is presumed to be innocent and is entitled to a fair and impartial trial and to have Ms guilt established beyond a reasonable doubt, and it would seem like a travesty indeed on these principles to hold that he can have such a trial when one or more of the jurymen are aliens and to call his conviction under such circumstances a \u201c judgment of his peers.\u201d See 18 L. R. A. 476; 50 L. R. A. (1914) (N. S.) 973. Motion for a new trial granted."], "id": "b2a75614-97fa-45e2-a4ff-407560fd49b9", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The language \u201cnor to a person not a citizen of the United States, unless sncli person reside within this State,\u201d seems to be very significant in this connection, because it contains a clear implication that a person who is a citizen of the United States, although not residing within this State, is not intended to come within the prohibition of the law. In this provision of the statute the framers thereof had before them the question as to the residence of the applicant for administration, and if they had intended to exclude, or had supposed that the policy of the law excluded nonresidents from administering, they certainly, in connection with the provision in regard to , the absence of which they pronounced to be a disqualification unless the person applying resided within this State, would have included non-residence of a citizen among the disqualifications. It is no answer to these suggestions to say that the provisions in reference to non-residents, who are not citizens, were intended to apply only to those who were seeking to obtain ancillary letters of administration, because if that-had been the intention of the legislature, it would have been very easy for them to have said so. .No reference is made to ancillary letters and the statute is entirely general in its character. The statute having expressly provided as to the priority of the persons to whom letters ol administration shall be granted, and having determined as to disqualifications, nothing can be added to it by judicial legislation, and the withholding of letters of administration cannot be *70justified unless the applicant is disqualified by the statute itself. (Coope v. Lowerre, 1 Barb. chap. 45; Emerson v. Bowers, 14 N. Y., 449.) Restrictions or modifications of statutes by implication are not to be favored, and unless the provisions are clearly inconsistent and cannot stand together, full effect must be given to all. No provision of the statute is impaired in any manner by giving to section 32 its full effect, and restricting it to its declared provisions. Simply placing non-residents upon a different position from residents as to notice of applications for administration upon assets existing within this State conveys to our mind no intimation or intention upon the part of the legislature to exclude any others than those whom they have expressly declared shall not be entitled to administration."], "id": "03c429f4-9d7b-4588-8849-5a9a9514a0b5", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Defendant, in its motion, asks for relief based on the Federal Arbitration Act (9 USC \u00a7 4) in that the \u201cAgreement\u201d contains a mandatory arbitration clause. Both federal and state law favor the resolution of disputes by the use of arbitration and title 9 *732of the United States Code is in place to foster this end. For title 9 to be applicable, the transaction must be one that arises from interstate commerce. The fact that defendant is in South Dakota and the claimant in New York and interstate commercial means were used to order and ship the equipment places the subject matter of the contract under the general definition of title 9 (9 USC \u00a7 2). However, it is also clear that the existence of this title does not in and of itself create a cause of action under federal law and any attempt to bring an action in Federal District Court to enforce an arbitration clause must have an independent basis of federal jurisdiction (Kehr v Smith Barney, Harris, Upham & Co., 736d 1283 [9th Cir 1984]; Klocek v Gateway Inc., 104 F Supp 2d 1332 [D Kan 2000]). There is no federal question involved in this dispute, nor is there an amount in controversy that would permit the action to be brought on diversity of grounds. Since the amount in dispute is less than $2,000, the jurisdiction is a state court matter and small claims court is the appropriate forum for the resolution of the claim."], "id": "f9e6bcae-c8b2-485f-9b80-c5687af529c2", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["A foreign corporation has no corporate existence beyond the limits of the State in which it is created, yet it may transact business outside of such State, but elsewhere its existence is recognized as mere matter of comity. (Bank of Augusta v. Earle, 13 Peters, 558; Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, 286; Merrick v. Van Santvoord, 34 N. Y. 220.) It is the mere creature of the law of the State or government which gave- it existence, and the validity of its acts, outside of the State of its creation, depends upon the laws of the sovereignty where they are transacted. When it attempts to transact business in another State, it does so upon the conditions prescribed by its laws, and subject to the process of its courts. (Lafayette Ins Co. v. French, 18 How. U. S. 408; Austin v. N. Y. & Erie R. R. Co. 1 Dutcher, 381; People v. N. J. Central R. R. Co. 48 Barb. 478.) Allen, J., in Stemens v. Phoenix Ins. Co. (24 How. Pr. 517), says: \u201c When they avail themselves of this comity, and of the privileges thus conferred, and transfer their business, or any part of it, to another State, and establish agencies within such State, although they remain inhabitants of the State of their incorporation, for the reason that the \u00a3 artificial, invisible, and intangible being the mere creation of law,\u2019 and of a positive law which has no force ex propria vigore, beyond the State jurisdiction, cannot migrate; they, quoad the business thus transferred, lose their and become to that extent citizens of the State under whose laws they transact their business, and of whose governmental protection they avail themselves.\u201d"], "id": "dd473eb0-624e-4ccc-ba9c-ae1674024abf", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Up to a certain period the human being is immature both mentally, emotionally, socially, and in every other direction. Age is not the factor that is productive of maturity. Chronologically one may be presumed to be old enough to know, to understand, to be mature emotionally, mentally, and socially. However, he may remain emotionally, socially, and mentally immature. Chronological age alone does not determine maturity. Children certainly are immature. We have come to recognize that. And the law now recognizes that children cannot be charged with responsibility for their acts as adults are charged. Children respond to their emotions, and their emotions are influenced by the environment in which they are bred. Infiltrations from without are impacts upon the emotions and the life styles and life patterns of children to a very large degree. They are what it is possible for them to be. Under our law we no longer treat children as criminals. Indeed, the State has an interest in rehabilitating and so, conserving children for future , and hence, contributing to the common good. (See People v. Lewis, 260 N. Y. 171.) I am grateful, as we all should be, for the change in social attitudes toward our child life and the change which has been wrought in the law to meet the needs of our children."], "id": "329b8fa1-e0c2-4919-9a9e-ef4a67ce622c", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["There is ample authority that a railway union\u2019s duty to fairly represent the class of employees for whom it is certified as the bargaining representative derives from the powers and respon*439sibility conferred upon it by the Railway Labor Act (Railroad Trainmen v. Howard, 343 U. S. 768 [1952]; Tunstall v. Brotherhood, 323 U. S. 210 [1944]; Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192 [1944]; Conley v. Gibson, 355 U. S. 41 [1957] and Graham v. Brotherhood of Firemen, 338 U. S. 232 [1949]) but it does not follow that the mere fact of such derivation will bring every action asserting a breach of that duty within the jurisdiction of a Federal District Court where diversity of does not exist. In other words, to say merely that the right asserted is derived in a general way from Federal statutes is not synonymous with the phrase \u201c arises under the Constitution, laws or treaties of the United States \u201d which is used in section 1331 of title 28 of the United States Code, nor with the language used in section 1337 of title 28 of the code referring to \u2018 \u2018 any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraint and monopolies (Strawser v. Reading Co., 80 F. Supp. 455 [U. S. Dist. Ct., E. D. Pa. 1948] ; Bohannon v. Reading Co., 168 F. Supp. 662 [U. S. Dist. Ct., E. D. Pa. 1958].)"], "id": "e149cbd5-a4fa-4cce-bac6-2aaa0d13a334", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Gonzalez ultimately pled guilty to possession of marijuana for sale at a hearing on July 26, 2000 at his arraignment in the high intense drug trafficking area court. At that hearing, two other defendants were present. The court asked the defendants if they could read and understand English. Gonzalez responded in the affirmative. The court then informed the defendants of the potential immigration consequences of a guilty plea: \"Each of you should understand if you're not citizens of the United States, your guilty plea will affect your status in this country. And it will result in the departure, denial of or exclusion.\"2"], "id": "be4ae188-58a8-4479-b207-a817aac39414", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["At common law aliens were incapable of taking by descent. This disability, however, is removed by the act of 1845. That act (Laws 1845, ch. 115, sec. 4, as amended by Laws 1874, ch. 261, Laws 1875, ch. 38), recognizes the right of alien kin of a person deceased who was at the time of his death a resident alien or a citizen of the United States, to take as his heirs, the lands which would have descended to them in that capacity had they been citizens of the United States. The title of an alien male of full age is, however, made defeasible by the state upon his failure to file an affirmation or deposition respecting his intended in the manner provided by sec. 1 of the act. Kilfoy v. Powers, 3 Dem. 198, and cases cited."], "id": "9e5edbbf-f3a8-4f3a-a222-05b883251376", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*524Grand jurors are selected by the court with the assistance of the jury commissioner. (\u00a7\u00a7 896, 903.1-903.4.) Persons are competent to act as grand jurors if they meet certain minimum qualifications. (\u00a7 893.) \"The qualifications for service as a grand juror in California are prescribed by statute and relate to matters such as , age, mental competency, intelligence, and character. (\u00a7 893, subd. (a).) The trial court determines these qualifications by personal interview and examination. (\u00a7\u00a7 896, subd. (a), 904.6, subd. (b).) An individual who is otherwise qualified is nevertheless deemed incompetent to serve only if he or she (1) is currently serving as a trial juror in another case; (2) has been discharged as a grand juror within the preceding year; (3) has been convicted of either malfeasance in office or any felony; or (4) is an elected public officer. (\u00a7 893, subd. (b); Code Civ. Proc., \u00a7 203, subd. (a).)\" ( Packer v. Superior Court (2011) 201 Cal.App.4th 152, 163, 133 Cal.Rptr.3d 649, fn. omitted ( Packer ).)"], "id": "b5656061-1d8f-4790-905e-f50065274c88", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The substance of the tax is to be found in the operation and effect of the statute as applied to the relationship here. Thus plaintiff argues that Local Law No. 47 in imposing a tax of 10 cents payable by the hirer of a taxicab to the driver thereof for each trip or each use of a taxicab cannot dissociate the hiring from the person owning the contract and thus the tax is imposed upon the hirer and his ownership, ad valorem, at the maximum rate permitted by the statute. It is contended further that the tax invades the privilege and immunity of a citizen in relation to his freedom to travel within and without the city and State, and is in violation of the 14th Amendment to the United States Constitution. The use of the streets is not a privilege granted by the city but rather derives from and the public benefit for which the fee of the streets is held by municipal corporations. Thus, in this context it is argued the tax is personal upon the hirer and not a charge for the use of the highways or of the vehicle as a regulatory measure or upon the use of the vehicle, for the hirer does not own the vehicle. Bather, the tax is upon the enjoyment of (the contract of hire, which the passenger alone owns. All of which is, indeed, an imposing array of arguments in \u2019alleged support of claimed unconstitutionality."], "id": "3ecf1ccb-d28a-442e-8ca0-b3818480e157", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Thereafter, the' petitioner\u2019s attorneys were advised by an employee of the respondent that Anastasios Bakas, because of his Canadian , would have to divest himself of his \u25a0stock interest bef ore the application would be approved. Accordingly, the two stockholders of petitioner corporation entered into an agreement whereby Pericles Bakas became the sole stock*593holder and agreed to pay Anastasios Bakas for his interest by a series of promissory notes. This agreement was filed with the restaurant liquor license application which was before the respondent board."], "id": "667e89cd-45ea-4a0e-8f8d-991d15c3d1da", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In Walker v Kruse (484d 802), a prisoner brought a malpractice action against the attorney who had represented him in a criminal matter. The United States Court of Appeals for the Seventh Circuit noted that since jurisdiction had been founded on diversity of , it had a duty to decide the case as an Illinois State court would have. The court unanimously believed that a State court might have dismissed the complaint because Walker failed to plead his innocence. \u201cIn these circumstances, it is questionable whether the Illinois courts would conclude that the defendant\u2019s alleged professional shortcomings proximately caused an injury to the plaintiff which entitles him to damages.\u201d (Walker v Kruse, supra, p 804.)"], "id": "29182a02-84cf-4446-a874-c50203b2227e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["and country of . If the applicant is not a United States citizen, the application shall include the applicant\u2019s place of birth and his or her alien or admission number. If the application is made in person, the applicant shall also present a current Nebraska motor vehicle operator\u2019s license, state identification card, or military identification card, or if the application is made by mail, the application form shall describe the license or card used for identifica- tion and be notarized by a notary public who has verified the identification of the applicant through such a license or card. An applicant shall receive a certificate if he or she is twenty-one years of age or older and is not pro- hibited from purchasing or possessing a handgun by 18 U.S.C. 922. A fee of five dollars shall be charged for each application for a certificate to cover the cost of a criminal history record check. Section 69-2405 states that the chief of police or sheriff shall deny the certificate if it is determined that the purchase or possession of a handgun by the applicant would be in viola- tion of applicable federal, state, or local law. Further, the chief of police or sheriff has 3 days to conduct an investigation to determine whether the applicant is prohibited by law from purchasing or possessing a handgun, after which time the cer- tificate shall be either issued or denied with specific reasons, in writing, for the denial. Section 69-2408 describes the felony of providing false information on an application for a certificate authorizing the holder to acquire handguns: Any person who willfully provides false information on an application form for a certificate under section 69-2404 shall, upon conviction, be guilty of a Class IV felony, and any person who intentionally violates any other provision of sections 69-2401, 69-2403 to 69-2407, and 69-2409.01 shall, upon conviction, be guilty of a Class I misde- meanor. As a part of the judgment of conviction, the court may order the confiscation of the handgun. - 617 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. HOFMANN Cite as 310 Neb. 609"], "id": "694bc9ba-35df-4230-ba97-0fe1ccfcde61", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["country_FY09_19.pdf (showing that between 2,901 and 8,508 extraordinary ability visas were granted annually from 2009\u20132019). Several advantages flow from obtaining an extraordinary ability visa. Applicants for most forms of employment-based immigration must prove that they have a job waiting for them in the United States, and the Department of Labor must certify that their employment will not disadvantage similarly employed Americans. See 8 U.S.C. \u00a7 1182(a)(5). Extraordinary ability applicants do not need to meet those requirements. 8 C.F.R. \u00a7 204.5(h)(5). Also, the priority date of extraordinary ability visas is always current, meaning visa holders avoid the years-long waiting periods that apply to most other employment-based immigration categories. Josh Effron, Permanent Residency for Immigrants of Extraordinary Ability, 32 L.A. Law. 12, 13 (2009). For those seeking the coveted visas, the statute is only the beginning of the framework. and Immigration Services (USCIS) further explained the extraordinary ability standard in a notice-and-comment rule. 8 C.F.R. \u00a7 204.5(h). The rule defines \u201cextraordinary ability\u201d as \u201ca level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.\u201d Id. \u00a7 204.5(h)(2). This narrow definition reflects the stringency of the \u201cextraordinary ability\u201d standard. After all, a different visa is available to those whose ability is merely \u201cexceptional.\u201d 8 U.S.C. \u00a7 1153(b)(2). The regulation also lists the \u201c[i]nitial evidence\u201d applicants must include in their extraordinary ability application. Id. \u00a7 204.5(h)(3). An applicant can submit proof of a one-time achievement\u2014\u201ca major, international[ly] recognized award\u201d like an Olympic gold medal or Nobel Prize. Id. Or an applicant may show that they meet \u201cat least three\u201d of ten listed criteria:"], "id": "8c8ffa10-7ad0-4dd8-93e8-7bb2cdf8d56d", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["In September 2012, Rigoberto S. paid defendant $4,480 to obtain a work permit and some kind of visa. He had seen an ad saying that she provided *1099immigration services. He met with her in her office. However, he never received any documentation from the United States and Immigration Services (USCIS) or from defendant. He contacted defendant, but she had no explanation, so he sued her in small claims court."], "id": "eed1171a-ad9d-4742-9874-8abf4508ba37", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["It is the duty of the court to give these laws a fair and reasonable construction and to secure harmony in their operation whenever the same can be done without disregarding any positive provision or necessary intendment of the statute, and to reject any construction which would make one section inconsistent with the other relating-to the same subject. It is the of the parents which operates to confer citizenship on their children. In the original act of 1802, now brought forward and incorporated in title 30 of the Revised Statutes, the word \u201c naturalized,\u201d as it occurs in the section now number 2172, is used as indicating that the parents have become citizens, and is not limited to cases where such parents have become citizens by a compliance with the provisions of the-act of 1802, but is susceptible of a construction which embraces all cases where the parents of the child became citizens by' operation of any existing law. The law of 1855, now section 1991, has not placed any limitations or qualifications on the effect of the intermarriage by the mother with a citizen, and declares in the most general terms, that any woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized shall be deemed a citizen. The words \u201c duly natural*81ized,\u201d as used in section 2172, sbonld be construed as having the same meaning as if tbe words used were \u201c have duly become citizens \u201d and should be construed accordingly. The primary meaning of the word \u201c naturalization \u201d \u201c is the act of investing an alien with the rights or privileges of a native subject or citizen.\u201d (Webster.)"], "id": "12dc42f3-bb60-4ab5-b7b7-6f1fa35dbe1e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Because civil death revoked the full spectrum of rights of people convicted of certain offenses, it was historically \"limited to very serious crimes\" and imposed \"only upon judicial pronouncement in individual cases.\" (Ewald, Civil Death , supra , 2002 Wis. L.Rev. at p. 1061 ; see 4 Blackstone, Commentaries 373 [civil death applies only \"when it is ... clear beyond all dispute that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society.\"].) In the United States, however, this distinction eroded in the years following the Civil War as federal constitutional rights began to constrain the activities of individual states. (Grady, Civil Death is Different (2013) 102 J. Crim. L. & Criminology 441, 447 ; see U.S. Const., 14th Amend. [equal rights regardless of race]; U.S. Const., 15th Amend. [universal male suffrage]; compare Barron v. The Mayor and City Council of Baltimore (1833) 32 U.S. 243, 247, 7 Pet. 243, 8 L.Ed. 672 [5th Amend. takings clause limited only federal power and did not apply to the states] with Chicago, Burlington & R'D v. Chicago (1897) 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 [takings clause applied to states via 14th Amend.].) Many states, including California, began to impose forms of civil death broadly and automatically."], "id": "16134db2-4457-4e58-bd9a-3b35b8e8cab8", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The question of whether defendant\u2019s limited activities constitute the practice of a profession restricted to natural persons has not been directly passed upon by our appellate courts. Foreign decisions, moreover, are in conflict. The right to engage in a lawful occupation is a fundamental, natural, essential, and inalienable right, one of the privileges of . Like other *417rights equally fundamental, however, the right to engage in any legitimate trade, occupation, business, or profession, is not absolute, but is subject to a reasonable and necessary exercise of the regulatory powers of government in the public interest or welfare. The inalienable right of every citizen to follow the common industrial occupations of life does not extend to the pursuit of those professions which are subjected to supervision in the interest of the public welfare. As to what is a profession, the term connotes something more than mere proficiency in the performance of a task; it implies intellectual skill as contrasted with that used in an occupation for the production or sale of commodities. Originally, and historically, the word \u201c profession \u201d was applied only to law, medicine, and theology or divinity. From early times, moreover, the \u201clearned professions \u201d were given \u201c exclusive rights and subjected to peculiar responsibilities.\u201d The practice of law or of medicine was not a business open to all, but a privilege conferred upon the individual engaged therein. A corporation, it was held some 50 years ago, could not practice law or medicine, nor might it hire lawyers or doctors to act for it (Matter of Co-operative Law Co., 198 N. Y. 479, 484). As the applications of science and learning were extended to other fields, other vocations became known as \u201c professions \u201d. The liberalization of the term, however, to embrace chemists, editors, electricians, landscape architects, teachers, and shorthand reporters, among others, did not give to such \u201c professions \u201d exclusive rights nor subject them to peculiar responsibilities. If wrongs were practiced by individuals engaged in these callings, a State might not seek to remedy such evils by imposing unreasonable and unnecessary restraints upon them. If it was felt that only natural persons should be authorized to carry on one of these vocations, such a statute would have to bear \u201c a real and substantial relation to the public health, safety, morals, or some other phase of general welfare. * * * A state cannot, \u2018 under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.\u2019\u201d (Liggett Co. v. Baldridge, 278 U. S. 105, 112-113.)"], "id": "af30f10f-b053-430e-b1f2-856f7c6477ac", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["As a practical matter, however, our courts, as well as immigrant children seeking our assistance, should bear in mind the factors considered by *422the USCIS when it reviews a petition for SIJ status. In 1998, Congress modified the SIJ statute to require the Attorney General's express consent to the dependency order serving as the basis of the SIJ petition. (H.R.Rep. No. 105-405, 1st Sess., pp. 22-23 (Nov. 13, 1997).) According to the legislative history, Congress modified the SIJ statute \"in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children, by requiring the Attorney General to determine that neither the dependency order nor the administrative or judicial determination of the alien's best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect.\" (H.R.Rep. No. 105-405, 1st Sess., p. 130 (Nov. 13, 1997).) Although Congress has since modified the SIJ statute to require the consent of the Secretary of Homeland Security (rather than the Attorney General) to the grant of SIJ status (rather than the underlying dependency order), see 8 U.S.C. \u00a7 1101(a)(27)(J)(iii), the agency's concern remains the same: \"The consent determination by the Secretary, through the USCIS District Director, is an acknowledgment that the request for SIJ classification is bona fide. This means that the SIJ benefit was not 'sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment.' (See H.R.Rep. No. 105-405, at p. 130 (1997).) An approval of an SIJ petition itself shall be evidence of the Secretary's consent.\" (U.S. and Immigration Services, Memorandum (Mar. 24, 2009) Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions, by Donald Neufeld & Pearl Chang, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf.) The proposed federal rule designed to implement the 2008 amendments to the SIJ statute, if adopted, will authorize the USCIS to \"consider, among other permissible discretionary factors, whether the alien has established, based on the evidence of record, that the State court order was sought primarily to obtain relief from abuse, neglect, abandonment, or a similar basis under State law and not primarily for the purpose of obtaining lawful immigration status; and that the evidence otherwise demonstrates that there is a bona fide *860basis for granting special immigrant juvenile status.\" (76 Fed.Reg. 54985 (Sept. 6, 2011) [proposed 8 C.F.R. \u00a7 204.11(c)(i) ].)"], "id": "585a34d8-1df1-42c9-a2aa-a174bfdca6b8", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["\u201c[i]t shall be an unlawful discriminatory practice: \u201c(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or alienage or status of any person . . . \u201c(2) To refuse to hire or employ or to bar or to discharge from employment such person; or \u201c(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment\u201d (Administrative Code of City of NY \u00a7 8-107 [1] [emphasis added]). The New York Court of Appeals has held that marital status is"], "id": "a5694ab0-0d6f-497b-b891-01b3db20d169", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Pierce v. Society of Sisters (268 U. S. 510) held unconstitutional a statute that sought to prohibit the operation of parochial or private schools. The Pierce case did not hold that the State could not compel children to receive secular education. Bather did it hold that the State could not prescribe the place where, or the auspices under which, secular education was to be obtained. The court expressly stated: \u201cNo question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good must be taught, and that nothing be taught which is manifestly inimical to the public welfare.\u201d (P. 534.)"], "id": "904349ce-634d-4680-9d67-afb63b95e212", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Under Section 1605(a)(2), a foreign state\u2019s sovereign immunity is subject to abrogation based on the state\u2019s commercial activities. This statutory exception codifies the \u201crestrictive theory\u201d of sovereign immunity that the United States Department of State first endorsed in 1952, Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992), pursuant to which foreign states were not afforded immunity in cases \u201carising out of purely commercial transactions[,]\u201d id. at 613 (quoting Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 703 (1976)). The Supreme Court had long held that when \u201ca foreign government acts, not as regulator of a market, but in the manner of a private player within it,\u201d id. at 614, its private acts might be sufficient to justify the invocation of the jurisdiction of American courts, see id. (distinguishing acts of the state as a market participant from undertakings aimed at \u201cfulfilling its uniquely sovereign objectives\u201d); see also Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 199 (2007). Thus, the FSIA\u2019s commercial activities exception carves out, and exempts from sovereign immunity, a sphere of private commercial action that foreign states sometimes undertake. Notably, as Congress has worded it, the commercial activities exception is also designed to ensure that there is a sufficient connection between the foreign state\u2019s commercial activity and the United States to warrant the exercise of jurisdiction. See Jam v. Int\u2019l Fin. Corp., 139 S. Ct. 759, 766 (2019). Thus, the first clause of section 1605(a)(2) requires a plaintiff\u2019s claim to be \u201cbased upon\u201d an aspect of the foreign state\u2019s commercial activity that has a \u201csubstantial contact with the United States.\u201d Odhiambo, 764 F.3d at 36; see also Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511, 1513 (D.C. Cir. 1988) (clarifying that the degree of contact required must be more than isolated or transitory, and a plaintiff\u2019s mere status or place of residence will not suffice). The second clause of the commercial activities exception permits a suit against a foreign state when the plaintiff\u2019s claim is based \u201cupon an act performed in the United States[,]\u201d and that act is taken \u201cin connection with a commercial activity of the foreign state elsewhere.\u201d 28 U.S.C. \u00a7 1605(a)(2). And the third clause of the exception permits a suit against a foreign state if the claim is based upon an act outside the United States that is related to the foreign state\u2019s commercial activity if that act \u201ccauses a direct effect in the United States.\u201d Id."], "id": "b8c7baec-cd05-4e8b-befe-c8598517328d", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Following the service of a copy of the summons and complaint upon Ernest Boehm, the superintendent or managing agent of the premises, the action was removed on the ground of diversity of to the United States District Court for the Eastern District of New York. The petition of \u201c B eland Realty Corporation \u201d was verified on January 3, 1955, by Joseph W. Levin, who stated he was its assistant secretary. In his affidavit sworn to the same date, he stated that this corporation was in existence pursuant to the laws of the State of New Jersey. The answer thereafter served by said defendant denied the material allegations of the complaint, including paragraph \u201c 2 \u201d thereof, wherein, as already noted, its corporate existence under the New *643Jersey law was alleged as well as its ownership of the premises at the time of the occurrence underlying the action."], "id": "d8e7a180-0dba-4812-b312-f613fbae092e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["I repeat, therefore, that there is nothing in the general policy of the naturalization laws which requires such a construction of the act of 1855 as will exclude the wife of a citizen from , either, because at the time of the marriage she was an alien, or because her husband was an alien, if he subsequently became a citizen, or because she had not resided five years within the United States, or was under twenty-one years of age."], "id": "665d518e-47b3-4fec-bb0e-97a0476978cc", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In Quinby v. Duncan (4 Harr. [Del.] 383) it was said, \u201c a man *733is to be regarded as a citizen of his native state until it-can be shown that he has changed this relation by leaving animo manendi, or by acquiring a elsewhere. * * * And -this is to be not merely by a change of habitancy or residence, but by a change of citizenship.\u201d"], "id": "4642b4ca-66ee-4562-bc26-e11cf7f7b8e7", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Section 434a-8.0 of the Administrative Code of the City of New York provides that only United States citizens may be appointed to the police force. Subsequent to the Sugarman v Dougall decision, a three-Judge court of the United States District Court for the Southern District of New York held that subdivision 3 of section 215 of the Executive Law of the State of New York, which requires United States as a prerequisite to appointment to the State Police, was not in violation of the Constitution. Foley v Connelie (419 F Supp 889.) That case involved a class action by a citizen of Ireland who was refused permission to take the competitive examination for appointment to the State Police on the ground that he was not a citizen of the United States. In dismissing plaintiff\u2019s complaint, the court, referring to the portion of the Supreme Court\u2019s opinion quoted above, concluded that Sugarman v Dougall did not prohibit a State from barring aliens from specific positions in the civil service if the nature of the position warranted such restriction. The court held that upon a proper showing of a compelling interest, the State could exclude all aliens from certain employment. One such area of employment was the police force. The court stated that (p 895), \"We believe that the state has a special interest in the composition of its police force which justifies exempting it from the class of ordinary occupations from which aliens cannot be excluded.\u201d The court further noted (p 896): \"This court believes there is a strong similarity between the role played by the juror and the policeman in our society, and it has been often recognized that states and the federal government have a compelling interest which justifies excluding aliens from jury service.\u201d"], "id": "c14769b3-d48d-418a-ad5e-b31e7f56fdfe", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The \"right to hold public office, either by election or appointment, is one of the valuable rights of . ... The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office.\" ( Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 182, 93 P.2d 140.)"], "id": "abd5f858-7dc9-4e5d-a008-c1c22ec5d0d1", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["The Act provides: \"It is unlawful for any person, for compensation, other than persons authorized to practice law or authorized by federal law to represent persons before the Board of Immigration Appeals or the United States and Immigration Services, to engage in the business or act in the capacity of an immigration consultant within this state except as provided by this chapter .\" ( Bus. & Prof. Code, \u00a7 22440, italics added.)"], "id": "b5ccd383-8321-47f6-9a2a-0d88b8ca3981", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["The Act of 1924, and the Nationality Act of 1940, conferring citizenship on Indians, have been held not unconstitutional as to the Six Nations, notwithstanding that the relation of these tribes to the United States may have been that of an independent nation by virtue of treaties between the signatories and that the above acts may have been' at variance with the treaty status of the Six Nations. (Ex parte Green, 123 F. 2d 862, certiorari denied, Green v. McLaren, 316 U. S. 668.) In the above case the court followed the general proposition that a, domestic law conflicting with an earlier treaty must be honored by domestic courts."], "id": "aa5d7b2c-3bb8-413d-9308-cd3e540bb033", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["On June 28, 2016, the federal court summarily remanded the case to the superior court. Although defendant's notice of removal filed in the superior court included only the face page with the above quoted language, the order of remand disclosed the additional allegations defendant made in support of his notice of removal. Specifically, the remand order stated, inter alia, \"Plaintiff could not have brought this action in federal court in the first place, and so removal is improper. Notably, even if complete diversity of exists, Defendant cannot properly remove the action because Defendant resides in the forum state [citations]. [\u00b6] Nor does Plaintiff's business tort action raise any federal legal question. [Citation.] Pursuant to the 'well-pleaded complaint rule,' federal-question jurisdiction exists 'only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.' [Citation.] Although Defendant claims that he 'filed suit in [ ] federal court claiming matters which involve federal questions,' he fails to allege that any federal law appears on the face of Plaintiff's well-pleaded complaint. [Citations.] Thus, there is no basis *37for federal-question jurisdiction or for removal under 28 U.S.C. \u00a7 1441(a). [Citations.] [\u00b6] Finally Defendant contends that removal is proper under 28 U.S.C. \u00a7 1443(1). [Citation.] As a rule, a successful petition for removal under 28 U.S.C. \u00a7 1443(1) must satisfy the two-part test articulated by the Supreme Court in Georgia v. Rachel , 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and City of Greenwood, Miss. v. Peacock , 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). 'First the petitioners must assert, as a defense to the prosecution, rights that are given to them by explicit statutory enactment protecting equal racial civil rights.' [Citation.] 'Second, petitioners must assert that the state courts will not enforce that right, and that allegation must be supported by reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal rights.' [Citaiton.] [\u00b6] Assuming, without deciding, that Defendant satisfies the first prong of this test, he fails to satisfy the second. That is, Defendant fails to identify Any 'state statute or ... constitutional provision that purports to command the state courts to ignore [Defendant's] federal rights.' [Citation.] Defendant's vague assurance that he 'will[,] at trial[,] [ ]show that there is [such] a state law' is insufficient [Citation.] Thus, there is no basis for removal under 28 U.S.C. \u00a7 1443(1).\""], "id": "b192a4bc-db3c-43a3-9729-7106baa3dccc", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Suppose the executor whose letters have been revoked had been the only one named in the will, and an administrator with the will annexed had been duly *83appointed, and afterwards the ground of revocation had ceased to exist, could the court displace the administrator and replace the executor ? . So, if an executor, after entering upon his duties, should remove from the State, and, on being required, should fail to give a bbnd, in consequence of which his letters should be revoked, would he, afterwards, on removing into the State again, be entitled to be restored to the office he had vacated ? And again, suppose he were, while executor, convicted of an infamous crime and imprisoned in a State prison, in consequence of which his letters were revoked; and suppose that, pending his term of imprisonment, he should be pardoned and restored to , could the court again create him executor ? These questions require an answer in the negative. Where letters have once been revoked, the appointment of the executor has ceased to exist, just as completely as if he had never been named by the testator. He cannot be rehabilitated."], "id": "1f150dbe-4413-4f96-856e-930cf14daf90", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Sections 1 and 2 of the Shipping Act, 1916 (TJ. S. Code, tit. 46, \u00a7\u00a7 801-842) define the terms vessels, persons, , etc., which restrict the transfer of a vessel documented under the laws of the United States. Section 9 of this act (U. S. Code, tit. 46, \u00a7 808) in effect decrees that it shall be unlawful to transfer in any manner a vessel or interest therein documented under the laws of the United States, owned in whole or part by a citizen of the United States to a noncitizen without the approval of the United States Maritime Commission and imposes forfeiture *922and criminal sanctions for its violation. The transfer may not be accomplished by a corporate arrangement whereby the title to the vessel is vested in an American corporation while the control of this corporation passes to citizens of a foreign country. (See United States v. The Meacham) 107 F. Supp. 997, affd. 207 F. 2d 535, app. dsmd. 348 U. S. 801.) The court must as sum\u00e9 from the plaintiff\u2019s failure to submit any proof of approval by the United States Maritime Commission, that the acquisition by Prudential of Champion was in violation of the Shipping Act, 1916."], "id": "adbb95e0-f091-4bdc-8bfa-911362401003", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Even while the issues relating to the desirability of a Civilian Complaint Review Board have forged to the forefront of daily news reports, substantial evidence is exhibited, day after day, that New Yorkers have every reason to be justifiably proud of their police force. Concomitant with every press release calling for a reconstructed board, one finds the minor news item detailing another heroic act of a police officer. By virtue of its dedication, efficiency and discipline, the Police Department of this city has earned the respect of our citizenry and the reputation of being \u201cNew York\u2019s Finest\u201d. One can only hope that the review board will not detract from the present high standard maintained by the force. Too often, it is insisted that there be legal limitations upon police powers. Perhaps not enough has been said about the converse, to wit, the public\u2019s duties to the police. The rallying call that the \u201c police are the servants of the people \u201d should never be construed to mean that the \u201c police are subservient to the people \u201d. The concept of equality together Avith a recognition of the duties and rights of , and the proper place of authority under law, must be common objectives."], "id": "fd018d55-023c-4e08-a02e-be5a0b387476", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["*340In Graham v Richardson (403 US 365 [1971]), the Supreme Court held that State welfare laws which conditioned benefits on and duration of residency violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Court noted that it has long been settled that the Equal Protection Clause entitles both citizens and aliens to the equal protection of the laws of the State in which they reside, and that \u201cthe Court\u2019s decisions have established that classifications.based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny\u201d (403 US 365, 371-372). Thus, wrote Justice Blackmun, \u201c[a]liens as a class are a prime example of a \u2018discrete and insular\u2019 minority (see United States v. Carotene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate.\u201d (403 US 365, 372.)"], "id": "757bc3bc-b465-44ce-a36c-bd4b0f713e07", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The duties of the board of election inspectors are not of an inquisitorial nature; their duties are of a purely ministerial nature, and are fully defined by the Election Law. Their duty in attending the business of the registration of voters is to ascertain the electors *263who are qualified to cast votes, and the questions they are permitted to ask are asked for the purpose of testing the intending voter\u2019s qualifications. The petitioner herein had his papers with him which he exhibited, and answered all questions in an orderly and sufficient way and, in my judgment, was duly qualified to register."], "id": "7efe5f78-5070-420c-8925-dd7e9e009504", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["We conclude that the information provided by the bus driver to Tanaka was *296sufficient to reasonably justify a brief stop of defendant to determine if he was actually the suspect sought in the \"288 case.\" Tanaka knew that pictures of the suspect in the \"288 case\" had been widely disseminated. The bus driver told Tanaka that he had seen a picture of the suspect on a \"Be on the Lookout\" flier and that the picture on the flier \"matched\" a passenger on his bus. That flier had just been issued on the very day that the bus driver saw the passenger, so the picture must have been fresh in the bus driver's mind. Although Tanaka had only a vague recollection of the video he had seen, it was not inconsistent with the man identified by the bus driver as the suspect in the \"288 case.\" And Tanaka had no reason to suspect that the bus driver had any motivation other than good . Just because Tanaka lacked \"the precise level of information necessary for probable cause to arrest,\" he was not required \"to simply shrug his shoulders and allow a crime to occur or a criminal to escape.\" ( Adams , supra , 407 U.S. at p. 145, 92 S.Ct. 1921.) The information that Tanaka possessed was sufficient to support a brief detention. \"[T]he grave risks posed by\" a person who appeared to be the man sought for sexually assaulting a child justified \"the minimal intrusion of a brief investigatory\" detention to determine if he in fact was the person sought. ( Wells , supra , 38 Cal.4th at p. 1082, 45 Cal.Rptr.3d 8, 136 P.3d 810.) *406IV. Disposition"], "id": "eafe416d-526c-45ba-97b0-d70a48fb0e88", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["(In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)\u201d (In re A.M. (2020) 47 Cal.App.5th 303, 314.) B. Applicable Law 1. Indian Child \u201cThe juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child.\u201d (In re K.M. (2009) 172 Cal.App.4th 115, 118-119; see \u00a7 224.2, subd. (a).) An \u201c \u2018Indian child\u2019 \u201d for purposes of the ICWA is defined in the same manner as under federal law as, \u201cany unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.\u201d (25 U.S.C. \u00a7 1903(4); \u00a7 224.1, subd. (a); In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) 2. Reason to Know Section 224.2, subdivision (d) provides a juvenile court has reason to know a child involved in a proceeding is an Indian child under any of the following circumstances: \u201c(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child\u2019s extended family informs the court that the child is an Indian child[;] [\u00b6] (2) The residence or domicile of the child, the child\u2019s parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [\u00b6] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [\u00b6] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child[;] [\u00b6] (5) The court is informed that the child is or has been a ward of a tribal court[;] [\u00b6] (6) The court is informed that either parent or the child possess an identification card indicating membership or in an Indian tribe.\u201d (\u00a7 224.2, subd. (d)(1)-(6).)"], "id": "028c97f0-3d9e-4b52-ab14-cfca11ed08fd", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Based on the text of section 922(b)(3) and the overall statutory context, we conclude that the phrase \u201creside in . . . the State\u201d in section 922(b)(3) cannot be interpreted differently for citizens and aliens and therefore may not be construed to impose different substantive requirements when aliens and citizens seek to obtain a firearm from an FFL. The residency requirement in the text of section 922(b)(3) is estab- lished with a single phrase, \u201creside in . . . the State,\u201d that applies to all \u201cperson[s].\u201d More specifically, section 922(b)(3) provides that a covered firearms transaction may not take place when \u201cthe [FFL] knows or has reasonable cause to believe\u201d that the \u201cperson\u201d who would receive the firearm \u201cdoes not reside in . . . the State\u201d where the FFL does business. 18 U.S.C. \u00a7 922(b)(3). The plain text of the statute thus appears to require ATF to apply the same standard to determine whether \u201cany person . . . reside[s] in . . . the State,\u201d regardless of the status of the pro- spective buyer. See id. The proposed final rule, however, would effectively adopt two different definitions of \u201creside in . . . the State.\u201d Citizens would be required to show only an intent to make a home in the state in which they were pre- sent, whereas aliens would be required to show that same intent and also prove that they had been present in the state for 90 days. We recognize that what it means to \u201creside\u201d in a state may itself be susceptible to nu- merous interpretations. See, e.g., Downs v. Comm\u2019r, 166 F.2d 504, 508 (9th Cir. 1948); Assistant U.S. Attorneys\u2014Residency Requirement, 3 Op. O.L.C. 360, 361 (1979). But regardless of how that term is defined, the plain text of section 922(b)(3) contemplates that the same definition will apply to \u201cany person,\u201d citizen or alien, to whom an FFL seeks to sell or deliver a firearm (with the exception of members of the Armed Forces on active duty, to whom the Act expressly applies a different definition of state residency, see supra p. 51). Nothing in the concept of state residence, moreover, suggests that it is appropriate to read a distinction between aliens and citizens into the statute where no such distinction exists in the text. We are aware of no background common-law definition of state residency, for example, that would suggest that state residency should be defined differently for aliens and citizens. Cf. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S."], "id": "e58abb61-b7be-4a6c-b1f9-8128de435782", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["There is complete diversity because SDM and Drexel are not citizens of the same state. As a limited liability corporation, SDM takes on the of its members and submembers. See Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) (explaining that determining an LLC\u2019s citizenship requires drilling down \u201cthrough however many layers of partners or members there may be\u201d to evaluate the citizenship of each (internal quotation marks omitted)); cf. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 111 (Ambro, J., concurring) (\u201cThere is no good reason to treat LLCs differently from corporations for diversity-of-citizenship purposes.\u201d). Accounting for those members and submembers, SDM is a citizen of Delaware, Maryland, and California for purposes of the diversity statute.1 As a non-profit corporation, Drexel has citizenship for purposes of the diversity statute in the state of its incorporation and in the state of its principal place of business \u2013 Pennsylvania in both instances. See 28 U.S.C. \u00a7 1332(c)(1); see also Zambelli, 592 F.3d at 419. Without any overlap in the citizenship of SDM and Drexel, the complete diversity requirement is satisfied."], "id": "0a1deb74-a79b-42af-a7f8-d6e11e156baf", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The petitioner Robert Wechsler is a native born United States citizen, a college graduate and apparently a man of some wealth. His former wife, Rozi Marash, was born in Romania, became a naturalized citizen of Israel, then came to the United States and was naturalized here. She now claims dual . Her mother, who had lived in this country, has gone to Israel *613and she has other relatives living there. Her present husband Joshua Marash has worked for El A1 Israel Airlines, a government-owned company for 16 years. He has been assigned to the Hew York branch of the company for six years and just recently has been reassigned to Israel. He has in the past spent about four years in England and about 18 months in Italy. If he refuses to return to Israel, he will lose his position and all the rights and privileges acquired during his 16 years of service."], "id": "0b78945d-ac2f-4fd1-a2b3-fc7b3a141907", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["\u201c Many things that a legislature may do if it does them with no ulterior purpose, it cannot do as a means to reach what is beyond its constitutional power. * * * New Jersey cannot tax the property of Hill or McDonald outside the State and cannot use her power over property within it to accomplish by indirection what she cannot do directly. It seems to me that that is what she is trying to do and therefore that the judgments of the Court of Errors and Appeals should be reversed. \u201c It seems to me that when property outside the State is taken into account for the purpose of increasing the tax upon property within it, the property outside is taxed in effect, no matter what form of words may be used. It appears to me that this cannot be done, even if it should be done in such a way as to secure equality between residents in New Jersey and those in other States.\u201d Maxwell v. Bugbee seems to have relied very substantially upon Blackstone v. Miller (188 U. S. 189). Blackstone v. Miller has been expressly overruled (Farmers Loan & Trust Co. v. Minnesota, supra, p. 209; First National Bank v. Maine, supra, p. 324). There is suggestion in the opinion in Maxwell v. Bugbee that the result there might be justified by the decision in LaTourette v. McMaster (248 U. S. 465). The case last cited held valid a statute of South Carolina which discriminated between residents and non-residents of that State with relation to the license of insurance agents therein. The statute was held to limit citizens of other States lawfully, since it operated to limit likewise citizens of South Carolina resident elsewhere. Thus the court found no discrimination against citizens of other States. While there is a difference between of the United States and citizenship of a State (United States v. Cruikshank, 92 U. S. 542), and while the Fourteenth Amendment forbids abridgement by a State of the privileges and immunities of citizens of the United States only (Slaughter House Cases, 83 U. S. [16 Wall.] 36, 74), there is no support for the idea of difference between residence and citizenship in respect of tax matters because the term \u201c residence \u201d when used in the Tax Law is synonymous with \u201c domicil \u201d and hence with \u201c citizenship.\u201d As is said in the Restatement by the American Law Institute of the Law of Conflict *684of Laws (Chap. 2, \u00a7 9, p. 20): \u201c In statutes relating to taxation and voting, residence means domicil unless the contrary is indicated in the statute.\u201d Of course a citizen of the United States domiciled in a State thereof has State citizenship in the State of domicil as well. He may temporarily reside in another State, retaining \u25a0 his citizenship of the State of domicil. The discrimination between \u201c citizenship \u201d (i. e., \u201c domicil \u201d) and \u201c residence \u201d made in LaTourette v. McMaster (supra) is not applicable to a tax question because the term \u201c resident \u201d in the Tax Law means a domiciled person and hence a citizen. In other words, the provisions in the Tax Law could be revised to refer to taxation on citizens of New York State and on non-citizens thereof without changing their meaning. So, LaTourette v. McMaster (supra) has no pertinence."], "id": "06674c9d-6d71-4360-8eb7-35e50b261e9b", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Upon the trial of the issue petitioner\u2019s sister was called as a witness and testified, in substance, that the petitioner was born in this State, that both parents always were citizens of this country, and so far as she knew never renounced that . From this the petitioner argues \u201c once a citizen always a citizen \u201d unless the contrary affirmatively appears."], "id": "67c3ffda-4e46-48da-a9a8-5588f7c68636", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["A roving patrol stop must be reasonably related in scope to the justification for its initiation under Terry v Ohio (392 US 1 [1968] at 29). A roving patrol detention is permitted on less than probable cause because of the legitimate enforcement interests, but the trade-off is that the scope of the detention must be carefully tailored to its underlying justification. With respect to roving Border Patrols, the Brignoni-Ponce rule is that \u201cthe officer may question the [suspected aliens] about their and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.\u201d (422 US at 881-882; see also Florida v Royer, 460 US 491 [1983].) This rule is followed in both the federal and state courts. (See discussion in United States v Bews, 715 F Supp 1206, 1210 [WD NY 1989], and in People v Carrillo, 257 AD2d 780 [3d Dept 1999].) In short, the Border Patrol agent must have a particularized and objective basis for suspecting legal wrongdoing \u2014 something more than a \u201cmere \u2018hunch.\u2019 \u201d (United States v Arvizu, 534 US 266, 274 [2002]; Almeida-Sanchez v United States, 413 US 266 [1973]; United States v Sharpe, 470 US 675 [1985]; United States v Cormier, 77 Fed Appx 65 [2d Cir 2003].)"], "id": "042b9c75-b5d3-4b27-9bbf-b49ff64c162c", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Necessity for legislation on that subject undoubtedly provoked it. A very able review by Mr. Horace Binney of the acts of congress in force on that subject and of the various attempts to remedy the existing legal defects will be found in the second volume of the American Law Register (Phil.) p. 193, and I entertain the belief that the review mentioned contributed much to the enactment of the law. It will not be necessary for the determination of the question involved in this case, however, to consider in detail the whole scope of legislation up\u00f3n the subject of of children born abroad whose parents were or whose father was a citizen of the United States, but to refer to it as incidental to the question on hand, the two subjects embraced in the act of 1855 being kindred to and growing out of each other. It will be sufficient, therefore, in relation to the subject embraced in the first section of the act of 1855 to say that under the then existing laws the child of a citizen of the United States born abroad was an alien, and that even under the act of congress passed in 1802 (Brightley\u2019s Digest, p. 35) the child of an alien mother born abroad was an alien although the father was in fact a citizen. Some attempts were made in congress to remedy this, and bills were introduced for that purpose. One reported by Mr. Wall in 1841, another introduced by Mr. Webster in 1848, and still another by Mr. Bradbury in 1852."], "id": "085a8500-4d9d-43e4-8bf8-6e48841d2d5e", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["ports of entry. See Homeland Security Act \u00a7\u00a7 403, 442, 451, 471, 116 Stat. at 2178, 2193, 2195, 2205; see also Name Change from the Bureau of and Immigration Services to U.S. Citizenship and Immigra- tion Services, 69 Fed. Reg. 60,938, 60,938 (Oct. 13, 2004); Name Change of Two DHS Components, 75 Fed. Reg. 12,445, 12,445 (Mar. 16, 2010). The Secretary of Homeland Security is thus now \u201ccharged with the ad- ministration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.\u201d 8 U.S.C. \u00a7 1103(a)(1). As a general rule, when Congress vests enforcement authority in an ex- ecutive agency, that agency has the discretion to decide whether a particu- lar violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President\u2019s constitutional duty to \u201ctake Care that the Laws be faithfully executed,\u201d U.S. Const. art. II, \u00a7 3, and it reflects a recognition that the \u201cfaithful[]\u201d execution of the law does not necessarily entail \u201cact[ing] against each technical violation of the statute\u201d that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the decision whether to initiate enforcement proceedings is a complex judg- ment that calls on the agency to \u201cbalanc[e] . . . a number of factors which are peculiarly within its expertise.\u201d Id. These factors include \u201cwhether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency\u2019s overall policies, and . . . whether the agency has enough resources to undertake the action at all.\u201d Id.; cf. United States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that exercises of prosecutorial discretion in criminal cases involve considera- tion of \u201c\u2018[s]uch factors as the strength of the case, the prosecution\u2019s general deterrence value, the Government\u2019s enforcement priorities, and the case\u2019s relationship to the Government\u2019s overall enforcement plan\u2019\u201d (quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney, the Court considered and rejected a challenge to the Food and Drug Ad- ministration\u2019s refusal to initiate enforcement proceedings with respect to alleged violations of the Federal Food, Drug, and Cosmetic Act, conclud- ing that an agency\u2019s decision not to initiate enforcement proceedings is presumptively immune from judicial review. See 470 U.S. at 832. The Court explained that, while Congress may \u201cprovide[] guidelines for the agency to follow in exercising its enforcement powers,\u201d in the absence of such \u201clegislative direction,\u201d an agency\u2019s non-enforcement determination"], "id": "ff49af03-e3d8-4e73-b294-d59ecaae13ae", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["While under Swedish law, the of a testator is determinative of the obligation to pay Swedish inheritance taxes, the citizenship of the donee of an inter vivos trust is determinative of the obligation to pay a Swedish gift tax. Thus if the presumptive remaindermen residing in Sweden survive their mother, a Swedish gift tax will be imposed upon the remainder interest distributed to them. No Swedish inheritance tax would be imposed upon the remainder interest of a testamentary trust received by a Swedish citizen. Pursuant to the provisions of the gift tax laws of Sweden, a Swedish gift tax of approximately 53% of the remainder interest received by the Swedish presumptive remaindermen, will be imposed at the time of the death of decedent\u2019s daughter, Estelle Ekstrand. As the present value of the share of the inter vivos trust held for the benefit of Estelle Ekstrand, is approximately $2,266,000, a Swedish gift tax of approximately $1,200,000 would be imposed."], "id": "b2682739-7242-45c5-849d-5bf2f55a8d1e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": [". Contrary to the People\u2019s position, these deportation consequences are not analogous to those of registration under the Sex Offender Registration Act, which were deemed collateral in People v Gravino (14 NY3d 546 [2010]), or to the consequences of civil forfeiture. Neither are they similar to the consequence of inability to renew lawful permanent resident status or to attain United States , discussed in People v D\u2019Pierre (Sup Ct, NY County, Mar. 13, 2012, indictment No. 1966/92), also cited by the prosecution."], "id": "6fda9e9b-9bcf-4b71-aef9-ec6c3f1ad2f4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Although most of the parties maintain residences in New York, or travel here from Uruguay fairly regularly, all retain Uruguayan, or dual and all, except plaintiff and, perhaps, her two sons maintain residences in Uruguay. Despite the parties\u2019 connections to New York, all of the remaining witnesses of importance, Horacio\u2019s surviving sisters Olimpia and Ifigenia and his mother Manolita, reside only in Uruguay. All of these persons are quite elderly, Manolita being, it is reported, 109 years old, Ifigenia has been declared incompetent, due to Alzheimer\u2019s disease, and has been provided by the courts of Uruguay with a guardian. Although plaintiff annexed purported \"consents\u201d to be made party plaintiffs to this action, written in English and signed by Olimpia, Augusto (since deceased) and Manolita, there is no indication that any of these elderly parties is willing, or able, to come to New York to testify."], "id": "fec881f4-bd10-409c-963a-e3aa3bb851cd", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Operating an automobile on the highway is not a right a person may exercise because of his . (People v. Rosenheimer, 209 N. Y. 115, 121.) Highways, as they were originally developed, were for the convenience and easy passage of persons on foot, on horseback, in vehicles drawn by horses or oxen, and also for the *241transportation of commodities by the same means. They were open to unrestricted use by all persons. No license might be required. Toll roads were open to all upon payment of the same fee for the same or similar vehicles."], "id": "66ff6ea1-51ff-4096-9876-e031d0a939d4", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The Naturalization Service stresses that in the event naturalization is granted and should the petitioner be subsequently convicted of a crime, it would impose a more onerous burden of proof to cancel than is required to deny naturalization. I am not impressed by that argument for if, indeed, the petitioner is ultimately convicted of such grievous crime, it should impose no undue burden upon the Naturalization Service to succeed in a revocation proceeding."], "id": "e670acb0-0419-439f-8445-bfc9e8546204", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["2 Those circumstance are: (i) a person having an interest in the child informs the court that the child is an Indian child; (ii) the residence or domicile of the child, the child\u2019s parents, or Indian custodian is on a reservation or in an Alaska Native village; (iii) the court is informed by any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency that it has discovered information indicating that the child is an Indian child; (iv) the child who is the subject of the proceeding gives the court reason to know that the child is an Indian child; (v) the court is informed that the child is or has been a ward of a tribal court; and, (vi) the court is informed that either parent or the child possess an identification card indicating membership or in an Indian tribe."], "id": "844d04d4-1c5b-466c-9426-b8912ecf2b61", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["DHS\u2019s authority to remove aliens from the United States rests on the Immigration and Nationality Act of 1952 (\u201cINA\u201d), as amended, 8 U.S.C. \u00a7 1101 et seq. In the INA, Congress established a comprehensive scheme governing immigration and naturalization. The INA specifies certain categories of aliens who are inadmissible to the United States. See 8 U.S.C. \u00a7 1182. It also specifies \u201cwhich aliens may be removed from the United States and the procedures for doing so.\u201d Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). \u201cAliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.\u201d Id. (citing 8 U.S.C. \u00a7 1227); see 8 U.S.C. \u00a7 1227(a) (providing that \u201c[a]ny alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be re- moved if the alien\u201d falls within one or more classes of deportable al- iens); see also 8 U.S.C. \u00a7 1182(a) (listing classes of aliens ineligible to receive visas or be admitted to the United States). Removal proceedings ordinarily take place in federal immigration courts administered by the Executive Office for Immigration Review, a component of the Depart- ment of Justice. See id. \u00a7 1229a (governing removal proceedings); see also id. \u00a7\u00a7 1225(b)(1)(A), 1228(b) (setting out expedited removal pro- cedures for certain arriving aliens and certain aliens convicted of aggra- vated felonies). Before 2003, the Department of Justice, through the Immigration and Naturalization Service (\u201cINS\u201d), was also responsible for providing immi- gration-related administrative services and generally enforcing the immi- gration laws. In the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, Congress transferred most of these functions to DHS, giving it primary responsibility both for initiating removal proceedings and for carrying out final orders of removal. See 6 U.S.C. \u00a7 101 et seq.; see also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that the immigration authorities previously exercised by the Attorney General and INS \u201cnow reside\u201d in the Secretary of Homeland Security and DHS). The Act divided INS\u2019s functions among three different agencies within DHS: U.S. and Immigration Services (\u201cUSCIS\u201d), which oversees legal immigration into the United States and provides immigration and naturalization services to aliens; ICE, which enforces federal laws govern- ing customs, trade, and immigration; and U.S. Customs and Border Pro- tection (\u201cCBP\u201d), which monitors and secures the Nation\u2019s borders and"], "id": "cb7e14a4-4802-4603-bfd5-9f1ce26cd72c", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["\u201cAs we construe this act, it confers the privileges of upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous acts of congress provide. The terms \u2018married,\u2019 or \u2018who shall be married,\u2019 do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman who under previous acts might be naturalized, is in' a state of marriage to a citizen,'whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. T-Tis citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, are *239citizens, would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her. citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested. The terms, \u201c who might lawfully under the existing laws,\u201d only limit the application of the law to free white women * * *.\u201d The defendants also contend that the plaintiff does not come within the decision of either of the two foregoing cases, because- on the day of Hafner\u2019s death she was not twenty-one years of age, and for that reason could not, on that day, have been naturalized under the laws existing prior to the act of 1855. This objection has no greater force, if as much, than the objections urged against Mrs. Burton. The plaintiff was no more incapacitated on that account, than Mrs. Burton was by reason of non-residence. Indeed she was not so much, for, if necessary, she. could confessedly have become naturalized under the naturalization acts within a few months after Hafner\u2019s death, while Mrs. Burton could not for five years after her husband\u2019s death. Age of twenty-one years, under the then existing laws, was simply one of the qualifications necessary for an applicant to have, just as it was necessary for him to show a five years\u2019 residence. The plaintiff comes clearly within the reasoning, if not the letter, of the two decisions. The statute says, \u201c any woman,\u201d and not \u201c any woman of twenty-one years of age.\u201d There is no more reason, in considering the general policy of the naturalization laws, why, in case of marriage with a citizen, the requirement of twenty-one years of age should not be dispensed with, than the requirement of a five year\u2019s previous residence. They are both made requirements for the purpose of furnishing evidence of fitness to undertake the duties and responsibilities of citizenship, and one is no more important or necessary than the other. The fact of marriage furnishes evidence of such fitness, and the law says that *240a woman who is capable of lawfully entering into the marriage relation, and does so, marrying a citizen, is fitted to become, and, ipso facto, becomes a citizen. The duties are no more onerous upon her than upon a native female of the same age, and she is still under the same disabilities. Her naturalization simply removes the disability resting upon alienism, and throws around her the protection of the nation. The propriety of this may be urged as a cogent reason in support of such a construction to the act as will give to the wife of the citizen the same protection as it gives to him and to their children. She has linked her destiny with the country by the strongest of ties. Citizenship does not depend upon age. To be qualified as a voter, a citizen must be of the age of twenty-one years, and upwards. On the other hand, infants may be citizens by birth."], "id": "c1388024-d090-4979-9d70-75f96346be05", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.\u201d Pub. L. No. 100-702, \u00a7 203, 102 Stat. 4646 (1988). We applied the statute accordingly in Foy v. Schantz, Schatzman & Aaronson, P.A., 108 F.3d 1347 (11th Cir. 1997). However, the \u201cdeemed a citizen\u201d language upon which we relied in Foy\u2014which we decided in 1997\u2014comes from an ear- lier version of \u00a7 1332(a); in 2011, Congress removed this language from the statute as part of the Federal Courts Jurisdiction and Venue Clarification Act. See Pub. L. No. 112-63, \u00a7 101, 125 Stat. 758 (2011). Under the current version of \u00a7 1332(a), a foreign citizen admitted to the United States for permanent residence is not a \u201ccit- izen[] of a State,\u201d but rather a \u201ccitizen[] or subject[] of a foreign state.\u201d 28 U.S.C. \u00a7 1332(a)(2). Under the amended version of the statute, there is no diversity between citizens of a foreign state. Tagger v. Strauss Grp. Ltd., 951 F.3d 124, 125, 127 (2d Cir. 2020) (per curiam) (holding that the amended version \u201cdoes not confer diversity jurisdiction where a permanent resident alien sues a non- resident alien\u201d and \u201cfederal courts do not have diversity jurisdiction over lawsuits between two foreign parties\u201d). As a result of this change in statutory law, Foy no longer controls. See United States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999) (\u201cAs a rule, our prior precedent is no longer binding once it has been substantially un- dermined or overruled by . . . a change in statutory law . . .\u201d). Given the language of the 2011 amendment, there is no diversity of under the current version of \u00a7 1332(a) between the USCA11 Case: 19-11330 Date Filed: 02/03/2022 Page: 10 of 22"], "id": "f4cd1867-41d9-4d8f-937d-cf0696b986d6", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The provisions of this act apply only to offenses committed subsequent to the passage of the act. But in order to provide, as near as possible, a remedy against false and fraudulent certificates of previously obtained and yet avoid the objection which might be raised to an ex post facto law, the use of such certificates, .'and. even their possession with intent to use them, was' prohibited as therein- provided. The cer*20tificates, the use or possession of which is thus prohibited, may be divided into four classes, viz.: 1. Certificates which am forged or counterfeit and, hence, are not at all the act of the. court whose seal they profess to bear. 2. Certificates which, though genuine in all respects and issued pursuant to the direction of the .court, were procured by or for the applicants named therein by means of some imposition or fraud practiced upon the court. 3. Certificates issued by the clerk or other officer of the court without lawful authority in cases in which there was no appearance and hearing of the applicant in court; and 4. Certificates issued to a person other than the one who uses or attempts to use it. But the prohibition does not apply to a case in which there was an honest compliance on the part of the applicant with the requirements of the law, and the court, in the exercise of its jurisdiction, made or gave the proper order of judgment, but of which the clerk neglected, to make an entry, though he filed it and although he issued the certificate. In such a case the certificate is valid and conclusive. Much less does it apply to a case like the cases at.bar in which every thing was done which the law and the practice of the court required to be done."], "id": "7c70cef1-444c-4dd5-a5ae-7916d574f5ad", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The UGMA is silent with respect to the custodian\u2019s residency or . Historically in the Surrogate\u2019s Court, the eligibility of a person to serve as fiduciary is governed by SCPA 707, which requires that a nonresident alien may serve only with a resident of this State. But is a custodian a fiduciary? EPTL 1-2.7 includes a custodian under the definition of fiduciary; but a custodian is not included in the definition of a fiduciary under SCPA 103 (21). Furthermore, since letters do not issue to a custodian, it would appear that SCPA 707 does not apply. Indeed, it is clear the draftsmen of the UGMA intended that in most instances a custodian would be appointed and serve without court involvement."], "id": "4b9e6829-2115-4a22-9338-b817f7486976", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Ultimately, I am sufficiently convinced that the settlors did not intend to grant exclusive jurisdiction to New York. Articles Second and Seventh explicitly provide that validity and construction of the trusts, and intestacy distributive eventualities shall be determined by the laws of the State of Maryland. These provisions, combined with the right of appointment of any trust company or bank as successor trustee (art. Third), makes an argument, based on intention, a convincing and valid one, particularly in the aura of its place of execution and the of the settlors: Maryland."], "id": "86d5c97c-78b1-4c83-91ce-54a4d16c5763", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["It has often been .said that an attorney is an officer of the court and his position is a matter of privilege, subject to certain burdens (Matter of Zuckerman, 20 N Y 2d 430, cert. den. 390 U. S. 925; Matter of Rouss, 221 N. Y. 81, cert. den. 246 U. S. 661). However, the right to conduct a business and enter a profession is considered a property right within the meaning of various constitutional provisions (9 N. Y. Jur., Constitutional Law, \u00a7\u00a7 226-229, 356; 16 Am. Jur. 2d., Constitutional Law, \u00a7 371). It has been said that the right to practice in any profession is \u201c a valuable property right, in which, under the Constitution and laws of the State, one is entitled to be protected and secured \u2019 \u2019 (Matter of Bender v. Board of Regents of Univ. of State of N. Y., 262 App. Div. 627, 631; Ann. 6 L. ed. 2d 1328, Professional License \u2014 Due Process). Whether an attorney\u2019s right to practice is regarded as a property right or a privilege (cf. Schware v. Board of Bar Examiners, 353 U. S. 232, 239), such right is protected by the Federal Constitution (Matter of Ruffalo, 390 U. S. 544; Konigsberg v. State Bar, 353 U. S. 252; Konigsberg v. State Bar, 366 U. S. 36) since \u201c lawyers also enjoy first-class \u201d (Spevack v. Klein, 385 U. S. 511,. 516). Admission to the Bar is not a matter of grace (Willner v. Committee on Character, 373 U. S. 96; Ann. 2 ALR 3d 1266 Admission to Bar \u2014 Due Process). Membership in the Bar with its attendant stringent requirements is a device designed to protect the public and assure them of competent advice (Matter of New York County Lawyers\u2019 Assn. v. Dacey, 28 A D 2d 161, revd. other grounds 21 N Y 2d 694)."], "id": "fa90aa0e-dbbd-4003-ad81-6f216128544e", "sub_label": "US_Terminology"} {"obj_label": "Citizenship", "legal_topic": "Immigration", "masked_sentences": ["\"(1) Completing a form provided by a federal or state agency but not advising a person as to their answers on those forms. \"(2) Translating a person's answers to questions posed in those forms. \"(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms. \"(4) Submitting completed forms on a person's behalf and at their request to the United States and Immigration Services. \"(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.\" ( Bus. & Prof. Code, \u00a7 22441, subd. (a).) We will use \"immigration consultant\" as shorthand for a person who engages in the business or acts in the capacity of an immigration consultant, according to these definitions."], "id": "c860792b-de46-4baf-82bb-612bd9fc7025", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["The age of the plaintiff was a necessary part of the information required by the steamship company, the passport and immigration authorities and the bureau. The plaintiff\u2019s age would appear to be material, when leaving his own country, embarking from England and arriving in the United States. The court may infer, in view of the testimony as to his entry in this country, that he came, here legally, after complying with the requirements of his native land, the land from which he sailed and the land of his adoption. Military service was obligatory between the age of twenty and twenty-one, but, according to his own story, he did no military service at all, arriving in this country when he was twenty-one, having been married at the age of twenty, and yet there is no testimony that he left or fled from Russia avoiding military service. The court may infer that he could not, therefore, have arrived in the United States when he was twenty-one years old."], "id": "5f0c9b11-ff61-44d3-8f37-9aca750356b2", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["removal costs,\u201d an \u201caction for contribution for any removal costs or damages,\u201d and an \u201caction based on rights subrogated pursuant to this Act\u201d). It precisely defines the forum in which any such action must be brought, noting that \u201c[v]enue shall lie in any district in which the discharge or injury or damages occurred, or in which the defendant resides, may be found, has its principal office, or has ap- pointed an agent for service of process.\u201d Id. \u00a7 2717(b). And it lists the courts that may lawfully exercise subject-matter jurisdiction over its claims, providing (for instance) that \u201cthe United States dis- trict courts shall have exclusive original jurisdiction over all contro- versies arising under this Act, without regard to the of the parties or the amount in controversy.\u201d Id. Like the statute at issue in Bormes, then, the OPA is a \u201cdetailed remedial scheme\u201d that constitutes the exclusive source of liability for oil-removal claims. Whether oil-spill liability extends to the federal government, in other words, must be determined by the OPA\u2019s own text. 9"], "id": "d0bb32fb-d4d0-49e5-a806-3a9d83559b82", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["On the first trial day she was asked to return the following-week and offer testimony or documents which would establish the relationship. She is not represented by an attorney and the court is of the opinion that she should be given every reasonable opportunity to establish her claim, if any. All that she has done to this point is offer a certified copy of her petition for . This document fails to indicate who her mother was. The testimony of Miss French is, to the court, both incredible and fantastic."], "id": "95d703be-d419-4195-9761-9c95b5eef382", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Border Patrol Agent Germano saw the Dodge and thought it was out of place. The Texas license plates near the northern New York border late on a midweek night were at odds with his observation of usual traffic in that area. His job was to watch for aliens, smuggling and contraband that he might encounter. When the Dodge made a series of improbable turns and appeared evasive to Germano, given the proximity to the border and the fact that something didn\u2019t seem right, he was justified in making an initial investigative stop to seek proof of and make a limited inquiry into his concerns. However, nothing in his testimony suggested any expressed concern about aliens or smuggling, and he did not assert such concerns as the *626basis for his stop. Therefore, when he received assurances as to citizenship and satisfied himself that there were no apparent aliens in the vehicle, his basis for further detention ended, and he was required to end the encounter."], "id": "f527e1af-aeb5-42b5-b76f-00a967feac1e", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["In such conflicts there is already, I conceive, a primary principle which is rarely considered by state courts in cases of this character. Under the Fourteenth Amendment to the Federal Constitution every citizen now has a national , as contradistinguished from his or her citizenship of a particular state of the Union. (Slaughter House Cases, 16 Wall. 36, 73; United States v. Gruikshank, 92 IT. S. 542.) The federal law *534regulating national citizenship alone determines the nationality of an American, as contradistinguished from his domicil, and it ought, I conceive, to be controlling in cases of this character, where a citizen of the United States is claimed to be domiciled legally in two or more-states of the Union. That the federal law is here controlling I do not say. It is quite unnecessary in this cause to go so far. But where there is a conflict of state laws on the status or state citizenship of a particular citizen of the United States, the collision or conflict seems to present a federal question within the true meaning of the amended Constitution, and in the interest of order and good government it would be highly convenient if the federal law comes to be supreme on this point throughout the United States, just as the law of imperial Rome came to be supreme on all disputed points over Italian particularism and provincialism. In other words, particularism or provincialism should in America give way to some higher principle or authority, in order that the rights and dignity of federal citizens may be properly maintained throughout the Union. If not now territoriality in the instance of federal citizens will at a time not long distant defer to nationality. Then if the courts of Vermont shall hold that \u201cA,\u201d a federal citizen, is a citizen of Vermont and the courts of Yew York shall also hold that he is at the same moment a citizen of Yew York, the nation may step in, in order that the evil consequences to \u201cA\u201d may be impartially prevented, or equitably adjusted, in some federal or national tribunal. This extension would be but an amplification of the theory of our Federal Constitution which makes federal law the arbiter of controversies between states or citizens of different states. It is of course probable that the judgment of the state courts, first in order of time determining the liability, would be held binding and given effect everywhere by federal law, but this might be at the expense of the real principle of domicil or state citizenship. Such temporary evasions do not benefit in the end the substance of constitutional law."], "id": "57cd583e-6a0d-401a-85ee-579fee6d2f6f", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["under ICWA, and the court \u2018shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.\u2019 (\u00a7 224.2, subd. (i)(2).)\u201d (In re D.S., supra, 46 Cal.App.5th at p. 1050.) C. Analysis Father argues substantial evidence does not support the juvenile court\u2019s ICWA finding on March 18, 2020. On this point, we disagree. At the time the juvenile court made that determination, all the information in the record supported that the minor was not an Indian child. Mother and father had denied any Native American ancestry in an interview with the Department and filed form ICWA-020\u2019s to that effect at the detention hearing at which they were present. Nonetheless, this does not end the inquiry. In fact, it is the propriety of the juvenile court\u2019s implied determination that ICWA did not apply at the termination of parental rights hearing (not its earlier determination) that is properly before this court. (In re Isaiah W. (2016) 1 Cal.5th 1, 6, 9, 14-15; In re S.R. (2021) 64 Cal.App.5th 303, 312 [reviewing court\u2019s adoption at termination of earlier ICWA finding in light of successive ICWA-020 form filings].) Here, later the same day of the court\u2019s ICWA determination, at 3:31 p.m., mother (acting in pro per) filed another ICWA-020 form under the penalty of perjury with a box checked that indicated \u201cEither parent or the child possesses an Indian identification card indicating membership or in an Indian tribe.\u201d Father argues this triggered the Department\u2019s duty to interview mother and her extended family, to review the identification card, and to contact any relevant tribes. We concur that the record does not answer whether the Department or the juvenile court complied with their continuing duty to investigate whether the minor may be an Indian child in light of mother\u2019s filing of the second ICWA-020 form."], "id": "26a06fdf-dcba-42d1-bf9f-a3d0486f89c0", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["Rhinehart relies on In re P.O. (2016) 246 Cal.App.4th 288, 299, 200 Cal.Rptr.3d 841 ( P.O. ), which found the condition \" 'be of good and good conduct' \" vague. ( Id. at p. 299, 200 Cal.Rptr.3d 841.) But in P.O. , the Attorney General conceded the \"good behavior\" condition was vague ( ibid. ), and there is no such concession nor reason for it here. Though similar sounding, the terms are sufficiently different. The phrase conjunctive to \"good conduct\" in P.O. -\"be of good citizenship\"-lacks the reasonable certainty of \"obey all laws\" and makes P.O. distinguishable. Beyond P.O. , Rhinehart identifies no case where this standard prohibition condition has been struck in whole or in part on vagueness grounds, nor have we found any. We see no reason to do so here."], "id": "7ffd8545-d531-4b50-ab12-ab19f1e8cee2", "sub_label": "US_Terminology"} {"obj_label": "citizenship", "legal_topic": "Immigration", "masked_sentences": ["As part of a 1997 revision to the Welfare Reform Law, Congress granted the states authority to use state funds to issue food benefits to those individuals whose entitlement to federal food stamps had been revoked. (See 7 USC \u00a7 2016 [j].) Pursuant to this federal authorization, New York, in 1997, adopted its own Food Assistance Program (FAP) to assist certain *610groups of legad, immigrants who had lost benefits as a result of the Welfare Reform Law. (See Social Services Law \u00a7 95 [10] [b].) In establishing this program, New York choose to restrict the group of immigrants who could apply for FAP benefits to lawful permanent residents or qualified aliens who are either elderly, disabled, under 18 years of age or victims of domestic violence. In addition, the immigrants must have (1) resided in the United States on August 22, 1996 (see \u00a7 95 [10] [b] [ii]), (2) applied for food stamps in the same social services district in which they resided on August 22, 1996 (see \u00a7 95 [10] [b] [ii]), (3) not been outside the United States for more than 90 days in the year preceding their application for benefits (see \u00a7 95 [10] [b] [iv]), and (4) either applied for within 30 days of the application or, if not yet eligible to apply for citizenship, apply within 30 days of becoming eligible (see \u00a7 95 [10] [b] [v]). Finally, the statute gave each of the state\u2019s 58 local social services districts the option of participating in the FAP It appears that, as of August 2002, only 10 of the 58 districts were participating in the program."], "id": "47b739b8-c8ba-473e-b625-def7010532ef", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The relevant facts are as follows: in 1978 the decedent Albert Goldberg married Alicia, at that time a citizen of Columbia, who was in the United States on a limited . Two days before their marriage they executed an antenuptial agreement which provided that Albert agreed to support Alicia and maintain her as his wife, that Albert\u2019s burial and interment would be the responsibility of his sister Ethel Schuman (petitioner) and that the parties waived their statutory rights of election and intestate succession."], "id": "070ff319-3294-47ed-be6d-5f65395827b6", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["companies including Enursul and Husky Energy, and contributed to novel inventions, including a portable sulfur-forming unit, modularized well pads, and a high-efficiency drill rig. Amin applied for an extraordinary ability in January 2020. He did not claim to have won a major international award. Instead, he asserted that he met four of the ten regulatory criteria: judging the work of peers (criterion four); making original contributions of major significance to his field (criterion five); leadership in distinguished industry organizations (criterion eight); and enjoying a high salary relative to his peers (criterion nine). A USCIS adjudicator denied Amin\u2019s application, finding that he only satisfied criterion four. Amin did not appeal the decision to higher agency authority. Instead, he challenged the denial in federal district court. After Amin filed this lawsuit, USCIS\u2019s field office agreed to reconsider his application. Upon second review, the agency adjudicator again denied Amin\u2019s application. This time, the adjudicator found that he met three criteria: judging the work of others, holding leadership roles, and commanding a relatively high salary, but still concluded Amin did not show original contributions of major significance. The adjudicator acknowledged that Amin played an \u201cimportant role\u201d for his employers but found that he failed to show a significant impact on the field of chemical engineering as a whole. Still, because Amin satisfied three regulatory criteria, the adjudicator then considered whether the record established his sustained acclaim and status at the top of his field. The adjudicator concluded that he did not. Again, the agency credited Amin\u2019s contribution to his employers but found evidence of his impact on the field lacking. Amin then amended his federal complaint, and the litigation continued. The district court granted the government\u2019s motion for summary"], "id": "5a271c0b-e552-49b4-b61e-e5df8bbf65c8", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The decedent was born in Ireland in 1880 and came to the United States in 1907 landing in 'San Francisco, California, where he resided until 1912 when he went to the Republic of Chile where he worked as a miner. He resided in Chile until 1951 during which period he was always a British subject and had received authorization to reside permanently in Chile from the British Consul. In 1951 he applied for and received from the United States Consul in Santiago, Chile, a passport authorizing him to come to the United States on a quota immigration for the purpose of attending the Mayo Clinic in Rochester, Minnesota, He entered the United States at Houston, Texas, on April 28, 1951 and on May 4, 1951 he registered at the Mayo Clinic in Rochester, Minnesota. He left the clinic in December, 1951 and went to Tucson, Arizona and from there to Truth or *916Consequences, New Mexico. He again entered the Mayo Clinic on August 25, 1952 and gave his address as Truth or Consequences in New Mexico. In September, 1952. he rented an apartment in Truth or Consequences where he resided until his death on December 7, 1959 and was buried there."], "id": "0b576a29-bdba-4e6a-99fa-7f5993165caa", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["When the matter appeared on the calendar of this court it fixed a date for a hearing to be held regarding the personal claim of the accounting party and said hearing was held on August 8,1966. The decision of the court was made on September 1, 1966 allowing the claim in the sum of $6,500. Prior to that time no representative had appeared on behalf of the Soviet resident and no notice of appearance or authorization was filed on his behalf until February 1, 1967 when the aforementioned New York law firm filed an appearance for the Deputy Chief of the Consular Division of the Embassy of the Union of Soviet Socialist Republics at Washington, D. C., the latter acting on behalf of the Soviet national. Thereafter the court was informed that the attorneys for the estate were exploring with the attorneys for the Russian Consulate a method for paying over his share to the residuary beneficiary. The court was advised that the beneficiary had contacted his *42own attorneys in Moscow and was attempting to obtain a for him to travel to Vienna for the purpose of receiving payment of his share."], "id": "839c26a9-743a-4618-8649-74bd3f727cc4", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff states she arrived in the United States from Bulgaria on a visitor\u2019s in July of 1990. After arrival, she filed an application for asylum with the Immigration and Naturalization Service (INS), which is still pending. Plaintiff has had a work authorization issued by the INS since the fall of 1990, and has been employed for approximately six of the last seven years. Allegedly as the result of the violence of a roommate, plaintiff went to the Rockland Family Shelter in the fall of 1997. Plaintiff states that she became homeless in March 1998 and either voluntarily went to the Rockland County Emergency Shelter, or was placed there by the Rockland County Department of Social Services (RCDSS), on March 10, 1998. She was moved to a motel in May of 1998. On May 9, 1998 the RCDSS notified plaintiff it was discontinuing all assistance. A fair hearing was held June 4, 1998, and the May 9, 1998 decision was affirmed on June 25, 1998. Following the June 25, 1998 decision, the complaint was allegedly amended to include a challenge to that decision under CPLR article 78."], "id": "6bb1bbd9-c059-4705-9e3b-84b1a8a74a4a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*222This type of conduct poses serious economic problems for our citizenry. \"Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.\u201d (De Canas v Bica, 424 US 351, 356-357.) Additionally, the court cannot give credence to plaintiff\u2019s claim of ignorance. As stated in Londono v Immigration & Naturalization Serv. (433d 635, 636): \"The petitioner was warned in his application for a visitor\u2019s that gainful employment in the United States would constitute a violation of visa conditions, and he agreed, in making that application, to abide by all the terms of his admission.\u201d"], "id": "6f1c64c7-b7fa-4c36-b6af-5974795953a8", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["She further testified that Dler took Mohammed and Rawez to stay with his family and left her at her family\u2019s home with Bayar and Yar and told her, \u201cyou take care of these two.\u201d Bari testified that after a month in Iraq, she ran out of medicine for Yar and was unable to get it in Iraq. She contacted the U.S. Consulate to get an expedited and returned to the United States to get Yar the medicine he needed. When describing Bari\u2019s return to the United States, Dler stated that he had taken her to Iraq for a family reunion but that she \u201cescaped\u201d and went back to the United States with the two youngest children. Dler returned to Nebraska with the two oldest children a short time later. There was evidence of a third domestic altercation that occurred in May 2019 in which Dler claimed Bari stabbed him four times with a kitchen knife. Dler testified that Bari told him she was moving out and she was taking the children with her. Dler refused to let her take the children, an argument ensued, and Bari attacked him with a knife. He stated that Rawez called the police. Rawez testified that on the day of the incident, he heard his father scream and he ran outside, where he observed his parents struggling in the grass outside of their apartment. He testified that he saw his mother with a knife in her hand and his father was holding onto his mother\u2019s hand, trying to get the knife out of her hand. He did not see his father actually get stabbed. Rawez called 911 and Bari was arrested and Dler was taken to the hospital. Bari\u2019s account of the stabbing was much different that Dler\u2019s or Rawez\u2019 account. Bari testified that the parties were living separately at the time and she had taken Bayar and Yar to"], "id": "7efaad21-27b1-4806-bc72-f70d728e2ff3", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["world class athletes, and renowned artists and musicians to live and work in the United States. Recipients include Beatles frontman John Lennon, whose application for classification as an \u201coutstanding person in the arts or sciences\u201d was supported by letters from prominent artists including Andy Warhol. Leon Wildes, John Lennon vs. The USA: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History 69-77 (2016). This case involves Bhaveshkumar Amin\u2019s attempt to obtain the modern version of this preference: an extraordinary ability . Amin, a Canadian citizen, is a talented chemical engineer who has made valuable contributions to oil and gas projects. But given the lofty bar for extraordinary ability classifications, we cannot say that the agency acted arbitrarily when it determined that Amin was not \u201cextraordinary\u201d but merely very good. I A The current preference for highly talented immigrants was enacted in 1990, when Congress created a pathway to citizenship for noncitizens with \u201cextraordinary ability in the sciences, arts, education, business, or athletics.\u201d 8 U.S.C. \u00a7 1153(b)(1)(A). This visa, colloquially dubbed the \u201cEinstein\u201d or \u201cgenius\u201d visa, is available to those whose extraordinary ability \u201chas been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.\u201d Id. Although only a few thousand extraordinary ability visas are awarded each year, they are highly sought after. See Form 1-140, Immigrant Petition for Alien Worker Number of Petitions and Approval Status for All Countries by Fiscal Year Received and Approval Status, U.S. Citizenship & Imm. Servs., Dep\u2019t of Homeland Sec. (2019), https://www.uscis.gov/sites/default/files/document/data/I140_by_class_"], "id": "86231ea7-30b5-420e-bf2e-8e751641f988", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["(1) Reservation record Hotel Shelburne, 9-27-29, \u201c Mr. and Mrs. Erlanger \u201d (Exhibit BB). (2) Shelburne Hotel to Dillon, acknowledging reservation for \u201c Mr. and Mrs. Erlanger \u201d (Exhibit CC). (3) Letter 8-26-29, Shelburne Hotel to Dillon, referring to Mrs. Erlanger (Exhibit DD). (4) Photostatic copy registration at the Arizona-Biltmore Hotel, Phoenix, Ariz. (Exhibit T-12), \u201c Mr. and Mrs. Erlanger.\u201d (5) Letters between Knickerbocker Tours and Meyer Keen in reference to the arrangements for the European trip in 1928, in which Mrs. Erlanger is mentioned, date April or May, 1928 (Contestant\u2019s Exhibits,, G-4, K-4, L-4, M-4, N-4, 0-4, P-4, R-4, S-4). (6) Knickerbocker Tours suggestion of route for Mr. and Mrs. Erlanger (Contestant\u2019s Exhibit *198P-9). (7) Further correspondence with the Knickerbocker Tours in which the names are used (Contestant\u2019s Exhibits R-9, S-9, T-9). (8) Berengaria passenger list westbound commencing February 27, 1929, on which the parties returned from France, reading, \u201c Mr. and A. L. Erlanger and manservant, Mrs. Erlanger \u201d (Contestant\u2019s Exhibit Z-4). (9) Ticket steamship Columbus, sailing May 11, 1928, North German Lloyd, ticket made out to Mr. Abraham L. Erlanger and Mrs. Charlotte Lesley (Contestant\u2019s Exhibit V-3). (10) Return trip ticket on the steamship Roma, sailing February 22,1929, \u201c Mr. and Mrs. A. L. Erlanger and valet \u201d (Contestant\u2019s Exhibit J-4); they did not return on the Roma, but came back on the Berengaria. (11) Letter North German Lloyd Company to Goodman Open Road Travel Service, dated 5-15-28, referring to Mr. and Mrs. Erlanger and their trip (Contestant\u2019s Exhibit X-3). (12) Passenger berthing list, steamship Olympic, sailing September 12, 1928, showing the names Mr. A. L. Erlanger and Mrs. C. Lesley (Contestant\u2019s Exhibit D-4). (13) Original and copy of ticket steamship Augustus, sailing June 3, 1929, in the names of Mr. and Mrs. A. L. Erlanger and Gaetano Tommaselli (Contestant\u2019s Exhibit H-4). (14) The sailing sheet of the steamship Augustus, 1-3-29 (Exhibit U-4) bearing the names Mr. and Mrs. A. L. Erlanger (passenger list of steamship Augustus (Exhibit 41] does not bear their names). (15) The purser\u2019s list of passengers Berengaria, leaving Cherbourg 2-27-29, bearing the names Abraham L. Erlanger and manservant and Mrs. Erlanger (Contestant\u2019s Exhibit A-5). (16) Ticket issued by the Cunard Line for Cherbourg, sailing 2-27-29, to Mr. Abraham L. Erlanger, Mrs. Abraham L. Erlanger and valet (Contestant\u2019s Exhibit B-5). (17) Paris Herald, 9-9-28 (Contestant\u2019s Exhibit H-3), with an announcement in the columns headed \u201c News of Americans in Europe,\u201d the item \u201c Mr. and Mrs. A. L. Erlanger of New York are at the Hotel George V, Paris.\u201d (18) Paris Herald, dated 2-12-29, under the heading \u201c At Monte Carlo,\u201d the news item \u201c Another American staying at the Hotel d\u2019Paris is Mr. A. L. Erlanger, theatrical owner and manager, accompanied by Mrs. Erlanger \u201d (Contestant\u2019s Exhibit M-2). (19) Paris Herald, 2-23-29, under the heading \u201c News of Americans in Europe,\u201d the item \u201c Mr. and Mrs. A. L. Erlanger of New York, who have been at Lyons for a short sojourn, have returned to Hotel George V \u201d (Contestant\u2019s Exhibit K-2). (20) Paris Herald, 2-27-29, containing an item under the same heading \u201c Mr. Abraham L. Erlanger, New York theatrical manager, and Mrs. Erlanger, are returning to the States by the Berengaria, sailing today from Cherbourg (Contestant\u2019s Exhibit 1-2). (21) Certified copy of New York Herald Tribune, 5-11-28, in the list of passengers sailing *199that day, printed in the column entitled \u201c Paris, Majestic and Columbus sailing today,\u201d appear under the paragraph referring to the Columbus the names \u201cA. L. Erlanger, theatrical producer, Mrs. Erlanger \u201d (Contestant\u2019s Exhibit P-15). (22) Photostatic copy, New York Times, 5-11-28, in the column giving the names of some of the persons departing on different vessels has under the headline \u201c Aboard the Columbus \u201d the names Mr. and Mrs. A. L. Erlanger (Contestant\u2019s Exhibit R-12). (23) A contract for purchase of a Packard car made with Park Avenue Packard, Inc., in the name of A. L. Erlanger and signed at the bottom with the name in ink, \u201c Mrs. A. L. Erlanger,\u201d with pencil notation \u201c Address all communications to J. J. Dillon, c fo A. L. Erlanger, 214 West 42nd Street, residence address, 175 Riverside Drive,\u201d the purchase price being $3,480 and the date 5-11-29 (Contestant\u2019s Exhibit M-l). (24) A supplement to contract with the same company with the name A. L. Erlanger, underneath it in typewriting \u201c Mrs. A. L. Erlanger,\u201d dated 10-1-29 (Contestant\u2019s Exhibit K-l). (25) A bill of the Park Avenue Packard, Inc., covering the car mentioned in the first contract (Exhibit M-l), said bill being made out to Mr. A. L. Erlanger, 214 West Forty-second street, New York city, total bill covering the price $3,480 and extras, being $4,229.75, and showing a deposit of $1,000 paid, leaving a net of $3,229.75; bill has in pencil \u201c O. K. Dillon \u201d and also \u201c O. K. J. J. Revett,\u201d Erlanger\u2019s chauffeur; the receipt of payment is indicated on this bill (Contestant\u2019s Exhibit U-l). (26) Check A. L. Erlanger, dated 6-12-29, to the order of Park Avenue Packard, Inc., for $3,229.75, the balance shown upon said bill (Exhibit V-l). (27) Check A. L. Erlanger, 6-11, to the order of J. J. Dillon for $1,000 to cover deposit made by him on said car (Contestant\u2019s Exhibit V-l). (28) Check A. L. Erlanger special, signed by Baron and Pratt to the Park Avenue Packard, Inc. (Contestant\u2019s Exhibit W-l). (29) Similar check drawn A. L. Erlanger special account, by Baron and Pratt, to the Electric Service Engineering Corp., $10.22 (Contestant\u2019s Exhibit P-1). (30) Bill of the Electric Engineering Service stamped \u201c O. K., M. Pratt, Jr.,\u201d which bill is for electric service covering the period from 11-11-29 to 12-11-29, paid 12-16-29; this bill is made to Mrs. A. L. Erlanger, 176 Riverside drive (Contestant\u2019s Exhibit R-l). (31) Bill, Park Avenue Packard, Inc., for $18 for Packard emblem and license plates frames, receipted by the company, bearing \u201c O. K. Pratt \u201d and \u201c O. K., Dillon;\u201d the bill is dated 10-26-29, and made out to Mrs. A. L. Erlanger, 175 Riverside drive; bill also has the stamp of the financial department on it (Contestant\u2019s Exhibit L-l). (32) Park Avenue Packard, Inc., bill for supplies to the Packard car made out to Mrs. A. L. Erlanger, 175 Riverside *200drive (Contestant\u2019s Exhibit X-l). (33) Contract with the Park Avenue Packard, Inc., 7-1-29, by A. L. Erlanger, signed at the bottom \u201c Charlotte Erlanger, business address 214-West Forty-second street; residence address, 175 Riverside drive \u201d (Contestant\u2019s Exhibit B-2), (34) Check drawn to the order of the Park Avenue Packard, Inc., dated 10-21-29, amount $3,840, signed by Charlotte Erlanger (Contestant\u2019s Exhibit C-2). (35) Bill, Taylor Trunk Works, made out to Mrs. A. L. Erlanger, New Amsterdam Theatre Building, dated 4-13-28, for $139.50, with the \u201c O. K., Dillon \u201d and \u201c O. K., M. Pratt, Jr.,\u201d which bill is marked \u201c Paid,\u201d a check drawn on A. L. Erlanger special account by L. E. Bergman (his general manager and nephew) for the amount of said bill, check being dated 4~3~28 (Exhibit P-12). (36) Letter Stearn Company, Cigar Importers, dated 8-7-29, to Mrs. A. L. Erlanger, thanking her for order of cigars for the account of Mr. Erlanger; the envelope with the letter is addressed to Mrs. A. L. Erlanger, 175 Riverside drive, postmarked 8-7-29. The bill for cigars stamped paid, has upon its face \u201c O. K., Mrs. Erlanger; O. K., Dillon; O. K., M. Pratt, Jr.\u201d (Contestant\u2019s Exhibit T-10). (37) Electric Service Engineering Corp. bill, 8-13 to 10-11-28, for electric service, stamped paid; bill is addressed to Mrs. A. L. Erlanger, 175 Riverside drive, and stamped \u201c O. K., M. Pratt, Jr.\u201d (Contestant\u2019s Exhibit S-l). (38) Bill marked paid of Laffay Motor Coach Corporation for repairs to a Flint coupe, said bill being made out to Mrs. A. L. Erlanger, 175 Riverside drive, bearing the indorsement \u201c Airs. E., O. K.; O. K., Dillon; O. K., M. Pratt, Jr.\u201d (Contestant\u2019s Exhibit B-6). (39) Bill, Laffay Motor Coach Corporation repairs a Packard touring car, stamped paid, made out to Mr-. A. L. Erlanger, with indorsement \u201c O. K., Mrs. E.; O. K., Dillon; O. K., M. Pratt, Jr.; O.K., F. Revett\u201d (Contestant\u2019s Exhibit W-6). (40) Check 10-4-29, to the order of the Laffay Motor Coach Corporation drawn on A. L. Erlanger special account and signed by Baron and Pratt (Contestant\u2019s Exhibit Y-6). (41) Bill stamped paid, of Warnock, Inc., makers of uniforms, made out to Mrs. A. L. Erlanger, 25 Broadview, New Rochelle, New York (summer home of contestant and decedent, summer of 1929), for uniform for chauffeur bearing the \u201c O. K., Dillon and O. K., M. Pratt, Jr.,\u201d on its face (Contestant\u2019s Exhibit 0-6). (42) Check 8-10-29, drawn on the A. L. Erlanger special account by Baron and Pratt, and made out to the order of the Warnock, Inc. (Contestant\u2019s Exhibit 0-6). (43) Check paid to Courtney, village clerk, Garden City, $353.60, 7-6-28, and drawn upon the A. L. Erlanger special account by his nephew and general manager, L. E. Bergman (Contestant\u2019s Exhibit P-13), the check being paid for taxes of the *201Garden City property, deeded to her by him, 9-26-27. (44) Three bills for taxes on the Garden City and Lawrence property are marked as contestant\u2019s Exhibit Q-13 and the Erlanger check which paid these bills was marked contestant\u2019s Exhibit S-13, this check being a personal check drawn by A. L. Erlanger himself, dated 1-3-29 (p. 5749). (45) Contestant\u2019s Exhibit R-13 is a memorandum showing how the one check was distributed on the several bills. (46) The investment ledger sheet (Contestant\u2019s Exhibit T-13) showed how these items were carried on the books of account. Pratt said that these bills were paid under a direct order from Erlanger. (47) Bills for taxes for 1928 (Contestant\u2019s Exhibit TJ-13) were paid for by check marked Exhibit V-13, drawn on A. L. Erlanger special account by L. E. Bergman, his nephew and general manager. (48) Taxes for 1929 on the Garden City property (Contestant\u2019s Exhibit X-13) and paid for by check dated 8-6-28 (Contestant\u2019s Exhibit Y-13), drawn on the A. L. Erlanger special account by L. E. Bergman, his general manager and nephew. (49) The mortgage interest on the Garden City property was paid by Erlanger, Baron\u2019s check for the same (Contestant\u2019s Exhibit A-14); the bill for this interest on the Garden City property dated 1-3-28, was made out in the name of Charlotte Fixel, has stamped on the back \u201c O. K., M. Pratt, Jr., personal account, A. L. E.; ordered by S. B.;\u201d Baron was reimbursed by check of 1-18-28 for $300, drawn on the A. L. Erlanger special account by A. L. Erlanger (Contestant\u2019s Exhibit B-14). (50) A bill of the Liberty Music Shop in the name of A. L. Erlanger, 175 Riverside drive, and envelope with the same address on it, sent by that firm (Contestant\u2019s Exhibit N-l); the face of this bill bears the following indorsement: \u201c O. K., Dillon; O. K., Mrs. E.; O. K., M. Pratt, Jr.;\u201d and two stamps of the financial department; postmarked and addressed to Mrs. A. L. Erlanger, 175 Riverside drive; this bill was for services rendered in December, 1928 (1069). (51) Contestant\u2019s Exhibit N-4 is a batch of copies of thirteen letters addressed to managers of Italian hotels in Rapallo, Messina, Siracusa, Genoa, Venice, Rome, Taormina, Nice, Milan, Florence, Palermo, Naples, St. Remo, introducing Mr. and Mrs. Abraham Lincoln Erlanger and requesting that everything possible be done to insure Mr. and Mrs. Erlanger\u2019s having an entirely comfortable and enjoyable sojourn at their hotel. (52) Bill for taxes of 1928 on the Garden City property under the name Mrs. Charlotte Fixel, c \u00a1o Abraham Erlanger, 214 West Forty-second street, with notation indicating the payment by check signed L. E. Bergman (Contestant\u2019s Exhibit 0-13). (53) Bill, Liberty Music Shop, 12-17-29, made out to Mrs. Erlanger, 175 Riverside drive, for radio supplies; it has on its face: \u201c O. K,, Mrs. E.; 0. K., *202Ditton; O. K., M. Pratt, Jr.\u201d (Contestant\u2019s Exhibit B-6); was paid by a check drawn on the A. L. Erlanger special account by Baron and Pratt. (54) Bill, Liberty Music Shop, radio supplies, 11-1-28, stamped paid, bearing upon its face, \u201c O. K. Dillon, and O. K. Pratt,\u201d with two stamps of the financial department on it; this bill is .made out to \u201c Mr. A. L. Erlanger,\u201d paid for by check on his personal account, drawn by L. E. Bergman (Contestant\u2019s Exhibit). (55) Bill, Liberty Music Shop, made out to Mr. A. L. Erlanger, 175 Riverside drive, indorsed, \u201c O. K. Dillon \u201d and stamped with a stamp of the financial department; paid for by check drawn on A. L. Erlanger personal account, by L. E. Bergman (Contestant\u2019s Exhibit E-6). (56) Bill dated 7-29-29, made out to Mrs. A. L. Erlanger, from Dr. Phillip M. Grausman, for professional services, together with (Contestant\u2019s Exhibit XX) a stamped envelope postmarked addressed to Mrs. A. L. Erlanger, 175 Riverside Drive, and readdressed to 25 Broadview Avenue, New Rochelle. (57) Receipted bill dated 7-31-29, addressed to Mrs. A. L. Erlanger, 175 Riverside drive (Contestant\u2019s Exhibit WW), together with stamped envelope postmarked and addressed to Mrs. A. L. Erlanger, 175 Riverside drive; this bill was for services rendered in 12-28 (1069). (58) Copies of letters written by Knickerbocker Toms to thirty-five hotels in different places in Europe, referring to Mr. and Mrs. Abraham Lincoln Erlanger, and the accommodations to be furnished to them (Contestant\u2019s Exhibit V-9). (59) Letter from the general manager of the Excelsior Hotel, Naples, 12-9-28, to Knickerbocker Toms, Paris, in regard to Mr. and Mrs. A. L. Erlanger (Contestant\u2019s Exhibit W-9). (60) Contestant\u2019s Exhibit X-9 consists of carbon copies of various letters and three telegrams; one is addressed to Erlanger by Knickerbocker Toms, concerning the itinerary of the Emopean trip; the second is addressed to Abraham Lincoln Erlanger and concludes with: \u201c With kind regards also to Mrs. Erlanger;\u201d a third from Knickerbocker Toms to Erlanger at Hotel Excelsior, Naples, welcomes him and \u201c Mrs. Erlanger \u201d on Emopean soil again; and the next is addressed to Erlanger in New York and refers to \u201c Mrs. Erlanger;\u201d the next is addressed to Mrs. A. L. Erlanger from Knickerbocker Toms; the next is addressed to Mrs. Erlanger from Knickerbocker Toms; the next is addressed to Mrs. A. L. Erlanger, Villa Igiea, Grand Hotel, Palermo; the next is a telegram addressed to Mr. and Mrs. A. L. Erlanger, Ber eng aria, Cherbourg, by Gockinga, of Knickerbocker Toms; the next is addressed to Mr. and Mrs. A. L. Erlanger, Hotel Excelsior, Naples; the two fmther telegrams are addressed to Erlanger, Hotel Miramare, Genoa, and to Erlanger, Hotel Excelsior, Naples, by Gockinga. (61) Registration record of the Hotel Villa *203Igiea, Palermo, showing arrival of \u201c Mr. and Mrs. Erlanger \u201d of New York and 'Dr. Gustave Paul, arriving there on 1-21-29 (Contestant\u2019s Exhibit D-10). (62) Receipted bills for their stay at the hotel, issued to Mr. and Mrs. A. L. Erlanger (Contestant\u2019s Exhibit C-10). (63) Letter Dr. J. C. Marshall, 6-22-28, to Mr. A. L. Erlanger, Hotel Esplanade, Marienbad, with the opening line, \u201c My deal Pal, and his dear wife, Charlotte,\u201d and closing with \u201c With much love to Charlotte and yourself,\u201d etc. (Contestant\u2019s Exhibit H). (64). Letter of Dr. J. C. Marshall, 1-27-30, addressed to \u201c My dear Pal and Mrs. Pal,\u201d and closing with \u201c With much love to you both, I am as ever Your Pal \u201d (Contestant\u2019s Exhibit F). (65) Letter of Dr. J. C. Marshall, 12-1-27, addressed to \u201c My dear pal and his Blue Angel \u201d (Contestant\u2019s Exhibit K). (66) Envelope of postmarked letter of Dr. J. C. Marshall, from Atlantic City, addressed \u201c Mrs. Charlotte Erlanger, Ambassador Hotel,\u201d 10- 24r-27 (Contestant\u2019s Exhibit M). (67) Card from Dr. J. C. Marshall, 11-22-28, in a postmarked envelope, addressed \u201cMrs. A. L. Erlanger, 175 Riverside drive, New York,\u201d postmarked 11- 23-28 (Contestant\u2019s Exhibit N). (68) Letter of Dr. Marshall, 10-22-27, \u201c My dear Mrs. Erlanger,\u201d sent from Atlantic City in stamped envelope to \u201c Mrs. Charlotte Erlanger, Ambassador Hotel, New York \u201d (Contestant\u2019s Exhibit P). (69) Letter, 12-10-29, addressed to \u201c My dear Charlotte,\u201d together with postmarked envelope addressed to \u201c Mrs. A. L. Erlanger, 175 Riverside drive, New York \u201d (Contestant\u2019s Exhibit O). (70) Letter of Dr. J. C. Marshall, 9-23-29, mailed from Atlantic City, \u201c Mrs. C. Erlanger, 175 Riverside drive, New York city\u201d (Contestant\u2019s Exhibit Q). (71) Letter from Dr. Marshall, 11-29-29, envelope addressed to Mrs. A. L. Erlanger, 175 Riverside drive, postmarked 11-30-29 (Contestant\u2019s Exhibit R). (72) Telegram, 1-2-30, A. E. Erlanger, 175 Riverside drive, \u201c just to wish you a happy New Year and a delightful trip through the West with your good wife, and I will be so glad to see you when you return East again; with much love, I remain, Your Pal\u201d (Dr. Marshall) (Contestant\u2019s Exhibit T). (73) Christmas card, 12-18-28, J. Chandler Marshall, with envelope postmarked Atlantic City, 12-18-28, addressed to Mr. and Mrs. A. L. Erlanger, 175 Riverside drive, New York city (Contestant\u2019s Exhibit S). (74) Card addressed to Mr. and Mrs. Erlanger by Mr. Al. Woods, in 9-28, to announce himself at the Hotel George V when calling upon them (Contestant\u2019s Exhibit G-3). (75) Telegram from Joe Toplitsky, 3-7-30, addressed to Mrs. Charlotte Erlanger, 175 Riverside drive, \u201c Received sad news this morning, and I can appreciate your feelings as measured by mine; I believe you and I had a deeper appreciation and a better realization of the wonderful *204man he was than anyone else in the world; I exceedingly regret being unable to be there at this time, but am detained here for at least ten days by an engagement that cannot be broken or postponed. However, I hope to see you in about two weeks. In the meantime please realize that my thoughts are with you in sincere sympathy. Your realization of your wonderful devotion should be a source of comfort to you now. Joe Toplitsky, Los Angeles, California \u201d (Contestant\u2019s Exhibit T-4). (76) Entering card, French Hospital, of A. L. Erlanger; \u201c History of Patient, French Hospital, 2-11-80, of A. L. Erlanger,\u201d with the printed word \u201c single \u201d and \u201c widowed \u201d stricken out and a check marked over the word \u201c married,\u201d with the entry \u201c Nearest relative or friend,\u201d the name \u201c J. Dillon \u201d (Contestant\u2019s Exhibit YY). (See testimony of Augustine Mathieu, pp. 1089-1091, as to how these records were made.) (77) Transcript of a record kept in the regular course of conduct of French Hospital with the name of A. L. Erlanger and the letters S. W. crossed out and M. standing (Contestant\u2019s Exhibit ZZ). (78) Bound book of \u201c Patients admitted \u201d shows the entries for 2-11 of A. L. Erlanger, age 60, civil condition, M; occupation, theatrical; birthplace, IT. S.; time in U. S., 60; time in New York, 40 (Contestant\u2019s Exhibit A-l). (79) Letter, Knickerbocker Tours, New York, to Meyer Keen, 12-17-28, referring to the Erlanger tour and to Mr. and Mrs. Erlanger (Contestant\u2019s Exhibit M-4). (80) Letter, Open Road Travel Service, Inc., to N. G. I. Line, inclosing check for $5,768.67 and a direction to \u201c Kindly issue tickets account Mr. and Mrs. A. L. Erlanger, who are sailing on the steamship Augustus, 1-3,\u201d this letter is dated 11-7-28 (Contestant\u2019s Exhibit G-4). (81) Receipt of North German Lloyd, dated 2-20-29, made out to the Open Road Travel Service, Inc., acknowledging remittance of a $1,000 as deposit and referring to Mr. and Mrs. Erlanger and valet (Contestant\u2019s Exhibit R-4). (82) Letters from the Knickerbocker Tours to Meyer Keen, suggested automobile trip in Europe, dated 11-1-28, the title of the letter is \u201c Mr. and Mrs. A. L. Erlanger;\u201d the itinerary is headed \u201c Suggested automobile trip of Mr. and Mrs. Erlanger \u201d (Contestant\u2019s Exhibit L-4). (83) Letter from the Italian-American Shipping Corporation to the Open Road Travel Service, Inc., with the heading \u201c Mr. and Mrs. A. L. Erlanger and valet, Suite G and No. 75, steamship Augustus, 1-8-29\u201d (Contestant\u2019s Exhibit P-4). (84) Two cablegrams to Dr. Gustave Paul, Vienna, sending holiday greetings, both dated 12-25-28, one from A. L. E. and the other from Charlotte (Contestant\u2019s Exhibits N-7 and 0-7). (85) Letter of Dr. Gustave Paul to Erlanger, acknowledging receipt of a fee, and saying, \u201c With heartiest greetings to you and your charming wife.\u201d Letter dated 8-5-28, in Vienna, and delivered personally in an *205envelope addressed \u201c Mr. and Mrs. A. L. Erlanger \u201d (Contestant\u2019s Exhibit D-12). (86) Letter of Dr. Gustave Paul addressed to \u201c My dear friends, My dear Charlotte, My dear A. L. E.,\u201d and beginning with this sentence, \u201c Since my last letters addressed to you both and since your redeeming word, \u2018 Mezpah \u2019 quoted from you, my dear Charlotte, again, months have passed without any news from you;\u201d dated 12-8-29, signed \u201c Dr. Paul \u201d (Contestant\u2019s Exhibit H-12). (87) Envelope from Dr. Paul, postmarked and addressed to Mr. and Mrs. A. L. Erlanger, 175 Riverside drive, New York (Contestant\u2019s Exhibit K-12), envelope of letter from Dr. Paul addressed Mister and Missus A. L. Erlanger, 175 Riverside drive, New York city, TJ. S. A. (Contestant\u2019s Exhibit G-12). (88) Application for , made 4-6-28, by A. L. Erlanger, in which the checking is in the space next to the word \u201c Married \u201d and no checks beside the words \u201c Single, widowed or divorced \u201d (Contestant\u2019s Exhibit N-10). (89) Signature card, Corn Exchange Bank and Trust Company, dated 4 \u2014 1929, with the name Lesley, Charlotte, Miss, printed above, with the signature, Charlotte Lesley, contained thereon, and then added below, \u201c Charlotte Lesley \u201d in other handwriting, \u201c c /o Mrs. A. L. Erlanger, 175 Riverside drive, Apt. 0-12-E (Contestant\u2019s Exhibit X-14). (90) Signature card dated 9-20-29, by which the former account was changed into a new one; has in print at the top line \u201c Erlanger, Charlotte,\u201d down below the signature \u201c Charlotte Erlanger, Charlotte Lesley \u201d (Contestant\u2019s Exhibit Y-14). (91) Signature card, Central Savings Bank with the signature Charlotte Lesley, 175 Riverside drive, Apt. 0-12-E, dated 3-21-29; opposite the words \u201c Name of wife or husband \u201d appears A. L. Erlanger (Contestant\u2019s Exhibit TJ-14). (92) Ticket on steamship Columbus, sailing 5-11-28, made out in the name of Mr. Abraham L. Erlanger, Mrs. Charlotte Lesley, suite 143-145 (Contestant\u2019s Exhibit V-3). (93) Return ticket steamship Olympic, sailing Cherbourg 9-12-28, suite 40-42-44, in the names of Mr. Abraham L. Erlanger, age 64; Mrs. Charlotte Lesley, age 43 (Contestant\u2019s Exhibit Y-3). (94) New York Times, 5-11-28, news article, lists among those sailing on the Columbus \u201c Mrs. C. Lesley,\u201d the same list has the names \u201c Mr. and Mrs. A. L. Erlanger \u201d (Contestant\u2019s Exhibit R-12). (95) Envelope from Dillon addressed to Mrs. A. L. Erlanger, c \u00a1o Knickerbocker Tours, Paris, forwarded to her at Hotel Bristol in Vienna, postmarked 7-28, containing a letter addressed \u201c My dear Charlotte,\u201d with references to Mr. Erlanger and Mrs. Erlanger and her devotion to him (Contestant\u2019s Exhibit W-8). (96) Letter dated 8-16-28, addressed to Mrs. A. L. Erlanger, c /o Knickerbocker Tours, Paris, forwarded to Hotel Bristol, Vienna, beginning: \u201c Hello, Mama,\u201d referring to *206Mrs. Erlanger (Contestant\u2019s Exhibit X-8). (97) Letter from Dillon in envelope addressed in typewriting, \u201c Mrs. A. L. Erlanger, c/o Brown\u2019s International Travel Office, Naples, Italy,\u201d dated 1-29-29; the letter opens: \u201c My dear Charlotte,\u201d referred to \u201c Mr. Erlanger and Charlotte Darling,\u201d closing with \u201c God bless you both;\u201d signed \u201c Your Jack Rabbit \u201d (Contestant\u2019s Exhibit Y-8). (98) Letter 2-14-29, Dillon to contestant, with the opening \u201c My dear Mama,\u201d referring to theatres and theatrical personages (Contestant\u2019s Exhibit Z-8). (99) Envelope addressed in typewriting, Mrs. A. L. Erlanger, c/o Brown\u2019s International Travel Office, Naples, Italy, postmarked 1-31-29, containing a letter from Dillon to contestant, opening: \u201c Hello, Mama,\u201d referring to Mr. Erlanger and to \u201c You and Mr. Erlanger \u201d (Contestant\u2019s Exhibit A-9). (100) Envelope 2-18-29, sent to Paris, to Mrs. A. L. Erlanger and readdressed from the George V Hotel to 175 Riverside drive, containing letter from Dillon to her, opening with the lines: \u201c Oh, Mama,\u201d referring to Mr. E., and closing \u201c God bless you both, and always your Jack Rabbit \u201d (Contestant\u2019s Exhibit B-9). (101) Envelope addressed Mrs. A. L. Erlanger Biltmore Hotel, Los Angeles, Cal., readdressed Biltmore Hotel, Phoenix, Ariz., containing letter from Dillon to contestant, opening with \u201c Charlotte, Dear,\u201d dated Tuesday, 1-14--80, referring to Mr. Erlanger and closing \u201c with all my love, always your Jack\u201d (Contestant\u2019s Exhibit C-9). (102) Envelope addressed to Mrs. A. L. Erlanger, Hotel Biltmore, Phoenix, Ariz., postmarked 1-16-30, containing letter from Dillon to contestant, opening \u201c My dear Charlotte,\u201d and referring to Mr. Erlanger and closing with \u201c Lots and lots from me, too \u201d (Exhibit E-9). (103) Envelope addressed to Mrs. A. L. Erlanger, Biltmore Hotel, Los Angeles, Cal., postmarked 1-9-30, addressed to contestant by Dillon, opening with, \u201c Hello, Mama,\u201d referring to Mr. Erlanger, and closing with \u201c All our love always, Jack \u201d (Contestant\u2019s Exhibit D-9). (104) Envelope dated 1-18-30, addressed Mrs. A. L. Erlanger, Biltmore Hotel, Phoenix, readdressed to 175 Riverside drive, from Dillon to contestant, opening with \u201c Dear Charlotte,\u201d referring to Mr. Erlanger and closing with \u201c Always Jack \u201d (Contestant\u2019s Exhibit). (105) Letter from Joe Toplitsky to Erlanger, Hotel Esplanade, Marienbad, dated 7-8-28, addressed: \u201c Dear Mr. Erlanger.\u201d It concluded with the expression, \u201cIdo hope that you and Charlotte had a marvelous trip and that you are both enjoying every minute of your stay;\u201d and closing, \u201c Hoping this finds you enjoying the best of health, believe me your friend \u2014 Pal \u2014 Partner Joe\u201d (Contestant\u2019s Exhibit S-ll). (106) Letter of Joe Toplitsky, dated Los Angeles, 2-8-80, addressed to Mrs. Charlotte Erlanger, 175 Riverside drive, New York city: \u201c Thanks for your kind note *207of 1-29 apprising me of your safe return home. Words cannot express my appreciation of your letting me know how the boss stood the trip, also that he has improved * * *. Again thanking you with all my heart and with love to Mr. Erlanger, not forgetting yourself, sincerely yours, Joe \u201d (Contestant\u2019s Exhibit R-ll). (107) Telegram dated 5-11-28, addressed from Douglaston, N. Y., to Mr. and Mrs. Erlanger, steamship Columbus, Pier 86, N. R., signature, \u201c Coodie and Bertie \u201d (Bert C. Whitney) (Contestant\u2019s Exhibit A-ll). (108) Letter, Adlon Hotel, addressed to Mrs. A. L. Erlanger, referring to their prospective arrival at the Adlon on July fourth (Contestant\u2019s Exhibit B-ll). (109) Five envelopes which were sent through the mails by Miss Marie Wells to Mrs. A. L. Erlanger, three to the Biltmore Hotel in Los Angeles, and two to the Hotel Biltmore in Phoenix, Ariz., during 1-80 (Contestant\u2019s Exhibit E-ll).. (110) Envelope and announcement card, Millinery Company, N. Y., 1-7-28, addressed to Mrs. Erlanger, 175 Riverside drive (Contestant\u2019s Exhibit X-ll). (Ill) Envelope postmarked 12-18-29, to Mrs. Charlotte Erlanger, 175 Riverside drive, from Madame Laura (p. 3591) (Contestant\u2019s Exhibit P-11). (112) Postmarked envelope, Chicago, 111., from Mrs. Quigley (p. 3589), 1- 8-80, addressed \u201c Mrs. A. L. Erlanger, Biltmore Hotel, Los Angeles, Calif.\u201d (Contestant\u2019s Exhibit G-ll). (113) Postmarked envelope from Evan Vranken, 153 Dana avenue, Albany, addressed to Mrs. A. L. Erlanger, Hotel Biltmore, Phoenix, Ariz., readdressed to Apt. O-12-E, 175 Riverside drive, New York (Contestant\u2019s Exhibit M-ll). (114) Postmarked envelope, Mrs. A. L. Erlanger, Hotel Biltmore, Los Angeles, postmarked 1-17-80 (Contestant\u2019s Exhibit 1-11). (115) Two postmarked envelopes addressed \u201c Mrs. A. L. Erlanger, Hotel Biltmore, Phoenix, Ariz., from Mrs. Lucian Denni, 1037 S. Holt, Los Angeles, Cal.,\u201d dated 1-18-30 (Contestant\u2019s Exhibit F-ll). (116) Stamped envelope, Hotel Algonquin, 59 West Forty-fourth street, from Amy Ashmore Clark, addressed to Mrs. A. L. Erlanger, Biltmore Hotel, Los Angeles, Cal. (Contestant\u2019s Exhibit N-ll). (117) Five envelopes from Mrs. McCulloch, postmarked four of them airmail, and one with a two-cent stamp, addressed to the Biltmore Hotel, Cal., one readdressed to 175 Riverside drive (Contestant\u2019s Exhibit\"E-ll). (118) Envelope postmarked Babylon, N. Y., from Mrs. Greve, p. 3590, \u201c Mrs. A. L. Erlanger, Biltmore Hotel, Los Angeles \u201d (Contestant\u2019s Exhibit J-ll). (119) Two envelopes from the Arizona-Biltmore Hotel, Phoenix, Ariz., from Mrs. Natalie Lewis (3590) to Mrs. A. L. Erlanger, 175 Riverside drive, New York city, dated 1-27-80 and 2- 11-80 (Contestant\u2019s Exhibit H-ll). (120) Letter dated 10-28-28, from J. Heulsenbeck, from the Radium Ore Re-vigor Company, *208New York, addressed to Mrs. A. L. Erlanger, 175 Riverside drive (Contestant\u2019s Exhibit V-10). (121) Letter, Cuevas Diaz, Cigars, New York city, dated 5-13-29, addressed to Mrs. A. L. Erlanger, 175 Riverside drive, New York (Contestant\u2019s Exhibit W-10). (122) Telegram 5-11-28, to A. L. Erlanger, steamship Columbus, expressing regret that he missed him. Wishes for his health and concluding \u201c Love to you and Charlotte. Bon Voyage and safe return,\" signed Flo Ziegfeld (Contestant\u2019s Exhibit R-10). (123) Letter from San Francisco, from the Consulate of Luxembourg to Mrs. A. L. Erlanger, 175 Riverside drive, Apt. 0-12-E, New York city, dated 10-22-28, addressed to \u201c My dearest Lottie \u201d and referring to Mr. Erlanger (Contestant\u2019s Exhibit Y-ll). (124) Letter, 3-5-30, from P. Reiter, Jr., addressed to Mrs. A. L. Erlanger, postmarked .3-5-30, letter opening \u201c My dear, dear Lottie,\u201d and referring to Mr. Erlanger (Contestant\u2019s Exhibit Z-ll). (125) Postal card postmarked Atlantic City, 2-11-29, addressed to Mr. \u25a0and Mr-s. A. L. Erlanger, 232 West End avenue from Evelyn L. Friedberg, c/o Boardwalk Art Gallery (Contestant\u2019s Exhibit B-12). (126) Application for visa for passport 3-12-28, .giving 150 West .Eightieth street as the present address; signed \u201c Abraham L. Erlanger \u201d (Contestant\u2019s Exhibit C-12).. (127) Bill, electric service, made out to Mrs. A. L. Erlanger, 175 Riverside drive, Apt. 0-12-E, covering period from 6-12-29 to 9-12-29, marked \u201c paid \u201d and stamped with the .finance department and bearing \u201c O. K., Pratt,\" immediately over the name \u201c Airs. A. Erlanger;\u201d also certain bookkeeping notations (Contestant\u2019s .Exhibit L). (128) Bill, electric service, 5-11-28 to 6-11-28, stamped with the stamp of the financial department, bearing the stamp, \u201c O. K., Pratt,\u201d immediately next to the address \u201cMrs. A. L. Erlanger, 175 Riverside drive, New York city \u201d \u25a0(Contestants Exhibit L). (129) Bill, electric service, addressed to Mrs. A. Erlanger, 175 Riverside drive, covering a period from 2-10-28 to 3-1,2-28, .stamped with the stamp of the financial department, with another stamp indicating that the charge is to the. account .of A. L. E., personal (Contestant\u2019s Exhibit L). (130) Bill, electric .service, dated 1-11-28 to 2-10-28, addressed to Mrs. A. Erlanger, 17.5 Riverside drive, stamped \u201c O. K., Pratt \u201d and with another stamp indicating that it was charged to the account of A. L. E., personal (Contestant\u2019s Exhibit L). (131) Bill, electric service, 4-11-38 to 5-11-28, addressed to Airs. A. Erlanger, 175 Riverside drive, bearing the stamp \u201c 0. K., Pratt \u201d and another stamp indicating that it was charged to the \u2022personal account of A. L. E., Riverside drive -(Contestants Exhibit L). (132) Bill, \u2022electric service, 3-12-28 to 4-H-38, .made out to Mrs. A. Erlangei;, ,1,75 Riverside drive, Apt. 0-12-E, stamped with the stamp of the *209financial department and with another stamp indicating that it is charged to A. L. E., personal account, Riverside drive, also stamped \u201c O. K., Pratt\u201d (Contestant\u2019s Exhibit L). (133) Bill, electric service, 10-11-28 to 11-10-28, made out to Mrs. A. Erlanger, 175 Riverside drive, Apt. 0-12-E, stamped with a stamp indicating that the bill was charged to the personal account of A. L. E. for home; also stamped with the 0. K. of Pratt (Contestant\u2019s Exhibit L). (134) Bill, 12-11-28 to 1-10-29, electric service, made out to Mrs. A. Erlanger, with the O. K. of Pratt upon it, the stamp indicating it was paid, and another stamp indicating that the bill was charged to the personal account of A. L. E., Riverside drive (Contestant\u2019s Exhibit L). (135) Bill, electric service, for the period 1- 10-29 to 2-13-29, made out to Mrs. A. Erlanger, 175 Riverside drive, Apt. 0-12-E, stamped paid with an 0. K. of Pratt, also stamped with another stamp indicating it was charged to the personal account of A. L. E., Riverside drive (Contestant\u2019s Exhibit L). (136) Bill, electric service, 2-13-29 to 3-12-29, made out to Mrs. A. Erlanger, 175 Riverside drive, Apt. 0-12-E, stamped with O. K. of Pratt (Contestant\u2019s Exhibit L). (137) Bill, 3-12-29 to-29, electric service, made out to Mrs. A. Erlanger, 175 Riverside drive, 0-12-E, stamped with 0. K. of Pratt, and 0. K. of Dillon, also bearing bookkeeping notations stamped on the back to indicate that it was charged to the personal account of A. L. E., Riverside drive (Contestant\u2019s Exhibit L). (138) Bill, electric service, 10-11-29 to 11-11-29, made out to Mrs. A. Erlanger, 175 Riverside drive, 0-12-E, stamped with 0. K. of Pratt (Contestant\u2019s Exhibit L). (139) Bill, electric service, 9-12-29 to 10-11-29, made out to Mrs. Erlanger, 175 Riverside drive, bearing on its face \u201c 0. K., Pratt,\u201d pencil notation, \u201c Riv. Drive \u201d (Contestant\u2019s Exhibit L). (140) Bill, electric service, 12-11-29 to 1-10-30, made out to Mrs. A. Erlanger, 175 Riverside drive, stamped with the 0. K. of Pratt, also stamped with another stamp indicating charge to the personal account of A. L. E. (Contestant\u2019s Exhibit L). (141) Thirteen checks to Electric Service Engineering Corporation drawn on the A. L. Erlanger special account by L. E. Bergman, who was general manager and Erlanger\u2019s nephew, of the following dates: 11-16-27, 12-24-27, 1-18-28, 2-24-28, 3-19-28, 4-18-28, 5-23-28, 6-20-28, 7-17-28,10-17-28, 11-21-28, 12-17-28, 1-15-29; also five checks to the order of the Electric Service Engineering Corporation, drawn on the A. L. Erlanger special account and signed by M. Pratt, Jr., and Saul J. Baron, upon the following dates: 2- 16-29, 3-22-29, 4-16-29, 6-18-29, 1-17-30 (Contestant\u2019s Exhibit M-12). (142) Three checks to the order of the Electric Service *210Engineering Corporation, drawn on A. L. Erlanger special account and signed by Saul J. Baron and M. Pratt, Jr., on the following dates: 9-23-29, 10-21-29, 11-23-29, and one check to the order of New York Telephone Company, drawn on A. L. Erlanger special account, signed by Saul J. Baron and M. Pratt, Jr., dated 2-17-30, and nine checks order of Elesel Holding Company, Inc., drawn on A. L. Erlanger special account, signed by Saul J. Baron and M. Pratt, Jr., on the following dates: 7-1-29, 8-1-29, 11-1-29,11-4-29, 12-2-29, 12-2-29, 1-1-30, 2-1-30, 3-1-30; one check Consolidated Gas Company, A. L. Erlanger special account, signed Saul J. Baron and M. Pratt, Jr., dated 12-31-29 (Contestant\u2019s Exhibit N-12); these fourteen checks were for electricity, rent, phone and gas. (143) Letter from Dr. Gustave Paul, dated 12-3-29, addressed \u201cMy dear friends, my dear Charlotte and my dear A. L. E.,\u201d expressing his friendship to them and concluding \u201c with the most hearty greetings, I am, in love and devotion, your G. Paul \u201d (Contestant\u2019s Exhibit H-12). (144) Letter (1-29-30) from Dr. Paul to \u201c My dear friends,\u201d expressing his joy over learning that \u201c both of you are in good health,\u201d and signed \u201c Your true friend, Paul \u201d (Contestant\u2019s Exhibit J-12). (145) Envelope with canceled stamp thereon, addressed to Mr. and Mrs. A. L. Erlanger, 175 Riverside drive, New York city, U. S. A. (Contestant\u2019s Exhibit K-12). (146) Letter dated 6-28-29, to Robert H. McConnell, M. D. (Erlanger\u2019s physician and a witness fqr contestant), as follows: \u201cMy dear Doctor, thanks for your fine attention, Yours, A. L. Erlanger,\u201d in Erlanger\u2019s handwriting (Contestant\u2019s Exhibit M-13). (147) Telegram Dillingham to contestant as follows: \u201c Western Union, 1927, Dec. 16, p. m. 9:15, Received at GZ A480 33 N.L.W. 12 MK, Springfield, Mass. 16, Mrs. Erlanger, 175 Riverside drive, New York, N. Y. On return to New York and next week contracts made with Boss today require Betty Brown Pudding with dinner as they are unique and extraordinary have placed case in equity hands, love to both \u201d (Exhibit R-14) Charlie (Dillingham). (148) Letter dated 7-7-28 (Exhibit M-14), Dillingham to contestant, in part as follows: \u201c July 7,1928. Dear Charlotte: Your letter of June 26th is received and I was very glad to hear from you and to learn that you and Abe are fine. Best love to you and Abe and, as Jay Gould said to his sons when he gave them the Missouri, Texas & Pacific R.R.\u2019s: \u2018 I hope these lines will find you well.\u2019 Sincerely, Charlie (Dillingham).\u201d"], "id": "af50c074-91b9-4616-8e01-f04865658373", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Morales did not file his motion in the face of any removal proceeding. Rather, he filed it as part of his effort to obtain legal status in the United States. He stated in a declaration that he had been a victim of a store robbery in East Palo Alto in 2009, and that he had assisted law enforcement's investigation of that crime. He contended that his assistance made him eligible to *780receive a \"U ,\" a temporary nonimmigrant visa created by Congress to provide legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized. (See 8 U.S.C. \u00a7 1101(a)(15)(U) ; Fonseca-Sanchez v. Gonzales (7th Cir. 2007) 484 F.3d 439, 442, fn. 4.) Morales further declared he had submitted a U visa application, that this application was pending, and that it included a written certification from a law enforcement official that he had cooperated in the investigation of the store robbery. In this certification, a copy of which Morales attached to his declaration, a law enforcement official identified Morales as the victim of armed robbery, false imprisonment and felonious assault, or attempts to commit these crimes, and stated that Morales had cooperated in the investigation and prosecution of the perpetrators."], "id": "199a23e1-84cb-4bab-9125-927ee140e237", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["marriage with Ms. Rakes for consideration and to obtain immigra- tion benefits. In September 2011, DHS filed a Notice to Appear that initi- ated removal proceedings against Mr. Knezevic. The Notice to Ap- pear charged Mr. Knezevic with removability under 8 U.S.C. \u00a7 1227(a)(1)(D)(i) as a noncitizen whose conditional permanent resi- dent status was terminated. In February 2012, Mr. Knezevic admit- ted the allegations in the Notice to Appear but denied the charge of removability. The IJ concluded Mr. Knezevic was removable as charged. Because of a pending petition, the IJ continued Mr. Knezevic\u2019s case. In December 2011, Mr. Knezevic married Rachael Knezevic. In September 2012, Mrs. Knezevic filed a visa petition on behalf of Mr. Knezevic. In August 2013, the United States Citizenship and Immigration Services (USCIS) issued a notice of its intent to deny Mrs. Knezevic\u2019s visa petition because of Mr. Knezevic\u2019s fraudulent marriage to Ms. Rakes. In response, Mr. Knezevic filed affidavits and evidence to show that his marriage to Ms. Rakes was bona fide. Ultimately, USCIS denied his petition. After USCIS denied his visa petition, Mr. Knezevic sought a waiver of inadmissibility under 8 U.S.C. \u00a7 1227(a)(1)(H). 1 At the"], "id": "6bc97a8e-51b0-4b43-8aa0-b1fd84669ced", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*638In February 2013, the Coalition Against Slavery and Trafficking (CAST) contacted the FBI and reported that Siti was a victim of human trafficking. During interviews with FBI and LAPD investigators, Siti stated she had been recruited by Halim's sister in Indonesia to work for defendants. Halim's nephew helped procure a for Siti, and instructed her to misrepresent their relationship and the purpose of her travel to the United States. Siti believed she had a two-year contract and would be paid $250 each month plus a $50 monthly stipend during the first year. Two days before she departed to the United States, she was presented with a five-year contract and felt obligated to sign it."], "id": "17ac9478-545d-4ff8-bea2-ad76a2643696", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The trial court appears to have deemed Kao a trainee in the months before his work application was approved. The court stated, \"For the brief time before the [February 2010] work agreement was in place plaintiff was only *588in the United States as a guest of Harry Chen and Jessy Lin. He was at Joy Holiday to determine if this was the type of job that he wanted to pursue. During this time, Harry Chen and Jessy Lin provided plaintiff with money to live on while waiting for results on his visa petition.\""], "id": "dd8d7feb-5031-48df-b982-168139b6e2fc", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["In any event, defendant\u2019s expired was merely one factor to consider in his determination of whether to plead guilty, which the Appellate Division has considered to be \u201ca calculus, which takes into account all of the relevant circumstances\u201d {Picea, 97 AD3d at 183). Consequently, we cannot conclude on this record alone that defendant suffered no prejudice due to his counsel\u2019s failure to warn him of the immigration consequences that flowed from his decision to plead guilty (see People v Reynoso, 88 AD3d 1162 [2011]; People v Williams, 72 AD3d 1347 [2010]). Moreover, since defendant demonstrated that issues of fact exist as to whether it would have been a rational decision for him to have rejected the plea offer, and there were other factors for the court to consider when determining whether prejudice had resulted (see Peque, 22 NY3d at 199; Picca, 97 AD3d at 184), in order for the Criminal Court to make the required \u201cfindings of fact essential to the determination\u201d of the motion (CPL 440.30 [5]), a hearing is necessary, as a proper determination of the motion called for factual findings which could not be summarily made (see CPL 440.30 [5]; Reynoso, 88 AD3d 1162; Williams, 72 AD3d 1347; People v Wilson, 48 Misc 3d 129[A], 2015 NY Slip Op 50976[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Hassan, 36 Misc 3d 160[A], 2012 NY Slip Op 51823[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012])."], "id": "e6dd5e99-28dc-4d6a-a8d1-2483b819a401", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["It is set forth on behalf of Marine that in June, 1979 about one year after defendant had received the improperly issued credit slip and after the bankruptcy of Constantine Gems, he did contact Marine \"about a possible credit to this Master Charge\u201d. Marine did not credit defendant\u2019s account because defendant\u2019s Master Charge account was never charged for the purchase for which he sought a credit, no check was received by Marine from the merchant for the purchase for which a credit was sought, the 120-day period in which to charge back to a merchant the amount of a credit slip issued by the merchant but not processed against the cardholder\u2019s account had expired, and Marine\u2019s voluntary attempt on behalf of *471defendant to collect the amount of the returned purchase from the merchant had been unsuccessful."], "id": "eb968eac-2c9d-4ca7-8c1d-0186b0efb164", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["on or about the 23rd day of December, 2013, ERIC WAYNE DONALDSON, hereinafter styled Defendant, with intent to harm or defraud another, did then and there obtain, possess, or use identifying information of Patricia Ross without the consent of Patricia Ross and the number of items of identifying information obtained, possessed, or used by the said ERIC WAYNE DONALDSON was 5 or more but less than 10, to-wit: 1. A Texas Driver's License bearing the government issued identification number [driver's license number], belonging to Patricia Ross,4 2. A Chase Debit MasterCard, bearing the financial institution account number ending in 7235, belonging to Patricia Ross, 3. A Wells Fargo Card bearing the financial institution account number ending in 7779, belonging to Patricia Ross, 4. A Capital One MasterCard bearing the financial institution account ending in 1993, belonging to Patricia Ross, 5. A Capital One MasterCard bearing the financial institution account number ending in 4439, belonging to Patricia Ross, 6. An American Express card, bearing the financial institution account number ending in 7070, belonging to Patricia Ross, 7. A Beall's credit card, beaning the financial institution account number ending in 3824, belonging to Patricia Ross, 8. A Best Buy credit card, bearing the financial institution account number ending in 2418, belonging to Patricia Ross, 9. A Wal-Mart credit card, bearing the financial institution account number ending in 2401, belonging to Patricia Ross[.] The units of prosecution alleged in this count include Ross's driver's license number, which constitutes an item of identifying information under subsection (a)(1)(E) (\"other government-issued identification number\") of the statute;5 Ross's debit card number, which constitutes an item of identifying information under subsection (a)(1)(C) (\"financial institution account number\"); and seven different credit card numbers of Ross's, which each constitute an item of identifying information under subsection (a)(1)(C) (\"financial institution account number\"). See Tex. Penal Code \u00a7 32.51(a)(1)(C), (E)."], "id": "5e818cb3-1db2-4b49-9f46-5f1620519d4a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["A Rule 24 intervenor must have standing. Sault, 331 F.R.D. at 9. Neither Plaintiffs nor Defendants question whether Intervenors have standing, and the Court finds Intervenors possess standing. If the Court were to set aside USCIS\u2019s new rules, the individual Intervenors would have to pay more in attorneys fees to file H-1B petitions (injury) because of the change in the rules (causation) and that injury can be avoided if the Court does not set aside the rules (redressability). See Fund For Animals, Inc. v. Norton, 322 F.3d 728, 732\u201333 (D.C. Cir. 2003). ITServe Alliance, Inc., has associational standing because, as just demonstrated, its individual"], "id": "6c3a05d8-2bc2-4601-9a3d-c14151a8f514", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The complaint alleges that in 2005, an associate of defendant Bastianich offered plaintiff, then residing in Venice, a position as a chef managing and overseeing kitchens for both Bastianich\u2019s television show and defendants\u2019 restaurants. Plaintiff alleges that she was to receive not less than $600 per week for 40 hours *547of work. Bastianich, through her company Tavola Productions, sponsored plaintiff\u2019s application for an H2-B . H2-B visas are only available to individuals who can demonstrate a certain level of education or a specialty occupation. The visa application represented that plaintiff was to serve as a test kitchen and menu preparation coordinator at a salary of not less than $600 per week."], "id": "f5dd52e5-758e-4d7a-9e06-f9322cc14b4b", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["Defendant states in his answering affidavit that the first statement he received from after obtaining the credit slip was on about July 26, 1978, and it showed no credit for the ring. He presumed, he states, that it was because the attendant paperwork had not been processed. Mr. Carlson claims that afterward he moved and heard nothing from Visa until his wife was contacted by phone by plaintiff on September 16, 1978. A letter to plaintiff from the Carlson\u2019s postmarked September 17, 1978 contained the purchase and credit slips."], "id": "673c9801-36d6-4b60-917d-6820d1d49d89", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["To be distinguished is Katz Park Ave. Corp. v Jagger (46 AD3d 186 [2007]), in which a sharply divided panel of the Appellate Division, First Department, held that the tenant, a British citizen temporarily staying in the United States under a tourist , was precluded, as a matter of law, from maintaining a primary residence in a rent-stabilized apartment in New York City. Unlike the situation in the case at bar, it was the tenant\u2019s immigration status as a \u201ctemporary visitor,\u201d not any self-initiated declaration of residence, that was determined in dagger to be fatal to that tenant\u2019s primary residence claim."], "id": "00f769cd-8097-4fef-b210-e7b3d3292726", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The facts as' found by the court relate an oft-repeated story and warrant serious consideration. Plaintiff had met defendant Shamsher Wadud (the principal owner of the Nirvana Restaurant) in August of 1972 in Bangladesh, at which time and place, the defendant offered to employ plaintiff at his restaurant in New York City. The agreement called for plaintiff to serve an apprentice period of about three months without salary, at the end of which time he would receive a waiter\u2019s salary, and eventually, become the manager of the restaurant. It is conceded by both sides that defendant Wadud did make all and travel arrangements."], "id": "e3a682f7-6e98-4818-8080-043dbb6bea78", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The immigration laws and regulations are uniquely designed statutes to control and facilitate foreign entry to this country. Because of the infinite variations of problems involved in migrating, anomalous situations can arise under this law. One such situation arose in this case. For it is obvious from the statutes involved that during the pendency of her application Ms. Redgrave was a nonimmigrant alien for some purposes (Matter of Hosseinpour, supra) and an immigrant alien for others (US Code, tit 8, \u00a7 1101, subd [a]; \u00a7 1184, subd [b]). Or paradoxically, in the best Gilbert and Sullivan tradition, she simply had no immigration standing at all. This view is both supported by Immigration\u2019s own interpretation of the law, submitted as an exhibit on consent, and the fact that it was necessary for Ms. Redgrave to obtain a parole to leave the country during the pendency of the application."], "id": "c73cf10a-924a-4cd2-b942-6a2e32cdf365", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["The facts here therefore are not analogous to Zador and , because Sheppard Mullin (1) failed to inform J-M about any potential or actual conflict with South Tahoe, and (2) did not obtain J-M's informed, written consent to continued representation despite the actual conflict that occurred while Sheppard Mullin was working for J-M and South Tahoe at the same time. Written consent to all potential and actual conflicts in the absence of any knowledge about the existence of such conflicts cannot comply with the requirement of \"informed written consent\" in Rule 3-310(C). Because Sheppard Mullin failed to secure informed written consent to the conflict before or during its representation of J-M, the Agreement violated Rule 3-310.6"], "id": "1b772370-862b-44a3-b47b-0920189cee4a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Melita testified that she wished to move to Canada to further her education, beginning with completing her Bachelor of Science degree and then moving on to medical school, stating that it \"will be better for the kids if I get a better job and have a more stable financial situation.\" Melita also stated that moving to Canada would allow her parents to be involved in the children's lives. She explained that her parents live in Romania and that it had been difficult for them to obtain a to *714visit them in the United States; however, Romanians can travel to Canada without a visa."], "id": "a8884d15-dd6f-48ca-98e5-bd2cd038172d", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The respondent was appointed administrator upon the petition of a sister of the deceased who is now herself deceased. The pleadings in this proceeding, as well as the evidence, disclose that at the time when the application for letters of administration was made the sister was a citizen of Poland and was in this country under a diplomatic . She was not an inhabitant of this State *689within the meaning of subdivision 3 of section 94 of the Surrogate\u2019s Court Act (Matter of Gaffney, 141 Misc. 453). As an alien, not an inhabitant of this State, she was not competent to receive letters of administration (Matter of Findlay, 253 N. Y. 1; Matter of MacMillan, 133 Misc. 570), and being herself incompetent she could not designate a nominee to act as administrator. (Matter of Mora, 133 Misc. 254; Matter of Marret, 152 Misc. 713.)"], "id": "c9442ccb-b226-47c9-9454-0634a7dead8e", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Gani met Caesar a second time on November 29, 2006, on which occasion she assisted him with his application for the school, and provided him with an acceptance letter (tr at 16; claimant\u2019s exhibit 6). Gani then had two options to obtain legal status as a student in the United States: first, he could return to Turkey and apply for an F-l student at the United States Consulate there (tr at 103),3 or second, he could remain in the United States and file an 1-539 application (Application To *745Extend/Change Nonimmigrant Status) to adjust his status to that of a full-time F-l student (tr at 104, 107).4"], "id": "ce5b27b1-9804-439e-9649-51393289c021", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["8 DHS also observes that Congress would have been fully aware of the existence of categories of nonimmigrants who did not require visas to be admitted to the United States when it enacted section 922(g)(5)(B). The Waiver Program had been in effect for twelve years at the time Congress debated section 922(g)(5)(B), and Canadian and Mexican nationals in possession of border crossing cards had long been permitted to enter the United States without a nonimmigrant visa. See DHS Letter at 7; see also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (\u201cWe assume that Congress is aware of existing law when it passes legislation.\u201d)."], "id": "fbf55e09-734b-40eb-ae1d-7c48ff1d835e", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["At the time, the United States had a moratorium on adoption of Cambodian children, so the only way for Chan to enter the U.S. was through a humanitarian based on alleged medical problems. Once here, ERJ and LMB tried several schemes to have LMB adopt the child through his alleged membership in an Indian tribe, or in Trinidad and Tobago, where LMB was born, and which citizenship he re-obtained in efforts to avoid the U.S. moratorium. During this time, Chan, now called William, lived with ERJ where he was cared for by a nanny who had raised ERJ\u2019s other, biological children. LMB was a constant visitor, was acknowledged as William\u2019s father, and he and his family were very much a part of William\u2019s life."], "id": "52dfce3e-d877-4562-9026-a568aa4154bc", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["one of Lozada\u2019s requirements: He had not given his former counsel a chance to respond to his allegations of ineffective representation. Finally, in Matter of J-E-C-, the lead respondent, a native and citizen of Colombia, was admitted to the United States in 2000 on a six-month . His wife and children, also respondents, were admitted in 2001, on six- month visas as well. Lead respondent then sought asylum, withholding of removal, and protection under the Convention Against Torture on his own behalf and derivatively for his wife and children. In 2003, the Department of Homeland Security found respondents ineligible for relief and began removal proceedings. In those proceedings, lead respondent conceded removability, but renewed his application for asylum and withholding of removal. The Immigration Judge denied relief, concluding that, among other things, lead respondent had failed to demonstrate persecution \u201con account of\u201d a protected ground, and ordered respondents removed. Re- spondents\u2019 lawyer filed a notice of appeal with the Board alleging four points of error, but the Board never received a brief in support of the ap- peal. Notwithstanding the absence of a brief, the Board addressed the four points of error on the merits, and affirmed what it called the \u201cthorough and well-reasoned decision\u201d of the Immigration Judge. Thereafter, respondents moved to reopen, contending that counsel\u2019s failure to file a brief constitut- ed ineffective assistance and submitting a copy of the brief they would have submitted. In April 2008, the Board denied respondents\u2019 motion. Noting its previous decision addressing the merits of the claims, and re- viewing those claims again, the Board concluded that respondents had suffered no prejudice from the failure to file a brief because a brief would not have changed the outcome of their proceedings."], "id": "2e4c9d77-6c73-4ec6-88ba-a50cd8045c49", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Anomalies occur in the law. It would seem incongruous that persons may enter upon a valid marital relationship; yet, in spite of the rights that the relationship confers upon both to that relationship, it is claimed a divorce decree may not be granted because a party to the marriage was in the jurisdiction of the court on a transit issued by the United States Government. If the marriage had taken place it might have been induced by fraud. One of the parties may forsooth be innocent, incapable of entering into a valid marriage, or fraud might be practiced to induce the marriage. If a divorce action is not maintainable because the party suing here is on a transit visa, it would seem that no proceeding for an annulment would be entertained. That appears anomalous. As already said, marriage confers obligations and it also confers rights, and these rights cannot possibly be limited to one of the parties; they must be enjoyed equally by both of the parties. If the citizen may sue for divorce from a person who is here on a transit visa, it would be discriminatory against such person if he were denied equal opportunities and protection of the law, and the right to enjoy the same rights."], "id": "27d21183-0e28-43b8-a3c6-f3359122ae61", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*90Around the same time, defendant proposed marriage to J.C. J.C. thought the proposal was \"absurd,\" especially in light of the fact that defendant was still married to someone else. When J.C. declined, defendant became very angry. She accused J.C. of not loving her, and explained that her was expiring and she would not be allowed to remain in the United States. The *1136couple argued about where to raise V., with defendant wanting to return to South Korea and J.C. wanting to remain in the United States. During one such argument, in August 2009, J.C. punched a wall with such force that he broke his hand."], "id": "f7a4f87b-f6b3-4bc8-9838-3a882c864b86", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["In May, 1977, having secured employment in the United States, more particularly in New York, plaintiff came here on an E-2 treaty trader . Defendant wife followed plaintiff here in September, 1977 as a spouse under a similar visa. Both of the foregoing visas expire in 1981. Plaintiff subsequently obtained a B-2 visa which is indefinite. Upon her arrival here defendant wife also obtained employment."], "id": "0255e11d-7f85-44b0-af03-e20df3b5e280", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Petitioner, Solomon Racenstien, father of the decedent, contends that respondent divorced decedent in Iran, upon moving there after leaving decedent and their marital home. He argues that respondent should therefore be disqualified as a surviving spouse pursuant to EPTL 5-1.2 (a) (3) and (5) because of their divorce and respondent\u2019s abandonment of decedent. Respondent argues that he never divorced decedent and, in fact, returned to Iran only after his expired here upon the completion of his residency in internal medicine. Respondent states that he was required to leave the United States at that time, and was ineligible to apply for a visa to return to this country for two years thereafter."], "id": "a6d2d70a-08b7-4859-a43f-b8613b1bd373", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["On May 13, 2010, the hotel received a completed agreement from Joseph Rizzuti, Catalfamo\u2019s business associate who had initially introduced him to defendant. The authorization was declined, however, when the hotel attempted to charge the outstanding balance to Rizzuti\u2019s card on the morning of May 14. That same day, the hotel received notice from stating that the company was declining all prior charges made to Mark Barden\u2019s account between April and May. Consequently, after the \u201cchargebacks\u201d from the credit cards of Catalfamo and Mark Barden, the hotel had not received payment for approximately $50,000 worth of charges that defendant had incurred between March and May. Several hours later, on May 14, Angulo called the police, and defendant was arrested."], "id": "0f2d172a-93b5-4773-8640-52635642a6ec", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The superior court's conclusion that Morales could not prosecute his motion in the absence of removal proceedings based on section 1473.7, subdivision (b) is contradicted by the plain language of section 1473.7, subdivision (a)(1). It authorizes a noncitizen to pursue a motion to vacate a conviction due to an error that has compromised his or her ability to address *510\"adverse immigration consequences,\" without limitation. Specifically, it authorizes a noncitizen no longer imprisoned or restrained to \"prosecute\"4 such a motion because of prejudicial error that damaged his or her \"ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences \" of a no contest plea. ( \u00a7 1473.7, subd. (a)(1), italics added.) The phrase \"actual or potential adverse immigration consequences\" *783is broad and encompasses circumstances other than removal, such as, for example, the one Morales has asserted: his claimed inability to obtain temporary legal status in the United States via a U , for which he purportedly would qualify if not for his conviction."], "id": "52fa29b9-b8bc-4ffb-babf-958575798ab4", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Petitioner is a nonresident alien, having entered the United States from the Bahamas, holding a passport issued by the *396Bahamian Government containing a granted by the American Embassy for entry into this country as a tourist. Thereafter, in violation of a condition for entry as a tourist, she obtained employment as a domestic, and her passport expired in February, 1973 at which time her application for an \u201c Alien Employment Certification \u201d was not finalized. She became ill in May, 1973 and was hospitalized in the New Rochelle Hospital in Westchester County and the Westchester County Department of Social Services denied her application for medical assistance; which determination after a \u201cfair hearing\u201d was confirmed by the New York State Department of Social Services."], "id": "58259c9b-a4de-48a7-8131-cca90ad1fff9", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["tional,\u201d as it is possible that Congress considered those aliens eligible for admission to the United States without a nonimmigrant to be a \u201clesser security risk\u201d than aliens admitted with visas. DHS Letter at 8\u20139. After all, Congress has tied the decision whether to waive visa requirements to judgments about a waiver\u2019s effects on public safety, and Congress here could have concluded that nonimmigrant aliens who do not require visas do not present the public safety risks that warrant prohibiting their acqui- sition of firearms. See id. at 8. 9 Other factors may also explain why Congress decided to treat nonim- migrant aliens eligible for visa waivers differently from nonimmigrant aliens admitted under visas. For example, nonimmigrants admitted under the Visa Waiver Program may well spend less time in the country than other nonimmigrants, see 8 U.S.C. \u00a7 1187(a)(1) (2006) (imposing 90-day limit on aliens admitted under Visa Waiver Program), perhaps making them less likely to purchase firearms. Congress also could have thought that imposing criminal firearms prohibitions on nonimmigrant aliens admitted under the program would frustrate the objectives of the program, which include reducing barriers to and burdens upon travel. See Depart- ment of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/ temp/without/without_1990.html (last visited Oct. 21, 2011) (\u201cThe pro- gram was established to eliminate unnecessary barriers to travel, stimulat- ing the tourism industry, and permitting the Department of State to focus consular resources in other areas.\u201d). Congress (or some members thereof) ultimately could have had all, some, or none of these considerations in mind. Whatever Congress\u2019s motivation, these rationales demonstrate that it would have been rational for Congress to draw a statutory line between nonimmigrants with visas"], "id": "9a8b78c5-ec56-4438-ab93-ac4f76df5ce9", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The nominee of the sister, who was appointed as administrator, was at the time of his appointment a nonresident alien concededly being here under a diplomatic and therefore with temporary status in the United States. (Matter of Gaffney, supra.) Thus even if the sister had been competent to designate the respondent, which she was not, he was not competent to serve. His appointment, therefore, fails to meet the statutory requirements on either of two independent grounds."], "id": "fa62f8a7-f7af-4a25-9359-4fac05769c18", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["hearing before the IJ, Mr. Knezevic testified that after his H-2B expired, Ms. Stevanovic said that she could find him some options to help him get his green card faster. Mr. Knezevic testified that marrying Ms. Rakes was mistake and that he felt that he had to stick to his story that the marriage was bona fide. Ultimately, on cross- examination, Mr. Knezevic admitted to paying Ms. Rakes $1,000 to marry him. The IJ issued a written decision and made an adverse credi- bility finding against Mr. Knezevic based on his fraudulent misrep- resentations for over ten years about his prior marriage to Ms. Rakes along with other inconsistences in his testimony and the rec- ord. The IJ also determined that Mr. Knezevic met the statutory requirements for a waiver of inadmissibility under 8 U.S.C. \u00a7"], "id": "a9bcca7d-4f02-4e5c-aded-634ffd6a8bb3", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["\u201cAs the underlying policy objective for an agency to act on behalf of a foreign medical graduate is to provide primary health care to the residents [in areas without adequate access to medical care], the contract shall not include a non-compete clause enforceable against the foreign medical graduate. This provision is adopted to insure that the foreign medical graduate is not forced to leave a HPSA ... or MUA at the end of his or her contract.\u201d Prohibition of a noncompete clause in foreign medical graduate employment contracts submitted for approval, under the circumstances considered here, remains the public policy of the United States (see 22 CFR 41.63 [c] [4] [i])."], "id": "214d7d5e-a1d4-487b-bde6-33d5ca3bc902", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Ramani applied to the USDA for the appropriate and submitted the employment contract for review and approval. On July 23, 1997, the USDA advised Ramani and Prime that the noncompete clause forbidding Ramani from practicing medicine in the subject area, except as Prime\u2019s employee, \u201c[djefeats the purpose of the waiver program.\u201d The USDA directed the parties to delete the noncompete clause."], "id": "79cf62c2-f6ac-44a2-b603-d8f9475abd0d", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Kao alleges defendants failed to furnish any wage and hour statements from the start of his employment in March 2009 through February 2010, when he was *592granted a work and, thereafter, furnished inadequate statements that failed to accurately itemize his gross wages earned and total hours worked. As indicated above, the trial court found that Kao was not entitled to wage statements before receiving his work visa because he was a non-employee \"guest\" who received no wages, only a \"living allowance.\" The court further found that Kao was as an exempt employee following receipt of a work visa and, as such, provided sufficiently itemized statements. These findings are undermined by our determination that Kao was, in fact, a non-exempt employee throughout his time at Joy Holiday."], "id": "a9e848bf-2c99-45d9-8251-3bd83fd7cd88", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Among the exhibits which have been submitted to the court on this motion is a letter of one O\u2019Connor, Commissioner, Displaced Persons Commission, United States Government. This letter, dated November 29,1948, referring to the Displaced Persons Act of 1948 and addressed to the National Lutheran Council, reads in part as follows: \u201cWe are aware that you have had a number of questions concerning the public charge feature of the Displaced Persons Act of 1948. The following explanation may be given to anyone who raises this question with you: The law requires that assurances be given against the alien\u2019s becoming a public charge. Although this does not constitute a legally *619enforceable undertaking, it should be predicated upon good faith and an honest resolve so to guide the alien\u2019s activities and welfare as to give reasonable assurance against the likelihood that he may become a charge upon the public.\u201d Another letter, by one Rosenfield, acting chairman of the Displaced Persons Commission, dated June 12, 1950, also addressed to the National Lutheran Council, reads in part as follows: \u201c As you know, on the assurances which are filed in behalf of a displaced person, the sponsor assures that the displaced person shall not become a public charge. However, the Commission has interpreted this responsibility on the part of the sponsor to be a moral obligation only, and not a legally enforceable undertaking.\u201d As long ago as March 1, 1939, one Shaughnessy then deputy commissioner of immigration, wrote to a member of Congress, Mr. Seeger, in part as follows: \u201c A person who files an affidavit of support for the purposes of facilitating the issuance of a to an applicant does not thereby incur legal responsibility so far as the immigration laws are concerned, although it should be understood that a most serious moral obligation is undertaken by the affiant. \u2019 \u2019"], "id": "4194d1ae-667c-40b7-94a3-214368a299b7", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The Columbia-Greene area had been designated a Medically Underserved Area (MUA) by the United States Department of Agriculture (USDA) and a Health Professional Shortage Area (HPSA) by the United States Department of Health and Human Services. Because of these federal designations, Ramani, a citizen of India, was entitled to participate in a program administered by the USDA which waived certain work requirements."], "id": "ae0c2a52-68f0-4702-83a5-6f0a49c86ca8", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["In opposition, counsel for the respondent, the decedent\u2019s cousin, submits an affirmation alleging that the exhibits annexed to the petitioner\u2019s motion appear to be spurious. Although he submitted a Freedom of Information Law request to the Embassy to verify that applications were filed, counsel notes that the Embassy never responded to his request. In the event that the court grants this application, the respondent requests that the depositions be conducted before a consular agent with an interpreter acceptable to him and his own Indian counsel."], "id": "88b78336-a13d-4247-a48c-2dd1013560f9", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["(2) Patrick Cassidy, the brother, in bis answer requests among other alternatives that he be appointed as the new administrator. Evidence on the question of his competency to receive letters was submitted to me. The issue is whether he is disqualified by reason of the provisions of subdivision 3 of section 94 of the Surrogate\u2019s Court Act, which provides that no person is competent to serve as an administrator who is an \u201c alien not an inhabitant of this state.\u201d He is a citizen of the Irish Free State. He arrived in this country only recently under a passport which has been received in evidence. That passport contains the of the American Consul at Dublin, Ireland, which recites that the visa was granted to him as a \u201c non-immigrant \u201d under the Immigration Act of 1924.* His classification is stated in the visa as \u201c Temporary Visitor.\u201d The passport also contains a notation by the Immigration Inspector on his arrival at New York on June 15, 1931, that he was admitted under the Immigration Act for three months. Patrick Cassidy now claims that he intends to reside permanently within the United States. Despite his claim and his present intention, I hold that he is not an inhabitant of the State under the meaning of section 94 of the Surrogate\u2019s Court Act."], "id": "e70c0b88-2929-45ff-ad39-d82b8a961ec8", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["A provision of the federal Gun Control Act prohibits any \u201calien\u201d who has \u201cbeen admitted to the United States under a nonimmigrant visa\u201d from shipping, transporting, possessing, or receiving \u201cany firearm or ammunition\u201d that has a connection to interstate commerce. 18 U.S.C. \u00a7 922(g)(5)(B) (2006). In 2002, the Bureau of Alcohol, Tobacco, Fire- arms and Explosives (\u201cATF\u201d) issued an interim final rule interpreting this prohibition to apply to any alien who has the status of \u201cnonimmi- grant alien,\u201d regardless of whether the alien required a in order to be admitted to the United States. See 27 C.F.R. \u00a7 478.32(a)(5)(ii) (2011). In March 2011, in response to a request for informal advice regarding ATF\u2019s interpretation, we concluded that the text of the statute forecloses that interpretation. We explained that the text is clear: the provision applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status. In May 2011, you requested a formal opinion from the Office on this matter.1 This memorandum memo- rializes and elaborates upon the informal advice we provided in March. In the course of formalizing our advice, we received views from the Depart- ment of Homeland Security (\u201cDHS\u201d), 2 which also concluded that the"], "id": "c026bc74-40ea-4ece-9d01-6d12666be0a6", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The Criminal Court decided that defendant\u2019s motion could be conclusively resolved without a hearing on the second Strickland ground of prejudice, finding that defendant had failed to assert that, but for this plea, he would have any basis on which to remain in this country, to resist removal, or to seek any relief from an immigration court since, subsequent to the entry of his plea, a removal proceeding had been commenced against him based on the expiration of his . The court held that defendant was not prejudiced by counsel\u2019s performance because the ground for his removal from the United States, as alleged in the immigration court\u2019s notice to appear, was unrelated to the instant conviction and because he did not demonstrate that, had he been advised of the mandatory deportation consequences of taking the plea, he would have chosen to go to trial since \u201c[b]y going to trial he would have risked jail for no potential benefit to his status in this country.\u201d"], "id": "9d27d3c9-95af-4fe2-9a6d-4a67482f7227", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["authority to hear a case. In re Bonvillian Marine Serv., Inc., 19 F.4th 787 (5th Cir. 2021) (overruling precedent holding that the six-month time limit for bringing a limitation of liability action is jurisdictional). But because we conclude there is no mandatory exhaustion requirement for the denial challenge here, we need not consider whether our precedent treating the finality requirement as jurisdictional survives. The Associate Commissioner for Examinations delegated this authority to USCIS\u2019s Administrative Appeals Unit. 8 C.F.R. \u00a7 103.3(a)(iv)."], "id": "2d6a0226-1fd8-4e85-a37e-076661806a5f", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Gani is a Turkish national who obtained a B1/B2 temporary- to visit the United States from the United States Consulate in Turkey in September 2005 (claimant\u2019s exhibit 11).1 Under that visa, he first came to this country in September 2006 (see defendant\u2019s exhibit E). The visa allowed him to stay in the United States only until March 20, 2007 (trial tr at 28; claimant\u2019s exhibit 7 at 16)."], "id": "e0de6e46-4cd6-4c00-bc5e-147bcbea42f4", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Although we have limited the sanction of presumptive disbarment to cases involving reckless or intentional misappropriation and the conviction of crimes involving moral turpitude, we have also disbarred counsel in those cases where the underlying facts and aggravating circumstances require such a sanction including when we have determined that the attorney\u2019s intentional dishonesty rises to the level of flagrant dishonesty. See, e.g., In re Bleecker, 11 A.3d 1224 (D.C. 2011) (disbarring an attorney as reciprocal discipline where the state of Maryland disbarred respondent after it found that in filing a civil complaint he misrepresented the day of the injury to hide his failure to file a complaint within the statute of limitations and that his actions were detrimental to his client and wasted court time). Contrary to respondent\u2019s arguments, we have previously held that flagrant dishonesty does not require an associated misappropriation or that the dishonest statement be made either under oath or as part of a court proceeding. See, e.g., In re Bynum, 197 A.3d 1072, 1074 (D.C. 2018) (court accepted the Board\u2019s findings and conclusion that respondent\u2019s multiple violations rose to flagrant dishonesty absent a lack of an attempt to fraudulent obtain client or public funds, where the intentional dishonesty is aggravated or prolonged, continues through the disciplinary process, and where respondent demonstrates no remorse and attempts to shift blame for his misconduct on others). While many prior cases have involved additional misconduct, we look to the totality of the misconduct in determining whether the dishonesty was flagrant and have considered whether the intentional dishonesty was an attempt to hide other misconduct and blame others for his misconduct. See, e.g., In re Kanu, 5 A.3d 1 (D.C. 2010) (although other factors were present, the court found flagrant dishonesty where counsel failed to return his fee to clients if their applications were not successful, failed to communicate the outcome of the visa proceedings or respond to clients\u2019 request for the refund of their fees, and subsequently lied to both his clients and Disciplinary Counsel about his efforts to return the fees, and where numerous aggravating factors were present including the vulnerability of the clients, his failure to return fees, and counsel\u2019s failure to take any responsibility for his misconduct); In re McClure, 144 A.3d 570 (D.C. 2016) (adopting Board recommendation of No. 21-BG-778"], "id": "ff5e5fc7-2e7a-4b9e-975e-c831040040ab", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["It does not appear whether or not the plaintiff bank issued new cards to Mr. and Mrs. Lindauer upon its approval of their May 1978 application for increased credit. However, it is clear from the opening paragraph of the application form that if the application was accepted and approved, it was the obligation of the bank to issue the credit cards applied for. Whether the bank issued new credit cards or whether it merely permitted Mr. and Mrs. Lindauer to use the credit cards then existing is not important. What is important is that the terms which applied to the use of a credit card after the bank\u2019s approval of the new application of May 9, 1978 were those terms and conditions contained in that application form and the terms of the credit card agreement in effect on May 9, 1978. As this court pointedly notes those terms were not only a modification of the immediate prior agreement as to the amount of credit but also the resurrection and inclusion of the terms of the application form which included provision for joint and several liability."], "id": "b0550cdb-d6bf-43ae-b14d-116c45938a4e", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["A marriage between one who is a resident of the State of New York, and one who is in the United States on a transit , is valid. A valid marriage confers definite rights to the parties, as it does obligations flowing from one to the other. A person here on a transit visa who marries here is chargeable with the support of his spouse as his wife might be by virtue of the law as amended chargeable with the support of her spouse if he is or is likely to become a public charge and she is financially able to provide for him, or is or can be gainfully employed to so do. The obligations undertaken upon marriage by the parties to a marital relationship, while not entirely reciprocal, impose an obligation upon the wife under certain conditions to be answerable for the support of her spouse."], "id": "925e64f0-2026-49f4-b053-c66f7f6eff39", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["On June 30, 1970, defendant, a medical school graduate, was issued a to leave his native country* the Republic of Colombia, to visit the United .States to enter training as a *747physician at the Lutheran Medical .Center in Brooklyn, New York. While in the United States he lived at the Lutheran Medical Center and he obtained a New York State driver\u2019s license and a New York State registration for his automobile, both of which listed the medical center in Brooklyn as his address. He terminated his employment with the center and' on June 23, 1972, he obtained a visa to enter Canada. \u00d3n June 28, 1972, he arrived in Canada, as shown on the Canada entry record, for the purpose of taking a residency in orthopedics at Ottawa General Hospital. He maintained no further ties with New York State after he left the Lutheran Medical Center."], "id": "340f8e8b-7a72-4fa2-b4dc-e4e41813d244", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["A more fundamental flaw to the theory relied on by Holdings and Proviera is that the Independent Contractor Agreement expired more than two years prior to the execution of the Promissory Note. The term of the Independent Contractor Agreement was defined as \"one year or until the contractor receives a working in the USA and moves to the USA and becomes an Employee of the Company, or until terminated by the company at any time with no advance notice or terminated by the Contractor upon ninety (90) days['] notice.\" Holdings and Proviera posit that the Independent Contractor Agreement was still in effect in 2013 when the Promissory Note was executed because it had not been terminated by either party.7 This conclusion violates basic tenets of contract interpretation because it renders meaningless *415the \"one year\" language contained in the Independent Contractor Agreement's term. See Dunn Indus. Group, Inc. v. City of Sugar Creek , 112 S.W.3d 421, 428 (Mo. banc 2003) (\"[E]ach term of a contract is construed to avoid rendering other terms meaningless.\" (citation omitted)); Belton Chopper 58, LLC v. North Cass Dev., LLC , 496 S.W.3d 529, 532 (Mo. App. W.D. 2016) (\"An interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part ... of no effect.\" (citation omitted)). Instead, the logical reading of the provision is that the Independent Contractor Agreement expired in one year unless that term was shortened by the contractor obtaining a work visa and becoming an employee \"of the Company\" or either party electing to prematurely terminate the agreement. \"If the contract language is not ambiguous, the contract language is controlling[.]\" A. Zahner Co. , 497 S.W.3d at 783. Thus, the Independent Contractor Agreement entered November 3, 2009, was not in effect past November 2, 2010.8 This conclusion is consistent with the trial court's finding that \"the 2009 Independent Contractor Agreement was not in existence after October 2010\" as well as Holdings' and Proviera's own counterclaims, which allege that NutraPet was an independent contractor for SCD from November 2009 to October 2010."], "id": "2ee7177d-0f31-4c45-8ae5-2ec2034ada85", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*266Contrary to defendant\u2019s assertions that she \u201c always tried to take care of him,\u201d after she had relieved plaintiff of practically all of his worldly possessions, the credible testimony and documentary 'evidence establish that, by various means, both legal and illegal, defendant tried to rid herself of any ties to plaintiff. The record shows that (1) defendant tried to keep plaintiff from coming off his ship or landing in this country ; (2) defendant tried to have plaintiff permanently incarcerated in an insane asylum; (3) defendant attempted to have plaintiff deported; and (4) defendant removed plaintiff\u2019s belongings from their house, refused to permit him to enter therein, and advised him of her intentions to obtain a divorce or annulment. Likewise, although defendant claims plaintiff abandoned her on September 8, 1954, it appears from the record that as a result of defendant\u2019s attempt to have him permanently committed, as above noted, plaintiff was not released from Bellevue Hospital until on or after September 28, 1954. Moreover, the documentary proof establishes that within a day or two after plaintiff\u2019s release from Bellevue Hospital, defendant withdrew her sponsorship of plaintiff\u2019s application for a , in another attempt to have him deported from this country as an alien. Thereafter, when plaintiff was unable to obtain employment, defendant made him apply for unemployment insurance. Upon his receipt of each weekly check of $32, defendant charged him $20 a week for room and board, refused to give him any money to pay his union dues and doled out just enough daily for so-called \u201c cigarette rations.\u201d This, despite her protestations upon the trial that \u201c she always took care of him.\u201d"], "id": "f9d27891-616b-47e1-b223-9c9d27cc2b20", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Nonetheless, the People argue that loss of eligibility for adjustment of status is not the same as deportation. The People\u2019s argument misses the mark as to what is at issue here, however. Just as a plea of guilty to an aggravated felony by an LPR, while eliminating the possibility of cancellation of removal under the law in effect since the enactment of Illegal Immigration Reform and Immigrant Responsibility Act in 1996 (IIRIRA), does not necessarily result in the LPR\u2019s immediate removal (see 8 USC \u00a7 1229b [a] [3] [noncitizen convicted of aggravated felony ineligible for cancellation of removal]), so a plea of guilty by an undocumented immigrant to a controlled substance offense after the enactment of the INA in 1952, while eliminating the possibility of avoiding mandatory removal (see 8 USC \u00a7 1227 [a] [2] [B] [i] [mandatory deportation for noncitizens convicted of controlled substance offense]; 8 USC \u00a7 1182 [a] [2] [A] [i] [II] [barring from eligibility for admittance or noncitizens convicted of controlled substance offense]; 8 USC \u00a7 1255 [a] [2] [disallowing adjustment of status to LPR for an undocumented noncitizen who is otherwise inadmissible] [collectively, the three INA provisions]), does not necessarily result in the immediate removal of the undocumented immigrant."], "id": "43f73074-2053-4d80-b376-ab96c0514c2f", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Apparently she found living conditions in Ireland less satisfying than she had expected they would be. She became ill there and determined to come back to the United States. Not being a citizen and not having a return permit, she had difficulty in obtaining an American . She wrote to her various connections in this country both in New Jersey and in .New York city and eventually and after long delay obtained a visa which enabled her to sail from Ireland on December 8, 1936. She became very ill on the steamer and was taken oft at Boston, where she died on December 13, 1936. In the instrument propounded as her will and admitted to probate in New Jersey she declared herself to be of a town in the county of Offaly, Irish Free State. The instrument was executed in the Irish Free State."], "id": "6274b408-efa1-4167-873a-63d780ec2900", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["The facts of the instant case, and the resultant charges leveled against defendant Ralph Timmons, are simply stated. On September 28,1983, at about 3:30 p.m., on West 46th Street, Manhattan, a man appropriated and rode away with the bicycle of complainant, Stephan Barat. As the thief fled, Barat swung his shoulder bag at him, but the man grabbed the bag and escaped. The bag contained various personal possessions of Barat, including a credit card. The expiration date on the credit card happened to be the end of April, 1983, some five months before the larceny."], "id": "412dd7a9-6e6c-41f3-ab2e-79027527f527", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Irvine schools and constantly praised the quality of education. The Bangs discussed the possibility of Lee and Kim immigrating via an E-2 , which were granted to individuals having business investments in the United States. This visa would allow Lee and Kim\u2019s children to attend Irvine schools. The Bangs did not mention the possibility of Kim purchasing Corea BBQ to satisfy the E-2 visa requirements until after Lee returned to Korea. III. Living in America"], "id": "1ec93b64-c5d6-4aca-b86b-ee6ce9cc12e1", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["ble for the Waiver Program unless the Secretary of Homeland Security \u201cevaluates the effect that the country\u2019s designation would have on the law enforcement and security interests of the United States.\u201d See also id. \u00a7 1187(c)(2)(F) (Supp. IV 2010) (requiring participating countries to share information regarding safety risks); Department of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990. html (last visited Oct. 21, 2011) (\u201cTo be admitted to the Visa Waiver Program, a country must meet various security and other requirements, such as enhanced law enforcement and security-related data sharing with the United States and timely reporting of both blank and issued lost and stolen passports. VWP members are also required to maintain high counterterrorism, law enforcement, border control, and document security standards.\u201d)."], "id": "69006c7c-c872-4397-a03e-3b27d63a2171", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Finally, the court will not condone the submission of an apparently fraudulent document to the federal government for the purpose of obtaining a . The employment contract was expressly conditioned upon Ramani obtaining a visa. Both Ramani and Prime were aware that the federal government would not issue the visa unless the noncompete clause was removed. Ramani and Prime acted in concert to fraudulently obtain the visa and to defeat the very purpose of the visa waiver program."], "id": "9d033394-19c8-4baa-9c67-c793563ecbb6", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": [". Caesar distinguished between applying for an F-l student , which must be done in the applicant\u2019s country of origin, and a change of nonimmigrant status to that of an F-l student, which can be accomplished via an application filed in the United States (see tr at 107). Caesar did not indicate that there was a practical difference for the applicant in the outcome of these two processes."], "id": "b1de8907-ef82-41aa-9cdd-f5953a2f2c1e", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The essential facts are as follows: during July of 1987, the claimant, Marsha Levin, purchased a round-trip ticket from *246New York City to Paris for her teen-age daughter who was scheduled to participate in a two-week student work-study program in France. The ticket, booked both ways on Air France flights, was purchased from Kasmir World Travel, Inc., in New York City and cost $680. Upon arriving in Paris, Mrs. Levin\u2019s daughter was denied entry and was placed on the next Air France flight destined for the United States. She was denied entry because of her failure to present a upon her arrival in France. The claimant asserts that she was not informed of these visa requirements and that it was the obligation of the travel agent to inform her of these visa requirements which were adopted by the French government in an apparent attempt to deal with terrorist activities directed at Americans abroad. In fact, Mrs. Levin testified that only a few years before her daughter\u2019s trip, she herself had traveled to France without being required to present a visa. She has now sued Kasmir which in turn has claimed over against Air France."], "id": "d6312ea3-81c2-4250-a2d7-ca8fffecdf29", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The petitioner denied all of the contentions of the Government. The court will first consider whether the petitioner has lawfully been admitted to the United States for permanent residence. The evidence shows that the petitioner entered the United States as a nonquota immigrant pursuant to section 101 (subd. [a], par. [27], cl. [A]) of the Immigration and Nationality Act (U. S. Code, tit. 8, \u00a7 1101, subd. [a], par. [27], cl. [A]) as the spouse of Loretta Mauro, a citizen of the United States. It is the opinion of this court that the petitioner has met the burden of proof required by law to show that he entered the United States lawfully by the introduction into evidence of his nonquota immigrant indicating his lawful admission to the United States at Niagara Falls, New York, March 5, 1953 and by the testimony of said Loretta Mauro."], "id": "22e7e162-ae93-49c2-b557-81f72ffe3170", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["On the basis of the foregoing, claimant maintains that defendant State of New York \u201cowed Gani a duty of care springing from a relationship of trust or confidence\u201d (id. \u00b6 33), Gani had a concomitant right to rely on the State\u2019s representations (id. \u00b6 34), and the State damaged Gani by making \u201crepeated fraudulent representations\u201d about his immigration application on which Gani relied to his detriment (id. \u00b6 35). Specifically, claimant asserts that \u201csolely as a result of the negligence of the defendant[ ] . . . Gani was denied his application to change his status to an student visa\u201d (id. \u00b6 37), and thereby became ineligible \u201cto complete a post-graduate academic degree at SUNY Maritime College\u201d (id. \u00b6 38)."], "id": "509ffafd-a87a-4f00-80e8-6142435d087a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Defendant's attorney testified that after being retained by defendant they did not discuss the charges until he reviewed the police report. He did not remember discussing immigration consequences with defendant or what was said, but they did discuss the subject, as counsel discusses immigration consequences with all his clients. He asks clients whether there are immigration issues and he notes that in their files, though he made no such notes in this case. Counsel then testified that he tells \"every client [who is] here with a or a green card or illegal, you always have the risk of getting deported,\" but he does not keep notes about what he does or does not advise clients. A *1003no-jail plea agreement was reached because defendant had a job and the facts of the case deserved a no-jail disposition."], "id": "b9ec96db-3766-4f5d-a59f-374394412151", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Approximately two weeks after Patricia called the police, immigration officials removed Patricia from her home. Approximately a year later, Patricia was removed from the country. Patricia remained outside of the country for four months. However, she was allowed to return to this country after applying for a that, according to Patricia, is used \"when a crime happens on the family.\""], "id": "fd741527-918a-4671-872c-c5c72e294297", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": [" (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)).\u201d 18 U.S.C. \u00a7 922(d)(5) (2006). Because ATF has requested our view on the meaning of section 922(g)(5)(B) only, our opinion is limited to that subsec- tion, but our analysis would likely apply to section 922(d)(5), provided no relevant differences between that provision and section 922(g)(5)(B) exist."], "id": "b097f86c-ba61-47f5-8553-e600b032dcd7", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The next question is what regulations have been made. Plaintiff points out that assurances in the same general form have been in use for over 30 years. This, however, begs the question. The extended use of the form is not a guide to the purpose behind that use. The use itself is just as compatible with the theory that the form was employed to lend an air of solemnity to a moral obligation as it is with the theory of contract. However, if a contract is authorized the use of a contract form would be a strong indication that such was intended. In this connection, it is well to note that the defendants do not argue that they were misled into making a contract. Their point is that the consular officer had no right to exact a contract from them, because the United States sought no such contract as a condition for granting a . Plaintiff produced no regulation or promulgation of any department. Actually, the record shows that the State Department has consistently refused to take a stand on whether the affidavit is an enforeible agreement, showing that this is a matter for the courts. Also, the State Department has issued a pamphlet of \u201c General Information Regarding Visas for Immigrants \u2019 \u2019 in which it prescribes that a sponsor may submit a statement showing his ability and willingness to contribute to the support of the immigrant. This is quite different from an agreement to supply that support. Also, there is a statutory provision for the posting of a bond where a visa would otherwise be refused for likelihood that the immigrant would become a public charge., (U. S. Code, tit. 8, \u00a7 1183.)"], "id": "155ab4d1-2bf1-43a9-bc81-e11d0330569e", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The denouement came on June 2, 1938 when Jane was served with papers wherein Dr. Roe sued for an annulment alleging that Jane had fraudulently induced him to marry her. At about the same time deportation proceedings were instituted against her on the ground that she had overstayed the time permitted under her visitor\u2019s . It should be noted that deportation to her native land, which by that time had been taken over by Hitler, would have subjected Jane to penal sanctions for having married a Jew. I will make the observation without further comment that the institution of deportation proceedings against Jane at the time of her difficulties with her husband was exceptionally coincidental."], "id": "0c12530f-c85b-45b8-a2cf-335de3190e94", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Nevertheless, the only two reported decisions found in which a court of this State has been required to consider the effect of a foreign decree of divorce rendered ex parte against a New York domiciliary with no past or present tie to the foreign jurisdiction, as was Dosie Mae Brown, both resulted in a refusal to grant comity to Mexican decrees. In Carbone v Carbone (166 Misc 924 [Dom Rel Ct, Bronx County 1938]), the decision was put upon the basis that although insofar as was shown by the proof the plaintiff in the foreign proceeding had not gone to Mexico for the purpose of instituting a divorce action, but rather did so while on a six-month stay during the winter months to improve her health, neither did she go there for the purpose of establishing a bona fide permanent residence, as was evident from her return to the United States shortly after the decree had been obtained. In Ruderman v *819Ruderman (193 Misc 85 [Sup Ct, NY County 1948], affd 275 App Div 834 [1st Dept 1949]), the spouses, both natives of New York City, had married in Mexico, where the husband had a student which was renewable yearly and the wife, who remained a schoolteacher in New York, lived with him there for a couple of summer vacations during his four-year stay. The court found that the husband had not acquired a domicile in Mexico, having inferred from the timing of his presence there that he was avoiding conscription for the Armed Forces of this country during the years of the Second World War, at the conclusion of which he promptly returned."], "id": "4e3ab190-5504-4015-9a1d-dd46a77ee57f", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["The district court observed that an advance waiver of potential future conflicts, such as the one executed by First Data and Heller, is permitted under California law, even if the waiver does not specifically state the exact nature of the future conflict. (, supra, 241 F.Supp.2d at p. 1105.) Citing Zador, the Vis a court emphasized that the \"only inquiry that need be made is whether the waiver was fully informed,\" and noted that \"[a] second waiver by First Data in a non-related litigation would only be required if the waiver letter insufficiently disclosed the nature of the conflict that subsequently arose between Visa and First Data.\" (Id. at p. 1106,.)"], "id": "b96e6404-4e5d-4d3d-8306-77191c30b13d", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*954In its statement of decision, the trial court rejected all of Kao's statutory wage claims. It concluded Kao was a non-employee \"guest\" entitled to no compensation for the 11 months he worked at Joy Holiday before receiving his H-1B . It further found, in reliance on the testimony of defendants' accountant, that the value of plaintiff's total compensation package after receiving the H1-B visa \"placed plaintiff over the minimum salary for an exempt employee.\" The court found no failure to provide adequate wage and hour statements given Kao's status as a non-employee then as an exempt employee and ruled permissible Joy Holiday's delay in paying final compensation."], "id": "f9bacba1-99a0-4ce7-91a5-3d598999be35", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Katz Park Ave. Corp. v Jagger (11 NY3d 314 [2008]), relied upon by petitioner, does not dictate a contrary result. That case supports the proposition that a foreign citizen legally in the United States pursuant to a tourist \u2014 the issuance of which requires the holder to have a \u201cprincipal, actual dwelling place\u201d outside the United States (id. at 317) \u2014 may not properly assert primary residence status under rent stabilization. In so holding, the Court of Appeals expressly left open the separate, distinct issue, now before us, as to whether a person in this country illegally \u201cmay have a primary residence in New York for rent regulation purposes\u201d (id. at 318). For the reasons stated above, we answer that question in the affirmative."], "id": "6157d2c0-6aa0-4da7-9975-27160952a385", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Mei and Wong met in China in October 2013 after Mei posted a personal ad in a Chinese-language newspaper. They married one month later. At the time, Mei lived in China and Wong lived in the United States. They spent the first two and a half years of their marriage apart, waiting for her to be granted. They spoke every day on the phone, however, and Wong visited Mei in September 2014."], "id": "ab5a5eec-a553-48cd-a350-ecad153cc36a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The mere fact that a person enters the United States on a non immigrant does not establish as a matter of law that she may not acquire a domicile in this country (Jacoubovitch v Jacoubovitch, 279 App Div 1027, app den 279 App Div 1078; Taubenfeld v Taubenfeld, 276 App Div 873, rearg and app den 276 App Div 918, supra). The alien\u2019s intention to remain permanently in the United States does not make it unlawful for her to have entered the United States as a non immigrant (Brownell v Gutnayer, 212d 462, 464; see excellent discussion in Williams v Williams, 328 F Supp 1380, 1384), and her arrival under a temporary visa is not enough to prevent the alien from becoming a resident of this State for purposes of maintaining an action for divorce (Townsend v Townsend, 176 Misc 19, 20). It is clear that an alien can retain her foreign nationality and citizenship and still establish a domicile in New York in the same way as a United States citizen can (De Pena v De Pena, 31 AD2d 415, 417; Matter of Appleby, 106 NYS2d 294, 300, affd 279 App Div 993). The alien status can, however, operate as an evidentiary fact against the person\u2019s *344alleged intention to remain in the State permanently (51 ALR 3d 223, 229)."], "id": "7b343b4d-836c-44b2-80b1-3fa04d7bd193", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["It has been generally noted that beyond the duty to confirm travel reservations, travel agents should be expected to provide information which is necessary and of importance to the traveler. (See, Recent Developments, Travel Agency Liable to Travelers When Its Failure to Confirm Reservations Ruins Vacation, 74 Colum L Rev 983, 993-994 [1974].) More specifically, in a case closely analogous to the facts here, the court in Compagnie Nationale Air France v Castano (358d 203 [1st Cir 1966]) ruled that where an international air carrier, acting as a travel agency, failed to warn a passenger, upon his purchase of a ticket, that he would be prevented by immigration officials from entering the country of his destination unless he had a proper , that carrier would be liable for all damages and injuries proximately flowing from the passenger\u2019s exclusion from that country due to his failure to secure a visa. This holding recognizes that the travel agent is not merely a dispenser of tickets but also a fiduciary on whose expertise a traveler may reasonably rely."], "id": "38d88ddc-2730-45cc-a00b-1df4fc1557f5", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["First, defendant contends that in finding that defendant\u2019s children were all residing in the Dominican Republic at the time of her plea {De Jesus II at *10), the court overlooked and misapprehended the fact that, by that time, the U.S. Department of Justice had approved the applications of all of defendant\u2019s five children and that all that remained in order to relocate them to New York was the ministerial matter of consular processing. Significantly, although the PSI stated that defendant\u2019s former husband, Jose Polanco, \u201cand [her] children live in the D.R.\u201d (PSI at 4), it failed to mention that the children\u2019s visa applications were approved and that they were on the verge of coming to the United States legally. At the hearing, when defendant was asked whether she made \u201carrangements to have [her] children come to the United States and join [her] to live here,\u201d defendant replied, \u201cMy husband did the papers.\u201d (Transcript of proceedings, Feb. 2, 2011 [tr], at 20.) Based upon this testimony, the court misapprehended that at the time of the plea, the only step taken in the children\u2019s visa application process was that Mr. De Jesus had prepared the application papers. Based upon defendant\u2019s submission of copies of certificates attesting to the approval of the children\u2019s visa applications prior to the time of defendant\u2019s plea, the court now understands that defendant and her husband had taken the visa application process nearly to completion, and that all that remained was for the children to pick up their visas at the proper consular post. (Kratka affirmation, exhibit D.)"], "id": "c48e1c1c-1401-4c1a-a2d5-a5e851b673d6", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The Appellate Division, Second Department, has made it clear that the fact that a defendant had previously been convicted of a removable offense does not necessarily require a finding that he was not prejudiced by his counsel\u2019s failure to advise him of the removal consequences of his plea (see Picca, 97 AD3d at 183). Similarly, here, the fact that defendant\u2019s had expired before he entered into his guilty plea, thereby rendering him deportable, does not necessarily require a finding that he was not prejudiced by virtue of the mandatory deportation consequences of the instant plea, particularly since, without the instant conviction, he may have qualified for certain discretionary relief, such as cancellation of his removal from the United States or an adjustment of his immigration status (see 8 USC \u00a7 1229b; Padilla, 559 US at 363-364). Furthermore, the record demonstrates that, although defendant\u2019s visa had expired before he entered into his guilty plea, the notice to appear in the removal proceeding was dated more than a year after defendant took his plea. Thus, as in Picea, *27defendant\u2019s removal from the United States was not imminent at the time he took his plea (see Picca, 97 AD3d at 185)."], "id": "e23cb032-6c9d-4508-9d19-c0eda6de8b9a", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The BIA dismissed Pascal\u2019s appeal. It held that because Pas- cal was convicted of an aggravated felony for which he was sen- tenced to ten years in prison\u2014robbery with a deadly weapon\u2014and another crime involving moral turpitude\u2014burglary\u2014he was stat- utorily ineligible for asylum and withholding of removal. The BIA held that because Pascal did not challenge the immigration judge\u2019s finding that he did not establish a probability of torture by the Hai- tian government on appeal, he waived any challenge to the adverse CAT finding. The BIA also denied Pascal\u2019s motion to remand. The BIA determined that because Hughes\u2019s petition had not yet been approved, Pascal was not eligible to adjust his status on that basis. The BIA therefore held that Pascal was not eligible to adjust his status and could not obtain relief from removal through a standalone waiver of inadmissibility. Pascal filed a petition for re- view of the BIA\u2019s decision with this Court. While that appeal was pending before us, Pascal filed a mo- tion with the BIA to reopen and remand his removal proceedings to the immigration court. In that motion, Pascal explained that USCIS had approved Hughes\u2019s I-130 petition. He argued that de- spite his criminal history, he had presented evidence\u2014including his son\u2019s medical condition and the emotional hardship to his wife\u2014 establishing his prima facie eligibility for adjustment of status and prima facie eligibility to seek a waiver of inadmissibility in conjunc- tion with his application for relief. USCA11 Case: 20-13993 Date Filed: 02/03/2022 Page: 7 of 10"], "id": "0f09bf19-3b36-424c-bf3e-56d6dab25331", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["On March 3, 2017, Ogunmowo filed a motion to vacate his conviction under section 1473.7, arguing his conviction was legally invalid because his *73trial counsel incorrectly advised him about the immigration consequences of his guilty plea and he was prejudiced as a result. Ogunmowo's trial counsel, Jerry Kaplan, stated in his affidavit submitted with the motion that he \"recall[ed] Mr. Ogunmowo being concerned about what would happen to his immigration status if he was convicted in this case.\" As discussed above, Kaplan admitted in the affidavit that although he did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea-because he understood he \"had no obligation to investigate\" this collateral consequence of the plea-he nonetheless \"advised Mr. Ogunmowo that because he was a lawful permanent resident of the United States, that he would not face any immigration consequences because of his plea in this case.\" As Kaplan further conceded in the affidavit, his advice \"was wrong.\" As set forth in the 2004 notice of removal proceedings against Ogunmowo, an alien8 convicted of violating a law relating to a controlled substance was ineligible for a and ineligible for admission to the United States. ( 8 U.S.C. \u00a7 1182(a)(2)(A)(i)(II).) Being deemed inadmissible rendered an alien subject to removal. Thus, Ogunmowo's conviction made him subject to removal from the United States."], "id": "e2d99fa8-bbb8-4236-9261-4e349b8c78ef", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["Adequacy requires \u201cbalancing the value of that settlement against the present value of the anticipated recovery following a trial on the merits, discounted for the inherent risks of litigation.\u201d (Klein at 73; see Colt Indus., 155 AD2d at 160 [fairness is determined by weighing plaintiffs likelihood of success against settlement offered].) Other factors to be considered are the support of the class members, the opinion of counsel, lack of collusion and counsel\u2019s and class representatives\u2019 adherence to fiduciary standards. (Hibbs v Marvel Enters., Inc., 19 AD3d 232, 233 [1st Dept 2005]; Avena, 85 AD2d at 153; see Klurfeld v Equity Enters., 79 AD2d 124, 133 [2d Dept 1981] [factors to be considered in reviewing class settlement are: likelihood of success, support of parties, judgment of counsel, good faith and nature of law and fact]; Joel A., 218d at 138 [lack of collusion is factor to be considered]; Wal-Mart Stores, Inc. v U.S.A., Inc., 396d 96, 116 [2d Cir 2005] [\u201cA presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm\u2019s-length negotiations between experienced, capable counsel after meaningful discovery\u201d (internal quotation marks omitted)].) Consideration of the relevant criteria weigh in favor of approval here."], "id": "16e67bbf-7c60-40f7-8c9e-23eeeabbae30", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Residence for public school education purposes envisions a physical presence with the intention of remaining. Residence solely to achieve the right to attend a particular school would fail to meet the traditional test of residence *397(Matter of Drayton v Baron, 52 Misc 2d 778). Conversely, all citizens as well as others are free to establish a residence of their choice notwithstanding that the residence may incidentally afford the opportunity to attend a particular school (Plyler v Doe, 457 US 202). Petitioner having the privilege to establish a residence within this State has done so by choosing to live in the home of a long-standing family friend. The testimony establishes that petitioner has no other residence available to him except perhaps with his mother who resides and is a domiciliary of Jamaica, West Indies. I use the word \u201cperhaps\u201d for the reason that petitioner is not a citizen of Jamaica, West Indies, and his passport reveals a necessity to periodically renew status to permit him to remain with his mother. The Uniondale School District has provided no authority which would require an infant citizen to continue residing outside his homeland and deny him \u201cresidence\u201d merely because his parent is a nonresident alien. The argument in summation to the effect that petitioner, for school education purposes, must remain a \u201cvisitor\u201d in his own land must be rejected by this court as an unreasonable restriction upon the privilege of all citizens to establish residence and enjoy equal protection under the law. As heretofore noted, petitioner has no residence within the United States nor has another residence been made available to him. Finally, I find respondents eliciting from petitioner that the establishment of this residence was in part for educational purposes, should not work a contrary result. Under the circumstances here presented, petitioner has no other residence. His motivation makes his taking up residence no less bona fide than had he re-entered this jurisdiction for work, health or other noneducational purposes (Martinez v Bynum, 461 US_). To find otherwise would, educationally speaking, treat petitioner as a \u201cman without a country\u201d. Petitioner should not be relegated to such a position of nonstatus for educational purposes where he finds himself within respondent\u2019s school district solely as a result of circumstances not of his doing nor as the result of design or planning relative to which respondent should be heard to complain."], "id": "07d0e6ec-65b6-41ff-acc3-88963c273faf", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Labor Law \u00a7 527 (1) (a) disqualifies a claimant from receiving unemployment compensation benefits for any period during which the claimant is not able or available for work. To support its determinations, the Unemployment Insurance Appeal Board relied on the Federal Department of Labor\u2019s interpretation on the subject as expressed in its Unemployment Insurance Program Letter No. 1-86: \"Under the laws of all States, a claimant must be 'able and available\u2019 to work to *836be eligible for unemployment compensation. In addition to meeting other State availability requirements, an alien must be legally authorized to work in the United States to be considered 'available for work.\u2019 Therefore, an alien without current, valid authorization to work from the INS is not legally available for work and not eligible for benefits\u201d (51 Fed Reg 29714 [1986]). In addition, claimant conceded that her H-l restricted her employment to a single employer and that in order for her to have worked for any other employer, she would have had to obtain an amendment to her visa. Substantial evidence in the record supports the Board\u2019s finding that claimant was not legally authorized to work once her employment with Merce Cunningham Dance Company ceased. The Board\u2019s decision that claimant was unavailable for work when she sought unemployment benefits has a rational basis (see, Matter of Fisher [Levine], 36 NY2d 146) because she was legally barred from working for any other employer (see, Matter of Zapata [Levine], 50 AD2d 681, 682; see also, Pinilla v Board of Review Dept. of Labor & Indus., 155 NJ Super 307, 311, 382 A2d 921)."], "id": "a909008b-5c57-4e45-835c-1ba26743fbad", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Bank v. Off. of Comptroller of Currency, 362 F.3d 333, 336 (5th Cir. 2004). We thus must raise the issue of Amin\u2019s noncompliance on our own initiative. Fort Bend Cnty. v. Davis, 139 S. Ct. 1834, 1849 (2019) (noting that \u201c[u]nlike most arguments, challenges to subject-matter jurisdiction\u201d may be raised at any time by the parties and \u201ccourts must consider them sua sponte\u201d). The jurisdictional question thus turns on whether Amin was required to appeal the denial to the agency\u2019s Appeals Unit. USCIS regulations provide that \u201c[t]he denial of a petition for classification [as a noncitizen with extraordinary ability] shall be appealable to the Associate Commissioner for Examinations.\u201d3 8 C.F.R. \u00a7 204.5(n)(2). At first glance, the word \u201cshall\u201d seems to mandate exhaustion. See Murphy v. Smith, 138 S. Ct. 784, 787 (2018) (\u201c[T]he word \u2018shall\u2019 usually creates a mandate.\u201d). But we do not read a word in isolation; we must look at the \u201cspecific context in which that language is used.\u201d Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). If the regulation stated that a classification \u201cshall be appealed,\u201d then exhaustion would be mandatory. Cf. Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 710 (5th Cir. 2010) (finding administrative appeal mandatory when regulation said that the NTSB \u201cshall review\u201d initial agency decisions). But this regulation does not. It provides that the classification \u201cshall be appealable.\u201d 8 C.F.R. \u00a7 204.5(n)(2) (emphasis added). The most natural reading, then, is that the regulation allows but does not mandate appeals from extraordinary ability visa denials. See Appealable,"], "id": "056cb47a-2e89-4d44-852f-9a097637f563", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["An H1-B allows employers to temporarily employ foreign workers in specialty occupations requiring \"theoretical and practical application of a body of highly specialized knowledge\" provided the workers receive at least the prevailing wage for their occupation. (8 U.S.C. \u00a7\u00a7 1101, subd. (a)(15)(H)(i)(b), 1184, subd. (i)(3)(A) ; Fragomen et al., H1-B Handbook (2017 ed.) \u00a7\u00a7 1.20, 1.21, 2.28.) Joy Holiday's H-1B application said it wished to employ Kao as a computer systems administrator working \"at least 20 hours per week with an hourly salary of $29.30.\""], "id": "2484c621-e030-437f-83dd-1778679af90c", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["As the pregnancy progressed, the couple fought with increasing frequency. These arguments culminated in the first of a series of breakups in the spring of 2008. Following a brief reconciliation, the couple broke up a second time in June 2008. While pregnant, defendant asked the County of Sacramento Department of Child Support Services to obtain an order requiring J.C. to pay child support. Defendant also traveled to South Korea to see her family, returning to the United States on a one year in July 2008."], "id": "ea34da42-0df1-441f-a9ae-dac02492d390", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["As to the latter point, the plaintiff contends that her residency began in September, 1973, when she and her husband first came to this country on his Fulbright professorship, and continued up to the commencement of the action. The defendant, on the other hand, claims that the one-year requirement has not been met asserting that plaintiff\u2019s residency should be counted from January 24, 1975, the day she returned to the United States on her student ."], "id": "1a0b8fa1-98fd-4ff2-8cfd-0524af999792", "sub_label": "US_Terminology"} {"obj_label": "Visa", "legal_topic": "Immigration", "masked_sentences": ["The second case Sheppard Mullin cites, ,supra, 241 F.Supp.2d 1100, also involved a motion to disqualify Heller in a case involving a potential *612future conflict. First Data, which was developing a system to processes credit card transactions, asked Heller to represent it in a patent infringement action pending in Delaware. The parties recognized a possible future conflict with Visa, with whom Heller had a longstanding relationship. Heller informed First Data that although it saw no current conflict in representing First Data in the Delaware action, it would only agree to represent First Data if First Data agreed to permit Heller to represent Visa in any future disputes, including litigation, that might arise between First Data and Visa. First Data agreed, and signed an engagement letter that clearly stated these terms. (Visa, at p. 1102,.)"], "id": "af78e20f-d00b-43ee-8ae5-fe1ee089a769", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The facts established by defendant's declaration and testimony showed not only counsel error, but also included defendant's own error in believing that a negotiated plea calling for no time in custody would avoid making him deportable, and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. The trial court made no express or implied credibility determination for or against defendant, as the ruling was based upon a finding that defendant had not demonstrated ineffective assistance of counsel or prejudice under Padilla , and therefore impliedly under the guidelines of Strickland . However, defendant's claims of error were supported by his former attorney's undisputed testimony that he told defendant only that the charge could subject him to deportation and that \"we're going to get it down to a misdemeanor and expunged early and maybe that will help\"; that he misunderstood the potential immigration consequences and the effect of expungement or reductions of felonies in immigration cases; and that he did not explore possible alternatives to pleading to an aggravated felony. Finally, defendant provided evidence of his misunderstanding at the time of his plea, due to his and counsel's errors. It was only after his conviction was expunged and reduced to a misdemeanor that defendant consulted an immigration attorney to apply for a permanent resident on the basis of his marriage to a United States citizen. He then learned of the true immigration consequences of his plea."], "id": "226c9f2a-100f-450f-afbd-15a57d8f7aee", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["At one point, we called for further briefing on whether there was sufficient evidence that defendant provided any nonlegal assistance or advice. The testimony at trial seemed to portray her as providing legal advice and assistance - for example, about the particular that a client might be qualified for and about how to obtain that visa. If that was all she did, it would seem that she was simply not guilty."], "id": "24cb0757-6343-46dc-907c-eb959bb87fd9", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The problem here is whether a person on a transit can establish domicile to confer jurisdiction upon a court to sever a relationship created by marriage. In Taubenfeld v. Taubenfeld (276 App. Div. 873-874), the parties to a marriage not unlike the one considered herein, the court held, though the plaintiff in that case was in the United States and within the State of New York on a transit visa, on an appeal from Special Term dismissing the proceeding instituted by the plaintiff for a decree of divorce on the ground that the plaintiff had no domicile within the jurisdiction of the court, that she, the plaintiff therein 1 \u2018 may maintain this action, even though she is not domiciled in this State, because it affirmatively appears that she was actually sojourning or dwelling here at the time the offense was committed and the action was commenced. * * * In any event,"], "id": "de545c13-8021-41f2-8522-15c0c7f50b28", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["There is no clear-cut decision on the problem presented to me in this case. It would seem that a person who was here on a transit cannot establish a domicile, which would entitle him to institute a proceeding for a divorce in our courts. However, the Appellate Division of the Supreme Court in the Second Department, in the case of Jacoubovitch v. Jacoubovitch (279 App. Div. 1027), said, \u201c In this action for separation both parties are aliens and were permitted to enter this country on nonimmigrant visas in connection with defendant\u2019s employment in this State for the United Nations. They have lived in the County of Nassau. The appeal is from a judgment dismissing plaintiff\u2019s complaint on the ground that neither of the parties established domicile in this State.\u201d The Appellate Division reversed the judgment of the court below on the law and the facts. Mr. Justice Wenzel concurred with the finding of his confreres on the authority of Taubenfeld v. Taubenfeld (supra)."], "id": "bfb0d417-084c-452a-b731-320c8b3cc3b1", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["\u201cAll the rest, residue and remainder of my said estate, real, personal and mixed, of every name or nature whatsoever, I give, de and bequeath unto my executors and trustees herein named, and to their successors, with full power to sell all or any part of my .said estate as they may deem advisable from time to time, at either public or private sale and upon such terms as they shall deem proper, and to invest and reinvest the proceeds from such sales or any moneys that may come into their hands as they think best, without regard to any statute or law regulating such investments and without any personal liability of either of my said executors, or their successors, of any such action, or for any loss or depreciation my said estate may suffer because of such investment; to' be held by my said executors and their successors in trust for the following purposes and uses only, to wit:\u201d"], "id": "0f7ecd9e-02e0-412f-9f89-63f4b57af291", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["\u201c Sec. 212(a). Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: # * * \u201c (15) Aliens who, in the opinion of the consular officer at the time of application for a , or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges;\u201d The visa division of the State Department has apparently long required that affidavits of support contain averments similar to those which were made by these defendants as hereinabove quoted in the said Immigration and Nationality Act. There is no specific statutory provision upon which such requirement rests. However, as aliens are \u00a3 \u00a3 ineligible to receive visas \u2019 \u2019 if \u00a3 1 in the opinion of the consular officer at the time of application for a visa \u2019 \u2019 they \u00a3 1 are likely at any time to become public charges \u2019 \u2019, the visa and consular officials charged with the administration of the statute apparently came upon the idea of insisting upon affidavits such as the one in suit in order to lessen the likelihood that an applicant for a visa would in fact at any time become a public charge. The statute deals only with considerations of likelihood and probability. It does not evidence any intention to fasten a contract upon anyone which would insure the support of the immigrant for any fixed period of time, or until he becomes a citizen. No case so holds; no persons responsible for the administration of the statute have ever taken such a view. It has long been the fixed administrative view that these affidavits of support impose only a moral obligation. Various exhibits have been submitted to the court which so indicate. A pamphlet titled \u00a3\u00a3U. S. Befugee Belief Program\u201d (Dept, of State Pub. 5724, General Foreign Policy Series 96, Beleased Jan., 1955) and distributed generally by the Department of *618Documents, United States Government Printing Office, at a price of five cents, contains the following questions and answers:"], "id": "d3d90b03-7e40-4128-b448-2fc4ce7b1da3", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["Staller had difficulty obtaining a to enter the United States because of her professional activities, and the parties resided in Munich, Germany, during the first year of the marriage. Just prior to the birth of their son, Staller obtained a nonimmigrant visa (this type of visa is temporary and does not allow an alien to remain in the United States indefinitely). The parties\u2019 son, Ludwig Maximilian Koons, was born in New York City on November 29, 1992. They live in Koons\u2019 three-story 13-room townhouse on Manhattan\u2019s East Side, and have travelled in the United States and to Europe."], "id": "6e3df54a-2534-473f-82ea-9012fce4a643", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["the mere fact that the plaintiff entered the United States on a transit does not establish as a matter of law that she may not acquire a domicile.\u201d Presiding Justice Nolan concurred and added, \u201c In my opinion the record before the court establishes prima facie that at the time of the commencement of the action plaintiff was a resident of the State of New York.\u201d In the Taubenfeld case, as already adverted to, the plaintiff was here on a transit visa as is the respondent here on a transit visa. The rule laid down in Taubenfeld v. Taubenfeld (supra) is that all that was necessary for a plaintiff to institute a proceeding for a decree of divorce was that she was a resident of the State of New York at the time of the commencement of her action and established a domicile here."], "id": "1f32dc3b-dfc1-4d35-9fd6-14f1cdb76237", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["The basic issue before the court is one of fraud. An examination of the record indicates that this case is a classic example *265of a scheming, avaricious woman\u2019s fleecing an ignorant and illiterate man of his life savings and earnings. The credible testimony and documentary evidence clearly establish that defendant told plaintiff innumerable lies in lier successful efforts to get him to entrust her with all of his moneys. She falsely and fraudulently told plaintiff that as an alien he could not own property in this country in his own name. She fraudlently advised him that because of his alien status, without , he could not inherit property in this country. Likewise, she told him that in order to avoid confiscation of his moneys by the Federal Government, it would be necessary for him to marry her and place these moneys in a joint bank account with her."], "id": "0b40d9c7-3a42-4792-a0e1-55eccf52e967", "sub_label": "US_Terminology"} {"obj_label": "visa", "legal_topic": "Immigration", "masked_sentences": ["*6214. The fourth review (\"fourth review\"), entitled \"A Real Nightmare I'm Trying to Forget,\" allegedly posted on April 28, 2011 by a Doe defendant identified as \"Former Business Associate in San Jose, CA,\" provided in full as follows: \"Pros- Solid team-The primary thing that got me and my colleagues going at ZL was the team we worked with. Despite management trying its best to suppress friendship and bonding, we shared information freely among one another, and never threw anyone under the bus. [\u00b6] The ZL products themselves are of high quality, led by a gifted CTO and development team. [\u00b6] If you can grab onto a key project and own it, you will be able to grow with it very *587fast. This is where a 'start-up mode' works to your advantage-you can manage projects from ground up to finish. [\u00b6] Cons -Minimal potential for growth-Unfortunately, management tends to tell potential new hires that '1 year at ZL is worth 3 years in the \"real world\", and that working in a big company is a waste because you are pigeon-holed and won't get to do anything of value'. While this might be true in a start-up that empowers its employees, unfortunately, it does not [sic] at ZL. Employees are typically given tasks in pieces that may or may not be used, and feedback from management that has no real management experience is ultimately useless. There are no annual reviews, or performance feedback meetings, unless you request them, and then they are usually a meeting of 'what you did wrong'. [\u00b6] Constantly harassed-ZL used to hire only immigrants with ' issues'. It was clear that the management felt that they were most likely to stay longer, and tolerate more from management. If management did not like someone for any reason, rather than address the matter privately, they publicly humiliate the employee and reduce his/her importance in the company by changing a title, or taking away projects. [\u00b6] Mom-and-pop environment-ZL is essentially run by a CEO and his wife (admin/HR/accounting). There is zero accountability and if you have a problem with anything-there is not much you can do about you [sic]. Also they nickle-and-dime [sic] employees in every way-from benefits to expense reports. The management also fosters unhealthy competition and backstabbing, which he views as 'natural aggression' amongst 'high-flyers'. [\u00b6] High turnover-ZL has been recruiting from different schools over the past few years-usually going after one school, building up a bad reputation, and then moving on to another. New hires quickly report back to the admissions or recruiting teams at their alumni, making it near to impossible for the company to continue recruiting at the same place year-after-year. People with visa issues aside, most new hires make the decision to leave within 3-6 months. [\u00b6] Advice to Senior Management- Unless the ZL management is willing to overhaul its current strategy, or hire a layer of middle management (with full authority, not just title), the future is a little bleak. It will remain a 'late-stage start-up' till it runs into the ground. Management has to realize that you can no longer lead only with the stick, but with the carrot [sic], and *622that people must be managed with compassion and respect. A company is nothing without its people, and ZL is constantly in search of good people.\""], "id": "c08b8d69-0fe9-449d-96b9-ffc398ec4b94", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Barocio , supra , 216 Cal.App.3d 99, 264 Cal.Rptr. 573, similarly did not create an independent pre- Padilla duty to advise defendants of immigration consequences of *269their pleas. In that case, the defendant's trial attorney failed to seek a judicial recommendation against . ( Barocio , at p. 103, 264 Cal.Rptr. 573.) There was no issue about counsel's advice to the defendant. Indeed, the court in Barocio specifically concluded that while section 1016.5 imposed a duty on the court to warn of the possible immigration consequences of a plea, counsel had no corresponding duty because immigration concerns were \"collateral consequence[s]\" of the plea. ( Barocio , at pp. 107-108, 264 Cal.Rptr. 573.) The only deficiency found in Barocio was trial counsel's failure to advise the defendant of the right to a recommendation against deportation, a special mechanism that existed under federal law at that time. ( Id. at pp. 109-110, 264 Cal.Rptr. 573.) The case was remanded to the trial court for resentencing to allow counsel to confer with his client regarding requesting a judicial recommendation against deportation and carry out the client's wishes. ( Id. at p. 111, 264 Cal.Rptr. 573.) Novoa makes no similar complaint here."], "id": "31ccf200-99ba-4eb1-8cca-b5120020847c", "sub_label": "US_Terminology"} {"obj_label": "Deportation", "legal_topic": "Immigration", "masked_sentences": ["When one acts with criminal negligence, he fails to perceive the risk of harm from his conduct. In contrast, although the term \"moral turpitude\u201d has never been defined by the Legislature, \"moral turpitude\u201d has been most commonly defined by the courts as: \" 'An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.\u2019 \u201d ( \u2014 \"Moral Turpitude\u201d, Annot., 23 ALR Fed 480, 493, and cases cited therein.) Crimes which do not involve a vicious motive or a corrupt mind are, therefore, not intended to be encompassed within the statute\u2019s reach, but, on the contrary, were specifically meant to be excepted. (United States v Karnuth, 30d 825.)"], "id": "b011c901-0c88-4ba5-bf0d-f0b6a0dc3043", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["This court finds that the crimes the defendant stands convicted of are not crimes arising out of a single scheme of criminal misconduct (see Nason v INS, supra, and Pacheco v INS, supra). Finding the 13 crimes did not arise out of a single scheme, however, does not bar the granting of 13 RADs to preclude the INS from using any of these convictions as grounds for . Granting a RAD is always an exercise of judicial discretion. Nonetheless, this court is in agreement with the counsel for the INS that there are no facts or circumstances in this case which would justify this relief. Indeed, considering the number and nature of these convictions, it would be an abuse of discretion to grant the relief sought."], "id": "896bdbeb-537c-42fe-8b5c-e8b2278ea0a6", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["With respect to whether plea counsel informed defendant of the immigration consequences of his plea, the People make much of the fact that Daly-Rivera had written a letter to the assigned prosecutor shortly before defendant entered his guilty plea stating that he had discussed \u201cevery possible facet\u201d of the proposed plea agreement with defendant and was \u201cconfident\u201d that the case would be resolved at the next court appearance. (People\u2019s exhibit 2, letter from Victor G. Daly-Rivera, Esq. to Kathleen Sullivan, Esq., dated Aug. 25, 1988 [1988 letter]; tr, Feb. 17, 2012, at 156.) During his testimony, however, DalyRivera had no recollection of the meaning of the quoted phrase (tr, Feb. 17, 2012, at 160), nor of any conversations he had had with defendant in preparation for the plea. (Id. at 147.) He could not recall whether he had advised defendant of the immigration consequences of his plea (id.), nor what his general practices were in 1988 regarding advisement of clients as to the immigration consequences of their pleas. (Id. at 153.) He could only offer that the letter was \u201cunusual,\u201d and that \u201cthere had to have been something\u201d which occasioned its writing. (Id. at 160.) He also had no recollection of what he had meant by the phrase \u201cevery possible facet\u201d in the 1988 letter. (Id. at 160.) He also testified that while he then had a criminal practice with numerous Spanish-speaking clients born outside this country, he \u201cprobably did not focus\u201d on their immigration status in 1988. (Id. at 162.) Daly-Rivera candidly stated that he had no particular understanding of the immigration consequences of a criminal conviction at the time (id. at 163), probably did not take any continuing legal education courses in immigration law in the 1980s (id. at 165) and probably did not inquire into the immigration status of any of his criminal clients, including defendant, in the 1980s. (Id. at 162.) Given plea counsel\u2019s doubts about the limits of his own knowledge of and practices with respect to immigration law at the time, and given his lack of memory of his representation of defendant itself (id. at 146-148), I find defendant\u2019s recollection that his plea counsel did not advise him concerning the or other immigration consequences of his plea reflects the more likely scenario. Defendant\u2019s sole experience with plea negotiations would be far more memorable *401to him than to his plea counsel, who routinely participated in numerous such negotiations over the years."], "id": "30749b18-ba01-42c6-a706-16b1d690ef36", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The defendant was indicted on November 15, 1977 for criminal possession of a controlled substance in the fifth degree and criminal possession of marihuana in the fifth degree. Bail was set at $1,500. The defendant, a Columbian national, surrendered his passport at that time. His visa having expired, the defendant was taken into custody by immigration officials of the United States Government. The District Attorney\u2019s office was kept apprised of all pending proceedings. The defendant was voluntarily de*335ported without his passport having been returned to him. The District Attorney indicated that he did not object to the deportation, although he did not expressly consent to it. The defendant is presently unable to re-enter the country to defend himself under the pending indictment."], "id": "7b696472-bbba-4680-ae18-a1a3f4a16d0d", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In his brief, appellant relies on Padilla v. Kentucky (2010) 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. There the court held the Sixth Amendment requires an accused entering a guilty plea to be advised of consequences. ( Id . at p. 374, 130 S.Ct. 1473.) However, the case does not suggest a constitutional obligation to remind an accused of these concerns in subsequent appearances relating to the same offenses."], "id": "48db58f4-8a44-4f11-9bdc-891851f03e5e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In January 2002, the San Mateo County District Attorney charged Morales in an amended information with felony possession for sale of a controlled substance, methamphetamine ( Health & Safety Code, \u00a7 11378 ), and the felony transportation, importation, and selling of a controlled substance, also methamphetamine (id. , \u00a7 11379). Both counts also included weight enhancement allegations. As part of a negotiated disposition, Morales, represented by counsel, entered a no contest plea to possession for sale of a controlled substance. He also admitted the truth of the accompanying weight enhancement allegation, but the court later struck it and dismissed the transportation count. It sentenced Morales to a three-year prison term, with 199 days of credits. Morales served his sentence, voluntarily departed *779the United States for Mexico in the face of and reentered the United States shortly thereafter."], "id": "fabf7241-48dd-441b-99c3-6a75ced47198", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["As indicated, defendant avoided an incarceratory sentence specifically because of counsel\u2019s effort in obtaining the disposition that he did. The defendant and his codefendant were originally charged with one count of criminal sale of a controlled substance in the third degree, a class B felony (Penal Law \u00a7 220.39 [1]), and one count of criminal possession of a controlled substance in the third degree, also a class B felony (Penal Law \u00a7 220.16 [1]). Had defendant opted for a trial and been convicted, he would have been exposed to a maximum of nine years\u2019 imprisonment (see former Penal Law \u00a7 70.70 [1], [2] [a] [i]). There is no reasonable possibility that defendant would *414have risked trial, conviction, an exceptionally long period of incarceration, and subsequent when a mere probationary sentence was available. Defendant simply cannot \u201cconvince th[is] court that a decision to reject the plea bargain would have been rational\u201d had he been fully informed of the consequences of his plea (Padilla, 559 US at \u2014, 130 S Ct at 1485). Defendant is, therefore, unable to establish prejudice under either the state or the federal standard."], "id": "c767cf77-58b0-4f45-8e1b-01a347faaf34", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["On the record before us, even if we assume Perez's motion was timely, we nonetheless conclude that Perez did not satisfy his burden of proving by a preponderance of the evidence that he is entitled to relief under section 1473.7. Simply put, the record belies Perez's contention that he did not meaningfully understand the immigration consequences of his plea. Although Perez did not speak English, a Spanish interpreter was provided for him. That interpreter stated that she translated the entire plea form for Perez. The plea form translated for Perez, initialed and signed on Perez's behalf, indicated that his guilty plea could result in his . It also indicated that if he pled guilty to certain enumerated crimes (such as felony possession *830of any controlled substance), he would be deported. In other words, the plea form, translated by an interpreter for Perez and explained to Perez by his attorney and the interpreter, informed him that he would be deported if he pled guilty. *104Further, and more importantly, the superior court explicitly informed Perez that if he were to plead guilty, he would be deported from the United States. The court was unequivocal about the immigration consequences of a guilty plea, reiterating that the federal government would not allow Perez to become a citizen of the United States. This was not a situation where the court informed a defendant that there was \"a high likelihood\" that he would face deportation. ( United States v. Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 791.) The court below left no doubt. Perez would be deported if he pled guilty. This is the only evidence in the record that is contemporaneous to Perez's guilty plea."], "id": "670d1d8b-b85e-4fc5-a6d6-999f473abeca", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In a sworn affidavit dated February 12, 2014, defendant avers that in 2011, he was denied renewal of his expired green card because of his felony criminal conviction. (Defendant\u2019s exhibit A.) Defendant consulted an immigration attorney, who advised him that his conviction subjected him to mandatory . As of February 17, 2014, when this motion was filed, there were no immigration proceedings pending against the defendant."], "id": "38f4068f-7014-496e-90fc-a57305b314ed", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Tapia argued that had he known he was barred from reentry or subject to under title 8 United States Code section 1226(c) because of his conviction for a crime involving a controlled substance, or if he had been advised of the immigration consequences of his plea, he would not *576have traveled outside the United States. Tapia also argued he never would have pled to the offenses had he known of the consequences of his plea to his status as a legal resident. In addition, the motion alleged Collins rendered ineffective assistance by failing to explain the immigration consequences of the plea to Tapia."], "id": "f76b0536-7195-4d94-aac9-2d75bfb226ab", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["1. The Court finds that the applicant was convicted on October 8, 2012, out of the 184th District Court, Harris County, Texas, in cause number 1363049, where the applicant entered a plea of guilty to the third degree felony offense of Assault-Family Member/Impeding Breath. However, the Court withheld a finding of guilt and the applicant *143was sentenced to a 2 year Deferred Adjudication and a $200.00 fine.... .... 8. The Court finds, based on the application, that the applicant is a legal permanent resident in the United States. 9. The Court finds based on the court reporter's record that the applicant was properly admonished and informed of the potential immigration consequences of his plea consistent with TEX. CODE CRIM. PROC. Art. 26.13. 10. The Court finds, based on the clerk's record, that on the face of the applicant's plea agreement with the State that he was admonished: \"by the Court and the defense attorney that if he is in the USA illegally or is not a US citizen, he/she may be deported back to his/her country. The defendant also acknowledged in open court that neither their attorney nor anyone else has indicated or promised otherwise.\"4 11. The Court finds that the applicant was represented by Mr. R[.] Rodriguez (\"Rodriguez\") in his primary case. 12. The Court finds that the testimony offered by the applicant's previous attorney, R[.] Rodriguez, was credible. 13. The Court finds based on the credible testimony of Rodriguez, that Rodriguez was aware that the applicant was not a United States citizen. 14. The Court finds based on the Court reporter's record of Rodriguez [sic] that Rodriguez informed the applicant that a conviction could result in the applicant's potential from the country. 15. The Court finds based on the Court reporter's record of [the writ hearing] that while taking the applicant's plea the Court confirmed that Rodriguez had informed the applicant that he could be deported based upon the plea.... 16. The Court finds that the testimony from Harris County Assistant District Attorney, Tim Ballengee, [is] credible. 17. The Court finds, based on the Court reporter's record, that the testimony of Tim Ballengee referring to admonishments and immigration consequences given at the time the applicant took his plea [is] credible. 18. The Court finds that the testimony given by Officer K. Truong, referring to the strength of the State's case against the applicant [is] credible. 19. The Court finds, based on the totality of the evidence presented, assertions made, and the testimony given that the applicant was not credible.5 *14420. The Court finds the applicant's assertion that he would not have pled guilty but for the alleged deficient conduct but would have insisted on going to trial is not credible. 21. The Court finds that the applicant's plea was voluntary. 22. The Court finds that the assertion made by applicant that he was automatically deported following his voluntary plea, [is] not credible. 23. The Court finds that the applicant entered his plea agreement on October 8, 2012. 24. The Court finds that deportation proceedings were not initiated until April 22, 2013.... 25. The Court finds based on the Court reporter's record, and consistent with the Court's previous ruling, the applicant's writ is denied. Based on the findings, the habeas court made the following conclusions of law:"], "id": "1c106dca-a98e-49cb-a210-6a05c7c08793", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The Appellate Division, Second Department, has made it clear that the fact that a defendant had previously been convicted of a removable offense does not necessarily require a finding that he was not prejudiced by his counsel\u2019s failure to advise him of the removal consequences of his plea (see Picca, 97 AD3d at 183). Similarly, here, the fact that defendant\u2019s visa had expired before he entered into his guilty plea, thereby rendering him deportable, does not necessarily require a finding that he was not prejudiced by virtue of the mandatory consequences of the instant plea, particularly since, without the instant conviction, he may have qualified for certain discretionary relief, such as cancellation of his removal from the United States or an adjustment of his immigration status (see 8 USC \u00a7 1229b; Padilla, 559 US at 363-364). Furthermore, the record demonstrates that, although defendant\u2019s visa had expired before he entered into his guilty plea, the notice to appear in the removal proceeding was dated more than a year after defendant took his plea. Thus, as in Picea, *27defendant\u2019s removal from the United States was not imminent at the time he took his plea (see Picca, 97 AD3d at 185)."], "id": "8bb8b926-54e1-4b68-82c5-e3f545f574fa", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["See 8 U.S.C. \u00a7 1158(b)(2)(A)(ii), (B)(i) (precluding asylum for aliens who have been convicted of a \u201cparticularly serious crime,\u201d which includes aggravated felonies); id. \u00a7 1229b(a)(3) (providing that conviction for \u201cany aggravated felony\u201d renders aliens ineligible for cancellation of removal); id. \u00a7 1231(b)(3)(B)(ii) (providing that an alien convicted of one or more aggravated felonies with an aggregate prison sentence of at least five years is barred from seeking withholding of removal). See 8 C.F.R. \u00a7 1001.1(p) (providing that a lawful-permanent-resident status \u201cterminates upon entry of a final administrative order of exclusion, , removal, or recission\u201d). See, e.g., 8 U.S.C. \u00a7 1182(a)(2)(A)(i)(I) (crimes of moral turpitude), (II) (drug crimes). See id. \u00a7 1182(a)(6)(E)(i). See id. \u00a7 1255(a) (providing that any inadmissible alien is ineligible for an adjustment of status). See id. (providing that an adjustment of status may be granted in the discretion of the Attorney General to aliens who are eligible to receive an immigrant visa and are \u201cadmissible to the United States for permanent residence\u201d)."], "id": "ba006d98-905a-4527-828f-5e1f0ec018b1", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["As to the fourth, fifth, eighth, and ninth factors, \"[a] parent's inability to provide adequate care for [his] children, ... lack of parenting skills, and poor judgment may be considered when looking at the children's best interests.\" Id. at 119. The evidence showed that the children were well-groomed and clean at all times, that Father's home was appropriate, and that he was a good provider. However, Father's testimony established that he first believed that Greg needed to go to the emergency room while he was giving the child a bath, but decided not to take him to the emergency room, choosing instead to finish the bath, pick Mother up from the salon, and return home. A jury could have concluded from this evidence (1) that Father exhibited poor judgment in caring for his child and/or (2) that Father caused Greg's injuries since they occurred while in his care. Further, Father had been incarcerated for the past year on pending criminal charges for injury to a child, had an immigration hold against him because he was not a United States citizen, and faced the possibility of . As a result, he was unable to take advantage of any programs available to assist him. The jury could have also determined that Father's failure to acknowledge that Greg had been injured, and his insistence that the injuries were the result of a medical condition, created a situation where Father would be unable to recognize and protect his children from future child abuse. We find that the fourth, fifth, eighth, and ninth Holley factors weigh in favor of terminating parental rights."], "id": "91a50462-b170-4187-a646-7af79cb6db76", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Accordingly, this court does not believe itself bound by the decisions of the Appellate Term. For that reason, and because I have previously expressed my own contrary views on the issue of whether prevailing professional norms in or about 1988 required a defense counsel to warn an undocumented immigrant client of the consequences of a guilty plea {see People v Sterling Taylor, Sup Ct, NY County, Oct. 28, 2011, indictment No. 6461/1992, slip op at 23 n 3), this court respectfully declines to follow People v Feliciano."], "id": "48c16e5b-5a88-4ef5-8853-25e7eda6a2ed", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["(e) Definition.--As used in this section the phrase \u201cofficial detention\u201d means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or , or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail."], "id": "1d79b4c3-2da8-4f50-9009-4172a1c21964", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["\u201c(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any order issued by the federal government . . . ; (v) [the written statement of the] crime victim or the victim\u2019s representative, where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the presentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.\u201d (Executive Law \u00a7 259-i [2] [c] [A], as amended by L 2011, ch 62 [repealing section 259-i (1) and adding factors (vii) and (viii) to section 259-i (2) .(c), to consolidate all factors governing release decisions into a single section of the parole statute; *699previously, factors (vii) and (viii) (seriousness of the offense and prior criminal history) were separately set forth in section 259-i (1) which is now repealed].) Of greater significance, Executive Law \u00a7 259-c (4) was recently amended to require the Board to promulgate new procedures in making parole release decisions. Such new procedures to be adopted \u201cshall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision.\u201d (See L 2011, ch 62, part C, subpart A, \u00a7 38-b.)"], "id": "5c6f643d-80f4-44e4-bf9d-37eecb663c28", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["McEntee's advice and counsel to Chen make this case materially different from those cases where counsel's performance has been held deficient. In People v. Novoa (2019) 34 Cal.App.5th 564, 246 Cal.Rptr.3d 254, the lawyer had minimal interactions with the defendant, lacked any documentation in his case file regarding discussions of immigration concerns, and there was no evidence counsel adequately explained to the defendant the immigration consequences *366of pleading guilty or attempted to negotiate any plea agreement with the prosecutor. ( Id. at pp. 587-589, 246 Cal.Rptr.3d 254.) Similarly, in In re Hernandez (2019) 33 Cal.App.5th 530, 244 Cal.Rptr.3d 894, counsel did not discuss whether a conviction could affect defendant's immigration status, had no awareness of defendant's immigration status or risk of , and did not attempt to negotiate an alternative plea to avoid any adverse immigration consequences. ( Id. at pp. 545-546, 244 Cal.Rptr.3d 894.) The defense counsel in Camacho , supra , 32 Cal.App.5th 998, 244 Cal.Rptr.3d 398, did not remember discussing immigration consequences with the defendant, misunderstood the effects of expungement or reductions of felonies in immigration cases, and did not explore possible alternatives to pleading an aggravated felony, and the defendant himself erroneously believed a negotiated plea calling for no time in custody would avoid making him deportable. ( Id. at pp. 1002-1003, 1009, 244 Cal.Rptr.3d 398.) Finally, in People v. Espinoza (2018) 27 Cal.App.5th 908, 915, 238 Cal.Rptr.3d 619, counsel could not recall what advisements he discussed with defendant, and his notes did not refer to any discussion of immigration consequences. ( Id. at p. 915, 238 Cal.Rptr.3d 619.) Unlike all of these cases, McEntee had numerous discussions with Chen about her plea, warned her of the immigration effects of her plea, and made an effort to negotiate a plea that would not have such drastic immigration consequences."], "id": "59204f0c-6971-4386-a7cd-0ec038a5c7a7", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["From the evidence cited ante , it is clear trial counsel did not know that pleading guilty to Health and Safety Code section 11378, which constituted an aggravated felony, would mandate of defendant. Moreover, although the trial court advised defendant that he could be deported, defendant was not informed that deportation would be mandatory . This is not a case where deportation was a possibility. This case presented a situation where pleading guilty to Health and Safety Code section 11378 mandated deportation. Trial counsel should have been aware of or researched the actual immigration consequences of pleading guilty to Health and Safety Code section 11378, and advised defendant of the immigration consequences. Trial counsel, by simply going over the Tahl form and advising defendant that he could be deported, is objectively deficient performance under prevailing professional norms."], "id": "ee265fe3-a3ff-450e-990e-9dffd156e072", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Here, defendant complains that his plea counsel never advised him that his guilty plea \u201cwould presumptively result in [his] permanent banishment from the United States, and would render [him] permanently ineligible for lawful permanent residence in the United States.\u201d (Aff of defendant, sworn Mar. 18, 2011, H 4.) In this case, defendant\u2019s guilty plea to a drug conviction immediately and permanently deprived him of any avenue by which he could avoid and remain in this country legally. The elimination of defendant\u2019s eligibility for these remedies rendered defendant subject to deportation without recourse, and therefore had direct deportation consequences for him."], "id": "183b73f5-10e1-4bf8-b9e8-4ba9683ed089", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In Padilla , the U.S. Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of arising from a guilty plea. 559 U.S. at 374, 130 S.Ct. at 1486. Counsel's performance is deficient if counsel fails to advise a noncitizen client with \"accurate legal advice about the 'truly clear' consequences of a plea of guilty to an offense that, as a matter of law, renders him 'subject to automatic deportation.' \" Id. at 360, 369, 130 S.Ct. at 1473 ; Ex parte Torres , 483 S.W.3d at 46. \"A failure by counsel to affirmatively and correctly advise a defendant regarding the clear deportation consequences of his plea will render counsel's performance constitutionally deficient, thereby satisfying the first Strickland prong.\" Ex parte Duque , --- S.W.3d at ----, 2017 WL 4067110, at *8 (citing Padilla , 559 U.S. at 369, 374, 130 S.Ct. at 1483, 1486 )."], "id": "e21ba924-bf05-4f88-8859-99e33e632d4e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Based on his interactions with Deen, plea counsel did not see any reason to investigate Deen's mental competency, and counsel believed that Deen understood the proceedings. Deen specifically told plea counsel that he wanted to plead guilty and return to Sierra Leone in the fastest way possible. Because of these statements, plea counsel focused his strategy on Deen's immigration status. Deen supported plea counsel's strategy to seek possible by providing counsel with the necessary deportation information that counsel would then give to the appropriate authority. In light of Deen's statements and actions, Deen has not demonstrated why it was an unreasonable strategy for plea counsel to pursue a guilty plea and attempt to facilitate deportation, regardless of the potential availability of a defense based on Deen's mental health. \"Pursuing one reasonable strategy to the exclusion of another does not constitute ineffective assistance of counsel.\" Barton v. State , 432 S.W.3d 741, 753 (Mo. banc 2014)."], "id": "871b2b98-3c7e-4b8c-b1c6-5114b02430ac", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["This legal malpractice action arises out of defendant attorney\u2019s representation of plaintiff, a Venezuelan native, in connection with an immigration matter. The trial evidence showed, and it is not seriously disputed, that despite a specific directive by the United States Immigration Court that plaintiff personally appear in court on a specified date, defendant advised plaintiff not to comply; that plaintiff heeded defendant\u2019s advice, with neither one appearing as directed on the court date; and that the intentional nonappearance, representing defendant\u2019s purported \u201cstrategy\u201d to \u201cbuy time,\u201d resulted in the Immigration Court\u2019s issuance of an in absentia order against plaintiff and his subsequent 14-month detention in \u201clockdown\u201d custody. The jury unanimously returned a plaintiff\u2019s verdict finding that defendant committed legal malpractice, a determination not now directly challenged by defendant on sufficiency or weight of the evidence grounds."], "id": "5c8c4c82-74d0-4a55-85d9-b7b004805811", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The principles found in Martinez and Lee apply equally to a prejudice analysis under section 1473.7. (See Ogunmowo , supra , 23 Cal.App.5th at p. 78, 232 Cal.Rptr.3d 529.) As the United States Supreme Court pointed out, \"[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty *1011also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.]\" ( Lee , supra , 137 S.Ct. at p. 1966.) In Lee , the court found that the defendant had demonstrated a reasonable *409probability that he \"would have rejected any plea leading to -- even if it shaved off prison time -- in favor of throwing a 'Hail Mary' at trial.\" \"Lee had lived in the United States for nearly three decades [since leaving as a child], had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents -- both naturalized American citizens.\" ( Id . at pp. 1967-1968.)"], "id": "75a39a31-dd74-4b65-ba15-e5b9d8651e94", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In 1990, Congress created the status of special immigrant juvenile to provide relief from to unaccompanied or otherwise neglected children who were in the United States illegally. (See 8 USC \u00a7 1101 [a] [27] [J] [defining special immigrant juvenile]; Matter of Marcelina M.-G. v Israel S., 112 AD3d 100, 101 [2d Dept 2013] [setting out history of special immigrant juvenile statute]; Matter of Hei Ting C., 109 AD3d 100, 102 [2d Dept 2013] [same].) To be eligible for special immigrant juvenile status, a child had to be a child under federal immigration law (that is, under age 21 and unmarried); declared \u201cdependent\u201d on a \u201cjuvenile court\u201d; eligible for long-term foster care; and, in addition, a state \u201cjuvenile court\u201d had to make a factual finding that it was not in the child\u2019s best interest to return to his or her native country. (8 CFR 204.11 [c] [implementing regulations for special immigrant juvenile statute]; Marcelina M.-G. at 107.)"], "id": "03b627aa-4f55-463b-807b-096b79b42ae5", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Next, Morales testified. He said he was a Mexican native who entered the United States when he was 17 years old, three years before he committed the 2002 offense. In 2002, he knew there was a likelihood he would be subject to . His counsel, Loikedis, informed him of this likelihood, but did not advise him his no contest plea would certainly result in immediate deportation and permanently bar him from legal residency. Subsequently, he *781consulted with an attorney who advised him that his prior conviction would likely prevent him from obtaining a U visa and recommended he make an effort to \"do something\" about that conviction."], "id": "260c1baa-30aa-45a0-9bb0-d794c77efca3", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In our view, Johnson did not put an end to the \"as-applied inquiry first\" rule. Rather, the decision appeared to involve an exceptional statute in which the key defect could be established without examining the statute as applied to the challenger's circumstances. Indeed, after Johnson , both federal and California courts have continued to rely on the \"as-applied inquiry first\" rule. ( Cook , supra , 914 F.3d at pp. 549-555 [applying rule in rejecting facial vagueness challenge to criminal statute]; Doe v. Valencia College (11th Cir. 2018) 903 F.3d 1220, 1233 [relying on rule in rejecting facial vagueness challenge to school rule regulating unprotected student speech]; Ledezma-Cosino v. Sessions (9th Cir. 2017) 857 F.3d 1042, 1047 [applying rule in rejecting facial vagueness challenge to statute];"], "id": "b52370b3-d582-4bf4-ab7c-187362752515", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Aguilera contends that the habeas court erred in denying him relief because Escalante failed to advise him that, even though his charge would be dismissed upon completing his deferred adjudication probation, his guilty plea to family assault was a conviction for immigration purposes and it was an offense that made him subject to automatic , as required by Padilla . Aguilera also asserts that he was prejudiced because he would have insisted on going to trial had he been aware of the immigration consequences of his guilty plea. On the contrary, the State contends that Escalante had provided adequate assistance by informing Aguilera that he would be subject to deportation after his guilty plea to assault on a family member, that he should contact an immigration attorney because he would be deported, and that, in any event, he failed to establish prejudice."], "id": "f1c53213-49fe-4f70-bd71-f17c8f2f48fb", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Marylin G. Diamond, J. Plaintiff wife, Cynthia Wu, and defendant husband, Chao Qiang Wu, were married on May 8, 1992. On July 11, 1994, plaintiff commenced an action for divorce against defendant alleging cruel and inhuman treatment (Domestic Relations Law \u00a7 170 [1]). On January 18, 1995, the Justice then presiding over this case denied defendant\u2019s motion to dismiss the complaint *884and granted plaintiffs cross motion to amend her divorce action to an action for annulment on the ground that defendant obtained her consent to marry him by fraud solely for the purpose of evading potential proceedings. On August 30, 1995, that court granted, on default, defendant\u2019s motion to amend his answer to interpose a counterclaim for abandonment. Defendant alleged therein that plaintiff abandoned him by leaving the marital home without just cause on or about April 5, 1994, several months prior to plaintiffs commencement of her divorce action."], "id": "b25de747-05c7-45ab-b3f5-6834c8a7ef2b", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["\"Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, , and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences.\" (\u00a7 1016.2, subd. (e).) \"Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request *826bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.\" (\u00a7 1016.2, subd. (f).)"], "id": "4794bac5-91a8-40a2-9403-c49591bc5732", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["A perusal of the report submitted to me by the Probation Department and of the official transcript taken at the time of sentencing discloses that the defendant\u2019s alien status was known to both the court and defendant\u2019s counsel. However, subdivision (b) of section 1251 of title 8 of the United States Code provides that a recommendation that the defendant alien be not deported may be made only upon due notice \u2018 \u2018 prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.\u201d No such notice was given to the Immigration Service and, therefore, *834the court did not in any way consider that question. It would, therefore, seem meet and proper that I now, for whatever good it may do the defendant, state what I would have done if the question of possible and the recommendation to bo made in connection therewith were properly before me at the time of sentence."], "id": "073f7dbd-c867-40a2-ab3b-75a0e28dc16b", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The record contains the general admonishments given to Appellant during the plea proceedings, which include the following: \"[I]f you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your , or your exclusion from admission to this country, or your denial of naturalization under Federal law.\" Appellant initialed the admonishment, indicating that he understood it."], "id": "dae2975e-bdb1-49ba-a99c-c4fff7f4fd84", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["We are cognizant that the Supreme Court has \"recognized that 'preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.' \" Padilla , 559 U.S. at 368, 130 S.Ct. at 1483 (quoting INS v. St. Cyr , 533 U.S. 289, 322, 121 S.Ct. 2271, 2291, 150 L.Ed.2d 347 (2001) ). However, here, in addition to the habeas court's finding that Appellant was not credible, Appellant offered sparse contemporaneous evidence to support his claim that he would not have pleaded guilty had he known that his was mandatory. In contrast to the defendant in Lee , noticeably absent here was any evidence tending to show that, during plea discussions, Appellant was concerned with the immigration consequences of a conviction rather than being concerned with jail time. Cf. Lee , 137 S.Ct. at 1967 (stating that deportation was the \"determinative issue\" for Lee during the plea discussions); see also Torres , 483 S.W.3d at 49 (noting that Torres's statements in his affidavits \"make no mention of any special concern for potential immigration consequences, instead appearing to focus on a desire to avoid conviction and jail time\")."], "id": "c55802df-960c-45a5-b382-b49b2ab15deb", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["However, when, as was the case in Padilla , federal immigration law specifies in \"succinct, clear, and explicit\" terms that a conviction will result in , the criminal defense attorney's duty to \"give correct advice is equally clear\" ( Padilla, supra, 559 U.S. at pp. 368-369, 130 S.Ct. 1473 ) and \"a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea\" ( Patterson, supra, 2 Cal.5th at p. 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ). Applying Padilla, supra, 559 U.S. 356, 130 S.Ct. 1473, the California Supreme Court in Patterson stated that \"[t]he generic advisement under [Penal Code] section 1016.5 is not designed, nor does it operate, as a substitute for such advice.\" ( Patterson, supra, 2 Cal.5th at p. 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169.)7"], "id": "ff36d779-a308-40ce-b538-2868b8c6dd91", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Until its repeal in 1990, section 1251 (b) (2) of title 8 of the United States Code (Immigration and Nationality Act of 1952 \u00a7 241 [B] [2]) stated that its provisions regarding of aliens convicted of certain crimes of moral turpitude for which a sentence of a year or more had been imposed (subd [a] [4]) shall not apply:"], "id": "660e47c3-3ac7-4b72-a6f1-0591650b2e6f", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["*540*1069The Supreme Court's decision in Segura does not require a different result. In that case, the defendant was sentenced to a term of probation on the condition that he serve 365 days in county jail. (Segura,supra, 44 Cal.4th at p. 925, 80 Cal.Rptr.3d 715, 188 P.3d 649.) After his release from jail, federal immigration authorities arrested him and began proceedings. (Id . at p. 927, 80 Cal.Rptr.3d 715, 188 P.3d 649.) Segura asked the trial court to modify his probationary jail term, after the fact, to 360 days because the reduction would benefit him in the deportation proceedings. (Ibid. ) Segura argued the trial court could change the terms of the plea agreement under its statutory authority (\u00a7 1203.3) to modify the conditions of probation without the consent of the prosecution. The Supreme Court rejected this view, holding the statutory authority to modify the conditions of probation do not extend to reducing an agreed-to prison sentence and do not permit the trial courts to override the terms of plea agreements. (Segura,supra, at p. 935, 80 Cal.Rptr.3d 715, 188 P.3d 649.) This case is different. Here, the voters passed an initiative that expressly allows defendants to seek the retroactive reduction of existing convictions and sentences and expressly requires trial courts to reduce such convictions and sentences for eligible offenders. (\u00a7 1170.18, subds. (a) & (b) ; see also \u00a7 1170.18, subds. (f) & (g).)"], "id": "f386d453-15df-4345-80c3-5143c968c71f", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Throughout the plea negotiations, Lee expressed his concern to his attorney about being deported as a result of pleading guilty. Id. Lee's attorney repeatedly assured Lee that he would not be deported if he pleaded guilty. Id. When Lee pleaded guilty, the trial court admonished him that he could be deported; however, Lee's attorney again assured him that the admonishment did not apply to him. Id. at 1968. But Lee's attorney was wrong. Id. at 1962. After pleading guilty and being sentenced to one year and one day in prison, Lee learned that his drug conviction subjected him to mandatory . Id."], "id": "bc7a432c-d04c-495c-afff-c774a02286df", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Effective January 1, 2016, the California Legislature enacted two new Penal Code sections, which codified and expanded the protections for noncitizen criminal defendants. (\u00a7\u00a7 1016.2, 1016.3.) In section 1016.2, subdivision (c), the Legislature noted that: \"In [ Padilla ], the United States Supreme Court found that for noncitizens, is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense. It may be by far the most serious penalty flowing from the conviction.\""], "id": "0ea56d1d-071a-4de0-860e-cf46d106b480", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Because possession of marijuana for sale is an \"aggravated felony\" under federal law and was an aggravated felony at the time of defendant's plea ( 8 U.S.C. \u00a7 1101(a)(43)(B) ), and exclusion from readmission was and remains mandatory. ( 8 U.S.C. \u00a7 1227(a)(2) ; see Moncrieffe v. Holder (2013) 569 U.S. 184, 188, 133 S.Ct. 1678, 185 L.Ed.2d 727.) Expungement under section 1203.4 has no effect on the federal immigration consequences of a conviction of such a felony. ( People v. Martinez (2013) 57 Cal.4th 555, 560, 160 Cal.Rptr.3d 37, 304 P.3d 529 ( Martinez ), citing Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174-1175.)"], "id": "98aef984-a5ee-4296-9a59-cbecb06c2667", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["At the time that defendant entered his guilty plea, the failure of a lawyer to advise a defendant of the immigration consequences of pleading guilty did not deprive the defendant of effective assistance of counsel. (People v Ford, 86 NY2d 397 [1995].) However, in 2010, the United States Supreme Court held that the failure to advise a client of the consequences of a guilty plea could support an ineffective assistance of counsel claim (Padilla v Kentucky, 559 US 356 [2010]). Three years later, the Supreme Court held that Padilla broke new ground by announcing a constitutional obligation that had not previously been imposed upon criminal defense attorneys. (Chaidez v United States, 568 US \u2014, \u2014, 133 S Ct 1103, 1110-1111 [2013].) Therefore, the Supreme Court held that Padilla cannot be applied retroactively to convictions that became final prior to March 31, 2010 (i.e., the date Padilla was decided). (568 US at \u2014, 133 S Ct at 1113.)1"], "id": "1cf50907-4cc1-45cd-b343-f08eba4d3edf", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["When a trial court makes explicit credibility findings, we must give deference to those credibility determinations. See State v. Sheppard , 271 S.W.3d 281, 286 (Tex. Crim. App. 2008). A trial court acting as the sole fact finder may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Here, the habeas court explicitly found Appellant was not credible and found that his plea counsel, Rodriguez, was credible. These credibility findings are reconcilable because there was not great overlap between Appellant's and Rodriguez's testimony. However, we note one common area of testimony: whether Appellant was informed of the immigration consequences of his guilty plea. Appellant and Rodriguez each testified that Rodriguez informed Appellant that he may be deported if he pleaded guilty but did not inform Appellant that his was mandatory. At the habeas hearing, the judge indicated that she had also presided at the plea proceedings. She noted that she had written on the plea papers that Appellant had been informed that he may be deported. As Appellant and Rodriguez had testified, the judge acknowledged that Appellant had not been informed that his deportation would be mandatory following a guilty plea. Thus, it appears that the habeas court's findings regarding the respective credibility of Appellant and Rodriguez are pertinent to factual issues other than whether Appellant was informed of the immigration consequences of his plea, such as Appellant's claim that he would not have pleaded guilty had he known he would be deported, Appellant's testimony about when deportation proceedings were initiated against him, and Rodriguez's testimony regarding his meeting with Appellant before the guilty plea."], "id": "97d258b6-f6c2-4b1e-a717-1798d2e241a7", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The People additionally argue that requiring defendant to enter a plea puts him in no worse position than he would be in without the plea. The People point out that the status of being a drug addict or abuser is an independent ground for (8 USC \u00a7 1227 [a] [2] [B] [ii]). The People assert that defendant\u2019s participation in diversion is tantamount to an admission to being a drug abuser or addict. Therefore, they argue, requiring defendant to plead guilty would merely add an additional ground for deportation. While this argument may be technically correct, it is the court\u2019s understanding that this ground is rarely, if ever, invoked by the Immigration and Naturalization Service. Defense counsel informs the court that a search of the Board of Immigration Appeals cases since 1952 revealed only one case in which the government has prevailed where the sole ground for deportability is that someone is a drug abuser or addict. That case was in 1960, more than a half century ago. The absence of the use of this ground as a basis for deportation proceedings is also consistent with the experience of defense counsel\u2019s colleagues at the Legal Aid Society Immigration Law Unit."], "id": "db0effd4-9f76-4c82-bf6a-1f790b847fc4", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Defendant\u2019s reliance upon Padilla v Kentucky is misplaced. Initially, defendant overstates the Supreme Court\u2019s ruling in Padilla. Having conceded that the use of defendant\u2019s plea allocution at a subsequent prosecution is a collateral consequence, defendant cites Padilla for the proposition \u201cthat counsel must warn clients of potential adverse collateral consequences before accepting guilty pleas.\u201d (See defendant\u2019s motion at 6.) However, Padilla makes no such pronouncement. In Padilla, in determining that counsel is constitutionally required to apprise her client of the immigration consequences of a plea (when those consequences are succinct, clear and explicit), the Court relied on the sui generis nature of \u2014 the severity of the penalty and the automatic way it follows from conviction \u2014 to show that the collateral versus direct distinction *585was ill-suited to dispose of Padilla\u2019s claim. (See Chaidez, 568 US at \u2014, 133 S Ct at 1112.) Similarly, in People v Peque, the Court of Appeals struggled to find a home for deportation in the direct/collateral divide. In Peque, in determining that a trial court is constitutionally required to apprise non-citizen defendants of the possibility of deportation prior to entering a guilty plea, the Court found that although deportation is \u201ctechnically on the collateral side of the direct/collateral divide\u201d it fell within a rare case exception to the usual rule that, if collateral, there is no constitutional duty on a trial court to apprise. (See People v Peque, 22 NY3d at 192.) In holding that due process still requires a trial court to warn defendant of the immigration consequences of his or her plea, the Court emphasized the \u201ctruly unique nature of deportation as a consequence of a guilty plea\u201d and explicitly stated, \u201cthere is nothing else quite like it.\u201d (Id. at 196.) Thus, if there is one thing that Padilla and Peque actually make clear, it is that deportation is a sui generis consequence of a plea, and thus, contrary to defendant\u2019s assertion, neither case has extended categorically an attorney\u2019s or a trial court\u2019s duty to apprise a defendant of all adverse collateral consequences of a guilty plea."], "id": "a32dd5df-5eca-4191-ae52-10e9bb89742f", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["\u201cNow, [defense counsel] stated on the record, and I am required by law to advise every person who pleads guilty to this type of crime . . . that a person who is not a United States citizen and is convicted by plea of this crime will face , exclusion from the country, or the denial of the right to become a citizen at a future date. Do you understand that?\u201d The defendant replied, \u201cYes.\u201d The case was adjourned for sentencing."], "id": "b577bdc2-8ac3-49cf-8327-6c49c12e6acc", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Our precedents confirm this commonsense application of \u00a7 1326(d)(2). We have only held defendants to have been deprived of judicial review under \u00a7 1326(d)(2) when there was no judicial review whatsoever of their removal order. See, e.g., Lopez-Chavez, 757 F.3d at 1041 (defendant\u2019s attorney \u201cfailed to appeal to the BIA and then petition the Seventh Circuit\u201d for relief from removal order despite \u201cclear basis\u201d for doing so); United States v. Ramos, 623 F.3d 672, 682 (9th Cir. 2010) (defendant\u2019s \u201cwaiver of his right to appeal [his] removal order was procedurally defective and deprived him of the opportunity for meaningful judicial review\u201d). This reflects the rationale that \u201cwhere the defendant has failed to identify any obstacle that prevented him from obtaining judicial review of a order, he is not entitled to such review as part of a collateral attack under 8 U.S.C. \u00a7 1326(d).\u201d Gonzalez-Villalobos, 724 F.3d at 1132 (citations omitted); see also id. at 1133 (\u201cthe defendant must show an actual or constructive inability to seek judicial review . . . to satisfy \u00a7 1326(d)(2)\u201d)."], "id": "fd8479e5-6fef-420e-9d37-339fc22ea9ed", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["As noted ante , Hernandez previously filed a petition for writ of habeas corpus which the trial court summarily denied, without an evidentiary hearing. The pending petition for writ of habeas corpus in this court is, therefore, an original proceeding in which we independently review the record. ( In re Scott (2004) 119 Cal.App.4th 871, 877, 884, 15 Cal.Rptr.3d 32.) The instant petition is based on Hernandez's contention she was never advised by trial counsel that her guilty plea would result in mandatory . The parties agree there is no evidence in the record showing Hernandez was advised her plea would result in mandatory deportation. As our ruling on the petition does not depend on the resolution of any disputed issues of fact in the record, an evidentiary hearing is unwarranted. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 675, 128 Cal.Rptr.2d 104, 59 P.3d 174.)"], "id": "b54b8753-165e-46e3-b549-cc3dc3c123b5", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["With respect to meeting the objective standard of reasonableness for immigrant clients, the Supreme Court in Padilla articulated a two-tiered standard. Where the law pertaining to the consequences of a guilty plea is \u201ctruly clear,\u201d the Court explained, the duty of a defense counsel to offer to a noncitizen client \u201ccorrect advice\u201d as to those consequences is \u201cequally clear.\u201d (Padilla v Kentucky, 559 US at \u2014, 130 S Ct at 1483.) But \u201c[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.\u201d (Id.)"], "id": "49fee2e7-50d9-4e0b-a6f2-3886c3905fa0", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["As a result of this evidence the Government instituted proceedings in August of 1964 on the charge that petitioner, at the time of entry, was a sexual deviate. The proceedings were terminated by the special inquiry officer on the ground that a homosexual is not, per se, a constitutional psychopathic inferior. The Board of Immigration Appeals reversed this determination, but approved the order terminating the proceeding on the ground that the Government had failed to prove that petitioner was a sexual deviate at the time of her entry."], "id": "496919b7-e9a8-4cf3-b7a1-747f52386875", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["\u201cAnd as to whether or not, you know, he is a man who would never take a deal that might jeopardize his immigration, all I have to do is look at his prior case where the plea said he will be deported in the plea form and that involved a prior strike, which resulted in the defendant going through the proceedings. So he had prior[ ] knowledge and experience of immigration consequences resulting from a criminal conviction."], "id": "434a8b01-6746-4ba8-999e-e68f1c8086fc", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["rationale, and the most prominent of these programs also received Congress\u2019s implicit approval. In particular, as noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens granted legal status under IRCA\u2014aliens who would eventually \u201cacquire lawful permanent resident status\u201d and be able to petition on behalf of their family members. Family Fairness Memorandum at 1; see supra p. 57. Later that year, Congress granted the beneficiaries of the Family Fairness program an indefinite stay of . See Immigration Act of 1990, Pub. L. No. 101-649, \u00a7 301, 104 Stat. 4978, 5030. Although it did not make that grant of relief effective for nearly a year, Congress clarified that \u201cthe delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing family fairness program should be"], "id": "674bb61a-07fa-40f2-b274-19c4b4f75107", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Abraham Gerges, J. Defendant had pleaded guilty before this court on February 6, *4402007, and the matter is now on for sentence. What had been a simple imposition of sentence based on a negotiated plea has now turned into something far more complex. Under consideration by the court is vacatur of the plea, imposition of the agreed upon sentence, or a reduction of the sentence to time served resulting in immediate ."], "id": "14d8128c-4de9-41de-bd59-eb310b9280bd", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["I-213 indicating that Jimenez-Sandoval was born on August 6, 1973, making her 20 years old at the time of her entry.1 Presumably because the immigration officers believed she was an adult at the time of her entry, they released her on her own recognizance and served her with an OSC and Notice of Hearing. The served documents included the date, time, and location of her proceedings. Jimenez-Sandoval failed to appear before the IJ and was ordered deported in absentia."], "id": "6ecd3486-a4af-4436-80d6-b84b92f6d6d3", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The plea form includes the statement that Tapia's attorney had explained the consequences of the plea to him and \"if not a citizen, my plea may have the consequence of my , exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.\" Tapia initialed this statement. Above Tapia's signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof."], "id": "16a285d9-c92b-4d13-b33d-6410aa281349", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The People opposed the motion on the ground that the case against defendant, which included his statement admitting that he had touched the victim, was strong. The prosecutor argued that, under Padilla, a defense attorney must advise his client of consequences of a guilty plea only when the consequence is succinct, clear and explicit, and can easily be determined. In the case at bar, defendant\u2019s claims were based on his self-serving affidavit, without any supporting evidence. Defendant\u2019s affidavit and his son\u2019s statement contradicted each other, as defendant claimed that his former attorney had given him incorrect advice regarding the consequences of his plea, while his son\u2019s statement alleged that the attorney had never made any representations regarding the consequences of the plea. The prosecutor noted the advisement contained in paragraph 14 of the misdemeanor conviction waiver of rights form signed by defendant. The prosecutor also argued that, even if defendant\u2019s counsel was ineffective for not advising or erroneously advising him regarding the consequences of his plea, defendant was not prejudiced thereby."], "id": "74f9a24c-90a5-46de-9ede-58bff8ee45e4", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Defendant\u2019s plea on May 7, 1985 to the D felony of attempted burglary in the second degree was entered with the understanding the court would recommend against his at the time of sentence on May 29, 1985. That recommendation was made, but was disregarded by the United *979States Immigration and Naturalization Service because of lack of notice pursuant to 8 USC \u00a7 1251 (b) to the United States Attorney General of defendant\u2019s request. Deportation proceedings were commenced in view of defendant\u2019s conviction and his noncitizen status. Prior counsel\u2019s failure to give that statutory notice and afford the Attorney General an opportunity to be heard at the time of sentencing deprived the defendant of a fundamental and constitutional right to effective assistance of counsel with regard to the scope of punishment he faced upon entry of his guilty plea. (Janvier v United States, 793d 449 [2d Cir 1986].)"], "id": "9bd36aa7-97e0-4c2d-a879-949472271baf", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The People appeal from an order dated August 23, 2005, which granted defendant\u2019s motion, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction, and from so much of an order dated October 25, 2005 which, upon granting the People\u2019s motion for reargument, adhered to the prior decision. Defendant, a native of Pakistan and a lawful permanent resident of the United States, alleged that he entered his guilty plea to sexual abuse in the second degree (Penal Law \u00a7 130.60 [2]), a misdemeanor, in reliance upon his trial counsel\u2019s misrepresentations that the United States Government usually does not deport persons convicted of misdemeanors and that because defendant had been granted \u201casylum,\u201d he would \u201cnot have a problem\u201d with immigration authorities. The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory upon a conviction of an offense involving the sexual abuse of a minor, an \u201caggravated felony\u201d under federal deportation law, *86even though classified a misdemeanor under New York State law (Immigration and Nationality Act \u00a7 101 [a] [43] [A] [8 USC \u00a7 1101 (a) (43) (A)]; \u00a7 237 [a] [2] [A] [iii] [8 USC \u00a7 1227 (a) (2) (A) (iii)]; United States v Couto, 311d 179, 184 [2d Cir 2002]; Zhang v United States, 401 F Supp 2d 233, 241-242 [ED NY 2005]; see People v McKenzie, 4 AD3d 437, 439 [2004]). Defendant alleges that he would not have pleaded guilty to a deport-able offense absent such misinformation, thereby asserting a legal basis for the relief (CPL 440.30 [4] [a]; People v Van Deusen, 7 NY3d 744 [2006]; People v McDonald, 1 NY3d 109 [2003]; People v Bao Lin Xue, 30 AD3d 166 [2006]), in that trial counsel\u2019s advice expressed so \u201cinappropriate [a] level of expectation\u201d regarding the likelihood of deportation (People v Gatien, 17 AD3d 101, 102 [2005]) as to fall below an objective standard of meaningful representation (People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]), and established \u201ca prima facie showing of prejudice\u201d (People v McDonald, 1 NY3d at 115)."], "id": "31cce194-8fdf-46d1-93d6-bef287192748", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The law by its nature invites comparisons. Defendant offers comparison with his codefendant asking the court to redress what he considers the apparent anomaly of his incarceration. Aside from comparing his fate with that of codefendant Andujar, he states that but for the firearm found on his person, which categorized him as a violent felony offender, he would *951currently be eligible for . Defendant claims his punishment compared to the release of his equally culpable co-defendant heightens his contention that his sentence was grossly disproportionate and consequently cruel and unusual."], "id": "07bd04da-f374-42e9-8076-b8d9e0efb0c3", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["To vacate a forfeiture and exonerate bail successfully under section 1305, subdivision (d) based on a defendant's , the surety has the burden of showing: \"(1) a deportation, (2) the period of time the bailee is deemed inadmissible under federal law, and (3) that the period of inadmissibility would render prosecution improbable based on the totality of the circumstances, including the statute of limitations.\" ( Financial Casualty , supra , 236 Cal.App.4th at p. 47, 186 Cal.Rptr.3d 131.)"], "id": "d0b33f20-a938-4517-a4d3-793d7f62931e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Smith was premised, inter alia, on the Court\u2019s holding that Catu errors were federal constitutional violations, triggering the requirement of CPL 400.15 (7) (b) that convictions obtained in violation of the United States Constitution cannot be used as predicate felony convictions to enhance a defendant\u2019s sen*263tence.6 Catu held that defendants must be advised of PRS consequences because they are a direct rather than a collateral result of a guilty plea. That holding relied upon the Court\u2019s earlier decision which asserted the same principle with respect to immigration consequences, People v Ford (86 NY2d 397 [1995]). Ford held that consequences were a collateral rather than direct consequence of a guilty plea. But, as relevant here, Ford based that conclusion on a range of federal and state authorities grounded in both state law and the Federal Constitution. (86 NY2d at 402-403.) Catu itself then, in this court\u2019s view, did not directly answer the question of whether the decision vindicated a federal constitutional right."], "id": "9fcfd818-090c-42f0-a9c5-c5c2dbda5e5c", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["This case is distinguishable from those in which a defendant was not prejudiced by an attorney\u2019s failure to request a JRAD, where a defendant would not have been eligible for the relief in *513any event, or where the court would not have promised to make the recommendation if counsel had raised it with the court. (Cf., People v Ahmetovic, 157 AD2d 489 [1st Dept], lv denied 75 NY2d 963 [1990].) Ahmetovic specifically pointed out that no showing had been made in that case that the defendant would not have pleaded guilty if her counsel had advised her of the consequences of her plea. In the current matter, just the opposite is true. It is indisputable that Mr. Cheung pleaded guilty only after being expressly promised that he would not be deported. Thus, while it is correct that the failure to request a JRAD, in and of itself, does not constitute ineffective assistance of counsel (People v Cuello, 188 AD2d 428 [1st Dept 1992], lv denied 81 NY2d 969 [1993]), much more than a failure to request a JRAD is at issue in this case. Here, an express promise was made to this defendant, that the court would make a JRAD: the functional equivalent of a promise that the defendant would not be deported, a power that the State court still had in 1983. Defense counsel failed to take the necessary steps to see to it that promise was fulfilled. In such a situation, effective assistance has not been provided. (See, e.g., United States v Corona-Maldonado, 46 F Supp 2d 1171 [D Kan 1999] [guilty plea set aside due to ineffective assistance of counsel where defendant chose to plead guilty only after being incorrectly informed by his attorney that he would not be deported as a consequence of his plea].)"], "id": "77c4a314-026b-46d9-ad9b-404b037b0561", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The defendant was paroled on February 14, 1966. Thereafter a proceeding was instituted against him by the Immigration and Naturalization Service for the New York District pursuant to section 242 of the Immigration and Nationality Act (U. S. Code, tit. 8, \u00a7 1252) Avhich culminated in a finding that the defendant was a deportable alien under section 241 of said act (U. S. Code, tit. 8, \u00a7 1251, subd. [a], par. [4]), and an order of deportation was duly entered against him."], "id": "01796861-8e93-4788-bb3f-6b12e64f5564", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In response to defendant\u2019s argument that he could not legally be employed, plaintiff maintains that regardless of the legality of employment, any immigration reference would prejudice the jury because of the present national controversy about undocumented aliens employed here.6 Further, plaintiff says allegations of immediate are untrue. He states that his evidence (including expert testimony) will show that he is legally present in this country. The federal government has instituted no administrative or criminal proceedings against Maliqi, and plaintiff maintains he voluntarily revealed his presence to the Department of Homeland Security with his asylum application. According to plaintiff, he is entitled to asylum under both international and domestic law (see generally Immigration and Nationality Act of 1952 \u00a7 252 [codified at 8 USC \u00a7 1282]; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra n 5). Because his appeal remains pending, plaintiff says he retains the right to remain in the United States during reconsideration of his BIA case and no negative inference arises from that fact (see generally Yeung v Immigration & Naturalization Serv., 76d 337 [11th Cir 1995])."], "id": "333978e3-1833-4a68-beb6-9ae855009a06", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["*582Ostensibly, the instant matter and Bautista appear similar. In fact, the same expert witness who testified in Bautista (Mehr) also testified in the evidentiary hearing below. However, a critical difference between Mehr's testimony in Bautista and the instant matter involves his testimony about the availability to plead up to a greater offense to avoid negative immigration consequences. In Bautista , Mehr testified about five occasions in which he was involved where the district attorney allowed a defendant to plead guilty to a greater offense to avoid . ( Bautista , supra , 115 Cal.App.4th at p. 240, 8 Cal.Rptr.3d 862.) Further, the court's analysis in that case focused on the premise that there was a reasonable probability the prosecutor and trial court would have been amenable to allowing the defendant to plead up to a nonaggravated felony and avoid deportation. ( Id. at pp. 240-242, 8 Cal.Rptr.3d 862.) Here, there was no such evidence before the trial court. Mehr did discuss greater offenses to which Novoa could have pled guilty, but he provided no evidence that the prosecutor would have accepted those pleas to allow Novoa to avoid deportation. Indeed, Mehr admitted that he had never handled a case in San Bernardino County and was not familiar with the courthouse in Fontana. Moreover, there is no suggestion in Bautista that trial counsel had a pre- Padilla duty to research and explain immigration consequences to their clients. Finally, as the opinion in Bautista was issued after Novoa *270entered his guilty plea, O'Connor could not have referred to that case for guidance on his obligation to discuss the immigration consequences of the guilty plea with Novoa."], "id": "99c38ac5-cb72-48bd-9e66-2ffa81b82060", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The motion is bitterly opposed by Dr. Roe. He spared no expense in engaging eminent counsel who represent him very well indeed. I was so impressed with his attorney\u2019s oral presentation on the return day of the motion that I indicated from the Bench that I was inclined to go along with his argument that the representatives of the Austrian Consulate General had no standing in court in the first place, and that payments for the care and maintenance of the incompetent could be enforced only while she was institutionalized in New York State; that the obligation to make such payments ceased upon her to a foreign country."], "id": "77b50c02-acc6-43fe-97cc-5e998157e7d5", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Chen says in considering the plea she \"made clear to her lawyer that she was primarily concerned about being away from her family and having to spend time in jail.\" Chen says this is the way she \"placed particular emphasis on the immigration consequences of the plea ....\" We are not persuaded. On its face, the statement simply shows that Chen did not want to be away from her parents while she was serving time in jail or prison. It does not suggest her concern was about . Moreover, this statement is taken from Chen's 2017 declaration in support of her Penal Code section 1473.7 motion. It is not evidence of events occurring at the time of her 2012 plea agreement. Chen's assertions that she would not have accepted the plea had she been properly advised, without more, are legally insufficient to demonstrate prejudice."], "id": "93415bd4-d13c-4e61-94f5-c63c30b7f376", "sub_label": "US_Terminology"} {"obj_label": "Deportation", "legal_topic": "Immigration", "masked_sentences": ["3. proceedings were commenced prior to the accident and plaintiff was ordered deported in April, 1958. Plaintiff claims that he attempted to remain in the United States by legal proceedings to stay the order of deportation and by Congressional act. No act of Congress was passed permitting plaintiff to remain in this country. Plaintiff sought to reopen deportation proceedings in order to obtain suspension of deportation in November, 1964. This application was denied by order of the District Court of the United States for the Southern District of New York, and a final order of deportation is currently outstanding against plaintiff."], "id": "4555cd78-92f3-45a7-964f-e55a3b0108b9", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["It is conceded by the United States Attorney that as a result of this hearing additional facts were developed which were not before the court at the time of sentence, and that such facts might ordinarily be sufficient to motivate the court to a favorable exercise of discretion in behalf of the defendant to the end that would not be recommended. However, although I wish to be merciful, I must give forthright obedience to the patent provisions of the statutes involved and the appellate decisions made thereunder. These are inviolate, inexorable and unalterable as far as they affect this court, this even though unmerited hardship may result therefrom."], "id": "330a6ae2-ffc0-4833-8994-cb515b17afd2", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The Supreme Court declined to adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. See id. Instead, the Lee court utilized the Hill standard to determine whether Lee was prejudiced by his counsel's incorrect advice regarding the consequences of his guilty plea. Id. at 1965. The Supreme Court explained,"], "id": "5c35bfdf-4fa2-4bd0-88a3-a06b49bf784e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Defendant, a lawful permanent resident of this country, argues that the no-plea provision of the diversion statute should apply to him because, as a noncitizen, a plea to the charge in the indictment would make him deportable. He essentially argues that the possibility of resulting from a plea is a severe collateral consequence and that this qualifies as an exceptional circumstance under the statute."], "id": "732ccdc6-65b1-42bf-9ed8-19f01cc68e06", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["A very brief analysis of section 1421 et seq. of title 8 of the United States Code \u2014 Nationality through Naturalization\u2014 reveals that section 1421 confers jurisdiction to naturalize upon the New York State Supreme Court by virtue of its being a court of record and having jurisdiction in actions at law and equity. Sections 1424 and 1425 bar subversives and deserters, respectively, from naturalization, and section 1426 disqualifies those aliens who have been relieved of military service. Subdivision (e) of section 1427 imposes upon the petitioner \u201c the burden of establishing good moral character \u201d, and subdivision (f) thereof denies naturalization to one who is an adherent of an organization against whom registration proceedings are pending for registration as subversive. Under section 1429, the burden of proof is imposed upon the petitioner to show that \u201che entered the United States lawfully and it then proceeds to bar naturalization to any person \u201c against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest \u201d, i.e., a Federal warrant. Similarly, if there are proceedings, pursuant to a warrant of arrest pending against the applicant, that, too, precludes naturalization."], "id": "c73e65ab-3c16-4b62-bb13-d3394ae02543", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Denying Eva Jimenez-Sandoval\u2019s petition for review of a decision of the Board of Immigration Appeals that denied her motion to reopen an in absentia order, the panel rejected Jimenez-Sandoval\u2019s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate."], "id": "37d527cb-49e9-455d-865b-eae51ea1c62b", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Morales also declared he had recently been counseled that his 2002 conviction barred him from \"ever\" having his U visa application granted. He contended that a U visa would not be granted to a noncitizen who was \"inadmissible\" under federal immigration law for his drug offense, citing section 214.1(a)(3)(I) of volume 8 of the Code of Federal Regulations, and section 1182, subdivision (a)(2)(A)(i)(II) of volume 8 of the United States Code. He also declared that in 2002 neither his attorney nor the court told him his conviction would cause him to be deported or bar him from ever *507coming into the United States again, and that he would not have entered his no contest plea if he had known his conviction would cause his . He further contended he had properly brought his motion under section 1473.7 even though he was not a subject of removal proceedings."], "id": "3c62cfbb-d7e7-4e4c-8b0a-bac8cafb6fc5", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Among other material offered in support of his motion, Perez submitted multiple self-declarations.2 In one such declaration, Perez indicated that he did not understand what was happening at the hearing at which he pled guilty. He claimed that his attorney did not explain other options or the immigration consequences if he pled guilty. Perez further declared that he only pled guilty because he was not aware of and did not understand all the consequences of his guilty plea. Moreover, he asserted that, despite the presence of a Spanish interpreter, he still did not \"completely comprehend what [he] was initialing because, [he] only ha[s] an elementary education and [was] not familiar with technical legal terms in Spanish and [he] did not have meaningful understanding of the documents.\" Finally, Perez insisted that he would not have signed the plea form had he known he would have been deported, but instead, he would have been willing to serve a longer prison sentence to avoid ."], "id": "ea5c8de4-d35e-4746-92dc-2c44ab9a7e3f", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Hernandez also established resultant prejudice. Hernandez, a legal permanent resident, has lived in the United States since she was three years old. She is the single parent of three minor children (their father has passed away) who are all citizens, one of whom has serious medical issues. She has been gainfully employed as a medical assistant. She had no prior criminal record other than traffic infractions. Shortly after she pleaded guilty and served 43 days in jail, she was taken into custody by federal immigration officials. Instead of signing the form presented to her stating her agreement to , she refused to sign and remained in immigration custody for eight months before being released on bond. Her conduct shows a contemporaneous strong preference to remain in this country, albeit in custody, over a shorter criminal sentence and deportation. Our record does not show the case against Hernandez for possessing methamphetamine for sale was strong."], "id": "a32fd553-6a2d-491a-881e-0e3c0d4d773c", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The Martinez court concluded that because \"the defendant's decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences ..., and because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court ruling on a section 1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome.\" ( Martinez , supra , 57 Cal.4th at p. 564, 160 Cal.Rptr.3d 37, 304 P.3d 529.) Instead, the defendant may show prejudice by \"convinc[ing] the court [that he] would have chosen to lose the benefits of the plea bargain despite the possibility or probability would nonetheless follow.\" ( Id . at p. 565, 160 Cal.Rptr.3d 37, 304 P.3d 529 ; see also Lee v. United States (2017) --- U.S. ----, 137 S.Ct. 1958, 198 L.Ed.2d 476 ( Lee ); Ogunmowo , supra , 23 Cal.App.5th at pp. 78-80, 232 Cal.Rptr.3d 529.)"], "id": "30ec3ab4-6043-4cb1-b29e-6c7eabf02546", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In Padilla, supra, 559 U.S. at page 370, 130 S.Ct. 1473, the United States Supreme Court held that a criminal defense counsel's Sixth Amendment obligations include properly advising as to the immigration consequences of a guilty or no contest plea. The court acknowledged that federal immigration law is often complex and that, in some cases, the likelihood of as a consequence of a conviction is neither clear nor certain. ( Id. at p. 369, 130 S.Ct. 1473.) In those cases, the court held, the most the Sixth Amendment may require of defense counsel concerning immigration consequences is a warning that a criminal conviction \" 'may' have adverse immigration consequences.\" ( People v. Patterson (2017) 2 Cal.5th 885, 897-898, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ( Patterson ), quoting Padilla, supra, 559 U.S. at p. 375, 130 S.Ct. 1473.)"], "id": "e0c9f642-6705-47cd-acc8-b0d3f5e6f610", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The defendant has lastly contended that his ignorance of the possible consequence of as a result of his conviction, and the failure of the court to advise him of the same, is a violation of section 335-b of the Code of Criminal Procedure. The length and breadth of that section encompasses only additional punishment prescribed by State law as a result of a previous conviction. Defendant\u2019s contention of ignorance of the possible penalties under the Immigration and Naturalization Act avails him nothing and in fact such contention has been judicially rejected (United States ex rel. Durante v. Holton, 228 F. 2d 827, 829; Joseph v. Esperdy [S. D. N. Y.], Docket No. 66 Civil 1555, [July 1, 1966] Tenney, J.) There was no obligation on this court to advise the defendant in regard to the possibility of deportation. Motion denied."], "id": "df75158b-ea8e-4f07-8ad9-409bcabaea8d", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": [". In People v Peque (22 NY3d at 196), a sharply divided Court of Appeals most recently reaffirmed the direct/collateral framework for analyzing the scope of a trial court\u2019s duty to warn defendant of the consequences of pleading guilty and strongly suggested that this rubric is useful, if not required, when analyzing the scope of an attorney\u2019s obligation to inform her client of the consequences of pleading guilty. Likewise, in Padilla v Kentucky (559 *583US 356 [2010]), the Court, while struggling with how to classify , strongly suggested that the direct/collateral framework was viable for analyzing a Sixth Amendment claim of ineffective assistance of counsel and that if a consequence of a criminal conviction is collateral it is removed from the ambit of the Sixth Amendment\u2019s right to counsel. (See Chaidez v United States, 568 US \u2014, \u2014, \u2014, 133 S Ct 1103, 1108, 1112 [2013] [in Padilla, although the Court found the direct/collateral framework ill-suited to classify deportation, the Court stated that it \u201cdid not eschew the direct-collateral divide across the board\u201d].)"], "id": "3e7c8403-a16b-40e7-aaab-ee9c0dbd40fd", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The District Attorney first argues that the parties must have known of the possibility of , and since the fact that the defendant was an immigrant was contained in the probation report. But none of the parties could have believed that this was an intentional act involving moral turpitude, since no Judge and certainly no District Attorney would agree to a two- to six-year sentence for a killing that was either intentional or the result of depraved behaviour. Not only is it obvious from the two- to six-year disposition that the shooting was accidental, but the victim\u2019s mother submits an affidavit in support of his application by the defendant, in which she agrees that the shooting was accidental. Therefore, this analysis assumes that all parties viewed this as a tragic accident that required punishment of two years in prison, but the parties never contemplated that the act involved moral turpitude or that the plea would lead to the defendant\u2019s deportation. On that assumption the question becomes, what is the consequence of the failure to tell a 19 year old who accidentally shoots his girlfriend that a plea to manslaughter, as opposed to the lesser included plea of criminally negligent homicide, would result in his deportation."], "id": "cbe079d7-3d02-4632-b9dd-f53f39078892", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST . amend. VI ; Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In Padilla v. Kentucky , the United States Supreme Court reasoned that, as a matter of federal law, \" is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes\" and warranted recognition of Sixth Amendment protections in this context. 559 U.S. 356, 364-66, 130 S.Ct. 1473, 1480-81, 176 L.Ed.2d 284 (2010). And the court held that the Sixth Amendment requires a criminal defendant's attorney to provide advice about the risk of deportation arising from a guilty plea. Id. at 366, 130 S.Ct. at 1482."], "id": "368eb4c6-42fd-474e-8a2a-0068f990f366", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["There is no dispute here that the crime to which Hernandez pleaded guilty, possession of methamphetamine in violation of section 11378, subjected her to mandatory . Currier was therefore obligated under Padilla to advise her, before she pleaded guilty, of that specific consequence. Hernandez stated in her declarations that Currier did not so advise her. True, Hernandez initialed the paragraph on the Tahl form stating she understood that if she were not a citizen, her *907\"conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.\" (Italics added.) The Tahl form, however, did not advise that her specific plea would result in mandatory deportation. Although the Tahl form contains the word \"will\" and not \"may,\" it, standing alone, is akin to the \"generic advisement\" required of the court under Penal Code section 1016.5, subdivision (a) addressed in Patterson, supra, 2 Cal.5th at page 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169, and it similarly \"is not designed, nor does it operate, as a substitute for such advice\" of defense counsel regarding the applicable immigration consequences in a given case. ( Ibid. )"], "id": "ad06554d-4d89-43e1-a4c9-85511ffb7122", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Defendant\u2019s initial motion was filed by predecessor counsel in January 2010, prior to the Supreme Court\u2019s issuance of its decision in Padilla v Kentucky (559 US \u2014, 130 S Ct 1473 [2010]), and was based upon claims of ineffective assistance on both federal and state constitutional grounds, as well as her claim that she was actually innocent. On that motion, defendant argued that her conviction should be vacated due to her plea counsel\u2019s alleged failure to advise her that her conviction would lead to automatic . She further claimed that she would not have pleaded guilty had she known that she would be subject to mandatory deportation as a result."], "id": "653c22a9-2c96-4577-a6b5-bb11a00908b0", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["entering his no contest plea \u201cfreely and voluntarily and with the full understanding of all the matters set forth in the [information] and in this form.\u201d Among the advisements on the plea form checked and initialed by defendant was the following: \u201cI understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of , exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.\u201d In signing the plea form, defendant verified he had discussed each of the form\u2019s advisements with counsel. Defendant\u2019s attorney also signed the form, declaring he had explained \u201ceach\u201d of the form\u2019s advisements to defendant. At the plea hearing, as memorialized by a resulting minute order, defendant was advised in similar terms about the immigration consequences of his plea: \u201cIf you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of denial of naturalization pursuant to the laws of the United States.\u201d The trial court accepted defendant\u2019s plea and sentenced defendant to three years, but suspended the sentence. The court placed defendant on formal probation for three years and ordered him to serve 270 days in county jail."], "id": "57fe68d3-a2e9-4672-90b7-545dd5b1dd8a", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In 2002, Garcia was charged with possession of cocaine of at least four grams but less than 200 grams of cocaine with intent to deliver, a first-degree felony. The State offered Garcia a plea bargain of 10 years' confinement probated for 10 years and a $500 fine. Garcia asked his attorney whether there would be adverse immigration consequences if he took the plea offer *229because he was a lawful permanent resident, and counsel responded that he \"would probably be okay\" and that \"the charge would probably not result in .\" Garcia pled guilty and was sentenced to ten years' imprisonment. His sentence of confinement was suspended, and he was placed on community supervision for ten years and assessed a $500 fine. He was eventually deported before returning to the United States and filing an application for a writ of habeas corpus."], "id": "f735f34a-0a19-4c57-b54e-d32422f082d8", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["denying his motion to reopen based on its finding of no changed country con- ditions. Singh further posits that the BIA abused its discretion in refusing to apply equitable tolling to his motion to reopen based on his claims of ineffec- tive assistance of counsel (\u201cIAC\u201d). \u201cThis [c]ourt reviews the denial of a motion to reopen under a highly deferential abuse-of-discretion standard.\u201d Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quo- tation marks and citation omitted). \u201cShowing changed country conditions requires making a meaningful comparison between the conditions at the time of the removal hearing and the conditions at the time the alien filed [his] motion to reopen.\u201d Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir. 2018). Neither Singh\u2019s motion to re- open before the BIA nor his brief provides any meaningful comparison of country conditions since his 1989 in absentia order. Though Singh contends that the reports in Exhibit F attached to his motion to reopen address \u201cthe country conditions in place over a historical period[,] including 1989,\u201d those reports show that conditions for Sikhs in India have generally improved since he was ordered deported. The BIA did not abuse its discre- tion in refusing to reopen Singh\u2019s deportation proceedings based on changed country conditions. See Barrios-Cantarero, 772 F.3d at 1021. Singh also urges that the BIA did not perform a meaningful analysis of his evidence of changed country conditions. That theory is not supported by the record. The BIA specifically referred to Exhibit F when concluding that Singh had failed to demonstrate changed country conditions. The BIA also acknowledged that the new materials in Exhibit F showed \u201cevidence of prob- lems that Sikhs face in India, particularly in the Punjab region, and that there had been an upswing in Khalistan-related terrorism in recent years.\u201d None- theless, the BIA concluded that there was \u201cno evidence of the conditions for Sikhs, or anyone else similarly situated to [Singh], at the time of his 1989 in absentia proceeding.\u201d"], "id": "23206ba6-6a55-43ee-a737-f252ac8dda61", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In addition, the Ford Court held in a footnote (supra, at 404) that failure to warn defendant of the possibility of did not render a plea allocution improper. It indicated that, notwithstanding the language of the New York Sentencing Reform Act of 1995, failure to warn the defendant of the possibility of deportation does not affect the voluntariness of the plea."], "id": "cfa8a40d-cc96-4fbe-b434-7f55f7b6416e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The Department of Correctional Services, the Executive Office for Immigration Review and the Immigration and Naturalization Service have instituted an institutional hearing program at Department of Corrections Reception Centers which permits a foreign-born inmate to meet with an immigration officer more quickly than possible in most I.N.S. district offices. The goal of the institutional hearing program is to complete hearings before an inmate is released from the custody of Corrections. Prior to the programs\u2019 restructuring in 1994, there were inmates who were released before a decision was made as to their status by an Immigration Judge. However, since restructuring in 1994, 751 deportation orders were lodged against foreign-born inmates through the institutional hearing program. Thus New York State is attempting to structure its laws in order to implement Federal policy and insure prompt deportation hearings."], "id": "247e7b2f-b8e3-462f-896f-3f44df1aa10e", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["In the midst of all these trials and tribulations, abandoned and alone, her dreams of a second chance at happiness rudely shattered, the spectre of to Nazi Germany hanging over her head, Jane Doe suffered a mental breakdown. I will make no judgment as to whether Jane\u2019s breakdown was caused by her tragic situation, or whether it was only precipitated by it. Suffice it to say that on June 6, 1941 she was committed to Kings Park State Hospital as being an insane person."], "id": "903c2ab9-06e6-4639-9efd-79ce494f6b01", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Mejia testified that his attorney never discussed the possible immigration consequences of his guilty plea. Mejia said that his attorney did not explain to him that a drug sales crime is considered an aggravated felony under federal law, which requires . When asked, \"had your attorney explained to you in 1993 that this case would result in deportation, would you have taken the deal?\" Mejia responded, \"I would have never accepted it if I had known that this would harm me in the future.\" Mejia said that \"at the time I had one child, one wife, absolutely nothing in Mexico. My father was deceased. I wanted to live a full life here, not three months in jail. It could be six months, but my life here.\" When asked, \"Just to clarify, you would have accepted a longer sentence for an assurance you could stay in the United States?\" Mejia responded, \"I would prefer that to live here with my family than be separated from them.\" Mejia testified that he was still married to his wife, and now had two grown children."], "id": "9ad10a12-b535-4f7e-90ab-f70b998e84f9", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["While codifying the United States Supreme Court's holding in Padilla , supra , 559 U.S. 356, 130 S.Ct. 1473, our Legislature also expressed an intent to \"encourage the growth of such case law in furtherance of justice ....\" (\u00a7 1016.2, subd. (h).) Consistent with that legislative intent, we agree with the Camacho court's analysis that the focus of the inquiry in a section 1473.7 motion is on the \"defendant's own error in ... not knowing that his plea would subject him to mandatory and permanent exclusion from the United States.\" (See Camacho, supra , 32 Cal.App.5th at p. 1009, 244 Cal.Rptr.3d 398, italics added.)"], "id": "e58c1f17-fb43-4057-bcda-14cca5e13d8a", "sub_label": "US_Terminology"} {"obj_label": "Deportation", "legal_topic": "Immigration", "masked_sentences": ["Conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. Jordan , 325 S.W.3d at 723 ; In re R.W ., 129 S.W.3d 732, 739 (Tex.App.-Fort Worth 2004, pet. denied). of a parent, standing alone, does not constitute an endangering course of conduct, but it may be relevant to the issue of endangerment if it exposes the child to instability. See In re E.N.C. , 384 S.W.3d at 805. The commission of criminal conduct by a parent may support termination under Section 161.001(b)(1)(E) because it exposes the child to the possibility that the parent may be imprisoned. See In re M.C. , 482 S.W.3d 675, 685 (Tex.App.-Texarkana 2016, pet. denied) ; In re A.W.T. , 61 S.W.3d 87, 89 (Tex.App.-Amarillo 2001, no pet.) (intentional criminal activity which exposes the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child). While criminal violations and incarceration are not enough to show endangerment by themselves, they can be evidence of endangerment *652if shown to be part of a course of conduct that is endangering to the child. Texas Department of Human Services v. Boyd , 727 S.W.2d 531, 533-34 (Tex. 1987) ; Perez v. Texas Department of Protective and Regulatory Services , 148 S.W.3d 427, 436 (Tex.App.-El Paso 2004, no pet.). Likewise, a fact finder may infer that a parent's lack of contact with the child and absence from the child's life endangered the child's emotional well-being. See In re U.P. , 105 S.W.3d 222, 236 (Tex.App.-Houston [14th Dist.] 2003, pet. denied)."], "id": "eff02c4d-6d8a-4434-b6f2-a2f5f7df8b8b", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The People argue that these three requirements underscore that section 1473.7 is to be applied prospectively only. To support their position, the People offer a hypothetical involving a defendant who pled guilty after the effective date of the statute, was placed on probation, and six months later, Immigration and Customs Enforcement (ICE) officials take him into custody and begin based on the plea and conviction. Under this scenario, the People assert the hypothetical defendant can seek relief under section 1473.7. Further, the People argue that their hypothetical illustrates that the application of section 1473.7 only on a prospective basis is consistent with the statute's purpose."], "id": "c78fae71-1f0d-43f9-ab94-4e12a2e773da", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["From the proof adduced at the hearings and from the proof adduced at the resumption of the naturalization hearings in November of 1966, the nature and extent of petitioner\u2019s homosexual activities were more clearly established. From 1950 until February of 1963 petitioner lived with, successively, some six women, with all of whom she engaged regularly in homosexual practices. These women all had prior homosexual experiences and the acts were committed within petitioner\u2019s home and never resulted from open solicitation."], "id": "8580893f-3d5a-4c64-8fdf-02b283db3d1a", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["Defendants argue the District Attorney's \"decision to ignore the immigration consequences ... in furtherance of no true state purpose was arbitrary, capricious and irrational.\" They contend that because the USAO had \"essentially followed the same guidelines\" as those enunciated in section 1016.3 and had agreed to a plea avoiding collateral immigration consequences, it was *648\"irrational, arbitrary, and capricious for [the District Attorney] to insist on a felony conviction for human trafficking\" resulting in defendants' . These contentions are speculative and do not provide a basis to overturn the judgments."], "id": "75b06ba3-60de-4a96-92a2-000b1eeee949", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The evidence showed that Appellant engaged in drug trafficking with G.B. while she was pregnant with R.A.G., and they were both arrested. As a result, Appellant was incarcerated for the first four years of R.A.G.'s life and R.A.G. lived with Appellant's mother for about a year and a half until G.B. was released from custody. Following his release from prison, Appellant was deported to Mexico. It is understandable that Appellant, as a result of his , has been unable to visit with R.A.G. in person in the United States, but the evidence showed that Appellant has not had any other type of contact with R.A.G. during the years following his deportation. According to Appellant's sister, G.A., Appellant is a college professor in Mexico, and he has maintained the same telephone number and Facebook account since his release from prison in 2012, yet he made no effort to contact R.A.G. even after he learned that the child had been removed from G.B.'s care. Appellant has been absent from R.A.G.'s life to the extent that R.A.G. did not even know that Appellant is his father. While incarceration and deportation are not sufficient, standing alone, to support a finding under Section 161.001(b)(1)(E), these facts are part of Appellant's overall course of conduct. We conclude that the evidence is legally and factually sufficient to establish a firm conviction or belief in the mind of the trier of fact that Appellant engaged in conduct that endangered R.A.G.'s physical or emotional well-being under Section 161.001(b)(1)(E). See Walker v. Texas Department of Family and Protective Services , 312 S.W.3d 608, 617-18 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) ; In re U.P. , 105 S.W.3d at 236. Issue Two is overruled. Because the evidence is sufficient to support one of the four predicate termination grounds found by the trial court, it is unnecessary to address Issues One, Three, and Four."], "id": "566b03c5-2370-4d5e-8d87-39dba7cf2015", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["On the whole sordid record developed at two extended and stormy hearings before me the conclusion is inescapable that petitioner resorted to this court not so much for needed support as to vent her jealous and hurt feelings against respondent when his pending appeal to the Board of Immigration Appeals had, temporarily at least, blocked her design to cause respondent\u2019s to Italy. \u201cHell hath no fury like a woman scorned. \u2019 \u2019"], "id": "ce85781c-86de-48b3-bb93-411139edf1a2", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["According to Mario and his mother, he has had no direct contact with his father since his father\u2019s arrest and subsequent to Mexico. Since that time, he has resided either with his mother or at Lincoln Hall, and his mother and OCFS have provided for his well-being and needs. Mario\u2019s father has not provided financial or emotional support for the child or other members of the family, and the father has apparently expressed little concern for Mario\u2019s well-being or his future."], "id": "6c7dcc51-dfe6-401d-94a9-f2ce4d969561", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The trial court found the motion premature because no proceedings had been initiated against defendant, and denied the motion for that *1004reason.3 The trial court also denied the motion on the basis of its finding that counsel's representation did not fall below the standards of what was reasonably expected under the customs and practices at the time. The court noted that Padilla v. Kentucky4 was decided the same year as defendant's plea. The court noted defendant's concern was not getting jail time, and found no facts indicating prejudice. The court concluded that there was no prejudice to defendant even if trial counsel had not provided reasonable representation with regard to immigration consequences, adding that it found no evidence to support defendant's current counsel's claim that there could have been an \"immigration-safe\" plea."], "id": "f84ec2cf-2e92-42d0-bca6-d51615568709", "sub_label": "US_Terminology"} {"obj_label": "deportation", "legal_topic": "Immigration", "masked_sentences": ["The court also asked Gonzalez if he read and understood his change of plea form. Gonzalez answered, \"Yes.\" Gonzalez's change of plea form appears in the record. As pertinent here, the form states: \"I understand that if I am not a citizen of the United States a plea of Guilty or No Contest can or will result in removal or , exclusion from admission to this country, and denial of naturalization.\" Gonzalez's initials appear in the box next to that statement."], "id": "8d0702e2-8c62-43a3-ac2a-765e03043c5a", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The motion to resettle the order and decree on remittiturs of the Court of Appeals and for a new trial on the ground of newly-discovered evidence is denied. No legal reason for has been shown in the moving papers. Nor is there any ground for the reopening of the order and decree because of alleged newly-discovered evidence under subdivision 6 of section 20 of the Surrogate\u2019s Court Act. (Collins v. Central Trust Co., 226 App. Div. 486; Matter of Sielcken, 162 Misc. 54, 64.)"], "id": "691d07a5-54cc-4bba-b710-a71e01cfff44", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The plaintiff contends that defendant is estopped from seeking of the judgment of divorce because she failed to so move in the context of an 1984 modification proceeding in this court. By order to show cause dated June 3, 1984 the defendant sought various relief modifying the parties\u2019 judgment of divorce and separation agreement. That application and a cross application by the plaintiff were settled pursuant to a stipulation placed on the record in open court on December 6, 1984 which resulted in the transfer of title of the former marital residence to the defendant. All other provisions of the separation agreement remained in full force and effect."], "id": "3d9f3808-5a7d-4870-8d07-6caacc416e5d", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["By order to show cause dated October 6, 1958 plaintiffs move 1) for leave to serve a supplemental complaint, in form as annexed to the moving papers, alleging, in substance, fraud and deceit in the solicitation and obtaining of proxies; in which complaint judgment is sought voiding, setting aside and enjoining the voting of said proxies; 2) for reargument of the motion for a temporary injunction which had been denied by this court or, in the alternative, 3) for of said order so as to provide that the meeting of stockholders scheduled for October 7, 1958 be kept open for the purpose of permitting the counting and voting of proxies mailed in by stockholders for a specified period subsequent to October 7, 1958 not exceeding *104610 days, and 4) for an order invalidating all proxies solicited and procured by two of the named defendants upon the grounds that same were procured by false and fraudulent representations."], "id": "139ecd8d-8a2c-4ff1-8283-8c0f8174fe18", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The first possibility that comes to mind is anticipatory breach by the city. But clearly that possibility has to be rejected (Tenavision, Inc. v Neuman, 45 NY2d 145, 150; Gittlitz v Lewis, 28 Misc 2d 712, mot for den 29 Misc 2d 134; Doyle Dane Bernbach, Inc. v Avis, 526 F Supp 117; 11 Williston, Contracts [3d ed], \u00a7 1300 et seq.; 22 NY Jur 2d, Contracts, \u00a7 387 et seq.)."], "id": "849146ce-0203-4a93-9d08-8de6a683efde", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": ["Sometime in 2005, Mother left the children in the care of her mother in El Salvador and unlawfully entered the United States. She settled in Saline County, Missouri. Ten years later, in April 2015, Son unlawfully entered the country to reunify with Mother. Son was apprehended by immigration officials and placed in the custody of the Department of Health and Human Services' Office of Refugee . In May 2015, Son was released into Mother's custody pending disposition of his immigration case."], "id": "e840953d-b3a3-45d7-bb1c-e6955dc59318", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["It has been recently held by the Appellate Division, Fourth Department, that is permissible only for inclusion in a judicial pronouncement of a provision which was initially omitted through inadvertence and is a procedure of correction or clarification and not one to change or amplify the direction of the court. (Matter of Bausch, 281 App. Div. 544.) By the same token, resettlement is permissible for the elimination from a judicial pronouncement of a provision which was initially included through inadvertence. Indeed, in Judy\u2019s Confections v. A. & A. Constr. Corp. (275 App. Div. 674), the Appellate Divi*10sion of the Second Department directed the resettlement of the court\u2019s decision by striking therefrom findings which were immaterial to issues presented by the pleadings and which decided questions not at issue. So, in the case at bar, this court inadvertently signed an order removing a case from an inferior court to this court under sections 110 and 110-a of the Civil Practice Act which included a provision granting a trial preference, permissible only on motion made pursuant to the provisions of rule 151 of the Rules of Civil Practice."], "id": "121397df-985e-4697-9f8b-123067f98bfe", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Both motions for reargument are denied. Defendant made no objection to the direction for the foreclosure of the vendee\u2019s lien as contained in the findings proposed by the plaintiff, and the of the judgment that was granted by default merely corrected the inadvertent omission from the judgment of the necessary provisions to enforce said vendee\u2019s lien. Inasmuch as the court\u2019s formal decision, dated April 23, 1957, directed the foreclosure of the vendee\u2019s lien, resettlement of the judgment was permissible to include directions for such enforcement which were initially omitted through inadvertence. (Matter of Bausch, 281 App. Div. 544.)"], "id": "9873be35-912f-417d-8063-7bec022d4fe6", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["It further appears that the learned justice who presided at the trial of this action, having held the cause under advisement, seemingly arrived at the conclusion that the plaintiff was entitled to judgment, and signed and filed the findings of fact and conclusions of law, and judgment was entered upon them after due notice to the defendants. Some days afterward the justice granted an order *351to show cause why the judgment should not be vacated and the findings resettled, and upon the return of the order vacated the judgment and directed such , which was made by finding the facts as they were, but making the conclusions of law thereupon as requested by the defendants, and upon this decision the final judgment was entered from which the plaintiff appeals."], "id": "a3d1ef3e-03db-4c9b-a9d0-d3230e3fcb7c", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The defendant contends that the provision in said order sought to be eliminated in effect granted the plaintiffs a preference under rule 151 of the Rules of Civil Practice to which they were not entitled and for which there was no basis in the record. The plaintiffs, on the other hand, urge that there was a waiver of this objection since the order of October 11, 1954, containing the objectionable provision was settled on 14 days\u2019 notice and defendant interposed no objection thereto or a counterorder; that in any event, is a procedure of correction or clarification and not one to change or amplify the direction of the court and consequently there is no jurisdiction for the change sought by this application."], "id": "46c2e8ac-58aa-4f65-aed7-ed71114b94bb", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["It is generally held that of an order should not he utilized to enlarge, or change in some substantial manner, a previous direction of the court (see Matter of Bausch, 281 App. Div. 544, 545; 8 Carmody-Wait, New York Practice, p. 512, and cases there cited). However, the relief sought in the instant motion affects only the procedure to be followed in the event of future dispute concerning defendant\u2019s actions, lection 218-a of the Qivil Practise Act provides that the parties to a civil action may utilize the simplified procedure by following the applicable rules (see Rules Civ. Prac., rules 304-306), Section 218-b of the Civil Practice Act provides that parties to a written contract may stipulate therein to utilize the simplified procedure. It appears clear that this court would be bound to enforce this stipulation, regardless qf its exclusion from thg consent decree entered (Gilbert v. Burnstine; 255 N. Y. 348; Matter of Malloy, 278 N. Y. 429; Banbury v. Rubinstein, 271 App. Div. 322, and, 297 N. Y. 510) . There is no doubt that this court has jurisdiction over both the subject matter of this proceeding, and the parties. This being trig, it appears that resettlement of the \u2019 consent decree to \"include the provision *11omitted would effect merely an amplification of the prior decree and not a substantive change thereof, and would be proper (Matter of Bausch, supra). Even if the procedure utilised is technically improper, the motion may be considered as one to vacate the order, and to enter another, and as such wonld be proper,"], "id": "e0f24431-bab6-46b9-af1e-20f130eeb3b6", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The plaintiff contends that the order of Judge Garrity should be resettled, because it does not reflect the disposition which was indicated in the memorandum decision made by Judge Garrity, prior to the signing of the order. That memorandum decision stated that plaintiff\u2019s recourse must be by appeal from the judgment entered in the City Court in the action, subsequent to the making of the order, and directed the dismissal of the appeal. The plaintiff, consequently, urges that the order of Judge Garrity be resettled to provide for dismissal, rather than affirmance of the order of the City Court. At the present time, Judge Garrity is no longer in office, and cannot entertain the motion for (Civ. Prac. Act, \u00a7 79; Salina Constr. Supply Co. v. Richards Constr. Co., 200 Misc. 796; People v. Poole, 133 N. Y. S. 2d 465)."], "id": "f778609c-5a75-445d-b779-606d54d2805b", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Clearly, the execution of the leases was within the power of the administrator. An article 7-A \"administrator is authorized and empowered in accordance with the direction of the court * * * to rent or lease for terms not exceeding three years any part of said premises, however, the court may direct the administrator to rent or lease commercial parts of said premises for terms that the court may approve.\u201d (RPAPL 778 [1].) The order of appointment here, at paragraph (6) (d), specifically authorizes the administrator \"to rent or lease commercial parts of subject premises for terms not exceeding ten years\u201d. The owner\u2019s objection to the execution of the leases is rejected. If the owner has problems resulting from provisions of the order, the remedy is to seek its amendment or , not to challenge actions taken by third parties in reliance on it. For example, for an owner concerned about long-term leases, an order can be written to provide that a lease of commercial space for more than five years would require advance approval by the court on notice to the owner."], "id": "6de9b8ab-7246-4659-b0ce-69ae74b0eaec", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["This problem of expressing the opinion in proper form by means of by me does not amount to my entering an original order upon the opinion or decision of another judge. (Bules Civ. Prac., rule 70.) It is also clear that this is not one of the acts which Judge Fauelli, though now out of office, would nevertheless have power to do. (Civ. Prac. Act, \u00a7 79.) Nor am I in any manner reviewing or setting aside the order, which is certainly beyond my power. Section 78 of the Civil Practice *839Act, cited by defendants, relates only to special proceedings, and is inapplicable to this action."], "id": "432c74d6-2d75-4a41-bb64-da76c76ff316", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff, opposing, asserts that the order is full, accurate and correct, needing no , that defendants, did, as the order recites, make the motion, and that they could appeal \u2018 \u2018 from each and every part of said order \u2019 \u2019 without difficulty. Plaintiff strenuously objected to the proposed resettled order which recited that it was on motion of plaintiff\u2019s attorney, who had not made, but only defended, a motion made by his opponent."], "id": "14bafaa1-f9a6-4004-9047-f1b284ec5b68", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The last issue concerns DSS\u2019 request for . The County argues that by not satisfying its lien prior to the transfer of the personal injury proceeds to the SNT, the court is effectively vacating the lien. It contends this is so because the lien attaches to only one form of property (i.e., said proceeds) and not any other form, such as trust assets. Whether the court\u2019s finding that the lien need not be satisfied technically constitutes vacatur thereof may be a question of semantics. However, DSS\u2019 point that its lien may not attach to trust assets is well taken. We are not aware of any authority for the transference of this type of lien to another form of property. Of course, by the terms of the trust (see, supra, at 594), DSS will be entitled to recover from the remaining trust assets for the medical assistance covered by the lien, together with all other medical assistance provided. Nonetheless, we deem it appropriate to amend the subject order to more accurately reflect the technical legal consequences of the court\u2019s ultimate determination."], "id": "65b644fe-f56c-4535-8f69-b45a0026adf5", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["*581The application could not be allowed even if it were to be assumed that German law was incorrectly applied. If that were in fact the case at best it amounted to a mistake of law, however, and as such may be rectified only on appeal (Matter of Bartlett, 164 Misc. 524; Wolf v. Bell, 180 Misc. 587). For the reasons stated, the motion for is denied (Cummings v. Deutsche Bank, 300 U. S. 115). Submit order on notice."], "id": "87451d79-a034-4a17-a8f5-b753b1578b98", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Therefore, in order to accord full protection to both parties and, especially the small claims claimant, who might otherwise be deprived of the more liberal small claims procedure, the order directing a joint trial should be conditioned upon Victoria\u2019s stipulating and agreeing to have both actions tried in the regular parts of the court, under the more flexible procedural rules and \"substantial justice\u201d standard applicable to small claims, which would have controlled had the case proceeded to trial in the more usual nighttime forum. Although no express authority has been cited or found and, to that extent, the disposition is novel, I find this to be a rational accommodation of the various competing factors present here. In my view, the condition may be imposed, consistent with the *561court\u2019s inherent power under CPLR 602 (a) to condition consolidation or joint trial to effect the interests of justice and judicial economy (cf., Gordon v Lifschitz, 10 AD2d 669, denied 11 AD2d 938; Hershman v De Meo, 34 Misc 2d 1051)."], "id": "12f5484d-5a2b-4b4c-8dd0-014a70917ae3", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The plaintiff, now a resident of this city, and claiming to be one of the victims covered by the foregoing agreements, has brought this suit in which he charges the defendant with breaches of its fiduciary duties. He alleges that it has shown improper favoritism among the beneficiaries entitled to relief *356and. asks that the court determine what is fair and proper provision for his own rehabilitation and that the sum so ascertained be adjudged a lien on the funds recovered by the defendant from Germany. He asks further for judgment for $20,000 or for such amount as the court determines should have been paid to him for his . The complaint prays for additional relief. The foregoing statement of its contents is, however, sufficient for present purposes."], "id": "e7657f7e-f271-4e8d-b074-2e851928e162", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Even if it is true, as claimed by the residuary legatees, that this estate has suffered a loss by reason of the release of t'he mortgagor by Mr. Wiggln, adherence to the principle declared in Adair v. Brimmer, seems to require my approval of the executor\u2019s readjustment of his claims. But it is by no means apparent that the estate has sustained any actual injury whatever. My conclusion is that the bond of indemnity should be surrendered to Mr. \u2022 Wiggin, and that the executors should be credited with the mortgages transferred to him and the cash paid him upon the of his demands as legatee. He now asks, also, for the payment of interest on such portion of his legacy as he was not permitted to enjoy while he held the Boston mortgage. This is allowed, together with the amount he disbursed as taxes, and \u00a740 which he paid to his attorney for searching title."], "id": "25f39869-742b-4231-93ad-f66f219ae3f0", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Evans V. Brewster, S. In this proceeding the administratrix of decedent\u2019s estate seeks approval of a compromise of an action for legal malpractice arising out of the prosecution of a wrongful death action, the settlement of which was approved by order of this court on June 14,1971. Petitioner also seeks a of the order of June 14, 1971 to permit the distribution of the additional funds and to judicially settle her account as administratrix."], "id": "91a4fc9e-e9b3-42cb-9fa8-1931ead2652a", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["*882The gist of each action is that the appropriation above the 246 elevation was for the purpose of using the property so acquired for sale or lease to private individuals, and for residential, recreational, business, commercial and other private purposes. More specifically, the complaints, with the exception of the Stewart action, allege the Power Authority intends to use the property above 246 as part of a real estate project to be known as the \u201c Wilson Hill Development \u201d. It is further alleged, in detail, the Authority proposes to lay out and lease to private individuals numerous lots, furnish space for commercial enterprises, an area for of dispossessed campers and permanent residents, for the construction of roads, public parks, water and sewage facilities, and a causeway to the newly created island; that all these proposals are \u201cuseless\u201d and \u201c unnecessary \u201d for navigation, commerce, and power, and as such, violate the eminent domain and due process clauses of our State and Federal Constitutions."], "id": "22b59387-0b85-48f8-a2f8-0b4a73444d21", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In Fish v. Wood (2 Abb. Pr. 419, Genl. T. Com. Pleas, 1856), this court refused to grant an order sending the case back to the referee for , so as to state the facts found by him on the evidence, and for a finding upon a particular issue, the court saying that after argument and decision of an appeal, the party should not be allowed to have the whole proceedings set aside, in order to enable him to make anew case; that there might be cases where an error had. occurred by misstatement, but that case was not such a one."], "id": "34967a18-7484-4197-9d5e-6718cda68c54", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["\u00cdrm tbe judgment entered on tbe report of tbe referee, and upon e case so made, to tbe general term of tbis court; and after the argument thereof, and before tbe court had given a decision thereon, and on tbe 23d of March, 1854, Raymond, one of tbe defendants, died. On tbe first of April following, tbe general term affirmed tbe judgment, and tbe judgment of affirmance was, by order of tbe court, entered as of a day during tbe lifetime of Raymond. On tbe 18th of June, 1855, on application of bis administrators, an order was made reviving tbe action in their names, for tbe purposes of an appeal to tbe Court of Appeals, and on tbe same day a proposed bill of exceptions was served, on their behalf, on tbe plaintiff\u2019s attorney, containing exceptions in manuscript not appearing in tbe case as made and settled, and to which tbe plaintiff proposed an amendment striking out such manuscript exceptions, and wbicb amendment was allowed. Tbe defendants then moved for an order for tbe of tbe exceptions proposed, and of tbe amendments thereto proposed, and for an order that tbe amendment proposed to tbe bill of exceptions be disallowed, and tbe exceptions proposed be allowed. The order of tbe 5th of December above mentioned denied such motion."], "id": "b18c0c15-68a2-4b03-8cca-b8f5a6dbda3c", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": [" \r \r Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 19, 2019, which deemed a motion by defendant Carol Hayden as a motion to vacate a judgment of foreclosure and sale, and denied the motion, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 24, 2019, which granted plaintiff's motion to vacate a judgment of foreclosure and sale granted on May 12, 2016, to direct the County Clerk to enter the of judgment of foreclosure and sale granted on March 13, 2018, and to extend the time in which to conduct a foreclosure sale (the July Order), unanimously dismissed, without costs."], "id": "1a323bb4-d8d0-492e-995b-57ba6851d14c", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["I am of the opinion that the Special Beferee properly heard testimony with respect to the rents collected for the month of July, 1962, particularly in view of the language contained in the order of July 20, 1962, which refers to the approximate amount of rents collected for the month of July, 1962, and the order to show cause, dated August 1, 1962, which clearly sought to punish Harry Silverman for contempt of court in collecting the *550rents from the tenants of the apartment house under foreclosure for that month. To have sustained the objection of Mr. Silver-man\u2019s attorney, the Special Referee would not only have aborted the hearing contemplated by the court, but would have unnecessarily inconvenienced the 48 witnesses, who were in the courtroom under subpoena at the first hearing, and of whom 47 testified that day only to be hailed back after the technical defect in the order had been corrected by . Form cannot be exalted over substance when, as here, the defendant Silverman was in no way prejudiced nor any of his substantial rights affected."], "id": "adc94915-a31a-49a2-a7e6-9148035acf82", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": [" of an order, unlike an application for reargument or renewal (CPLR 2221), is an established procedure designed to correct errors or omissions as to form or for clarification. (See, Foley v Roche, 68 AD2d 558, 566 [1979].) As observed by Professor Siegel, \u201ca resettlement contemplates an endeavor to reflect the disposition more accurately.\u201d (Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C2221:7, at 183.) It may not be used to amplify the prior decision or to effect a substantive change in the original order (Foley v Roche)."], "id": "e27948dc-e210-4492-a010-2019683abc80", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The petitioner is Prince Giovanni del Drago. He is a coexecutor of the estate, the husband of the testatrix, and the life tenant of the residuary trust. Extensive testimony has been taken upon the question of the existence of any of the grounds set forth in subdivision 6 of section 20 of the Surrogate\u2019s Court Act which are required to be shown to justify the opening or modification or of a decree. As the trier of the facts, the surrogate holds that no ground for even the slightest modification or *385resettlement has been proved. On the contrary it has been conclusively shown that the petitioner here and his attorney, Ludwig M. Wilson, originated the plan to rehabilitate the property. As a result of their urging, del Drago induced his coexecutor to join with him in a petition to authorize the expenditure of a large sum of money from the personal property within the estate for the purpose of rehabilitating the real property which formed part of the trust created for his benefit. Six properties located in the borough of Manhattan were involved, one a business building and the others old-fashioned tenements or apartments. Approximately $120,000 was spent upon the improvements. As an inducement to his coexecutor and to the special guardian of the infant remaindermen and in order to procure the approval of the surrogate of the plan of rehabilitation, del Drago offered to contribute to the amortization of the expenses of rehabilitation out of his income. He was about seventy-eight years old at the time and, estimated upon his expectancy of life, his total contribution would have been a relatively small part of the whole cost. His motive was plainly to increase his income by the enhanced rentals which would be derived from the rehabilitated property."], "id": "ad695246-dae7-4bc1-8567-6959f8fd8c28", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["A dispute arose concerning the time for payment of plaintiffs\u2019 attorneys\u2019 fees and plaintiffs moved for reargument. The court granted reargument and declared that the proposed hourly fee of plaintiffs\u2019 attorneys is fair and reasonable. That was error. The reasonableness of the proposed counsel fees should not have been determined upon reargument because that issue involves new proof (see, Taub v Colonial Coated Textile Corp., 54 AD2d 660; Siegel, Practice Commentaries, McKinney\u2019s Cons Law of NY, Book 7B, CPLR C2221:7, at 182) and a prayer for relief that was not part of the original motion (see, 2 Carmody-Wait 2d, NY Prac \u00a7 8:78, at 408). Similarly, if plaintiffs\u2019 motion is construed as one for of the judgment (see, Gormel v Prudential Ins. Co., 167 AD2d 829; Ross v Ross, 140 AD2d 683, 683-684), the reasonableness of counsel\u2019s proposed hourly fee may not properly be *963determined because that issue was not litigated in the original declaratory judgment action (see, Gormel v Prudential Ins. Co., supra)."], "id": "81c9cc55-ae71-4e96-a48d-d26444fd5432", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["However, it is well settled that is permissible only for the inclusion of a judicial pronouncement of some recital or provision which was initially omitted through inadvertence. It is a \u201c procedure of correction or clarification, not one to change or to amplify the direction of the court\u201d (Ruland v. Tuthill, 187 App. Div. 314, 315) or to \u2018 \u2018 change the judgment in matter of substance \u201d. (Herpe v. Herpe, 225 N. Y. 323, 327.) \u201c Such result may not be accomplished indirectly by a motion, purportedly made in the action, after the court\u2019s judicial authority therein has been exhausted \u201d. (Tait v. Lattingtown Harbor Dev. Co., 12 A D 2d 966.) The rule would seem to hold particularly true where, as here, the judgment has been entered upon a limited stipulation of the parties (Medhart Mfg. Co, v. Rafferty, *136243 App. Div. 632) and the plaintiffs were unable to establish their cause of action for damages (cf. Cooley v. Lobdell, 153 N. Y. 596, 603; Switzer v. Commissioners for Loaning Certain Moneys, 134 App. Div. 487, 489)."], "id": "02787b23-8c88-4dd5-b912-e396af6543e1", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Such is the situation in the case at bar. The averment of events which occurred subsequent to the service of the complaint in the first action and which are substantially of the same general character, does not, in this court\u2019s opinion, render the actions different from each other. They are between the same parties for identical relief and predicated upon the same general theory. (Cipolla v. Cipolla, 255 App. Div. 789.) The whole effect of the second suit may be attained in the first. (Parker v. Selye, 3 App. Div. 149, 153.) This, in effect, was recognized by the plaintiffs, themselves, when they moved on August 12, 1957, to punish the defendants for contempt of court for violating the restraining order of December 14, 1956, or, in the alternative, to resettle that order so as to extend its restraint until such time as the National Labor Relations Board has certified a collective bargaining agent of plaintiffs\u2019 employees. Upon that motion the issue, among others, as to whether that order expired on July 30,1957, the termination date of the collective bargaining agreement between the plaintiffs and Local 122, was tendered by the *484plaintiffs. Mr. Justice Pette, who heard that motion held: \u201c All of these matters cannot be summarily disposed of and require a plenary hearing. In view of the foregoing disposition, the court has no occasion to pass upon the alternative branch of the motion. In any event, the order cannot be resettled except by the justice who made the original, and whether there is any basis for depends upon the determination of th\u00e9 question whether that order still subsists.\u201d (N. Y. L. J., Aug. 27, 1957, p. 7, col, 1.)"], "id": "69328260-8db6-4366-a3f8-95ed58c50849", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The motion is granted accordingly, and the examination will proceed at Special Term, Part II, of this court on April 21, 1958, at 10:30 a.m., unless the parties otherwise stipulate. In the event any of the parties desires the examination to proceed before a referee, of this order may be duly applied for to that effect. In either case, relevant books, records and papers will be produced for use pursuant to section 296 of the Civil Practice Act."], "id": "0a7e50f9-e7d4-45ec-a428-785c97895674", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In the order of June 8, 1976, wherein this court directed a hearing as to the reasonable market value of the subject property, this court directed plaintiffs to serve a copy of the notice of motion papers for a deficiency judgment, together with a copy of the order directing the hearing, upon the defendants by registered or certified mail within 10 days from the entry of the aforesaid order. Subsequently, the plaintiffs were unable to comply with the order and, therefore, moved for of the order to afford them an opportunity to comply with the direction of the court. By order dated October 20, 1976, this court granted resettlement and again directed service of copies of the motion papers for a deficiency judgment, and the order directing the hearing on the defendants by certified or registered mail. Although the defendants deny receiving the motion papers or the notice of the hearing, the plaintiffs have submitted documents evidencing compliance with the court\u2019s directive of October 20, 1976."], "id": "80dabbd2-48eb-482c-9251-012d1bbc6862", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["On July 27,1937, an application was made by the special guardian for the of the decree so as to provide for the inclusion therein of a recital of his participation and also for the fixation of his. allowance in the sum of $300. This does not appear to have been served upon any one, but attached to the affidavits of the special guardian is a document signed by the discharged attorneys for the proponent in which they purport to \u201c consent to and waive notice of application for the re-settlement of the decree \u201d and consent to the insertion therein of the $300 allowance for the special guardian. It is a somewhat significant circumstance that this purported waiver and consent is undated. It is wholly obvious, however, that it was executed by the former attorneys after their dismissal by reason of the fact that it is backed with the affidavits, and refers to the application seeking resettlement of the decree, which are verified on the twenty-seventh day of July, which was eight days subsequent to their discharge."], "id": "518b4e55-c3a4-4771-ac66-43198c2e8a05", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Respondent Peter B. Edelman (New York State Division of Youth Director) moves under CPLR 2221 seeking: (1) reargument of this court\u2019s decision dated September 9, 1977 (92 Misc 2d 485) to permit the court to consider respondent\u2019s opinion that, under Codd v Velger (429 US 624) the sole purpose of affording a hearing to a probationary employee terminated in the face of charges which may have the effect of damaging the employee\u2019s reputation is to clear his name, not to consider *490whether the employee should be reinstated with back pay; (2) of the order and judgment dated September 30, 1977 as overly broad in that it requires respondent to afford a hearing to petitioner Dave E. Hill, Jr., prior to imposing any discipline, whereas, respondent believes the decision addressed itself solely to the situation in which the accused employee faced termination if the charges made against him were found true; and (3) permission to answer the petition, as the original motion was a CPLR 7804 (subd [g]) motion to dismiss upon objections in point of law, which, if denied, affords respondent an opportunity to answer."], "id": "f19a2b8b-f0c2-4c61-99e7-d77c6f093334", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["\u25a0 As to the remaining portion of the decision, the pleadings are not before us, and it does not appear what the allegation of special damage in the complaint was, but there is nothing in the record to show that the plaintiff would be prejudiced by furnishing the items of disbursements thus far incurred. The plaintiff\u2019s remedy lay in and not in appeal. ' The appeals will be- dismissed, without costs, and the order appealed from remitted to Special Term for resettlement."], "id": "0c328266-f716-4599-aa53-c7e608a6fb7a", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": ["As properly employed, this term implies merely the reopening of an order or decree for the purpose of including therein some recital or provision which was initially omitted therefrom through inadvertence and which should have been included. As is pointed out by the Appellate Division of this Second Department in Ruland v. Tuthill (187 App. Div. 314, 315): \u201c of an order is a procedure of correction or clarification, not one to change or to amplify the direction of the court.\u201d"], "id": "bf8efb26-937a-49a3-a120-58cd51c87dd8", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In this cause now here, Onesime Robitaille shortly before his final removal to his domicile of origin, as it appears, had an apoplectic seizure, which for a time at least deprived him of self-control, if not of his mind. For some while before this affliction Onesime Robitaille had, however, contemplated a reversion to his domicile of origin, and with a view to that end he had actually sold out some of his belongings in New York and had packed up his household stuff and furniture, intending to make a final in his native place among his own people living in or about Ancienne Lorette, province of Quebec. His declarations were competent on this point. Matter of New-comb, 192 N. Y. 238. The surrogate has little doubt that this fixed and established intention on the part of Onesime Robitaille was frustrated, if at all, only by his illness mentioned. Before the late Mr. Robitaille could himself consummate his intention to domicile himself in Quebec (Lower Canada) he was deprived to some extent of the power so to do by disease and loss of his senses. But his committee thereafter acted in accordance with his expressed intention, and took him to Lower Canada to his domicile of origin, which continued at least his de facto domicile until he died."], "id": "64c5f481-bd0e-4efb-a181-38eacd9ca487", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": ["The application whereas denominated one to \u201c resettle,\u201d is in reality to vacate the prior determination. is permissible only for the inclusion in a judicial pronouncement of some recital or provision which was initially omitted through inadvertence. It is a \u201c procedure of correction or clarification, not one to change *426or amplify the direction of the court.\u201d (Ruland v. Tuthill, 187 App. Div. 314, 315; Matter of Bartlett, 164 Misc. 524, 525; Pringle v. Edenwald Realty Corp., 175 id. 137, 138.) It is unavailable in a situation where the object sought is an alteration of the decision actually made. (Butterfield v. Bennett, 56 Hun, 640; Deutermann v. Pollock, 36 App. Div. 522, 523; Matter of Putnam, 173 Misc. 151, 152; Butler N. Y. Surrogate Law & Practice, \u00a7 749.) To attain such an end, there must be an actual vacatur of the order or decree in question. The only grounds for such an application are those enumerated in subdivision 6 of section 20 of the Surrogate\u2019s Court'Act. Here there was, to be sure, an error of law on the part of the executor in the evaluation of the legal validity of the claims. Such an error is not one which may form the basis for a vacatur of a judicial determination. (Bohlen v. Metropolitan Elev. R. Co., 121 N. Y. 546, 551; Matter of Ungrich, 201 id. 415, 418; Kamp v. Kamp, 59 id. 212, 215, 216; Heath v. N. Y. Bldg. L. B. Co., 146 id. 260, 263; People ex rel. Bankers Trust Co. v. Graves, 270 id. 316, 320; Matter of White, 170 Misc. 657, 659; Matter of Brady, 147 id. 613, 615.) The executor could not himself successfully seek relief by reason of it and the present applicant does not stand in. any superior position. His sole remedy was in personam against the executor for negligent action in the premises."], "id": "ab6944cf-c9a9-4cac-8d69-fe6ec7875ee9", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The voluminous papers presented to the court establish that the plaintiff instituted a prior action in the United States Bis-trict Court, Southern Bistrict, in 1949 against the individual defendants herein and others, but not against the defendant corporation. After considerable delay in the prosecution of the action plaintiff, in 1953, served notices for the taking of the depositions of the defendants, who appeared but were not examined. Thereafter the action remained inactive and in fact was marked off the calendar. In 1957 the plaintiff restored the action to the calendar and again served notices to examine the individual defendants herein before trial. By notice of motion the individual defendants moved to vacate the notice of examination before trial and plaintiff, by cross motion, moved for judgment. The Judge before whom the motion and cross *275motion, came on to be heard, by order dated May 1, 1957 provided for the taking of the depositions of the defendant De Mornay on the morning of June 3,1957 and to continue for not more than two days and that within six days of the taking of the deposition the plaintiff was to furnish the defendant a copy of the testimony to be signed by the defendant within two days; that the deposition of the defendant Witty was to be taken on the day following the conclusion of the testimony and signing by the defendant De Mornay. Pursuant to rule 77 (subd. [d]) of the Federal Rules of Civil Procedure the clerk of the court entered the order and mailed such notice to the parties on May 3, 1957. Defendants\u2019 attorneys further allege that on May 28, 1957 they received a telephone call from the Justice who had signed the order to the effect that the plaintiff\u2019s attorney had appeared before him ex parte to discuss the of the order. Since the defendants were on their way to New York State from Florida and California, respectively, they opposed any resettlement and so informed the court by letter dated May 28, 1957. In reply to this letter the court then directed the examination to proceed in accordance with the time schedule set forth in the order. Predicated thereon both defendants appeared on the return date, but the plaintiff instead of proceeding with the examination served the individual defendants with the summonses under attack, as well as a summons on the defendant De Mornay as president of the defendant corporation. It is interesting to note that the summonses were dated March 26, 1957, the very day that counsel for the plaintiff was arguing to sustain their application for the examination before trial."], "id": "78463d7b-dc70-4fb0-b9e9-788e093e1122", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The order of January 19, 1976, which vacates the default judgment is modified on the facts and the law, striking therefrom the following: \"That John Lo Pinto, Esq., attorney for the defendants herein pay to the plaintiffs\u201d. While this court may find that attorney Lo Pinto is not subject to the costs assessed, it cannot substitute its discretion for that of Judge Rector. All proceedings on the motion of defendant to vacate the default judgment are remanded to the said Town Justice Court for further proceeding on the of the said order with respect to terms and conditions for vacating judgment, in keeping with this decision. (CPLR 5015, 5522.)"], "id": "f4433262-afd7-4114-baee-a53ae529fca1", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["A motion was now made to set aside, vacate or open the judgment recovered in favor of George Greer, and for a new trial; or that the defendants be permitted to renew their motion for a new trial upon the minutes of the court, and for a of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof."], "id": "890f8976-5b8a-47b3-bdec-ea6a984e77cc", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Por that reason, and to afford an opportunity to contest these allowances, an application was made for the of the order either reducing this allowance to its original amount or striking out all the allowances provided for by its terms. IJpon the hearing of this application all the counsel were again before the court and it resulted in a decision denying the application. From that determination the present appeal was taken, and it is sufficient under the circumstances to bring the propriety of these allowances all before the court. Neither the counsel nor the parties in whose behalf the other allowances have been made have appeared for.the purpose of maintaining them. And if they had done so it conl^ *462as the law has been settled, have produced no change in the disposition which should be made of the appeal."], "id": "ef209560-2437-49da-95c5-3ac9519d01df", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The facts of the occurrence as here alleged demonstrate affirmatively that the act of the court in the award of the allowance of $300 to the special guardian at which the present complaint is directed was a deliberate act of adjudication and is consequently incapable of reconsideration and alteration through the medium of \u201c .\u201d If remediable at all, it must be on one of the *526grounds specified in subdivision 6 of section 20 of the Surrogate\u2019s Court Act, which permits the reopening of an order or decree \u201c for fraud, newly discovered evidence, clerical error, or other sufficient cause.\u201d"], "id": "c78e2e13-31df-4441-82ea-dca06052f297", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["*1040Instead of this matter being disposed of in Special Term, Part I in 15 minutes on January 10, 1962, it was not submitted for disposition until October 7, 1963 at Trial Term, Part XII and then, according to the terms of the order decision upon the motion for a stay final submission must still be made in Special Term, Part I. As a result the referral caused the necessity of settling orders on notice for reference to an Official Referee, a subsequent motion for of the order when the office of the Official Referee was eliminated, the resettlement of the orders thereon, the payment of a calendar fee by an attorney for the trial of a simple issue raised on a motion, the necessity of attendance by attorneys in Trial Term, Part I for several days before the matter could be sent to a Trial Term, a trial in Trial Term and finally the submission of the decision of Trial Term to Special Term, Part I for ultimate disposition."], "id": "a25e1671-abfa-48ef-858c-3fa73a4226ab", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The case was resettled on the 20th of May, 1863; judgment had been entered on the verdict for the plaintiff, and the judgment-roll filed on the 28th of February previous. The case was served on the 30th of March last, and also a notice of appeal from the judgment. Amendments were proposed to such case, on the 2d of April last.- The case was originally settled on the 2d of May, and notice of argument served by the plaintiff for the present term, on the 4th of May last. Notice of was given on the 9th of May last. After the 20th ' of May, a new notice of argument was served by the plaintiff, and also a notice thajzhe would receive his copies of the case as late as the 29th of May last. Such notices of argument never were returned. Ho order ever was obtained allowing the judgment to be entered to stand as security merely; consequently it was absolutely entered; no motion having been made for a new trial at special term, on a case or exceptions."], "id": "a02b785d-cf2c-499b-ae7e-93cf4004f95f", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The proposed settlement was approved as to amount by a Justice of the Supreme Court and the administratrix now seeks the consent of this court to the compromise of the action for legal malpractice and of the order of June 14, 1971. When the wrongful death action was settled in 1971, the proceeds after counsel fees and disbursements, were to be distributed among the widow and four minor children in stated percentages. Three of the children are now adults and have consented to the compromise of the action for legal malpractice and the distribution of funds in accordance with the percentages applied to the distribution in 1971. The petitioner joins in seeking the same percentage distribution. The interest of the minor child is protected by a guardian ad litem who joins in the request for a distribution of the proceeds of the settlement in accordance with the previously ordered percentages."], "id": "de0f607f-0e4b-400e-9f80-0a9948e96f7d", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Since the issue of \u201cContractual Indemnification\u201d was held in abeyance pursuant to the order of the court dated January 22, 1981, the present decision shall be deemed to supplement such latter mentioned order. Therefore, a of such latter order is appropriate and is herewith required, on notice to all parties in the action, to be submitted expeditiously since the trial of this action is presently very imminent."], "id": "3ce8c118-20ff-4432-a477-3cb4e9df3a92", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In Jakobleff (supra), a woman terminated her relationship with a law firm that represented her in a marital dissolution action, and hired a new attorney. The new attorney endeavored *610to rectify what the client viewed as errors on the part of the predecessor, which effort included representing the woman in a lawsuit against it. The former firm commenced a third-party action against the new attorney, alleging that he negligently failed to seek a of the judgment of divorce, and it sought discovery against him on the ground that he was believed to possess information regarding the extent of the client\u2019s damages. The Court granted the new attorney\u2019s motion for a protective order, finding that there was no waiver of the attorney-client privilege because:"], "id": "798439ed-00cb-4827-9d67-3845e2e23239", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The court takes judicial notice of the fact that from ancient to modern times and continuing to the present there has been and unfortunately is, persecution of Jewish people in some \u201c Christian, Moslem, Nazi, Fascist or Communist countries\u201d, by reason of which many fine, talented and deserving people have become of necessity \u201cscapegoat refugees\u201d in need of *476\u201c relief and resettlement\u201d. This in our opinion is a lawful purpose for which a trust in real property may be created. The Legislature by Session Laws of 1962, chapter 145, effective September, 1, 1962, added new subdivision 8 to section 96 of the Beal Property Law, setting forth additional purposes for which an express trust in real estate may be created, as follows: \u2018 \u2018 8. To effect and carry out any purpose for which a contract may. lawfully be made.\u201d It is worthy of note that the Legislature in 1964 repealed section 96 in its entirety and in its place broadened the scope of the purpose for which a trust might be created to include \u201c any lawful purpose \u201d. However, subdivision 8 was in effect on the date of decedent\u2019s death and is therefore controlling in the construction of decedent\u2019s will. It would seem to be beyond the necessity of illustration or citation of authority to hold that the relief and of refugees as directed in the will of decedent would be a proper and lawful purpose for which a legal and binding contract might be made, and hence, under the statute, a proper and lawful purpose for which a lawful trust may be established."], "id": "9ecb33ba-0cfe-473a-b71e-b68c7a4b9ebd", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Despite the apparent lack of understanding of Justice Schreiber\u2019s order there was no reargument or and no appeal taken. The record before the arbitrators, subsequent to the order as well as before it, is replete with testimony antedating the 1947 agreement. Each side initiated such testimony on direct and pursued it on cross and they were assisted in this pursuit by all the arbitrators. Nevertheless, there were tipies when they stood on the supposed meaning of the order, i.e., that *69nothing relating to the pre-1947 agreement be allowed in evidence."], "id": "1bb8b69c-fa6b-44e4-9117-8804c7aec0a1", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": [" is not a procedure for changing or modifying the decision of a court. Resettlement of an order is a procedure of clarification or correction, not to modify or change the relief granted (2 Carmody-Wait 2d, New York Practice, \u00a7 8:125; 10 Carmody-Wait 2d, New York Practice, \u00a7 70:44); nor to make unclear the decision which the trial court must follow."], "id": "5fc6e0da-10e8-46f6-8d47-d04ebe06f913", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The District Attorney for Rensselaer County has applied to the Appellate Division, Third Department, for a reconsideration of the decision rendered July 26, 1965, and for a of the order dated July 30, 1965, on the ground that the opinion of the court indicated that the judgment of conviction was reversed on the law only. This application is now pending."], "id": "514c7199-9656-4e78-aaab-ffa027440085", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": [" Hayden makes no arguments as to why the 2016 judgment should not have been vacated, why the 2018 should not have been entered, or why plaintiff should not have been granted 120 days to hold the sale. Hence, she has abandoned her appeal from the July Order (see 400 E. 77th Owners, Inc. v New York Eng'g Assn., P.C., 122 AD3d 474, 475 [1st Dept 2014])."], "id": "a9c6fb5b-55f0-4f37-a3fc-02f13f468779", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The purpose of a order is to correctly express the decision of the court (White v. White, 175 Misc. 66; Polo v. Stern, 249 App. Div. 817; Matter of Suede Pillow Novelty Co. v. Dworsky, 250 App. Div. 48). The directory portion of an order recites \u201c the determination or direction in such detail as the judge deems proper.\u201d Moreover, \u201cthe order should be sufficiently specific to enable him clearly to understand his duty \u201d (2 Carmody-Wait 2d, New York Practice, \u00a7 8:90)."], "id": "4c498c73-f2e1-4b95-bb12-245c4256fd17", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["By section 114 of the Domestic Relations Law, the \u201c judge or surrogate of the court in which the order of adoption was made may open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause \u201d in the same manner as courts of general jurisdiction exercise such powers. Under this authority, the petitioner seeks to have this court vacate the orders of adoption, maintaining that the court was without jurisdiction to enter orders prior to March 26,1967, that date being six months from the time of presentation of the petitions. He also contends the required six months\u2019 residence of the children with the foster parents could not have been completed until February 27, 1967 and that such requirement was jurisdictional. The respondent claims such noncompliance as to the residency period was held to be a mere irregularity in the *892Matter of Martin (269 App. Div. 437, 439). In that matter the Surrogate on a motion to amend an order of adoption so as to insert a recital to the effect that the court had dispensed with the six months\u2019 period of residence, granted the same and resettled the order to contain such recital. The appellate court held that such was valid, alleging that it was apparent that the court had dispensed with the residence requirement but had simply omitted the recital in its order. It was the omission of this recital that was held to be a mere irregularity. Matter of Martin is not controlling in the case at hand, since none of the papers before the court requested the dispensation of the residency period or the shortening of the waiting period and no reasons for the same were ever given to the court. In the Martin case, it may be presumed that the request was made to the Surrogate for dispensing with the six months\u2019 residence requirement and the reason given for the same was the fact that the child\u2019s mother was married to the petitioner. The fact that the petitioner, in this case, is the spouse of the natural mother is not sufficient reason or good cause for shortening the waiting period, pursuant to section 116 of the Domestic Relations Law. That section clearly provides a waiting period in such case unless the child has resided with the foster parents six months. While the court obtained jurisdiction to entertain the proceedings for the adoptions, it lacked jurisdiction to enter the orders of adoption on November 4, 1966."], "id": "59e9ba99-59ba-4413-9d4c-813831a0f0d2", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["\"The population of Westchester County is approximately one million. In spite of the County\u2019s high average income, the percentage of people in the poverty group is about that of the nation as a whole. \"The Developmental Centers at Wassaic, Letchworth and Willowbrook are providing residential care to more than 750 Retarded Citizens from Westchester County. It is a top-priority, unmet need that these persons be provided with residential programs and community services within their own county. \"The Whitehill Institute* will serve only the residents of Westchester County. Residents of other counties will be considered for admission only during those times when, and if, there are no applicants from the County of Westchester. \"As a residential school for Severely-to-Moderately Mentally Retarded Adults of both sexes, between the ages of 21 and 35 at the time of admission, the facility will provide residential, respite, and community habilitative services. Although this is a large facility, the programming is geared to the utilization of, and coordination with, all community services of the *34Westchester Developmental Network, avoiding an institutional environment. \"The overall objective of the individualized plan of care is to attain or maintain the optimal, physical, intellectual, emotional, social, and vocational functioning of which the client is presently or potentially capable. \"The resident population will not exceed one hundred (100) without the prior approval of Westchester Developmental Services and the Department of Mental Hygiene.\u201d (b) \"Such program proposal for petitioners\u2019 school will provide comprehensive care, treatment, training, and education of the mentally retarded residents and can in no way be considered merely a custodial institution. The program includes briefly, psychiatric and medical diagnosis, treatment, and counseling, remedial education principally in the areas of language and motor abilities, self-care and prevocational and work training, and recreational programs for meeting and developing social and emotional needs, all to be provided by qualified staff personnel, and all described in greater detail in such Program Proposal.\u201d"], "id": "3b939418-4713-46a0-88b1-630ce28868a8", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Finally, the court denies, without prejudice, plaintiffs\u2019 request for an order directing the allocation of $200,000 of the net proceeds of the settlement agreement in this action to the derivative claims of plaintiff Monica Samerson. The stipulation of settlement entered on the record and agreed to by all parties present contained no such provision. Where the parties enter into a stipulation recorded in the minutes of the court, the settlement agreement terminates the claims of parties theretofore made in the action, and the agreement becomes enforceable as a contract binding on the parties (Gaetano Constr. Corp. v Citizens Developers, 175 AD2d 465 [1991]). The settlement agreement may be set aside or modified only upon such grounds as would permit such relief to be granted in a contract matter. Absent such grounds, the agreement must be strictly *236enforced (Furgang v Epstein, 106 AD2d 609 [1984]). Plaintiffs may not unilaterally alter the terms of the settlement agreement and the court finds no basis to support plaintiffs\u2019 requested modification of that agreement. Plaintiffs must obtain the consent of the defendants to a of the agreement, or commence a plenary contract action for modification of that agreement."], "id": "5526e836-9b33-4e2d-9b93-3a03be01862d", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["At the outset, we note that, contrary to plaintiff\u2019s argument on appeal, so much of the January 10, 2013 order as denied is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review \u00a7 57; 10 Carmody-Wait 2d \u00a7 70:31)."], "id": "73b55016-429b-49bc-bf9e-d241ff6415f9", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["PER CURIAM. The self-represented defendant, Ver- non F. Carlson,1 appeals from various judgments and actions of the trial court stemming from a 2007 action commenced by the plaintiffs, Stuart C. Carlson, Patricia W. Carlson, and Alexis S. Carlson,2 and a subsequent settlement agreement that was reached by the parties in 2015. On appeal, the defendant claims that the court erred (1) in denying his motions to inspect and copy corporate and partnership tax returns, (2) by not addressing the dispute in the p notice between the parties before a settlement was reached, (3) in not ordering the plaintiffs to release all claims during the 2015 settlement negotiations, (4) in authoriz- ing an application for a subdivision of a property owned by the partnership, and (5) in appointing Peter Carlson as receiver. We conclude that the defendant\u2019s first three claims must be dismissed. As for the fourth and fifth claims, for the reasons set forth herein, we affirm the judgments of the court. The court set forth the following facts and procedural history of the case in its February 5, 2020 memorandum of decision granting the plaintiffs\u2019 motion to terminate stay. \u2018\u2018The long history of this case began with a com- plaint filed in 2007 by the plaintiffs . . . . The com- plaint alleged, and the parties do not dispute, that the parties were members of a partnership referred to as Carlson Associates. The parties possessed varying per- centages of interest in the partnership. Stuart Carlson was alleged to have been the managing partner. The court file reveals that no written partnership agreement governed the relations among the partners or between the partners and the partnership. The plaintiffs alleged in their original complaint that the assets of the partner- ship consisted of fourteen parcels of real estate located in the towns of Manchester . . . and Glastonbury . . . and loans by Carlson Associates to Karen [Carlson], Kristine [Carlson] and the defendant. The two count complaint asserted claims for partition of the assets of the partnership and its dissolution. These claims were grounded on the existence of significant discord among the partners, which included the occupancy of Karen [Carlson] and the defendant of partnership properties without paying rent and the refusal to remit rent received from nonpartner tenants. Karen [Carlson] and the defendant were alleged to have refused to agree to the sale of any of the partnership properties although the expenses and liabilities of the partnership, including past due real property taxes, exceeded its income. Stu- art [Carlson] and Patricia [Carlson] claimed in the com- plaint that they loaned money to the partnership with- out repayments, and further that the partnership loaned money to the defendant, Kristine Carlson and Karen Carlson, which had not been repaid. The plaintiffs addi- tionally sought settlement of accounts and contribu- tions between the [parties]. \u2018\u2018After the filing of the complaint, four years lapsed with little activity. Stuart Carlson died on January 23, 2011, and Patricia Carlson, the administratrix of his estate, was substituted as a [plaintiff]. In 2012, the mat- ter was dismissed for failure to prosecute and subse- quently reopened. Three more years passed in the ser- vice of disagreement. During this time, the [plaintiffs] moved for court orders to sell four partnership proper- ties in 2012. . . . The defendant objected. In 2013, the defendant moved for an order permitting him to inspect partnership records. . . . Later that year, the [plain- tiffs] moved successfully, over the objection of the defendant, for a court order permitting the partnership to enter into a listing agreement with a real estate agent to market and sell the remaining properties. . . . The movants asserted that the defendant had refused to sign any listing agreement. In the meantime, foreclosure proceedings were commenced by the town of Glaston- bury for unpaid property taxes. . . . Despite the fore- closure proceedings, the defendant continued to resist the sale of the properties including those under con- tract. . . . The sale of the properties under contract was ultimately consummated, apparently in 2014. On May 26, 2015, the court . . . dissolved the partnership and appoint[ed] Richard Conti, Esq. as a receiver. . . . Despite multiple offers to purchase certain other prop- erties of the partnership, the partners were unable to agree on their sale of the listing of other properties causing the offers to be withdrawn. . . . \u2018\u2018On November 17, 2015, the case came before the court for trial. The operative pleadings at the time of trial were the amended complaint dated November 9, 2015, and the answer with setoffs of the defendant, also dated November 9, 2015. At no time during the prior eight years during which the action was pending had the defendant asserted a counterclaim or cross claim. The [plaintiffs] reached a settlement agreement among themselves and with the partnership. On the fourth day of evidence, the defendant and the [plaintiffs] reached a settlement. The settlement included an adjournment of the trial and payment of $102,000 to Patricia Carlson. The remaining property was to be appraised and, with the exception of the property known as 637 South Main Street in Manchester, sold with the proceeds of the sales to be distributed among the partners according to their varying partnership percentages. The defendant was to receive the 637 South Main Street property, the value of which was to be deducted from his share of funds generated from the sale of the property. The bills of any creditors of the partnership and the receiver were to be paid before any distributions were made. Distributions to the partners were subject to the approval of the court, which was to retain jurisdiction of the matter for the winding down of the partnership assets and debts. \u2018\u2018Pursuant to the settlement agreement, including the adjournment of the trial, a number of properties owned by the partnership were sold and partial distributions made to the parties with the exception of the defendant. The defendant made objections to both. . . . The defendant also objected at various times to the payment of fees to the receiver. . . . The attendant delay in making a distribution to the defendant involved the uncertainty relative to the value of the total assets of the estate and the value of the 63[7] South Main Street property. Disputes arose (1) between the defendant and an easement holder over 637 South Main Street, (2) whether the defendant and Karen Carlson remained indebted to the partnership as had previously been claimed by Stuart [Carlson] and Patricia Carlson and (3) whether to subdivide one of the parcels of property. Two attorneys\u2019 liens for work done on behalf of the defendant by two different attorneys were presented to the receiver for payment. The court declined to treat the attorneys\u2019 fees as partnership debt because it was work done primarily for the benefit of the defendant as evidenced by court filings. Any claims against the defendant and that might have remained after the settle- ment agreement were withdrawn, on the record and in a filing with the court, by the [plaintiffs]. The disagree- ment over the easement remains. The court granted approval, over the objection of the defendant, to subdi- vide the parcel at issue. [Karen] Carlson died in 201[7], and her interests were represented by [Kristine] Carlson as the executrix of the estate of [Karen] Carlson. \u2018\u2018On March 21, 2019, a counterclaim was, for the first time, asserted by [the defendant] against \u2018Patricia Carl- son, Alexis Carlson, Kristine Carlson and Attorney Wil- liam G. Reveley [counsel for the partnership, Patricia Carlson individually and as administratrix of Stuart Carlson\u2019s estate, and Alexis Carlson], Attorney Mary Rossettie [prior counsel for the estate] and the estates of Stuart C. Carlson and Karen Carlson.\u2019 The counterclaim was procedurally improper in that it was filed without a request for leave to amend, or motion to amend, as required by Practice Book \u00a7 61-10. The counterclaim named two attorneys as defendants, who were not par- ties to the action without permission of the court as required by Practice Book \u00a7 10-11 and General Statutes \u00a7 52-102a. Moreover, the court interpreted the settle- ment agreement, involving an adjournment of the trial, as a general release of any and all claims the parties had against each other. Finally, the court notes that the conduct complained of by the defendant in his counter- claim, which asserts counts of breach of fiduciary duties and abuse of process, assert claims for conduct that is outside of the statute of limitations. On April 15, 2019, all the other parties joined in an objection, expressed through the vehicle of a motion to strike, to the counter- claim on the above grounds and together filed a motion to enforce the settlement agreement. The court granted the motions on May 28, 2019, ordered the counterclaim stricken, and the defendant appealed. \u2018\u2018On June 21, 2019, this court granted the joint motion of all parties excluding the defendant to terminate the automatic stay imposed by Practice Book \u00a7 61-11. The motion was limited to lifting any stay imposed on the filing of a Mylar,3 necessary to effect the subdivision of 637 South Main Street, Manchester. The filing of the Mylar was a condition subsequent to the permitting of the property by the appropriate municipal boards. The receiver supported the lifting of the stay to file the Mylar because the liquid assets under his control were diminishing and the available partnership funds would become insufficient to pay its debts, a refrain commonly voiced over the prior years. The court, pursuant to Practice Book \u00a7 61-11 (d), granted the motion finding that although the [defendant] had not filed the appeal only for delay, the due administration of justice required the termination of stay. \u2018\u2018Thereafter, on July 19, 2019, the receiver filed a motion for discharge of lis pendens. In his motion, the receiver noted the active efforts underway to sell the remaining parcels including those that are subject to subdivision on Line Street in Manchester and two par- cels to the rear of Line Street in Glastonbury. The receiver alerted the court that notices of lis pendens had been filed by the defendant on both parcels and moved for their discharge. The motion was joined by the [plaintiffs] and objected to by the defendant. The receiver, and the [plaintiffs], asserted that the two lis pendens were significantly impeding their ability to market and ultimately sell the properties. The receiver and the [plaintiffs] referred to the diminishing liquid funds from which to pay taxes and ongoing fees related to the winding down. On September 16, 2019, the court granted the motion to discharge from which order the defendant appealed by way of amendment to the origi- nal appeal. On January 2, 2020, the [plaintiffs] moved to terminate the stay attendant to the amended appeal of the order discharging the lis pendens. A hearing was held on the motion to terminate the stay on January 28, 2020.\u2019\u20194 (Footnote added.) The following appellate procedural history is perti- nent to our resolution of the defendant\u2019s appeal. On June 3, 2019, the defendant appealed from the court\u2019s May 28, 2019 judgment granting the plaintiffs\u2019 motion to strike his counterclaim. Thereafter, the defendant filed five amended appeals challenging other actions of the court. In his first amended appeal form, the defen- dant stated that he was appealing from the following: \u2018\u2018motion for discharge of lis pendens, interim report of receiver, request for order.\u2019\u2019 The defendant never briefed his appeal of the striking of his counterclaim, nor did he brief his appeal of the motion for discharge of lis pendens. These two claims on appeal are thus deemed abandoned. The defendant\u2019s subsequent four amended appeals listed several other actions of the court. In his third amended appeal, he listed, among other things, that he was challenging the court\u2019s decision to appoint Peter Carlson as receiver. This claim is the only action from those four amended appeals that the defendant has briefed. The remaining claims listed in the amended appeal forms are thus deemed abandoned. Additionally, this court dismissed portions of the defendant\u2019s appeal prior to oral argument. On February 20, 2020, this court granted the plaintiffs\u2019 motion to dismiss the defendant\u2019s second amended appeal, but only as to the portion of the appeal challenging the court\u2019s November 18, 2019 order terminating the appel- late stay. On June 9, 2021, this court granted the plain- tiffs\u2019 motion to dismiss the defendant\u2019s fifth amended appeal, which stated that he was appealing from his \u2018\u2018objection to the filing of Carlson Associates\u2019 2019 part- nership federal income tax returns.\u2019\u2019 Additional facts and procedural history will be set forth as necessary. I The defendant briefs that the court erred in denying his motions to inspect and copy corporate and partner- ship tax returns. The defendant\u2019s brief appears to chal- lenge the court\u2019s rulings on two separate motions. First, on November 6, 2018, the defendant filed a \u2018\u2018motion to inspect and copy financial records\u2019\u2019 of the partnership. On November 19, 2018, the court denied that motion. The defendant did not then appeal from that judgment, nor has he done so now on any of his appeal forms. Second, on August 7, 2020, the defendant filed a motion to compel discovery of the 1986 income tax returns of SHVC, Inc.5 On August 14, 2020, the court denied that motion. In its order denying the motion, the court stated: \u2018\u2018The discovery is not calculated to lead to the discovery of admissible evidence as this case settled in 2015.\u2019\u2019 Practice Book \u00a7 61-9 provides in relevant part: \u2018\u2018Should the trial court, subsequent to the filing of a pending appeal, make a decision that the appellant desires to have reviewed, the appellant shall file an amended appeal within twenty days from the issuance of notice of the decision as provided for in Section 63- 1. . . .\u2019\u2019 The defendant did not amend his appeal to include a claim regarding the court\u2019s August 14, 2020 order denying his motion to compel further discovery. Because the defendant has not properly appealed either ruling, we cannot address his claim challenging those rulings. Accordingly, we must dismiss this portion of the appeal. II The defendant next briefs that the court erred by not addressing the dispute in the presettlement notice among the parties before a settlement was reached. It is unclear what judgment of the court from which the defendant appeals. The record indicates that on Novem- ber 16, 2015, the plaintiffs, Kristine Carlson, and Karen Carlson filed a partial settlement notice indicating that they had reached a settlement in the underlying action. The notice stated: \u2018\u2018Issues remain in dispute as between the plaintiffs and [the defendant].\u2019\u2019 The defendant\u2019s claim presumably stems from that notice, as we are unaware of any other presettlement notice filed by any party. The settlement occurred on November 25, 2015, nearly four years before the defendant filed the present appeal. His brief does not reference any judgment from which he is appealing and none of his appeal forms reference any judgment concerning a presettlement notice. Accordingly, we must dismiss this portion of the appeal as it is not from a judgment of the court and it is not a judgment encompassed in his notice of appeal. III The defendant next briefs that the court erred in not ordering the plaintiffs to release all claims during the 2015 settlement negotiations. The claim he attempts to raise, like the claim he attempted to raise in part II of this opinion, concerns events that occurred nearly four years before the defendant filed the present appeal and is not from a judgment of the court. Furthermore, none of his appeal forms references any judgment concerning this matter. Accordingly, we must dismiss this portion of the appeal as it is not from a judgment of the court and it is not a judgment encompassed in his notice of appeal. IV The defendant next briefs that the court erred in authorizing an application for a subdivision of a prop- erty owned by the partnership. At the outset, we note that this claim that he now attempts to raise is not encompassed in his notice of appeal or amended notices. His first amended appeal, however, challenges the court\u2019s order allowing a receiver to market the lots created by the subdivision of that property. We reason- ably can interpret the defendant\u2019s brief as challenging that order. Nevertheless, we decline to review this claim because it is inadequately briefed. The following facts and procedural history are rele- vant to this claim. At all relevant times, the partnership owned a property at 637 South Main Street in Manches- ter. On August 8, 2017, the receiver reported to the court that this property \u2018\u2018consists of approximately eleven acres of land with an existing three family home and two barns. All partners are in agreement that the best way to sell the land left after subdividing off the front corner (which is to be conveyed to [the defendant] pursuant to the settlement reached by the partners) is to subdivide the remaining acreage into building lots.\u2019\u2019 On September 11, 2017, the court issued an order approving of the receiver\u2019s report, which, in turn, authorized the receiver to proceed with an application for a subdivision of the property. The defendant did not appeal from the issuance of that order at that time or in his five later notices of appeal. On September 5, 2018, the Planning and Zoning Com- mission of the Town of Manchester (commission) approved the application for a subdivision of the prop- erty. On October 15, 2018, the receiver filed a motion for an order in which he informed the court that the subdivision application had been approved and requested the authority to list the lots for sale at prices suggested by a local Realtor. On October 29, 2018, the court granted that motion. The defendant did not appeal from the granting of that motion. On May 28, 2019, the defendant filed an objection to the \u2018\u2018filing of resubdivision\u2019\u2019 of the property. The gist of the defendant\u2019s argument was that the subdivision application that was approved by the commission did not comply with the terms of the settlement agreement. The court did not rule on the defendant\u2019s objection. The defendant\u2019s first amended appeal purports to appeal from the interim report of the receiver dated August 12, 2019, and from the request for an order. In that report, the receiver stated that \u2018\u2018the resubdivision [of 637 South Main Street] is now perfected following approval, and the lots created thereby are available to transfer/sell.\u2019\u2019 The receiver asked the court \u2018\u2018whether to direct the [R]ealtor to continue marketing the . . . lots\u2019\u2019 created by the subdivision. The court approved the report and order on September 16, 2019. In his brief to this court, the defendant states in the heading for this claim that \u2018\u2018the trial court err[ed] in allowing a comprehensive subdivision instead of just obtaining an appraisal.\u2019\u2019 \u2018\u2018Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare asser- tion. . . . Claims are also inadequately briefed when they . . . consist of conclusory assertions . . . with no mention of relevant authority and minimal or no citations from the record . . . .\u2019\u2019 (Internal quotation marks omitted.) Estate of Rock v. University of Con- necticut, 323 Conn. 26, 33, 144 A.3d 420 (2016). In the section of his brief regarding this claim, the defendant discusses matters that are unrelated to the subdivision of 637 South Main Street. He does not brief any statute, case precedent, rule of court, or other legal authority that could render the court\u2019s action improper. We, therefore, deem this claim inadequately briefed and decline to review it. Accordingly, we decline to review this portion of the defendant\u2019s appeal. V Finally, in his third amended appeal, the defendant claims that the court erred in appointing Peter Carlson as receiver. \u2018\u2018The application for a receiver is addressed to the sound legal discretion of the court, to be exer- cised with due regard to the relevant statutes and rules, and such exercise is not to be disturbed lightly nor unless abuse of discretion or other material error appears.\u2019\u2019 (Internal quotation marks omitted.) Antonino v. Johnson, 113 Conn. App. 72, 77, 966 A.2d 261 (2009), quoting Chatfield Co. v. Coffey Laundries, Inc., 111 Conn. 497, 501, 150 A. 511 (1930). After reviewing and considering the record in this case, including the briefs and arguments of the parties on appeal, we conclude that the court did not abuse its discretion in appointing Peter Carlson as receiver. There is no error. The appeal is dismissed with respect to all claims except the claims regarding the authorization of an application for a subdivision and the appointment of a receiver; those judgments are affirmed. Kristine Carlson, Karen Carlson, and Carlson Associates were also named as defendants when the plaintiffs commenced the underlying action. Kristine Carlson and Karen Carlson were removed as defendants in 2015. Following Karen Carlson\u2019s death in 2017, the court, in 2018, granted the motion of Kristine Carlson, administrator of the estate of Karen Carlson, to be made a party defendant. Carlson Associates remains a defendant in the action but did not participate in the present appeal. Our references in this opinion to the defendant are to Vernon F. Carlson. Stuart C. Carlson died on January 23, 2011, and, on July 21, 2011, the plaintiffs moved to substitute Patricia W. Carlson, in her capacity as admin- istratrix of the estate of Stuart C. Carlson, as a plaintiff in the action. On August 1, 2011, the court granted this motion. \u2018\u2018A Mylar map is a map prepared on a thin polyester film suitable for recording on the land records.\u2019\u2019 (Internal quotation marks omitted.) 500 North Avenue, LLC v. Planning Commission, 199 Conn. App. 115, 118 n.2, 235 A.3d 526, cert. denied, 335 Conn. 959, 239 A.3d 320 (2020). On February 5, 2020, the court granted the plaintiffs\u2019 motion to terminate the stay. In that motion, the defendant stated that SHVC, Inc., was a family owned real estate investing company, and that Carlson Associates was formed in 1986 after SHVC, Inc., was dissolved."], "id": "23b11066-c7f9-4f23-85bc-f380dd0c45e8", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In any event, since this was an order deciding an appeal, and the proposed order of is so materially different from the original order as to constitute in itself practically a review of such order, I am of the opinion that section 21 of the Judiciary Law bars me from resettling the order in the manner requested. That section makes clear that a Judge, other than of the appellate courts, may not take part in the decision of a question argued orally in the court when he was not sitting as a Judge (cf. Gable v. Raftery, 65 N. Y. S. 2d 520)."], "id": "9e669fc8-c0f3-4d18-8f7b-70c3c1109b0e", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Certainly, the insiders cannot now seek to keep the fruits of the bargain, and, at the same time, receive a partial refund of its cost. They would keep the good and return the bad. If the reservation is as fundamental and dreadful a prospect as the insiders would have us infer, and it is stricken, should not the whole interrelated settlement be stricken and the parties put back in their original p condition? There is no insider suggestion that this be done, nor how or whether it could be done, or whether they want it that way."], "id": "74df622f-8556-4c2b-b919-0fee3720c58c", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The Code makes no mention of exceptions except on the trial and to decisions on matters of law arising on such trial, and a review of questions of fact is only to be had on a case or exceptions as on a trial by jury. (\u00a7 268.) Great injustice would ensue if a new trial could be had for a refusal to insert in a decision already written and filed, adjudications upon facts not mentioned in the pleadings without a request before such a decision to pass upon such facts. If the refusal to accede to such request was made in court, either upon a motion to insert the determination of the particular fact in the case, or on the settlement of such case, and it was improperly refused, the remedy would be by motion for a or appeal from such denial as an order on a motion, not by exception to it as to a decision on a trial so as to send the whole case for a new trial."], "id": "79e83851-0038-4cd5-bb1c-cab24f8a1a46", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The United Jewish Appeal of Greater New York is a New York membership corporation organized and operated exclusively for charitable purposes. Its objective generally is to raise funds for the relief, rehabilitation and of Jews in need or in danger in various parts of the world. The funds raised by the respondent are distributed to various charitable organizations engaged in relief, rehabilitation and settlement work and by agreement these beneficiary agencies designate the respondent as their sole fund-raising agency and refrain from engaging in any fund-raising activities."], "id": "b4add345-0351-486d-9203-a0f8a4548a16", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Ordered that the branch of the motion which is to strike references to at pages 20-23, and 64-65 of the respondent\u2019s brief is granted, and those portions of the respondent\u2019s brief are stricken and have not been considered in the determination of the appeal (see People v Stocks, 101 AD3d 1049 [2012]; People v Powell, 101 AD3d 756 [2012]). Rivera, J.E, Lott, Miller and Hinds-Radix, JJ., concur."], "id": "09e5366f-085f-45d7-922b-43cfd1c80c06", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["During the next 141/2 months, counsel attempted to prepare a resettled order to correct the defect, but has been unable to do so. For whatever reason, each submission was improper, either as to form or by the omission of some statement as to why was necessary. As far as appears, the attorney either had no idea what a resettled order was or, having moved on to other cases, he left to either a secretary or paralegal the preparation of a resettled order. In any event, this has led to substantial loss and prejudice to the infant, who has been denied the proceeds of the settlement for mor\u00e9 than 141/2 months. In my view, the inaction and neglect warrants a substantial reduction in the fee."], "id": "36ae7c47-51dc-4b8f-a77e-87281d012c73", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Suppose a case where the party defeated desires to review the referee\u2019s decision, and his report does not find, or refuses to find, one way or the other upon all the facts the appellant desires to present, so that exceptions to that will not be sufficient; or that he wishes to contend that a fact found was entirely unauthorized by evidence; or wishes to insist, as he may do at the general term, (Waters v. Green, 3 Keyes, 385; McCabe v. Brayton, 38 N. Y. Rep. 196 ; Loeschick v. Baldwin, Id. 326,) that the finding was contrary to evidence. He must then prepare and serve a case containing the evidence. He should file and serve separate exceptions to the facts and conclusions appearing in the report, within ten days, or such extended time as he may procure, unless he serve his case and exceptions, containing also such exceptions to the facts *214and conclusions appearing in the report as are necessary to present the questions deemed material. If the case and exceptions contain exceptions to the facts and legal conclusions in the report, or such facts be repeated therein, followed by exceptions thereto, it is not necessary to serve them separately. The case \u201c will be, of itself, a compliance with the first clause of the section, and no other exceptions will be required to satisfy that clause.\u201d (Hunt v. Bloomer, 13 N. Y. Rep. 343. Johnson v. Whitlock, Id. 347.) It is advisable, if a case he made, to insert them therein. The referee is bound to allow such exceptions as the appellant desires to insert, and if he refuse to do so, the court will send the case back to him for , and compel him to resettle it. So if he refuse to find one way or the other upon any question of fact proposed in the case, the court, on motion, will compel him to so find, without directing whether the finding shall be in the affirmative or the negative, as the appellant has a right to have his original case so settled that he can go to the Court of Appeals with it. (Johnson v. Whitlock. 13 N. Y. Rep. 349, 350. Priest v. Price, 3 Keyes, 222. Manly v. Insurance Co., 1 Lansing, 24-26. Casler v. Shipman, 35 N. Y. Rep. 533, 542. McKeon v. See, 4 Rob. 449, 464.) He should insist upon a finding one way or the other, as a matter of right, as an exception will not lie to a mere refusal to find at all, (Casler v. Shipman, 35 N. Y. Rep. 533; Colwell v. Lawrence, 38 id. 71; Preston v. Price, 3 Keyes, 222;) unless, possibly, in a case where there was no conflict in the evidence: (Mason v. Lord, 40 N. Y. Rep. 476. Marvin v. Inglis, 39 How. Pr. 329.) On appeal from the judgment, an order refusing to compel a finding on any material question may be reviewed. (Casler v. Shipman, 35 N. Y. Rep. 542.) The practice has, (unless in the seventh district, as hereafter shown, prior to the adoption of the present system of departments,) so far as we are aware, been uniform. In the third district, in Phelan v. A. and S. Railroad, (reported on the merits, 1 Lans. 258,) the case was twice sent back to the referee, on his refusal to find either way upon certain facts proposed by the case; the court the last time (Albany special term, March, 1869) making an order as follows: \u201c Ordered that the case and exceptions herein be sent back to the referee for further settlement of the following facts proposed by the said case and exceptions, (specifying them separately.)- It is further ordered, that said referee find one way or the other upon each .of said proposed findings, and upon each portion thereof, *215whether the facts are, or are not, as proposed; and if he find that the same are not, or any portion thereof is not, as proposed, that he allow the defendant to interpose in the case and exceptions, such exceptions to his finding or findings as he may be advised.\u201d The cases were sent back for resettlement, and similar orders made, in Hides v. Horn, (reported on the merits, 54 Barb. 172,) at the same terra, and in Watson v. Shuttleworth, (reported on the merits, 53 Barb. 357,) at a prior special term at Albany. Of course no fair minded referee would refuse to find one way or the other, upon any question as to which evidence was given on the trial, and he ought not to attempt to determine what questions are material, for the Court of Appeals may not agree with him as to what is material. If he err in such determination he deprives the party of all opportunity to procure the judgment of that court upon the question. Neither ought the court at special term, for the same reason, to do so, as a single fact, if found in favor of the appellant, may neutralize or destroy another, or turn the case."], "id": "c88e45db-72a2-4a07-9de1-ebb2167947f0", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["With respect to the first item of relief prayed for this court is of the opinion that the application has not been timely made, for the rule is clear that an application to resettle an order of the subject character cannot be made after the time to appeal therefrom has expired. But even if said application for a had been timely made, it is this court\u2019s view that the same would and should be denied, for the order, as entered (which was settled on notice and without opposition to the form and contents thereof) correctly and properly expressed and stated this court\u2019s intentions with respect to the original motion. The respondents were clearly held in contempt for a willful failure and omission to perform acts which were then in their power to perform and which acts they had been directed to perform by the order of the Appellate Division of the Second Department. As the subject order indicates, it was the court\u2019s intention, pursuant to sections 753 and 774 of the Judiciary Law, not only to impose a fine but also to order that the respondents be imprisoned until they had performed the aforesaid acts. It is clear that in the circumstances here present, both a fine and imprisonment may be imposed. (Cf. Ditomasso v. Loverro, 242 App. Div. 190.) An order cannot be qualified in its operation and effect by reference to the opinion of the court; the court speaks by its order, and effect must be given to it according to its terms. (Hewlett v. Wood, 67 N. Y. 394, 399.)"], "id": "bd998d5f-7b59-41c9-9cec-0fe3d53f23de", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["As to the settlement of the accounts of the administrators, they will stand as settled. No objection or exception thereto was taken by the appellants, nor is any now urged. The amount of $4,174.23, therefore, will stand as the balance in the hands of the administrators for, distribution. But so far as commissions were allowed *621to tbe administrators, or charged upon such balance, we think the learned surrogate erred. All parts of said decree allowing to the administrators commissions, or ordering the same paid out of the assets of said estate, are reversed, with costs of this appeal to. the appellants against these respondents personally, and the proceedings are remitted to the surrogate of Greene county for of the decree of distribution in accordance with this opinion."], "id": "85520959-66e8-4a94-ac86-16f5d7507915", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The procedure contemplates notice in the same manner as settlement of the original order and the; form is rather simple. In addition to submission of a supporting affidavit as to why is necessary, the proposed resettled order includes the caption, with the present date and, after recital of the papers submitted, an ordering paragraph recalling, vacating and resettling the original order. Following this should be the original or*793der with the original date, caption and recital, after which the ordering paragraphs should be set forth as in the original, with the only change being those to correct the defects. Plainly, this is a rather simple procedure which does not warrant the inordinate time that elapsed in this case. Although the attorney here was carefully instructed as to resettlement, he repeatedly ignored or failed to follow the requisite procedure."], "id": "38e211d8-71b9-4fa1-86b2-cf4bcec2e728", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The Court of Appeals has power to send a case back to the Supreme Court for , (Westcott v. Thompson, 16 N. Y. Rep. 613,) even after argument. (Rice v. Isham, 1 Keyes, 44, 47.) As the referee is not an officer of that court, but of the Supreme Court, a motion should be made in the latter court that the case be sent back to him for resettlement. ( Westcott v. Thompson, 16 N. Y. Rep. 616.) And though the case be pending in the Court of Appeals, the Supreme Court, at special term, has power to order a resettlement, and that the corrected case be returned to the Court of Appeals, with a recall of the former, or a request to correct it. (Whitbeck v. Whine, 8 How. Pr. 433. Luyster v. Sniffin, 3 id. 250.)"], "id": "7c77acd2-8abf-4a1e-a0a9-de72b003a725", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Watson, J. Defendant moves for (1) a of the order made on November 12, 1937, denying defendant's motion to dismiss plaintiff\u2019s amended complaint by including therein a provision granting leave to defendant to serve an answer to the amended complaint pursuant to section 90 of the Municipal Court Code, and (2) for leave to appeal to the Appellate Term of the Supreme Court, First Judicial Department, from said order, as resettled. The motion is granted to the extent of granting leave to the defendant to serve and file an answer to the amended complaint within five days from service of a copy of the resettled order to be entered herein, with notice of entry thereof."], "id": "52dd4ad7-c9b7-4231-b222-e4dc9210404a", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["*144In Matter of Roth (139 N. J. Eq. 588) the point under discussion was considered by the appellate court although the appeal was taken apparently only from the refusal by the lower court to vacate three decrees settling prior accounts of the fiduciary. The cause assigned for vacatur of the decrees by the income beneficiary was the making of amortization payments on a certain mortgage out of income. Although shown in the accounts, no objections had been made to the payments. The decrees were, set aside upon the appeal. The remaindermen urged that on of the accounts, a depreciation reserve be created. - This the court declined to do, although admitting that \u201c Such a course is in harmony with modern accounting, practice \u201d. It reasoned that \u201c A tenant for life is bound to repair only to the extent of preventing permissive or actual waste. * * * he is under no obligation in respect to the loss of economic value of a building which normally occurs.\u201d"], "id": "f40b0547-05d4-455d-94c9-3c50db1d7cb9", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The plaintiffs sought, inter alia, a partition of the assets and a dissolution of a family partnership, of which the plaintiffs and the named defendant were original members. The plaintiffs claimed that there was significant discord among the members, including that the defendant occupied certain real property in Manchester owned by the partnership without paying rent and refused to remit rent received from nonpartner tenants. In 2015, the court dissolved the partnership and appointed R as a receiver to wind up the partnership and to sell certain real property owned by the partnership. Later that year, during the trial, the plaintiffs and the partnership reached a settlement agreement and submitted a partial settlement notice, which stated that issues remained in dispute between the plaintiffs and the defendant. Soon thereafter, the plaintiffs and the defendant reached a settlement agreement. In accordance with the set- tlement agreement, the trial was adjourned and certain real property was sold with partial distributions made to the parties, with the exception of the defendant, who was to receive a certain parcel of real property, the value of which was to be deducted from his share of funds generated from the sale of real property. In 2017, the court approved the receiver\u2019s report, over the defendant\u2019s objection, which authorized the receiver to proceed with an application for a subdivision of real property. In 2018, the application for the subdivision of the property was approved and the court thereafter granted the receiver\u2019s motion for an order for the authority to list the lots for sale. Later that year, the defendant moved to inspect and copy financial records of the partnership, which the court denied. The defendant did not then appeal from that judgment. In 2019, the defendant filed a counterclaim, without a request for leave to amend or motion to amend. The defendant appealed from the court\u2019s judgment granting the plaintiffs\u2019 motion to strike the defendant\u2019s coun- terclaim, but failed to brief that claim. In 2020, the court appointed P as receiver. Thereafter, the defendant amended his appeal five times, challenging other actions of the court. Held: 1. The portion of the defendant\u2019s appeal challenging the trial court\u2019s denial of his motions to inspect and copy corporate and partnership tax returns and his motion to compel further discovery was dismissed, the defendant having failed to properly appeal those rulings of the court. 2. The portions of the defendant\u2019s appeal challenging the trial court\u2019s failure to address the dispute in the p notice among the parties before the settlement was reached and its failure to order the plaintiffs to release all claims during the 2015 settlement negotiations were dis- missed: these events occurred nearly four years before the defendant filed the present appeal; moreover, these portions of the defendant\u2019s appeal are not from judgments of the court and are not judgments encompassed in his notice of appeal. 3. This court declined to review the defendant\u2019s claim that the trial court erred in authorizing an application for a subdivision of a property owned by the partnership as the claim was inadequately briefed, the defendant having failed to cite any statute, case law, rule of court, or other legal authority that could render the court\u2019s action improper. 4. The trial court did not err in appointing P as a receiver, as the appointment of a receiver is within the sound discretion of the trial court. Argued November 9, 2021\u2014officially released February 8, 2022"], "id": "fe89cca7-d48a-4679-9cfe-cdec9bcf1493", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["After the last amending decree in the rehabilitation proceeding he and his coexecutor initiated an accounting proceeding. A supplemental account was filed in it which accurately set forth the cost of the improvements of the various properties, the amount of amortization and the respective dates from which the contributions to it out of his income were to become effective. The decree judicially settling the account and supplemental account was dated November 18, 1940. In the present motion, no attempt has been made to change its provisions and it is clear that no legal ground ever existed for modification or ."], "id": "6d63b731-f235-4031-8470-8e4115a26d06", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["It is an axiom of corporate organization that a corporation is managed by its board of directors (Business Corporation Law \u00a7 701). While the powers which are delegable to a committee of directors have been expanded considerably (L 1961, ch 855), there is nothing to suggest that the expansion of its function was intended to exempt the committee from the oversight and supervision of the entire board. For example, Business Corporation Law \u00a7 717 (a) provides that a director \"shall be entitled to rely on information, opinions, reports or statements * * * prepared or presented by: * * * (3) a committee of the board upon which he does not serve\u201d. It is clear that this provision contemplates that the committee will prepare and present \"information, opinions, reports or statements\u201d to apprise the full board of its actions. Moreover, Business Corporation Law \u00a7 712 (c) specifies that delegation of authority to a committee \"shall not alone constitute performance by any member of the board who is not a member of the committee in question, of his duty to the corporation under section 717 (Duty of directors).\u201d A director may be held accountable for actions taken by less than the full board and \"does not exempt himself from liability by failing to do more than passively rubber-stamp the decisions of the active managers\u201d (Barr v Wackman, 36 NY2d 371, 381 [1975]). Moreover, there is ample precedent for holding a director liable for payment of excessive compensation to corporate employees (Jacobson v Brooklyn Lbr. Co., 184 NY 152 [1906]; Cullen v Governor Clinton Co., 279 App Div 483 [1st Dept 1952], denied 281 App Div 659)."], "id": "44a345d0-7d37-4580-896a-86e6b894aff2", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["After the reversal of the Appellate Division, when the decree was resettled on March 8, 1918, the United States was at war with Germany, and the alien property custodian was the trustee in the United States of the property of the absent Frau Von Burtenbach. Her direct interest in the litigation was terminated. His status had been recognized by the trustees of the estate, and the sum of $4,059.67, income from the trust, had been previously paid to him on December 8,1917. No notice of the of the decree was given to him, and consequently no opportunity to object was afforded. The objectant asks herein to amend this *315decree. These facts constitute sufficient cause (even without drawing the inference of fraud or collusion) for the court of its own motion to reopen that decree and amend its provisions to comply with the public policy of the state. Matter of Regan, 167 N. Y. 338, 344. The prior decrees are not, therefore, res adjudicata, for a valid final decree was not entered."], "id": "9171e8c1-8eee-4d60-aa04-6a34232249e3", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["In the case at bar the alleged clerical error consisted of the failure or neglect of the petitioners to make applications for fees now requested in the sum of $105,333.09. This court cannot understand how an oversight of such magnitude could have been made by four different firms of attorneys. It appears instead that as a result of hindsight the petitioners have now decided to seek compensation from the estate as well as, or instead of, from their clients. Such hindsight is not one of the grounds set forth in subdivision 6 of section 20 of the Surrogate\u2019s Court Act, which would permit the vacating, amending or of the decree. There was no mistake of fact or clerical error contained in the decree. It was complete in every detail and the failure of the attorneys to seek compensation under the provisions of section 278 of the Surrogate\u2019s Court Act is not unusual as the fees allowed under that section are limited to compensation for only such services as are of aid to the court and. the estate in the determination of the construction question (Matter of Dickinson, 10 Misc 2d 280; Matter of Gibson, 10 Misc 2d 282). The applications are, therefore, denied."], "id": "00be3c07-e4a8-4728-83e7-c0f36b279a33", "sub_label": "US_Terminology"} {"obj_label": "Resettlement", "legal_topic": "Immigration", "masked_sentences": ["See, e.g., CRS Immigration Report at 20\u201323; Cong. Research Serv., ED206779, Review of U.S. Refugee Programs and Policies at 9, 12\u201314 (1980). And in 1990, INS implemented a \u201cFamily Fairness\u201d program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (\u201cIRCA\u201d), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (\u201cFamily Fairness Memorandum\u201d); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of deferred action: 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (\u201cVAWA\u201d), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immi- gration status, without having to rely on their abusive family members to petition on their behalf. Id. \u00a7 40701(a) (codified as amended at 8 U.S.C. \u00a7 1154(a)(1)(A)(iii)\u2013(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, \u201con a case-by-case basis, whether to place the alien in deferred action status\u201d while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that \u201c[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.\u201d Id. But because \u201c[i]n an unusual case, there may be factors present that would militate against deferred action,\u201d the agency instructed officers that requests for deferred action should still \u201creceive individual scrutiny.\u201d Id. In 2000, INS report- ed to Congress that, because of this program, no approved VAWA self- petitioner had been removed from the country. See Battered Women"], "id": "485f9ed5-a5a9-4444-9586-4aeb1d368781", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff sustained herniated discs in his neck in the course of a renovation of the Owl\u2019s Head sewage treatment facility, owned by the City of New York, when, in the course of his employment, he fell through a gap between the grated floor that he was standing on and a pipe to which he was applying insulating material. Plaintiff asserted causes of action against the City of New York, the Environmental Protection Department of the City of New York (hereinafter referred to collectively as the City) and NAB Construction Co., a prime contractor on the job site. The City impleaded plaintiffs employer, AC&S Insulation Corp., and sought indemnification from it and from NAB. All portions of the action were settled during trial except for the main action between plaintiff and the City, and the City\u2019s claims for indemnification against NAB and AC&S. The jury returned a liability verdict in plaintiffs favor, apportioning 60% of the culpable conduct in the happening of the accident to the City and the remainder to NAB and AC&S, and a damages verdict finding that plaintiff had been damaged in the total sum of $1,529,000, comprised of $229,000 for past pain and suffering, $800,000 for future pain and suffering, and $500,000 for future medical expenses. Accordingly, a judgment was entered against defendants City of New York and Environmental Protection *52Department of the City of New York in the reduced sums of $137,400 for past pain and suffering, $480,000 for future pain and suffering, and $300,000 for future medical expenses. The City moved to resettle the judgment to include the implicit dismissal of its claims for indemnification against NAB and AC&S, which motion was denied."], "id": "7b3a4c48-367e-4115-aea5-37d7d79b208c", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["The defendant cites no convincing authority to support her request for the incorporation of the stipulation of settlement into the judgment of divorce. It is true that CPLR 5019 may be used to grant relief to which a party is entitled, provided that this of a judgment does not alter the obligations of the parties or change the direction of the court. However, in the case at bar, there was no agreement between the two parties to have the stipulation of settlement incorporated into the judgment of divorce. The incorporation of the stipulation of settlement now will obviously alter the obligations of the parties."], "id": "b4bbda49-4c09-469c-9e9d-4dc991738168", "sub_label": "US_Terminology"} {"obj_label": "resettlement", "legal_topic": "Immigration", "masked_sentences": ["But the allowance is sought to he vindicated on' the ground that it was made a condition of the order granted to the petitioner on his application to the court for a favor, and that, having accepted the favor, he cannot be heard to complain of the condition. The legal proposition here put forward is a sound one. (Claflin v. Frenkel, 3 Civ. Pro. B., 109; Strong v. Jones, 25 Hun, 319; Bright v. Milwaukie Railroad Company, 1 Abb. N. C., 14; In the Matter of the Waverly Water-Works Company, 85 N. Y., 478.) Then, was the petitioner\u2019s application granted upon the condition as claimed, that the court might, in the final order to be made in the proceeding, make the allowance here challenged as irregular and improper, and did he accept or take the benefit of an order imposing such condition ? This he denies. The question of fact must be determined by an inspection of the record, and the order or orders themselves must control as to the imposition of the alleged condition. The first order following the order to show cause was the order of reference granted April 26, 1883. This, order is without condition. It was resettled by the order of May 12,. 1883, which remained without condition on its . While the reference directed by those orders was pending, and on July 7, 1883, an order was made by the judge, as is stated in the papers and as is conceded by counsel, \u201c on his own motion,\u201d whereby,, after reciting the omission of any condition in the order of reference, it was ordered as follows : \u201c That the order of reference and intervention in this proceeding, and dated May 12,1883, be and the same is hereby amended so that the court retains to itself power to make such order in regard to costs and compensation as it deems proper, and the order of reference and intervention is granted upon that condition.\u201d This order, which injects the condition into the prior orders of reference, is claimed to be wholly without authority and void, and it may be here noted that it does not appear that the petitioner ever accepted or took any proceeding under the order of reference after its attempted amendment of July seventh. It seems that an appearance was had before the referee on the seventeenth of *556July, when he took the requisite oath as referee, and the counsel for the parties, other than for the petitioner, announced themselves ready to proceed with the reference, but the petitioner; by his counsel, declined to proceed and withdrew from the reference. No evidence was put in before the referee, and the latter made and signed his report to the effect that the petition should be dismissed. Thus it seems that no action was taken by the petitioner under the order as declared amended. Indeed he expressly refused to further proceed in the matter. It cannot, therefore, be held that he was bound by the condition imposed by the order of July seventh by reason of an acceptance of it as an amendment of the order of reference of May twelfth. Then had the order of July seventh any binding force? \"Was it of any validity against the petitioner ? We are of the opinion that it was wholly without jurisdiction. It was made by the judge \u201c on his own motion,\u201d and, in so far as can be discovered from the record, without the presence even of the parties, or at least of the party \u2022now sought to he hound by it. Certainly there is nothing in the record showing that such party was called before the court by any legal proceeding for the purpose of amending the order of reference. The contrary does in fact appear, for the order was made hy the judge \u201c on his own motion,\u201d that is, of his own volition, not on due \u25a0application of any party; and this too appears from the recital in the order itself. So according to the record before us the judge \u25a0on the seventh of July, on his own motion, without the presence of the parties, or notice to any party, made an order in the matter pending in the court changing and amending an order granted in such matter on the preceding May twelfth. A judge of the court has no authority, any more than has any third person, of his own motion, without having the parties before him m pursuance of some formal legal process or proceeding; or unless, being present, they \u25a0consent that the subject may be then judicially considered, to make an order in a-pending suit or proceeding, or even to correct an error In an order theretofore made therein. The same formalities are requisite to confer jurisdiction upon a judge or court to amend or \u25a0correct an order previously granted in a matter in litigation as would be necessary to obtain the order in the first instance. We are of the opinion therefore that the order of July seventh was void for *557want of jurisdiction in the court' to make it, and it follows that the order of reference of May twelfth stood and stands without condition as claimed by th'e respondent on this appeal. If right in this conclusion the allowance of $350 to the respondent in the order appealed from .was erroneous, and as to such allowance the order should be reversed."], "id": "390ca9be-68c6-41a0-9283-fd5d7c0fd1a4", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": [". For example, plaintiffs claim that the Board wrongfully disenfranchised the unit owners by preventing them from having access to the names and addresses of unit owners by denying plaintiffs\u2019 request for this information \u201cwithout explanation\u201d (Marshall off UK 10-11; exhibit A). Plaintiffs also alert the court to the default by the defendants in appearing for depositions that plaintiffs noticed on various dates in June 2008 (Marshall off 1\u00cd1\u00cd11-12). Because these issues are unrelated to plaintiffs\u2019 motion for partial summary judgment, the court disregards them for present purposes."], "id": "f5a59058-7758-4ee6-8165-13c484cec954", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Old Republic asserts that Goldsmith \"participated in hundreds of phone calls with a Texas resident during which Bell was worried about the federal government collecting on the Federal Lien.\" When communications between a and a resident are alleged as the basis for jurisdiction, we look to the quality and nature of the communications to establish purposeful availment. See id. at 74. On their own, numerous telephone communications with people in Texas do not establish minimum contacts, and we have noted that changes in technology may render reliance on phone calls obsolete as proof of purposeful availment. Michiana Easy Livin' Country, Inc. , 168 S.W.3d at 791 (reasoning that a \"caller ID\" number no longer necessarily indicates anything about the caller's location and questioning: \"If jurisdiction can be based on phone conversations 'directed at' a forum, how does a defendant avail itself of any jurisdiction when it can never know where the other party has forwarded calls or traveled with a mobile phone?\"); see also Alenia Spazio, S.p.A. v. Reid , 130 S.W.3d 201, 204 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (holding that \"numerous telephone and facsimile communications with people in Texas relating to an alleged contract do not establish minimum contacts\")."], "id": "f5fac936-df9e-4856-80e9-1219cdeb7d3b", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["It is to be noted that this paragraph is to be found only in subdivision 1 of this section. That subdivision is only concerned with the registration of a vehicle and, except for the question of the application of this paragraph, is not otherwise concerned with the license of operators of vehicles, the latter being provided for only in subdivision 2 of the section. In other words, does the provision that it shall be deemed that an owner of a vehicle is a of this State, if he has a place of busi*220ness in another State, owning a motor vehicle used in connection with and garaged at such place of business which he is compelled to register in the foreign State, apply to the owner\u2019s operator\u2019s license. Since the paragraph is included only within that portion of the section which treats with the registration of vehicles, it would at first seem that the questioned paragraph applies only to that subdivision. However, the paragraph does state that such a person shall be deemed a nonresident of this State \u20181 within the meaning of this section for the purpose of enjoying the privileges of this section with respect to such vehicle.\u201d Thus, the Legislature has clearly stated that such paragraph shall apply to the section. Throughout section 51, there are further exemptions and exceptions and the Legislature has specified the particular \u2018 \u2018 subdivision \u2019 \u2019 to which such exemptions apply. I, therefore, assume that if the Legislature had intended the paragraph in question to refer only to subdivision 1 of the section, they would have so stated. I, therefore, hold that the quoted paragraph applies to subdivision 2 of that section, as well as to subdivision 1."], "id": "76d24b46-b86d-4380-96d0-f4de3fba9766", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*676Affidavits submitted by these defendants describe them as a Massachusetts partnership and establish their principal place of business in the City of Boston, Massachusetts; admit that the summons in the action was served (on Sept. 13, 1961) upon an employee who was then in charge of certain business they were conducting in this State; and further claim (1) that no copy of the complaint was served upon the employee with the summons, (2) that no copy of the summons and complaint, together with a notice of service upon the employee was ever received by the defendants, by registered mail or otherwise, and (3) that an affidavit of compliance with the foregoing, together with a copy of the summons and complaint and registered mail return receipt (or refusal notation) was not filed with the Monroe County Clerk, as Clerk of the forum. All three of the numbered items are, of course, required by section 229-b to effect service upon individuals (including those joined in partnership) who are engaged in doing business in this State; excluding, of course, nonresident individuals so engaged, who have been personally served within the State \u2014 a situation negatived by the affidavits."], "id": "91eb4a5a-c884-4228-9abe-926db1967174", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The moving party in the case of the summons is David L. Subin. Prior to the service of the summons there were already two actions pending between these parties in one of which Subin was plaintiff and in the other defendant. He is a resident of *212Pennsylvania. He was in New York for the sole purpose of being examined before trial in the action in which he was defendant, and was served at the conclusion of the hearing. A who comes into the State for the purpose of being examined in a pending suit is immune from service (New England Inds. v. Margiotti, 270 App. Div. 883). It is claimed that the privilege against service is a limited one and that it is ineffective if the party served is himself a plaintiff in our courts. No case has gone that far though it has been held that a nonresident who comes into the State to be examined in a ease where he is suing has no exemption (Resort Airlines v. Sternberg, 208 Misc. 383). It is unnecessary to inquire whether this constitutes a valid exception to the general rule. It is not the situation here. Subin was not, at the time of service, here in his capacity as a suitor using our courts."], "id": "24edc4cc-44c5-452f-84b4-108b3c00a08f", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["CPLR 5201 specifically authorizes any money judgment to be enforced against any \"debt\u201d (whether past due or to become due). The Court of Appeals has held that an attachment was properly issued in order to obtain in rem jurisdiction over a defendant who owned a corporate insurer\u2019s contractual obligation to defend and indemnify that defendant under his policy of automobile liability insurance (Simpson v Loehmann, 21 NY2d 305, rearg den 21 NY2d 990; see, also, Victor v Lyon Assoc., 21 NY2d 695)."], "id": "e5081e31-d382-4088-b42d-218ec5406548", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["By parity of reasoning, we conclude that the provisions of the amendment of section 52 of the Vehicle and Traffic Law, effective July 1,1958, and now part of section 253 of the Vehicle and Traffic Law, permitting service on the employer of a operator must be held \u2014 and we do so hold \u2014 to operate prospectively and are not retroactive in their effect."], "id": "6a5cfa19-55d8-48d4-af0a-adcb9851688d", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["As to the removal of the widow as executrix I believe the application should be denied. While it is shown that she has resided without the State since her appointment the unfortunate circumstances in which she has been placed afford satisfactory explanation, coupled with her denial of intent to become a . She is the sole legatee, devisee and executrix under the will of her husband and the mother and general guardian of his only child, an infant. With no relatives in the East her desire to remove from the scene of the death of her husband, her attendance at the bedside of her mother during her last illness and her subsequent stay among relatives in Ohio present sufficient reasons for her absence. Save for instituting transfer tax proceedings, for which the law gives her still nearly a year, she has omitted no step in her duties as the representative of her husband. ISTotice to creditors has been published and the statutory inventory filed."], "id": "d97ecb0e-fcf7-426e-a5b4-f681d8fd6dda", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*660The petitioners voluntarily sought City employment. At most, the statutory phrase \u2014 \"every person seeking employment\u201d \u2014 could be viewed as ambiguous in the context of the transferred employees. A statute that can be interpreted in different, but reasonable, ways is sufficiently ambiguous to warrant a court to consider legislative history to determine the statute\u2019s intended scope. (United States v Pacione, 738d 567 [2d Cir 1984].) New York City Charter \u00a7 1127\u2019s history reveals the legislative intent to apply the condition precedent to all City employees hired after the statute\u2019s effective date. In recommending that the City Council adopt the employee condition, the committee stated: \"Signing the aforesaid agreement would be a condition precedent to employment of all future City employees regardless of civil service classification or status.\u201d (1972 Report of Comm on Finance, at 936 [emphasis added].) Committee reports are persuasive authority of legislative intent. (Railway Labor Executives\u2019 Assn. v Interstate Commerce Commn., 735d 691, 701 [2d Cir 1984] [context of congressional report].) Petitioners have not provided any authority, nor is the court aware of any, that supports a contrary interpretation of New York City Charter \u00a7 1127\u2019s legislative intent."], "id": "99b4bdef-8a20-492c-a3b5-3301a6086ec2", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["There is some need to clarify and restate the status of case law with respect to the jurisdiction of County Courts over defendants. Older case law seems to assert that the court\u2019s lack of such jurisdiction is of constitutional origin, and cases commenting upon special appearances, general appearances and demurrers, which sometimes have trapped unwary defendants and have resulted in their general appearance, are outdated and not particularly helpful."], "id": "f9b7d1bb-2f93-4443-b68f-de4a7d6c56a7", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The second alleged reason urged for remitting the forfeiture is the assertion that the people have lost no rights. This contention is based on the claim that the defendant was finally discharged on bis own recognizance on the recommendation of the district attorney, which recommendation is alleged to have been made on the ground that a conviction could not have been had thereunder, upon the authority of the case of McCord v. People, 46 N. Y. 470\u2014an authority claimed to have been controlling at the time that the indictment was found. That case held that the design of the statute against obtaining money, etc., under false pretenses was to protect those who for any honest purpose are induced by false and fraudulent representations to give credit or part with their property, and not to protect those who do this for an unworthy or illegal purpose. In the case at bar it appears that the defendant worked a confidence game upon the complainant, the basis of which was making the complainant believe that he, the defendant, had stolen $25,000, and that the *583complainant would share the stolen money. The indictment was found long before the recent amendment to the Penal Code adopted to obviate the effect of the ruling in the McCord case, and the district attorney was unquestionably right in thinking that under the authority of McCord v. People, supra, the defendant could not be rightfully convicted. It appears, however, that this was only one of the reasons why the district attorney recommended the discharge of the defendant on his own recognizance. The other reason was that the complaining witness, who had been confined in the House of Detention, had been discharged from it\u2014that such complaining witness was a of the State, and that at the time when the district attorney made the recommendation in question the people had no trace of his then present address. This discharge of the complaining witness from the House of Detention, which in turn resulted in the inability of the people to procure his attendance as a witness, came about through the failure of the defendant to appear or attend for trial. Another witness for the people, who was also a nonresident of the State and committed to the House,, of Detention, was likewise discharged upon the defendant\u2019s default in appearing and because of such default. A police officer was the only witness whose name is indorsed upon the indictment. It does not appear that any motion was made to dismiss the indictment on the ground that it was not warranted by the evidence presented to the grand jury. The presumption is that it was founded upon sufficient evidence. Being found, the people had a right to have it disposed of according to the recognized methods of criminal procedure, which included the right in the absence of any other disposition to have the issue presented by the defendant\u2019s plea of not guilty tried by a trial jury."], "id": "6f6739ba-1e87-44c5-9585-9d4b4a4237ee", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["II. The process of attachment against the property of a debtor was originally given, because he could not be served with the ordinary process of the courts, so as to make a judgment against him effective. And before the Code it operated to place his property in the hands of trustees, to be distributed for the benefit of such creditors as might claim the benefit of the proceeding."], "id": "ba3b8a87-e538-4cff-8159-b709f3013ce8", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Accordingly, pursuant to the provisions of subdivision 2 of section 193 of the Civil Practice Act, this court directs that a supplemental summons and an amended complaint issue herein to the end that Eleanor Fugazy Sherr be made and brought in as a party defendant in and to this action. If the plaintiff fails or neglects to bring her in as a party to this action by October 1, 1957, the action shall be dismissed, without prejudice. It may be noted that such a dismissal must be ordered even in a case where the indispensable defendant is a and cannot be served personally within this State within the reasonable time prescribed by the court in directing that such defendant be brought into the action. (See Carruthers v. Waite Mining Co., 306 N. Y. 136, 142.)"], "id": "447ffbbf-8e3f-4de2-b06f-e56054b849df", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Recourse must be made to the purposes for which the borrowing statute was enacted. The statute obviously favors *345New York residents; its primary purpose is to prevent \"forum shopping\u201d on the part of plaintiffs (Daigle v Leavitt, 54 Misc 2d 651, 652) and \"to give resident defendants the benefit of the shortest period of limitations\u201d (Martin v Dierck Equip. Co., 52 AD2d 463, 468, affd 43 NY2d 583, supra)."], "id": "8a531aa3-29e6-497f-8e9d-3cde602227c6", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["he resides and works in Colorado, he has not purposefully availed himself of the privilege and benefits of doing business in Texas. We disagree. We consider three factors when determining whether a defendant has purposefully availed himself of the privilege and benefits of conducting activities in Texas. Moncrief, 414 S.W.3d at 151; Moki Mac, 221 S.W.3d at 575 (citing Michiana Easy Livin\u2019 Country, Inc. v. Holten, 168 S.W.3d 777, 784\u201385 (Tex. 2005)). First, \u201conly the defendant\u2019s contacts with the forum are relevant, not the unilateral activity of another party or a third person.\u201d Moki Mac, 221 S.W.3d at 575 (citing Michiana, 168 S.W.3d at 785)). Second, \u201cthe contacts relied upon must be purposeful rather than random, fortuitous, or attenuated.\u201d Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 n.18 (1985). Third, \u201cthe defendant must seek some benefit, advantage, or profit by availing itself of the [forum\u2019s] jurisdiction.\u201d Id. (quoting Michiana, 168 S.W.3d at 785) (internal quotation marks omitted). Here, Broussard\u2019s contacts with Texas were neither unilateral activities by IPSCO nor random or fortuitous. Broussard accepted employment and executed a Confidentiality Agreement with IPSCO in Texas. That agreement included a choice- of-law provision, which designated Texas law as controlling. From 2012 to 2017, Broussard resided and worked in Texas as an employee of IPSCO. Further, Broussard continued working for IPSCO after he moved to Colorado in 2017. While residing in Colorado, Broussard (1) personally requested, and received, continuous and unfettered access to IPSCO\u2019s trade secrets databases that were retained on servers located in Texas; (2) between July 2018 and April 2019, traveled to Texas for business purposes on at least thirteen separate occasions; (3) telephonically attended and participated in IPSCO\u2019s weekly product development meetings and, on occasion, traveled to Texas to attend those meetings in person; and (4) traveled to Texas to visit rig locations and supervise IPSCO employees."], "id": "09697bca-d250-4b0b-8d96-6161b6cf0ba0", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*362Consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, may California exercise specific personal jurisdiction over a in a paternity action where the mother and young child live in California and conception occurred in another state? Mariana L. initiated a paternity and child support action in San Diego County against David L., a Connecticut resident.1 The trial court denied David's motion to quash service, and he seeks writ review."], "id": "2d224bc6-0639-47ad-a1fe-64ef9f54c25b", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Both parties are aliens based upon defendant\u2019s employment with I.B.M. Their visas expire in August, 1984, when defendant\u2019s current employment contract expires and they are to return to Italy. Defendant claims prejudice in his career assignments with I.B.M. by the nature of the unresolved status of his marriage and the fact that he has incurred over $3,000 in legal fees to date in the defense of this action which plaintiff now seeks to abort. However, \u201c[t]he fact that defendant has been subjected to the expense and trouble of defending the suit may entitle him to costs, but generally would not preclude plaintiff from discontinuing the [suit]\u201d. (Valladares v Valladares, 80 AD2d 244, 258, affd 55 NY2d 388.)"], "id": "865f033d-2849-48d4-8547-26866150785d", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The wife claims immunity from service because she was served while voluntarily appearing at hearings oh August 24 *857ami August 26 in a special proceeding initiated by the husband in the Supreme Court, New York County, by way of an order to show cause to obtain custody of or visitation rights to the children. It is freely conceded on both sides that the New York rule provides immunity from service to a who is voluntarily attending a court hearing* either as a witness, defendant, or plaintiff, and for reasonable traveling time going to court and returning home. (Thermoid Co. v. Fabel, 4 N Y 2d 494; Chase Nat. Bank of City of N. Y. v. Turner, 269 N. Y. 397, revg. 244 App. Div. 713; Petrova v. Roberts, 245 N. Y. 518.) The husband, however, asserts that there was a legally sufficient service effected because the wife was then attending court involuntarily (Woodward v. Continental Charters, 203 Misc. 581). The test in determining the true nature of the attendance is whether there may be imprisonment for contempt or fine for failure to appear. (New England Inds. v. Margiotti, 270 App. Div. 488, affd. 296 N. Y. 722.)"], "id": "08a6d6cb-c03b-422b-ac97-1b0dc851c269", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201c But this section does not apply in either of the following cases: \u201c 1. While a designation or appointment, voluntary or involuntary, made in pursuance of law, of a resident or person, corporation, or private or public officer on whom a summons may be served within the state for another resident or non-resident person or corporation with the same legal force and validity as if served personally on such person or corporation within the state, remains in force.\u201d By sections 253 and 254 of the Vehicle and Traffic Law service of process may be made on the Secretary of State in accident cases involving a nonresident operator or owner of a motor vehicle or one who is a resident but is absent from the State for more than 30 days."], "id": "1d955178-41c8-4759-92a1-596631a07f40", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["This is an appeal from an order vacating a levy-under an attachment against a defendant. The facts sufficiently appear in the opinion. An attachment has been granted against the defendant under the provisions of the Code of Civil Procedure, applicable to nonresidents, but, in order to effect a levy, certain devices were practiced by the plaintiff to bring the property of the defendant within the State of FTew York, which do not appear to have received the favorable consideration of the court at Special Term, nor are they likely to meet with the approval of this court upon appeal."], "id": "0a5eea97-aab6-466e-9d10-f2998a181e79", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff now moves by order to show cause for confirmation of so much of the Referee\u2019s report as finds her entitled to temporary alimony and for disaffirmance or modification of the remaining findings of the Referee relating to the means of the defendant and the standard of living of the parties, also the necessary legal services rendered in behalf of the plaintiff and disbursements necessarily incurred in the prosecution of this cause. Plaintiff also seeks to punish defendant for contempt for his failure to make payment of temporary alimony and for a direction that plaintiff be permitted to proceed by plenary action on the surety\u2019s arrest bond upon default of the defendant (now a of New York) in making substantial payment of the arrears of temporary alimony and counsel fees and in failing to submit his person to the jurisdiction of this court."], "id": "018b0425-dc9a-46bc-bc2e-6803c872fe99", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Defendants Ginzburg and Epstein also urge that plaintiff will be confronted with the decision of Mr. Justice Levy in Koslow v. Fine (21 Misc 2d 642) to the effect that a of New York County is not entitled to a general preference in a malpractice action and that therefore plaintiff will be in a worse position. This is a calculated risk assumed by plaintiff."], "id": "a4ac57ae-cbf6-4a91-be32-07250e84483a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Petitioners\u2019 request for a declaration that New York City Charter \u00a7 1127 is unlawful as applied to them is denied. New York City Charter \u00a7 1127 (a) (\"[condition precedent to employ*659ment\u201d) provides: \"Notwithstanding the provisions of any local law, rule or regulation to the contrary, every person seeking employment with the city of New York or any of its agencies regardless of civil service classification or status shall sign an agreement as a condition precedent to such employment to the effect that if such person is or becomes a individual as that term is defined in section 11-1706 of the administrative code of the city of New York or any similar provision of such code, during employment by the city, such person will pay to the city an amount by which a city personal income tax on residents computed and determined as if such person were a resident individual, as defined in such section, during such employment, exceeds the amount of any city earnings tax and city personal income tax imposed on such person for the same taxable period.\u201d"], "id": "5e08d79e-ca7a-4fb9-86c8-58a8856a2901", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201c In effect so far as applicable to the facts in this case, the statute provides that when the defendant is a of this state, the complainant need not be a resident of this state when the court has jurisdiction of both parties. * * * \u201c Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law. William v. *975North Carolina, 325 TI. S. 226 * * *. This is true because domicile in the state gives the court jurisdiction of the marital status or the res which the court must have before it in order to act. * * * Furthermore it is recognized that unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer jurisdiction on the courts of that state to grant a divorce. <<<# * * The principle dominating the subject is that the marriage relation is so interwoven with public policy that the consent of the parties is impotent to dissolve it contrary to the law of the domicile * * *. \u2019 Andrews v. Andrews [188 U. S. 14]. * * * \u201c An act to be valid must be within the legislative jurisdiction of the enacting state. * * * Here the statute seeks to act on a status which is beyond the boundaries of the state. That it cannot do.\u201d In a later case, Gee v. Gee (252 Ala. 103, 105), in commenting on the earlier case of Jennings v. Jennings {supra), the Supreme Court of Alabama said: \u2018 \u2018 In that case both parties were nonresident of Alabama. Therefore, we held that the proviso did not authorize the court in this State to grant a divorce. The parties cannot by consent confer such jurisdiction, nor can the legislature do so by an act, when the res is not within the power of State authorities.\u201d"], "id": "5e0f9f72-400a-41d3-94e2-4e4974fc151e", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["A husband residing within the city of New York may be made to answer for the support of his wife regardless of where the wife resides after jurisdiction of the persons has been acquired. It does not affect the rights of the petitioner if the abandonment or failure to support her was within the city of New York or elsewhere. That may be otherwise if a petitioning wife, a dependent wife, seeks support from her husband on the basis of likelihood to become a public charge when in fact she is not a charge upon the public within the city of New York. Referring back to subdivision (1) of section 92, it would appear that under circumstances permitting an order to be made the question of the petitioner becoming a public charge would not militate against her rights to support even though she were a . The petitioner is not a citizen of the United States nor was she a resident within the boundaries of the United States. In fact she was and still is a resident of the Republic of Mexico, as she was when the respondent abandoned her, and during the entire period that the respondent failed and neglected to provide for her support and maintenance. The respondent *401has been within the United States, although illegally, since 1936, and has failed to discharge his obligations and duties which the marital relationship imposed upon him to provide for her support."], "id": "4d2fe818-7907-4c7e-b225-d87497fc7b53", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The warrants were sought solely against Subin, a of this State. Two were issued, the first on August 11, 1958, to attach property of Subin to the extent of $300,000, and the second, on August 15, 1958, to attach further property of Subin to the extent of $741,500. Levies have been made pursuant to these warrants in excess of $1,041,500."], "id": "5d7c6504-96d3-4015-a926-b0601041bf7f", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["It seems clear that the only in rem relief sought in the complaint, as against the moving defendants, is an adjudication relating to the ownership of Class C stock and *275voting trust certificates of Pellon Corporation, a domestic corporation. In Holmes v. Camp (219 N. Y. 359), it was held that the stockholders\u2019 interest in the capital of a New York corporation is property situated within this State and that (p. 369) \u201c an action * * * affecting * * * title and true ownership of that interest is one in the nature of a proceeding in rem * * * in which * * * jurisdiction of a non-resident defendant may be obtained by service of a summons by publication. \u2019 \u2019"], "id": "dec09a8b-f088-410c-9f35-c5d69262606c", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*756The New York decisions prior to the CPLR are in conflict on the question whether security for costs are mandated when the plaintiff is a estate fiduciary. (See, e.g., Maresca v Prudential Ins. Co., 255 App Div 865 [2d Dept 1938] [nonresident fiduciary must post security]; Schmalz v Crow Constr. Co., 146 App Div 623 [1st Dept 1911] [where no property exists in State at time of motion, estate fiduciary must post costs but not clear if mandated or per discretion]; Clarendon v Milliken Bros., 116 App Div 930 [2d Dept 1907] [where suit in good faith, not required to post security]; Pursley v Rodgers, 44 App Div 139 [1st Dept 1899] [should require security as matter of discretion]; Duggan v Syracuse Univ., 20 Misc 2d 627 [Sup Ct, Onondaga County 1959] [Del Vecchio, J.] [must post security where no property in State]; Oliva v D\u2019Amato, 198 Misc 841 [Sup Ct, Queens County 1950] [discretionary]; Gilbert v 503-507 W. 177th St. Corp., 186 Misc 78 [Sup Ct, NY County 1945] [mandatory]; see, Annotation, Statute Requiring Security For Costs, 84 ALR 252, 259-260 [1933]; Milliman, Law of Costs \u00a7 259 [1904] [discretionary].) The conflicting rulings have been commented upon by learned treatises (8 Weinstein-Korn-Miller, NY Civ Prac ]f 8501.23, at 85-24 [\"the courts have had some difficulty with the issue\u201d]; 24 Carmody-Wait 2d, Costs fl 148:168, at 689-691) but the conclusion they reach is that since Manente v Sorecon Corp. (22 AD2d 954 [2d Dept 1964]) held CPLR 8501 (a) applicable to a nonresident administratrix, nonresident estate fiduciaries must post security for costs. 8 Weinstein-Korn-Miller (op. cit., K 8501.23), however, urges cautious counsel to make their request under both subdivisions of CPLR 8501."], "id": "2b5a4300-42c6-49d1-aca8-a2ad71ac92b5", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["With regard to the requirement that enforcement of a Supreme Court judgment must be had in that forum, section 1804 of the CCA, specifying that the provisions of the small claims article \u201ccontrol\u201d in the event of a conflict with the CPLR, leads the court to conclude that this claim being for money only and for not more than $1,500, may be determined by the Small Claims Part. To require the plaintiff to have instituted a special proceeding in the Supreme Court with the concomitant legal expense involved would, as a practical matter, probably deprive plaintiff of any relief. The fact that he had to institute the original action in the Supreme Court to obtain jurisdiction over a of the city should not deprive him of the inexpensive procedure authorized in article 18 of the CCA."], "id": "18ba0cd9-59a4-48ec-acf9-95cb6506bbe6", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Accordingly, it is concluded that the formula for computing the tax and the values urged by the respondent are correct. Nevertheless, the counter order fixing the tax submitted by the respondent may not be signed. In computing the New York gross estate, the respondent failed to subtract from the Federal gross estate the value of the car situated in Florida (Tax Law, \u00a7\u00a7 954, 956, 960). However, since the car is not included in the New York gross estate, its value may not be considered in computing the New York marital deduction, even though the car passes to the spouse (Tax Law, \u00a7 958, subd [e]). The net result of these two changes will be that the taxable estate remains the same (the gross estate and the deductions both being decreased in the same amount). However, the tax will be slightly different because the denominator of the fraction used to compute the percentage of the New York net resident estate tax to be paid by the must be reduced by the value of the car."], "id": "88f30036-4a04-484b-86c0-1ca7679aea7a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201cIf a is a shareholder in an S corporation . . . and the S corporation has distributed an installment obligation under section 453 (h) (1) (A) of the Internal Revenue Code, then any gain recognized on the receipt of payments from the installment obligation for federal income tax purposes will be treated as New York source income\u201d (L 2010, ch 57, \u00a7 1, part C, as amended by L 2010, ch 312, \u00a7 1, part B [the 2010 amendment]).1 This new provision of the Tax Law applied to taxable years beginning on or after January 1, 2007, a more than 3V2 year period of retroactivity.2"], "id": "8857e567-1bd6-4559-bd49-ca26f5b4a9fd", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Finally, this court is aware of the very recent decisions of the Supreme Court of the United States in Rush v Savchuk (444 US 320) and World-Wide Volkswagen Corp. v Woodson (444 US 286). Although these cases dealt with quasi in rem jurisdiction (Rush) and long-arm personal jurisdiction (World-Wide Volkswagen) the court commented on the jurisdiction of a State over defendants as follows:"], "id": "b37d85ee-e281-4b56-9b92-cbcb9f482fac", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Irrespective of the apparent scope of the above regulation, it has been definitely held that the culpability of an emancipated adult child may not be imputed to a parent-tenant (Matter of Edwards v Christian, supra, at 1046). The courts have reasoned that a condition imposing an absolute exclusion of the child from the entire project is unreasonable per se as it establishes an impossible burden on the parent (Matter of Rodriguez v Blackburne, supra, at 547). Therefore, to the extent that the stipulation in question imposed such a broad burden on petitioners, it is unenforceable and its breach may not form any part of the bases for respondent\u2019s decision to terminate petitioners\u2019 tenancy."], "id": "38bf5c80-1b00-44f3-8340-bce36f1c5f2f", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The defendants urge that section 1522 has been held to apply to a representative of an estate, who is a , suing as plaintiff in this State and cites a long line of cases including Gilbert v. 503-507 West 77th St. Corp. (58 N. Y. S. 2d 690); Maresca, v. Prudential Ins. Co. (255 App. Div. 865) ; Schmalz v. Crow Const. Co. (146 App. Div. 623); Allocio v. Colonial Life Ins. Co. (246 App. Div. 621). This line of cases was followed in Parker v. State of New York (100 N. Y. S. 2d 17). The reasoning therein seems to follow that of Judge Ingraham in the case of Pursley v. Rogers (44 App. Div. 139, 143). While this was a concurring opinion to that of the majority \u2014 the concurrence was in the result only \u2014 Judge Ingraham held that section 3268 of the Code of Civil Procedure (now Civ. Prac. Act, \u00a7 1522) applied and that the plaintiffs were nonresidents within the meaning of that section. He stated at page 144: 1 \u2018 But where the action is brought by one individual for the benefit of other individuals and both the one bringing the action and the ones for whose benefit it is brought are non-residents, no one interested in the recovery in any manner, being a resident, I cannot see upon what principle it can be said that the *570plaintiffs are not non-residents.\u201d The majority of the court, following the opinion of Judge Barrett, held that section 3268 of the code did not apply but rather that 3271 (now Civ. Prac. Act, \u00a7 1523) applied and after considering the merits of the application under the requirements of section 3271, the majority of the court held that it should exercise its discretion and require the plaintiff to give security. The opinion of Judge Barrett, in Pursley v. Rogers (supra), has been cited with approval in Baum v. Morse Dry Dock & Repair Co. (160 App. Div. 14, 19), in Clarendon v. Milliken Bros. (116 App. Div. 930), and in Oliva v. D\u2019Amato (198 Misc. 841)."], "id": "7dc169c1-9767-4db5-8a4a-21549b9d6a10", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The second branch of the motion seeks to require the Peoples First National Bank & Trust Company, as trustee, and Hennesey & Co. (plaintiffs in two of the three actions) to give security for costs upon the ground that each is a of this State. It appears without denial that the first-named plaintiff is a resident of Pennsylvania and the second of New Jersey. And, no doubt, an application such as this may be made at any stage of the proceedings (see cases cited in Tripp, Cuide to Motion Practice [rev. ed.], p. 118, \u00a7 42) \u2014 at least, prior to judgment. Nevertheless, the defendants\u2019 application to require these plaintiffs to furnish security for costs upon the ground of nonresidence is denied. For in this action as consolidated there are two or more plaintiffs, some of whom are concededly residents. The result is that the defendants cannot require security for costs to be given by the named plaintiffs as nonresidents, since the defendants are not, under the applicable statute, entitled to receive such security from all of the plaintiffs (Civ. Prac. Act, \u00a7 1522, subd. C)."], "id": "77ba4128-a550-4c46-974b-9faff6273f25", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The court\u2019s review of the cases, those cited by the parties and others, does not lead to the conclusion that the Standard Fruit case (supra) contained any limitations on the persons who could be subpoenaed by service on their employer which is a party to a New York action. The question the Court of Appeals decided was whether there was the power to issue the subpoena and compel the production of the employee as a witness. There is nothing in the Court\u2019s jurisdictional analysis which turns on the witness\u2019s degree of knowledge about the case. Despite GM\u2019s continual reference in its papers on this motion to a \"limited exception\u201d to the rules on the geographic scope of a trial subpoena, there is nothing in Standard Fruit to support that reading. The Court simply makes absolutely no statement that the ruling is a limiting exception to the power of the agency issuing the subpoena."], "id": "2868e52e-a013-42fd-93f9-f65b6fb510c3", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["It seems to this court that the judicial arguments which were applied to the granting of immunity to nonresidents in the cases above cited apply equally as well, if not more so, to arbitration proceedings which are contractually binding and have judicial sanction and may require judicial aid or confirmation.- In Matter of Ferrari (134 Misc. 728 [1929]) a was served with process in New York State while appearing as a witness before the Moreland Commission appointed by the *940Governor of this State pursuant to the provision of then section 8 of the Executive Law. It was held that the service of the process was void. The Moreland Commissioners were not-conducting a judicial investigation but the court said (p. 729): \u2018 \u2018 \"Whereas, in a strict and literal sense the Moreland Commission is not a judicial tribunal, it is a duly authorized official inquiry into matters deeply affecting the public interest, with powers to subpoena witnesses, etc., similar to those possessed by the usual court.\u201d"], "id": "76661931-5a0c-4553-b23f-bcff441d8fac", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["At issue is the jurisdictional question of whether the activities of the defendants constituted the transaction of any business in New York City (CCA, \u00a7 404, subd. [a], par. 1; CPLR 302, subd. [a] par. 1). It is well recognized that due process \u201crequires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 1 traditional notions of fair play and substantial justice. \u2019 \u201d (International Shoe Co. v. Washington, 326 U. S. 310, 316 [1945]). A key factor in determining whether there is a reasonable contact with the forum is the presence of some act by which the defendant voluntarily elects to invoke the protection of the laws of New York (see Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N Y 2d 443 [1965]). In a well-reasoned determination, the court below (Lane, J.) recognizing that jurisdiction cannot be premised merely on an order telephoned or mailed here from out of State, or merely on the rendition of services here, or merely on the shipment of goods here from out of State, declared that all three factors combined will support jurisdiction."], "id": "149ede94-38d0-4a7b-8a6f-f12178af2474", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["This does not mean that this court is without jurisdiction to intervene in this arbitration or that the respondent is without remedy to enforce the award. Indeed, the statute (CPLR 7502, subd [a]) permits a to commence a proceeding \"in a court in the county in which one of the *1033parties resides or is doing business\u201d to confirm the award pursuant to CPLR 7510 and to enter the same as a judgment pursuant to CPLR 7514. If such a proceeding is commenced, the court in such case, will have full jurisdiction to review the arbitration and the respective claims of the parties including the claim of the petitioner that the arbitration should be vacated. Personal service of the application to vacate would be unnecessary in such a case; after the institution of an application to confirm the award, \"[a]ll subsequent applications shall be made by motion in the * * * proceeding\u201d (CPLR 7502, subd [a]). In such case, service of a cross motion in the pending proceeding may be made by ordinary mail upon the adversary attorney. (County of Sullivan v Edward L. Nezelek, Inc., 54 AD2d 670, affd 42 NY2d 123.)"], "id": "b8c9ffb2-50c8-40a3-bee6-5a0cd6db593a", "sub_label": "US_Terminology"} {"obj_label": "Nonresident", "legal_topic": "Immigration", "masked_sentences": ["The first and third ground for dismissal are without merit. It may indeed come to pass that this court cannot obtain jurisdiction of some one or more of the necessary parties, but until an attempt is made to get jurisdiction of them, it cannot be said as matter of law that such jurisdiction will not be obtained. parties may voluntarily appear and thus jurisdiction in personam will be complete. As to the fourth ground of dismissal, we need now say only that an interpleader action having been commenced in the Supreme Court, that court has authority to stay this proceeding until final disposition of the interpleader action if it deems such action necessary and proper. (Civ. Prac. Act, \u00a7 285, subd. 4.) This court will not attempt to fetter the exercise of discretion by the Supreme Court by either staying or refusing to stay this proceeding. It will simply proceed in due course with the pending proceeding unless and until the Supreme Court stays this proceeding."], "id": "b4361bd9-8823-4e3f-a218-9f654a578180", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Since Day v. Sun Ins. Co. (supra) is often cited and is the source of much of the confusion on this question, it is well to examine it closely. It must be noted that in the Day case the court was able to determine that it lacked jurisdiction over the subject matter after trial. There the plaintiff was a and the suit was upon a foreign contract. These facts are the facts which deprived the court of jurisdiction and were established upon the trial. In addition the court in that case was one *927of general jurisdiction. These are distinguishing factors which make that case and later cases which follow it without noting these distinctions, inapplicable. (Hemsted v. White Sewing Mach. Co., 134 App. Div. 575.)"], "id": "01433453-2fdb-419a-a97d-7f54a949b98c", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\"The plaintiff is a . The solitary nexus for the *550New York courts is the fact that the defendants\u2019 insurance carrier is a foreign corporation authorized to do business in New York. Under no circumstances could these facts support an exercise of jurisdiction by the New York courts without adversely affecting the administration of justice in this State by an influx here of unwanted and unnecessary lawsuits\u201d."], "id": "f7222ed3-9a96-4b11-80da-043a172cb18b", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Defendant, though conceding that he maintains an office in New York City for the conduct of his business as a theatrical agent, asserts, through his counsel\u2019s affidavit, that he is a and a nondomiciliary of this State and that he has resided continuously in the State of California from 1960 to date. Plaintiff does not deny these assertions, nor does he make any showing which would tend to controvert them. Instead, he rests his entire argument upon the proposition that this court acquired personal jurisdiction over defendant, solely by virtue of the provisions of CP'LR 308 (subd. 3) (made applicable to this court via the operation of section 403 of the CCA), when (duly diligent attempts at personal delivery of the summons to defendant pursuant to subdivision 1 of that section having failed) the summons was affixed to the door of defendant\u2019s place of business within this city and mailed to his last-known residence in California."], "id": "97518f18-9ad8-4631-9e79-aaf8e3b84adc", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In Supreme Ct. of N. H. v Piper (470 US 274), it was determined in 1985 that it was unconstitutional to prohibit a from being admitted to practice in New Hampshire (after she passed the Bar examination), holding that a \"State may discriminate against nonresidents only where its reasons are 'substantial,\u2019 and the difference in treatment bears a close or substantial relation to those reasons\u201d, and that no such showing was made on the issue before the court (at 288). The majority did not discuss the local office requirement, but in his concurring opinion Justice White stated that he \"would postpone to another day such questions as whether the State may constitutionally condition membership in the New Hampshire Bar upon maintaining an office for the practice of law\u201d in the State (at 289). Thus, in that case the Court actually decided only the issue of the right to admission which, of course, is not an issue before me."], "id": "96642863-1534-43f5-a139-36fb100aca3c", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201cUDCA \u00a7 404 carries the contact requirement just a step further by stipulating, as a condition to the district court\u2019s exercise of jurisdiction, that the cause of action arise not merely within the state, but within the geographical confines of a district of *280the court. Thus, if the subject matter is within the court\u2019s jurisdiction, and the contacts enumerated in \u00a7 404(a) were within a district, the court may, by virtue of subdivision (b), send its summons as far as the supreme court summons might go if the action had been brought there.\u201d (Id.) CPLR 302 (a) (2) includes a provision, similar to UDCA 404 (a) (2), allowing for long-arm jurisdiction over a defendant \u201cwho in person or through an agent. . . commits a tortious act within the state.\u201d Under case law interpretations of CPLR 302 (a), courts have sometimes gone beyond common-law definitions of a principal-agent relationship. As recognized in the Practice Commentaries, whether someone qualifies as an \u201cagent\u201d for jurisdictional purposes does not \u201cturn on legalistic distinctions.\u201d (See Vincent C. Alexander, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C302:4 at 164.) To the contrary, the plaintiff \u201cneed not establish a formal agency relationship\u201d to sustain long-arm jurisdiction under CPLR 302 (a). (See Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988].) Rather, the plaintiff \u201cneed only convince the court\u201d that \u201cpurposeful activities\u201d were performed in New York, with \u201cthe knowledge and consent\u201d of the nonresident defendant, under circumstances where the nonresident defendant exercised \u201csome control\u201d over the matter. (See Kreutter v McFadden Oil Corp. at 467.)"], "id": "943a834c-197f-4664-a09a-af07d201b41b", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Here, there is an alternative process with procedural safeguards removed. The stipulation process, involving unrepresented indigent tenants, presents an increased risk of error because of their recognized difficulty in understanding their rights and the meaning of stipulations (see 144 Woodruff Co. v Lacrete, 154 Misc 2d 301 [Civ Ct, Kings County 1992], and studies cited therein). The stipulation process also permits the substantive basis for termination of tenancy provided in the Tyson-Randolph consent decrees and the Termination of Tenancy Procedures to be changed. Once a stipulation is signed, as in Ms. Robinson\u2019s case, without explicit admission of the original charges, a termination of tenancy hearing is held only for alleged violation of the stipulation (procedures 24), and need not at all involve \u201cnon-desirable\u201d drug related conduct by the tenant or other member of the household. In consequence, the Housing Authority was not required ever to meet its burden of establishing \u201cnondesirability\u201d as a basis for *73termination. A visit by her son, without documented connection to any drug related criminal offense, became a sufficient basis for termination of tenancy."], "id": "13f159b8-c62c-4311-a198-a041ec42b273", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*908The same principles which governed the prior decision of this court still apply and compel denial of the relief sought by petitioner. A village in the absence of a contract has the power in its absolute discretion to discontinue the service or supply of water to nonresidents upon the giving of reasonable notice (see Op. St. Comp., 59-442). The right of a village to supply water outside its corporate limits is governed by section 232 of the Village Law. The section expressly prohibits the sale or use of water to properties if thereby the supply for the village or its inhabitants will be insufficient (see, also, 10 Op. St. Comp., 1954, p. 414). \u201c This section is permissive in nature and places no obligation upon the [village] to sell even 1 surplus \u2019 water to an outside user even though the benefit to him to be great and the disadvantage to the village small.\u201d (Matter of Penn-Yorh Lanes v. Village of Waverly, 26 Misc 2d 150, 151.)"], "id": "3b1e1e17-433e-4c36-a075-fdd204881391", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Only after the grant of a commission authorization to a defendant may the court then authorize that same commission on behalf of the People to examine witnesses upon the same substantive and formalistic requirements as found in CPL 680.20 and 680.40. Nowhere is there mention in CPL article 680 of the issuance of interrogatories ex parte in criminal cases.4"], "id": "dbca9ccf-fc24-40a2-8211-6e6c926fe1df", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Under section 249-p the tax imposed on the estate of a is limited to that part of the estate consisting of real property situated in New York and tangible personal property located here. The formula there provided is this: \u20181 Ascertain the amount of tax which would be payable under this article if the decedent had died a resident of this state with all his property (except real property situated and tangible personal property having an actual situs outside this state) situated or located within this state, and multiply the net tax so ascertained by a fraction the denominator of which shall be the value of the *303gross estate as ascertained for the purpose of computing such tax and the numerator of which shall be the said gross estate value of the real property situated and the tangible personal property having an actual situs in this state. The product shall be the amount of tax payable to this state. No credit shall be allowed against the tax so determined.\u201d"], "id": "7edfe969-5a90-469f-9fa1-527b53a25e21", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff\u2019s attempt to uphold the attempted service on the ground that it is authorized by section 232 of the Civil Practice Act is held to be lacking in merit. There are important differences between the instant case and Sillman v. Twentieth Century-Fox (3 N Y 2d 395) principally relied upon by plaintiff: (1) in that ease, the plaintiffs therein were held by the court to be present assignees of certain percentages of the profits of motion pictures which were to be produced by defendant, Twentieth Century Fox; (2) there was an actual fund in this State, viz: the specified percentages of the profits which defendant, Twentieth Century Fox, sought to deposit with Chemical Bank, which refused to accept it; (3) plaintiffs were merely attempting to cut off the rights of their own assignors to that *845fund, an attempt which did not require an in personam judgment against the nonresident assignors. In the case at bar, however, there is no real proof of a fund in this State. Its existence is denied. At any rate, Voelker\u2019s claim against the alleged fund and against the indebtedness due and to become due from those defendants who have contracted with Voelker for the sale of the motion picture rights, in alleged breach of Voelker\u2019s alleged contract with plaintiff, may not be validly cut off without an in personam judgment against Voelker, adjudicating that there is a valid contract between plaintiff and Voelker (which is disputed by Voelker). Where a holding that there is valid in rem jurisdiction. depends upon a prior in personam adjudication, which cannot be made for lack of in personam jurisdiction, the attempt to assert in rem jurisdiction must fail (Jackson v. Jackson, 290 N. Y. 512; Morgenstern v. Freudenberg, 7 Misc 2d 273). As was pointed out in the Morgenstern case (supra), the holding in the Jackson case (supra), that there was in rem jurisdiction, was predicated on the fact that the separation agreement there involved was void on its face under the Domestic Relations Law and, therefore, no in personam decree holding it void was necessary."], "id": "b4d9261a-cf54-4f30-a110-9b6743d3f488", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The question that now remains for determination is whether, even though defendant did not do business, transact any business, mail policies into Louisiana or have any other connection with that State, it still had sufficient \u201c minimum contacts \u201d to satisfy the test set forth in International Shoe (326 U. S. 310, supra). In Pugh v. Oklahoma Farm Bur. Mut. Ins. Co. (159 F. Supp. 155), the court was presented with precisely the same question since the defendant insurer in that action did not do business or transact business in Louisiana and, as in the case at bar, was sued when its insured was involved in an accident in Louisiana. The court found that the minimum contact requirement was met where the insurer\u2019s only contact with the State was its \u201c presence on the risk \u201d at the time of the accident. The court stated (pp. 158-159): \u201c Since the accident *459within the state is sufficient contact to justify maintenance of the suit for damages against the motorist, it would seem that the same accident should justify maintenance of suit against his nonresident liability insurer who, after all, is the real party in interest.\u201d"], "id": "f75e59c3-a97b-4918-85ee-ea564d8be22f", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The objection to the plaintiff\u2019s legal capacity to sue is predicated upon the claimed invalidity of the two assignments upon which the plaintiff bases her cause of action. These assignments were executed in Yugoslavia, and it is charged that they are in violation of the laws and regulations of that country governing the assignment of foreign assets. The Yugoslavia Foreign Exchange Law makes invalid any legal transaction within its purview unless an authorization or a license be obtained. Bach side called as a witness an expert in the law of Yugoslavia. There is no doubt that it is illegal for a resident of Yugoslavia to transfer to a assets located outside Yugoslavia without a license from the Government of Yugoslavia. It seems clear from all of the testimony that an absolute assignment of all of the rights of the original plaintiffs would be invalid under the law of the place where the assignments were made unless a license were obtained from the Government of Yugoslavia. The two experts do not appear to be in disagreement on the fundamental rules that are applicable. The real difference between the two is in the view they take of the character of the assignments."], "id": "9a4acbab-0593-44f1-9886-0edc9aff4bb0", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["If we may use the word \u201c living \u201d to start out with, it may be said that there can be no question but that defendant and his family were living at Holland Patent during the period of the school year from September, 1909, and ending in June, 1910. The question is, do \u201cliving\u201d and \u201cresiding\u201d mean the same thing in law ? A decision of that question involves a consideration of the legal meaning of the word \u201c residence; \u201d and an examination of the authorities discloses that it has received different definitions in various eases, principally involving franchise, taxation and jurisdiction. Strictly speaking, the case at bar does not come under either head, but.we may look at the decisions in these cases for aid in settling *475the questions of what is, meant by a resident and what a . \u201c There is sometimes a distinction between actual and legal residence; the latter being generally equivalent to a domicile.\u201d \u201c To constitute a domicile two things must concur: first, residence; second, intention to remain there.\" Domicile, therefore, or legal residence, means more than residence. A man may be a resident of the particular locality without having his domicile there. He can have but one domicile at one and the same time, at least for the same purpose, although he may have several residences.\u201d In some cases it has been held that the word \u201c residence,\u201d as understood in the laws of Hew York, means domicile .In Cincinnati, H. & D. R. Co. v. Ives, 21 N. Y. St. Repr. 67, from which the above quotations are made, Justice O\u2019Brien considers the proper definition of the term in question, at length, and reaches the above conclusions. To constitute residence there must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other purposes. Frost v. Brisbin, 19 Wend. 11. In that case, it was held that a person had his domicile in this State while his residence was in Wisconsin. Similar holdings were made in cases of Hart v. Kip, 22 N. Y. Supp. 522, and Hanover National Bank v. Stebbins, 23 id. 529."], "id": "d276bc1b-df09-42a2-8e8d-c7abae6c5583", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Substantial justice and liberal construction require that the Small Claims Title of the Nassau County District Court Act and rule III of this court be construed to prevent owners of businesses established in Nassau County from avoiding the jurisdiction of our court, by refusing delivery or deliberately ignoring small claim notices properly directed to them at their regularly established places of business. Motion denied."], "id": "6c10dabf-bfbc-43a3-bcba-201b2bcce356", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["CPLR 302 (a) (1) was amended in 1979 (the language was subsequently incorporated into CCA 404) to permit the assertion of long-arm jurisdiction where the plaintiffs cause of action arises from a contract \u201cto supply goods or services in the state,\u201d without regard to where the contract was made. It is clear that the exercise of jurisdiction is not proper under every set of facts that seemingly fit a straightforward reading under the statute. The stated purpose of CPLR 302 and CCA 404 was to embrace nonresidents who have engaged in purposeful activities in connection with the matter in suit and to extend as far as due process will allow. (Gasarch v Ormand Indus., Inc., 346 F Supp 550 [SD NY 1972].) To determine this limit, New York courts have adopted requirements that mirror the International Shoe Co. test. The New York personal jurisdiction inquiry requires an affirmative answer to the following questions: (1) is the quality of the New York contact of such a nature that a defendant can be deemed to have purposefully invoked the benefits and protections of New York law, and (2) does the claim in question arise out of that purposeful New York activity. (Hutton v Piepgras, 451 F Supp 205 [SD NY 1978].) As David Siegel notes in CCA 404 Practice Commentaries (at 132) \u201cthe case law on [long-arm jurisdiction] is immense and almost every case is just a sui generis inquiry into whether or not the acts performed by the defendant constituted the [necessary] contacts.\u201d (Emphasis added.)"], "id": "b4b33e2a-4ac4-4377-b818-ea0f4453d0c1", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The New York Uniform Support of Dependents Law \"is *779substantially similar to the Uniform Reciprocal Enforcement of Support Act [URESA] and * * * permits reciprocity between the various jurisdictions\u201d. (McKinney\u2019s Cons Laws of NY, Book 14, Domestic Relations Law, art 3-A, p 155.) Courts in jurisdictions other than New York have analyzed the role of the initiating court in uniform support proceedings. In its most limited role, the initiating court should be satisfied that the petition which it certifies sets forth facts from which it may be determined that the respondent owes a duty of support. (Mahan v Read, 240 NC 641; O\u2019Hara v Floyd, 47 Ala App 619.) A more expansive role, finding that the obligor owes a duty of support before certifying and transmitting the petition, is favored by some other courts. (See, e.g., Matter of Duncan, 17 Ohio Opns 2d 21; Paul v Paul, 439 SW2d 746, 747 [Mo]; Cobbe v Cobbe, 163 A2d 333, 336.) One court, in considering the role of the initiating court, stated that the court should examine the petition to see if there is a \u201cprobable existence of a duty to support\u201d as to warrant transmittal of the petition. (Neff v Johnson, 391 SW2d 760, 764 [Tex].) In Prager v Smith (195 A2d 257, 258), the District of Columbia Court of Appeals reasoned that the initiating court \u201chad the primary duty under the statute to decide if * * * [petitioner] had made a prima facie showing of need for the support for the children and that they were entitled to support from the father\u201d. The reasoning in Prager best enunciates this court\u2019s understanding of the role of the initiating court."], "id": "7ff8873b-151b-466b-8082-e5760cdde1c5", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Nor is there any basis for the defendant\u2019s motion to vacate the attachment on the theory that no res or property existed in the State of New York. The court in Fishman v. Sanders (18 AD 2d 689) in passing upon an analogous situation sustained the right of a plaintiff to attach an insurance policy for the purpose of obtaining jurisdiction over a defendant."], "id": "c00a5525-d889-41cc-ba0a-ba07b09d40e3", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The will is dated February 7, 1957 and was prepared by an attorney in Truth or Consequences and was there executed by the decedent. In the probate proceeding in this court, it was specifically alleged that the decedent was a resident of Truth or Consequences. Since that proceeding was for the original probate of a will of a , a citation was issued to the State Tax Commission and its waiver was duly filed. It is the position of the State Tax Commission, however, that since the decedent in his will declared himself to be domiciled in \u201c New York City, New York where my property is principally situate \u201d his executor must defend that statement. The law is well established that intent alone is not sufficient for the acquisition of a domicile in this State. The intent must be accompanied by a residence within the State (Matter of Trowbridge, 266 N. Y. 283; Matter of Newcomb, 192 N. Y. 238). Not only did this decedent not have a residence here but it would appear that he was never in New York State. Not infrequently a person changes his residence from one State to another without executing a new will and consequently the statement in the instrument as to residence is no longer effective. Clearly under such circumstances there is no obligation on the executor to defend the statement in the will as to residence. On the facts in this case the court holds that the decedent was not a resident of the State of New York at the date of his death."], "id": "d8144745-b694-4904-b4aa-dbc156d5730a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["There is no doubt that the business of insurance is one that is affected with a public interest and that it is a subject for regulation and control by the State by virtue of the exercise of its inherent police power. (La Tourette v. McMaster, 104 S. C. 501, affd. 248 U. S. 465; Life & Cas. Co. v. McCray, 291 U. S. 566; People v. Formosa, 131 N. Y. 478.) Such power to regulate the business of insurance likewise includes the right of foreign insurance companies to transact an insurance business within the boundaries of a State,-provided, however, that the conditions *343of admission are not in conflict with either the Federal or State Constitutions. (Hoopeston Co. v. Cullen, 318 U. S. 313; Bothwell v. Buckbee, Mears Co., 275 U. S. 274; Matter of People [Norske Lloyd Ins. Co.], 242 N. Y. 148.) So too it has been held that the power of a State to regulate the insurance business conducted within such State likewise includes the right to regulate and control the agents and brokers through whom such business is carried on. (Daniel v. Family Ins. Co., 336 U. S. 220; Osborn v. Oslin, 29 F. Supp. 71, affd. 310 U. S. 53; Mendola v. Dineen, 185 Misc. 540.) The law pertaining to writing of insurance through the medium of foreign insurance is set forth in section 130 of the Insurance Law. That section has been construed in the case of Mendola v. Dineen (supra) as follows (p. 547): \u201cIf a foreign insurer could issue policies through a and unlicensed agent or broker, then, of course, all the regulations enacted by the State and applicable to anyone writing insurance within its borders, would be rendered meaningless.\u201d Defendant\u2019s contention is that the laws of Virginia prohibit the payment of commissions to nonresident insurance brokers who are not licensed in the State of Virginia on policies of insurance which are written on property located in Virginia. Section 38.1-282 of the Code of Virginia, 1950, as amended, provides as follows: \u201c\u00a7 38.1-282. Insurance transacted through resident agents or company representatives. \u2014 Except as otherwise provided in this title, no insurance company, other than a mutual company, shall transact insurance in this State except through regularly constituted resident agents licensed in this State; and no mutual insurance company shall transact insurance in this State except through regularly constituted resident agents licensed in this State, or through its officers or employees who are licensed as company representatives. (Code 1950 \u00a7 38-61; 1952, c. 317.) \u201d Defendant relies upon this section and various other sections of the Code of Virginia, namely 38.1-283, 38.1-287 and 38.1-289."], "id": "b296ffb5-8ae9-4bf5-925e-f718800989eb", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Daly, F. J. A judgment against a can be recovered by a publication of the summons only where he has property in the state, a restriction that indicates very plainly that the judgment recovered in this mode is limited in its effect to the property which the defendant has in this state. If it were not so, if the legislature intended to authorize the recovery of a judgment in this way against a non-resident, which should have all the effect of a judgment in personam, there would have been no occasion for this restriction. Three things are essential to give the court jurisdiction: first, that the defendant is a non-resident; second, that he has property here; and third, that he could not, after due diligence, be found within the state\u2014which, taken together, show that the design was to enable a person who has a cause of action against a nonresident, whom he cannot serve with process, to obtain the satisfaction of his claim out of the property of the non-resident situated here. For this purpose he is permitted to recover a judgment, by the service of the summons by publication, and by the deposit of a copy of it, directed to the defendant, if his residence is known, under which the plaintiff may reach -by execution any property of the defendant in this state. Provision is made for allowing the defendant to defend after judgment, and if the defence is successful, and the judgment, or any part of it, has been collected, empowering the court to compel restitution. These provisions denote the nature of the judgment, that it does not possess the exclusive character of judgments founded upon personal service of process. It does not, like the latter, import absolute verity, or that it is a conclusive adjudication of the rights of the parties, inasmuch as the law creating it contemplates that it may be questioned and a defence made to it under certain conditions for the space of seven years. A judgment founded upon personal service of process, on the contrary, becomes an absolute debt of record, and as such may be recovered upon in any state of the *296union by proving the judgment. If the defendant had notice, it is conclusive upon the merits, (Evan agt. Taten, 9 S. & R., 260;) but if he had not, it is of no validity whatever out of the state where it was rendered. (See cases collected in Oakley agt. Aspinwall, 4 Comst., 521.) It is even very doubtful whether the legislature could confer authority to enter a judgment which should have the effect, within the limits of the state, of a judgment in personam, in a case where the defendant is not brought into court by actual notice of .its process. (Mervin agt. Kumbell, 23 Wend., 293.) \u201cIt is against a first principle of justice,\u201d says Bronson, Justice, in the case last cited, \u201cto hold a man concluded by a judgment when he had no opportunity of answering in the original action.\u201d Under the old joint debtor act (1 R. Laws of 1813, 521, \u00a7 13,) if the process was served upon one, the judgment was entered as if all had been brought into court, but execution could not issue against the person or separate property of those not served. Under this act it was held that an action might be brought upon the judgment, and that it was prima facie evidence of the joint indebtedness, but that a defendant not originally brought into court might avail himself of any defence which it would have been competent for him to urge in the original action, and if he put the fact of his indebtedness in issue, it was incumbent upon the plaintiff to establish it, and not upon the defendant to disprove it. (Townsend agt. Carman, 6 Wend., 206; Id., 6 Cow., 693.) But that is a different case from this. Here the right to enter judgment against the defendant not personally served with process, is limited to Cases in which he has property in the state, and the law Conferring the right has provided the mode in which he is to be allowed to defend after judgment, that is, by applying to the court in which it was rendered. That court may allow him to defend at any time within one year after notice of the judgment, or after judgment, upon good cause shown, or within seven years after its rendition, Upon *297such terms as may be just. The existence of the provision satisfies me that it was not the intention that the defendant might be sued upon this judgment in another court, or that it was intended to have any other operation or effect than to reach the property of the non-resident situated in this state. The judgment should be affirmed."], "id": "1cb8ee4c-42ff-4adc-8a10-6d92a7552323", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In a number of cases it has been held that the courts will not countenance attachment or garnishment procured by any unlawful and fraudulent trick by which the property of, or indebtedness to, a was subject to the jurisdiction (Ann. 37 ALR 1255). In Saxony Mills v Wagner (94 Miss 233) it was held that one indebted to a nonresident cannot place money in a bank to his credit, in defiance of his wishes, for the purpose of conferring jurisdiction in garnishment proceedings upon a court where the bank is located. The third-party defendant\u2019s attempt to attach its own judgment obligation to Arias is very much the same artifice, except without the additional contrivance of opening up a bank account to Arias\u2019 credit."], "id": "e4d271a6-e6a2-4c57-9ba6-d6303b04d561", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In the circumstances, an argument may be presented that \u2014 in the face of the Bronx rule specifically requiring that the plaintiff be a resident of Bronx County \u2014 a preference may not be granted in The Bronx to an out-of-State resident. On the bare basis of the precise wording of the rule, the contention has merit. But I am not persuaded. Calender congestion in negligence cases does not plague any one county in New York City. In my view, the failure to amend the Bronx rule \u2014 in line with the rules in the other metropolitan counties \u2014 was merely an oversight. And once again, where the practice in our sister counties is sound and just, I shall speak for the elimination of contrariety of technical view in the county where I am privileged to preside (see Parker v. Burgoyne, 167 Misc. 542; Kenyon v. Lord & Taylor, 206 Misc. 611; Smith v. City of New York, 3 Misc 2d 602). I shall therefore not apply the rule strictly on the basis of its language \u2014 for as I see it, the purpose of the rule will not in any way be frustrated by holding that a preference is allowable (cf. Continental Grain Co. v. Christie, 259 App. Div. 126). There is no danger that a suing a New York resident in such a case will be able to scan the State for a favorable preference rule \u2014 since the proper venue is in the county *817where the defendant resides (Civ. Prac. Act, \u00a7 182) and since the court has \u2018 \u2018 inherent power and sound discretion * * * to. manage its own calendar problems \u201d (Cook v. Howard, 208 Misc. 358, 360; see Toomey v. Farley, 2 N Y 2d 71)."], "id": "6df819b8-ca32-4bc7-847c-f53098f1794a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["It is clear that in the ordinary case involving a plaintiff and a nonresident defendant where the act complained of as to that individual defendant took place outside the State of New York, in rem jurisdiction of such nonresident *1088defendant may not be usually obtained by attachment of an insurance policy issued by an insurer doing business in New York (Vaage v Lewis, 29 AD2d 315; cf. Seider v Roth, 17 NY2d 111, supra; Minichiello r Rosenberg, 410d 106). Thus, standing alone without considering any other circumstances, plaintiffs application for an order of attachment might be denied, since any act of alleged malpractice on the part of Hawkes occurred in New Jersey. However, it is the opinion of this court that the circumstances found herein compel a different conclusion."], "id": "62181057-307e-4baa-a1cb-64e9eb56b652", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201c[T]he general procedure to be employed when a nonparty witness is sought to be deposed on oral questions is to secure a stipulation or, in the alternative, to serve a subpoena on the nonparty witness, pursuant to CPLR 3106 (subd [b]), and to serve notice of the intended examination on each party to the action, pursuant to CPLR 3107.\u201d (Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984], citing McNulty v McNulty, 81 AD2d 581 *806[1981]; Spector v Antenna & Radome Research Assoc. Corp., 25 AD2d 569 [1966]; Bush Homes v Franklin Natl. Bank of Long Is. 61 Misc 2d 495 [1969].) However, in this case, the nonparty witness, Paul, is not only not a resident of the State of New York but she is a resident of a foreign country, to wit: Canada. There is no authority for the service of a subpoena on a nonparty witness who is a of New York State (see Wiseman v American Motors Sales Corp., supra, citing Judiciary Law \u00a7 2-b; Peterson v Spartan Indus., 40 AD2d 807 [1972]; Siemens & Halske, GmbH. v Gres, 37 AD2d 768 [1971]; Israel Discount Bank, v P.S. Prods. Corp., 65 Misc 2d 1002, 1004 [1971]; Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C2303:7). \u201cSince the service of a subpoena outside of this State will be ineffective to compel such a witness to appear at an examination, CPLR 3108 makes available, upon application to the court, the commission and the letter rogatory as devices to secure disclosure.\u201d (Wiseman v American Motors Sales Corp., supra at 235.)"], "id": "2919937a-d9bc-4c26-a30d-ad791ab155fa", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["On March 11, 2011, the Chief Counsel for the California State Controller issued subpoenas duces tecum on nonparties, the custodian of records of U.S. Philips Corporation (hereinafter U.S. Philips), Jack Haken, and Algy Tamoshunas. Hyatt, an inventor, entered into an exclusive licensing agreement with U.S. Philips, effective July 1991 (hereinafter 1991 agreement), which granted U.S. Philips a license under a group of Hyatt\u2019s patents for its own use, as well as the exclusive right to license additional patents to other companies. Haken and Algy Tamoshunas were in-house counsel for U.S. Philips and worked with Hyatt on the licensing of his patents by U.S. Philips to other companies. In support of the subpoena duces tecum, William Dunn, in-house counsel for the FTB, stated in his declaration that the primary legal issues in the administrative tax appeals were Hyatt\u2019s assertion that he became a of California in 1991, Hyatt\u2019s objection to the proposed imposition of a fraud penalty, and Hyatt\u2019s contention that he did not operate a business from California through December 31, 1992, which generated \u201cCalifornia source income.\u201d The subpoenas duces tecum sought, inter alia: all documents relating to or discussing the agreement between Hyatt and U.S. Philips; documents regarding any license or sublicense under any Hyatt patent; all documents reflecting money paid for a license or sublicense under any Hyatt patent; all documents discussing or reflecting any plan or agreement by Hyatt and U.S. Philips to seek revenues from the licensing or sublicensing of any Hyatt patent; all communications sent or received as to certain *505patents; billing of counsel for work performed, on behalf of, or relating to, Hyatt; all documents regarding negotiations; drafting and finalizing agreements between Hyatt and various corporations; and all communications between Hyatt and personnel for U.S. Philips."], "id": "0a9a67e0-815b-45de-9a78-0734aadd4916", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In the pending case, the verified complaint alleges that the last known residence of the defendant was in the city of New York and the sworn statement alleges that the defendant was not at that time in Puerto Rico, that he was in the United States and that his whereabouts or residence were not known. The Code of Civil Procedure of Puerto Rico does not require that the affidavit give the sources of knowledge of the fact of non-residence of the defendant. The statement that he was in the United States satisfied the court which made the order of publication. No one even suggests that in point of fact the objectant was then, or ever had been in Puerto Rico. The evidence would indicate that he was in fact in the United States when the publication of the summons was made. Such evidence as there is serves only to support the statement of the plaintiff that the defendant was a of Puerto Rico and was then in the United States. The court agrees with the learned Referee that the procedural requirements under the law of Puerto Rico for a valid judgment were fulfilled."], "id": "40037c3c-6492-4100-ad17-53a705fce516", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Before reaching the issue of the effect of the decision in Clark (supra), it is important to analyze the legislative history of subdivision (h). This statute was enacted in 1966 (L 1966, ch 952, eff Sept. 1, 1967), after the death of the decedent in Clark, as part of the sweeping revision of the law of estates spearheaded by the Bennett Commission. The commission\u2019s report to the Legislature on \u201cThe Decedent Estate Law As Affected By Conflict of Laws Considerations\u201d recommended perpetuation of the rule that a non-domiciliary \u201cmay by his will declare that his property situated in this State shall be regulated by our law. In such case the reference ought to be to the local law of this State.\u201d (Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, Fifth Report, NY Legis Doc [1966], No. 19, p 659 [hereinafter cited as Fifth Report].) The Legislature enacted EPTL 3-5.1 (subd [h]) exactly in the language recommended by the commission (Fifth Report, at p 241). In discussing what was meant by the word \u201ceffect\u201d used throughout the section, the Fifth Report says (at p 630) \u201c \u2018effect\u2019 involves the legal consequences that flow from an otherwise valid provision of a will, such as *** the * * * exclusion of a surviving spouse from testamentary benefits and the like.\u201d Most significantly, the report informed the Legislature that the prior statute, section 47 of the Decedent Estate Law, allowed a testator to escape onerous restrictions on the testamentary disposition of property imposed by the laws of his own domicile, citing a case involving forced *36heirship. (Fifth Report, at p 636.) This report was dated May 22, 1963. Thus, both the report and the enactment of the new statute preceded the 1968 decision in Clark (21 NY2d 478, supra), the decedent therein having died before the effective date of the current statute."], "id": "7674b8d5-a078-4c39-910c-6e9eba0aa219", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Id. As part of their agreement, the plaintiff \u201ccontracted to train [the defendant\u2019s] employees, aid in designing [the defendant\u2019s] manufacturing facilities, provide technical support and regulate quality control of [the defendant\u2019s] products.\u201d Id. The parties \u201cplanned to participate in each of these functions either wholly or in substantial part in Texas.\u201d Id. We ultimately concluded that the defendant had \u201cengaged in such \u2018continuing and wide-reaching contacts\u2019 with [the plaintiff] in Texas, and committed itself to such future contacts in the forum, that it should reasonably have anticipated being haled into court there.\u201d Id. Morgan Verkamp calls our attention to several cases in response. In Trois, we concluded that because the \u201ccontract was executed and performed solely in Ohio\u201d and the \u201conly alleged Texas contacts related to contract formation or breach are [the defendant\u2019s] conference calls negotiating the agreement while [the plaintiff] was in Texas,\u201d Texas courts did \u201cnot have personal jurisdiction over the defendants regarding the breach-of-contract claim.\u201d 882 F.3d at 489. Similarly, in Moncrief Oil, a dispute involving several contracts that \u201cwere executed in Russia, with a Russian corporation, concerning a Russian joint venture, to develop a Russian gas field,\u201d we rejected the argument that states have personal jurisdiction over \u201cbreach of contract case[s] where a enters into a contract with a known resident of the forum state, if it is reasonably foreseeable that the resident will perform a material part of its obligations in the forum state and thereby cause business activity in the forum state.\u201d 481 F.3d at 312. We explained that the plaintiff, a Texas resident, had simply \u201cagreed to perform analysis, without any discussion of where it would be done. The contract was silent as to location.\u201d Id. at 313. Moreover, \u201c[g]iven the nature of the work, there\u2019s no indication that the location of the performance mattered.\u201d Id. Moncrief Oil also distinguished Central Freight, explaining that the contract in that case had \u201ccontemplated that the plaintiff would make shipments from Texas on"], "id": "2e3840f1-9c05-40c4-92ae-38ee412820fb", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Center for Environmental Health (CEH) filed a complaint in Alameda County alleging that Dow Agrosciences LLC (Dow) and other unnamed defendants are violating the Act by failing to warn individuals who live or work in the Kern County town of Shafter that a soil fumigant manufactured by Dow contains a chemical known to cause cancer. Dow responded to the complaint by filing a motion to transfer this case to Kern County, where the cause of action arose, pursuant to section 393, subdivision (a) of the Code of Civil Procedure ( section 393(a).)1 The trial court denied *763the motion, finding *1072that venue is proper in any county under section 395, subdivision (a) (section 395(a)) because Dow is a defendant with no principal place of business in California."], "id": "d29b5cb1-e644-4fbf-9fbe-f7e8e141cbaa", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The brother Edward died July 27, 1893. He also, it is proved, never filed any deposition, but chapter 207 of the Laws of 1893 went into effect on March twenty-fourth of that year, or about four months prior to his death, and we, therefore, have to consider the effect of that statute-upon his case. Briefly, the purport of that statute was t\u00f3 do away with the requirement of the filing of the deposition which was required by the acts of 1874 .and 1875'. The case of McCormack v. Coddington, 184 N. Y. 467, decides that the -act of 1893 is not retroactive, and that it applies only to cases arising 'after, and' not before, the passage of that act. It holds 'that, upon the death of one who was either a citizen or a resident alien, one of whose heirs was a. male, who had failed to file the deposition required by the Laws of 1874, chapter 261, at the moment of his death he had no right to hold the title and had no right to pass it on to another, and that it reverted, at once on his death and without any proceedings, to the State (p. 475). Upon the authority of ibis case, I think I. must decide that the share of Edward escheated to the State."], "id": "0548fd5e-123b-4705-9dcf-223ee5f9faee", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["After the decedent\u2019s death certain policies of insurance on his life, issued by Hew York companies and payable to his estate, were found in a safe in this city. Where they were issued does not appear. They have been collected in Hew York and the amount represented by. them has been included in the property assessed to determine the tax. Such assessment is specified as a further ground for this appeal. In Matter of Abbett, 29 Misc. Rep. 567, Mr. Surrogate Varnum determined that policies of life insurance, issued by life insurance companies of this State on the lives of decedents, when such policies are not within the State, are not subject to the transfer tax. I was satisfied with his reasoning and with his decision, and will adopt his conclusion. A policy of life insurance is evidence of a right of action and is taxable as an asset of the estate of a deceased resident to whom it is payable. (Matter of Knoedler, 140 N. Y. 377), but it is not taxable if payable to a nonresident decedent, on the mere ground that the debtor is a Hew York corporation. It remains to be considered whether the rule will be otherwise where, as in this case, the policy is kept by the decedent in this \u2022State and is here at the time of his death. In Matter of Whiting, 150 N. Y. 27, the bonds issued by foreign, as well as by domestic corporations, kept by the decedent in this State and found here on his death, were determined to be properly included in the appraisement to fix the transfer tax. The theory upon which the court proceeded to judgment was that the written instruments were physically within the State, and constituted property here subject to taxation. They were regarded as tangible and apparently in nature of chattels. A bond, by the terms of which a .corporation obligates itself to pay, absolutely and at all events, a specified sum of money, differs substantially from a contract of life insurance. A policy of life insurance is not *320evidence of debt absolutely payable. By its own terms it is payable not absolutely, but conditionally. It admits no existing debt, but agrees that one may arise if certain specified conditions . are performed. It is none the less a conditional contract, although ultimately there may grow out of it an absolute liability."], "id": "7293f0ce-70bc-4e0a-a6d5-4f8f633d4a2b", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["' Buie 2A confers the same power of preference on a justice presiding at a Pre-Trial Term as at Trial Term, Part I. It requires that certain conditions be met: (1) that the plaintiff is a resident of the county, or'a of the State, and the venue is properly laid in the county; (2) that copies of the summons, verified complaint, verified bill of particulars and doctor\u2019s affidavit, stating the duration and description of the injuries, the plaintiff\u2019s disability, and the prognosis, be filed and examined by the court."], "id": "492dbfbd-f9ea-42e7-90e2-f00e22482bc1", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Such waiver has been excused because the facts of an accident are peculiarly in the knowledge of the party to be examined (Amkraut v. Roanoke Garment Co., 5 A D 2d 863); the defendant\u2019s lawyer left the country on a vacation (McGuire v. Pick, 8 A D 2d 800); certain , nonparty witnesses refused to appear at the trial as anticipated (Van Blarcom v. Rogers, 11 A D 2d 678); a pleading was amended substantially increasing the ad damnum clause (Falkenstein v. Heyman, 12 A D 2d 918); a pleading was amended five years after the action was commenced, at the eve of trial, without changing the basic issues and without prejudice to anyone (Symphonic Electronic Corp. v. Audio Devices, 24 A D 2d 746); a new complete defense was added to a pleading based upon a recent United States Supreme Court decision (Schneph v. New York Times Co., 22 A D 2d 641); in a wrongful death action, the facts of the accident were solely within defendant\u2019s knowledge (Farrell v. Reed, 16 A D 2d 709); substituted counsel acted promptly in representing an infant plaintiff who was seven years old at the time of the accident (D\u2019Angelo v. Goddard, 29 A D 2d 333)."], "id": "f64a0898-25ac-458f-ba70-d9c4d450fdac", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["It has been held that the mere solicitation of business in New York State by a nondomiciliary corporation is insufficient to subject it to our jurisdiction (Rose v. San Souci Hotel, 51 Misc 2d 1099). Nor is the mere execution of a contract here by a non-domiciliary conclusive as to jurisdiction, with no other contacts (Bundt v. Embro, 27 A D 2d 931; Standard Wine & Liq. Co. v. Bombay Spirits Co., 25 A D 2d 236); and finally, CPLR 302 (subd. [a], par. 1), authorizing a court to exercise personal jurisdiction over any nondomiciliary who transacts business within the State, does not automatically reach a who never comes into New York but who sells and sends goods into the State (Maggio v. Gym Master Co., 54 Misc 2d 845; Muraco v. Ferentino, 42 Misc 2d 104)."], "id": "a669ce7b-b426-4b43-9a0c-3b6cf844ba55", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Defendant contends that the \u201c affidavit of service fails to allege service in compliance with the statute.\u201d Under this type of statute, service, as such, actually occurs when the Registrar of Motor Vehicles is served with the process. The subsequent mailing of notice to the defendant is merely a notice *836requirement. Plaintiff\u2019s Exhibit 3 (e) is the affidavit of service by the Deputy Sheriff of Hampden County stating that he served the process with $2 fee on the Registrar. Plaintiff\u2019s Exhibit 3 (d) is the affidavit of compliance made by plaintiff\u2019s Massachusetts attorney stating, inter alia, that he \u201c caused the defendant, Hans J. Frilund, to be served by a deputy sheriff of Hampden County, in accordance with General Laws (Ter. Ed.) Chapter 90, Sections 3-A, B, C and D, as shown more clearly in the sheriff\u2019s return and that further, in accordance with the provisions of said Chapter 90, Section 3-C, [he] caused notice of such service and a copy of the process to be sent forthwith by Registered Mail to defendant, Hans J. Frilund. \u2019 \u2019"], "id": "866fece9-27df-4c04-9aec-0cfd089f4163", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In May, 1955 plaintiff brought suit in Monroe County Court upon said decree of divorce for the unpaid support payments required thereunder. At that time plaintiff was a . Defendant obtained a stay of that action until plaintiff should file security for costs. Plaintiff never filed such security; and on defendant\u2019s motion an order was made by the Monroe County Court on September 6, 1961 and duly entered, dismissing said action for failure to prosecute, under section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice. Thereafter, plaintiff instituted this action."], "id": "69d5f7d7-fde9-47e2-88d4-34f2dfe1b564", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*175It appeared that the plaintiff had been absent in Europe after the sale, at one time for eight months, and, at another, for two months, embracing, in all, an absence of ten months between the time of the sale and the commencement of the action, which absence, if deducted in the computation of time, would bring the commencement of the suit within six years. The statute declares, that if after the cause of action accrues against any person he shall depart from, and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of the action. Was the absence of the defendant in Europe, for the period stated, a residence out of the state within the meaning of the statute ? To arrive at what is meant by a residence out of the state, it is essential to consider the object which the framers of the statute had in view; to look at the reason - which existed for the enactment of such a provision, which was introduced as a special clause into the pre-existing statute of limitations, at the time of the revision of the laws, in 1830. The reason and object of the provision is very well stated by Justice Dube, in Ford v. Babcock, 2 Sand. S. C. R. 529. The only reason that can be assigned for permitting absence of \u25a0the defendant, when the cause of action accrued, to prevent the statute from beginning to run, is the inability of the plaintiff to prosecute his claim, during such absence, unless by resorting to a foreign tribunal. And the learned judge then proceeds to say, that if it is just that the absence of the defendant, at the time when the cause of action accrued, should prevent the statute from beginning to run, it is equally just that his absence, after the statute has commenced to run, should suspend its operation. The ground, then, of this exception to the prescribed period of limitation is the inability of the creditor to prosecute his claim in this state, by reason of the absence of the debtor. In other words, he is not to be deprived of the right of collecting his debt by operation of the statute, unless where, having the opportunity of prosecuting his creditor for six years, he suffers that length of time to pass by without commencing his action. *176Now lie cannot be said to have this opportunity, unless the creditor has been in the state for six years, so as to be at any time during that period within the reach of process. A party may be absent for a year, thus limiting his creditor\u2019s opportunity to five years, without losing his residence here. Journeying for pleasure, he might be absent for a much longer period, and yet be deemed a resident of the state for many purposes. It never could be intended that the time thus lost to the creditor should be included in the computation of the six years. He could not be charged with neglecting to act for that length of time, when, during a portion of it, it was out of his power to institute a suit. The statute distinguishes between simply departing from and residing out of the state; and I suppose the true construction of the latter provision of residing out of the state to be a material absence from it, as contradistinguished from a temporary departure, followed by an immediate return. I cannot think that the statute applies only to cases where a party has lost his legal residence here for all purposes, and taken up an absolute residence elsewhere. The statute which formerly. existed, authorizing an attachment of the property of debtors, contained a similar provision. It subjected to attachment the property of debtors residing out of the state. What constituted a residence out of the state, within the meaning of the statute, came up for consideration In the Matter of Thompson, 1 Wend. 43. In that case the debtor had been a resident of this state, and, at the time the attachment was issued, had been absent in Scotland for nearly two years. He was the principal member of a firm here, the business of which was continued in his name, in this city, when his property was attached. Hpon an application made to Judge Invino, of this court, he suspended the attachment, upon the ground that the domicil of the debtor was here; but the Supreme Court reversed his order. It was contended, upon the application for reversal, that absence without the state, whether the debtor have his domicil or amere residence here, was equally within the object of the act; and Chief *177Justice Savage said, in delivering the opinion of the court, that the object of the act was to authorize creditors to prosecute for their debts, when their debtors were abroad, whether their absence from this state was permanent or temporary / that it was intended to afford a remedy to creditors, when debtors could not be served with process. The debtor, he says, is out of the reach of the process of the law, and therefore the legislature have provided that his property shall be hable for the payment of his debts. This was, in effect, declaring that absence from the state, at the time the property was attached, was residing out of the state, within the meaning of these words; and I see no reason why the construction thus given to the words, when used in this particular act, may not be taken as equally explanatory of the sense in which they are employed in the statute under consideration. If I am right in the conclusion at which I have arrived, the statute ceased to run during the ten months that the defendant was in Europe. That there were two distinct periods of absence, makes no difference; for whether a party is absent upon one or upon several occasions, the whole time that he is absent is to be taken and computed together. (Ford v. Babcock, 2 Sand. S. C. R. 531; Dedier v. Davidson, 2 Barb. Ch. R. 477.) The judgment rendered at the special term should, therefore, be affirmed."], "id": "30eaae13-0bb2-43ca-98d5-7b9a7428c29a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["\u201c Whenever the property of a resident decedent or of a decedent within the State, transferred by will, is not specifically bequeathed or devised, such property shall, for the *444purpose of this, article, be deemed to be transferred proportionately to and divided pro rata among the general legatees and devisees named in said decedent\u2019s will, including all transfers under a residuary clause in such will.\u201d Tax Law, subd. 3:, art. 10, as incorporated in the Consolidated Laws. On May 30, 1908, or twelve days after this amendment went into effect, the decedent died a resident of the State of Connecticut. She left a will which contained the following provision :"], "id": "e1362d62-a7b7-4b9e-9ddf-b4a0fe5e1f51", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["So much for the facts relating to the merits. Defendants are corporations and the master policy (as well as another contract between the defendants) contains a choice-of-law provision. A previous motion was decided by this court on August 28, 1973. Since that time one party has been dismissed, another added, pleadings amended, and a stipulation of agreed facts executed. The broad legal areas that require consideration are: in personam jurisdiction, conflict of laws and the duty owed to an insured to advise him of conversion rights."], "id": "e42e5c72-c197-4d24-b1d3-e166694fb830", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In reply, plaintiffs suggest that even if defendants had a longstanding policy to assess a tax on shareholders in this type of transaction even prior to the 2010 amendment, defendants were not authorized to make such assessments under New York Tax Law (doc 28, plaintiffs\u2019 reply at 4). At oral argument on the instant motion, plaintiffs\u2019 counsel argued that defendants\u2019 claim that the Department had adopted this policy is tantamount to the Department \u201csaying . . . that they were using unlawful procedures to collect an unauthorized tax\u201d (doc 30, tr at 20)."], "id": "29a7fbbd-f2af-4410-9c2d-0d05b6be509a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": [". As a threshold issue, the People argue that the Leopold Foundation may have profited from the exhibition. If so, the Paintings would not be covered by the statute since its protection applies only if the ex*990hibitor receives no profit from the exhibition in New York. Based on information provided by the Museum, the court is satisfied that the Leopold Museum (which, for purposes here, is synonymous with the Leopold Foundation) is a not-for-profit entity under Austrian law and that the amount of money it received in connection with the exhibition at the Museum ($60,000 and a portion of the profits from catalogue sales) simply defrayed the costs incurred by the Leopold Museum in connection with the exhibition. Thus, the lender did not profit from the New York exhibition."], "id": "2f5267a7-7019-4195-a756-6c6ab6c7622c", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The parties agree Trine is not subject to the general jurisdiction of California because she does not have substantial, continuous and systematic contacts with the state. ( Perkins v. Benguet Consol. Mining Co. (1952) 342 U.S. 437, 445-446, 72 S.Ct. 413, 96 L.Ed. 485.) To determine whether specific jurisdiction exists, we are required to consider the \" 'relationship among the defendant, the forum, and the litigation' .... [Citation.]\" ( Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404.) California may exercise specific jurisdiction over a defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the forum's assertion of personal jurisdiction over the defendant \" 'would comport with \"fair play and substantial justice.\" ' [Citation.]\" ( Vons , supra , 14 Cal.4th at pp. 446-447, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)"], "id": "e74fa7d9-7ddb-446b-98c2-76f429cf5d6d", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Moreover, the sole remedy provided within section 1194 for an operator\u2019s refusal to submit to a chemical test is an administrative one. The commissioner only may revoke *67the person\u2019s license, permit or operating privilege if the hearing officer is satisfied at the completion of the hearing that the operator was given the proper and sufficient warning of the effect to such refusal and the person persisted in his or her refusal. Again, this remedy of revocation is distinguishable from those remedies available to a court under section 1800 of the Vehicle and Traffic Law following a person\u2019s conviction for a traffic offense."], "id": "fe165614-8a4e-405f-90de-a9a32ab35c4d", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Eael, 0. These are actions to recover money collected from the plaintiff, upon what is alleged to be a void assessment made in 1865 upon land of plaintiff, situated in the town of Hamburgh, Erie county. The principal allegation of error in the assessment is that the land was assessed in personam as the land of a resident of that town, and not as land. I believe the assessment was correctly made. The statute (1 R. S., 388, \u00a7 1, Edmonds\u2019 ed.) provides, that all lands within the State owned by individuals or by corporations shall be liable to taxation; and hence this land was liable to taxation somewhere. It is further provided (2 R. S., 389, \u00a7 1) that every person shall be assessed in the town or ward where he resides, when the assessment is made, for all lands then owned by him within such town or ward, and occupied by him or wholly unoccupied. Section 2 provides that land occupied by a person other than the owner may be assessed to the owner or occupant, or as non-resident land. This section undoubtedly means that when the owner and occupant both reside in the town where the land is situated, the land may be assessed to either. When the owner does not reside in the town and the occupant does, it must be assessed to the occupant; and when neither of them resides in the town it must be assessed as non-resident land. By no other construction can I see how occupied land can be assessed as non-resident land as the statute as to the taxation of non-resident land provides that land occupied by a resident of the town shall not be taxed as non-resident. (1 R. S., 392, \u00a7 13.) Section 3 provides that unoccupied land not owned by a resident of the town shall be assessed as non-resident land, and section 9 provides that the assessors shall prepare an assessment roll and insert therein the names of the \u201c taxable inhabitants \u201d of the town. Taking all these provisions of the statute together, it seems to me quite plain that there is no authority *102for placing upon the assessment roll for a tax in personam the name of any person not an inhabitant of the town."], "id": "b74e8a76-6f31-400d-8a41-a0b019bd5927", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff was the sole witness to testify in this case tried without a jury. She testified \u2014 and I find \u2014 that she lived on the top flooor of a five-story walk-up multiple dwelling. The *277area is a known high-crime area and the building itself was visited by police about a half-dozen times during the preceding two years, investigating assaults, burglaries, robbery and narcotics use. The corridors, stairs and roof of the building were regularly habituated by drug addicts who ministered to their cravings on these premises. From the roof, a fire escape led to the ground, the plaintiff\u2019s bedroom window being at the first platform below the roof."], "id": "c8b62c73-7ddb-4158-85d0-c569be701545", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["A suit to set aside a separation agreement is not within section 232 of the Civil Practice Act which provides for service by publication in certain actions. Nor does such an action fall under section 235 of the Civil Practice Act which provides for personal service without the State in those actions in which an order for service of the summons by publication may be made. This cause of action which seeks to set aside the separation agreement seeks an in personam judgment. Since the defendant is not a resident of this State and was served outside the jurisdiction of the State, and has not made a general appearance, no valid personal judgment can be rendered against him determining that the separation agreement was invalid. (Jackson v. Jackson, 290 N. Y. 512; Star v. Star, 127 N. Y. S. 2d 481.) Nor may this court award alimony or a money judgment against a defendant who is served outside the State and has not appeared generally, in the absence of prior sequestration or seizure of defendant\u2019s property in this State. (Geary v. Geary, 272 N. Y. 390; Matthews v. Matthews, 247 N. Y. 32; Odiens v. Odiens, 265 App. Div. 641; Patnode v. Patnode, 85 N. Y. S. 2d 788; D\u2019Ambrogio v. D\u2019Ambrogio, 193 N. Y. S. 2d 130.)"], "id": "11ab5220-3e8a-43ee-870b-2859b6897bc7", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": [". The State\u2019s argument that New York State resident commuters bear a heavier tax burden than commuters is seriously called into doubt by reply papers submitted by plaintiffs. The court notes that when a State attempts to rely on general forms of taxation, the courts \u201cordinarily cannot even begin to make the sorts of quantitative assessments that the compensatory tax doctrine requires.\u201d (Fulton Corp. v Faulkner, 516 US 325, 338 [1996].) Even accepting the State\u2019s calculations, however, the court rejects its argument for the reasons that follow."], "id": "bc789c6d-a742-4fab-9825-c2f93717c086", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["*624\u201c[t]he court may exercise personal jurisdiction over any non-resident of the city of New York . . . as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the city of New York if, in person or through an agent, he . . . \u201ctransacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New York.\u201d (Emphasis added.) CCA 404 (d) addresses service upon a corporation or association and provides that if service of the summons cannot be effectuated by personal delivery within New York City so as to acquire in personam jurisdiction, the corporation shall be deemed to be a of New York City. In such a situation, service of the summons, pursuant to subdivision (b), shall be made at such place as would confer jurisdiction on supreme court in a like case."], "id": "54cc6178-3098-40f8-afe9-9189722de423", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["In considering the reference mandated by section 601 (subd. b, par. [2]), New York need proceed only to the point that a foreign jurisdiction, under the same operative facts involving a New York resident, would bar recovery. Ontario has legisl\u00e1ted a guest exclusion policy designated to prevent guest perpetrated frauds on Ontario insurance carriers. The application of this policy would seem more vital to Ontario where the fraud may be perpetrated upon Ontario\u2019s Unsatisfied Judgment Fund itself. Ontario policy would hardly distinguish between resident guest frauds and guest frauds, on the Fund, by \u201c precluding \u201d the former and \u201c permitting \u201d the latter."], "id": "9a988722-386d-45c0-b15a-d39401f773a8", "sub_label": "US_Terminology"} {"obj_label": "Nonresident", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff\u2019s next objection to this highway tax, is, that there is no indication of the tract in which the lot is situated. By the public statutes organizing and bounding the counties and towns of the State, it appears that the town of Portville, in Cattaraugus county, is a part of the territory known as the Holland Land Company\u2019s lands, these lands being designated by name in the various boundaries. These statutes show the townships and ranges into which such lands are divided. To designate land in Portville as being in a township and range, is to designate and name a tract of land. of which the court and all persons take notice. These tracts, bounded by the exterior lines of intersecting .townships and ranges, are accurately ascertained, and are the only tracts subdivided into lots. The designation of the premises in question as lot fifty-four, town one, range three, on the assessment roll of the town of Portville, indicates the tract, and gives all necessary particu*501lars required by law.* This does not conflict with Hubbell v. Weldon.\u2020 In a case subsequent to that, the court say: \u2021 \u201c The number of the lot, if that can be ascertained, is the only designation which by law is made necessary, as to lands not occupied.\u201d Moreover, there is a page of the roll, headed, \u201c List of lands belonging to non-residents in township number one, range three, formerly known as the Holland Land Company\u2019s lands; \u201d and under such heading is a list of lands, with valuation, etc., including this lot fifty-four, town one, range three, assessed for the State and county tax. This list is continued on the next page, which is headed, \u201c List of lands situate in township number two, range three, of the before mentioned lands.\u201d On the sixth subsequent page follows, under a heading that reads, \u201c highway district number ten,\u201d a list of lands in towns one and two, range three \u2014 ten lots in all; and on the next page, headed, \u201cNon-resident highway district, number six,\u201d is a list of lots in town one, range three, including this lot fifty-four. No other assessment or list of land intervenes between the lands assessed as Holland Land Company\u2019s lands, so called, and the assessment for these highway taxes. The designation of Holland Land Company\u2019s land may well apply to the whole, especially as this lot fifty-four, town one, range three, is found in both places. A case referred to in Blackwell on Tax Titles\u2019\u00a7 is analogous: \u201c An assessment on balance of land on ranch A, 10,090 acres, at four dollars per acre, $40,360, was held valid, it appearing by the assessment roll that the rest of the ranch was assessed in lots as comprehended within the plat of a town, some of which lots were assessed to the same owner.\u201d In the present case no owner is assessed in either place, but the same lot is assessed as non-resident in two places, contiguous, as before mentioned, under one heading, naming the Holland Land Company\u2019s lands; and no other name or designation of a different tract comes between the two. The objection cannot prevail."], "id": "55019e86-b66d-41b5-83e1-9be7b364a048", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Moreover, the New York authorities are not so definitive as Sugar posits as to the burden of proof, except as to corporate defendants with only transitory assets in New York, as was the case in the most recent New York decisions cited in Sugar. (Hydromar Corp. of Del. v Construction Aggregates Corp., 32 AD2d 749; Fuller Co. v Vitro Corp. of Amen., 26 AD2d 916.)"], "id": "59ba037e-af5a-43a9-bd60-77eea5a88487", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Our state long-arm statute \"extends Texas courts' personal jurisdiction 'as far as the federal constitutional requirements of due process will permit.' \" M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co. , 512 S.W.3d 878, 885 (Tex. 2017) (quoting BMC Software , 83 S.W.3d at 795 ). Federal due-process requirements are satisfied if (a) the *901defendant has \"minimum contacts\" with the forum state, and (b) the court's exercise of jurisdiction \"does not offend 'traditional notions of fair play and substantial justice.' \" Id. (quoting Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 1121, 188 L.Ed. 2d 12 (2014) )."], "id": "8a24cb76-be7d-4c55-8098-cd0549e96c11", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["If the factor has property of the attachment debtor, such as a contract obligation, it is subject to attachment if jurisdiction is obtained over the factor by service in this State. (Morris Plan Ind. Bank v. Gunning, 295 N. Y. 324.) The attempt to distinguish that case because the garnishee was a railroad is unavailing. That distinction would be valid were we dealing *610with a branch bank and a routine banking relationship and not a factor. It is irrelevant that this factor is an agency of a bank which may also engage in routine banking business with the attachment debtor in another jurisdiction."], "id": "b9f9b45f-9cf3-4993-badb-38d745d93198", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Clinic is a \"common word of clear import\u201d (Matter of Sattler v City of New York Commn. on Human Rights, 180 AD2d 644, 646 [2d Dept 1992]). Its plain meaning, as reflected in several widely used dictionaries, is \"a facility * * * that is devoted to the diagnosis and care of outpatients\u201d (American Heritage Dictionary [3d ed 1992]); \"a facility * * * for diagnosis and treatment of outpatients\u201d (Webster\u2019s Ninth New Collegiate Dictionary [1986]); \"a place * * * for the treatment of patients\u201d (Random House College Dictionary [rev ed 1982]); \"a center for physical examination and treatment of ambulant patients who are not hospitalized\u201d (Taber\u2019s Cyclopedic Medical Dictionary [13th ed 1977]); or \"an institution connected with a hospital or medical school where diagnosis, and treatment are made available to outpatients\u201d (Webster\u2019s Third New International Dictionary 423 [1964])."], "id": "72897e79-f465-4505-ac1c-5a6c4c683bae", "sub_label": "US_Terminology"} {"obj_label": "Nonresident", "legal_topic": "Immigration", "masked_sentences": ["Counsel have submitted no memoranda and the court\u2019s independent research has disclosed no case in point. The Aggregate Trust Fund is one of the \u201c special funds \u201d created by the Workmen\u2019s Compensation Law to serve various purposes respectively set forth. The several funds are composed of moneys which employers or their carriers may be required to pay as awards or as contributions under stated conditions. The funds are kept and administered separate and apart from each other and from the General State Fund, and are not liable for any losses or the expenses of administration of each other. They are in the order in which they appear in the statute as follows: the Special Disability Fund (\u00a7 15, subd. 6), the Vocational Rehabilitation Fund (\u00a7 15, subd. 9), the Fund for Reopened Cases (\u00a7 25-a), the Compensation Fund (\u00a7 25-b), the Aggregate Trust Fund (\u00a7 27), the Stock Workmen\u2019s Compensation Security Fund (\u00a7 107) and the Mutual Workmen\u2019s Compensation Security Fund (\u00a7 109-d). No rights accrue to a depositor in any of the special funds except those given by the statute."], "id": "87716b94-bac2-4e86-b90e-adc18ee87f2c", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Bertram R Gelfand, S. This is a motion to fix the estate tax pursuant to section 960 of the Tax Law upon real property located at 901 Walton Avenue, Bronx, New York. Decedent died on October 11, 1973, a resident of the State of Florida. Petitioner and the State Tax Commission take opposing positions, both as to the proper method to compute the tax and the values to be used in the computation."], "id": "7fda392b-9fbc-4b6f-9b0e-9c2136ea1989", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["That opinion mentioned no prior decision. However, its clear effect is to scrap the above-quoted Wagner v. Wagner (supra) dictum and to approve the principle evolved in \u201c Almandares \u201d v. \u201c Almandares \u201d (186 Misc. 667) and followed by Westchester County Children\u2019s Court Judge Geokge W. Smyth in Matter of \u201c Morgan \u201d v. \u201c Morgan \u201d (187 Misc. 714), namely, that if a respondent resides or is domiciled in New York City the Family Court does have jurisdiction to make or continue a support order for a beneficiary, but that the exercise of such jurisdiction is discretionary according to the particular facts. Thus, although the order entered in Adams v. Adams (supra) was reversed, the proceeding was not dismissed but remitted for further evidence ns to whether *265the support moneys would be properly applied to the children\u2019s use (cf. \u201c Almandares \u201d v. \u201c Almandares \u201d, supra, beginning last paragraph on p. 674 and continuing to the end)."], "id": "3b29a30b-3f55-44a5-bebe-8b62dd99154a", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["The California Supreme Court held that BMS was subject to personal jurisdiction in California for the claims of the plaintiffs. Id. at 1778-79. Applying a \"sliding scale approach,\" it concluded that \"BMS's extensive contacts with California\" permitted the exercise of specific jurisdiction \"based on a less direct connection between BMS's forum activities and plaintiff's claims than might otherwise be required.\" Id. at 1779 (citing Bristol-Myers Squibb Co. v. Superior Court , 206 Cal.Rptr.3d 636, 377 P.3d 874, 889 (2016) )."], "id": "33f2c326-93cc-4003-90c0-19c11518cd29", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["True it is that the plaintiff and codefendant Talbot are nonresidents, and in rem jurisdiction of nonresidents in favor of a plaintiff ordinarily may not be obtained by attachment of an insurance policy issued by an insurer doing business in New York '(Vaage v. Lewis, 29 A D 2d 315, supra; Minichiello v. Rosenberg, 410 F. 2d 106; Varady v. Margolis, 303 F. Supp. 23). Nonetheless, Talbot is the employee and agent of Paley, the New York resident. Paley\u2019s liability was created by virtue of Talbot. To separate this case into two lawsuits would be absurd. To send it to the Bahamas would be impractical. Standing alone, under other circumstances, Talbot\u2019s motion might be granted on the authority of Seider v. Roth (supra). Notwithstanding this, the facts and circumstances here mandate a different result, based on a rationale of logic, reason, and the human equation."], "id": "74520715-8dde-4306-9458-90ecee7a96ff", "sub_label": "US_Terminology"} {"obj_label": "nonresident", "legal_topic": "Immigration", "masked_sentences": ["Respondent school district questions the bona fides of petitioner\u2019s residence and therefore the guardianship itself (Matter of Proios, 111 Misc 2d 252). It is provided by statute that every school district must furnish a free public school education to all residents of its district (NY Const, art XI, \u00a7 1; Education Law, \u00a7 3202). Upon the hearing, respondent school district has represented that it does not accept pupils on any basis including the payment of tuition."], "id": "a546cfbc-f7a4-4997-8c81-d23d90c23af1", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["I shall not controvert--th\u00e9. correctness the principle laid down by. Sir William Blackstone, in his Commentaries, cited- by., the appellants ; (1 Black. Com. 372.;) \u201c That alien' enemies have no rights, no- privileges, unless by the king\u2019s special favour, during the time of war.;\u2019.\u2019 -but, conformably to this, doctrine, I think it may well be urged, in this case, that the benefit of the Statute of distributions ought to be extended to the kindred of the deceased, notwithstanding- their ,, as .a- -consequence resulting out of privileges granted to the,intestate by our.-government before his death."], "id": "2904056a-1369-4b60-a696-631c143018aa", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The words \u201c disqualified from acting \u201d is susceptible of different interpretations, one that the person \u201c acting as such (administrator) \u201d is now incapable of acting, upon objection raised under subdivision 1 of section 99 of the Surrogate\u2019s Court Act, by reason of his nonresidence and ; two, that a person who would otherwise be \u201c entitled to such appointment \u201d were it not for his alienage and nonresidence, shall now be entitled to designate and have appointed on his application *747a trust company as administrator. The latter interpretation is the one sought by the petitioner. If the amendment had read \u201c irrespective of whether such person would himself be disqualified from acting or to act by reason of his being an alien non-resident of this state \u201d there would be no doubt two situations envisaged by the Legislature and the pattern of appointments radically changed solely to the benefit of trust companies. (Italics supplied.)"], "id": "5bd5f440-cc16-46a5-9f09-b74c2a04c73b", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": [". The term \"suspect\u201d was long ago used by the United States Supreme Court in Korematsu v United States (323 US 214, 216 [1944]) to describe a classification based on race, but has since been extended to include classifications based on national origin and . Classifying a group as \"suspect\u201d does not infer anything sinister about it. To the contrary, a group so classified is afforded special protection."], "id": "6ad2b358-8ce0-49a6-8da3-93a3bc6c3d38", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["To sustain the first of these contentions, a very elaborate and able argument was presented by the learned counsel for the appellants. JBut we do not think it necessary to pass upon that question because, in our view, a correct construction of the treaty is equivalent in its effect to a determination of that contention in favor of the appellants. The treaty, by virtue of the Constitution of the United States, is a part of the supreme law of the land, and pro hao vice, it supersedes all local statutes that contravene its provisions. We think the manifest intention of the treaty is to put the alien persons described therein, in respect to the rights it secures to them, precisely upon the same footing as citizens of the State or subjects of the kingdom in which the question arises. The case is one beyond all doubt within the provisions of the treaty and affected by it, and the appellants are within the description of the persons mentioned in the treaty to whom the land would descend, were they not disqualified by . An absolute power to sell property that would have descended to them, within the prescribed time, and to withdraw the proceeds thereof, is given by the treaty. This power is to sell the fee or whatever descendible interest or property there may be, and receive and enjoy as absolute owner the proceeds of the sale. The revisors of our statutes (3 ft. S. [2d eel.], 589) say: \u201c In reason and good sense there is no distinction between the absolute power of disposition and the absolute ownership, * * * it is an affront w common sense to say that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.\u201d And they framed a law which was enacted by the legislature, providing that when the grantee of a power is authorized by the power to dispose of the entire fee of the land for his own benefit, he is entitled to an absolute fee. (1 ft. S. [1st ed.], 732, \u00a7\u00a7 81, 82, 83, 84.) In principle it is difficult to see why any distinction should be made between the effect of such a power given by law or by will or deed. The \u201caffront to common sense \u201d is equally apparent in either case if the possessor of the power may sell when he chooses and dispose of the proceeds as he pleases."], "id": "047b3efe-9e54-47a8-9e48-55ceabe23354", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Upon the supposition, however, that the intestate was legitimate, the question arises whether the effect of the treaty referred to was to relieve his brothers and sister from the incapacity to take lands arising from their . The treaty is a part of the supreme *193law of the land. The first article abolishes every kind of droit daubaine between the two contracting parties, their States, citizens and subjects. The term droit d\u2019aubame includes escheats and the causes thereof. (Lawrence\u2019s Wheat. Int. Law, 166.) It is immaterial to inquire what else it includes, as the State has released any right of escheat which it had. The second article of the treaty provides that \u201cwhere, on the death of any person holding real property within the territories of one party, such real property would descend on a subject or citizen of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances.\u201d Article third relates to personal property. The fourth article provides that \u201cin case of the absence of the heirs, the same care shall be taken provisionally of such real and personal property as would be taken in a like case of property belonging to the natives of the country, until the lawful owner,, or the person who has a right to sell the same according to article second, may take measures to recover or dispose of the inheritance.\u201d We are clearly of opinion that these provisions removed from the brothers and sister of the intestate the disqualification of their alienage. A power thus conferred by Jaw upon aliens to sell lands, the only impediment to their complete ownership of which is their alienage, necessarily implies a power to convey the whole estate therein. For they could not exhaust the power except by selling all their estate in' the lands, nor unless they made such a conveyance as would transmute the title thereto. In short a sale is nothing more or less than a transfer of ownership. The fourth article of the treaty treats the right conferred by the second article as a receiving or disposing of the inheritance. No doubt the intent was to confer the power to take and hold lands. Any other construction would frustrate the treaty. An authority to sell lands and appropriate the proceeds of the sale is equivalent to a grant of the ownership thereof. (See 1 R. S., 732, \u00a7\u00a7 81-85.) Nor can a man sell lands which he was incapable of taking and holding. The limitation of two years in the second article has ceased to be of any importance, for the reason that before the expiration of that period the legislature of this State passed the act referred to, whereby the grantors *194under whom the defendant holds were expressly authorized to take, hold, sell and convey the lands in controversy. The intestate\u2019 died May 15, 1866, and the act was passed April 28, 1868. Surely no greater effect should be' given to the limitation of two years than would be given to a condition of the like import. In that view of the subject the disqualification of alienage was removed by the treaty-making power, upon condition that the property should be sold within two years from the death of the intestate. Before the expiration of that period, however, the State which imposed - the disqualification, in the exercise of a co-ordinate power over this subject, abolished that disqualification. The condition that the land should be sold within a limited period was thus changed into a power to take and hold' the land without any condition whatever. Upon the death of the intestate therefore, the' estate vested in his brothers and sister, subject, however, to the contingency of being divested by a non-performance of the condition. But the removal of their disqualification to take and hold lands before' the- time limited for the performance of the condition, dispensed with the performance thereof and at once vested the estate absolutely in them. (Hall v. Hall, Ct. of Appeals, MSS.)"], "id": "dd903d21-8e51-4cff-af3c-2d6791fe465a", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["That interpretation was further solidified in Truax v. Raich (239 U. S. 63, 35) .where the court struck down a statute of the State of Arizona which required that employers of more than five workers employ not less than 80% \u20181 qualified electors or native-born citizens of the United States or some sub-division thereof.\u201d The court there observed i(pp. 41-42): \u201c It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the .State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. Butcher\u2019s Union Co. v. Crescent City Co., 111 U. S. 746, 762; Barbier v. *1004Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiama, 165 U. S. 578, 589, 590; Coppage v. Kansas, 236 U. S. 1, 14. If this could he refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that \u2018 the employment of aliens unless restrained was a peril to the public welfare. \u2019 The discrimination against aliens in the wide range of employments to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their , the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not ,be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration \u2014to admit or exclude aliens \u2014 is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, .instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.\u201d"], "id": "eb81b7b5-90a8-4c95-a9ab-08e3d2798f75", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["5. That the next of kin, in case of Ferri\u00e9\u2019s illegitimacy, are entitled, is therefore clear, and although from being nonresident aliens, they are disqualified from administering, that disqualification may be removed by a change of residence to New York, and in default of their administering, the Public Administrator in this county is entitled to letters before creditors and strangers. Their , however it affects the mere question of administration, affords no reason for disregarding their claims as to the property. In that respect their standing here is not a matter of comity, but of strict right, and there is no tribunal in any civilized country, I hope, where their rights would not be respected. I must therefore remain of the same opinion, as expressed on the former hearing of this case, and direct a commission to be issued as already determined. That commission must issue, however, in the ordinary form, and should be under the supervision of a person appointed by this Court. The commission rogatovre, invoking the aid of foreign tribunals, in the form suggested by the counsel for the French claimants, presents no advantages, and is exposed to the objection that it removes the investigation from the control of this Court, and from the operation of *265those rules of evidence which prevail in American tribunals."], "id": "25169d91-9845-4c9d-90f7-5b8867a2014a", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*340In Graham v Richardson (403 US 365 [1971]), the Supreme Court held that State welfare laws which conditioned benefits on citizenship and duration of residency violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Court noted that it has long been settled that the Equal Protection Clause entitles both citizens and aliens to the equal protection of the laws of the State in which they reside, and that \u201cthe Court\u2019s decisions have established that classifications.based on , like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny\u201d (403 US 365, 371-372). Thus, wrote Justice Blackmun, \u201c[a]liens as a class are a prime example of a \u2018discrete and insular\u2019 minority (see United States v. Carotene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate.\u201d (403 US 365, 372.)"], "id": "0f2a13fa-253e-42b0-921a-c3f18b0e403e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201c[Governmental action which classifies persons by race is subject \u2018to strict scrutiny and will be sustained only if [it is] suitably tailored to serve a compelling state interest\u2019 ([City of Cleburne, Tex. v Cleburne Living Ctr., 473 US 432,] 440). \u2018[T]he Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments\u2019 (Adarand Constructors v Pena, 515 US 200, 222). \u2018The strictest standard of review, requiring the State to show that the classification is necessary to promote a compelling governmental interest, traditionally applies where the classification is deemed suspect, i.e., based on race, or nationality . . .\u2019 (Matter of Joseph LL., 97 AD2d 263, 264-265, affd 63 NY2d 1014).\u201d (Brown v State, supra at 321.) It must also be noted, however, that \u201cwhen a prison regulation impinges on inmates\u2019 constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.\u201d (Turner v Safley, 482 US 78, 89 [1987].) \u201c[S]uch a standard is necessary if \u2018prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.\u2019 \u201d (Id., quoting Jones v North Carolina Prisoners\u2019 Labor Union, Inc., 433 US 119, 128 [1977].) \u201cThe burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.\u201d (Overton v Bazzetta, 539 US 126, 132 [2003].) The foregoing is applicable to petitioner\u2019s constitutional right to freedom of speech."], "id": "ab470dfd-1974-48bc-8f1c-9b2e6bdb3663", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["1. To follow defendant\u2019s equal protection argument, this court will accept, for the sake of this discussion, defendant\u2019s contention, that is: there are two classes. If that were so, the defendant does not raise the issue of \u201csuspect classification\u201d or \u201cfundamental interest\u201d. Suspect classifications are based upon , national origin and race. Fundamental interests include voting, travel, procreation, the right of free speech, the right of a criminal defendant to appeal, and, perhaps, the right of privacy. Therefore, defendant has not made a case for a \u201cstrict scrutiny\u201d test (Alevy v Downstate Med. Ctr., 39 NY2d 326 [1976]). Thus, defendant\u2019s equal protection argument is subject to the less strict and more lax standard of rationality which tests whether the challenged classification bears a reasonable relationship to some legitimate legislative objective (Matter of Allen v Howe, 84 NY2d 665 [1994]; Alevy v Downstate Med. Ctr., supra). This test has been applied with great indulgence especially in the area of economics and social welfare (Alevy v Downstate Med. Ctr., supra)."], "id": "3b2560b5-41f8-4f4e-97a8-87884e1cae29", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The Supreme Court has declared that certain categories of classifications such as race, national origin and to be presumptively \u201csuspect\u201d or \u201cinvidious\u201d under the Fourteenth Amendment. (See Loving v Virginia, 388 US 1; Korematsu v United States, 323 US 214; Graham v Richardson, 403 US 365.) But, the reach of the Fourteenth Amendment goes much further than simply to the \u201csuspect\u201d classifications \u2014 it is intended to abolish \u201call caste-based and invidious class-based\u201d discrimination. (Plyler v Doe, 457 US 202, 213.)"], "id": "f8150eb6-3ffe-4364-8cd7-e8f1847e2913", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["As the case under consideration is not provided for by the statute, we must look to the common law for our guidance. Aliens are incapable of taking by descent, or inheriting, for they are not allowed to have any heritable blood in them ; wherefore, if a man leaves no other relations but aliens, his lands will escheat. 2 Black. Comm. 249. An alien may take by purchase, and may maintain an action for the land, which cannot be defeated by the defendant, on the ground of *16the plaintiff\u2019s ; but the people may interfere, and diveg(. tpe apen 0f pis title, by office; and no title vests in the people until Office is found. An alien, however, cannot take by descent, curtesy, or dower, or by any other title created by n ,, act of law. Gansevoortv. Lunn, 3 Johns. Cas. 109. It would seem, therefore, by the above authorities, that the ancestor of the plaintiff being an alien, could not inherit the estate left by his brother Felix, because he had not in him any inheritable blood. In Levy v. McCarty, 6 Peters, 102, Judge Story held, that an alien has no inheritable blood, and can neither take land himself by descent, nor transmit land from himself to others by descent; which the judge considers common learning, and requires no reasoning to support it. If any mediate ancestor through whom the party makes his pedigree, is an alien, that is a bar to his title as heir. It cannot, it appears to me, be necessary to pursue the subject further, as the result plainly is, that Thomas Fitz Simmons being a naturalized citizen previous to the death of his brother Felix, was his rightful heir, to the exclusion of Patrick, who could only claim inheritance through his father, an alien, and who by law being incapacitated to inherit himself, could not transmit an inheritance to his heirs. Where there is a failure of inheritable blood, by reason of alienism, the lands do not escheat but go to the next heir. 7 Johns. R. 214. The judgment of the supreme court ought to be affirmed."], "id": "cda9d1db-7a02-4eb9-8bcf-fba1c089de9f", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Our equal protection guarantees, both under the federal and state constitutions, seek to \u201ckeep[] governmental decision makers from treating differently persons who are in all relevant respects alike.\u201d Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465 (Ky. 2011) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)) (internal quotation marks omitted). Classifications are not per se unconstitutional, however. Vision Mining, 364 S.W.3d at 465. Rather, classifications are subject to different levels of judicial review based on their content. Id. The highest level of review, \u201cstrict scrutiny,\u201d applies when a classification affects a fundamental right or suspect classification, such as race, or ancestry. Steven Lee Enters. v. Varney, 36 S.W.3d 391, 394 (Ky. 2000). An intermediate level of review, \u201cheightened scrutiny,\u201d applies to classifications such as gender or illegitimacy. Id. The lowest level of review, \u201crational basis,\u201d applies to statutes that merely affect only social or economic policy. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 46 (Ky. 2019); Zuckerman v. Bevin, 565 S.W.3d 580, 595 (Ky. 2018); Varney, 36 S.W.3d at 394-95."], "id": "86c91040-0750-40a6-9f73-0a9ec921bb82", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The plaintiff took possession of the property, has spent some money in making repairs and alterations, and,_ although it does not appear that his title has been- assailed or even questioned by any one, he has brought this action apparently to settle the title and obtain an adjudication as to his rights in and to the premises in question. He has made as defendants the brothers, Abner, Charles, Edward, Timion and George Burridge, and the sister, Fanny Mather, in every case, adding in his summons after their names, the words, \u201c if living, and if dead, his heirs-at-law.\u201d Also he has made the People of the State of Hew York a party defendant. Subsequently, by order, the defendant George Harris, as executor of the will of Caroline Burridge, deceased, was brought in as a,party. He has answered, as have also the People of the State of Hew York; lout none of the other defendants have appeared or -answered in the action. Very little is actxrally controverted by either answer, except that, in a number of instances, there are formal denials of knowledge or information sufficient to form a belief as to some of the plaintiff\u2019s allegations which, in brief, set forth the -facts about as summarized above. Defendant Harris controverts the value of the premises as- stated in the complaint, and alleges that the complaint contains certain propositions of law which he leaves to the decision of the court, and alleges that this court has no jurisdiction to grant the equitable relief asked for by the plaintiff as against the estate in his charge. It should be mentioned in this connection that there was made by the citizen brothers, Robert and William Burridge, -an affidavit, dated Hovember 30, 1874, the purport of which was, that they were the sole heirs at law of Alexander Burridge, deceased. The affidavit states, however, that said Alexander Burridge left him surviving five other brothers and one sister, correctly stating their names, but says that all of them are aliens, and reside in England, and never became citizens of the TJnited States, and \u201c that they are not legally entitled to any portion of the real estate of said Alexander Burridge, deceased, as deponent is informed the *438law is.\u201d The then surrogate of Oneida county indorsed this affidavit \u201c Approved \u201d and signed \u00a1his name; and this instrument was recorded in the Oneida county clerk\u2019s office, on December 2, 1874, just after the giving of the deed above mentioned by the two resident brothers to the widow. This instrument is set up in the amended complaint, where it is characterized as a decree of the Oneida county Surrogate\u2019s Court; and the facts with reference to that are denied upon information and belief by the defendant People of the State of \u00a1New York, who also alleges that the decree was made without defendants being parties thereto, and denies the jurisdiction to make any decree which would be binding upon the defendants. The defendant People of the State denies knowledge or information sufficient to form a belief with reference to the facts alleged regarding the sale, and puts in issue the descending of the property to the brothers and sister; in fact, \u2022 the answer of the People denies knowledge or information sufficient to form a belief as to most of the allegations in the complaint, but admits that the plaintiff has an estate in fee of one undivided one-fourth, which was the aggregate of the interest received by the plaintiff which originally vested in the brothers \u00a1Robert and William, and alleges that the remaining three-fourths have escheated to the State. It seems to be agreed by all that the property 'is so circumstanced that actual partition thereof cannot be made without prejudice to the rights of the parties, and I so decide. We thus have a plaintiff who makes several claims, the first being that he is unable to. state what his rights in the premises are, and asks that they be adjudicated, but who subsequently asks that, in case it is determined that his grantor was not the sole owner of the premises, the moneys paid by him to the defendant Harris, as executor, therefor be adjudged to be real estate and substituted \"in place of the premises above described, and asks that defendant Harris, as executor, be adjudged to hold said money in trust for the rightful owners thereof, one of which he claims to be, in certain contingencies. We have the defendant Harris claiming that plaintiff has no title whatever in or to the funds in his bands, and the defendant the People of the *439State of New York claiming three-fourths of the property and an accounting with the plaintiff for rents, etc., which he has received. To unravel all of this, it becomes necessary, firstly, to consider the effect of existing statutes in connection with the of the six heirs and the rights of all of the parties, commencing at the date of the death of Alexander Burridge, in November, 1874. -At that time the brothers Robert and William were citizens of the United States*; and their right to- take at least one-eighth each is hot questioned and cannot be. ' The point is, however, raised that, inasmuch as the other six heirs were aliens, these two brothers, being the only heirs, would take the entire estate. This is not so. Callahan v. O\u2019Brien, 72 Hun, 216."], "id": "ffac0cc1-84c0-46a6-a6e7-f30772979c1f", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["With the exception of the respondent\u2019s mother, Mrs. Ann Perrott, he himself is the nearest relative of the decedent who is not disqualified by from administering on this estate. Mrs. Perrott has filed a renunciation of her claim, so that her son\u2019s title to the letters is undisputed, so far as relates to prior rights of any relatives of the decedent nearer of kin than himself. It is insisted, however, that, as such nearer kindred are in existence, and, although aliens, are entitled to this estate to the exclusion of the respondent, he has no lawful right to the letters which have been granted, and should be required to surrender them to\"the Public Administrator. The claim rests- upon a disputed construction of the statutory provision relating to the administration of estates (Rev. Stat., part 2, chap. 6, title 2, sec. 27). That provision is as follows: u Administration in case, of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to his widow; second, to his children; third, to the father; fourth, to the mother; fifth, to the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth to any other next of kin who would be entitled to share in *11the distribution of the estate. ..... If none of the said relatives . . . will accept the same, then to the creditors of the deceased .... In the city of New York, the Public Administrator shall have preference after the next of kin, over creditors and all other persons.\u201d"], "id": "296a8a3d-6e74-4c2a-abce-48f434377d78", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["In May, 1973, the Supreme Court decided the case of Frontiero v Richardson (411 US 677) by a vote of eight to one. There the court felt compelled to strike down a Federal law which provided that wives of male members of the armed forces were entitled to housing and medical benefits without regard to the facts of the wives\u2019 dependency. Similar benefits however were denied to the husbands of female members of the armed services unless the husbands\u2019 dependency could be demonstrated. Suit was initiated by a male dependent and his female officer-wife contending, as in the case at bar, that the existence of unreasonable discrimination based upon sex was violative of the Due Process Clause of the Constitution. Drawing upon its earlier decision in Reed v Reed, supra, the court declared (p 682): \"At the outset, appellants contend that classifications based upon sex, like classifications based upon race, , and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v Reed\u201d"], "id": "5e80e130-5b78-4443-b045-5f4364587cd3", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Turning to petitioner\u2019s cross appeal, we find unavailing its contention that appellant\u2019s apparent status as an undocumented alien* automatically precludes her from succeeding to her late husband\u2019s tenancy. Considerations of citizenship and immigration status are not among the criteria for family member succession enumerated in the governing rent-control regulations (see NY City Rent and Eviction Regulations [9 NYCRR] \u00a7 2204.6 [d] [1], [3]), and such broad considerations should not be lightly imported by implication into the regulatory scheme, particularly given its remedial purpose \u201cto prevent the grievous harm that would ensue from the wholesale eviction of family members\u201d from their home-apartment following the record tenant\u2019s death or departure (Festa v Leshen, 145 AD2d 49, 57 [1989], quoting Lesser v Park 65 Realty Corp., 140 AD2d 169, 173 [1988] [involving counterpart rent stabilization family member succession provisions]). While appellant\u2019s presence in this country may well be impermissible under federal immigration law, any such transgression, standing alone, would be insufficient to justify denying her tenancy succession rights to which she otherwise may be entitled, at least where, as here, no claim is advanced or showing made that appellant took occupancy of the subject apartment through the use of false pedigree or other documentation (see generally Balbuena v IDR Realty LLC, 6 NY3d 338, 361 [2006]) or that her continued occupancy in the apartment would subject petitioner to civil or criminal penalties *10(see Recalde v Bae Cleaners, Inc., 20 Misc 3d 827 [2008]). Indeed, in the circumstances here present, adoption of the per se preclusion rule advocated by petitioner would run afoul of the spirit, if not the letter, of the New York City Human Rights Law, which makes it an unlawful discriminatory practice to refuse housing accommodations to any person based on that person\u2019s \u201cactual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status ... or or citizenship status\u201d (Administrative Code of City of NY \u00a7 8-107 [5] [a] [1] [emphasis supplied]). Any potential adverse consequences that may follow from a violation of the immigration laws is a matter for immigration authorities, not this court (see generally Village Dev. Assoc. v Walker, 282 AD2d 369 [2001])."], "id": "5ea16678-57b5-411c-ba70-6d90064a8397", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The electorate of Hesse, in which said Edward Stamm, the plaintiff, was born, became a part of the kingdom of Prussia on the 20th of September, 1866. By treaty between the United States and the kingdom of Prussia, concluded in 1828, and ever since remaining in full force and effect, it was provided, that \u201c where, on the death of any person holding real estate within the territories of the *37one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by , such citizen or subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation.\u201d"], "id": "de7d6552-3f09-4b4c-87ed-18147b00ecf5", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["It is contended that the benignant spirit of our laws should have an influence in inducing us to construe this act against the operation of the plea of . I think differently ; the act of 1784 admits the correctness of all the common law rules of descent, except those specially abolished, because it goes on to direct that in all cases not particularly provided for by this act, the common law shall govern. Such was the law until the revision of 1830, and we are bound to sustain the common law principle by the superadded sanction of legislative authority."], "id": "e4fb996e-846e-429b-a704-e2217e1eab87", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["In opposing plaintiffs\u2019 application for a preliminary injunction, the State nevertheless argues that although the previously-employed reasoning for applying the rational basis test is no longer available after Aliessa, there is an alternative rationale which supports using this test in response to an equal protection challenge to the FAR Focusing on the fact that the FAP is available solely to aliens, the State argues that the strict scrutiny test should only be applied in cases where state law draws a distinction between aliens and nonaliens and that, in the absence of such a distinction, the rational basis test should apply. In this respect, it points out that the FAP is a new program which the State voluntarily created in order to assist aliens whose eligibility to participate in the federal Food Stamp Program was terminated by the Welfare Reform Law. The State *615also points out that Social Services Law \u00a7 95 (10) (b) withdraws no benefits from aliens and, unlike the State Medicaid program under consideration in Aliessa, in which both citizens and aliens participated, it draws no distinction between citizens and aliens, as citizens are not eligible for food stamp benefits under the FAE According to the State, the fact that the FAP fails to extend state-funded food stamp coverage to all of the aliens who were excluded from the federal Food Stamp Program does not constitute a classification based on since aliens are not being discriminated against vis-a-vis citizens. In support of this argument, the State cites a recent decision by a Massachusetts state court which found that the residency requirements imposed for eligibility in a state public assistance program which was established, in response to the Welfare Reform Law, for the benefit of only aliens should be subject to the rational basis test since no citizens were otherwise eligible. (See Doe v Commissioner of Transitional Assistance, 437 Mass 521, 773 NE2d 404 [Sup Jud Ct, Suffolk County 2002].)"], "id": "406bfc9e-ffee-499e-af6d-fe2dea4544b3", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cNo owner of a dwelling to which the benefits of this section shall be applied, nor any agent, employee, manager or officer of such owner shall directly or indirectly deny to any person because of race, color, creed, national origin, gender, sexual orientation, disability, marital status, age, religion, or citizenship status, or the use of, participation in, or being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program and the section 8 housing certificate program, 42 U.S.C. 1437 et seq., . . . any of the dwelling accommodations in such property or any of the privileges or services incident to occupancy therein.\u201d (Administrative Code \u00a7 11-243 [k] [emphasis added]; 4301 Realty LLC v Yurovskaya, Civ Ct, Kings County, Feb. 4, 2005, Index No. L&T 106482/02.) The legislative history confirms that the proposed law was intended to"], "id": "ba6d4554-7690-4033-810b-53a9ffa9082e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cunlawful discriminatory practice for the owner . . . of a housing accommodation . . . \u201c(1) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived . . . or citizenship status of such person . . . [and] \u201c(2) To discriminate against any person because of such person\u2019s actual or perceived . . . alienage or citizenship status ... in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation.\u201d (Administrative Code of City of NY \u00a7 8-107 [5] [a] [1], [2].) The undisputed record demonstrates discrimination based on plaintiff\u2019s \u201cactual or perceived . . . alienage or citizenship status\u201d in violation of this provision. Defendant\u2019s August, September and October letters expressly state that plaintiffs rent cannot be accepted and his lease cannot be renewed because of his \u201cquestionable immigration status in the US.\u201d Moreover, defendant\u2019s notice of termination could not be any more explicit in stating that plaintiffs tenancy is being terminated because of his \u201cillegal\u201d immigration status."], "id": "5875852b-2934-41c6-9564-38b9876a48db", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["This analysis and conclusion is dispositive of the equal protection issue which is now before this court. As with the federal legislation in Aliessa, which authorized the states to provide State Medicaid to qualified aliens who were rendered ineligible under the Welfare Reform Law for Federal Medicaid, the federal legislation which authorizes the states to provide food assistance to aliens no longer eligible for federally-funded food stamps does not provide any uniform guidelines or standards for the states to use in deciding eligibility. As in Aliessa, the State can essentially decide for itself the criteria for differentiating between those aliens who are entitled to receive food stamps and those who are ineligible. Indeed, if anything, the criteria which the State Legislature has established for alien entitlement to state-funded food stamps is far more reflective of a policy toward immigration and alien residency than the criteria which the State developed for alien participation in the State *614Medicaid program. Thus, whereas qualified aliens seeking State Medicaid assistance were ineligible unless they had entered the United States before August 22, 1996 or had resided in the country for five years, participation in the FAP is largely limited to those who not only entered the United States before August 22, 1996, but have also resided in the same social services district since August 22, 1996, have not been outside the United States for more than 90 days in the year preceding their application for benefits, and have applied for citizenship within 30 days of the application or, if not yet eligible to apply for citizenship, within 30 days of becoming eligible to apply for citizenship. As the plaintiffs point out, these restrictions penalize the right to travel. More importantly, they seek to impose a state policy which carves out the terms and conditions of immigration which New York alone has decided are desirable and appropriate. It is a policy which reflects New York\u2019s own concept of \u201clargesse, economics and politics.\u201d (Aliessa, 96 NY2d at 435.) As such, the FAP should not receive through federal law any \u201cspecial insulation\u201d from strict scrutiny review but, rather, must \u201cbe evaluated as any other State statute that classifies based on .\u201d (Id. at 436.)"], "id": "01ba5639-eda2-43a6-acff-153ee632ec5c", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from \u201cdenying] to any person within its jurisdiction the equal protection of the laws.\u201d (US Const, 14th Amend, \u00a7 1.) In considering whether a state statute violates the Equal Protection Clause, the United States Supreme Court applies different levels of scrutiny to different types of classifications. A strict scrutiny analysis must be applied to classifications that discriminate against persons based on their . (See Bernal v Fainter, 467 US 216, 227-228 [1984]; Nyquist v Mauclet, 432 US 1, 7-12 *306[1977]; see Hernandez v Robles, 7 NY3d 338, 375 [2006]; Matter of Aliessa v Novello, 96 NY2d 418, 430-431 [2001].)"], "id": "4c661954-6e63-4437-a5c8-fc3fc3b59680", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["By virtue of the act of April 28, 1868, the legislature authorized the persons who would be heirs-at-law of the intestate, but for the disqualification of , to take and hold the lands and released to them all the estate, right, title and interest of the people therein. The defendant holds under a conveyance made by a surviving brother and the sister. They are persons who are designated in the act, and we are of opinion that the intestate being illegitimate the defendant, by virtue of the grant from the brother and sister, acquired a valid title."], "id": "1eb325b8-9f44-4e63-8b14-30fb46d6e417", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u2018 \u2018 Classifications based upon sex, like classifications based upon race, , or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny \u201d. (Frontiero v. Richardson, supra; p. 688; see, also, Matter of Sontag v. Bronstein, 33 N Y 2d 196; People ex rel. Watts v. Watts, 77 Misc 2d 178; People v. Hamilton. N. Y. L. J., Dec. 26, 1974, p. 15, col. 8.)"], "id": "feff19e8-0bdc-47ba-b119-77e709f476ec", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201c \u00a7 248.40 Residence * * * (b) Condition for plan approval. A State plan under title XIX of the Act may not impose any resident requirement which excludes any individual who is a resident of the State. For purposes of this section: (1) A resident of a State is one who is living in the State voluntarily with the intention of making his home there and not for a temporary purpose * * * Residence may not depend upon the reason for which the individual entered the State, except insofar as it may bear upon whether he is there voluntarily or for a \u2018 temporary purpose \u201c \u00a7 248.50 Citizenship and . Conditions for plan approved. A State plan under title XTX of the Social Security act shall include an otherwise eligible individual who is a resident of the United States but only if he is either (a) a citizen or' (b) an alien lawfully admitted for permanent residence or otherwise permanently residing ip. the United States under Color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act). \u201d Section 248.50 aforesaid would not seem to sustain respondents\u2019 position, by reason of the fact that said regulation was not adopted by the Department of Health, Education and Welfare until November 2, 1973."], "id": "2d3cfa68-f68c-4877-ad19-1402bdcd865b", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cRelationship or association. The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation or or citizenship status of a person with whom such person has a known relationship or association.\u201d (Emphasis supplied; see also Matter of Barton v New York City Commn. on Human Rights, 140 Misc 2d 554, 560-561 [Sup Ct, NY County 1988].) Additionally, Administrative Code \u00a7 8-102 (1) defines a \u201cperson\u201d as \u201cone or more natural persons, proprietorships, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.\u201d Clearly, then, the Administrative Code authorizes claims for \u201cdisability association discrimination\u201d (see Abdel-Khalek, 1999 WL 190790, *9, 1999 US Dist LEXIS 2369, *27-28), and also permits a variety of entities \u2014 and not solely individual plaintiffs \u2014 to bring discrimination suits."], "id": "44f81bab-546b-4bd9-a7eb-f0e8343ff26d", "sub_label": "US_Terminology"} {"obj_label": "Alienage", "legal_topic": "Immigration", "masked_sentences": ["Ironically, the broad federal control over diversity jurisdiction extends most liberally to aliens precisely because of the fear of offending foreign sovereigns by subjecting their citizens to suit in local tribunals. Kevin R. Johnson, Why Jurisdiction? Historical Foundations and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens, 21 YALE J. INT\u2019L L. 1, 10\u201316 (1996). Deeming such defendants to be amenable to suit in state court because federal subject matter jurisdiction would recognize a federal forum to protect them from suit in state court seems to put matters backwards. It seems to be a trend among lower courts to apply the nerve center test to the question of general jurisdiction. See D.E. Wagner, Hertz So Good: Amazon, General Jurisdiction\u2019s Principal Place of Business, and Contacts Plus As the Future of the Exceptional Case, 104 CORNELL L. REV. 1085, 1106 (2019). Nevertheless, answering one question by asking a different question does not advance the analysis. Separate and apart from the substantive question, the effort to subject this"], "id": "3a56fc57-5f17-475a-83e5-2b49e067343d", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\"It shall be an unlawful discriminatory practice: \"(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.\u201d In Meritor Sav. Bank v Vinson (477 US 57 [1986]), it was held that \"a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment\u201d (supra, at 66), but in order for \"sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim\u2019s] employment and create an abusive working environment\u2019 \u201d (supra, at 67)."], "id": "21567f69-3be8-4093-9d1a-2ddf7e3f7718", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The construction contended for by the counsel for the plaintiff in error seems forced against the common sense purport of the act. The person who may inherit under the fifth canon must be the child of any such brother or sister who would have inherited by this law if living. Now, Hugh Fitz Simmons the father of the lessor of the plaintiff died an alien. Had he survived the intestate, still continuing an alien, he could not have inherited by this law. It is true he might, had he lived, have become naturalized so as to have taken on the death of the intestate, but so might all the brothers and sisters of the intestate. To me it seems that the lessor of the plaintiff claiming the benefit of this statute, must affirmatively show all the circumstances necessary to bring himself within it. He must show first, his own capacity to take (if the plea of to himself be interposed ;) he shows that he is naturalized, and that establishes his capacity to take. He must show secondly, his consanguinity in the relation to the intestate prescribed by the act, that of the child of a brother or sister of the intestate: the special verdict establishes this point also. But *18this is not enough, he must show further that he is the child of a brother or sister who would have inherited by this law if living. Now, unless all aliens can take under this law, Hugh Fitz Simmons, his father, if living could not take under this statute. He fails, therefore, to show that essential requisite. And this view of the case is supported by the declaration of the canon as to the quantum of interest, that such child or children shall inherit; it is such share- as would have descended to his, her, or their father or mother, if such father or mother had survived the said person so seised. The plain import of the fifth canon seems to me to be, to provide that the children of a person who, if living, would be an heir, shall, if such person be dead at the time of the descent cast, take the portion which such person if living would have taken. In opposition to this view of the case, it is contended by the counsel for the plaintiff in error that the fifth canon of descent casts the inheritance directly upon the lessor of the plaintifij and that he inherits directly from his uncle, and not through his father, who was dead at the time of descent cast. To this argument, however, it is a sufficient reply, that the lessor can-take only by force of the canon ; and the canon admits him to take, only in case his father could have taken had he been, living. To remove this objection, the counsel for the plaintiff contends that the statute means only to define the consanguinity of the person who is to take, and that this consanguinity being-traced, the inheritance without being supposed to follow down the- channel of blood or pedigree, descends at once by operation of the statute. And this ground is fortified by the argument that it is an absurdity to say that the nephew takes as heir from his father, who was dead' at the time of the descent cast, and therefore- never did take. Nevertheless this absurdity is one which is too plainly recognized at common-law, and forms a protection to too In any estates, to leave us at liberty to question it. At common law inheritance is well understood to descend through the channel of blood or consanguinity, and when that blood is corrupted by alienage or infamy, the inheritance is altogether obstructed or diverted into-a different channel. To sustain the argument of the counsel for the plaintiff then, we must- assume that the statute intends *19to take away the plea of alienage, and to overrule in this respect a principle of tire common law. That assumption might properly be made if the statute could in no case have operation, unless the common law principle was overruled. But such is not the case. The statute has full and complete operation in all cases where a person having capacity to take, traces his inheritable blood unobstructed through the channel of consanguinity. In my mind it cannot admit of doubt, therefore, that we are to consider the statute applicable only to those cases in which it can have operation, without overruling a principle of the common law not necessarily repealed by it. Indeed the same principles of construction which would enable the lessor of the plaintiff to take, notwithstanding the alienage of his father would allow him to take, although an alien himself"], "id": "c71b3c90-f91d-463a-9518-fd06b0e24770", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["First cause of action: \u2014 Anglo asks for a rescission of the August 12 agreement on the grounds (a) that the individuals presuming to act on its behalf had no authority to do so, and (b) being a Canadian corporation it could not accept leases on Government owned oil lands, as these were. The first ground was abandoned as it had to be. As to the second, it is strange for a plaintiff to come into a court of equity and ask for rescission on the ground that because of its own status the agreement it made is illegal. I reject its position, and, in any case, it is altogether probable that only the Government can raise the questions of and its possible consequence (U. S. Code, tit. 30, \u00a7 181 et seq.; Code of Fed. Reg., tit. 43, \u00a7\u00a7 191.3, 191.4; Manuel v. Wolff, 152 U. S. 505, 511; Isaacs v. De Hon, 11 F. 2d 943, 944)."], "id": "1d3b3f1f-ec1a-4438-980d-8a0bfadb133b", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["This heightened level of judicial scrutiny is required when a state statute classifies by , race or national origin because \u201c[t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy \u2014 a view that those in the burdened class are not as worthy or deserving as others.\u201d (Cleburne v Cleburne Living Center, Inc., 473 US 432, 440 [1985].) Under a strict scrutiny analysis, a state law will withstand an equal protection challenge only when the state can show that the law \u201cfurthers a compelling state interest by the least restrictive means practically available.\u201d (Bernal v Fainter, 467 US at 227; see Matter of Aliessa v Novello, 96 NY2d at 430.)"], "id": "aae65bf6-48a0-4123-ba4a-10d0ddf3843c", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*116Where, however, a statute affects a \u201cfundamental interest\u201d such as voting (Harper v Virginia Bd. of Elections, 383 US 663); procreation (Skinner v Oklahoma, 316 US 535); freedom of speech (Carey v Brown, 447 US 455); or criminal appeals (Griffin v Illinois, 351 US 12) or if the challenged classification is \u201csuspect\u201d such as race (Loving v Virginia, 388 US 1); nationality (Hernandez v Texas, 347 US 475); or (Nyquist v Mauclet, 432 US 1) a \u201cstrict scrutiny\u201d test is applied, to wit, whether the challenged classification is \u201cnecessary to promote a compelling state interest\u201d (Eisenstadt v Baird, 405 US 438)."], "id": "87c574fe-b1b1-4e76-b7f4-88f47e4cf937", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Thus, a legislative classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. The only exception to this rule is when the classification involved is based upon race, sex, , national origin, or status of birth, in which case it is inherently suspect and subject to careful judicial scrutiny. (Frontiero v. Richardson, 411 U. S. 677; Weber v. Aetna Cas. & Sur. Co., 406 U. S. 164; Reed v. Reed, 404 U. S. 71; Loving v. Virginia, 388 U. S. 1; Graham v. Richardson, 403 U. S. 365; and Yick Wo v. Hopkins, 118 U. S. 356.)"], "id": "91a89466-6cd6-4eea-a60b-88706e2af9a2", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*244Y. The defendants finally insist that the alien next of kin are entitled to take, by descent, by virtue of the treaty of 1844, made between the United States and the kingdom of Wurtemberg, the said alien next of kin being subjects of that kingdom. That treaty allows subjects or citizens of either party to whom lands would have descended under the laws of the other, but for their , a term of two years to sell the same and to withdraw the proceeds thereof without molestation. It also provides that the said term may be reasonably prolonged according to circumstances. More than five years having already elapsed since Hafner\u2019s death, and the defendants having failed to show a prolongation of the term, it may be a serious question whether the alien claimants are still within the protection of the treaty, or whether, if they once lost it, they have any remedy left, for the treaty makes no provision as to the manner or means in or by which the prolongation may be applied for or granted, and it may well be that in the absence of appropriate legislation upon the subject, that part of it which calls for a reasonable prolongation, remains a dead letter. The plaintiff also contends that the treaty, as a whole, has been impliedly abrogated. Upon reflection I have come to the conclusion that these as well as all other questions arising upon this branch of the case, should be reserved for the trial of the issues. For the purposes of the present motion it is sufficient to say that the rights of the alien claimants, in that respect, are not clear."], "id": "6f638bc4-de2e-4883-901c-d1035181ff5e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["See Mass Bd. of Ret. v. Murgia, 427 U.S. 307, 312 & n.4 (1976) (per curiam) ( and ancestry are suspect classifications); see also United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997) (national origin and alienage are suspect classifications). ethnicity. When they learned Mr. Mitra-Hernandez was not Juan Ramiro, the officers no longer had a basis to reasonably suspect he was in the country illegally. They were left only with the facts that he spoke Spanish and had a Mexican ID card, and on that basis alone they continued to detain and question him. That aspect of the seizure implicates Mr. Mitra-Hernandez\u2019s Fifth Amendment equal protection right. 4"], "id": "d22008e8-9d31-4e5a-9367-7c6afe42e43b", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["In reaching this result, this court is not unmindful of those areas where the general rule as to equal protection gives way and the courts impose what have been referred to as \u201cstrict scrutiny\u201d and \u201ccareful scrutiny\u201d tests. Inasmuch as those tests are applicable only to statutes which set forth classifications based on race, or national origin or impinge on personal rights protected by the Constitution (strict scrutiny) as well as classifications based on gender (careful scrutiny), they are not applicable to the instant matter (see, City of Cleburne v Cleburne Living Ctr., supra, at 439-442)."], "id": "bf673f8b-03bd-4cf2-a032-bd685366eee5", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["These considerations require a reversal of this judgment, but another question has been introduced into the case which requires examination. Assuming that the heirs of Joseph de Sendzemir are all Russian subjects, it is insisted that whatever rights they had in the property in question has been lost by the operation of the treaty between Russia and. the United States, concluded in December, 1832, the provisions of which was extended to the kingdom of Poland by the twelfth article. With full submission to the high authority of the Constitution of the United States, declaring that the Constitution and the laws of the United States, made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, we find, on examination of the treaty, that it has no application to these defendants. The provisions invoked is contained in the tenth article of the treaty and is as follows: \u201cAnd where, on the death of any person holding real estate within the territories of one of the high contracting parties, such real estate would, by the laws of the land, descend on a citizen or subject of the other party, who, by reason of , may be incapable of holding it, he shall be allowed the time fixed by the laws of the country, and in case the laws of the country actually in force may not have fixed any such time, he shall then be allowed a reasonable time to sell such real estate and to withdraw and export the proceeds without mol\u00e9station. * * *"], "id": "2f24b702-fb60-4f28-94fe-7644653107bf", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The rational basis test described above is not appropriate for the constitutional evaluation of all statutory classifications. Where a statute affects a \"fundamental interest\u201d or employs a \"suspect\u201d classification, the \"strict scrutiny\u201d test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. (Alevy v Downstate Med. Center, 39 NY2d 326, 332.) Suspect classifications include race (Loving v Virginia, 388 US 1), national origin (Hernandez v Texas, 347 US 475), and (Matter of Griffiths, 413 US 717). Fundamental interests include, inter alia, voting (Dunn v Blumstein, 405 US 330), travel (Shapiro v Thompson, 394 US 618), and procreation (Skinner v Oklahoma, 316 US 535)."], "id": "af8483c0-7b28-420b-a029-e9d6403f6e72", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Petitioner urges the court to adopt a strict scrutiny test in this instance on the grounds that the determination employed a suspect classification of petitioner. Previously identified by the United States Supreme Court as suspect are classifications based on (Matter of Griffiths, 413 US 717), national origin (Hernandez v Texas, 347 US 475; Takahashi v Fish Comm., 334 US 410, 418, 420), and race (Loving v Virginia, 388 US 1; McLaughlin v Florida, 379 US 184). Although no such classification is involved here, petitioner argues that the criteria set forth in San Antonio School Dist. v Rodriguez (411 US 1, 28) should lead to the conclusion that a suspect classification was dealt with here. There it was said (p 28) that a *164suspect class is one \"saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.\u201d"], "id": "5724985a-7f16-496f-8db6-d407957a1c98", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": [". Administrative Code \u00a7 8-107 (5) (a) (1) provides that, with regard to housing accommodations, it shall be an unlawful discriminatory practice to \u201crefuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or or citizenship status of such person or persons, or because children are, may be or would be residing with such person or persons.\u201d Section 8-107 (5) (a) (2) makes it unlawful to \u201cdiscriminate against any person because of such person\u2019s actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or alienage or citizenship status, or because children are, may be or would be residing with such person, in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.\u201d"], "id": "591ecbf9-c113-4e5f-868a-25b4335a469e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cEmployment. It shall be an unlawful discriminatory practice: \u201c(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.\u201d (Emphasis supplied.)"], "id": "a380db94-f3c3-4d8c-8815-339a29e43ee8", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201c[i]t shall be an unlawful discriminatory practice: \u201c(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or or citizenship status of any person . . . \u201c(2) To refuse to hire or employ or to bar or to discharge from employment such person; or \u201c(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment\u201d (Administrative Code of City of NY \u00a7 8-107 [1] [emphasis added]). The New York Court of Appeals has held that marital status is"], "id": "4f1c5a1b-53da-49eb-859c-e600b9e5fbf8", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Judge Jones, in Matter of Malpica-Orsini (36 NY2d 568, 581, n 2), gives the following concise analysis of what constitutes a \"suspect\u201d area. He writes: \"Those classifications considered 'suspect\u2019 in the constitutional sense include race (see, e.g., Loving v Virginia, 388 US 1; McLaughlin v Florida, 379 US 184); national origin (Hernandez v Texas, 347 US 475; Oyama v California, 332 US 633); (Matter of Griffiths, 413 US 717; Graham v Richardson, 403 US 365); and possibly sex (Frontiero v Richardson, 411 US 677; cf. Stanton v Stanton, 421 US 7). The character traits of these suspect classifications appear to share a common element \u2014 'an immutable characteristic determined solely by the accident of birth\u2019 (Frontiero v Richardson, supra, p 686).\u201d"], "id": "d7e17b8d-6d2d-4241-acab-17a3a84bae43", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cIt shall be an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to *701be constructed, or an interest therein, or any agent or employee thereof: \u201c(1) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or or citizenship status of such person or persons, or because of any lawful source of income of such person or persons, or because children are, may be or would be residing with such person or persons. \u201c(2) To discriminate against any person because of such person\u2019s actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or alienage or citizenship status, or because of any lawfid source of income of such person, or because children are, may be or would be residing with such person, in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.\u201d (Emphasis added.) The court notes that the New York City HRL law defines the term \u201cgender\u201d as \u201cincluding] actual or perceived sex and . . . also including] a person\u2019s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.\u201d (Administrative Code \u00a7 8-102 [23].) Accordingly, discrimination based on gender identity is impermissible gender discrimination under the New York City Human Rights Law."], "id": "de8466d8-32e6-4f97-8f91-832566ad61c6", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Equal protection claims (US Const, 14th Amend, \u00a7 1; NY Const, art I, \u00a7 11) are judged by the \"rational basis\u201d or \"strict scrutiny\u201d test (Alevy v Downstate Med. Center, 39 NY2d 326, 335 [1976]). Where, as here, there is no suspect classification (race, or nationality) or fundamental right at issue the rational basis test is applied. (Supra, at 332; Maresca v Cuomo, 64 NY2d 242, 250-251 [1984], appeal dismissed 474 US 802 [1985].) Under that test the statute or regulation is presumed valid and must be upheld if the challenged classification is rationally related to achievement of a legitimate State purpose (Trump v Chu, 65 NY2d 20 [1985], appeal dismissed 474 US 915 [1985])."], "id": "14520544-539d-42d4-b321-7f59ddc989e2", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The United States Supreme Court has interpreted the Fourteenth Amendment's Equal Protection Clause as \"essentially a direction that all persons similarly situated should be treated alike.\"30 Resolving a claim that some state action has resulted in the law's unequal application begins with the reviewing court deciding which of the \"devised standards for determining the validity\" of the complained-of state action should apply.31 The default, \"general rule\" or \"standard\" is that state action is \"presumed to be valid\" and will be upheld if it is but \"rationally related to a legitimate state interest.\"32 This general rule \"gives way, however,\" when a state action either \"classifies by race, , or national origin,\"33 or \"impinge[s] on personal rights protected by the Constitution.\"34 Under these circumstances, the state action is subjected to \"strict scrutiny,\" and will be sustained only if it is \"suitably tailored to serve a compelling state interest.\"35"], "id": "a03d1e61-fea7-4279-8b1a-023615af76bf", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["By Mr. Senator Allen. It was contended by the plaintiff in this cause, that he being a naturalized citizen, before the death of the intestate, the of his father at the time of his death, cannot affect his right to inherit, as the fifth canon \u00b0 of descent of the act of 1786, 1 R. L. 52, casts the inheritance directly upon him. It appears by the finding of the jury, that Felix FitzSimmons, a naturalized citizen, died seised of about 200 acres of land in the county of Saratoga ; that he left no issue, and died intestate. The plaintiff, Patrick Fitz Simmons, is the son of Hugh Fitz Simmons, who died in Ireland about eight years before the intestate. Hugh was the oldest brother of Felix, and at the time of his death was an alien. Thomas Fitz Simmons, the defendant, is also a brother of Felix, the intestate, and both Patrick and Thomas were naturalized before the death of Felix."], "id": "061db7a0-d91a-4149-8a28-608e56c622a8", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*341Although defendant here recognizes that the Graham Court held that State-made distinctions on the basis of are subject to strict scrutiny rather than a rational basis analysis, defendant urges that since Social Services Law \u00a7 122 was enacted pursuant to congressional policy (the PRWORA), this factor militates in favor of review under the rational basis analysis. Defendant cites to dicta in Plyler v Doe (457 US 202, 224 [1982], reh denied 458 US 1131 [1982]), in which the Supreme Court expressed agreement with the proposition that when the courts are faced with an equal protection challenge respecting the treatment of aliens, they must be attentive to congressional policy, and that \u201cthe exercise of congressional power might well affect the State\u2019s prerogatives to afford differential treatment to a particular class of aliens.\u201d However, this observation by the Plyler Court does not stand for the proposition that a rational basis test is to be applied here, nor does it indicate a retreat from the analysis applied in Graham {supra)."], "id": "89291d80-e48e-4b47-8f7b-08f3f311c7ba", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["There is only one case provided in the statutes, in which a party who has lost the right to represent an estate can after-*352wards reclaim and regain it. That is where the person named in a will as executor may be laboring under a disability from nonage, or , or from being, a married woman, at the time of the first granting of letters testamentary, which disability shall be afterwards removed. In such case, it is provided, that such person may then apply for and receive supplementary letters testamentary, and be joined with the persons theretofore authorized to execute the will."], "id": "d36e3fa2-9dbd-472d-9a63-89b4a82e106a", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Moreover, although citizens are not eligible to participate in the FAI] there is still discrimination on the basis of since the challenged residency distinctions which the Social Services Law draws among aliens, such as ensuring that they apply for citizenship and that they not move within the state or leave the country for any extended period, are intimately and substantially connected to their very alienage. Presumably, it was for this reason that the plaintiffs have not challenged the age and health limitations imposed on an alien\u2019s eligibility for participation in the FAP These limitations do not reflect alien-age. However, discrimination based on the length of an alien\u2019s *616residency in the country, state or district, as well as on the status of an alien\u2019s citizenship application, has everything to do with alienage. It is a discrimination which is \u201cdirected at aliens\u201d and \u201conly aliens are harmed by it.\u201d (Nyquist v Mauclet, 432 US 1, 9 [1977].) The proposition that a state may adopt its own immigration policy by enacting a law which, based on characteristics unique to alienage, differentiates between aliens as to their entitlement to public assistance benefits and that this policy is subject only to the lenient rational basis test is a proposition which is at odds with the body of case law which has evolved in the area of equal protection. To the extent that the Massachusetts court in Doe concluded that the rational basis test should apply, it is in apparent conflict with the Court of Appeals decision in Aliessa, as well as with the relevant case law."], "id": "c002214e-a319-4c6d-8acb-901377248a01", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The second strand of equal protection analysis which has evoked strict judicial scrutiny has focused on the nature of the class affected. The Supreme Court has struck down legislation *899which draws lines on the basis of membership in certain suspect classes unless the State has shown that the statute furthers a compelling State interest. Implicit in the idea that particular classifications are suspect is a recognition by the court that certain \"discrete and insular minorities\u201d may need judicial protection from the adverse effects of a majoritarian political system (Note, Alternative Models of Equal Protection Analysis: Plyler v Doe, 24 BC L Rev 1363, 1373, n 106 [1983]). Under the Warren court, suspect classes included groups defined on the basis of race (Loving v Virginia, 388 US 1 [1967]; Korematsu v United States, 323 US 214 [1944], reh denied 324 US 885 [1945]), (Graham v Richardson, 403 US 365 [1971], supra,) and national origin (Hernandez v Texas, 347 US 475 [1954]) and perhaps, the poor (Gunther, The Supreme Court, 1971 Term-Forward: In Search of an Evolving Doctrine on a Changing Court: A Model for a New Equal Protection, 86 Harv L Rev 1 [1972]). While the Burger court initially identified a class based on gender as inherently suspect (Frontiero v Richardson, 411 US 677 [1973]) later decisions have not subjected gender-based classifications to strict scrutiny (see, e.g., Michael M. v Sonoma County Superior Ct., 450 US 464 [1981]; Craig v Boren, 429 US 190, supra; see also, Massachusetts Bd. of Retirement v Murgia, 427 US 307, 318-319 [Marshall, J., dissenting opn 1976], supra [\"(The court) has apparently lost interest in recognizing further 'fundamental\u2019 rights and 'suspect\u2019 classes\u201d])."], "id": "20a970db-e6bf-4c9a-8b80-8f58ff6e74a8", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Constitutional analysis on equal protection grounds provides that \"[u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or , our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest\u201d (New Orleans v Dukes, 427 US 297, 303). In the area of rent classifications and regulations a low level of judicial scrutiny is afforded to legislation challenged as violative of equal protection. (People ex rel. Off. of Rent Admin., Div. of Hous. & Community Renewal v Berry Estates, 87 AD2d 161, 175, affd 58 NY2d 701; Reiner-Kaiser Assocs. v McConnachie, 104 Misc 2d 750; see also, Ballard v Rockville Centre Hous. Auth., 605d 1283.) Every intendment is in favor of the statute\u2019s validity so that the very heavy burden of demonstrating unconstitutionality beyond a reasonable doubt rests upon the party who attacks a statute as unconstitutional. Only as a last unavoidable result do courts strike down a legislative enactment as unconstitutional (cf., Benson Realty Corp. v Beame, 50 NY2d 994, 995; I.L.F.Y. Co. v Temporary State Hous. Rent Commn., 10 NY2d 263, 269; Wiggins v Town of Somers, 4 NY2d 215, 218; Lincoln Bldg. Assocs. v Barr, 1 NY2d 413, 415)."], "id": "dcd1e79f-150e-4dff-b4f2-44139b74c912", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["3. The state court is to be satisfied of two things; first, the or citizenship in another state of the petitioner ; next, that the sum in dispute exceeds five hundred dollars. It is *347true, that the language appears to refer to the latter fact only, but the true interpretation must be, that both facts, the establishment of which renders it the duty of the state court to make the order, are to be made out to its satisfaction."], "id": "0b6fa97e-5090-4741-8b5f-9c310d7717a0", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The testator died without leaving any issue, and the legacy to his sister\u2019s child cannot pass to his sister\u2019s grandchild under this section, unless a sister\u2019s child maybe comprehended under the term, \u201c other descendant.\u201d The Revisers \u201c took this section from the laws of Massachusetts, Yol. I., p. 94, \u00a7 8, and the laws of Virginia, 1st Yol. Re-, vised Code, p. 376, \u00a7 5 \u201d (-3 R. 8., p. 633, note), hut the provisions are materially different from that of the Massachusetts Statute. The words of the Massachusetts act, are, \u201c to a/ivy child or other relation\u201d of the testator, who shall die before the testator, \u201c learning issue /\u201d the Virginia statute, \u201c any child or other descendant of the testar tor\u201d \u201c leaving issue\u201d (now altered to any devisee or legatee) ; Pennsylvania, \u201c a child or other lineal descendant of the testator\u201d \u201c leaving issueSohth-Carolina, \u201c cmy cMld of the testator\u201d \u201c leaving issue Maine, \u201c child or other relation of a testator\u201d \u201c leaving lineal descendants Missouri, \u201c child, grandchild, or other relation leaving lineal descendants Connecticut, \u201c child or grandchild of the testatoi1 leaving issue Georgia, \u201c cmy person named as a legatee\u201d \u201cleaving issue;\u201d and the English act, \u201ca child or other issue of the testator\u201d \u201c leaving issue.\u201d It will he seen that there is a wide range in these various legislative provisions, from that of Georgia, which prevents a lapse in every case where the deceased legatee has left issue, to that of Pennsylvania, which limits the sustentation of a lapsed legacy to the case of a lineal descendant leaving issue. Cm\u2019 statute follows that of Virginia, varying from that of Massachusetts, by rejecting the term\"1 any *318child or other relation\u201d and adopting instead of it the words, \u201c any child or other descendant.\u201d The intent of this is obvious, and there is no ground for indulging in such a loose interpretation of the word descendant, as to apply it to any person upon whom property might descend, and thus to extend a word of precise and definite meaning, until it be transformed into an equivalent to the term \u201c relation.\u201d It is true the word \u201c ancestor,\u201d as used in the act designed to cure defect of blood by , in favor of those to whom the inheritance would pass, has been read so broadly as to include every predecessor in estate, every person from whom property might be inherited (2 I\u00ed. 8., p. '38, \u00a7 22), whether he be the ancestor in lineal ascent or not. But that is a remedial statute, intended to aid every person \u201c capable of inheriting,\u201d so that he shall not \u201c be precluded from such inheritance by reason of the alien-age of any ancestor.\u201d The object of the statute was to benefit every person capable of inheriting, and it might be reasonable to construe its provisions so liberally, as to comprehend under the word \u201c ancestor,\u201d every person from whom an estate might be inherited. But the very question in relation to the section respecting lapsed legacies is, whom, it was intended to benefit, whether descendants only, in the proper sense of the term, or every person to whom property might descend. Again, in the Statute of Descents there is no use of the term \u201c ancestor \u201d inconsistent with the idea of ancestor in estate. But whether we refer to the Statute of Descents, or the Statute of Distributions, we are unable to find a single instance of the employment of the word \u201c descendants \u201d in any other signification than that of lineal descendants. It, in fact, nowhere occurs in either place, except in the unequivocal sense of posterity . of the body, and to interpret it as a synonyme with descendant in estate, would throw both statutes into utter confusion. For example, the following expressions may be taken, in the Statute of Descents: \u201c In case the intestate shall die without lawful descendants, and leaving a *319father\u201c If the intestate shall die without descendants and leaving no father\u201c Descendants and relatives of the intestate begotten before his death, but born thereafter, shall in all cases inherit,\u201d &c.; and in the Statute of Distributions, \u201cIf the deceased leave a widow and no descendant) parent, brother or sister, nephew or niece,\u201d &c.; \u201c If there be a brother or sister, nephew or niece, and no descendant or parent;\u201d \u201c If the deceased leave a father, and no child or descendant)'' \u201c descendants or next of kin,\u201d \u201c descendants and next of kin.\u201d It thus abundantly appears, that in the statutes disposing of real and personal estate in cases of intestacy, a \u201c descendant\u201d is one sprung-from the body of the person spoken of\u2014a lineal descendant\u2014and is never used as synonymous with, or comprehensive of, any other other class of relatives."], "id": "e5568a43-227b-41bc-936d-00baaf396e13", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["There is a proviso against males of full age that they shall not hold the same against the State unless they are citizens, or make and file the deposition required by law. But this does hot render them incompetent to take the title. That in no case escheats to the State, without the finding of an inquisition, where there are heirs competent to take. Here all are competent to take, but the adult male heirs cannot hold against the State unless they become citizens *232or file the necessary deposition. The male heirs of full age take a title defeasible by the State, unless before the consummation of the proceedings instituted to declare the forfeiture they become citizens or file the necessary deposition. But if they do either, their right and title becomes absolute and indefeasible. (Goodrich v. Russell, 42 N. Y., 177.) Their defeasible title is good, except against the sovereign power of the State. Their is a cause of forfeiture which may be established by a judicial proceeding instituted on behalf of the State for that purpose, and that may be defeated even after its commencement in the manner already mentioned. No such proceeding has been instituted, and therefore the State never acquired any right or interest in the premises. It follows that the State possessed nothing which it could grant or release to Foster J. Maynard, and that he took nothing under the act of the legislature releasing the interest of the State to him."], "id": "b41d89e6-a42a-4f15-9cf6-a73ccb11b6b7", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["issue. For that reason, we do not address whether the district court properly denied the plaintiffs\u2019 motion to transfer. On the personal jurisdiction issue, the plaintiffs contend that the district court improperly focused on LG Chem\u2019s contacts with Georgia, rather than its contacts with the United States as a whole. In their view, personal jurisdiction over a foreign corporation not subject to jurisdiction in any state nonetheless exists in any federal court so long as the action arises out of the corporation\u2019s \u201csystem- atic and continuous business in the United States.\u201d This is so, the plaintiffs argue, because a federal court\u2019s power over parties is lim- ited by the Fifth rather than the Fourteenth Amendment\u2019s Due Process guarantee. Personal jurisdiction starts with service of process. See U.S. S.E.C. v. Carrillo, 115 F.3d 1540, 1543 (11th Cir. 1997). Under Rule 4(k)(1) of the Federal Rules of Civil Procedure, service of process \u201cestablishes personal jurisdiction\u201d over a party if, for example, the person is subject to the long-arm statute of the state in which the court sits or if service is authorized by federal statute. FED. R. CIV. P. 4(k)(1)(A), (C). Under Rule 4(k)(2), service of process can estab- lish personal jurisdiction over a defendant that \u201cis not subject to jurisdiction in any state[],\u201d but only \u201c[f]or a claim that arises under federal law.\u201d Id. at 4(k)(2). Service under this latter provision \u201cdoes not establish personal jurisdiction if the only claims are those aris- ing under state law[,] . . . even though there might be diversity or subject matter jurisdiction as to such claims.\u201d Advisory Committee Notes to the 1993 Amendments to Rule 4. USCA11 Case: 21-11814 Date Filed: 01/31/2022 Page: 9 of 12"], "id": "328b4f67-7c9e-4701-b6e3-cc06b68c80a2", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["had been born there of parents who had arrived in the USVI as immigrants on June 29, 1932, would not be so shielded. How a system permitting this kind of discrimination could be said to further neighborhood stability or reliance interests of long-time property owners is unclear. The second sub-class benefitted by the real property exemption for An- cestral Native Virgin Islanders also seems difficult to justify as furthering a legitimate governmental interest, for the second sub-class is defined simply by parentage or ancestry. We need not delve into whether this use of \u201cancestry\u201d in classifying citizens would be deemed \u201csuspect\u201d and thus subject to heightened scrutiny under the Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. M urgia, 427 U.S. 307, 312 & n.4 (1976) (per curiam) (identifying , race, and ancestry as classifications subject to strict scrutiny). Again, it is unclear to us what legitimate governmental purpose would support favoring so starkly the descendants of individuals born or resident long ago in the USVI regardless of the descendants\u2019 own connections (or lack thereof) to the Islands. Because we find it difficult to discern a legitimate governmental pur- pose that would be rationally advanced by providing property tax exemp- tions only for Ancestral Native Virgin Islanders, we would recommend revising the proposed constitution to eliminate Article XI, Section 5(g)."], "id": "412f7cde-17e8-43eb-8dec-0be5294c7b18", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Second, W.S.'s claim that the statute unconstitutionally prefers married fathers over unmarried fathers in violation of equal protection principles is undeveloped on appeal. \" ' \"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.\" ' \" ( Walgreen Co . v . City and County of San Francisco (2010) 185 Cal.App.4th 424, 434, 110 Cal.Rptr.3d 498.) \"There is no constitutional requirement of uniform treatment. [Citations.] Legislative classification is permissible when made for a lawful state purpose and when the classification bears a rational relationship to that purpose. [Citations.] 'Wide discretion is vested in the Legislature in making the classification and every presumption is in favor of the validity of the statute; the decision of the Legislature as to what is a sufficient distinction *774to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary. ...' \" ( Estate of Horman (1971) 5 Cal.3d 62, 75, 95 Cal.Rptr. 433, 485 P.2d 785.) \"When legislation involves a suspect classification such as classifications based on race, nationality or , or the disparate treatment has a real and appreciable impact on a fundamental interest or right, a heightened standard of scrutiny is applied. [Citations.] In such cases, legislation will be *153upheld only if it is shown the state ' \"has a compelling interest [that] justifies the law\" ' and ' \"that distinctions drawn by the law are necessary to further its purpose.\" ' \" ( Neil S ., supra , 199 Cal.App.4th at p. 254, 131 Cal.Rptr.3d 51.)"], "id": "82afdeb3-bc12-43cc-9e6c-75c2281e15a5", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["I think it very clear, too, that Mrs. McGillis took an absolute life estate in the property given her by the codicil. She ivas to hold the gifts, devises and bequests made, or given to her by the codicil, subject to the same restrictions, limitations and powers in trust, specified in the will. It was, obviously, the intention of the testator to connect these latter devises and bequests with those already made, and to bring them within the provisions of the first clause of the will. But for their alien-age, the husband and children would have taken the same *52estate in the real property devised to Mrs. McGillis by the codicil, as they would have taken had it been included in the first clause of the will. And as their does not affect their right to take personal property, they do take under the codicil the same interest in the personal property there bequeathed to Mrs. McGillis for life, as they take under the provisions of the first clause of the will, in the personal property there bequeathed."], "id": "9a10a0e7-a9b6-446d-85a6-1cc6357dc65b", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cIn evaluating whether a statute violates the equal protection clause a court normally applies a \u2018rational basis\u2019 test to determine whether the varied treatment of separate classifications of citizens \u2018rests on grounds wholly irrelevant to the achievement of the State\u2019s objective\u2019 (McGowan v Maryland, 366 US 420, 425). Where a statute\u2019s application differentiates on the basis of race, or nationality, however, the classification is deemed suspect and a strict scrutiny test must be applied to determine whether the challenged law is \u2018necessary to promote a compelling governmental interest\u2019 (Shapiro v Thompson, 394 US 618, 634). \u201cBetween those two tests, a third has developed to evaluate a constitutional challenge to a gender-based statute which \u2018must serve important governmental objectives and must be substantially related to achievement of those objectives\u2019 (Craig v Boren, 429 US 190, 197; see Califano v Webster, 430 US 313, 316-317).\u201d The first test, the \u201crational basis\u201d test, is clearly the focal point of this court\u2019s inquiry here."], "id": "d23e119c-8292-4273-83d4-ddaef564bcb5", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Other than the fact that they were nondomiciliary aliens, all of the distributees were otherwise eligible to receive letters, and were therefore eligible to consent to the appointment of a nondistributee to receive letters in their stead. This court concludes from that holding, as well as the legislative history of the statute itself, i.e., SCPA 1001 (6) (see, 2d Report of EPTL-SCPA Legislative Advisory Comm, 1993 McKinney\u2019s Session Laws of NY, at 2356), that where the only impediment to a distributee\u2019s eligibility is his or her , that person is \u201celigible\u201d for purposes of SCPA 1001 (6) and may consent to the issuance of letters to a nondistributee. Here, the surviving spouse is the only distributee whose consent is necessary because the infant children of the decedent are ineligible not solely because of their alienage, but also because of their infancy."], "id": "186613f8-64a7-4669-88df-cb2746f01658", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["More recently the Supreme Court has applied the \"strict scrutiny test\u201d to equal protection cases. This test has been applied whenever a fundamental interest (e.g., Shapiro v Thompson, 394 US 618) is at stake or the Government has employed a suspect classification. Classifications based upon race (Loving v Virginia, 388 US 1), (Graham v Richardson, 403 US 365) and national origin (Oyama v California, 332 US 633) have been held to be inherently suspect and thus subject to close judicial scrutiny. The opinion in Frontiero v Richardson (411 US 677) convinces this court that sex is a suspect classification. At pages 686 to 687 of that opinion is stated the following: \"since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burden should bear some relationship to individual responsibility.\u2019 * * * And what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual *641members.\u201d Having determined that classifications based upon sex are inherently suspect, this court must now determine whether the statute commands \"dissimilar treatment for men and women who are * * * similarly situated.\u201d (Reed v Reed, 404 US 71, 77.)"], "id": "035832b5-d93b-4921-bbbf-f18a2b8a554e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["It is insisted, however, on the part of the plaintiff in error, that if the rules of the common law precluded the nephew from taking lands by descent from his uncle through the alien father by representation, our own statute of descents, which was in force in 1828, had provided for this particular case, and that the lessor of the plaintiff was entitled to inherit a moiety of the premises in question, under the provisions of the statute. The provision referred to is the fifth canon of descent, as prescribed by the act of the 23d of February, 1786, 1 R. L. of 1813, p. 53, and is as follows: \u201c Fifthly, in case any such brother or sister, who would have inherited by this law if liv*13ing, shall die before the said person-so seised, and leave a lawful child or children, such child or children surviving the said \u00a1person so seised shall inherit, if a child, solely, and if children, as tenants in common, in equal parts, such share as would have descended to his, her or their father or mother, if such father or mother had survived the person so seised.\u201d It is evident, from the language of this clause of the statute, that it cannot help the lessor of the plaintiff in this case, because the children of a deceased brother are only to have such share of the estate of their uncle or aunt as their own father or mother would have inherited if living. The father in this case being an alien, no share would have descended to him if living, because the law never casts the estate upon a person who cannot legally hold it, except in the case of an attainder for the benefit of the crown. The true answer, however, to all claims under the statute of descents, contrary to the rules of the common law, is, that the statute was only intended to change the common law canons of descent. It is not an enabling statute to give capacity to persons to take by descent in cases where, by the common law, they were incapable of inheriting by reason of or other disability. If a literal interpretation were given to the fourth canon of descent, as prescribed by this statute, it would cast the greatest portion of the premises in question here, upon the alien brothers and sisters of the person last seised, and the lessor of the plaintiff, under the fifth cannon, would share equally with his alien brothers and sisters, as tenants in common of his deceased father\u2019s share, which would give him but one thirty-sixth part of the premises. Such was never the intention of the legislature, and giving such a construction to the provisions of the statute would unsettle the titles to property of immense value in this state."], "id": "73aa99e7-1ab5-4c79-b5cc-5f14473256cd", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["But though it be immaterial, as to the point under discussion, what became of the Oneida nation since the death of John, the patentee, yet, in the opinion of the Supreme Court, much stress appears to have been laid upon the act of the 12th of April, 1822, pardoning Tommy Jemmy, and asserting exclusive criminal jurisdiction in the Courts of this, and the United States, over all crimes and offences committed within the state. Admitting that this act completely annihilated the national character, and the sovereign attributes of the six nations, what has this fact to do with the inquiry, how those nations stood, forty years ago. *717when John Sagoharase died, and when his son is asserted to have succeeded as heir ? Though this act may have gone a step beyond any former proceeding, in respect to Indian sovereignty, yet it only restrained the exercise of it in one particular mode, and claimed that jurisdiction over our own territory, which is perfectly consistent with the admission of the , and distinct national character of the Indians. It is understood that witchcraft is the only offence which the Indians have undertaken to punish judicially, as a community. It was a sentence for that offence that led to the act for which Tommy Jemmy was tried. All other of-fences are said to be left to the arm of private and family revenge; and their irregular and foul executions were shocking to humanity, and were not to be tolerated in the neighbourhood, and under the eye of a civilized and Christian people. Under the circumstances in which we were placed in relation to those Indians, as their guardians and protectors, we had a right to avail ourselves of the superiority of our character, and put a stop to such irregular and horrible punishments, even as our nation claims the right of punishing the subjects of other independent powers, without the consent, and against the will of their own governments, if they are caught in carrying on the African slave trade."], "id": "aeb2bf4f-bde0-46c4-9fb7-b97b08b061dc", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["In the case at bar were it not for certain provisions of the treaty existing between the United States and Prussia the case above cited would control. The applicants for participation in the surplus moneys are residents of the Province of Hesse Cassel, and up to the time of the annexation of Hesse Cassel by Prussia in 1866, were subjects of the Dukedom of Hesse Cassel, and by such annexation became and have since remained Prussian subjects. Art. 2 of the treaty between the United States and Hesse Cassel made March 28, 1844, provides: \u201c When on the death of any person holding real property within the territories of the one party such real property would by the laws of - the land descend on the subject or citizen of the other, were he not disqualified by , such subject or citizen shall be allowed a term of two years to sell the same, which term may be reasonably prolonged, according to circumstances, and to withdraw the proceeds thereof without molestation, and exempt *359from the duties of detraction on the part of the government of the respective states.\u201d"], "id": "edb947ff-a61d-45d4-80ca-d2d7f9b33104", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The brothers and sister of the intestate were his nearest relatives, and his only relatives on the part of his mother. Their impeded their succession to the inheritance. The plaintiffs thus became the next collateral relatives. But the intestate being illegitimate, the plaintiffs, as already shown, were excluded from the inheritance, and the intestate\u2019s brothers and sister, irrespective of the treaty between the United States and the Grand Duchy of Hesse, which will be noticed presently, were also excluded from the inheritance because they were aliens. Such facts, therefore, show a total failure of heirs, and if there were no other facts they would also show that the lands had escheated to the people of the State."], "id": "780c03d3-edd3-4ca2-a855-2dc76bb07b9b", "sub_label": "US_Terminology"} {"obj_label": "Alienage", "legal_topic": "Immigration", "masked_sentences": ["The distinction in the Century Dictionary of an \u201c inhabitant \u201d from a \u201c transient visitor \u201d accurately applies to the present case in view of the description of Patrick Cassidy in the passport as a \u201c temporary visitor.\u201d Regardless of his present intentions to remain here, he is subject to the terms of his admission to this country and the power of the United States Government to deport him. alone does not disqualify an administrator, but there must be adequate proof of his being an inhabitant. (Tanas v. Municipal Gas Co., 88 App. Div. 251, 259.)"], "id": "4de7c87d-245b-4e29-bc66-dd6d8ee98a1e", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*473\u201cIn evaluating whether a statute violates the equal protection clause a court normally applies a \u2018rational basis\u2019 test to determine whether the varied treatment of separate classifications of citizens \u2018rests on grounds wholly irrelevant to the achievement of the State\u2019s objective\u2019 (McGowan v Maryland, 366 US 420, 425). Where a statute\u2019s application differentiates on the basis of race, or nationality, however, the classification is deemed suspect and a strict scrutiny test must be applied to determine whether the challenged law is \u2018necessary to promote a compelling governmental interest\u2019 (Shapiro v Thompson, 394 US 618, 634)."], "id": "6b2f5455-7290-46b5-a8ec-cca443d8db35", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201c \u2018[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.\u2019 \u201d (Cheeseman v Bellacosa, 130 AD2d 920, 922 [3d Dept 1987], quoting San Antonio Independent School Dist. v Rodriguez, 411 US 1, 60-61 [1973, Stewart, J., concurring].) The instant plaintiffs do not allege that the state legislature\u2019s intent in implementing the supermajority requirement of the tax-cap was based on impermissible considerations such as race, religion, or gender. Rather, plaintiffs allege that the challenged provision interferes with a \u201cfundamental liberty\u201d related to voting. However, the plaintiffs\u2019 argument suffers from the same infirmities as identified in Brenner, specifically, that there is no allegation of discrimination against a preexisting classification of people because the voters classify themselves, and only after they vote in secret. As noted by the defendants,"], "id": "15036ed6-0a1f-4dba-b84e-c8e8dc97ce70", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The act was subsequently amended by chapter 38 of the Laws of 1875, which does not seem to have changed the *440phraseology of the act of 1874 in any material particular. There was a further amendment, by chapter 111 of the Laws of 1877, which does not appear to. have any bearing upon this case, as it seems to,affect only the cases of \u201cany citizen of this State,\u201d and provides that the title of such cannot be impeached by reason of the of any person from or through whom such- title may have been derived."], "id": "adb57b2e-ee9e-4735-b7ab-544912026f79", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The present situation, indeed, seems to me to be one for which the legislature intended to furnish the\u00a1 precise relief which this petitioner asks. If the respondent had applied for and obtained letters testamentary, being at the same time a non-resident alien, the Surrogate could, undoubtedly, upon proper application, have revoked such letters and removed him from office, even in advance of any exercise or at- . tempted exercise on his part of his functions as such executor (Code Civ. Pro., \u00a7 2685, subd. 1). The status of a person appointed by a will as testamentary trustee, and disqualified from acting as such by reason of and non-residence, is practically the same as that of an executor, who, though similarly disqualified, has in fact obtained letters in the absence of opposition."], "id": "8b18c211-3ec5-4b0c-91d9-f003b6338917", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["This case is distinguishable from Yoc-Us v. Attorney General, 932 F.3d 98 (3d Cir. 2019), on which Rivera relies, because in that case it was local law enforcement who conducted an investigation during an unrelated stop. See id. at 105 (\u201cAbsent such authorization, local officers are discouraged from involving themselves in immigration matters.\u201d (citation omitted)). Moreover, the officer in Yoc-Us lacked \u201creasonable suspicion that any of the passengers were engaged in any criminal activity or that there were any safety concerns to address.\u201d Id. at 106. In this case, duly authorized ICE officers investigated Rivera\u2019s alienage after stopping the van based on reasonable suspicion."], "id": "2347e476-cb72-4977-89b5-306c625ec555", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["But even if this were not so and citizenship were not a constitutional qualification of a juryman, nevertheless it is of such magnitude and importance as to justify a new trial when the objection is not discovered in the exercise of reasonable diligence until after the trial. The statutory qualifications of a juryman are rarely inquired into, but on the contrary it is uniformly assumed that every juryman summoned is a citizen and otherwise generally *383qualified as required by statute. The examination on voir dire is almost universally directed to his bias, prejudice and partiality and it is not strange that neither the district attorney nor the defendant\u2019s counsel asked the jurymen in this instance if they were citizens. In the face of an almost universal pract'ee of accepting the persons chosen by public officers to serve as jurymen as statutably qualified, it would be straining for a reason not based upon experience to say that the defendant should have asked the jury in this instance whether or not they were citizens. The question of age is sometimes brought out in the examination by counsel but usually because of the appearance of some juryman, but there is nothing in the appearance of an ordinary man to indicate whether or not he is a citizen. A man above or below the required age or one lacking the property qualifications (People v. Cosmo, 205 N. Y. 91) may make an excellent juryman. These are formal prerequisites. But not so with the qualification of citizenship. There is no presumption that an alien owing allegiance to a foreign government can act acceptably where the life of a citizen is at stake. A jury entirely made up of those not qualified as to age, residence or property may still render an impartial and just verdict but one made up entirely of aliens to try a citizen is fundamentally obnoxious. And if it is proper to convict of homicide with one alien, where shall the line be drawn when the number of those disqualified by becomes sufficiently serious to vitiate the verdict? The defect in the personnel of the jury in this instance is too grave and profound to pass over with a mere expression of opinion that the defendant ought to have discovered the disqualification before trial. We pride ourselves that under our judicial system a plea of guilty to a charge of murder in the first degree will not be accepted and that however guilty the accused may appear to be, he is presumed to be innocent and is entitled to a fair and impartial trial and to have Ms guilt established beyond a reasonable doubt, and it would seem like a travesty indeed on these principles to hold that he can have such a trial when one or more of the jurymen are aliens and to call his conviction under such circumstances a \u201c judgment of his peers.\u201d See 18 L. R. A. 476; 50 L. R. A. (1914) (N. S.) 973. Motion for a new trial granted."], "id": "53bb3c53-906a-48e2-9c48-8af739342dee", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Hesse Cassel having become a part of Prussia in 1866, its citizens thereby became Prussian subjects. The above treaty became merged in the one existing at the time between Prussia and the United States, which was concluded in 1828 and which is still in force and effect. It provides: \u201c Where on the death of any person holding real estate within the territories of the one party such real estate would by the laws of the land descend on the citizen or subject of the other, were he not disqualified by , such citizen or subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation and exempt from all duties of detraction on the part of the government of the respective states.\u201d"], "id": "58ecf9b6-414b-44d6-b209-cb22805252ff", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*833The Human Rights Law includes a limited exception permitting discrimination on the ground of or citizenship status, when such discrimination \u201cis required or when such preference is expressly permitted by any law or regulation of the United States.\u201d (Administrative Code \u00a7 8-107 [14].) Presumably relying on this exception, defendant argues that \u201cthe only reason and motivation behind the termination notices were compliance with Federal Statute and to avoid civil and criminal penalties.\u201d To support this argument, defendant cites solely to the federal statute, 8 USC \u00a7 1324 (a) (1) (A) (iii), which subjects a person to criminal penalties if he or she \u201cknowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.\u201d Defendant, however, cites no federal or New York legal precedent holding that the federal statute either requires a landlord to verify a tenant\u2019s immigration status, or prohibits a landlord from renting an apartment to a tenant who lacks legal immigration status.1"], "id": "c127c6f4-5c0e-4057-8e12-d2860c1deb3a", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\"We come now to a consideration of the so-called \u201c Turn-Over Directive.\u201d This instrument recites the finding of , heretofore shown to be erroneous, and demands of the trustee the immediate delivery of the assets comprising the principal of the trusts. Here a different situation prevails, for unlike the vesting of right, title and interest, in the case of a TurnOver Directive, as in the case of a vesting of the res, the court has no power to disturb the finding and no alternative except to direct compliance with the demand (Zittman v. McGrath, 341 U. S. 471; Kahn v. Garvan, supra; American Exch. Nat. Bank v. Garvan, 273 F. 43, affd. 260 U. S. 706, sub nom. Simon v. American Exch. Nat. Bank)."], "id": "738871a4-251e-4cb1-96ef-41b8675b29d1", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The general rule gives way, however, when a statute classifies by race, or national origin. These factors are so seldom relevant to the achievement of any legitimate State interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy \u2014 a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling State interest (McLaughlin v Florida, 379 US 184, 192 [1964]; Graham v Richardson, 403 US 365 [1971]). Similar oversight by the courts is due when State laws impinge on personal rights protected by the Constitution (Kramer v Union School Dist., 395 US 621 [1969]; Skinner v Oklahoma, 316 US 535 [1942])."], "id": "da2181f3-781f-4251-b507-61510c1eeb13", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The United States Supreme Court has made it clear that the label of \u201csuspect class\u201d is not one that should be lightly imposed simply because a class has faced some discrimination and disadvantage. (Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313.) A \u201csuspect class\u201d, according to the Supreme Court, is one that has been continuously subjected to unique disabilities on the \u201cbasis of stereotyped characteristics not truly indicative of their abilities.\u201d (Massachusetts Bd. of Retirement v Murgia, supra, at 313.) Such a label has been applied to classes such as race, and national origin, but not to the mentally incompetent. (See, Cleburne v Cleburne Living Ctr., supra, at 440.)"], "id": "047a4cad-43d8-4f7d-96d1-d234ecb34e67", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The classifications created by the statute are not based on race, , age or nationality and, therefore, the strict scrutiny test to determine whether the challenged law is \"necessary to promote a compelling governmental interest\u201d is not indicated. (Shapiro v Thompson, 394 US 618, 634.) Needed is a \"rational basis\u201d test to determine whether the varied treatment of separate classifications of citizens \"rests on grounds wholly irrelevant to the achievement of the State\u2019s objective.\u201d (McGowan v Maryland, 366 US 420, 425.) When a State regulates a problem it is not under any obligation to regulate all phases of it or every class of acts or actors involved in it (Williamson v Lee Opt. Co., 348 US 483, 489 [1955]); on the contrary, the State may regulate partially or one step at a time without violating the 14th Amendment\u2019s equal protection clause. (Williamson v Lee Opt. Co., supra.)"], "id": "f11e70e1-1936-43bb-834f-adc9e6e524c6", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\"The general rule gives way, however, when a statute classifies by race, , or natural origin. * * * [T]hese laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. * * * Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution.\u201d"], "id": "fc5baee7-bf74-4be6-b45e-789705fe1dea", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["If the statute denied the benefits to all aliens, it would be unconstitutional under the principle enunciated in Leger, Takahashi and Yick Wo (supra). But the statute does not deny the benefits to aliens because of their . Indeed, as the facts show, the plaintiff, an alien, has already been the beneficiary of two years of assistance. The Education Law allows an alien to obtain the same higher education in the same institutions as citizens. In imposing qualifying conditions on those who seek the benefits of incentive and scholarship payments, it creates no \u201c invidious discrimination \u201d. The section demands no more of aliens and offers them no less than it does to citizens. Classifications for aid to higher education are not *419unconstitutional. Educational opportunity of the type involved here is not a right essential to a person\u2019s liberty, or freedom of movement, or the right to essentials of life such as food, clothing, equal employment opportunity and the like, the denials of which have been held to be unconstitutional. The benefits plaintiff seeks are not mandated \u2018 \u2018 by rights secured by the Constitution, but are rather dependent upon a legislative decision as to how best to apply limited funds to maximize educational goals \u201d (McClellan v. Shapiro, 315 F. Supp. 484, 494)."], "id": "f2c15d6b-d9eb-496c-8aad-91ef950c7d04", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["By Mr. Senator Seward. I do not understand the counsel for the plaintiff in error to contend that the decision of the supreme court is erroneous in principle, if the court be correct in assuming that the case presented by the special verdict is without the provisions of the act of 1786. The supreme court are sustained by abundant authority, extensively quoted by them, as well in our own as the English courts, that at common law a naturalized citizen cannot take, when he must derive his inheritable blood through an alien ancestor, although the alien ancestor was dead at the time of descent cast; and as the act of William was not until the revision enacted in this state, the plea of was not removed by any statute. But it is contended that the present case is within the *17fifth canon of descent established by the act of 1786, 1 Rev. Laws of 1813, p. 52, 53. And it is insisted that by operation of that canon the descent was cast directly and immediately from the Intestate to Patrick Fitz Simmons, the lessor of the plaintiff. It is a question of sound construction of the statute \u2014is important\u2014and new."], "id": "7e2dfe0d-c768-4776-95ea-ff3e9b967998", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["In respect to , it has been held that the Courts of the United States have not jurisdiction of suits between aliens, but only when an alien or aliens constitute one party.and a citizen or citizens the other. (Mossman v. Higginson, 4 Dallas, 12 ; Montalet v. Murray, 4 Cranch, 46; Hodgson v. Bourbank, 5 Ib. 303; Ward v. Aredoudo, 1 Paine, 410), that is, a *281suit may be brought by an alien plaintiff against a defendant who is a citizen (Chippendale v. Dechenany, 4 Cranch, 306), and vice versa by a plaintiff who is a citizen against an alien defendant. In this case the three alien plaintiffs might sue the Railroad Company, the corporation being, for the purpose of determining the jurisdiction of the United States Court, a citizen, and the other plaintiff as a citizen of this State might sue them as a citizen of another State. Each of the parties, plaintiffs and defendants, possessing, under the construction given to this act by Chief Justice Marshall, the requisite qualifications to sue or be sued in the courts of the United States. It is insisted, therefore, that the Circuit Court of this District has jurisdiction of a suit like this brought against a citizen of another State, by plaintiffs, one of whom is a citizen of this State and the others aliens, and that such being the fact, the right of removal exists. But it does not follow, because the Circuit Court would have had jurisdiction of a suit if it had been originally brought there, that the defendants have a right to remove it there. An alien plaintiff may sue a citizen in the courts of the United States, but if he thinks proper to bring his suit in a State Court, there is no authority for removing it. The right to remove is derived exclusively from the twelfth section of the act, and it makes no provision for such a case. That section provides only for two cases."], "id": "f09605f0-da55-448b-a173-357b79ccf83c", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Despite being formally excluded from joining the ranks of the legal profession throughout his life, Fujii spent much of his career using the courts to advance the rule of law in California, We do not know what more Fujii might have accomplished had he been admitted to the bar, or what others in Fujii's position might have accomplished had our laws not wrongfully excluded or deterred them from becoming lawyers. Such discriminatory exclusion was not only \"a blow to [those who] aspired to become a lawyer only to have their dream deferred on account of their race, , or nationality,\" but also \"a loss to our communities and to society as a whole, which denied itself the full talents of its people and the important benefits of a diverse legal profession.\" (In re Hong Yen Chang (2015) 60 Cal.4th 1169, 1175, 185 Cal.Rptr.3d 1, 344 P.3d 288.) Our Fujii opinion observed that \"[t]he only disqualification urged against Sei Fujii is that of race.\" ( **490Fujii, supra , 38 Cal.2d at p. 733, 242 P.2d 617.) This statement rings with special relevance as we consider the motion presented on Fujii's behalf. Fujii's work in the face of prejudice and oppression embodies the highest traditions of those who work to make our society more just."], "id": "6f05a87c-9f52-4544-865a-8faf4f47eb82", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The section last referred to has been amended by chapter 261 of Laws 1874 and chapter 38 of Laws 1875, so as to enable aliens to take lands by descent from naturalized or native citizens as well as from resident aliens. But as these amendments were made after Hafner\u2019s death, and consequently after the rights of all parties had become fixed, they may be at once dismissed. For the same reason chapter 111 of Laws of 1877, which seems to be an amplification of chapter 336 of Laws 1875 and of chapter 513 of Laws 1868, need not be considered. The three last named statutes simply relate to the confirmation of the title of citizens which may be questioned by reason of the of former owners."], "id": "c598aecf-dfa2-46de-8761-9a5b7d2a1353", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["5. These observations apply equally to the other fact to be made out, viz : citizenship or . In the case of Ladd agt. Tudor, before cited, the learned judge noticed the sworn petition as the first piece of testimony of a residence in Mew-Hampshire; next, that the plaintiff had in his writ described the defendant only as cormorant in Massachusetts; and lastly, observed that the plaintiff had not denied the allegation of the petition in any affidavit. I do not doubt, that the fact of citizenship is a fact which may be traversed, and if traversed, is to be inquired into and passed upon by the court, in one or other of its methods of ascertaining facts."], "id": "592d12b1-978f-4988-a7aa-af244e3609f7", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["(1) The \"rational basis\u201d standard or minimal rationality which requires only \"that the State\u2019s action be rationally based\u201d. (Dandridge v Williams, 397 US 471, 487.) (2) A \"strict scrutiny\u201d test which applies to \"suspect\u201d statutes. Representative \"suspect\u201d statutes would be those which discriminate on the basis of \"race, and national origin\u201d (Frontiero v Richardson, 411 US 677, 682). *821(3) Finally, a third \"sliding scale\u201d or middle ground test is evolving which heretofore has focused only on the question of \"a substantial state interest\u201d (San Antonio School Dist. v Rodriguez, 411 US 1, 98). In determining the proper standard, this court first discards the middle ground test. This is a speculative doctrine which so far seems to have been applied only in educational discrimination areas (see San Antonio School Dist. v Rodriguez, supra; see, also, Regents of Univ. of Cal. v Bakke, 438 US 265, 357, n 30 \u2014 [opn of Mr. Justice Brennan])."], "id": "bdae44dd-f214-4a64-8f37-4484c7dc037a", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["These provisions have application when real estate would descend \u25a0on a person incapable of holding the same by reason of , but our examination of this case has taught us that the alien heirs -of Joseph de Sendzemir were capable of taking title to the lands in question, all their disabilities having been removed by our \u00a1statute. Aside from that, however, we have no proof respecting a reasonable time to sell the land and export the proceeds."], "id": "1951a3a6-b536-45f1-95ab-a836a48c88b9", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The recital in the conveyance from Grace Cosby in 1762, is, after such a lapse of time, sufficient evidence of the fact that Governor Corby died shortly after the making of his will in 1735; although the date of the probate of that will *282held under such leases, although there had never been any actual possession of the premises in question in that suit, under the conveyance which was presumed to have been so executed. See also Beal\u2019s Lessee v. Lynn, 6 Harr. & John. Rep. 336. The case now under consideration is certainly a much stronger one than the case of Jackson v. Lunn, from the fact that a part of the patentees were witnesses to Gov. Cosby\u2019s will, devising the manor as having been conveyed to him by them and their associates. The fact that the owner of this part of the manor was for many years previous to his death, supposed to be insane, accounts for no claim to the premises having been made by him, and of there being no attempt to settle upon this part of the manor previous to the revolution. His sister also must have been far advanced in years at the time of his death ; as her son was old enough to be the prime minister of England in 1767. And the disability of not being, removed until 1790, accounts for the fact that she did not attempt- to exercise any acts of owership over this part of the manor during her life."], "id": "dcf69d7a-06ed-42c9-8682-2d110d732f39", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Petitioner\u2019s motion for a restraining order pending the outcome of this action must be denied. Petitioner has failed to demonstrate that the pilot program denies the people of Richmond County equal protection under the Constitution. The constitutional guarantee of equal protection provides that no person shall be denied the equal protection of the law of this State or any subdivision thereof (see, NY Const, art I, \u00a7 11). It has long been held that there is no denial of equal protection of the laws if the differentiation made rests on some rational consideration and is not palpably arbitrary. (See, Gleason v Gleason, 26 NY2d 28.) Additionally, the challenged statute or rule must invidiously deny one class of individuals a substantial benefit available to another class. (See, People v Kennedy, 128 Misc 2d 937; People v McMillen, 80 AD2d 966.) It is also well established that where there is neither a suspect classification nor an infringement of a fundamental right, a classification will be sustained as long as there is a rational relationship between the classes established and a legitimate governmental interest which is sought to be achieved. (See, Matter of Campagnola v McGuire, 88 AD2d 577.) At bar the entire citizenship of Staten Island is not one which is traditionally deemed to be a suspect class, i.e., based on race, or nationality. (See, Matter of Joseph LL., 97 AD2d 263.) Nor has it been held that citizens have a constitutional right to fire protection. (See, Helman v County of Warren, 67 NY2d 799.) Applying the above standards to the instant case, it is clear that respondents\u2019 decision to implement the pilot program must be upheld as rationally related to a legitimate government purpose and interest. It is beyond cavil that the health and safety of the citizenry represents a legitimate government purpose. As such, sound cost effective fire protection principles as put forth by the pilot program are neither discriminatory nor irrational and clearly further a governmental interest."], "id": "4fb75a6a-b378-4881-b7a8-740f3ecf67f2", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["Mobile food vendors who hold multiple permits are not members of any suspect class recognized by the United States Supreme Court or New York law. Moreover, a law which regulates the right to sell food in public places does not impinge upon fundamental rights, including the right to pursue one\u2019s livelihood. (Story v Green, 978d 60, 62, supra; Collis v Niskayuna, 178 AD2d 868, 869, supra.) Therefore, when a statute neither impinges on a fundamental right guaranteed by the Constitution nor uses a classification based on a suspect criterion such as race, nationality, or gender, the law generally will not be found to violate the Equal Protection Clause unless it has no reasonable or rational basis.- (Story v Green, 978d, at 62, supra.) The statute will be sustained if the Legislature could have reasonably concluded that the challenged classification would promote a legitimate State purpose. (Supra.)"], "id": "d0a646ad-5b0f-436e-afc7-0e656435356d", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["The sister, Fanny, not being a male, took her share which was one-eighth under the act of 1874, no deposition being required of her. She was a non-resident alien' and died. In *4421878, leaving as \u00a1her only heir, a son. At her death the statute of 1874, as amended by chapter 38 of the Laws of 1875, was in force. Chapter 111 of the Laws of 1877 does not seem to have any bearing, .as it apparently relates only to citizens of this State, enabling them to take notwithstanding the of some ancestors. Her son and only heir, Frederick Hanham, was a citizen and resident of Great Britain. Ho provision seems to be made for the alien heir of a non-resident alien taking, and I think her share escheated upon her death. See Stewart v. Russell, 91 App. Div. 310; Stamm v. Bostwick, 129 N. Y. 48."], "id": "1fa2d021-1e1a-41b7-bfb8-73a25a8227d1", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["This general deference to legislative classifications gives way if a statute contains a classification that impinges on the short list of personal rights protected by the Constitution or a suspect classification, such as race, , or national origin.7 A right is fundamental if it is explicitly or implicitly guaranteed by the Constitution.8 And a suspect class is comprised of members that possess either an \"immutable characteristic determined solely by the accident of birth,\"9 or have been \"saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.\"10 In those situations, a statute is subject to strict scrutiny and will be sustained only if it is narrowly tailored to serve a compelling state interest.11"], "id": "80f7cba6-42a9-4384-960a-6ceedd0f1853", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*586The second test commonly is referred to as the \"strict scrutiny\u201d test. This test is employed if a classification is deemed to be \"suspect\u201d or if a \"fundamental interest\u201d is involved. \"Identified as suspect are classifications based on , natural origin and race. Fundamental interests include voting, travel, procreation, the right of free speech, the right of a criminal defendant to appeal and perhaps, the right of privacy.\u201d (Citations omitted.) (Alevy v Downstate Med. Center, supra, p 332.) The strict scrutiny test, as its name suggests, requires the court to ascertain whether the challenged legislation is promoting a compelling State interest."], "id": "7fb7dade-c589-44bf-8b6e-d8c87e862a0d", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\"Where, however, a statute affects a 'fundamental interest\u2019 or employs a 'suspect\u2019 classification, the strict scrutiny test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. Identified as suspect are classifications based on (Matter of Griffiths, 413 US 717; Sugarman v Dougall, 413 US 634; Graham v Richardson, 403 US 365), national origin (Hernandez v Texas, 347 US 475; Takahashi v Fish & Game Comm., 334 US 410, 418-420), and race (Loving v Virginia, 388 US 1, supra; McLaughlin v Florida, 379 US 184, supra). Fundamental interests include voting (Dunn v Blumstein, 405 US 330; Harper v Virginia Bd. of Elections, 383 US 663), travel (Shapiro v Thompson, 394 US 618), procreation (Skinner v Oklahoma, 316 US 535), the right of free speech (Police Dept, of Chicago v Mosely, 408 US 92), the right of a criminal defendant to appeal (Williams v Illinois, 399 US 235; Griffin v Illinois, 351 US 12) and, perhaps, the right of privacy (see Roe *483v Wade, 410 US 113; Eisenstadt v Baird, 405 US 438).\u201d (Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 332.)"], "id": "dd2f4960-bbc3-4afb-9ea5-b1617f67b64f", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["*357The persons seeking their rights to distribution are the brothers and sisters and the descendants of deceased brothers and sisters of Dorothea Beck, the decedent herein, all of whom are citizens of the Empire of Germany. The fact of relationship of the parties to the intestate is not disputed, the sole contention being that because of the of said parties they are not entitled to participate in the division of the real estate or the surplus moneys arising from the sale thereof."], "id": "5f280b16-04ab-487d-a96b-43cd10a200f1", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["While perhaps the question was not directly decided, but rather assumed in Von Schwerdtner v. Piper (23 F. [2d] 862), it appeared that one Frederick Jonathan Von Schwerdtner, a subject of Germany, residing in 1914 in Maryland, went to Germany that year, entered the German army, and remained in Germany until his death. His last will and testament was admitted to probate in Maryland. The decedent\u2019s wife Was named in the will as executrix, but she was disqualified on account of and administration was granted to the son, according to the opinion, \u201c who, having been born in this country, is a citizen of the United States.\u201d"], "id": "be07b04a-cd6e-49d6-bc9a-b1a5cde01002", "sub_label": "US_Terminology"} {"obj_label": "alienage", "legal_topic": "Immigration", "masked_sentences": ["\u201cNo owner of a dwelling to which the benefits of this section shall be applied . . . shall directly or indirectly deny to any person because of race, color, creed, national origin, gender, sexual orientation, disability, marital status, age, religion, or citizenship status, or the use of, participation in, or being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program and the section 8 housing certificate program, 42 U.S.C. 1437 et seq. . . . any of the privileges or services incident to occupancy therein\u201d (Administrative Code \u00a7 11-243 [k] [emphasis added]). Nothing in the federal regulations governing the Section 8 voucher program \u201cis intended to pre-empt operation of State and local laws [such as the J-51 law] that prohibit discrimination against a Section 8 voucher-holder because of status as a Section 8 voucher-holder\u201d (24 CFR 982.53 [d]). The plain language of the J-51 law unequivocally demonstrates that J-51 was intended to prohibit owners who receive the benefits of a J-51 tax abatement from discriminating against tenants who, among other things, qualify for Section 8 rent subsidies. In Rosario v Diagonal Realty, LLC (9 Misc 3d 681 [2005], affd 32 AD3d 739 [2006], affd 8 NY3d 755 [2007]), the court was not persuaded by prior decisions which emphasized the fact that the rent-stabilized tenant was a Section 8 recipient since the inception of his or her tenancy; rather, the court found (9 Mise 3d at 704) that, if a distinction were made between tenants who were receiving Section 8 benefits from the outset of their tenancies and those who received such benefits some time thereafter, \u201cit would create an inequitable result, by which some section 8 recipients residing in rent-stabilized apartments would have greater protections than others.\u201d This court agrees."], "id": "2929c1a5-c3cb-4c7c-8406-164eac4fe441", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Notwithstanding an employer\u2019s exposure to certain risks under IRCA, in certain industries, such as in the demolition segment of the construction industry, that risk is insufficiently high to deter the hiring of undocumented immigrants. (See Brian Kates, Building Boom-Doggle, At the Mercy of Contractors, Daily News, May 29, 2007, at 9, col 1.) Thus, certain segments of the construction industry are replete with undocumented aliens. (See Developments in the Law \u2014 Jobs and Borders, Legal Protections for Illegal Workers, 118 Harv L Rev 2224, 2224 n 4 [Department of Labor and Immigration and Service studies find that 39% of certain construction workers were undocumented].) Given the status of the industry, it seems somewhat disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out. Indeed, in the present case, F & T could have instructed its general contractor not to subcontract with outfits who did not comply with federal regulations, and Top 8 could have insisted that all its subcontractors comply with federal regulations as well."], "id": "f2d32c6f-8649-4f62-87cb-bfc11484ca91", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Section 1016.5, subdivision (a) states that prior to acceptance of a guilty plea or no contest plea to any offense punishable as a crime under state law, the court shall administer an advisement on the record to the defendant that states: \"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\" (\u00a7 1016.5, subd. (a).) If the court fails to advise the defendant as required and the defendant shows that his guilty or no contest plea may have the consequences of deportation, exclusion, or denial of naturalization, the court on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or no contest, and enter a plea of not guilty. (\u00a7 1016.5, subd. (b).)"], "id": "995880ef-1aa6-4cb1-b602-0699cc899bfa", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["The Executive Branch has similarly applied the interdepartmental - waiver doctrine since at least the Comptroller of the Treasury\u2019s 1899 decision in Damage to a Vessel. See 6 Comp. Dec. at 74\u201375; see also Replacing Property Borrowed from Another Department, 10 Comp. Dec. 222, 224\u201325 (1903); Ownership of Public Property, 22 Comp. Dec. 390, 390 (1916). Executive agencies have considered and applied the doctrine when promulgating regulations, guidance, and legal opinions. See 32 C.F.R. \u00a7 536.27(g) (subsection of Department of the Army regulations about claims against the United States, stating that \u201c[n]either the U.S. government nor any of its instrumentalities are proper claimants due to the interdepartmental waiver rule\u201d); U.S. Dep\u2019t of Energy, DOE 4300.1C, Real Property Management (June 28, 1992) (agency guidance noting that \u201c[t]he Interdepartmental Waiver Doctrine should be considered whenever there is a possibility of outgranting property to other Federal agencies\u201d); Office of General Counsel, Immigration & Service, U.S. Dep\u2019t of Justice, Missing GSA Painting, Op. No. 93-29 (May 5, 1993) (describing the doctrine as \u201cthe substantive law of the United States\u201d). The interdepartmental-waiver doctrine thus establishes the general default rule for allocating the costs of repairs among departments and agencies."], "id": "3d4705c4-ff89-4ebd-909a-d45c35423f45", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The court also asked Gonzalez if he read and understood his change of plea form. Gonzalez answered, \"Yes.\" Gonzalez's change of plea form appears in the record. As pertinent here, the form states: \"I understand that if I am not a citizen of the United States a plea of Guilty or No Contest can or will result in removal or deportation, exclusion from admission to this country, and denial of .\" Gonzalez's initials appear in the box next to that statement."], "id": "3b64cd17-ba1e-4328-870a-31968b01492e", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Section 5428 makes it unlawful for any person (1) to knowingly use any certificate of procured through fraud or by false evidence, or issued by the clerk or any other officer of the court without any appearance and hearing of the applicant in court and without lawful authority; or (2) to falsely represent himself to be a citizen of the United States, without having been duly admitted to citizenship, for any fraudulent purpose whatever."], "id": "fe93ed50-6048-47bf-8ea4-f6f6a82a1a34", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["But I have my doubts whether the final record of is not conclusive upon me. I feel the force of the argument that if it is so, foreigners may be admitted as citizens in fraud of the law, but that can be remedied by the court, in wMch the proceeding was had, correcting its own record. Bnt the cases are very strong that in tMs court that record must be regarded as conclusive. In Campbell v. Cordon (6 Cranch), it was decided that the naturalization was valid, though the record contained no adjudication of his admission, nor that he had behaved as a man of good moral character. Justice Washington says, \u201cit must be presumed that the court before whom the oath was taken was satisfied; that the oath when taken amounts to a judgment of the court.\u201d In Stark v. Chesapeake Insurance Co. (7 id.), it is reported to have been decided that the judgment admitting the citizen is conclusive that all the prerequisites have been complied with."], "id": "78f79661-61a4-4dc1-b91b-c72c243877b9", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["As relevant here, the plea form contained a standard immigration advisal (paragraph 14). O'Connor modified paragraph 14 by crossing out the word \"or\" and handwriting the word \"and\" in its place and crossing out the word \"may\" and handwriting the word \"will\" in its place. The modified paragraph 14 read, \"I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or and denial of may will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest).\" In addition to Novoa signing the change of plea form, O'Connor signed it as well. In doing so, O'Connor acknowledged that he was Novoa's attorney, he personally read and explained the contents of the change of plea form to Novoa, he observed Novoa sign the form, and he concurred with Novoa's guilty plea."], "id": "99bb3289-ad1d-47c9-8617-936e069a66a0", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["In Open court, counsel for the petitioner protested the omission of the name of Matthias Reilly. After presenting a brief but impassioned version of the facts and circumstances, he moved that the petitioner\u2019s petition \u201c be restored to Your Honor\u2019s calendar forthwith.\u201d In opposition, Marvin Stang, Esq., the agency\u2019s Examiner, advised the court that the \u201c case had not been closed \u201d and \u201c since Mr. Reilly is not here at the present time that his application be adjourned without date.\u201d I reserved decision on the petitioner\u2019s motion and the Service\u2019s cross motion."], "id": "e57ae2ae-6f3e-4a63-ae77-1f4dbc75f63c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["There is no dispute here that the crime to which Hernandez pleaded guilty, possession of methamphetamine in violation of section 11378, subjected her to mandatory deportation. Currier was therefore obligated under Padilla to advise her, before she pleaded guilty, of that specific consequence. Hernandez stated in her declarations that Currier did not so advise her. True, Hernandez initialed the paragraph on the Tahl form stating she understood that if she were not a citizen, her *907\"conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\" (Italics added.) The Tahl form, however, did not advise that her specific plea would result in mandatory deportation. Although the Tahl form contains the word \"will\" and not \"may,\" it, standing alone, is akin to the \"generic advisement\" required of the court under Penal Code section 1016.5, subdivision (a) addressed in Patterson, supra, 2 Cal.5th at page 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169, and it similarly \"is not designed, nor does it operate, as a substitute for such advice\" of defense counsel regarding the applicable immigration consequences in a given case. ( Ibid. )"], "id": "8db8c793-1ae5-44b5-b09d-82183e4731d4", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The government moved for summary judgment, arguing that Jaffal \u201cha[d] no evidence to prove two essential elements of his claim: 1) Plaintiff cannot establish that a legal separation had occurred at the time of his father\u2019s ; and 2) Plaintiff cannot establish that his father had legal custody of him at the time of his father\u2019s naturalization.\u201d 28 The Court agreed, reaching only the first issue, legal separation. It ruled that the Jordanian Divorce \u201con which Plaintiff relies to meet the legal separation requirement is not entitled to recognition under Third Circuit law.\u201d 29 It found that under Perrin v. Perrin, 30 our precedent requires that the divorce or separation"], "id": "e6018dd0-580d-4fc7-8f9b-45b84bbe96c1", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["He contends that he had little knowledge of English and that he thought he had to be placed in jail in order to be arrested. The court does not believe there is any merit to these contentions. The evidence discloses that when the Government objected to his first application for , he withdrew the same because, in part, at least, he failed to state that he had been arrested for nonsupport. In this, his second applica*1093tion, he admitted his arrest on the aforesaid nonsupport charge hut denied any other arrest; the Government on subsequent investigation ascertained an arrest for assault second and disorderly conduct. With the forewarning of the Government\u2019s objection to his first application, the petitioner certainly was on notice and was aware of the meaning of the word 11 arrest.\u201d Furthermore, section 312 of the Immigration and Nationality Act (U. S. Code, tit. 8, \u00a7 1423, subd. [1]) requires \u201c an understanding of the English language, including an ability to read, write and speak words in ordinary useage in the English language\u201d. This court believes that the word \u201c arrest \u201d is one used in ordinary conversation. An applicant who is unable or claims to be unable to understand its meaning fails to meet the requirements of the law. (Matter of Vasicek, 271 F. 326 ; Matter of Scriver, 9 F. Supp. 478.)"], "id": "61b8e96e-7752-48a7-af9f-d20edec847c3", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The petition for was filed on May 4, 1961. At a hearing held in December of 1962 upon the petition, it was established from petitioner\u2019s testimony and from the record of her hospitalization in 1958 at a mental institution that petitioner had engaged in homosexual activities in her native Denmark with a girl friend of her age and that this relationship continued for about six years, terminating in 1947, one year prior to petitioner\u2019s emigration to the United States. It was further established that she resumed her homosexual activities in 1950 and that they continued to the hearing date, the activities having been had with two women. During this time petitioner was married and divorced, the marriage act never having been consummated."], "id": "5fb56154-afe9-40de-b36b-eee41729b85b", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["even more so than a proceeding, a Panel proceeding\u2014on which would turn the government\u2019s assumption of control of significant amounts of private property\u2014would present sufficient inherent adverse- ness between the legal interests of the government and a private party to satisfy Article III, even if the private party does not appear to protect its interests. But we are not confident that we understand sufficiently the economic circumstances that would give rise to a petition, or the manner in which the compressed time frame for Panel consideration of a petition would unfold in practice, to deem such an argument persuasive. Whatever the answer in the case of a company that simply failed to appear before the Panel, a proceeding concerning a financial company that had affirmatively consented to its placement in FDIC receivership would seem to lack the adverseness necessary to support the jurisdiction of an Article III tribunal. Such a company would not have interests that are \u201cpresent[ly] or possibl[y] adverse\u201d to those of the government. Musk- rat, 219 U.S. at 357. Accordingly, a Panel proceeding concerning such a consenting company likely would not present \u201cthe honest and actual antagonistic assertion of rights\u201d necessary to \u201csafeguard . . . the integrity of the judicial process.\u201d United States v. Johnson, 319 U.S. 302, 305 (1943) (internal quotation marks omitted). Indeed, Panel consideration of a petition concerning such a company would seem to raise the same sorts of concerns as an advisory opinion, requiring \u201clegal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument.\u201d United States v. Fruehauf, 365 U.S. 146, 157 (1961). There- fore, we are concerned that a Panel proceeding concerning a consenting company would not qualify as a justiciable \u201ccase or controversy.\u201d See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 47\u201348 (1971) (case dismissed based on lack of case or controversy where both sides argued that an anti-busing law was constitutional, thus \u201ccon- front[ing]\u201d the Court \u201cwith the anomaly that both litigants desire precise- ly the same result\u201d); Brown v. Watkins Motor Lines, Inc., 596 F.2d 129 (5th Cir. 1979) (court lacked jurisdiction to reduce attorney\u2019s fee to which plaintiff\u2019s attorney and victorious plaintiff had agreed where no party was challenging the fee). And although the Court held in Pope that a contractor\u2019s statutorily authorized suit was justiciable even though the"], "id": "12bfe786-06ae-48cb-81b7-f667d4ebd662", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["The respondent stands convicted of filing a false application with the Department of Immigration and Service, in violation of 8 USC \u00a7 1255a (c) (6) which provides as follows: \"Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18 * * * or imprisoned not more than five years, or both.\u201d"], "id": "3e61a80a-6001-446d-acb3-63b84365ba3e", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Looking first at Jamaica, we found that \u201c[a]t the time of the petitioner\u2019s mother\u2019s in 1984, Jamaica recognized a right to a judicial separation which Jamaican law distinguished from absolute divorce.\u201d 52 We concluded \u201c[t]here [wa]s no evidence that any Jamaican court ever issued a decree of judicial separation to the petitioner\u2019s parents,\u201d 53 nor had any Jamaican court issued an absolute divorce. Having failed to find evidence of a legal separation under Jamaican law, we then looked to Pennsylvania law but found that no separation had occurred under Pennsylvania law either. We therefore concluded that Morgan\u2019s parents had not been legally separated under the statute. We held that legal separation under \u00a7 1432(a) occurs \u201cupon a formal governmental action, such as a decree issued by a court of competent jurisdiction that, under the laws of a state or nation having jurisdiction over the marriage, alters the marital relationship of the parties.\u201d 54 We clarified, however, that \u201c[t]he formal action need not necessarily be a judicial"], "id": "c1183b76-a590-4f80-87e6-b79ac7d4811b", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Effective in 1977, the Legislature required courts to provide additional protections for noncitizen defendants: \"Prior to acceptance of a plea of guilty ... to any offense punishable as a crime under state law ... the court shall administer the following advisement on the record to the defendant: [\u00b6] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\" (\u00a7 1016.5, subd. (a).)"], "id": "11be94c5-7cc1-4a2d-891e-762ae65c5aa1", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The court denied the motion. In doing so, the court stated that it found Guerrero's testimony \"more than credible.\" The court determined that Guerrero informed Gonzalez on at least two occasions, once in a group setting and another individually, that he would be deported. The court also noted that the change of plea form expressed that a plea of guilty would \" 'result in removal, deportation or exclusion from admission to this country, and a denial of .' \" The court found Gonzalez understood that if he pled guilty, then he would be deported. In addition, the court determined that count 2, which the prosecution dismissed under the plea agreement, carried a four-year sentence and was a factor defense counsel would have considered in negotiating a plea agreement."], "id": "cc344aa0-23a3-4d5b-a52b-d7399be93054", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Respondent states that its purposes are fourfold \u2014 first to defend itself. By this is meant that respondent has been under attack as a subversive organization and some of its energies are necessarily devoted to resisting that attack. This is really not a purpose, though it doubtless consumes time of its executives. Its second purpose is declared to be informational \u2014 it publishes various periodicals which call attention to the immigration laws, to various situations arising in connection with deportation and de proceedings and a service for lawyers interested in such proceedings calling attention to recent decisions in this field. It also provides for lectures on this subject. Its third field is described as legislative which is agitating for repeal of laws on these subjects to which it objects. Lastly, what it describes as concern with the administration and application of existing laws. This consists of supplying counsel to people threatened with proceedings of this nature if they ask for counsel; assisting\u2019 their counsel if they are attorneys not supplied by the respondent and will accept such assistance; and, seeking moral support for the respondents in these proceedings through publicity. Of 350 deportation cases in which respondent interested itself it supplied counsel in 47. It also maintains a bureau where people in the difficulties referred to can seek advice. The aid described is given to all who apply but the overwhelming majority of those who do apply are people whose stay here is endangered because of communist affiliations. The respondent does seek to be selective in the sense that it gives the greatest attention and aid to proceedings which it believes to be test cases."], "id": "2c7a369a-256d-4979-9322-42d5e5addd0a", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["\"Preparation,\" as relevant here, means \"the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers ....\" ( 8 C.F.R. \u00a7 1.2 (2018).) However, preparation does not include \"service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and procedure.\" (Ibid .)"], "id": "e2ff8b98-8c8c-4057-ad36-88c21355a92e", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The Osborne case was an action brought to restrain the officers of the State of Ohio from collecting from the bank a tax, imposed on one of its branches for doing business in that State without being allowed to do so by the laws thereof, and of course it involved the construction of the law chartering the United States Bank, and was based on the law itself. It may be, as is said in that case, that all contracts made with an institution so chartered would be cases arising under a law of the United States, and still it would not follow that, where the only operation of the law was to provide for the transfer of certain causes of action already existing, those causes of action, when sought to be enforced by the assignee, would all be cases arising under such law. As well might all actions of ejectment, in which the source of title was an United States land patent, be cases arising under an United States law. As well might all real-estate actions brought by a foreign-born citizen, after , be such cases. Suppose the assignee of a bankrupt should assign a mortgage, or any chose of action, that had been previously owned by the bankrupt and came into the hands of- the assignee as assets, would it follow that the suit on such assigned claim must be brought in the United States courts ?"], "id": "cad87918-19d6-45b3-b833-af0ce011f078", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The record contains the general admonishments given to Appellant during the plea proceedings, which include the following: \"[I]f you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial of under Federal law.\" Appellant initialed the admonishment, indicating that he understood it."], "id": "54a3f6e0-323f-4255-adb7-eab8d7174662", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Defendant also stresses that Social Services Law \u00a7 122, as part of New York\u2019s Welfare Reform Act of August 4, 1997, was enacted pursuant to and in furtherance of the policies articulated in the PRWORA. Defendant points to the preamble to the PRWORA, which provides, in part, as follows: \u201cWith respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits * * * a State that chooses to follow the Federal classification in determining the eligibility of such aliens for public assistance shall be considered to have chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy.\u201d (8 USC \u00a7 1601 [7].) However, this pronouncement from Congress does not serve to save the statute from a constitutional challenge. The Supreme Court in Graham (403 US 365, 382, supra) held that \u201c[a]lthough the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their , Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.\u201d (Emphasis supplied.)"], "id": "45c0985b-e8a0-42e4-a30b-0764b19c7764", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["In the case of Wm. Gladhill, (8 Met. Rep. 168,) the question was as to the right of the police court of Lowell to receive the declaration of intention. The court say, \u201cAs the authority which any state court can have on this subject is derived from the law of the United States, congress alone can prescribe a uniform rule of .\u201d They proceed to examine the law of 1802, and decide that the police court was a court of record within its meaning. (See, also, Towle\u2019s case, 1 Leigh\u2019s Rep. 773.)"], "id": "fa11f35b-10ca-462c-b50e-af0190a51bdc", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["\u201c h. Comment \u2018 \u2018 There is no provision in the law authorizing American consuls to require the posting of a bond by alien applicants for either immigrant or nonimmigrant visas. Numerous suggestions have been received from consuls throughout the world that such authority be given. Others have suggested that consuls be given authority in doubtful or borderline cases to withhold the issuance of visas until confirmation has been received from the Immigration and Service that a bond has been posted in the United States in behalf of the applicant and that such a procedure would materially reduce the number of nonimmigrant applicants for visas who are not bona fide nonimihigrants. \u2018 \u2018 Similar suggestions were received from consuls with reference to applicants for visas who are applying for admission to the United States for permanent residence. The usual sponsor\u2019s affidavits are of no value if the immigrant alien becomes a public charge, since they involve merely a moral obligation and are not enforceable as contracts. In view of certain proposals to be made regarding the power of consuls to refuse visas in practically every case in which the Immigration Service has the right and duty to exclude, it is not believed that consuls will experience the same difficulties of decision in the future. Consequently, the subcommittee does not believe that the power to require bonds will be necessary to consuls. \u2019 \u2019 (P. 643.) Notwithstanding the requirements imposed by the visa division of the State Department and enforced by consular officials abroad which led to the use of the language (in the affidavit of these defendants) upon which the present suit is based, no statute, regulation or rule prescribes that a financial sponsor of *621an immigrant undertake an obligation of the kind which the plaintiff contends was here assumed. The official instructions of the State Department to sponsors (DSL-650-3-30-56), titled \u201cGeneral Information Regarding Visas for Immigration \u201d, read in part: \u201cAffidavit of Support: There are no prescribed forms to be used by persons in the United States who desire to furnish financial sponsorship in the form of a so-called affidavit of support for presentation to the consul on behalf of an immigrant. Each sponsor may furnish a statement in affidavit form to show his financial ability and willingness to contribute to the immigrant\u2019s support, giving due regard to the sponsor\u2019s obligations toward members of his own family and other persons. The statement of the sponsor should include information regarding his income, and where material, information regarding his resources, obligations and expenses and the plans and arrangements made for the applicant\u2019s support in the absence of a direct obligation toward him. To substantiate the information regarding income and resources the sponsor may attach to his affidavit a certified copy or notarized copy of his latest income tax return; a statement from an employer showing the employee\u2019s salary and the length and permanency of employment; a statement from an officer of a bank regarding the sponsor\u2019s account, showing the date the account was opened and the present balance, or by other evidence adequate to establish the financial ability of the sponsor to carry out his financial undertaking toward the immigrant. \u2019 \u2019"], "id": "124f884e-efc2-4ecf-8998-4f1f2f0ddc07", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["3d. That the states had, originally, the power to naturalize; that the provision of the constitution, giving power to congress to establish a uniform rule of , did not exclude the states from naturalizing, although they must follow, in doing so, any rule prescribed by congress. The power is not given to congress at all, but only the power to direct the states in what manner, and according to what rules, they shall naturalize."], "id": "0f4540c8-6271-4630-a84f-7240a3321da4", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["(Cross examined by Van Wyck.) Was in bed at M'Evoy\u2019s and was awakened by the guns, between four and six o\u2019clock. Was very much frightened, and was afraid of being murdered. Would not have been frightened had it not been on the 12th of July. If Orangemen are not stopped in America, America will have cause to dread the consequences. He told others he was afraid of his life. Cannot tell the precise time he went to work. Thinks it was between six and eight o\u2019clock. None in the shop but were aware of the guns. When he went to the police he thought the law would protect him, but it was not there, he had justice; but he could not make the law understand it. M'Evoy\u2019s men ha\u00bf looms where they *91wrought. All heard the guns that were awake. Talked at breakfast about it. Morris said he saw guns at Brady\u2019s and Waugh\u2019s. Witness saw the Orange flag for the first time, between nine and ten o\u2019clock, before Green\u2019s door. It remained there, Nobody was then hurt. They stood around it in procession, and hurraed for king George. Mr. Fagan came out with his paper, and said he had sworn against all monarchs, particularly against George III. and IV. The principal reason why he was afraid and went to the police, was, that he never knew an Orange procession but blood was spilled. Witness offered to swear at the police to their proceedings. The officers could not understand the danger of the catholics. They threatened to tear the popish liver out of them."], "id": "7fe2ac1e-6f42-41f4-a37f-1fbbe47f303d", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Over the past 20 years, changes in federal immigration law have subjected significantly more noncitizens to detention and deportation by virtue of criminal convictions. But at the time the 10-year tolling provision at issue here was enacted by the Legislature, the arrest and detention of illegal aliens for deportation was clearly authorized by federal law. (See e.g. Ojeda-Vinales v Immigration & Serv., 523d 286 [2d Cir 1975]; Trias-Hernandez v Immigration & Naturalization Serv., 528d 366 [9th Cir 1975].) Indeed, the deportation of noncitizens by virtue of criminal convictions was first authorized by the Immigration and Nationality Act of 1917. (See Padilla v Kentucky, 559 US \u2014, \u2014, 130 S Ct 1473, 1478-1480 [2010] [discussing the history of federal laws providing for the deportation of noncitizens because of criminal convictions].) The Legislature obviously could have provided that periods of immigration detention would toll the running of the 10-year period. But, in the court\u2019s view, the Legislature clearly did not do *602so. Courts obviously should not legislate in the guise of interpretation. (McKinney\u2019s Cons Laws of NY, Book 1, Statutes \u00a7 73.) Holding that \u201cincarceration\u201d under the statute would include detention by immigration authorities for the purpose of deportation, in the court\u2019s view, would constitute an impermissible judicial policy judgment rather than an appropriate interpretation of the statute based on the intent of the Legislature."], "id": "d722663b-c1ba-40d3-82e1-8b04f48e0652", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["provide one copy of each of the following, free of charge, if needed by an individual seeking to obtain a form of personal identification described in subsection 1 of this section in order to vote: (a) A birth certificate; (b) A marriage license or certificate; (c) A divorce decree; (d) A certificate of decree of adoption; (e) A court order changing the person's name; (f) A social security card reflecting an updated name; and (g) papers or other documents from the United States Department of State proving citizenship. Any individual seeking one of the above documents in order to obtain a form of personal identification described in subsection 1 of this section in order to vote may request the secretary of state to facilitate the acquisition of such documents. The secretary of state shall pay any fee or fees charged by another state or its agencies, or any court of competent jurisdiction in this state or any other state, or the federal government or its agencies, in order to obtain any of the above documents from such state or the federal government. \u00a7 115.427.6(2). Furthermore:"], "id": "384afc85-4467-469f-971f-bddda08380ca", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["override the Census Act\u2019s protections for covered census information possessed by the Commerce Department. IIRIRA Opinion. The statute at issue prohibited any federal, state, or local government entity or official from restricting any government entity or official from \u201csending to, or receiving from, the Immigration and Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.\u201d Id. at *4 (quoting 8 U.S.C.A. \u00a7 1373(a) (West 1999)). Al- though the opinion rested primarily on a reading of the statute that con- strued the restrictions on \u201cgovernment entities\u201d as not encompassing Congress\u2019s enactment of census confidentiality provisions, see id. at *6, this Office, in support of this conclusion, reiterated that \u201c[i]n light of the federal government\u2019s longstanding commitment to confidentiality in this area, there is every reason to expect that Congress would have spoken with particular clarity if it had intended to cut back on the scope of 13 U.S.C. \u00a7 9(a) in enacting\u201d a new statute. Id. at *11. We thus concluded that \u201cthe absence of a reference in either statute to the other suggests that the text of 13 U.S.C. \u00a7 9(a) should be construed to mean just what it says, and that [the immigration statute] should be understood to have left in place the confidentiality requirement that 13 U.S.C. \u00a7 9(a) establishes.\u201d Id. at 8\u20139 (footnote omitted). In light of this consistent precedent, we would construe section 215 to override the preexisting Census Act protections for covered census infor- mation possessed by the Commerce Department only if the evidence of congressional intention compelled such a conclusion. Here, however, the evidence does not compel such a conclusion. Section 215 makes no reference to the census or the Census Act. And although Congress has amended section 9 of the Census Act on several occasions to establish exceptions, it has not added an express exception for section 215 orders in the wake of that provision\u2019s enactment. Nor is there language in section 215 like that contained in the statute addressed in the 1944 Attorney General opinion concerning the Archivist\u2019s role as custodian of governmental records. There, the statute expressly stated that the authority of the Archivist to take custody of records extended to all records \u201cbelonging to the Government of the United States (legislative, executive, judicial, and other)\u201d and for purposes of carrying out that authority, \u201call\u201d inconsistent federal statutes were repealed. Confidential Treatment of Census Records, 40 Op. Att\u2019y Gen. at 327. By contrast,"], "id": "7741685f-0d17-4708-98a0-bc6982d2389c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["*467The present contention of the husband\u2019s attorneys that he left the marital home in New York with his wife\u2019s consent and with an intention to pay a temporary visit to Poland is completely refuted by the evidence. When he departed from this country in 1931 he took with him all his securities. He left no property behind him here. His letters showed that he was disappointed in not obtaining a position here. Undoubtedly he had strong attachments to his native land. His as an American citizen was of little consequence to him. Soon after his arrival in Poland he acquired what he called a home. He entered into and continued the activities of a permanent resident, became enthusiastic and sentimental over the culture of that country and the business opportunities there and their contrast with America. His intent at the time of his departure in 1931 was plainly to effect a permanent separation and abandonment of his wife accompanied by a fixed and resolute determination not to return to America. His promise to return made to his wife at the time of his departure was, therefore, sheer deceit. The finality of his decision to leave this country forever and to abandon his wife is emphasized in his own words in a letter written in 1936 in which he said: \u201c I have burned all my bridges behind me and have irrevocably decided to stay here for good.\u201d"], "id": "1e1e4559-d37e-4e22-96b3-9abfc4e675f2", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["To grant the request of the Service for an \u201c adjournment without date \u201d is to relegate the petitioner to limbo. The Naturalization Service is an investigatory agency and under administrative law its functions are to investigate and to report \u2014 not to determine \u2014 for the latter is a judicial function. To adjourn indefinitely and presumably only to be revived at the instance of the Naturalization Service, under the circumstances, encroaches upon the judicial prerogative."], "id": "bce25653-69de-437d-ab1b-9926f63a3f24", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["\u201cAs we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose the previous acts of congress provide. The terms \u2018married,\u2019 or \u2018who shall be married,\u2019 do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman who under previous acts might be naturalized, is in' a state of marriage to a citizen,'whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. T-Tis citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, are *239citizens, would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her. citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested. The terms, \u201c who might lawfully under the existing laws,\u201d only limit the application of the law to free white women * * *.\u201d The defendants also contend that the plaintiff does not come within the decision of either of the two foregoing cases, because- on the day of Hafner\u2019s death she was not twenty-one years of age, and for that reason could not, on that day, have been naturalized under the laws existing prior to the act of 1855. This objection has no greater force, if as much, than the objections urged against Mrs. Burton. The plaintiff was no more incapacitated on that account, than Mrs. Burton was by reason of non-residence. Indeed she was not so much, for, if necessary, she. could confessedly have become naturalized under the naturalization acts within a few months after Hafner\u2019s death, while Mrs. Burton could not for five years after her husband\u2019s death. Age of twenty-one years, under the then existing laws, was simply one of the qualifications necessary for an applicant to have, just as it was necessary for him to show a five years\u2019 residence. The plaintiff comes clearly within the reasoning, if not the letter, of the two decisions. The statute says, \u201c any woman,\u201d and not \u201c any woman of twenty-one years of age.\u201d There is no more reason, in considering the general policy of the naturalization laws, why, in case of marriage with a citizen, the requirement of twenty-one years of age should not be dispensed with, than the requirement of a five year\u2019s previous residence. They are both made requirements for the purpose of furnishing evidence of fitness to undertake the duties and responsibilities of citizenship, and one is no more important or necessary than the other. The fact of marriage furnishes evidence of such fitness, and the law says that *240a woman who is capable of lawfully entering into the marriage relation, and does so, marrying a citizen, is fitted to become, and, ipso facto, becomes a citizen. The duties are no more onerous upon her than upon a native female of the same age, and she is still under the same disabilities. Her naturalization simply removes the disability resting upon alienism, and throws around her the protection of the nation. The propriety of this may be urged as a cogent reason in support of such a construction to the act as will give to the wife of the citizen the same protection as it gives to him and to their children. She has linked her destiny with the country by the strongest of ties. Citizenship does not depend upon age. To be qualified as a voter, a citizen must be of the age of twenty-one years, and upwards. On the other hand, infants may be citizens by birth."], "id": "f341f577-bbb2-45ed-a05b-855bc14d3395", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Besides the conversation in court on the subject of immigration and guilty pleas, appellant was advised of the fact each guilty plea could have immigration consequences for him. In the plea form for each separate conviction, appellant placed his initials in a box that stated: \"I understand that if I am not a citizen of the United States, my plea of GUILTY may have the consequences of deportation, exclusion from admission to the United States, and/or denial of or amnesty pursuant to the laws of the United States. I understand that Federal law provides that these consequences are mandatory for certain offenses.\" Also, appellant's counsel, the prosecutor, and the trial court signed off on each guilty plea form acknowledging appellant was fully aware of his rights and the consequences of the plea; and that this was done freely, voluntarily, and knowingly."], "id": "c3e54f66-cf81-4275-9332-7d81b8e50540", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["On September 21, 1978 defendant, then approximately 18 years of age, entered a plea of guilty to manslaughter in the first degree before Honorable John R. Starkey, now retired. On November 17, 1978 he was sentenced to a minimum of 5 and a maximum of 15 years in State prison. The sentence was appealed to the Appellate Division, Second Department, on the grounds of excessiveness. The Appellate Division affirmed, without opinion, on June 11, 1979. Defendant was released on parole on June 20, 1984. Since that time he has been detained in the Immigration and Processing Center detention facilities, pending deportation."], "id": "514754d1-656c-4877-99ad-9409b106e4c9", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["AB 813's legislative history also indicates the Legislature intended AB 813 would be a part of a larger statutory scheme that addresses adverse immigration consequences including, but not limited to, removal proceedings. Specifically, several committee reports include references to another, already existing statute, section 1016.5. (Sen. Com. on Public Safety, Rep. for July 7, 2015 hearing, p. 8; Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), July 6, 2015, p. 2; Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), May 9, 2016, p. 2.) Section 1016.5 requires that a trial court, before it accepts a defendant's guilty or no contest plea to a felony offense, advise the defendant that \"the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\" (\u00a7 1016.5, subd. (a), italics added.) As a Senate committee report regarding AB 813 correctly states, when the court does not give this admonishment, section 1016.5 also authorizes the vacating of the resulting conviction for persons who are no longer imprisoned or legally restrained: \"A"], "id": "d3636c78-5138-4a3d-9f92-1ceabd524ef1", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The law requires as an absolute prerequisite to , that the alien should have declared his intention to become a citizen two years prior to the final action. Did the plaintiff ever thus declare his intentions ? He evidently supposed he had, but that which he supposed to be such preliminary step was not such. It was a mere report of himself, under a law which had been repealed and was, consequently, of no avail. The records of Saratoga county showed that he never declared his intentions there. He might have done that in any other county, and he knew whether he had or not. The fact that he offered no proof on the subject was pregnant with meaning, and must not be overlooked by the jury."], "id": "530bba8c-c095-40b9-bd87-b880264b5f94", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["\u201cAny woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a'citizen of the United States, shall be deemed and taken to be a citizen.\u201d It was held by the court of appeals in Burton agt. Burton (1 Keyes, 373), that the words \u201cwho might lawfully be naturalized under the existing laws,\u201d were only a limitation of the application of the section to a class of persons, viz.: to white women, and hence it was determined that an alien woman who had married a citizen, but who had never been in the United States, became, by the act of marriage, a citizen, and that such act stood in the place of all the requirements demanded by the laws."], "id": "9aa5d12e-6aeb-4c6a-befe-303018c8a5eb", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The question is a novel one, never having been directly passed *80upon by any adjudication in the courts of this State. It has, however, been directly under consideration and adjudicated in some of the federal circuit courts, and in those cases the defendant\u2019s position that he became a citizen by force of the statute (sec. 2172), at the time citizenship was conferred upon his mother, is fully sustained. Under the Constitution of the United States, congress has exclusive jurisdiction over the subject of , to the exclusion of the States. Under the power thus conferred congress has enacted a system of laws for the purpose of conferring citizenship upon aliens. Under such laws, a class of persons who are aliens are made citi \u2022 zens, by force and operation of the statute without any action on their part, as for instance, a woman who intermarried with a citizen, and the children of persons who have been naturalized upon their own application and they being under the age of eighteen at the time of the naturalization of their parents. Another class of persons may become citizens by instituting proceedings in a court of record and proving the facts which are required to be established by the statute as a condition to the right of citizenship."], "id": "46293ddb-4eb0-4092-88c8-556bb6477351", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["In response to defendant\u2019s argument that he could not legally be employed, plaintiff maintains that regardless of the legality of employment, any immigration reference would prejudice the jury because of the present national controversy about undocumented aliens employed here.6 Further, plaintiff says allegations of immediate deportation are untrue. He states that his evidence (including expert testimony) will show that he is legally present in this country. The federal government has instituted no administrative or criminal proceedings against Maliqi, and plaintiff maintains he voluntarily revealed his presence to the Department of Homeland Security with his asylum application. According to plaintiff, he is entitled to asylum under both international and domestic law (see generally Immigration and Nationality Act of 1952 \u00a7 252 [codified at 8 USC \u00a7 1282]; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra n 5). Because his appeal remains pending, plaintiff says he retains the right to remain in the United States during reconsideration of his BIA case and no negative inference arises from that fact (see generally Yeung v Immigration & Serv., 76d 337 [11th Cir 1995])."], "id": "001b6481-abf8-4bd0-a042-c81d3aac48c0", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["On one side is the strong presumption arising from the whole record that the report of 1831 was the only preliminary proceeding. And on the other is the express adjudication of the Court of Common Pleas in their judgment of , that the plaintiff had \u201c in due form of law, more than *437two years since, declared Ms intention to become a citizen of the Urnted States.\u201d'"], "id": "79d80c6a-bb34-4bad-a0ed-f1962600aa5d", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The permission, then, by law, to an alien, to take and hold lands to him and Ms heirs, or a grant from government by authority of law, to an alien and his heirs, does necessarily imply, that he may transmit by descent to Ms children, or *708other alien heirs, and that his heirs may take the land in question equally as if they were natural born citizens. No alien, in his right mind, would purchase upon any other construction ; many of them must have no expectation of having any other than alien heirs. It would be painful for them to await \u2019 the arrival of the period of , and the Uncertainty of acquiring a new race of natural born or naturalized descendants. They may be too advanced in life to expect it, or they may be suddenly cut off in the midst of their expectations. And permit me to ask, where would be the benevolence, or the magnanimity, or the justice, or the good faith of government, if it should so far deal with an alien as to permit him to purchase lands to himself, and his heirs, or to make, (as in the present case,) \u00e1 gratuitous grant of lands to him and his heirs, to-day, and, then, on the morrow, to snatch it from his orphan son,' under the pretence that he was an alien. Such a privilege would be, ill truth, no privilege. It would be a heartless and a fraudulent grant, with the deadly power of escheat concealed in its enclosure."], "id": "01b2144e-6c3e-4272-a252-9815f01d04f7", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Eespecting the immediate issue as to the court\u2019s power to grant an indefinite continuance in a final hearing, Judge Pabkeb, in Schwab v. Coleman (145 F. 2d 672, 677) ruling for the Fourth Circuit, Circuit Court of Appeals, overruled such determination by the District Court, holding expressly that the lower court could not continue the matter indefinitely: \u201cWe do not think that their right to such review can be defeated by continuing the hearing of the petitions over their protest. A continuance may, of course, be granted in cases as well as in others, and whether or not such continuance shall be granted is ordinarily a matter resting in the court\u2019s discretion; but the discretion thus vested in the court is a sound, not an arbitrary, discretion; and it may not be exercised in such way as to result in the denial of the right of review to which a party is entitled.\u201d"], "id": "4c67cc8a-4680-457a-a526-2bc156ecad5a", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Subsequently to the September conversation, according to Cartwright, he did not, as a matter of fact, sleep in the defendant\u2019s house. On October 14, 1907, being the last day of registration, Cartwright appeared before the registry board in the sixth election district of the third assembly district of Hew York county and registered as a voter. The entry of his registration was offered and received in evidence, and by such entry the following appeared: \u201cHame of electors. Surname, Cartwright. Christian \u00f1am\u00e9, Robert H. ' Residence, number or-other designation, 186. Street or avenue, Lafayette. Humber of room or floor occupied by elector, third. Age of elector 37. In State, twenty-one. In county, months,-,\u201d either eighteen or nineteen, there being an erasure. \u201c In the election district, six months. Country of nativity, England. If naturalized citizen, date of certificate, September 26, 1906. Court issuing naturalization certificate, Southern Dis*119trict of Yew York. State, Yew York. City or town, Same. Yumber and name of street or avenue,-; first vote.\u201d"], "id": "9d8203fc-4323-4922-a192-bee9afd6fdfd", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It is a matter of no small difficulty to mark out with precision the line of jurisdiciion between the United States and the individual states ; and perhaps we shall not meet^with a more correct view of the subject than is taken by the same eminent writer before quoted. He reduces the exclusive delegation of power to the United States, or the alienation of state sovereignty, to three cases : 1st. Where the constitution in express terms grants exclusive'authority to the union : 2d. Where it grants in one instance an authority to the union, and in another prohibits the states from exercising like authority : and, 3d, Where it grants an authority to *529the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. Under this last case, he instances that clause which declares that congress shall have the power \u201c to establish a uniform rule of throughout the United States.\u201d This, observes the writer, must necessarily be exclusive, because if each state had the power to prescribe a distinct rule, there could be no uniformity. Now if the United States have the power to \u201c regulate the value of money and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States, they must have the\u2019exclusive jurisdiction ; otherwise, two governments equally sovereign and independent, would have jurisdiction over the same subject ; and the value of the coin, and the punishment for counterfeiting, might be different in every state. The exercise of such authority by the states would be \u201c absolutely and totally contradictory and repugnant\u201d to the exercise of it by the United States. Indeed, concurrent jurisdiction in criminal cases, between independent governments is incompatible with sovereignty ; and the United States and the individual states are as sovereign and independent of each other in all cases of a criminal nature within their respective jurisdiction, as the states themselves are."], "id": "e66db714-0384-439c-980d-02d42630dee9", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["If, on the other hand, it be deemed of importance that an entry should be made in some book, the entries contained in the books marked \u201c Index \u201d and \u201c Naturalization Record \u201d fully answer every requirement that can be made in that respect. These books are in the nature of special minute books. They contain the record of special proceedings entertained by the court not in the exercise of its-ordinary or general jurisdiction as'a court of the state of New York, but in the exercise of a jurisdiction specially delegated to it by act of congress ; and the entries, as they appear therein, present in themselves a better and more detailed record, and at the same time one which is better adapted for purposes of ready reference, than the ordinary entry of the fact of admission would present or be, if inserted in the general minute book of the court. There is no law or rule which forbids this court to keep as many minute books as it may deem expedient."], "id": "0f5e5ac9-686c-4d7b-8d5a-ae126314143f", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Plaintiff states she arrived in the United States from Bulgaria on a visitor\u2019s visa in July of 1990. After arrival, she filed an application for asylum with the Immigration and Service (INS), which is still pending. Plaintiff has had a work authorization issued by the INS since the fall of 1990, and has been employed for approximately six of the last seven years. Allegedly as the result of the violence of a roommate, plaintiff went to the Rockland Family Shelter in the fall of 1997. Plaintiff states that she became homeless in March 1998 and either voluntarily went to the Rockland County Emergency Shelter, or was placed there by the Rockland County Department of Social Services (RCDSS), on March 10, 1998. She was moved to a motel in May of 1998. On May 9, 1998 the RCDSS notified plaintiff it was discontinuing all assistance. A fair hearing was held June 4, 1998, and the May 9, 1998 decision was affirmed on June 25, 1998. Following the June 25, 1998 decision, the complaint was allegedly amended to include a challenge to that decision under CPLR article 78."], "id": "d5e82102-03b8-4eb5-bd34-6ce5bae4774c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It is evident that the political club is being formed with the purpose of affiliating with one of the major political parties of this State, and that it will in the future refer to itself by the name of one of those political parties. The stated purposes, which are to teach Americanism and encourage , and encourage citizens to exercise their right to register and vote, are purposes for which no new corporate body is needed. If the true purposes are to be known as a political club which is part and parcel of one of the major political parties, then the consent of the chairman of the county committee of said political organization should be annexed to the application. If it is a nonpartisan political organization, the certificate should so state."], "id": "b138c02b-5c34-429d-b8ef-45794690b5c1", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["I quote further from Schneiderman (supra, p. 139): \u201c Our concern is with what Congress meant to be the extent of the area of allowable thought under the statute. By the very generality of the terms employed it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition. In view of our tradition of freedom of thought, it is not to he presumed that Congress in the Act of 1906, or its predecessors of 1795 and 1802, intended to offer only to those' whose political views coincide with those considered best by the founders in 1787 or by the majority in this country today. Especially is this so since the language used, posing the general test of 1 attachment \u2019 is not necessarily susceptible of so repressive a construction.\u201d"], "id": "dc526695-4572-4654-bdc6-c2a58cb7ac5f", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The decedent, Simeone Colella, apparently at some time during his life was an Italian subject. However, we have examined the official records in the Onondaga County Clerk\u2019s office and find that the decedent was legally naturalized an American citizen in Onondaga County on June 27, 1944, certificate No. 6157156. The authorities relied upon by petitioner might well apply if this decedent had died a subject of Italy and not an American citizen. However, this was not the case and all of the authorities cited by petitioner apply only to a case where the decedent died a subject of a foreign country and not an American citizen."], "id": "af3980e2-df8a-48bf-926b-3c7bb7dfb34f", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["On this motion, defendant urges renewal on the ground that she is offering new facts, in the form of certificates issued by the U.S. Immigration and Service in 1997, attesting to the approval of visas for her five children. (Affirmation of Daniel S. Kratka, Esq., in support of motion [Kratka affirmation], exhibit D.) She also proffers her divorce decree from her first husband, Jose Polanco, along with her certificate of marriage to her current husband, David De Jesus (id., exhibit B); the birth certificate of her current husband revealing that he is an American citizen by birth (id., exhibit E); and her own affidavit in which she states, inter alia, that in 1999 two of her half brothers lived in the United States and that she worked as a perfume salesperson in her neighborhood, having stopped working as a waitress in 1998. (Id., exhibit C, affidavit of Gleni Castillo De Jesus, sworn Apr. 7, 2011 [defendant aff] H1\u00cd 7, 8.) She maintains that these new facts correct the facts which were misrepresented in her presentence report (New York City Department of Probation presentence investigation report, June 21, 1999 [presentence report or PSI]) or clarify her testimony at the hearing, and that they would have changed the determination of the prior motion, had they been offered at the hearing."], "id": "0306f796-0a0b-44b9-8fe3-808ba5e1a752", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["*222This type of conduct poses serious economic problems for our citizenry. \"Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.\u201d (De Canas v Bica, 424 US 351, 356-357.) Additionally, the court cannot give credence to plaintiff\u2019s claim of ignorance. As stated in Londono v Immigration & Serv. (433d 635, 636): \"The petitioner was warned in his application for a visitor\u2019s visa that gainful employment in the United States would constitute a violation of visa conditions, and he agreed, in making that application, to abide by all the terms of his admission.\u201d"], "id": "62139183-ad2f-46ce-80f0-62d5c8ad9579", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["By notice dated April 4, 1975, the United States Immigration and Service wrote to plaintiff at its detention quarters advising him that an order of deportation to the Dominican Republic had issued. A copy of this notice was sent to the plaintiff\u2019s attorney of record in this proceeding. Thirteen months later, at a pretrial conference on May 21, 1976, this matter was settled with the aid of the court for $2,500. The court\u2019s card shows the notation, \"Settled for $2,500 subject to approval of client * * * Hold until 5-28-76.\u201d Plaintiff\u2019s departure to Santo Domingo was not discussed. In June, 1976, and again in October, 1976, plaintiff\u2019s attorney of record wrote to plaintiff in the Dominican Republic advising him of the settlement and enclosing a general release for plaintiff\u2019s signature. The October, 1976 letter was returned with the notation \"moved\u201d on the envelope, and plaintiff\u2019s present whereabouts are unknown."], "id": "be36d279-e92b-4b5b-8be0-39180e5cfbd8", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["The court is unconvinced that the Immigration and Act operates to preempt New York State from exercising its authority over paroled aliens, who, having been deported, have illegally reappeared in this country. Under the Immigration and Nationality Act (8 USC \u00a7 1101 et seq.), deference by a State is triggered when INS asserts jurisdiction. This is conceded by the State. We are faced here with a situation where the State deferred to INS with respect to Calderon who was paroled and then deported. However, Calderon has illegally presented himself back within the jurisdiction of the State in violation of the conditions of parole. As INS has not yet asserted jurisdiction, the State Division of Parole has jurisdiction."], "id": "c3400e5f-0a80-4cb4-b691-9dd66cffd25c", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["The defendant admitted shooting her husband with a shotgun, severely wounding him. This, however, is not the whole story as is reflected by the presentence report itself. The report notes that the defendant claimed her husband professed love for her resulting in their marriage; that defendant petitioned the Immigration and Service for permanent resident status for her husband because he was an illegal alien; that when he received his papers he confessed the marriage was a hoax and admitted he had a paramour and two children; and, finally, that he abused her."], "id": "7e7814f3-08ec-403e-8e04-b6db32060912", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["On June 27, 2016, Aguilera filed an application for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.09 through his habeas counsel, David Breston. In his application, Aguilera alleged only that Escalante had provided ineffective assistance by neglecting to advise him about the immigration consequences of his guilty plea to assault of a family member under Padilla , thus, rendering his plea involuntary. Aguilera's habeas counsel also filed a memorandum of law stating that, while his client had completed his term of deferred adjudication and was not presently confined or being deported, Aguilera was suffering collateral consequences from his guilty plea because it subjected him to removal proceedings if he traveled outside the country and returned and because it frustrated his attempt at . Escalante submitted an affidavit stating that he had, in fact, issued appropriate verbal admonishments to Aguilera surrounding the immigration consequences of his guilty plea."], "id": "1796a957-d99b-437d-85f4-1908c86ff84b", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The plea form includes the statement that Tapia's attorney had explained the consequences of the plea to him and \"if not a citizen, my plea may have the consequence of my deportation, exclusion from admission to the United States or denial of pursuant to the laws of the United States.\" Tapia initialed this statement. Above Tapia's signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof."], "id": "215f0c2f-6f2a-452c-a9b7-7b95d70612ba", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["All courts look with favor on proceedings to admit aliens to citizenship, and it is just that they should, for the want of acquaintance with our laws and judicial proceedings, the unsettledness of their residences in general for some years and the consequent liability to lose their documents and papers, should shield them from technical and sharp objections to their papers whenever there appears to have been an honest intention to become a citizen and comply with the laws of our country."], "id": "350b0e6a-f0db-41f6-b9fb-4b11944e6095", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["*22Even, therefore, if a defect in the record existed in conse qnence of the omission of some ministerial act by the clerk, the United States government, in the absence of a law declaring such defect final, could not afford to insist upon it. The United States are so largely indebted to immigration for their power, greatness and prosperity that it would be an act of folly to return to the illiberal policy of George III, who, in consequence thereof, stands charged in the declaration of independence with having endeavored to. prevent the population of the states by obstructing the laws for the of foreigners and by Refusing to pass others to encourage their immigration hither."], "id": "f89ff660-0135-4485-9884-e16f1c3e1a7c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The first to be considered here are the Revised Statutes of the State, providing that any alien who has come into the United States may make a deposition in writing that he is a resident of and intends always to reside in the United States and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws require to enable him to obtain , which shall be certified and filed and recorded by the secretary of State. Any alien making and filing such deposition, is thereupon authorized and enabled to take and hold real estate, and during the next six years thereafter, may dispose of the same as if he were a native born citizen. (2 R. S. [6th ed.], 1096, \u00a7\u00a7 15, 16). Then came the law of 1845, as amended; Laws of 1845, chapter 115 ; Laws of 1874, chapter 261; Laws of 1875, chapter 38; the last two being amendments of section 4 of the law of 1845, the only section of that law affecting this case."], "id": "f3cd2af0-0984-4bfb-9b98-beda71ab273b", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The defendant contends, as he was under the age of twenty-one when his mother became a citizen, and being also at that time a resident of the United States, the privileges and rights of citizenship were conferred upon him \u201c ipso facto, et eo instanti,\u201d by virtue of the provisions of section 2172, United States Revised Statutes, which declares that \u201c the children of persons who have been duly naturalized under any law of the United States * * * being under the age of twenty-one years at the time of the of their parents, shall, if dwelling in the United States, be considered as citizens thereof.\u201d This position is contested by the people and the attorney general argues, that as the defendant was alien born he could not become a citizen without action on his part in compliance with section 2167 which provides for the naturalization of minors who become residents of the country under the age of eighteen years."], "id": "551200fe-f5a5-4899-9dd6-4b578327b30c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Mr. Justice Brand\u00e9is, speaking for an unanimous court in Tutun v. United States (270 U. S. 568, 576), firstly noted the historic role of the courts in : \u2018 \u2018 The function of admitting to citizenship has been conferred exclusively upon courts continuously since the foundation of our Government. See Act of March 26,1790, c. 3,1 Stat. 103. The federal district courts, among others, have performed that function since the Act of January 29,1795, c. 20,1 Stat. 414. The constitutionality of this exercise of jurisdiction has never been questioned. If the proceeding were not a case or controversy within the meaning of art. Ill, \u00a7 2, this delegation of power upon the courts would have been invalid. Hayburn\u2019s Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40; Muskrat v. United States, 219 U. S. 346.\u201d"], "id": "f92b6e86-4777-4969-a5a7-5f58d69cd267", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Section 1016.5, subdivision (a) provides: \"Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [\u00b6] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\""], "id": "c89f644a-a64f-44df-a4f5-0ca9515722a4", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The counsel for the petitioner, with a deft ingenuity, chooses to rest on some favorable presumptions of the common law, ignoring all the law I have referred to. He gave no proof of foreign or Jewish law, and no documentary proof of any kind. The certificate of Henry Spondre\u2019s was produced, and it states that Henry Spondre was married to Rachel, and that \u201c Goldie \u201d was his own daughter. The trouble is not with the common-law presumptions counsel invokes, but with their irrelevancy to the state of facts disclosed. This playing back and forth in a litigation with logical see-saws I abhor, when it is not loyal to justice. On the facts shown the briefs *315throw little light which would aid me in reaching any just conclusion. When Rachel Spondre, in her simple testimony, swore to a divorce and marriage by a rabbi, her testimony at once challenged my attention. It introduced something of importance to her, and its validity ought fully to be considered or justice may fail this poor woman."], "id": "b40a7fab-63cf-48cd-8f70-79521047cd84", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It is claimed on behalf of the devisees, Spalding and Lewin, that such disability has been removed by the provisions of the act of 1845 (chap. 115) to enable resident aliens to hold and convey real estate, etc. (4 Edm. St., 300.) The first section of that act provides that any alien resident of this State to whom any real estate has been or thereafter may be devised, before making the deposition mentioned may, on filing such deposition, hold the real estate devised to such alien in the same manner, and with the like effect as if such alien at the time of such devise were a citizen. These devisees are within that description of persons. There can be no doubt that this enactment protects and confirms the devise to Susannah E. Spalding, unless to give it that *311effect would divest a vested estate in the citizen heirs of the testator. We think it had no such effect, but that its effect was to lessen the estate which but for the statute and devise would have descended to the citizen heirs, and to declare that the estate which actually-descended to the latter, should be defeasible upon the filing of the depositions aforesaid. The statute cannot be defeated, but on the-contrary, must be carried into effect, if any legal means can be devised for that purpose. We find no difficulty in performing that duty. For it is necessary only to hold that the estate which descended to the citizen heirs was subject to the operation of the statute ; that the full effect of the devise was postponed until said devisees should file their depositions, and that in the meantime the estate was vested in the citizen heirs, subject to be divested by the filing of the depositions. That the. legislature has. power to make such a change in the rules of descent, we think admits \u2022 of no question. (Cooley Const. Lim., 359, et seq.) It is equally clear, that .the object of the act of 1845 was to remove the disabilities resting upon alien devisees, at\u2019 the time of its passage, in case they filed the deposition referred to.. It is worthy of mention that the fourth section of this act, also, in terms, enables alien heirs to take by descent from a resident alien, with the same effect as. if such resident alien were a citizen. Strictly construed, this provision would not embrace a descent cast from a citizen. (See Larreau v. Devignon, 5 Abb. [N. S.], 367.) It is not necessary to decide whether such a construction would be compatible with the intent of the legislature manifested in the act; otherwise, we should be strongly inclined to hold that their intention in enacting the fourth section was to remove from resident- aliens all disability to hold real estate by inheritance from a resident alien ancestor, who had acquired the same by purchase, and to confer upon them capacity to take and hold the same in case they should take the preliminary proceedings for becoming citizens. That object is in furtherance of enlightened public policy, and affords complete ground for a liberal interpretation of the statute. But whether such construction be correct or not, the capacity to take by descent, which this section confers upon resident aliens, authorizes them to hold real estate devised to them within the meaning of the statute of wills. (2 B. S., 57, \u00a7 4.) The statute certainly does not invalidate a devise to *312one who is capable of taking and holding real estate, either by purchase, devise or descent from any person. It does not require a general capacity to take and hold by all modes of vesting estates, or a special capacity to take and hold by devise. It is enough- if the devisee is capable of holding by either mode of devolving seizin of real estate. The case of Heney v. The Brooklyn Benevolent Society (39 N. Y., 333) is not in conflict with, but is rather confirmatory of, the foregoing views. That case arose under section 1 of the act of 1843 (4 Edm. Stat., 299), and there was no devise or grant in the case, but only a descent cast before the of the heirs. Section 1 of the act of 1843 only enabled heirs of the intestate who had become naturalized before his death, to inherit his estate; whereas the first section of the act of 1845, in terms, confers capacity to take upon alien devisees who have filed the deposition after, as well as those who had filed it before the' passage of the latter act. Nor does the saving clause in the eleventh section of the act of 1845 qualify the operation of the provisions thereof to which we have referred, for the reason that that section excepts from the operation of the act only interests which had become vested before its passage ; whereas the death of the testator did not occur until sixteen years after its passage."], "id": "f3292d95-fbb1-4c44-8d60-3fe1b74e6a4c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Professor Milton It. Konvitz in his text, Civil Eights in Immigration [Cornell Univ. Press, 1953], pp. 142-143 states: 11 The Constitution authorizes Congress to establish a uniform rule of , but this power of Congress, the Supreme Court has said, \u2018 is not trammeled, and it may grant or withhold the privilege of naturalization upon any grounds or without any reason as it sees fit.\u2019 Thus, with regard to naturalization, as with immigration and deportation, Congress is omnicompetent. But while the Constitution does not confer upon aliens the right to naturalization, once Congress enacts a statute \u2018 there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate * * * There is, of course, no \u2018 right to naturali-"], "id": "11ece313-f2ac-475e-b8e5-6d9910745c49", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The court, however, is of the opinion that the inadequacies of the record relating to the proof of heirship go beyond merely the question of whether the deaths of Henrietta and Henry can be presumed by reason of their absence. Primary in this regard is the complete absence of any documentary evidence whatsoever. No birth, death or marriage certificates or the like were introduced to establish any of the critical facts, although presumably some of these records are available. The attorney conducting the search or investigation testified to a search of Surrogate\u2019s records, the insertion of advertisements in the New York Times and a search through various telephone books. Such a limited investigation leaves much to be desired. Apparently no investigation of the exact area in which any of the children of Henry Steeneck resided was conducted, although the petitioner testified that Henrietta may have lived in the Williamsburgh section of Brooklyn around Devoc Street. In addition, there is no testimony that any office of vital statistics was consulted with regard to births, deaths and marriages; whether cemetery records, church records, banking, insurance, *95utility, school, census, Army and Navy, voting, police, motor vehicle, or other possible business or employment records were searched for possible leads as to the identity of the distributees."], "id": "dc5f5403-db15-48bc-a505-74f462da61fd", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Based then on the pertinent Federal and State statutes, this court concludes that since deportation is not a punishment but the refusal of the Federal Government to harbor persons whom it does not want (Bugajewitz v Adams, supra), and alien policies are exclusively entrusted to the political branches of government (Harisiades v Shaughnessy, supra), deportation of a citizen is exercised entirely through the executive branch of the Federal Government with such judicial review as authorized by Congress (Pilapil v Immigration & Serv., supra). Nor is such deportation an unconstitutional denial of equal protection (Guan Chow Tok v Immigration & Naturalization Serv., 538d 36, 38). As such, a New York State court does not have the authority or discretion to prevent the deportation of a noncitizen (8 USC \u00a7 1251 [a] [2] [B] [i]; *464Aguilera-Enriques v Immigration & Naturalization Serv., supra; Yanez-Popp v U.S. Immigration & Naturalization Serv., supra)."], "id": "cd5579f4-09cc-4430-bf56-93f83802046d", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Penal Code section 1016.5, subdivision (a) requires that the trial court shall administer the following advisement on the record to the defendant before accepting a plea of guilty or nolo contendere: \"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\""], "id": "ebbe4450-3f25-4d49-a1b9-6f42b1bd56ce", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It appears that shortly before the scheduled date for the ceremonies, the Clerk of the court was directed by the Examiner bf the Naturalization Service to strike the names of both Matthias Reilly and his wife, Mary Reilly, from the listings on the court\u2019s calendar of petitioners whose applications for citizenship had been approved and to whom the oath was to be administered. The petitioner had previously been advised by the Naturalization Service in a letter addressed to him at his home to appear in court On that day and was further informed that; \u201c If the Judge finds you qualified for naturalization, you will be sworn in as a citizen.\u201d Thereafter, the Naturalization Service reconsidered its action, allegedly prompted by \u201c State and Federal Representatives \u201d, with respect to Mary Reilly for her name was re-inscribed and she was duly admitted to citizenship upon her taking the requisite oath together with all the other applicants."], "id": "de29ba99-fb18-4bc6-9d7c-e15725fb726d", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["In an analogous Federal proceeding, Judge Haight ruled that an illegal alien from the former Yugoslavia had not been prejudiced by the Immigration and Service\u2019s failure to utilize an Albanian interpreter either in interviewing her at the port of attempted entry or in conjunction with her request for parole release pending adjudication of her request for asylum. (Micovic v McElroy, 790 F Supp 75, 76-77 [SD NY 1992].) The alien petitioner had been interviewed at the airport in the \"Serbo-Croatian\u201d (sic) language, which she asserted to be a language she \"spoke,\u201d but not the language that she \"truly understood].\u201d (Supra, at 76.) Parole had been denied at the administrative level on the ground that, regardless of what the applicant said in her own behalf through the Serbo-Croatian interpreter, or could have said through an Albanian interpreter, she \"did not fall within the regulatory criteria for granting parole to aliens arriving with false documentation. See 8 C.F.R. \u00a7\u00a7 235.3(b); 212.5(a).\u201d (Supra, at 75.) The court concluded that the alien petitioner had not carried her burden, which the court characterized as one of showing that the administrative agency had \"acted irrationally or in bad faith\u201d (supra, at 76), because factual matters underlying the parole-denial decision (such as the falsity of a \"green card\u201d carried by petitioner) could not have been \"affected in any way by the language in which the pre-detention interview was conducted, or petitioner\u2019s relative degrees of comprehension between Albanian and Serbo-Croation.\u201d (Supra, at 77.) Judge Haight noted, however, that the alien was scheduled for a political-asylum hearing before an Immigration Judge, and stated (in dictum): \"[presumably at the hearing before the Immigration Judge steps will be taken to ensure the attendance of an interpreter able to guarantee petitioner\u2019s comprehension of what is said to her and the Immigration Judge\u2019s *537comprehension of what she says at the hearing.\u201d (Supra, at 77.)"], "id": "c2f5f18e-ed27-4df6-a82e-37d83d792bb3", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["5. Plaintiff claims that he arrived in New York State in the Spring of 1958 and had been living continuously in Manhattan up to the date of the accident and claims that he has been living in Manhattan up to the present time. However, that the plaintiff was in hiding from Immigration Authorities after the denial of his application to obtain a suspension of his deportation order in November of 1964. Plaintiff did thereafter surrender himself to the Immigration Authorities and posted $5,000.00 bond pending the determination of proceedings which are presently being reopened before the Department of Immigration and , which proceedings are for the purpose of suspending the order of deportation. Pending the final determination of these proceedings plaintiff is free, having posted the aforesaid bond,"], "id": "a0af07c2-bfd7-452b-8f1e-cafc81d52fed", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["These provisions originally constituted the act of July 14, 1870, entitled, \u201cAn act to amend the laws and to punish crimes against the same, and for other purposes.\u201d Prior to 1870 false swearing by either applicant or witness in a state court could only he punished, as decided in The People v. Sweetman (3 Park. Cr. 358), by the courts of the United States ; and whether an indictment would lie in any such case depended upon the statute of the United States relating to perjury."], "id": "64666f73-c68c-4d10-9ff6-5b65adf38cf8", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It is the duty of the court to give these laws a fair and reasonable construction and to secure harmony in their operation whenever the same can be done without disregarding any positive provision or necessary intendment of the statute, and to reject any construction which would make one section inconsistent with the other relating-to the same subject. It is the citizenship of the parents which operates to confer citizenship on their children. In the original act of 1802, now brought forward and incorporated in title 30 of the Revised Statutes, the word \u201c naturalized,\u201d as it occurs in the section now number 2172, is used as indicating that the parents have become citizens, and is not limited to cases where such parents have become citizens by a compliance with the provisions of the-act of 1802, but is susceptible of a construction which embraces all cases where the parents of the child became citizens by' operation of any existing law. The law of 1855, now section 1991, has not placed any limitations or qualifications on the effect of the intermarriage by the mother with a citizen, and declares in the most general terms, that any woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized shall be deemed a citizen. The words \u201c duly natural*81ized,\u201d as used in section 2172, sbonld be construed as having the same meaning as if tbe words used were \u201c have duly become citizens \u201d and should be construed accordingly. The primary meaning of the word \u201c \u201d \u201c is the act of investing an alien with the rights or privileges of a native subject or citizen.\u201d (Webster.)"], "id": "67cb2421-4587-40e4-a4bd-69faadabe613", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["\u201cI understand that I am being transferred to the custody of the Immigration and Service for the purpose of deportation only and that only the United States government can give me permission to return to the US after I have been deported. In addition, I will not return to the United States prior to my Maximum Expiration Date without prior contact with the New York State Board of Parole. I will forward notice of my proposed return to [the Division of Parole] . . . and I will not return to the US until I receive instructions from the Division of Parole telling me how and when to report to a Parole Officer.\u201d (Affirmation in opposition, exhibit D.) On January 15, 2001, Washington CF released Mr. Tavarez to the control of the United States Immigration and Naturalization Service, which deported him to the Dominican Republic on February 2, 2001. (Affirmation in support of petition 11 5.)"], "id": "b624f428-3a5f-412f-8071-9322dff63c60", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["We previously announced plans for the relocation of cottages and homes in eases where the owners ask such assistance and where it is practical to move the buildings. Our program will result in moving a considerable number of cottages to large plots desirably located overlooking the River. We shall provide roads and utilities and lease the plots for a twenty-year period on reasonable terms. Each cottage will have its own frontage on the River. \u25a0Sr S\u00ed' Sr The land acquisition procedures for seaway and power involve the co-operation of various State agencies including the Attorney General\u2019s office, the Comptroller\u2019s office and the Department of Public Works. Also involved are the International Joint Commission, International Joint Board of Engineers, International Joint Board of Control, Bureau of Customs, Immigration and Service and others. It is a complex administrative machine not easily kept in continuous, smooth and frictionless operation. It is perhaps the largest co-operative venture of this kind ever attempted. Since the reorganization of the Authority in April 1954, we have been beset by requests from local communities along the Saint Lawrence to relieve them of responsibilities resulting from the rapid expansion of activities in the area * * * Certain problems, some of which are annual and others of a non-recurring type, are bound to follow. There is no mystery as to our policy. We have made it quite clear that we do not propose to assume the normal operating expenses of the local communities * * * *885As to some of the more permanent improvements requiring large capital outlays, such as the baclly needed sewage disposal plant in Massena, we can be of considerable help. For instance, we have agreed to underwrite a large share of the cost of construction of the sewage disposal plant and are providing a new water intake in the Massena works with substantial conduits to deliver water to Alcoa and Massena. With the cooperation of the Saint Lawrence Seaway Corporation, we have repaired miles of roads and are constructing a new highway from Route 37 to Canada including a new bridge across the Grasse River. Finally, the Authority reiterates that its objective is not only to generate low cost power and to help build the new Seaway, but to conserve the natural beauty of this magnificient River and to promote the healthy development of the entire frontage for industry, residence and recreation. Immediately following is the \u201c Consultant\u2019s Report \u201d which, on pages 16 and 17, shows by map that part of Wilson Hill which will become wholly an island. In addition, the project itself is thus described:"], "id": "fa58b1a6-0883-4dc2-87ca-8bec9fb2fd70", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["In Espichan, however, we encountered such a jurisdiction. There, we considered a plaintiff\u2019s claim for derivative citizenship under the same statute, \u00a7 1432(a). As in Morgan, we had to consider whether Espichan\u2019s parents had been legally separated at the time of Espichan\u2019s father\u2019s . Espichan\u2019s parents had been married in Peru. Our inquiry into legal separation therefore looked first to the family law of Peru. We found \u201c[a]rticle 326 of the Peruvian Civil Code of 1984 provide[d] that \u2018[a] union in fact ends by death, absence, mutual agreement, or unilateral decision,\u2019\u201d 59 and concluded that Espichan had demonstrated that his parents\u2019 marriage had ended by unilateral decision."], "id": "794cc1bf-1c30-43cd-97a6-9ff355ad0608", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It was also enacted, at an early day, that any alien who had or might come into the United States, upon making and filing with the secretary of state a deposition or affirmation in writing, that he is resident in the state, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the' United States require to enable him to obtain , could take and hold real estate of any kind, to himself, his heirs and assigns forever, and might, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do, if he were a native citizen* but should have no power to lease or demise until he should become naturalized (1 Rev. St., 720, secs. 15, 16)."], "id": "4c8f8295-9362-4817-af7f-b88acc8ce922", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["In the interim, petitioner has moved for an order directing that the Department of Justice, Bureau of , produce its complete file and that it \u201c produce the body of Matthias Reilly on a day certain to be fixed by the court.\u201d In the supporting affidavit, there is an additional request for further relief, to wit: that the court order the petitioner to be transferred to a Federal detention center closer to his home and that of his family which is in Rockland County, New York."], "id": "1acd26a7-e8c0-4bdd-8251-d926f68ffefe", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["It is to be noted that the section 1421 et seq. of title 8 of the United States Code set forth the congressional standards and prerequisites for .the of aliens. The Immigration and Naturalization Service as well as its predecessors, it thus follows, may only promulgate rules and regulations, substantive or procedural, which conform to the express statutory criteria enacted by Congress. Consequently, the Naturalization Service may not, under the guise of conducting an \u201cinvestigation\u201d imposo its views and precepts as to \u201c character and attachment to the principles of the Constitution.\u201d"], "id": "0269e764-b773-48fc-9b7f-2df70f8fd4d1", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["For a second point, and apart from the futility of a vain judicial act, I note with particularity that the defendant has made no substantial contention that the sentence first imposed upon him was invalid or inaccurate. Eather he can only contend that the court, as it has herein affirmed, would have made such recommendation if so requested at the time. While the thrust of this argument may somewhat relate to the spirit of remedy in coram nobis, it is surely no basis therefor against the stated word of the statute made mandatory to refute any such contention. Coram nobis is available to those seeking \u201c to redress an injury done to a defendant which has deprived him of due process of law \u201d. (Emphasis supplied.) (People v. Sullivan, 3 N Y 2d 196, 198.) The defendant here has his due process available before the Director of Immigration and . Under such circumstances the remedy in coram nobis will not lie."], "id": "b12a8152-9b33-4263-a9b6-3bf97ce545c3", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["As I have previously noted, what is denominated statutorily as a \u201cfinal hearing\u201d has evolved into a ceremonial occasion \u2014 and rightfully so. I note that on the calendar presented to me that day for the naturalization ceremony some 49 names were listed, together with their former nationalities, some 24 in number. Among those invited to participate were the elected and appointed officials of Rockland County, the American Legion of Rockland County, Veterans of Foreign Wars, Military Order of Purple Heart, Jewish War Veterans, Marine Corps League and Rockland County Amvets. Additionally, among the invitees who appeared by designated representatives were the Daughters of the American Revolution, the Sons of the American Revolution and Girl Scout Troop No. 51. I might also add that at the naturalization ceremonies, the Sheriff and District Attorney of Rockland County were present."], "id": "ed411c94-52d3-45ed-9c8a-fa48f9f1ba0d", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["This court concurs with the view expressed in Fryer. As the court there stated, the Federal Youth Corrections Act was aimed at the rehabilitation of young offenders. (See, also, Dorszynski v United States, 418 US 424; United States v Glasgow, 389 F Supp 217.) Its purpose was to provide young people with an opportunity to begin anew without encumbering them with the stigma of a criminal conviction. Certainly, Congress did not intend that the Federal Youth Corrections Act set aside convictions for some purposes but not for others. (United States v Fryer, supra; Mestre Morera v United States Immigration & Serv., supra.) The words of subdivision (b) of section 5021 of title 18 of the United States Code are clear. Once an individual has been discharged from probation under this section, such discharge automatically sets aside the conviction. Consequently, the defendant\u2019s motion is granted."], "id": "f70da0eb-6f4e-4a9c-a59f-997b2052d56c", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["A similar question arose in the case of People v. Sweetman, 3 Park. Crim. 358, where it was squarely held that, in a proceeding for under the laws of the United States, conducted in a State court by the authority of the United States, false swearing was not perjury against the laws of the State. These two cases are in direct conflict, and in so far as either may be applicable by parity of reasoning to the case at bar, the ETew York case must control."], "id": "ff9c0d01-0c51-4f67-8eb2-88f52039e4e5", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["institute an action . . . for a judgment declaring him to be a national of the United States.\u201d). Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019). Bryan v. United States, 913 F.3d 356, 361 n.10 (3d Cir. 2019) (citation and quotations omitted). Morgan, 432 F.3d at 230 (alteration in original) (quoting 8 U.S.C. \u00a7 1432(a)). In greater detail, 8 U.S.C. \u00a7 1432(a) provides: (a) A child born outside of the United States of alien parents, . . . becomes a citizen of the United States upon fulfillment of the following conditions: (1) The of both parents; or (2) The naturalization of the surviving parent if one of the parents is deceased; or (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents . . . and if (4) Such naturalization takes place while such child is under the age of eighteen years; and"], "id": "e2a8801f-f0eb-458d-96f2-f9aed91cc3ee", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["Our Election laws (2 R. S. [Edm. ed.] 128) enact that \u201c No person shall be deemed to have lost or acquired a residence by being a student in a college, academy or seminary of learning;\u201d and although this provision relates rather to the rights of electors under the State laws, than to the right of under the Federal laws, it is but a recognition or affirmance of the rule at common law."], "id": "a63903a2-a91e-441f-9ed1-a70d5a704234", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Keeping federal preemption in mind, Congress provided in subchapter II (\u201cImmigration\u201d) of chapter 12 (\u201cImmigration and Nationality\u201d) of title 8 (\u201cAliens and Nationality\u201d) of the United States Code, that any alien (irrespective of status) may apply for political asylum as long as he is physically present in the United States or arrives in this country (see generally 8 USC \u00a7 1158 [a]). Although section 1158 (a) does not specifically address whether asylum seekers may work while their applications are processed, Department of Homeland Security regulations require work authorizations be issued during the period that nonfrivolous asylum applications are pending. The regulations are construed to permit work authorizations during the entire time that an asylum application is pending (see 8 CFR 274a. 12 [c] [8]; and generally Alfaro-Orellana v Ilchert, 720 F Supp 792 [ND Cal 1989]). The regulations alleviate economic hardship for aliens who would, without them, be unable to lawfully work pending consideration of their asylum applications (see generally Diaz v Immigration & Serv., 648 F Supp 638 [ED Cal 1986]). Based upon this regulatory scheme, the court concludes that plaintiff legitimately was employed during the time that he suffered his accident (see generally United States v Bazargan, 992d 844 [8th Cir 1993])."], "id": "ebfbc43f-2772-4768-ba37-da59956da774", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["A very brief analysis of section 1421 et seq. of title 8 of the United States Code \u2014 Nationality through Naturalization\u2014 reveals that section 1421 confers jurisdiction to naturalize upon the New York State Supreme Court by virtue of its being a court of record and having jurisdiction in actions at law and equity. Sections 1424 and 1425 bar subversives and deserters, respectively, from , and section 1426 disqualifies those aliens who have been relieved of military service. Subdivision (e) of section 1427 imposes upon the petitioner \u201c the burden of establishing good moral character \u201d, and subdivision (f) thereof denies naturalization to one who is an adherent of an organization against whom registration proceedings are pending for registration as subversive. Under section 1429, the burden of proof is imposed upon the petitioner to show that \u201che entered the United States lawfully and it then proceeds to bar naturalization to any person \u201c against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest \u201d, i.e., a Federal warrant. Similarly, if there are deportation proceedings, pursuant to a warrant of arrest pending against the applicant, that, too, precludes naturalization."], "id": "3e0351f4-0795-428b-84aa-ae65e1eb98a4", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["In Ramsey (supra) the customs officer spotted eight bulky envelopes mailed from Thailand, a known source of narcotics. It was \u201creasonable to suspect\u201d therefore, that the letters contained contraband or merchandise subject to duty rather than correspondence. In the case at bar there was nothing suspicious about defendants or the car while crossing the Peace Bridge. The defendants gave their name, address, and citizenship and provided a license and registration as requested. (Cf. People v Baldon, 51 AD2d *108880, 881; People v Jeffries, 45 AD2d 6, 8, affd 38 NY2d 722.) The record is barren of any specific articulable fact from which a reasonable inference could be drawn to warrant the slightest suspicion that defendants were involved in illegal activity. (Terry v Ohio, 392 US 1, 16; Ojeda-Vinales v Immigration & Serv. 523d 286; United States v Riggs, 474d 699, 703, cert den 414 US 820; United States v Salter, 521d 1326.)"], "id": "34db2dc5-d910-401c-a9a8-fdf201c3ea16", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["On January 10, 1994, Mejia pleaded guilty to the three crimes. Mejia initialed an immigration advisement on the plea form: \"I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.\" (Italics added.) The *822prosecution did not sign the plea form (indicating a \"straight up\" plea to the court). The court granted probation with various conditions, including a 120-day jail sentence."], "id": "9bcf96cc-8742-41f0-8d51-9acccd12b102", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The People assert that \"the trial court determined that [defendant] did not state a prima facie case for relief, among other reasons, because he did not include any declaration in support of his unverified petition, and the allegations he raised were contrary to the record.\" We disagree. The trial court here did not determine defendant had not stated a prima facie case. Rather, the court denied the motion to vacate because defendant was not present, he had not attached a declaration to his motion, and the plea agreement form stated he was \"given the advisal.\" Although the plea agreement attached to defendant's motion indicates defendant initialed the box next to the statement \"I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest),\"4 we cannot assume defendant was in fact advised of the immigration consequences by his appointed counsel without an adequate record. Moreover, at the June 11, 2018 hearing, after the court noted defendant had been given advisals according to the plea agreement form, defendant's prior public defender, who was present at the hearing and who had declared a conflict, never indicated that he had advised defendant he would be deported as a result of his guilty plea. Under the circumstances here, the trial court's combined errors in failing to consider whether to appoint a conflict panel attorney once the public defender's office had *983declared a conflict and denying the motion without a hearing and without defendant's presence, which have produced a meager record, we reject the People's claim that defendant did not state a prima facie case for relief."], "id": "804fe4e5-751a-4e3c-bf82-60cfb0f940f5", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["*786criminal defendant who is no longer in 'custody' for purposes of the writ of habeas corpus, can move to withdraw a guilty plea if the trial court accepting the plea, failed to admonish the defendant of the possible immigration consequence of the plea under Penal Code section 1016.5.\" (Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), July 6, 2015, pp. 8-9, citing *514Zamudio , supra , 23 Cal.4th 183, 96 Cal.Rptr.2d 463, 999 P.2d 686 and People v. Martinez (2013) 57 Cal.4th 555, 565, 160 Cal.Rptr.3d 37, 304 P.3d 529.) The committee's coupling of AB 813 with section 1016.5, its focus on \"immigration consequences\" in general, and its failure to indicate that AB 813 was limited to removal proceedings further supports the conclusion that the Legislature intended AB 813 to apply to a broad scope of immigration consequences similar to those expressly called out in section 1016.5, i.e., immigration consequences that in addition to removal, such as exclusion from admission and denial of ."], "id": "ed3e2b42-de9b-4547-92ca-6d79339be930", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["On the other hand, the evidence offered to sustain a last domicile in the county of New York is about as follows: On the 21st of June, 1900, the decedent verified a petition as an applicant for admission to citizenship of the United States of America. In this petition he swore that he emigrated to the Unted States,'landing at the port of New York on the 10th day of July, 1888; that he now resides at No. 55 West Twenty-seventh street, in the city of New York; that he was over twenty-one years of age; that he resided continuously in the United States since July 10, 1888, and continuously within the state of New York since July 10, 1888. An affidavit by one Mr. Edward F. McManus is also attached to the petition, in which he swears that he is a citizen of the United States; that he resides at No. 72 West Eighty-seventh street; that he is a merchant and that he personally knows that the applicant, Tirso Mesa y Hernandez, has resided continuously within the limits and in the jurisdiction of the United States of America since June, 1890, and continuously within the city of New York since June, 1890, and that' during said time of his residence within the United States and within the city he had behaved as a man of good moral character, etc. The petitioner, the deceased, and his witness appeared before Mr. S. H. Lyman, in the United States District Court for the Southern District of New York, and were orally examined and the proofs taken upon this petition. He was then admitted to citizenship by the United States District Court of the Southern District of New York on the 23d day of .Time, 1900. These affidavits upon which the cer*443tificate of citizenship was issued were put in evidence under objection and exception. The testimony in regard to this discloses that the deceased announced to his wife his intention of taking out naturalization papers while they were living in Cuba in 1899, the year after the war was over, giving as his reason therefor that his property was then in danger; that his home had once been destroyed during the Spanish war, and that as the United States soldiers were still in Cuba he was going to take out American citizenship papers in order to protect his property. He also mentioned the same thing to his son Hannibal in 1900. The testimony also shows that in 1902 Mr. Mesa y Hernandez contributed a substantial sum towards the election expenses of President Estrada Palma of Cuba, and that he expected to receive from him an offer of the position of ambassador or minister of the republic of Cuba to the court of St. James, showing that he still held himself to be a citizen and resident of the republic of Cuba. It also appears that the will of the deceased was executed by him on December 19, 1906, on his way to Cuba from England. It was so executed in the city of New York, and it recites that he \u201c is a native of Colon, in the Province of Matanzas, Island of Cuba, but now a citizen of the United States, residing and domiciled at the City of New York.\u201d This will created a number of trust funds and provided for the payment of various annuities and legacies, and on several occasions the deceased stated to members of his family that he was aware that its provisions contravened the provisions of the Cuban law as to the right of a person who died leaving children to dispose of his property. It is suggested that this was the reason for stating that the domicile of deceased was in the city of New York, as the validity of the will might depend on the law of New York. In the will decedent named as executors Paul Fuller and Jose M. Andreni, who were not related to him. This last will and testament of the deceased was probated in the county of New York upon the petition of these executors\u00bb *444alleging that the deceased died a resident of the county of New York. No objection was made to this probate by the beneficiaries of any party interested, and letters testamentary were accordingly issued by this court on the 29th day of January, 1909, to the executors named in the will. The question of the domicile of the deceased was not put in issue in the probate proceeding, or until the transfer tax proceedings were instituted. It is now argued by the state that all parties in interest in the probate proceeding, having failed to object to the finding that the decedent died a resident of New York county, are bound by that finding."], "id": "1380e5dc-c7e1-4ef4-bbe9-2ec4553dcc59", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Clearly, an accused who is deemed to be a young adult offender has been convicted of a crime. The dispute, however, arises over the legal implications of that person\u2019s later being \"unconditionally discharged\u201d from probation and having his conviction \"set aside.\u201d Although there is no New York authority on the subject, courts in other jurisdictions are divided. In People v Loomis (231 Cal App 594), a California court declared that the defendant had been properly found guilty of the crime of possession of a pistol by one previously convicted of a felony when that prior conviction had been set aside under the Federal Youth Corrections Act. (See, also, People v Robinson, 1 Cal App 3d 555; United States v Canniff, supra, which allowed a conviction under this statute to be used to attack credibility at a later proceeding; Garcia-Gonzalez v Immigration & Serv., 344d 804; Hernandez-Valensuela v Rosenberg, 304d 639, wherein aliens sentenced under the Federal Youth Corrections Act were held deportable; United States v McMains, 540d 387; Fite v Retail Credit Co., 386 F Supp 1045.)"], "id": "bc7d0b94-e255-4887-929f-b6b800f2126e", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Article 36 of the Vienna Convention, which discussed the notification of a consulate upon the arrest of a foreign national, clearly does not create any fundamental rights or the right to counsel. (United States v Li, 206d 56; Waldron v Immigration & Serv., 17d 511, 518.) Indeed, the Treaty\u2019s preamble clearly states that the purpose of the privileges and immunities contained in the Treaty \u201cis not to benefit individuals but to ensure the efficient performance of functions by consular posts.\u201d (Preamble to Vienna Convention, 21 UST 77, 79.) Thus, at most, the Convention \u201carguably\u201d confers on foreign nationals the right to consular assistance."], "id": "9ee0ae01-85d2-4dd9-ba2c-33893cf65529", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["The investigation and arrest having been directed by DeFilippis as a function of parole supervision and not as a sham or pretext for effecting F.B.I. purposes, McCrary\u2019s postarrest interview with defendant was merely an incident of interagency co-operation, and of no effect upon the admissibility of contraband seized at the time of arrest. The United States Supreme Court considered an analogous situation in Abel v United States (supra, p 230), where an administrative deportation warrant of the Immigration and Service was found to be employed not \"as an instrument of criminal law enforcement to circumvent the latter\u2019s legal restrictions, [but] * * * as a bona fide preliminary step in a deportation proceeding.\u201d Mr. Justice Frankfurter, writing for the majority, said (p 229): \"Nor does it taint the administrative arrest that the F.B.I. solicited petitioner\u2019s cooperation before it took place, stood by while it did, and searched the vacated room after the arrest. The F.B.I. was not barred from continuing its investigation in the hope that it might result in a prosecution for espionage because the I.N.S., in the discharge of its duties, had embarked upon an independent decision to initiate proceedings for deportation.\u201d"], "id": "279086ab-022a-42c5-bf92-8756c90efc1d", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["We affirmed the denial of appellant's motion to vacate pursuant to section 1016.5. ( People v. Landaverde, supra , B276912.) We concluded that the record showed that appellant was properly advised of the immigration consequences of his plea under section 1016.5. ( People v. Landaverde, supra , B276912.) Specifically, the trial court had informed him: \" 'If you are not a *292citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of pursuant to the laws of the United States.' \" ( Ibid . )"], "id": "ef164309-d357-4269-bbc6-08ee05323319", "sub_label": "US_Terminology"} {"obj_label": "Naturalization", "legal_topic": "Immigration", "masked_sentences": ["Now, prior to sentence, the defendant moves this court for an order, pursuant to section 241 (subd [b], par [2]) of the Immigration and Nationality Act (INA) (US Code, tit 8, \u00a7 1251, subd [b], par [4]) to preclude the Immigration and Service (INS) from using this conviction as a ground for deportation. The relevant part of section 1251 (subd [b], par [2]) of title 8 of the United States Code reads as follows: \"if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.\u201d The order requested is a recomendantion against deportation (RAD). An RAD does not preclude the INS from deporting the alien on other grounds. It only precludes the INS from using a particular conviction as a ground of deportation, if an order of RAD was granted pursuant to section 1251 (subd [b], par [2]) of title 8 of the United States Code. The RAD must be ordered at the time the court first imposes sentence or within 30 days thereafter. In the case at bar, due notice has been served and counsel has served an affidavit in opposition on this court. If, after the INS has been notified and given an opportunity to be heard, the court is persuaded that the issuance of an RAD is warranted, then the RAD is binding on the INS (see Velez-Lozano v INS, 463d 1305; Haller v Esperdy, 397d 211)."], "id": "2646ad13-6833-4eb8-a407-4a22a99270a3", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["The words \u2018 \u2018 Every applicant \u2019 \u2019 in the rules indicate that there are no exceptions. The phrases \u2018 \u2018 intending competitors\u201d in the statute and \u2018 \u2018 applicant for competitive examination \u2019 \u2019 in the Rules show that the requirement must be met at the time of application rather than at the time of certification or appointment. The words \u201c is a citizen \u2019 \u2019 cannot be changed to mean ' \u2018 will be a citizen \u2019 \u2019. The word \u2018 \u2018 must \u2019 \u2019 means that the requirement is mandatory, not discretionary, with the commission, and noncompliance with such requirement renders one\u2019s certification and appointment null and void ab initio as a matter of law. No exception was made by Legislature or commission for aliens who served in the armed forces of the United States. No exception was granted to an applicant who believed that citizenship was automatically conferred on him on the day of his discharge from military service. No exception was allowed for the applicant who thought that the filing of his petition for and his subsequent swearing-in as a citizen would be formalities. No exception was given to an alien, who, on the advice of a military superior, registered at the Bureau of Immigration and Naturalization immediately after his discharge from the military service, in the expectation that he would receive his citizenship papers within 90 days \u2014 and who filed his application for the position now sought after less than a month had elapsed after his military discharge. Nor did the petitioner\u2019s subsequent certification by the respondent commission for the position in question, at a time when in fact he was a citizen, cure the defect of noncitizenship which existed at the time of filing of the application for the position. The result reached may seem a harsh one for the petitioner, who may have innocently thought that he was a citizen, when in fact he was not. But to rule that a man\u2019s ignorance as to his citizenship status could validate an otherwise invalid application, would be violative of the statute, would place a premium on ignorance and would be unjust to the truthful well-informed who refrained from filing an application because of the recognition of his ineligibility."], "id": "beb7887e-2e6d-4a0f-81be-675bbb77bcd1", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["See Jaffal, 2020 WL 6074473, at *4. Morgan, 432 F.3d at 233. The court\u2019s reliance on Perrin v. Perrin, 408 F.2d 107 (3d Cir. 1969) for the proposition that \u201c[o]rdinarily, the recognition in the United States of [] a foreign decree will depend upon whether at least one of the spouses was domiciled in the foreign state when the decree of divorce was rendered,\u201d id. at 109, was misplaced. Perrin was not a case in which we interpreted \u00a7 1432(a), and, in Perrin, we later held, \u201cdomicile is not intrinsically an indispensable prerequisite to jurisdiction.\u201d Id. at 110. We recognized the divorce at issue in that case, even though neither spouse was domiciled in Mexico, where the divorce took place. See, e.g., Espichan, 945 F.3d at 799 (looking to Peruvian law). We note, too, that the laws of other foreign nations or states could also have authority over a marriage, if, for example, the married couple was issued a valid separation in a third location that was neither the marital country nor the state in which the parent was living at the time of . The bottom line is that if a plaintiff presents evidence of a valid separation under the laws of any jurisdiction having proper authority over the marriage, such"], "id": "960f9d8f-6222-44a2-9967-5c908a9e4c2e", "sub_label": "US_Terminology"} {"obj_label": "naturalization", "legal_topic": "Immigration", "masked_sentences": ["*842The respondents seek to justify their requirement of the affidavit because of the institution of permanent registration. The statute providing for permanent registration seems, however, to have been drawn in the light of the quoted provision in section 170 and with the purpose to continue the provision dispensing with the production of naturalization papers in the case of one who had already done so in a previous year."], "id": "676a2b66-4120-4fb6-b32f-e9df0e137ba3", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["ed the requirement that an alien be married to a U.S. citizen \u201cfor at least 2 years at the time of the citizen\u2019s death\u201d to retain his or her eligibility for lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, \u00a7 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its surviving spouse guidance \u201cobsolete,\u201d USCIS withdrew its earlier guidance and treated all pending applications for as visa petitions. See Memorandum for Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec. 2, 2009)."], "id": "9c2c442c-7cb4-4ff2-a5c7-2584c75e762d", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition\u2014as it has for VAWA self-petitioners and individuals eligible for T or U visas\u2014or enabled their undocumented children to petition for visas on their behalf. Nor would granting to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implementation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA. But a concern with furthering family unity alone would not justify the proposed program, because in the absence of any family member with lawful status in the United States, it would not explain why that concern should be satisfied by permitting family mem- bers to remain in the United States. The decision to grant deferred action to DACA parents thus seems to depend critically on the earlier decision to make deferred action available to their children. But we are aware of no precedent for using deferred action in this way, to respond to humanitari- an needs rooted in earlier exercises of deferred action. The logic underly- ing such an expansion does not have a clear stopping point: It would appear to argue in favor of extending relief not only to parents of DACA recipients, but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives\u2019 close rela- tives, and perhaps the relatives (and relatives\u2019 relatives) of any alien granted any form of discretionary relief from removal by the Executive. For these reasons, the proposed deferred action program for the parents of DACA recipients is meaningfully different from the proposed program for the parents of U.S. citizens and LPRs. It does not sound in Congress\u2019s concern for maintaining the integrity of families of individuals legally entitled to live in the United States. And unlike prior deferred action programs in which Congress has acquiesced, it would treat the Execu- tive\u2019s prior decision to extend deferred action to one population as justify- ing the extension of deferred action to additional populations. DHS, of course, remains free to consider whether to grant deferred action to indi- vidual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed class-based deferred action pro- gram for DACA parents would be consistent with the congressional policies and priorities embodied in the immigration laws, we conclude that it would not be permissible."], "id": "2440f5ff-804b-4810-a7d5-b0f59486f03d", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["that applicants placed on a waiting list for visas \u201cshall maintain [their] current means to prevent removal (, parole, or stay of removal)\u201d); id. \u00a7 214.14(d)(2) (promulgated by New Classification for Victims of Criminal Activity; Eligibility for \u201cU\u201d Nonimmigrant Status, 72 Fed. Reg. 53,014, 53,039 (Sept. 17, 2007)) (\u201cUSCIS will grant de- ferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list\u201d for visas). 3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a consequence of the devastation caused by Hurricane Katrina in 2005, several thousand foreign students became temporarily unable to satisfy the requirements for maintaining their lawful status as nonimmigrant students, which include \u201cpursuit of a \u2018full course of study.\u2019\u201d USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. \u00a7 214.2(f)(6)), http://www. uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/ Previous%20Special%20Situations%20By%20Topic/faq-interim-student- relief-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced that it would grant deferred action to these students \u201cbased on the fact that [their] failure to maintain status is directly due to Hurricane Katri- na.\u201d Id. at 7. To apply for deferred action under this program, students were required to send a letter substantiating their need for deferred ac- tion, along with an application for work authorization. Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina at 1\u20132 (Nov. 25, 2005), http://www. uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR. pdf (last visited Nov. 19, 2014). USCIS explained that such requests for deferred action would be \u201cdecided on a case-by-case basis\u201d and that it could not \u201cprovide any assurance that all such requests will be granted.\u201d Id. at 1. 4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS implemented a deferred action program for certain widows and widowers of U.S. citizens. USCIS explained that \u201cno avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen\u2019s death\u201d and USCIS had not yet adjudi- cated a visa petition on the spouse\u2019s behalf. Memorandum for Field Lead-"], "id": "c99073e5-3f4b-43e3-9e16-8f8e53ee7ba7", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["remain together with their children for the entire duration of the time until a visa is awarded. In particular, undocumented parents of adult citizens who are physically present in the country would be ineligible to adjust their status without first leaving the country if they had never been \u201cinspected and admitted or paroled into the United States.\u201d 8 U.S.C. \u00a7 1255(a) (permitting the Attorney General to adjust to permanent resident status certain aliens present in the United States if they become eligible for immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id. \u00a7 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197\u201399. But once such parents left the country, they would in most instances become subject to the 3- or 10-year bar under 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for the duration of the bar. DHS\u2019s proposed program would neverthe- less enable other families to stay together without regard to the 3- or 10-year bar. And even as to those families with parents who would become subject to that bar, the proposed program would have the effect of reducing the amount of time the family had to spend apart, and could enable them to adjust the timing of their separation accord- ing to, for example, their children\u2019s needs for care and support. 15 Several extended voluntary departure programs have been animated by a similar"], "id": "fae4ee54-99b0-4289-858b-9a628e56b3a6", "sub_label": "US_Terminology"} {"obj_label": "Deferred action", "legal_topic": "Immigration", "masked_sentences": ["citizens and LPRs, the proposed program for parents of DACA recipients would respond to severe resource constraints that dramatically limit DHS\u2019s ability to remove aliens who are unlawfully present, and would be limited to individuals who would be unlikely to be removed under DHS\u2019s proposed prioritization policy. And like the proposed program for LPRs and U.S. citizens, the proposed program for DACA parents would pre- serve a significant measure of case-by-case discretion not to award de- ferred action even if the general eligibility criteria are satisfied. But the proposed program for parents of DACA recipients is unlike the proposed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. Many provisions of the INA reflect Congress\u2019s general concern with not separating individu- als who are legally entitled to live in the United States from their immedi- ate family members. See, e.g., 8 U.S.C. \u00a7 1151(b)(2)(A)(i) (permitting citizens to petition for parents, spouses, and children); id. \u00a7 1229b(b)(1) (allowing cancellation of removal for relatives of citizens and LPRs). But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families. DACA recipients unquestionably lack lawful status in the United States. See DACA Toolkit at 8 (\u201c . . . does not provide you with a lawful status.\u201d). Although they may presump- tively remain in the United States, at least for the duration of the grant of deferred action, that grant is both time-limited and contingent, revocable at any time in the agency\u2019s discretion. Extending deferred action to the parents of DACA recipients would therefore expand family-based immi- gration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies. Second, as it has been described to us, the proposed deferred action program for the parents of DACA recipients would represent a significant departure from deferred action programs that Congress has implicitly approved in the past. Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such"], "id": "734c6fa4-d296-47c5-8383-9225c38ff657", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["Much as is the case with those programs, inviting eligible aliens to identi- fy themselves through an application process may serve the agency\u2019s law enforcement interests by encouraging lower-priority individuals to identi- fy themselves to the agency. In so doing, the process may enable the agency to better focus its scarce resources on higher enforcement priori- ties. Apart from the considerations just discussed, perhaps the clearest indi- cation that these features of programs are not per se im- permissible is the fact that Congress, aware of these features, has repeat- edly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action programs\u2014and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program\u2014but also ranked evidence of approved deferred action status as evidence of \u201clawful status\u201d for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy \u201c\u2018rather than embarking on a frolic of its own.\u2019\u201d United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137\u201339 (concluding that Con- gress acquiesced in an agency\u2019s assertion of regulatory authority by \u201crefus[ing] . . . to overrule\u201d the agency\u2019s view after it was specifically \u201cbrought to Congress\u2019[s] attention,\u201d and further finding implicit congres- sional approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress \u201cimplicitly approved the practice of claim settlement by executive agreement\u201d by enacting the International Claims Settlement Act of 1949, which \u201ccreate[d] a procedure to implement\u201d those very agreements)."], "id": "a7614588-b19a-4755-bbc5-39dda6bdb3b6", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["Although the practice of granting \u201cdeveloped without express statutory authorization,\u201d it has become a regular feature of the immigration removal system that has been acknowledged by both Con- gress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks omitted); see id. at 485 (noting that a congressional enactment limiting judicial review of decisions \u201cto com- mence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]\u201d in 8 U.S.C. \u00a7 1252(g) \u201cseems clearly de- signed to give some measure of protection to \u2018no deferred action\u2019 deci- sions and similar discretionary determinations\u201d); see also, e.g., 8 U.S.C. \u00a7 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are \u201celigi- ble for deferred action\u201d). Deferred action \u201cdoes not confer any immigra- tion status\u201d\u2014i.e., it does not establish any enforceable legal right to remain in the United States\u2014and it may be revoked by immigration authorities at their discretion. USCIS SOP at 3, 7. Assuming it is not revoked, however, it represents DHS\u2019s decision not to seek the alien\u2019s removal for a specified period of time. Under longstanding regulations and policy guidance promulgated pursuant to statutory authority in the INA, deferred action recipients may receive two additional benefits. First, relying on DHS\u2019s statutory authority to authorize certain aliens to work in the United States, DHS regulations permit recipients of deferred action to apply for work author- ization if they can demonstrate an \u201ceconomic necessity for employ- ment.\u201d 8 C.F.R. \u00a7 274a.12(c)(14); see 8 U.S.C. \u00a7 1324a(h)(3) (defining an \u201cunauthorized alien\u201d not entitled to work in the United States as an alien who is neither an LPR nor \u201cauthorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Secu- rity]\u201d). Second, DHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will tempo- rarily cease accruing \u201cunlawful presence\u201d for purposes of 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. \u00a7 214.14(d)(3); 28 C.F.R. \u00a7 1100.35(b)(2); Memorandum for Field Leadership from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)( i ) and 212(a)(9)(C)( i )( I ) of the Act at 42 (May 6, 2009) (\u201cUSCIS Consolidation of Guidance\u201d) (noting that \u201c[a]ccrual of unlawful presence stops on the date an alien is granted"], "id": "b2f49a19-b00d-454a-9df0-6219a3dda9bf", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["11 Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA con- tained no provisions comprehensively addressing the employment of aliens or expressly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to prescribe the classes of aliens authorized to work in the United States under its general responsibility to administer the immigration laws. In 1981, INS promulgated regulations codifying its existing procedures and criteria for granting employment authorization. See Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25,079, 25,080\u201381 (May 5, 1981) (citing 8 U.S.C. \u00a7 1103(a)). Those regulations permitted certain categories of aliens who lacked lawful immigration status, including recipients, to apply for work authorization under certain circumstances. 8 C.F.R. \u00a7 109.1(b)(7) (1982). In IRCA, Congress introduced a \u201ccompre- hensive scheme prohibiting the employment of illegal aliens in the United States,\u201d Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an \u201cunauthorized alien.\u201d As relevant here, Congress defined an \u201cunauthorized alien\u201d barred from employment in the United States as an alien who \u201cis not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.\u201d 8 U.S.C. \u00a7 1324a(h)(3) (emphasis added). Shortly after IRCA was enacted, INS denied a petition to rescind its employment authorization regulation, rejecting an argument that \u201cthe phrase \u2018authorized to be so employed by this Act or the Attorney General\u2019 does not recognize the Attorney General\u2019s authority to grant work authorization except to those aliens who have already been granted specific authori- zation by the Act.\u201d Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg."], "id": "521306f4-e710-41f3-b7ac-24b8af4d4c10", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["See USCIS SOP at 3. It is true that, as we have discussed, a grant of would confer eligibility to apply for and obtain work authorization, pursuant to the Secretary\u2019s statutory authority to grant such authorization and the longstanding regulations promulgated there- under. See supra pp. 55, 65\u201366. But unlike the automatic employment eligibility that accompanies LPR status, see 8 U.S.C. \u00a7 1324a(h)(3), this authorization could be granted only on a showing of economic necessity, and would last only for the limited duration of the deferred action grant, see 8 C.F.R. \u00a7 274a.12(c)(14). The other salient features of the proposal are similarly consonant with congressional policy. The proposed program would focus on parents who are not enforcement priorities under the prioritization policy discussed above\u2014a policy that, as explained earlier, comports with the removal priorities set by Congress. See supra pp. 50\u201351. The continuous residence requirement is likewise consistent with legislative judgments that extend- ed periods of continuous residence are indicative of strong family and community ties. See IRCA \u00a7 201(a), 100 Stat. at 3394 (codified as amended at 8 U.S.C. \u00a7 1255a(a)(2)) (granting lawful status to certain aliens unlawfully present in the United States since January 1, 1982); id. \u00a7 302(a) (codified as amended at 8 U.S.C. \u00a7 1160) (granting similar relief to certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986) (stating that aliens present in the United States for five years \u201chave be- come a part of their communities[,] . . . have strong family ties here which include U.S. citizens and lawful residents[,] . . . have built social networks in this country[, and] . . . have contributed to the United States in myriad ways\u201d); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who \u201chave become well settled in this country\u201d would be a \u201cwasteful use of the Immigration and Naturalization Service\u2019s limited enforcement re- sources\u201d); see also Arizona, 132 S. Ct. at 2499 (noting that \u201c[t]he equities of an individual case\u201d turn on factors \u201cincluding whether the alien has . . . long ties to the community\u201d). We also do not believe DHS\u2019s proposed program amounts to an abdica- tion of its statutory responsibilities, or a legislative rule overriding the commands of the statute. As discussed earlier, DHS\u2019s severe resource constraints mean that, unless circumstances change, it could not as a practical matter remove the vast majority of removable aliens present in the United States. The fact that the proposed program would defer the"], "id": "40c48392-e66f-443f-9f5d-1dee7b67716d", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["deferred action\u201d); see 8 U.S.C. \u00a7 1182(a)(9)(B)(ii) (providing that an alien is \u201cunlawfully present\u201d if, among other things, he \u201cis present in the United States after the expiration of the period of stay authorized by the Attorney General\u201d). 6 Immigration officials today continue to grant in indi- vidual cases for humanitarian and other purposes, a practice we will refer to as \u201cad hoc deferred action.\u201d Recent USCIS guidance provides that personnel may recommend ad hoc deferred action if they \u201cencounter cases during [their] normal course of business that they feel warrant deferred action.\u201d USCIS SOP at 4. An alien may also apply for ad hoc deferred action by submitting a signed, written request to USCIS containing \u201c[a]n explanation as to why he or she is seeking deferred action\u201d along with supporting documentation, proof of identity, and other records. Id. at 3. For decades, INS and later DHS have also implemented broader pro- grams that make discretionary relief from removal available for particular classes of aliens. In many instances, these agencies have made such broad-based relief available through the use of parole, temporary protect- ed status, deferred enforced departure, or extended voluntary departure. For example, from 1956 to 1972, INS implemented an extended voluntary departure program for physically present aliens who were beneficiaries of approved visa petitions\u2014known as \u201cThird Preference\u201d visa petitions\u2014 relating to a specific class of visas for Eastern Hemisphere natives. See United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979\u201380 (E.D. Pa. 1977). Similarly, for several years beginning in 1978, INS granted ex- tended voluntary departure to nurses who were eligible for H-1 visas. Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen instances dating to 1956, INS and later DHS granted parole, temporary protected status, deferred enforced departure, or extended voluntary departure to large numbers of nationals of designated foreign states."], "id": "80a934ee-df84-420d-9d0b-bed7a5bc85e2", "sub_label": "US_Terminology"} {"obj_label": "Deferred action", "legal_topic": "Immigration", "masked_sentences": [", however, differs in at least three respects from more familiar and widespread exercises of enforcement discretion. First, unlike (for example) the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a deci- sion not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien\u2019s contin- ued presence in the United States for a fixed period (subject to revocation at the agency\u2019s discretion). Second, unlike most exercises of enforcement discretion, deferred action carries with it benefits in addition to non- enforcement itself; specifically, the ability to seek employment authori- zation and suspension of unlawful presence for purposes of 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action programs, like those for VAWA recipients and victims of Hurricane Katrina, do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identi- fied or apprehended for possible removal\u2014as is the case with ad hoc deferred action\u2014but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status. While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature\u2014the toleration of an alien\u2019s continued unlawful presence\u2014is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien\u2014even through an exercise of routine enforcement discretion\u2014necessarily carries with it a tacit ac- knowledgment that the alien will continue to be present in the United States without legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fun- damentally transform deferred action into something other than an exer- cise of enforcement discretion: As we have previously noted, deferred action confers no lawful immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency\u2019s discretion."], "id": "0bc53f9d-ae06-4007-b56a-6a4aa6192d9e", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["10 Five years later, in the Violence Against Women and Department of Justice Reau- thorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that, \u201c[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization.\u201d Id. \u00a7 814(b) (codified at 8 U.S.C. \u00a7 1154(a)(1)(K)). One of the Act\u2019s sponsors explained that while this provision was intended to \u201cgive[] DHS statutory authority to grant work authorization . . . without having to rely upon . . . [t]he current practice of granting deferred action to approved VAWA self-petitioners should continue.\u201d 151 Cong. Rec. 29,334 (2005) (statement of Rep. Conyers)."], "id": "c71f54d4-b194-414a-bcaf-8944920b7284", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["ence under section 1182(a)(9)(B)(i) or (a)(9)(C)(i). And DHS regulations and policy guidance interpret a \u201cperiod of stay authorized by the Attorney General\u201d to include periods during which an alien has been granted de- ferred action. See 8 C.F.R. \u00a7 214.14(d)(3); 28 C.F.R. \u00a7 1100.35(b)(2); USCIS Consolidation of Guidance at 42. The final unusual feature of programs is particular to class-based programs. The breadth of such programs, in combination with the first two features of deferred action, may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its appli- cation to individual circumstances. But the salient feature of class-based programs\u2014the establishment of an affirmative application process with threshold eligibility criteria\u2014does not in and of itself cross the line be- tween executing the law and rewriting it. Although every class-wide deferred action program that has been implemented to date has established certain threshold eligibility criteria, each program has also left room for case-by-case determinations, giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. See supra pp. 57\u201361. Like the establishment of enforcement priorities discussed in Part I, the establishment of threshold eligibility criteria can serve to avoid arbitrary enforcement decisions by individual officers, thereby furthering the goal of ensuring consistency across a large agency. The guarantee of individualized, case-by-case review helps avoid poten- tial concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. See Crowley Car- ibbean Transp., 37 F.3d at 676\u201377; see also Chaney, 470 U.S. at 833 n.4. Furthermore, while permitting potentially eligible individuals to apply for an exercise of enforcement discretion is not especially common, many law enforcement agencies have developed programs that invite violators of the law to identify themselves to the authorities in exchange for leniency. 12"], "id": "36f76744-8b73-4efb-a076-99d664d10e0c", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). \u201cIn order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,\u201d USCIS issued guidance permitting covered surviving spouses and \u201ctheir qualifying children who are residing in the United States\u201d to apply for . Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for exam- ple, \u201cserious adverse factors, such as national security concerns, signifi- cant immigration fraud, commission of other crimes, or public safety reasons.\u201d Id. at 6. 7 5. Deferred Action for Childhood Arrivals. Announced by DHS in 2012, DACA makes deferred action available to \u201ccertain young people who were brought to this country as children\u201d and therefore \u201c[a]s a gen- eral matter . . . lacked the intent to violate the law.\u201d Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (\u201cNapolitano Memorandum\u201d). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor \u201cposes a threat to national security or public safety.\u201d See id. DHS evaluates appli- cants\u2019 eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (\u201cDACA Toolkit\u201d). Successful DACA appli-"], "id": "1c33e8a8-54f5-44a3-b3b0-127021c9c481", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["Congress\u2019s apparent endorsement of certain programs does not mean, of course, that a deferred action program can be lawfully extended to any group of aliens, no matter its characteristics or its scope, and no matter the circumstances in which the program is implemented. Because deferred action, like the prioritization policy discussed above, is an exercise of enforcement discretion rooted in the Secretary\u2019s broad authority to enforce the immigration laws and the President\u2019s duty to take care that the laws are faithfully executed, it is subject to the same four general principles previously discussed. See supra pp. 46\u201347. Thus, any expansion of deferred action to new classes of aliens must be carefully scrutinized to ensure that it reflects considerations within the agency\u2019s expertise, and that it does not seek to effectively rewrite the laws to match the Executive\u2019s policy preferences, but rather operates in a manner conso- nant with congressional policy expressed in the statute. See supra p. 46 (citing Youngstown, 343 U.S. at 637, and Nat\u2019l Ass\u2019n of Home Builders, 551 U.S. at 658). Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra pp. 46\u201347 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. See supra p. 47 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp., 37 F.3d at 676\u201377). Furthermore, because deferred action programs depart in certain re- spects from more familiar and widespread exercises of enforcement discretion, particularly careful examination is needed to ensure that any proposed expansion of deferred action complies with these general princi- ples, so that the proposed program does not, in effect, cross the line be- tween executing the law and rewriting it. In analyzing whether the pro- posed programs cross this line, we will draw substantial guidance from Congress\u2019s history of legislation concerning deferred action. In the ab- sence of express statutory guidance, the nature of deferred action pro- grams Congress has implicitly approved by statute helps to shed light on Congress\u2019s own understandings about the permissible uses of deferred action. Those understandings, in turn, help to inform our consideration of whether the proposed deferred action programs are \u201cfaithful[]\u201d to the statutory scheme Congress has enacted. U.S. Const. art. II, \u00a7 3."], "id": "f6f19364-6e51-4721-88b5-1bc816115360", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the par- ents of U.S. citizens and LPRs\u2014that is, of children who have established permanent legal ties to the United States\u2014would separate them from their nuclear families, potentially for many years, until they were able to secure visas through the path Congress has provided. During that time, both the parents and their U.S. citizen or LPR children would be deprived of both the economic support and the intangible benefits that families provide. We recognize that the proposed program would likely differ in size from these prior programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive\u2019s duties under the Take Care Clause. In the absence of express statutory guidance, it is difficult to say exactly how the program\u2019s potential size bears on its permissibility as an exercise of executive enforcement discre- tion. But because the size of DHS\u2019s proposed program corresponds to the size of a population to which Congress has granted a prospective entitle- ment to lawful status without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS\u2019s proposal to grant a limited form of administrative relief as a temporary interim meas- ure exceeds its enforcement discretion under the INA. Furthermore, while the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS\u2019s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred"], "id": "cf01a2a4-ce9d-4111-b209-600b132f81e4", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["The People appealed the trial court's order granting the petition for writ of habeas corpus. (See Pen. Code, \u00a7 15065 [authorizing the People to take an appeal from \"a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought\"].)6 We affirmed the trial court's order granting Berg's petition for writ of habeas corpus. ( Berg I , supra , 247 Cal.App.4th 418, 202 Cal.Rptr.3d 786 *864.) The Supreme Court granted the People's petition for review and in the matter pending consideration of a related issue in In re Kirchner (2016) 244 Cal.App.4th 1398, 199 Cal.Rptr.3d 416, review granted May 18, 2016, S233508. (Berg I , supra , review granted July 27, 2016, S235277, briefing deferred pursuant to Cal. Rules of Court, rule 8.512(d)(2).) After issuing its opinion In re Kirchner (2017) 2 Cal.5th 1040, 216 Cal.Rptr.3d 876, 393 P.3d 364, the Supreme Court dismissed review in this case and remanded the matter to this court. (Berg I , supra , S235277, review dismissed July 26, 2017.)"], "id": "c6c6f95f-136a-480e-a002-b0bb5b50073b", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["action of the size contemplated here, INS\u2019s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens\u2014approximately four in ten\u2014potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immi- gration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5, 15 (discussing extended voluntary departure and Congress\u2019s implicit approval of the Family Fairness policy). This suggests that DHS\u2019s proposed program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context. In light of these considerations, we believe the proposed expansion of deferred action to the parents of U.S. citizens and LPRs is lawful. It reflects considerations\u2014responding to resource constraints and to particu- larized humanitarian concerns arising in the immigration context\u2014that fall within DHS\u2019s expertise. It is consistent with congressional policy, since it focuses on a group\u2014law-abiding parents of lawfully present children who have substantial ties to the community\u2014that Congress itself has granted favorable treatment in the immigration process. The program provides for the exercise of case-by-case discretion, thereby avoiding creating a rule-like entitlement to immigration relief or abdicating DHS\u2019s enforcement responsibilities for a particular class of aliens. And, like several deferred action programs Congress has approved in the past, the proposed program provides interim relief that would prevent particular- ized harm that could otherwise befall both the beneficiaries of the pro- gram and their families. We accordingly conclude that the proposed program would constitute a permissible exercise of DHS\u2019s enforcement discretion under the INA."], "id": "51e9a097-afc1-44ac-a2e2-38686a95581d", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["The practice of granting dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant \u201cnon-priority\u201d status to removable aliens who pre- sented \u201cappealing humanitarian factors.\u201d Letter for Leon Wildes from E.A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973) (defining a \u201cnon-priority case\u201d as \u201cone in which the Service in the exercise of discretion determines that adverse action would be uncon- scionable because of appealing humanitarian factors\u201d); see INS Operat- ing Instructions \u00a7 103.1(a)(1)(ii) (1962). This form of administrative discretion was later termed \u201cdeferred action.\u201d Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484; see INS Operating Instructions \u00a7 103.1(a)(1)(ii) (1977) (instructing immigration officers to recommend deferred action whenever \u201cadverse action would be unconscionable because of the exist- ence of appealing humanitarian factors\u201d)."], "id": "c5cb5b0c-8620-485f-a8a7-395c98abd56a", "sub_label": "US_Terminology"} {"obj_label": "Deferred Action", "legal_topic": "Immigration", "masked_sentences": ["In immigration law, the term \u201cdeferred action\u201d refers to an exercise of administrative discretion in which immigration officials temporarily defer the removal of an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al., Immigration Law and Procedure \u00a7 72.03[2][h] (1998)); see USCIS, Standard Operating Procedures for Handling Requests at USCIS Field Offices at 3 (2012) (\u201cUSCIS SOP\u201d); INS Operating Instructions \u00a7 103.1(a)(1)(ii) (1977). It is one of a number of forms of discretionary relief\u2014in addition to such statutory and non-statutory measures as parole, temporary protected status, deferred enforced depar- ture, and extended voluntary departure\u2014that immigration officials have used over the years to temporarily prevent the removal of undocumented aliens. 5"], "id": "95d23ee6-77fd-41e5-a893-e487eb772f3c", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["removal of a subset of these removable aliens\u2014a subset that ranks near the bottom of the list of the agency\u2019s removal priorities\u2014thus does not, by itself, demonstrate that the program amounts to an abdication of DHS\u2019s responsibilities. And the case-by-case discretion given to immigration officials under DHS\u2019s proposed program alleviates potential concerns that DHS has abdicated its statutory enforcement responsibilities with respect to, or created a categorical, rule-like entitlement to immigration relief for, the particular class of aliens eligible for the program. An alien who meets all the criteria for under the program would receive de- ferred action only if he or she \u201cpresent[ed] no other factors that, in the exercise of discretion,\u201d would \u201cmake[] the grant of deferred action inap- propriate.\u201d Johnson Deferred Action Memorandum at 4. The proposed policy does not specify what would count as such a factor; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted. In other words, even if an alien is not a removal priority under the proposed policy discussed in Part I, has continuously resided in the United States since before Janu- ary 1, 2010, is physically present in the country, and is a parent of an LPR or a U.S. citizen, the USCIS official evaluating the alien\u2019s deferred action application must still make a judgment, in the exercise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate. This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens. Finally, the proposed deferred action program would resemble in mate- rial respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a gen- eral matter, but also with congressional understandings about the permis- sible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immigration status. While Con- gress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status \u201ctakes time.\u201d Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mech-"], "id": "5ec97e95-8e96-4534-868b-4f10fbeabfff", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["legislation in 2000, INS officials testified before Congress about their program for VAWA self-petitioners, explaining that \u201c[a]pproved [VAWA] self-petitioners are placed in deferred action sta- tus,\u201d such that \u201c[n]o battered alien who has filed a[n approved] self petition . . . has been deported.\u201d H.R. 3083 Hearings at 43. Congress responded by not only acknowledging but also expanding the deferred action program in the 2000 VAWA reauthorization legislation, providing that children who could no longer self-petition under VAWA because they were over the age of 21 would nonetheless be \u201celigible for deferred action and work authorization.\u201d VTVPA \u00a7 1503(d)(2), 114 Stat. at 1522 (codified at 8 U.S.C. \u00a7 1154(a)(1)(D)(i)(II), (IV)). 10 Congress demonstrated a similar awareness of INS\u2019s (and later DHS\u2019s) deferred action program for bona fide T and U visa applicants. As dis- cussed above, that program made deferred action available to nearly all individuals who could make a prima facie showing of eligibility for a T or U visa. In 2008 legislation, Congress authorized DHS to \u201cgrant . . . an administrative stay of a final order of removal\u201d to any such individual. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, \u00a7 204, 122 Stat. 5044, 5060 (codified at 8 U.S.C. \u00a7 1227(d )(1)). Congress further clarified that \u201c[t]he denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action.\u201d Id. It also directed DHS to compile a report detailing, among other things, how long DHS\u2019s \u201cspecially trained [VAWA] Unit at the [USCIS] Vermont Service Center\u201d took to adjudicate victim-based immigration applications for \u201cdeferred action,\u201d along with \u201csteps taken to improve in this area.\u201d Id. \u00a7 238. Representative Berman, the bill\u2019s sponsor, explained that the Vermont Service Center should \u201cstrive to issue work authorization and deferred action\u201d to \u201c[i]mmigrant victims of domestic violence, sexual"], "id": "03af1eec-1d16-4ac8-ad49-694dbac957f7", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["assault and other violence crimes . . . in most instances within 60 days of filing.\u201d 154 Cong. Rec. 24,603 (2008). In addition, in other enactments, Congress has specified that certain classes of individuals should be made \u201celigible for .\u201d These classes include certain immediate family members of LPRs who were killed on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No. 107-56, \u00a7 423(b), 115 Stat. 272, 361, and certain immediate family mem- bers of certain U.S. citizens killed in combat, National Defense Authori- zation Act for Fiscal Year 2004, Pub. L. No. 108-136, \u00a7 1703(c)\u2013(d), 117 Stat. 1392, 1694 (2003). In the same legislation, Congress made these individuals eligible to obtain lawful status as \u201cfamily-sponsored immi- grant[s]\u201d or \u201cimmediate relative[s]\u201d of U.S. citizens. Pub. L. No. 107-56, \u00a7 423(b), 115 Stat. at 361; Pub. L. No. 108-136, \u00a7 1703(c)(1)(A), 117 Stat. at 1694. See generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2197 (2014) (plurality opinion) (explaining which aliens typically qualify as family-sponsored immigrants or immediate relatives). Finally, Congress acknowledged the practice of granting deferred ac- tion in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified at 49 U.S.C. \u00a7 30301 note), which makes a state-issued driver\u2019s license or identification card acceptable for federal purposes only if the state verifies, among other things, that the card\u2019s recipient has \u201c[e]vidence of [l]awful [s]tatus.\u201d Congress specified that, for this purpose, acceptable evidence of lawful status includes proof of, among other things, citizenship, lawful permanent or temporary residence, or \u201cap- proved deferred action status.\u201d Id. \u00a7 202(c)(2)(B)(viii)."], "id": "81411ccd-76ee-448b-b970-420f3cf5c443", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["8 Before DACA was announced, our Office was consulted about whether such a pro- gram would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigra- tion officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case- by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs, the con- cerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion. 9 Congress has considered legislation that would limit the practice of granting deferred"], "id": "4108ba17-4657-492e-a0d2-cc1a84b1d0d5", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["anism for families to remain together, depending on their circumstances, for some or all of the intervening period. 14 Immigration officials have on several occasions deployed programs as interim measures for other classes of aliens with prospective entitlements to lawful immi- gration status, including VAWA self-petitioners, bona fide T and U visa applicants, certain immediate family members of certain U.S. citizens killed in combat, and certain immediate family members of aliens killed on September 11, 2001. As noted above, each of these programs has received Congress\u2019s implicit approval\u2014and, indeed, in the case of VAWA self-petitioners, a direction to expand the program beyond its original bounds. See supra pp. 61\u201363. 15 In addition, much like these and"], "id": "33aff02b-2714-4a9f-9e7b-38ef27858958", "sub_label": "US_Terminology"} {"obj_label": "Deferred Action", "legal_topic": "Immigration", "masked_sentences": ["Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm. on Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong. at 43 (July 20, 2000) (\u201cH.R. 3083 Hearings\u201d). 2. for T and U Visa Applicants. Several years later, INS instituted a similar deferred action program for applicants for nonimmigrant status or visas made available under the Victims of Traf- ficking and Violence Protection Act of 2000 (\u201cVTVPA\u201d), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two new nonimmigrant classi- fications: a \u201cT visa\u201d available to victims of human trafficking and their family members, and a \u201cU visa\u201d for victims of certain other crimes and their family members. Id. \u00a7\u00a7 107(e), 1513(b)(3) (codified at 8 U.S.C. \u00a7 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing immigration officers to locate \u201cpossible victims in the above categories,\u201d and to use \u201c[e]xisting authority and mechanisms such as parole, deferred action, and stays of removal\u201d to prevent those victims\u2019 removal \u201cuntil they have had the opportunity to avail themselves of the provisions of the VTVPA.\u201d Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2\u2014\u201cT\u201d and \u201cU\u201d Nonimmi- grant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instruct- ed officers to make \u201cdeferred action assessment[s]\u201d for \u201call [T visa] applicants whose applications have been determined to be bona fide,\u201d Memorandum for Johnny N. Williams, Executive Associate Commission- er, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Non- immigrant Status at 1 (May 8, 2002), as well as for all U visa applicants \u201cdetermined to have submitted prima facie evidence of [their] eligibility,\u201d Memorandum for the Director, Vermont Service Center, INS, from Wil- liam R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonim- migrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and DHS promulgated regulations embodying these policies. See 8 C.F.R. \u00a7 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for \u201cT\u201d Nonimmigrant Status, 67 Fed. Reg. 4784, 4800\u201301 (Jan. 31, 2002)) (providing that any T visa applicant who presents \u201cprima facie evidence\u201d of his eligibility should have his removal \u201cautomatically stay[ed]\u201d and"], "id": "c5169b80-5920-4325-bf58-1e76601aae30", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["cants receive for a period of two years, subject to renewal. See DACA Toolkit at 11. DHS has stated that grants of deferred action under DACA may be terminated at any time, id. at 16, and \u201cconfer[] no substantive right, immigration status or pathway to citizenship,\u201d Napoli- tano Memorandum at 3. 8 Congress has long been aware of the practice of granting deferred ac- tion, including in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice. 9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens. For example, as Congress was considering VAWA reauthorization"], "id": "9e48854e-8ced-42f9-b55c-659bfbbfd3f3", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["Upon applying for hospital privileges at the Peninsula General *793Hospital, the hospital nearest to petitioner\u2019s office, he was informed, in writing, that \u201c [T]be Credentials Committee has on your application since you are not a member of a county medical society\u201d and that \u201cEligibility for such membership is a requirement under our by-laws \u201d, Petitioner was further informed that \u201cyour application will again be processed * * * when you are granted membership"], "id": "ab7502f0-df64-4120-afdf-40bb93d96213", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["action, but it has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that would have temporarily suspended DHS\u2019s authority to grant except in narrow circumstances. See H.R. 2497, 112th Cong. (2011); S. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the House passed a bill that purported to bar any funding for DACA or other class-wide deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate has not consid- ered the legislation. Because the Supreme Court has instructed that unenacted legislation is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from these unenacted bills."], "id": "37d7cd68-c332-4a45-a4b2-02d743f11f59", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["We now turn to the specifics of DHS\u2019s proposed pro- grams. DHS has proposed implementing a policy under which an alien could apply for, and would be eligible to receive, deferred action if he or she: (1) is not an enforcement priority under DHS policy; (2) has continu- ously resided in the United States since before January 1, 2010; (3) is physically present in the United States both when DHS announces its program and at the time of application for deferred action; (4) has a child who is a U.S. citizen or LPR; and (5) presents \u201cno other factors that, in the exercise of discretion, make[] the grant of deferred action inappropri- ate.\u201d Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a similar program that would be open to par- ents of children who have received deferred action under the DACA program. We first address DHS\u2019s proposal to implement a deferred action program for the parents of U.S. citizens and LPRs, and then turn to the permissibility of the program for parents of DACA recipients in the next subsection."], "id": "9e61fe2d-f5f9-42ea-9e47-f4b1340a2415", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["We turn next to the permissibility of DHS\u2019s proposed programs for certain aliens who are parents of U.S. citizens, lawful per- manent residents (\u201cLPRs\u201d), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by dis- cussing the history and current practice of deferred action. We then dis- cuss the legal authorities on which deferred action relies and identify legal principles against which the proposed use of deferred action can be evalu- ated. Finally, we turn to an analysis of the proposed deferred action pro- grams themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipi- ents."], "id": "37decf03-be33-4e0c-b57c-94d401660468", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS\u2019s proposed policy would priori- tize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (\u201cICE\u201d) Field Office Director determined that \u201cremoving such an alien would serve an important federal interest.\u201d Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocu- mented Immigrants at 5 (Nov. 17, 2014) (\u201cJohnson Prioritization Memo- randum\u201d). Second, you have asked whether it would be permissible for DHS to extend , a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents \u201cno other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.\u201d Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immi- gration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Indi- viduals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (\u201cJohnson Deferred Action Memorandum\u201d). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (\u201cDACA\u201d) program. As has historically been true of deferred action, these proposed deferred action programs would not \u201clegalize\u201d any aliens who are unlawfully Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens"], "id": "29f09a7f-c4d3-42e6-bf2c-036de6167a02", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["In support of the argument that its procedures comply already with section 3304, subdivision (b), the City requests that we take judicial notice of (1) provisions of the Los Angeles City Charter setting forth procedures that are purportedly comparable to the City's procedures, and (2) a written statement submitted by the Los Angeles Police Protective League in 1975 to the California Senate Judiciary Committee in support of legislation providing procedural protections for police officers. We on this request until resolution of the merits of the appeal, and now grant it in part and deny it in part."], "id": "a506cd05-8f91-4493-a62d-53e34d68c629", "sub_label": "US_Terminology"} {"obj_label": "Deferred action", "legal_topic": "Immigration", "masked_sentences": ["present in the United States: does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS\u2019s decision not to seek an alien\u2019s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483\u201384 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. \u00a7\u00a7 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action\u2014like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants\u2014 may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. \u00a7 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an \u201ceco- nomic necessity for employment\u201d); see also id. \u00a7 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien\u2019s accrual of unlawful presence for purposes of 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admis- sion of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS\u2019s discretion. See Johnson Deferred Action Memorandum at 2, 5. For the reasons discussed below, we conclude that DHS\u2019s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS\u2019s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion."], "id": "6e233c10-2157-49bf-b5ab-f2e9b127cc2b", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["such parents have demonstrated significant ties to community and family in this country. See Shahoulian E-mail. With respect to DHS\u2019s first justification, the need to efficiently allocate scarce enforcement resources is a quintessential basis for an agency\u2019s exercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because, as discussed earlier, Congress has appropriated only a small fraction of the funds needed for full enforcement, DHS can remove no more than a small fraction of the individuals who are removable under the immigra- tion laws. See supra p. 49. The agency must therefore make choices about which violations of the immigration laws it will prioritize and pursue. And as Chaney makes clear, such choices are entrusted largely to the Executive\u2019s discretion. 470 U.S. at 831. The program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal re- quires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees. See Sha- houlian E-mail; see also 8 U.S.C. \u00a7 1356(m); 8 C.F.R. \u00a7 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP\u2014the enforcement arms of DHS\u2014which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE\u2019s and CBP\u2019s efficiency by in effect using USCIS\u2019s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id. DHS does not, however, attempt to justify the proposed program solely as a cost-saving measure, or suggest that its lack of resources alone is sufficient to justify creating a deferred action program for the proposed class. Rather, as noted above, DHS has explained that the program would also serve a particularized humanitarian interest in promoting family unity by enabling those parents of U.S. citizens and LPRs who are not other-"], "id": "de13a165-b687-4579-bc39-e06e73b5a033", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["In early April 1996 the New York State Division of Parole was advised by Willis\u2019 North Carolina parole officer of Willis\u2019 November 9,1995 child abuse conviction and sentence to probation. The New York parole officer was also informed by her North Carolina counterpart of Willis\u2019 pending misdemeanor larceny arrest and court date of April 8. At that time, the New York parole officer requested further information regarding the child abuse charges and with respect to a parole violation until the misdemeanor larceny charges were adjudicated."], "id": "567675ed-26e8-43c9-bc24-ef16f5530333", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["Secretary to grant work authorization to particular classes of aliens, see, e.g., 8 U.S.C. \u00a7 1158(c)(1)(B) (aliens granted asylum), it places few lim- itations on the Secretary\u2019s authority to grant work authorization to other classes of aliens. Further, and notably, additional provisions of the INA expressly contemplate that the Secretary may grant work authorization to aliens lacking lawful immigration status\u2014even those who are in active removal proceedings or, in certain circumstances, those who have already received final orders of removal. See id. \u00a7 1226(a)(3) (permitting the Secretary to grant work authorization to an otherwise work-eligible alien who has been arrested and detained pending a decision whether to re- move the alien from the United States); id. \u00a7 1231(a)(7) (permitting the Secretary under certain narrow circumstances to grant work authorization to aliens who have received final orders of removal). Consistent with these provisions, the Secretary has long permitted certain additional classes of aliens who lack lawful immigration status to apply for work authorization, including recipients who can demonstrate an economic necessity for employment. See 8 C.F.R. \u00a7 274a.12(c)(14); see also id. \u00a7 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants for cancellation of removal); supra note 11 (discussing 1981 regulations). The Secretary\u2019s authority to suspend the accrual of unlawful presence of deferred action recipients is similarly grounded in the INA. The rele- vant statutory provision treats an alien as \u201cunlawfully present\u201d for pur- poses of 8 U.S.C. \u00a7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he \u201cis present in the United States after the expiration of the period of stay authorized by the Attorney General.\u201d 8 U.S.C. \u00a7 1182(a)(9)(B)(ii). That language con- templates that the Attorney General (and now the Secretary) may author- ize an alien to stay in the United States without accruing unlawful pres-"], "id": "94eeb64b-be27-46e5-a8b5-d6267ff2ba68", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["The practice of granting , like the practice of setting en- forcement priorities, is an exercise of enforcement discretion rooted in DHS\u2019s authority to enforce the immigration laws and the President\u2019s duty to take care that the laws are faithfully executed. It is one of several mechanisms by which immigration officials, against a backdrop of limited enforcement resources, exercise their \u201cbroad discretion\u201d to administer the removal system\u2014and, more specifically, their discretion to determine whether \u201cit makes sense to pursue removal\u201d in particular circumstances. Arizona, 132 S. Ct. at 2499."], "id": "a5360fd1-37e7-461d-9ab8-39421e07b402", "sub_label": "US_Terminology"} {"obj_label": "Deferred Action", "legal_topic": "Immigration", "masked_sentences": ["* Editor\u2019s Note: This opinion has been withdrawn. The opinion\u2019s principal subject, the for Parents of Americans and Lawful Permanent Residents (\u201cDAPA\u201d) policy, was preliminarily enjoined before it went into effect. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff \u2019d, 809 F.3d 134 (5th Cir. 2015), aff \u2019d by an equally divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit\u2019s decision, on September 4, 2017, Attorney General Sessions concluded that the related Deferred Action for Childhood Arrivals (\u201cDACA\u201d) policy, which is briefly discussed in footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017). Although the Acting Secretary of Homeland Security announced the rescission of DACA on September 5, 2017, the Supreme Court vacated that decision and remanded for further proceedings. See Dep\u2019t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). In order to maximize the Acting Secretary\u2019s discretion on remand, and without regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General Sessions\u2019 September 4, 2017 letter and, for the same reason, further directed this Office to withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland Security, from William P. Barr, Attorney General (June 30, 2020)."], "id": "28885ae0-8c10-4314-a9aa-538f7c2ae270", "sub_label": "US_Terminology"} {"obj_label": "deferred action", "legal_topic": "Immigration", "masked_sentences": ["See, e.g., CRS Immigration Report at 20\u201323; Cong. Research Serv., ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12\u201314 (1980). And in 1990, INS implemented a \u201cFamily Fairness\u201d program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (\u201cIRCA\u201d), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (\u201cFamily Fairness Memorandum\u201d); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of : 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (\u201cVAWA\u201d), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immi- gration status, without having to rely on their abusive family members to petition on their behalf. Id. \u00a7 40701(a) (codified as amended at 8 U.S.C. \u00a7 1154(a)(1)(A)(iii)\u2013(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, \u201con a case-by-case basis, whether to place the alien in deferred action status\u201d while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that \u201c[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.\u201d Id. But because \u201c[i]n an unusual case, there may be factors present that would militate against deferred action,\u201d the agency instructed officers that requests for deferred action should still \u201creceive individual scrutiny.\u201d Id. In 2000, INS report- ed to Congress that, because of this program, no approved VAWA self- petitioner had been removed from the country. See Battered Women"], "id": "619d89eb-8118-4cd5-9f54-c10e8f888879", "sub_label": "US_Terminology"} {"obj_label": "Childhood Arrivals", "legal_topic": "Immigration", "masked_sentences": ["States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS\u2019s proposed policy would priori- tize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (\u201cICE\u201d) Field Office Director determined that \u201cremoving such an alien would serve an important federal interest.\u201d Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocu- mented Immigrants at 5 (Nov. 17, 2014) (\u201cJohnson Prioritization Memo- randum\u201d). Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents \u201cno other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.\u201d Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immi- gration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Indi- viduals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (\u201cJohnson Deferred Action Memorandum\u201d). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for (\u201cDACA\u201d) program. As has historically been true of deferred action, these proposed deferred action programs would not \u201clegalize\u201d any aliens who are unlawfully Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens"], "id": "091beaa9-0adb-43b3-9ebf-79a8dfe2f141", "sub_label": "US_Terminology"} {"obj_label": "Childhood Arrivals", "legal_topic": "Immigration", "masked_sentences": ["ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). \u201cIn order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,\u201d USCIS issued guidance permitting covered surviving spouses and \u201ctheir qualifying children who are residing in the United States\u201d to apply for deferred action. Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for exam- ple, \u201cserious adverse factors, such as national security concerns, signifi- cant immigration fraud, commission of other crimes, or public safety reasons.\u201d Id. at 6. 7 5. Deferred Action for . Announced by DHS in 2012, DACA makes deferred action available to \u201ccertain young people who were brought to this country as children\u201d and therefore \u201c[a]s a gen- eral matter . . . lacked the intent to violate the law.\u201d Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (\u201cNapolitano Memorandum\u201d). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor \u201cposes a threat to national security or public safety.\u201d See id. DHS evaluates appli- cants\u2019 eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (\u201cDACA Toolkit\u201d). Successful DACA appli-"], "id": "556c2330-57e3-44d7-8fc9-ea8a2be8979e", "sub_label": "US_Terminology"} {"obj_label": "Childhood Arrivals", "legal_topic": "Immigration", "masked_sentences": ["* Editor\u2019s Note: This opinion has been withdrawn. The opinion\u2019s principal subject, the Deferred Action for Parents of Americans and Lawful Permanent Residents (\u201cDAPA\u201d) policy, was preliminarily enjoined before it went into effect. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff \u2019d, 809 F.3d 134 (5th Cir. 2015), aff \u2019d by an equally divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit\u2019s decision, on September 4, 2017, Attorney General Sessions concluded that the related Deferred Action for (\u201cDACA\u201d) policy, which is briefly discussed in footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017). Although the Acting Secretary of Homeland Security announced the rescission of DACA on September 5, 2017, the Supreme Court vacated that decision and remanded for further proceedings. See Dep\u2019t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). In order to maximize the Acting Secretary\u2019s discretion on remand, and without regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General Sessions\u2019 September 4, 2017 letter and, for the same reason, further directed this Office to withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland Security, from William P. Barr, Attorney General (June 30, 2020)."], "id": "685be23e-fce7-4830-9807-d12adebc0c72", "sub_label": "US_Terminology"} {"obj_label": "Geneva Conventions", "legal_topic": "Immigration", "masked_sentences": ["applied in particular circumstances to frustrate the President\u2019s ability to fulfill his essential responsibilities under Article II. Nevertheless, the sweeping assertions in the opinions above that the President\u2019s Command- er in Chief authority categorically precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants are not sustainable. Congress\u2019s power to \u201cdefine and punish . . . Offences against the Law of Nations,\u201d U.S. Const. art. I, \u00a7 8, cl. 10, provides a basis for Congress to establish the federal crime of torture, in accordance with U.S. treaty obligations under the Convention Against Torture, and the War Crimes Act offenses, in accordance, for example, with the \u201cgrave breach\u201d provi- sions of the . This grant of authority also provides a basis for Congress to establish a statutory framework, such as that set forth in the Military Commissions Act of 2006, for trying and punishing unlawful enemy combatants for violations of the law of war and other hostile acts in support of terrorism. Without suggesting that congressional enactment was necessary to authorize the establishment of military com- missions, the President\u2019s support for enactment of the Military Commis- sions Act following the Supreme Court\u2019s decision in Hamdan v. Rums- feld, 548 U.S. 557 (2006), confirms this view. The prior opinion of this Office suggesting that Congress has no role to play concerning the pro- secution of enemy combatants is incorrect. See Swift Justice Opinion at 17\u201319. Furthermore, the power \u201c[t]o make Rules for the Government and Regulation of the land and naval Forces,\u201d U.S. Const. art. I, \u00a7 8, cl. 14, gives Congress a basis to establish standards governing the U.S. mili- tary\u2019s treatment of detained enemy combatants, including standards for, among other things, detention, interrogation, and transfer to foreign nations. This grant of authority would support, for example, the provi- sions of the Detainee Treatment Act of 2005 that address the treatment of alien detainees held in the custody of the Department of Defense. We disagree with the suggestion in the Detainee Transfer Opinion that this Clause does not permit Congress to establish standards of conduct for the military\u2019s handling of detainees, but rather \u201cis limited to the discipline of U.S. troops.\u201d Id. at 5. The Captures Clause, which grants Congress power to \u201cmake Rules concerning Captures on Land and Water,\u201d U.S. Const. art. I, \u00a7 8, cl. 11, also would appear to provide separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants cap-"], "id": "7b6b75a7-592a-48f8-9243-a513e1d91fb2", "sub_label": "US_Terminology"} {"obj_label": "Geneva Conventions", "legal_topic": "Immigration", "masked_sentences": ["Sections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009 comp.), set forth restrictions on the use of interrogation methods. In section 3(c) of that order, the President further directed that \u201cunless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.\u201d We have previously noted that this direction encompasses, among other things, four opinions of the Office of Legal Counsel, which we withdrew on April 15, 2009. See Withdrawal of Four Opinions on CIA Interrogations, 33 Op. O.L.C. 191 (2009). We have now determined that it also encompasses another opinion of our Office. See Memorandum for John A. Rizzo, Acting Gen- eral Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the to Certain Techniques That May Be Used by the CIA in the Interrogation of High-Value al Qaeda Detainees (July 20, 2007). In connection with the consideration of this opinion for possible public release, the Office has now reviewed this additional opinion and has decided to withdraw it. It no longer represents the views of the Office of Legal Counsel."], "id": "bc4f3f0f-7500-43aa-a8b8-8eccd23b3ec6", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The mortgage payments were being made pursuant to a testamentary trust of which the aforesaid petitioner was the income beneficiary. The trustees of the aforesaid trust could in their invade the principal for the *661support, maintenance and comfort of the petitioner. However, the trustees did not elect to invade the principal but preserved the corpus for the remaindermen."], "id": "c3caf178-651a-4fed-a6ba-1392b9b0a0c6", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As an advance against future amounts due, $110,000 was paid to the property owners with the proviso that in the event the sellers are not in default in any representations, warranties or covenants under the agreement the advance was not repayable. *1037The agreement also contained the following provision which is part of item Twelfth thereof: 1 \u2018 Purchaser contemplates that preproduction work on a motion picture based on the Property should be commenced within one (1) year after the date hereof and that photography of such motion picture should be completed within five (5) years from the date hereof. It is expressly understood, however, that Purchaser shall have sole and complete control over the exercise of all rights acquired by Purchaser under this agreement, (including, without limitation, the production, distribution, advertising, exploitation, disposition and other dealings in and with motion pictures produced hereunder) and all matters and things in connection therewith shall be determined by or with the authority of Purchaser in its absolute and .\u201d"], "id": "886f83c7-f627-4d53-a103-45ca71b67100", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*644Our conclusion is consistent with the well-settled principle that \"prosecuting authorities, exercising executive functions, ordinarily have the to determine ... what charges to bring.\" ( People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) \"The district attorney's discretionary functions extend from the investigation and gathering of evidence relating to criminal offenses [citation], through the crucial decisions of whom to charge and what charges to bring, to the numerous choices the prosecutor makes at trial.\" ( People v. Eubanks (1996) 14 Cal.4th 580, 589, 59 Cal.Rptr.2d 200, 927 P.2d 310.) \"The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch.\" ( *418Birks , at p. 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)"], "id": "fc3d778d-541e-4766-ae3e-aaa75a360096", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Agarwal waived indictment and pleaded guilty to one count of aggravated identity theft, in violation of 18 U.S.C. \u00a7 1028A(a)(1), and two counts under the CFAA for intentionally accessing a protected computer without authorization and obtaining information valued at more than $5,000, in violation of 18 U.S.C. \u00a7\u00a7 1030(a)(2) and 1030(c)(2)(B)(iii). The plea agreement stated that sentencing was \u201cwithin the of the sentencing judge\u201d and that the statutory maximum prison sentence was twelve years (five years for each CFAA violation, plus a mandatory two-"], "id": "d33c4c04-7e57-4cc5-835f-9c1fbd0683fa", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cThe closest Sharp comes to pleading participation by State Street in a fraud against the Noteholders is the allegation that State Street consented to the transaction, and that under the State Street loan documents such consent was necessary in order for Sharp to close the transaction with the Noteholders. However, providing consent to another transaction by the borrower under a loan agreement, even with actual or constructive knowledge that the borrower is engaging in fraud, does not constitute participation in the fraud so as to transform the subsequent repayment of the loan into an intentional fraudulent conveyance. Where a loan agreement prohibits a borrower from incurring other indebtedness without the lender\u2019s consent, this provision is for the benefit of the lender, and the lender\u2019s decision whether or not to consent is governed by the lender\u2019s assessment of its own best interests. If the loan agreement so provides, the lender may not unreasonably withhold its consent to a borrower\u2019s request for permission to incur other indebtedness; however, under New York law, in the absence of such a provision, the lender may give or withhold its consent in its . Certainly there is no authority requiring a lender to consider the interests of third parties (such as, in this case, the Noteholders) in exercising its right to give or withhold consent under a loan agreement. Such a rule would effectively make the Noteholders third-party beneficiaries of the Loan Agreement between Sharp and State Street. There is no basis under New York law for such a result.\u201d (In re Sharp, supra at 523-524 [citations omitted].) *273Discovery in this action has not revealed any conduct by the bank more serious than that alleged in the adversary proceeding. Moreover, liability for aiding and abetting requires a showing that the defendant had actual knowledge of the fraud alleged (see, In re Sharp, supra at 514; Laro, Inc. v Chase Manhattan Bank, 269 AD2d 188 [1st Dept 2000]). As the Bankruptcy Court concluded, State Street\u2019s knowledge of Sharp\u2019s misconduct was constructive. The record shows that the D&B reports confirmed the existence of some of Sharp\u2019s customers and were inconclusive as to others. Furthermore, while the reports showed that some of the reported customers were in businesses other than selling watches at retail, they did not exclude the possibility that the companies did in fact also sell watches. State Street\u2019s calls to the chain retailers confirmed that they sold Sharp\u2019s merchandise. And although the First Security report indicated that the company \u201cAkia\u201d shared an address with one of the Spitz brothers, the bank could not rule out the possibility that it was a legitimate one-man operation. Thus, while the other inaccuracies in Sharp\u2019s account information certainly gave the bank reason to be highly suspicious of its veracity, such suspicions cannot be equated with actual knowledge \u2014 particularly not actual knowledge that the Spitz brothers were diverting tens of millions of dollars of corporate funds."], "id": "8478d43e-1215-4877-86c1-49a040d18193", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On or about September 16, 2008, Pugliese visited Goldman in the emergency room at Jamaica Hospital, and was apprised, by Goldman, that in addition to the $461,526.48 of Fisher\u2019s assets previously transferred to him, his own assets included a home in West Hempstead, New York, worth in excess of $400,000, as well as various bank and securities accounts; that he had two children; and that he wanted his sister to be cared for if he predeceased her. At or about that time, Pugliese returned to the firm\u2019s office in Wantagh, and, after consulting with the respondent, drafted a will for Goldman (hereinafter the Goldman will). The primary beneficiary under the Goldman will was a supplemental needs trust (hereinafter the SNT) for the benefit of Fisher. The alternative beneficiaries under the Goldman will were the respondent and Pugliese, as well as Goldman\u2019s accountant, Ed Slott. In the event Fisher predeceased Goldman, the respondent and Pugliese would each inherit one third of Goldman\u2019s estate. The Goldman will also named the respondent and Pugliese as cotrustees of the SNT, to hold, administer, invest, and reinvest Goldman\u2019s assets, and to use the SNT for Fisher\u2019s benefit, and supplemental needs, as they, in their , deemed necessary and advisable, provided that any distributions from the SNT did not serve to supplant, impair, or diminish Fisher\u2019s entitlement to Medicaid benefits. The remainder beneficiaries of the SNT were the respondent and Pugliese, as well as Slott. Under the terms of the SNT, as set forth in the Goldman will, the respondent and Pugliese would each inherit one third of the principal of the SNT. The Goldman will made no reference to Goldman\u2019s children, whom Goldman had not seen in approximately 40 years and whom he wished to disinherit. When the firm drafted the Goldman will, the respondent and Pugliese knew or should have known that naming *35themselves as fiduciaries and beneficiaries of Goldman\u2019s estate or the SNT would give rise to an appearance of impropriety and a presumption of undue influence."], "id": "be6a0c5f-6216-4c9a-8d4a-92dc24e90976", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If the probation officer determines that a wardship petition under section 602 should be filed, he or she must send the affidavit to the prosecuting attorney. ( \u00a7 653.5, subds. (b), (c).) If the minor is presumptively ineligible for informal probation, *9014 the probation officer must send the affidavit within 48 hours. ( \u00a7 653.5, subd. (c).) Otherwise, the probation officer must send the affidavit within 21 court days. (\u00a7 653.7.) \"The prosecuting attorney has the to file a petition under section 602.\" ( Cal. Rules of Court, rule 5.520(a) ; see also \u00a7\u00a7 650, subd. (c), 653.5, subd. (c), 655, subd. (a).)"], "id": "ef7cb31e-373c-40b2-b36a-317df50fd397", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Surrogate erred in concluding that the irrevocable trust was a testamentary substitute pursuant to EPTL 5-1.1 (b) (1) (E). The Surrogate held that, by retaining the right to substitute beneficiaries, decedent retained the right to dispose of the principal within the meaning of that statute. We disagree. By the terms of the trust agreement, the transfer of assets was irrevocable and only the trustees had the power, in their , to invade the principal. Although decedent retained the right to change the beneficiary designation, she irrevocably relinquished the right to appoint either herself or her estate as a beneficiary. That distinguishes this case from Matter of DeVita (141 AD2d 46), relied upon by the Surrogate."], "id": "e37a06b6-0d00-4129-b7ba-3188dd262253", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"Uses contemplated for the project shall be visitor-oriented commercial and recreational uses. The following uses have been approved: \"-Recreational \"-Retail, including, but not limited to, novelty, sporting goods, sports equipment rental, apparel, art, liquor stores, health foods, takeout foods, liquor, bakeries, floral shops, book stores, card shops, and party supplies, provided that such uses shall accommodate the needs of park visitors and shall be operated in a manner to cater to such needs. \"-Restaurants, full service and fast foods, including sale of alcoholic beverages, operated in a manner appropriate to serve the desires of park visitors. \"-Food stores which include food items used by families on outings, as fresh fruits, delicatessen items, soft drinks, and alcoholic beverages. \"-Drug stores which sell suntan lotions and other items normally used in beach activities. \"-Travel agents, sports medicine, and other visitor-oriented services, operated in a manner appropriate to serve the desires of park visitors. \"-Such other visitor-oriented commercial and recreational uses as many be approved by the City Manager. Any use not disapproved within ten (10) business days after receipt by City Manager shall be deemed approved so long as such use is a valid park use and in conformance with the approved Development Plan. *549\"All uses shall be conducted in a manner so as to conform to all applicable laws.\" *357The 1987 Lease was for a term of 50 years, and it gave Belmont Park Associates the right of first refusal to enter into a new lease for the premises upon such terms and conditions as were determined appropriate in the of the City, contingent upon a finding by the City that it is desirable and in the public's best interest to continue the uses of the property as specified in the lease. The 1987 Lease further provided that in the event the parties are unable to agree upon terms and conditions for a new lease within a specified time period, the City could lease the premises to another party."], "id": "9eef3381-d9fb-466a-9469-7e75058602d8", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The balance of the estate was bequeathed outright to her grandnephew, James H. Romberg, who is also the remainderman of the trust for the life of Carrie Hirsch. In the seventh paragraph of the will the testatrix made an alternative disposition of the residue in the event that her grandnephew predeceased her. Since he has survived her, the alternative provisions are significant only in so far as they shed light upon the intention of the testatrix in the use of other language in the will. In the contingency stated, the residue of the estate (except for an outright cash legacy) was to be set up in separate trusts for the issue of James H. Romberg. The trustees were authorized and empowered to pay the income from each trust to the beneficiary thereof \u201c annually or at such other times as in the of my said Trustees shall seem advisable.\u201d Under certain contingencies no income was to be paid the beneficiaries during their minority. In the event that James H. Romberg predeceased the testatrix, leaving no issue, the will provided: \u201c I hereby authorize and empower and direct my Executors and Trustees to distribute my residuary estate * * * to such charities as they in their uncontrolled discretion shall deem proper.\u201d"], "id": "d9747aee-52e7-431b-b1f8-f07c033fbe26", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"(2) I also authorize and direct my trustee in her to expend so much of the principal of the said trust fund as may be necessary for illness or other emergency effecting such child. Commitment to or residence in a state school, hospital, hostel or other facility * * * shall not be considered such illness or other emergency, and my trustee shall have no authority to invade principal for payment of living expenses or other routine costs for residence in such a facility.\u201d"], "id": "8d22a9bd-7063-4295-b66b-d9377e359725", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Subparagraph 1 of paragraph \u201c Fifth \u201d of the will bequeaths his residuary estate to the executors and trustees, or the survivor of them, in trust to convert as much thereof into cash as in their judgment and discretion they deem wise and establish a fund to be known as the Wernick Fund; to lend therefrom, without interest, a sum not exceeding $500 for a period not exceeding 10 years from testator\u2019s death, to each of testator\u2019s relatives specifically named and, except one, to their respective children. It further provides that the executors and trustees \u201c in their \u201d may expend from said fund, for the purpose of supplying aid to each of the two named persons and their children then residing in Soviet Russia, a sum not exceeding $500."], "id": "961889c8-4981-472b-84c6-ee4fb15f79e6", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*721\u201c18. GENERAL \u201c(m) Lessee\u2019s Options at end of Initial Period. At the end of the Initial Period of any Lease, or upon any expiration of any renewal or extension thereof as provided for in option (2) herein or otherwise, Lessee shall, provided at least one hundred eighty (180) days prior written notice is received by Lessor from Lessee via certified mail, do one of the following: (1) purchase the Property for a mutually agreeable price, (2) extend the Lease for twelve (12) additional months at the rate specified on the respective Schedule, or (3) return the Property to Lessor at Lessee\u2019s expense to a destination with the continental United States specified by Lessor and terminate the Schedule; provided, however, that for option (3) to apply * * * Lessee must enter into a new Schedule with Lessor to lease Property which replaces the Property listed on the old Schedule. With respect to options (1) and (3), each party shall have the right in its absolute and to accept or reject any terms of purchase or of any new Schedule, as applicable. In the event Lessor and Lessee have not agreed to either option (1) or (3) by the end of the Initial Period or any renewal or extension period then in effect, or if Lessee fails to give written notice of its option via certified mail at least one hundred eighty (180) days prior to the termination of the Initial Period or any renewal or extension period then in effect, then option (2) shall apply at the end of the Initial Period or any renewal or extension period then in effect.\u201d Matrix\u2019s position is that the above lease provisions provide Andin with three options concerning the disposition of the equipment at the end of the initial period. Specifically, under paragraph 18 (m) of the lease, Andin may: (1) purchase the equipment from Matrix at a mutually agreeable price; (2) extend the lease for an additional 12-month period; or (3) return the equipment in exchange for new equipment pursuant to a new lease. The option must be exercised at least 180 days prior to the lease\u2019s expiration date. Matrix further asserts that under the terms of the lease, if Andin fails to exercise any of these three options, option 2 applies, thus automatically extending the lease for one additional year. A careful reading of the paragraph shows that it is almost impossible for a lessee to terminate its relationship with the lessor."], "id": "11d8a13f-edf1-415d-9120-d7de8c3eefeb", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*930Plaintiff commenced this action seeking recovery on the grounds of breach of contract, misrepresentation, promissory estoppel, unjust enrichment and quantum meruit. Defendant moves for dismissal, pursuant to CPLR 3211 (a) (7), on the ground that the complaint fails to state a cause of action. Defendant argues that since an employee has no enforceable right to a discretionary bonus, an employer cannot be in breach of contract concerning a discretionary bonus policy. Defendant argues that even if it had made prior, contradictory oral statements concerning its bonus policy, they are of no import, since an employer is entitled to change its policy for an at-will employee, such as plaintiff. Defendant further argues that plaintiffs continued employment for more than a year after the written policy pronouncement upon which she relies is deemed consent to such policy. Defendant contends that not only does plaintiff have no breach of contract claim, she has neither a quasi contact nor a promissory estoppel claim, since the entitlement and the amount of any additional compensation is entirely discretionary. Defendant argues that plaintiffs misrepresentation claim must fail because none of the alleged oral misrepresentations call into question the discretionary nature of the bonus policy, the eligibility for which was to be determined in the of BLBG\u2019s management committee."], "id": "f084d1e1-539c-4067-a6ac-de236764bf38", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under CPLR 206 (a), \u201c \u2018demand is complete\u2019 [means] that the Statute of Limitations runs from the time when the party making the demand first becomes entitled to make the demand, and not from the time the actual demand is made.\u201d (Woodlaurel, Inc. v Wittman, 199 AD2d 497, 497-498 [2d Dept 1993] [emphasis added].) In section 2.03, as in other similar PSAs entered into by DBSR three steps must be followed before the trustee can sue DBSP for breach of its repurchase obligations: discovery or receipt of notice by the bank, cure, and repurchase. The trustee is not entitled to sue or make a repurchase demand until discovery or notice by the bank occurs and the cure period lapses. It, therefore, follows that DBSP does not breach the PSA and the claim for the breach does not accrue until DBSP fails to timely cure or repurchase a loan. Though DBSP characterizes a representation as being \u201cbreached\u201d if it is false, in this contract action, the mere fact that a representation is false does not mean that DBSP \u201cbreached\u201d the PSA. Under the PSA, DBSP has no duty to ensure that the representations are true. Thus, upon discovery or notice of falsity, DBSP\u2019s obliga*567tion is to follow the repurchase protocol. Whatever due diligence DBSP conducted was a matter of its . If DBSP knew of or recklessly disregarded signs that the representations were false, it did so at its own peril because of its potential liability to the trustee under section 2.03. In sum, the only contractual wrong that DBSP could commit is failure to abide by section 2.03."], "id": "ae71ae4c-7134-47cb-b548-59737ce33fab", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiffs additionally argue that as to the plaintiffs who rented under written long-term lease agreements, defendants breached the implied covenant of good faith and fair dealing by failing to exercise their under paragraph 11.3 of the leases in an objectively reasonable manner. As noted, paragraph 11.3 provides that if the buyer of a mobilehome in the park intends to leave the home in the park, the seller must assign and the buyer must assume the written lease agreement, subject to the park's approval. However, the park has the right to terminate the lease (and offer a new lease with lower rent) or refuse to allow an assignment of the lease. Plaintiffs argue that defendants breached the implied covenant of good faith and fair dealing by offering buyers of park-owned homes new leases with lower, affordable rent while requiring buyers of resident-owned homes to assume the seller's lease *819with unaffordable high rent, which resulted in residents' being unable to sell their homes. In plaintiffs' words, defendants \"exploited their absolute discretion under the rental agreements and leases to give themselves an unfair competitive advantage at [plaintiffs'] expense.\"12 Thus, plaintiffs argue that because defendants had unilateral discretion under paragraph 11.3 of the written leases to offer buyers of plaintiffs' homes lower rent that would enable plaintiffs to sell the homes but refused to do so, they were in breach of the implied covenant of good faith and fair dealing under the reasoning of Automatic Vending."], "id": "3e4c7c60-28f5-4407-9d86-73913934722f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*820\u201cAs you are aware, the Loan matured on January 1, 2013 (the \u2018Maturity Date\u2019). The Bank will consider your request for an extension of the Loan, subject to final Bank approval, subject to the following conditions: \u201c(a) the Bank receives a principal paydown of the Loan in an amount equal to the greater of (i) Two Hundred Thirty-Three Thousand Eight Hundred Ninety-Five and 00/100 ($233,895.00) Dollars, or (ii) such amount as is necessary to establish a loan to value ratio as determined by the Bank in its of no more than 75% based on an appraised value of Nine Hundred Fifty Thousand and 00/100 ($950,000.00) Dollars (the greater of which shall hereinafter be referred to as the \u2018Paydown\u2019). With respect to the joint and several guaranty of payment dated October 6, 1998 (the \u2018Guaranty\u2019) made by Edward Kalikow and Eugene Shalik (collectively, the \u2018Guarantors\u2019) to the Bank, provided you comply with the terms herein (subject to final Bank approval), the Guarantors\u2019 obligations under the Guaranty shall be reduced by the amount of the Paydown. . . . \u201cThe Bank has not yet formally demanded payment in full of all sums due under the Loan (a \u2018Demand for Payment in Full\u2019) or declared an Event of Default at this time, but may chose to do so at any time in the future\u201d (exhibit E to motion). At the time of the Capital One letter, the LLC owed approximately $950,000 under the note. Kalikow was"], "id": "10bb34a3-0219-4125-9b01-5ad1b39e4a67", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A party may base a motion for new trial on \"[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.\" ( Code Civ. Proc., \u00a7 657.) However, new trials for newly discovered evidence are disfavored. ( In re Estate of Cover (1922) 188 Cal. 133, 149, 204 P. 583.) A party moving for new trial on the basis of newly discovered evidence must show: (1) the evidence is newly discovered, (2) it could not with reasonable diligence have been discovered and produced earlier, and (3) the evidence is material. ( Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161, 79 Cal.Rptr.2d 641.) Evidence is material if it is likely to have produced a different result. ( Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 728, 136 Cal.Rptr.3d 197.) Whether a reasonable effort was made to discover the evidence, and whether it was material are questions addressed to the of the trial court, and will not be disturbed absent a manifest showing of abuse of discretion. ( Id. at p. 731, 136 Cal.Rptr.3d 197 ; Dankert v. Lamb Finance Co. (1956) 146 Cal.App.2d 499, 502, 304 P.2d 199.)"], "id": "933b32f5-6bad-4bdd-abc9-11dae3518e4d", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is clear that the UGMA gives the unpaid custodian powers that are \"extremely broad and sweeping\u201d (Matter of Levy, 97 Misc 2d 582, 587; see, Speyer v Speyer, 142 AD2d 726). As noted in the above-quoted EPTL 7-4.4 (b), there is no requirement that the custodian retain the fund intact. On the contrary, the statute in specific terms authorizes the custodian to pay over to the minor, without court order, so much or all of the fund as the custodian in his deems suitable and proper."], "id": "07d79ffd-5683-42ed-b1e2-e69f5ed086a7", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Twelfth. I give, devise and bequeath all the rest, residue and remainder of my property of whatsoever nature, or wheresoever situated, or in which I may have any interest at the time of my death to said First National Bank and Trust Company of Corning, in trust, however, for the following purposes: To Invest and reinvest the same and keep the same invested and to pay the net income thereof to my wife, Marrietta Maloney, for and during the period of her natural life, and to pay her funeral expenses at her death. In the event that the net income from this trust fund should not amount to Two hundred fifty dollars ($250.00) per month, I direct my trustees to pay such additional amount out of the principal or corpus thereof so that there shall be paid to my said wife the sum of Two hundred fifty dollars ($250.00) per month to be paid in monthly installments. In the event that my said wife should become so circumstanced that the said sum of Two hundred fifty dollars per month should not be sufficient for her comfortable maintenance and support, I direct and authorize my said trustee to expend for her benefit such additional sums as should be necessary or proper for her comfortable maintenance and support and leaving it to the of my said trustee to determine as to such necessity. *99Thirteenth. From and after the death, of my said wife, Marrietta Maloney, I direct that the trust established under the preceding paragraph shall continue during the life of my nephew, John Harris Maloney, or my brother, Daniel Maloney, whichever, shall longer survive, and to pay the net income of said trust fund to the said John Harris Maloney and Daniel Maloney in equal shares during the lives of both. In the event that the said John Harris Maloney shall predecease my said brother, Daniel Maloney, and shall die leaving no children him surviving, excluding adopted children, I direct that one-half of the income of said trust fund shall during the life of the said Daniel Maloney be paid to my cousins, Annie Kelley, and Mary Kelley, share and share alike, except that in the event either of them shall not be surviving at the time such payments shall accrue, or die during such period as such payments may be made leaving descendants her surviving, such descendants shall take the payments which would have accrued to the ancestor had she lived, sharing the same per stirpe. In the event that my said nephew, John Harris Maloney, shall predecease my said brother, Daniel Maloney, and leave children him surviving excluding adopted children, I direct that the said one-half of the income of said trust fund shall during the life of the said Daniel Maloney be paid to the children of his blood, excluding adopted children, share and share alike. In the event that the said Daniel Maloney shall predecease the said John Harris Maloney, I direct that all of the income of said trust fund from his death shall be paid to the said John Harris Maloney. Fourteenth. At the death of the said Daniel Maloney or John Harris Maloney, whichever longer survives, I direct that the corpus or principal of said trust fund shall be given absolutely to the children of the said John Harris Maloney of his own blood, excluding adopted children, share and share alike, except that, if at the time of such payment, any of the said children of his blood shall have died leaving children them surviving, such survivors shall take the share the parent would have taken, if living. Fifteenth. In the event that at the time of the death of said Daniel Maloney or the said John Harris Maloney whichever longer survives, there should be no children or descendants of the said John Harris Maloney of his own blood then living, excluding adopted children, I direct that the corpus or principal of said trust fund shall be given absolutely to my said cousins, Annie Kelley and Mary Kelley, share and share alike, or to the survivor, unless either of them shall have died leaving descendants them surviving, in which event such descendants shall take the share the parent would have taken, if living, sharing the same per stirpe. In construing this will consideration should also he given to article sixteenth which states: \u2018 \u2018 The provisions hereinbefore expressed for the benefit of my said wife, Marrietta Maloney are in lieu of dower.\u201d It should be remembered that dower was abolished as to realty acquired after August 31, 1930, but not as to that acquired prior to September 1, 1930. (Real Property Law, \u00a7 190.)"], "id": "5cf4eb41-16d6-409d-94b0-eee1d6ad2a69", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It appears that through an attorney of her choice summoned at her request, testatrix executed a prior will on August 13, 1945, less than six months before executing the propounded will, in which after a small legacy to a clergyman she gave half of her estate to her sole surviving sister, Lena Hatcliffe, and the other half in trust to pay the income to her brother Fred for life with the right to invade the principal if required for the reasonable support and maintenance of Fred in the of the trustee, with the direction that the trustee\u2019s discretion be guided by Fred\u2019s willingness to obtain employment when physically able and the employment available. The remainder of such trust was given to Elizabeth McBride Weingarth of Syracuse, N. Y."], "id": "45d100fd-801c-43bf-993e-cba7cde65d5e", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Accordingly, this court finds that the one-year Statute of Limitations of subdivision 2 of section 77 is not applicable to abandonment of improvements. Even if it were applicable, there would have to be a trial here of the issues of fact, including the scope of the improvement intended as related to the particular parties, the severability of the improvement, the time of abandonment, and the notice of that abandonment to the plaintiffs. The issues of fact will be determined in extent and sequence in the of the Justice presiding at the ensuing trial."], "id": "71d0e03b-b13d-438c-ac87-3336c3af7ade", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendants, however, present additional arguments for dismissal of the complaint. They assert that the decision of the Corporation Counsel not to represent Young in the Rodriguez case was not arbitrary or capricious. They reason as follows: \u201cThe scope of judicial review of a decision of the Corporation Counsel not to represent an employee of the City of New York is extremely limited. Under General Municipal [Law] \u00a7 50-k (2), the Corporation Counsel has for determining whether the act or omission of the employee occurred within the scope of his public employment * * * In addition, once having undertaken to represent an employee, the Corporation Counsel must decide whether the employee has met his obligation under the statute to cooperate in presenting his defense. General Municipal Law \u00a7 50-k (4). A court cannot substitute its judgment for that of the Corporation Counsel unless the latter\u2019s decision not to represent, or to continue to represent, an employee is clearly arbitrary and capricious and an abuse of his discretion\u201d."], "id": "5b29ddcd-6c19-4d92-9e30-25b810f3e08b", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["RPAPL 735 sets forth the manner in which service of the notice of petition and petition is to be made. Service may be made by personal delivery. Alternatively \u2014 at the process server\u2019s and choice \u2014 service can be made by delivery to a person of suitable age and discretion who resides or is employed at the property sought to be recovered (i.e., substituted service). If \u201cupon reasonable application\u201d neither personal delivery nor substituted service can be made, service by conspicuous affixation may be made. If either substituted service or conspicuous affixation service is utilized, certified or registered mailings must also be sent to the respondent both at the property, and, in addition, at any alternative residential and/or business address of which the petitioner has \u201cwritten information,\u201d with filing of proof of service to be made within three days thereafter, and service deemed complete upon filing."], "id": "19ca5cd0-8f4b-4d83-8bba-fb0003638b4d", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*492With respect to defendant\u2019s contention that it is entitled to recover costs and attorney\u2019s fees necessitated as a result of plaintiffs frivolous conduct in commencing the instant merit-less action, 22 NYCRR 130-1.1 permits a court, in its , to impose sanctions upon a party or an attorney who engages in \u201cfrivolous conduct.\u201d Pursuant to 22 NYCRR 130-1.1 (c), conduct is frivolous if"], "id": "34e3a15b-eaca-4769-a442-b9880509b04a", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On May 28, 1975 the petitioner, who was a tenured K-6 teacher, received formal notices from the board charging him with incompetence, insubordination, neglect of duty and other *482unsatisfactory conduct in the performance of his duties. A hearing on the merits of the charges was scheduled and the local bargaining agent, the Three Village Teachers Association, retained counsel to represent the petitioner. On October 7, 1975, the second day of the hearing, petitioner and the board entered into a stipulation of settlement in which it was agreed that the pending charges would be dismissed with prejudice, that, in consideration of the dismissal, petitioner would take a year\u2019s leave of absence without pay, that the board would permit him to resume his teaching duties from September, 1976 to December, 1976 at one of the elementary schools where he had previously taught, and that during this period the school principal would determine in his whether petitioner\u2019s employment should be permanently terminated. The principal\u2019s decision was to be based solely upon petitioner\u2019s performance during his resumption of duties without any consideration of the prior charges against him. Although the criteria upon which the principal\u2019s determination was to be based were to be furnished petitioner, the decision of the former was to be final. It was further agreed that the petitioner \"waives his right to a 3020A Hearing in the event that [the principal] determines at Christmas, 1976, that his employment should not continue in the District\u201d and that the petitioner \"waives all rights that he might have had under Article 78 of the Civil Practice Law and Rules, or any other provision of law to challenge the determination of [the principal] as to his non-retention.\u201d According to the hearing officer's summation of the stipulation at the hearing, \"the stipulation today is that [the principal\u2019s] decision is absolute, final and not appealable anywhere at anytime by [petitioner] or by the School Board.\u201d"], "id": "50742fb3-1f34-4dfa-a8be-7725f1d6d113", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c Even when there is merely the usual relationship between a fiduciary and the beneficiaries, the fiduciary is under a duty of absolute loyalty to all beneficiaries and of fairness and impartiality to all. If in dealing with the respective beneficiaries their interests are so conflicting that the fiduciary cannot deal fairly with respect to them, he cannot properly act without applying to the court for instructions. Restatement of the Law of Trusts, \u00a7 170-q. * * * \u2018 \u2018 Where, however, in addition there is such an interrelation between the fiduciary and one beneficiary that there is substantial identity between them, the authorities hold that the standard of conduct of the fiduciary becomes even more exacting. The rules governing the conduct of a trustee are equally applicable to an executor under such circumstances. \u2019 \u2019 (Matter of James, 86 N. Y. S. 2d, 78, 89.)' Respondents urge that the last sentence of subdivision \u201c 1\u201d of paragraph \u201c Fourth \u201d of the will, quoted above, in and of itself expresses testator\u2019s intention that the proceeds of the *810sale of the stocks in question \u201c shall be considered as a part of nly estate or the trust funds herein set up * * * as though such proceeds * * * had been a part of nay original estate or * * * trust funds herein set up.\u201d Petitioner argues that the clause therein, to wit, \u201c subject to the powers and authority given to my said Executrix and Trustee herein \u201d negates the force of this argument. I disagree. I think it may be said, however, that since the sentence in question refers to the proceeds of property \u201c sold \u201d, the language must be construed to include liquidation, or respondents \u2019 argument begs the question. We are not here dealing with the question of law as to whether the proceeds of stock, liquidated as in this case, are subject to apportionment under the rule of Matter of Schaefer (178 App. Div. 117, affd. 222 N. Y. 533). For the moment we are concerned with the construction of the will to ascertain testator\u2019s intention. The sentence above referred to, when read in connection with the importance to the testator, at the date of the will, of his stock holdings in the scheme of his will, must be construed to encompass the proceeds of sale or liquidation, and this, certainly, if accomplished during the administration of the estate before the trust is set up. The testator carefully provided that no distribution of principal be made to his widow except in the of the trustee. It would be sheer mockery of the testator\u2019s intention and will plan for the court here to sanction the substantial distribution of the trust funds which the petitioner has endeavored to make. It is clear that the proceeds in question are a part of the corpus of the estate."], "id": "a6d785fd-7359-4754-80b5-678855cc1041", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*486Accordingly, an application for transfer because of prejudice or bias is addressed to the of the presiding Judge. The Court of Appeals has stated the rule as follows: \u201c of an objection of that character, impropriety as distinguished from legal disqualification, the judge himself is the sole arbiter.\u201d (People v. Patrick 183 N. Y. 52, 54; see, also, Matter of Johnson, 34 N. Y. S. 2d 495, affd. 265 App. Div. 801)."], "id": "18983ae6-da03-408b-a9ac-18e4b3029190", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Appellate review of any workers' compensation decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly , 827 S.W.2d 685, 687-88 (Ky. 1992). Our standard of review differs in regard to appeals of an ALJ's decision concerning a question of law or a mixed question of law and fact vis-\u00e0-vis an ALJ's decision regarding a question of fact. The first instance concerns questions of law or mixed questions of law and fact. As a reviewing court, we are bound neither by an ALJ's decisions on questions of law or an ALJ's interpretation and application of the law to the facts. In either case, our standard of review is de novo. Carroll v. Meredith , 59 S.W.3d 484, 489 (Ky. App. 2001) ; Cinelli v. Ward , 997 S.W.2d 474, 476 (Ky. App. 1998). De novo review allows appellate courts greater latitude in reviewing an ALJ's decision. Purchase Transportation Services v. Estate of Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001) ; Uninsured Employers' Fund v. Garland , 805 S.W.2d 116, 117 (Ky. 1991). The second instance concerns questions of fact. KRS 342.285 designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Paramount Foods, Inc. v. Burkhardt , 695 S.W.2d 418, 419 (Ky. 1985) ; McCloud v. Beth-Elkhorn Corporation , 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe, and may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof. Caudill v. Maloney's Discount Stores , 560 S.W.2d 15, 16 (Ky. 1977). KRS 342.285 also establishes a \"clearly erroneous\" standard of review for appeals concerning factual findings rendered by an ALJ, and is determined based on reasonableness. Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986). Although an ALJ must recite sufficient facts to permit meaningful appellate review, KRS 342.285 provides that an ALJ's decision is \"conclusive and binding as to all questions of fact,\" and that the Board \"shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]\" Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County , 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing , 45 S.W.3d 449, 454 (Ky. App. 2001). ... Generally, \"arbitrariness\" arises when an ALJ renders a decision on less than substantial evidence, fails to afford procedural due process to an affected party, or exceeds her statutory authority. K & P Grocery, Inc. v. Commonwealth, Cabinet for Health Services , 103 S.W.3d 701, 703 (Ky. App. 2002). *6Id. at 866-67. Substantial evidence is \"that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.\" Wasson v. Kentucky State Police , 542 S.W.3d 300, 304 (Ky. App. 2018) (citing Bowling v. Natural Resources and Environmental Protection Cabinet , 891 S.W.2d 406, 409 (Ky. App. 1994) )."], "id": "133409cc-6c69-49ac-a37a-0256bb6b9dad", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cfourth: In its discretion my Trustee may accumulate the income from said trust, or pay so much of the income to, or apply the same for the purpose of paying for the maintenance, support, education, or medical expenses of, any of the life tenants of the trust or any of their lawful issue, whether born before or after my death, in such proportions, in such amounts and at such times as my Trustee may deem necessary or desirable, even to the complete exclusion of any one or more of said life tenants and without regard to any principle or rule of law requiring impartiality. In its discretion my Trustee may at any time, or from time to time, pay or apply any portion or portions of the principal of the trust as my Trustee may deem necessary or desirable to or for the benefit of any of the life tenants of the trust or their lawful issue for the purpose of paying for their maintenance, support, education, or medical expenses, even to the complete exclusion of any one or more of said life tenants and without regard to any principle or rule of law requiring impartiality. Upon the termination of the trust, the principal thereof then remaining may be distributed to my said grandsons or the surviving lawful issue, if any, of my grandsons in such proportions as my Trustee may deem proper and desirable, or, if no such issue, or if the Trustee in its should so determine, the trust fund may be distributed in accordance with the provisions hereinafter set forth disposing of my residuary estate."], "id": "05a08562-ab3c-4174-9978-05a6eb778318", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Generally, courts have upheld contract clauses reserving final judgment of the rules and results of a contest to the producers of the contest. (See, Johnson v New York Daily News, 97 AD2d 458 [2d Dept 1983] [\u201cthe decision of the contest judges should not be interfered with by the courts\u201d].) Further, the possibility of two correct answers to a question does not invalidate a clause reserving final judgment to the producers of a contest. In Furgiele v Disabled Am. Veterans Serv. Found. (116 F Supp 375 [SD NY 1952]), a contestant in a word puzzle game alleged that the producers of the contest had failed to follow their own rules in not accepting his alternate answers to the puzzle in question which would have, if allowed, been the high score. As in the instant case, the contest rules included a. clause stating that, \u201cEach contestant * * * agrees to be bound by the rules and instructions and in any event with the decisions of the DAV Service Foundation and/or its committee on awards on any of the matters affecting the contest.\u201d (Id. at 376 [internal quotation marks omitted].) The court declined to consider whether the plaintiff\u2019s answers were a correct alternative answer. \u201cThe whole matter comes down to this. Plaintiff is dissatisfied with defendant\u2019s solution of the puzzles. On that issue in accord with the contract between the parties, plaintiff may not succeed.\u201d (Id.) Having a question with two possible answers is not a breach of any provision of the contract that plaintiff signed. In fact, the plaintiffs main complaint seeks to penalize the defendants for enforcing an express provision of the *407contract which gives them to decide which is the correct answer."], "id": "344c720b-4c90-4573-a66f-d15c091d1be4", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Article Sixth reads as follows: \u201c If at any time after my death, for any reason, my said Trustee in his shall determine that it is no longer necessary or advisable, or that the continuance of the Perpetual Trust hereunder will no longer effectually carry out my purposes in directing payments as hereinabove expressed, then I expressly authorize my Trustee or his successor to pay over, transfer or distribute the principal of the Perpetual Trust to such charitable, educational, scientific, *632medical or literary organizations or institutions as he in his sole discretion shall deem best and proper and upon such conditions and in such proportions as he in his discretion shall set whereupon the Perpetual Trust herein created shall terminate.\u201d"], "id": "5a93cf96-a8cb-40a8-b98a-e48bf11a4433", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Unlike in the two 2010 assignments, no party signed this 2008 agreement on behalf of ML General. The trial evidence does not show conclusively that the general partner gave its prior written consent to the purported assignment of limited partnership interest in this agreement. Nor does the trial evidence conclusively prove that this purported transfer met the requirements for a Permitted Transfer under the Partnership Agreement. Thus, under the unambiguous wording of section 10.6 of the Partnership Agreement, the purported transfer in 2008 is null and void and of no effect whatsoever unless ML Partnership is required to recognize the transfer or ML Partnership exercises its to recognize the transfer. The trial evidence does not conclusively prove that ML Partnership ever was required to recognize the transfer. Nor does the trial evidence conclusively prove that ML Partnership exercised its sole discretion to recognize the transfer under section 10.6 at any time before October 29, 2010. Even presuming for the sake of argument that ML Partnership recognized the 2008 transfer in the 2011 consent, this recognition did not purport to be retroactive, and, as discussed above, Mokaram already had assigned all of his limited partnership interest in ML Partnership on October 29, 2010. Thus, the trial evidence did not conclusively prove that Choudhri has owned any interest in ML Partnership since June 18, 2008, or since any date before October 29, 2010. The trial court erred in declaring that \"since June 18, 2008, Choudhri has owned 15% [of] [ML Partnership],\" and we sustain the part of the second issue in which the Latif Parties challenge this declaration. See Kehoe , 526 S.W.3d at 795-97."], "id": "6e042239-d886-4c8f-a370-216afd263eff", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["(2) The discretion granted in article twelfth of the will in respect of payment of $2,500 annually, relates only to the times of payment. The will very plainly states: \u201c my trustees are also directed to pay out of the principal of said trust in each year the sum of Two Thousand Five Hundred ($2,500.00) Dollars \u201d. (Emphasis added.) This command of the testatrix leaves no room for independent decision by the trustees. Discretion is, however, granted in the text immediately following: \u201c and to pay the said sum of Two Thousand Five Hundred ($2,500.00) Dollars out of said principal to such beneficiaries in such amounts as they in their may determine, but only at the same time that they shall pay the installments of income to said beneficiaries \u201d. The will expressly bestows *782upon the trustees discretion as to the installments in which the income is to be paid to the beneficiaries and as to the intervals between the installments. The will, therefore, means that the trustees must pay $2,500 each year to the beneficiary, but may pay it in one lump sum or in such installments as they choose."], "id": "e24cdee6-790d-4a09-9e72-6038b88d46cb", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By the last-mentioned testamentary provisions, the grantors\u2019 daughter directed, in substance and effect, that the principal of the subject trust be divided into three equal shares, one such share to be held in further separate trust for the benefit of her daughter, Barbara, another to be similarly held in trust for the benefit of her daughter, Joyce, and the remaining share to be divided into sufficient parts so as to provide one equal part for each child of her predeceased daughter, Margaret, who should survive her (i.e., the donee-testatrix); each such part to be held in further trust for the benefit of the surviving child of Margaret for whom it was thus set apart. Each such daughter-beneficiary and grandchild-beneficiary is to receive the income from his or her share for his or her lifetime and has been granted a testamentary power to appoint the principal thereof to any persons other than himself (or herself), his (or her) estate, his (or her) creditors, or the creditors of his (or her) estate. To the extent that any such power is not effectively exercised, the appointive property js to be distributed outright to the issue of the beneficiary so failing to exercise it or, in default of such issue, to the issue of the grantors\u2019 daughter, subject to the proviso that any property which would thus pass to a member of the latter class who is then a recipient of income of any other trust established by article eleventh should be added to the principal of such other trust. In addition, the trustees of each of said trusts (other than one who is also a beneficiary thereof) have been granted the power, in their , to pay or apply any part (or the whole) of the principal thereof to or for the benefit of the beneficiary thereof."], "id": "24beddb1-dff0-4383-8cf8-762e8f369019", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Section 696 of the Civil Practice Act provides, in part, as follows: \u201cIf personal property levied upon as the property of the judgment debtor is claimed by or in behalf of another person, as his property, an affidavit shall be made and delivered to the sheriff by or in behalf of such person at any time while such property or the proceeds thereof are in the sheriff\u2019s possession, stating that he makes such a claim; * * * In that case, the sheriff in his discretion, before he sells such personal property * * * may serve upon the plaintiff\u2019s attorney a copy of the affidavit, with a notice, that he requires indemnity against the claim. If the indemnity is not furnished within three days after demand has been made by the sheriff, the sheriff, in his discretion, may deliver the property * * * to the claimant, without incurring any liability to the plaintiff by reason of so doing; unless within three days after demand for indemnity the judgment-creditor shall institute a proceeding for the purpose of having the title to the claimed property * * * determined. The court or judge before whom the proceeding is brought, shall hear and determine the title thereto, and for that purpose, the judge hearing the proceeding, may, in his , impanel a jury. * * * If, by such proceeding, it is determined that the property belongs to the claimant, it shall be delivered to him and the sheriff shall be thereby released from all claim for damages.\u201d The pertinent portions of section 696 have been set forth and the portions pertaining to the rights of the parties if the claim is made after the sale have not been *662set forth. There is no doubt that the claim here by the plaintiff was made before the sale and that the Sheriff served the notice before the sale. It seems to be unquestioned that the Sheriff exercised his discretion before selling the personal property and after receiving the notice of claim from the General Motors Acceptance Corporation by requiring the furnishing of indemnity within three days from the commencement of an action to determine title within that time."], "id": "e8e824a4-9d59-4ae4-a008-e73e85affd93", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u2018 \u2018 Sixth : I direct that my son george purnell macgbegor shall have no right or power to anticipate or in any wise encumber or give orders in advance for the income to be received by him from the trust funds created in and by Article eighth and Article ninth of my said Last Will and Testament. In the event that such income or any part thereof shall be transferred or conveyed or attempted to be transferred or conveyed, directly or indirectly, voluntarily or involuntarily, by personal act or judicial or other proceeding, or in the event that attempt shall be made to seize such income or any part thereof by legal process of any sort whatsoever, or, in the event that any disposition as to the payment of such income or any part thereof be directed or provided for by any act of my said son or in any decree of any court, then my Trustees shall discontinue the payments to my said son of income from said trust funds and thereafter so long as the assignment, conveyance, garnishment, attachment, process or order shall continue in effect or remain in operation, they shall apply the income, or so much thereof as may be necessary, to the support and maintenance of my said son and the members of his family and the persons dependent upon him, in such manner as my Trustees may deem advisable in their , 'and any residue 'of such income not so used shall be paid absolutely to the next of kin of my said son.\u201d"], "id": "f9af5c47-cf64-4440-a739-5b02d55e0ef9", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The City contends we should adopt the reasoning of ALDF and reverse the judgment for Leider. We decline to do so. The primary purpose of section 526a is to *284\"enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.\" (Blair, supra, 5 Cal.3d at pp. 267-268, 96 Cal.Rptr. 42, 486 P.2d 1242.) Although Corporations Code section 10404 gives certain animal cruelty prevention organizations the power to file animal cruelty complaints and \"aid in [their] prosecution,\" only public prosecutors may prosecute criminal offenses, and they have the to determine whether to do so. (Gov.Code, \u00a7 100, subd. (b); People v. Eubanks (1996) 14 Cal.4th 580, 588-589, 59 Cal.Rptr.2d 200, 927 P.2d 310.)"], "id": "14512e28-49e6-455f-8205-1f33b8975e62", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Between the meetings of the national board the affairs of the organization are managed by the executive committee. Unification of the geographical jurisdiction of the petitioner council into the jurisdiction of the Council of Girl Scouts of Allegheny County, Pennsylvania, was duly processed and, thereafter, adopted by the national board of directors and the national executive committeee. In that enlarged council jurisdiction were 9 other councils and 20 lone troop communities. All participated therein save the petitioner. The number of adult members involved was 9,399 and the number of girls enrolled in the councils and lone troops which consented was 34,640, while the petitioner is composed of 90 adult members and 484 enrolled girls, 1.1% of the total number of girls and adults involved. This reorganization was adopted by the executive committee. The respondent\u2019s constitution provides: \u00a3 \u00a3 The Board of Directors, in its , shall have the power to issue these credentials subject to the requirements established by the National Council, and to revoke them when, in its opinion, the terms and conditions thereof or requirements therefor are being violated or when the best interests of Girl Scouting are not being furthered.\u201d By letters of April 12, April 26, May 4 and June 6,1962, petitioner protested the action of realignment and consolidation and requested a hearing and did so pursuant to the required pro*786cednre that: \u2018 \u2018 Any council refusing to participate in an enlarged or changed jurisdiction which has been agreed to by a majority of other councils or communities concerned shall have the rights of a hearing by the National Board of Directors before any final action is taken.\u201d"], "id": "b52a533f-63a1-469f-80a4-d6e85a996ce5", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There should be a reversal and the matter remitted to Family Court for a new hearing and further findings consistent herewith. Family Court could properly on the facts of this case make an award that would approximately reflect a 50%/ 50% division of the parties\u2019 disposable income (see, Family Ct Act \u00a7 412; see also, Polite v Polite, 127 AD2d 465, 467-468). *959However, Family Court\u2019s award does not accomplish that objective. Family Court improperly included the $846 income petitioner received from the $300,000 in assets (held solely in her name) in computing the parties\u2019 gross monthly income and improperly required that respondent pay petitioner one half thereof despite the fact that he did not receive any of the $846. Additionally, although petitioner could elect to receive this income in her , Family Court did not charge the income to her in its computation. Petitioner\u2019s reinvestment of this income and her lack of sophistication in financial matters does not justify Family Court\u2019s charging the $846 as income to respondent. Likewise, Family Court improperly determined petitioner\u2019s monthly support by using the parties\u2019 gross pretax income in its calculations without regard to their actual annual income tax liability. Under Family Court\u2019s decision petitioner constructively receives $3,346 ($2,-500 + $846) of the $5,000 total monthly income, leaving respondent with only $1,654."], "id": "4c121964-15e4-4171-8f88-593eebaa5d3a", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondents cite Judiciary Law \u00a7 468-b (4), that \u201c[t]he board of trustees shall have the to determine the merits of claims presented for reimbursement.\u201d Respondents also cite 22 NYCRR 7200.10, which provides that the trustees, in the exercise of their discretion in determining claims, shall consider any conduct of the claimant that contributed to the loss, together with such other factors as they may deem appropriate. Respondents argue that the trustees properly considered the criminal conduct of petitioner which contributed to his loss in assessing his claim."], "id": "1360c0d7-738b-453d-ae22-83ba2e619c4f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This case turns on the meaning of the original section 2.3 (B) as modified by the rider. Urban relies on the following portion of the original section 2.3 (B): \u201cIf NYC Consent is not received within sixty (60) days after Royal delivers the executed Sublease to Urban, Royal has the right, in its , to terminate this Sublease at which point the Security Deposit and the original Guaranty shall be immediately returned to [Urban].\u201d (See Doc No. 8 at 4 [emphasis added].) Sixty days under this clause is August 11, 2015 (the sublease was delivered on June 11, 2015). At that point, Royal had the unilateral option to terminate and return the security deposit to Urban."], "id": "0a4cb9b2-aa7e-4da5-90a9-7dbdd1fe43a3", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["18. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties\u2019 settlement and this Stipulation shall be voidable at the of either party."], "id": "59c9574e-b324-4cff-9d83-8a807b73b383", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The thirteenth paragraph of the trust agreement indicates that the donor, in this case the mother of the incompetent, was not sure that the income of the corpus of the trust would be sufficient for the support and maintenance of her son because she provided that \u201c in the event that the income realized from the Trust Estate is not sufficient to provide properly for the support or medical attention of my son, Henry, then I authorize my Trustees at their , to apply from time to time a portion of the principal of said Trust Estate to his support and maintenance.\u201d"], "id": "9d44efb7-7c5e-4f56-b515-f756c9559c2f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["1 \u2018 Fifty per cent (50%) to the new york ganger research institute, inc., now having its principal office at No. 1290 Madison Avenue, Borough of Manhattan, New York, N. Y., for its general and corporate purposes. If in the of my trustees the incidence of cancer is substantially reduced or eliminated through newly discovered cures or treatments, I authorize and direct my trustees to pay said per cent of income to and among such charitable organizations exempt by law from New York State and Federal income taxes as they may determine for the treatment, cure and remedy of diseases known as incurable at that time."], "id": "6a482418-4f12-433a-bf6e-d5e92788ca2f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By indenture of trust dated April 12, 1934 the settlor created an irrevocable trust consisting of a contribution of $200,000 in cash, which corpus was thereafter substantially increased by the transfer of other assets. It provided that the income thereof was to be paid to his wife, Lilyan White Kent, now Lilyan White Lamotte (hereinafter referred to as \u201c Mrs. Lamotte \u201d) for her life, and upon her death the principal was to be paid to the settlor if he survived her. In the event he predeceased her, the principal was to be paid to the issue if any of the said Sidney R. Kent and Lilyan White Kent, per stirpes, or, in the absence of issue, to those appointed by Lilyan White Kent, and in the absence of such appointment, to her distributees. The trustees were authorized to invade and pay over to Mrs. Lamotte such part of the principal as they in their deemed necessary to provide for her maintenance or in any other contingoncy."], "id": "71e0b322-4365-4f79-a33e-fd3dae4039cd", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Paragraph 3 of the General Contract of Indemnity is not intended to create any liability. The deposit demanded by the insurer is not based on the maturity or liquidation of any claims, but represents security, in an amount within the of defendant, in anticipation of possible losses (National Sur. Corp. v Titan Constr. Corp., supra, at 231). The obligation to make the deposit is subject to enforcement by specific performance: \"The damage resulting from the failure to give security is not ascertainable, and the legal remedy is therefore inadequate\u201d (supra, at 230). Finally, the subject provision specifically states that the amount of the deposit is at the \"sole discretion\u201d of the surety. So long as the sum demanded is reasonable, plaintiff \" 'dealing at arm\u2019s length with relative equality of bargaining power\u2019 \u201d must abide by this term of the contract (Westinghouse Elec. Corp. v New York City Tr. Auth., 82 NY2d 47, 55, quoting Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516, 523)."], "id": "77d57846-b30a-478f-a846-3ff83a407926", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The question now left for determination is: \u201c Does the fund fall within the provisions of article 3-A of the Insurance Law? \u201d It was created by an agreement and declaration of trust. Perhaps more of the intent and purposes of the fund can be gathered from the introductory \u201c whereas \u201d clauses than from the principal body of the instrument. Payments to the fund were made by employers in the building industry of \u201c a sum of money equal to the agreed and specified percentage, or amounts, of the total wages, or on hours worked, during the preceding pay period, paid to those of its employees who are covered *74and entitled to the benefits of this agreement \u2019 \u2019 (first whereas clause). Some confusion arises from the foregoing because a percentage could be computed on the basis of wages paid but not on hours worked unless these were to be multiplied by the rate per hour. A later provision is to the effect that the purposes of the fund 1 \u2018 are singly motivated for the benefit, advancement, improvement and promotion of the construction industry and/or Local Union\u201d (third whereas clause). The objective of the fifth of these clauses is uncertain. It states that the sums were to be expended prudently by the directors \u2018 \u2018 to secure safety education programs, to promote and foster harmony between labor organizations and parties to the collective bargaining agreement, and to maintain and increase the good will value in public and industrial relations between the employer and members of this organization.\u201d After the five introductory provisions and the recital of the customary clause setting forth consideration there follow 37 paragraphs. Most of the agreement deals with administrative matters for the operation of the fund. The only definition of purposes is in paragraph sixth which contains six subdivisions which almost entirely dwell on matters such as the hiring of employees for the fund, the renting of .space, etc. A vague provision occurs in subdivision (c): \u201c(e) To pay or provide for the payment of all reasonable expenses for such purposes and to such persons as the Directors may, in their , determine to be necessary and proper in order to effectuate the purposes as set forth herein.\u201d To what \u201c purposes \u201d does this provision refer? We search in vain for a definition of \u201c purposes \u201d. Is it for the benefit of the employees in the industry or is it only for those purposes set forth in paragraph sixth? We have not been asked to decide whether this fund falls within the provisions of subdivision (c) of section 186 of title 29 of the United States Code or comes within the prohibition of an unlawful agreement as defined in the earlier provisions of the same section 186 (subd. [c])."], "id": "060e8139-3567-4bed-85ee-ff608fe8ee95", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Paragraph 6 of the first amendment to the lease dated October 28, 1980 between the prior landlord, Westin, and Tenant provides: \u201d[I]n the event landlord determines in its to demolish or sell the hotel * * * then landlord may terminate this lease by giving tenant not less than *698sixty (60) days notice in writing of the date on which this lease shall terminate * * * [t]hen landlord shall pay to tenant on the date the term ends an amount equal to * * * plus the cost of discontinuing tenant\u2019s business with respect to the premises: (including but not limited to all losses, if any, upon the disposition of inventory and trade fixtures in a commercially reasonable manner) * * * tenant will notify landlord of such costs within a reasonable time after they become known and such costs will be determined in accordance with generally accepted accounting principles.\u201d"], "id": "2e8815e6-cdfb-4039-b7b7-f3cf154b3450", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is true that the decision as to when (or whether) to present the matter to a Grand Jury is in the of the Attorney-General\u2019s office. It is also true that the Attorney-General\u2019s office has not really explained why there has been such a substantial delay in making that decision. (Warrant was executed on June 25,1987.) However, these facts in and of themselves do not justify the application of a Grand Jury standard to the instant matter. The cases referred to by counsel for Newark Florists are specifically directed to Grand Jury proceedings and cannot be applied to or extended to the situation now before the court."], "id": "cff97036-7e5e-4183-88e8-b47636ca9940", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This argument fails because it ignores the fact that although the Restated Lease provides that the City \"may approve additional Allowed Uses from time to time in City's ,\" it qualifies this *556statement by providing that all additional allowed uses shall be \"conducted in compliance with all applicable laws, rules, regulations and directives of competent governmental authorities.\" Proposition G and the 1988 Ordinance determining that Belmont Park Associates had a vested right in the development proposal set forth in the 1987 Lease comprise part of the \"applicable laws, rules, regulations and directives\" that govern the type of improvements that can be made to Belmont Park. Accordingly, any additional allowed uses that the City approves in the future must be within the scope of the vested rights defined by the development proposal in the 1987 Lease. Although it is entirely speculative that Symphony will attempt to add allowed uses not consistent with the development proposal in the 1987 Lease, if any such uses are approved by the City, SDOG or another group may take action at that time by challenging the City's approval as inconsistent with Proposition G and the 1988 ordinance granting vested rights in the Belmont Park project."], "id": "faac6548-865b-4a8b-a48d-d5b3e308a779", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["ORDER DENYING PETITION This original petition for a writ of mandamus challenges a district court order denying a motion for judgment on the pleadings. Having considered the petition and its supporting documentation, we are not persuaded that our extraordinary and discretionary intervention is warranted. See Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (observing that the party seeking writ relief bears the burden of showing such relief is warranted); Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has in determining whether to entertain a writ petition). Specifically, we generally decline to exercise our discretion to grant writ petitions challenging orders denying motions for judgment on the pleadings, and we are not convinced any of the exceptions apply in this case. See Chur v."], "id": "abaa5b4c-f097-47be-a9dd-a0a0af050fda", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*246Said property is to be held and administered by the trustee as a charitable trust. It is my intention that the property shall be maintained and operated as a golf course under the \u2018 Pay-As-You-Play \u2019 system as heretofore and for such other public recreational facilities as my trustee may deem proper and advisable. It may be that in the years to come changing times and conditions may bring about new needs for public recreation and means of developing the physical and mental attributes to which I have alluded and which I deem to be essential. These changes my trustee will be in a position to know as they develop and is fully authorized and empowered to make changes in the form of recreational activities to which the property shall be devoted. The determination of such questions together with all other matters in connection with the management and operation of the property shall be in the of my trustee. It is my further intention that the property shall be operated upon a revenue producing basis and that such fees or other charges for golf and other recreational activities and for the use of the other facilities, included in the grant shall be charged as may be necessary to maintain and operate the property and produce some net revenue therefrom."], "id": "65777ed7-1c9e-4da5-ab5e-5a97d8a43379", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c During the respective minority of any such issue the principal and income of the share of any such minor may be used for the maintenance, education and support of said issue or, in the of my Trustees, may be accumulated until each of *454said issue shall have reached the age of twenty-one (21) years, at which time an actual share of the principal per stirpes shall be paid over unto each of said issue.\u201d"], "id": "9dac48b1-11b2-48ae-9a38-0caebd848dd4", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u2018 \u2018 Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words \u2018 whole number \u2019 shall be construed to mean the total number which the board # * * would have were there no vacancies \u2019 \u2019. Thus, whether the local board membership was originally 16 or 10, an affirmative vote by 5 of all the permissible members was insufficient to exercise the power to hire a unit administrator. Indeed, petitioner\u2019s guidelines restate this construction by requiring \u2018 \u2018 the affirmative votes of a majority of the total membership of the local school board at a public meeting on at least 4 days\u2019 notice.\u201d (Guidelines to Decentralization, subd. [c], par. [3], p. 16.) Respondents\u2019 contention that these guidelines expired on June 30, 1969 thereby permitting the July election is wholly erroneous. By resolution adopted June 18, 1969, the Board of Education extended the delegation of functions until February 15, 1970. Moreover, such logic is tantamount to an unbridled arrogation of power to control government because the public office of the local school board and the exercise of its sovereign power is derived by statute and nowhere else. (See 47 N. Y. Jur., \u00a7 13 et seq., Public Officers & Employees.) Furthermore, by enactment of chapter 330 of the Laws of 1969, approved April 27, 1969, article 52-A entitled \u201c New York City Community School District System \u201d, the existing law was amended, to provide for numerical size of each local board to be voted upon and implemented in 1970. In the interim, the new law provides: \u201c \u00a7 2590-n \u2014 Transitional provisions * * * \u00a7 6. This act shall take effect immediately; but no contract may be entered into pursuant to subdivision four of section twenty-five hundred sixty-four of the education law which expires later than June thirtieth, nineteen hundred sixty-nine \u201d. Thus, respondents\u2019 conduct by employing a unit administrator after June 30, 1969 upon a contract provided by subdivision 4 was also in violation of the Laws of 1969. It appears then that respondent local board was without authority to hire the Unit Administrator. It also appears that since only petitioner has to regulate the board, *712and that the board cannot regulate itself, that this court should implement that discretion by appropriate remedy."], "id": "5dd5ac58-a289-4f13-931b-34705d8fb1f4", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A key issue disputed by the parties was how the trial court should utilize a worksheet entitled \"Superior Court of California, County of Monterey, Military Diversion Information Sheet.\" The information sheet states that the court, in collaboration with the offices of the local district attorney and public defender, \"has compiled the following information\" regarding military diversion pursuant to section 1001.80. It states that \"[e]ach case will be considered on an individual basis. The court has the to grant or deny participation in Military Diversion after considering the relevant factors and *703nature of the charges.\" The information sheet lists seven \"eligibility criteria\" derived from the statute and 29 \"factors of con[s]ideration in granting or denying military diversion\" (information sheet factors).2"], "id": "bf1d9d73-1c13-4eff-9ffa-cb202eafb6bd", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c I authorize my Executors and Trustees, or the survivor of them, or their successor or successors, as follows: \u201c (1) To sell, lease, mortgage and exchange all or any part of my estate, both real and personal, at such times and at public or private sale, and upon such terms and conditions as they may deem best in order to carry out the provisions of this my Last Will and Testament, giving and granting to my Executors and Trustees full power and authority to make proper conveyances and transfers of my estate both real and personal. \u201c (2) At the risk of my estate, and without responsibility to my Executors, to continue, and in their , to turn over as part of the shares of my estate hereinbefore given, devised and bequeathed, and in the erection of the trusts herein created, any real estate, stocks, bonds or other investments in which at the time of my death any portion of my estate shall be invested. \u201c (3) At the risk of the trust funds, and without responsibility to my Trustees, to continue to retain any real estate, stocks, bonds or other investments in which at the time of my decease any portion of my estate shall be invested although not of the character authorized for trust investments under the laws of the State of New York, or to dispose of, call in and change any and all investments, and to invest and reinvest the proceeds thereof, or any uninvested funds, in such securities and investments as my Trustees shall deem proper, although not of the character authorized for trust investments under the laws of the State of New York.\u201d In addition to this the deceased by the sixteenth paragraph gave his fiduciaries \u201c the amplest and fullest powers to carry into effect and to accomplish the purposes under the terms of this * * * will.\u201d"], "id": "cf2cc678-fca7-41bc-aa88-2d7627e28f29", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although not in the form of an objection, but as a means of adjusting the matter of the judgment, the attorney for William Schaefer has suggested that the executor-trustee consent to having the judgment satisfied from his client\u2019s interest in the trust. Although an executor has the right to retain a legacy to satisfy a debt due from a legatee (Matter of Cramer, 166 Misc. 713; Matter of Hahn, 163 Misc. 70; Matter of James, 149 Misc. 135) the most that could be retained by the executor from the trust fund would be the income (Matter of Sawin, 173 Misc. 428; Matter of Cramer, supra). The other solution to the prob*604lem would be the exercise by the trustee of his power to invade the trust principal for the benefit of William in order to satisfy the judgment for rent. This, of course, the court cannot direct. The trustee is given the to determine when principal should be used for the support of the beneficiary, and the court can only determine in a proper proceeding whether because of action or inaction there has been an abuse of this discretion (Matter of Downs, 13 Misc 2d 742, citing cases)."], "id": "35ecd108-1de7-4df8-925f-953cf2b38dca", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The contract in the case at bar is not indefinite as to duration. Paragraphs 4, 5 and 6 provide specifically for termination by either party upon the happening of certain events. The contract provides that it \u2018 \u2018 shall be for a period of one year * * * and shall renew itself automatically from year to year for additional periods of one year each without the giving of notice by either party to the other, except that each of the parties shall have the right to terminate this agreement at the end of any one year period hereof * * * in the event \u201d that plaintiff\u2019s share fall below the stipulated amount and the defendant at its , to avoid a termination of this agreement, failed to advance the difference in the minimum stipulated amount."], "id": "9e6b4a86-8761-4589-a9fc-ab03f34cf158", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Apparently, all the tenants who owned dogs \u2014 and respondents were not the only ones allowed to keep dogs in their apartments \u2014were required to register them, and as time went on to reregister their animals periodically with the landlord\u2019s management office. Thus, on December 7, 1967, the tenants signed a \u201c Dog Registration \u201d form furnished by the landlord which reads in part: \u201c We hereby request permission to reregister and to keep at our apartment in Fresh Meadows during the period of our present lease the following dog which is the same dog registered with you in 1963. name of dog: Scotch-on-the Rocks, breed: French poodle, sex : Male, age : 8 years, height : Approximately 11\" * * * weight : About 10 lbs. As a condition of approval to the keeping of this dog, we agree * * * (there then follows six rules of conduct prescribed by the landlord for tenants and their dogs).\u201d The form concludes with \u201c we understand that this permission may be revoked at any time by the landlord in its .\u201d The form also indicates that the management office issued Fresh Meadows numbered dog tags for tenants \u2019 dogs. After the place for tenants \u2019 signatures on this form appears this endorsement: \u2018 \u2018 Permission Granted fresh *55meadows by Joseph E. Westfield, Resident Manager\u201d (the petitioner\u2019s agent)."], "id": "d6d77355-c6f5-4074-9394-db36e0acb781", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner is the present owner of the famous Plaza Hotel located in Manhattan at 768 Fifth Avenue. Respondent occupies approximately 5,200 square feet of commercial space on the 17th floor of the hotel pursuant to a lease entered into with Westin. The lease was purportedly terminated in accordance with a clause contained therein which states: \"[I]n the event Landlord determines in its to * * * sell the Hotel, then Landlord may terminate this Lease by giving Tenant a nine (9) months notice in writing\u201d. A letter of termination was sent by Westin on January 22, 1988. Thereafter a series of transactions involving Westin and several different parties ensued eventually leading to a sale of the hotel to petitioner and a contractual assignment to Donald Trump and DJT Plaza Hotel Corp. Subsequently this summary proceeding was commenced."], "id": "c77d9e46-cde2-4d24-858a-d1123c2715fb", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court finds and holds that the clear intent of the testator Charles H. Kellogg as fully and clearly expressed in his will was to give devise and bequeath all of his property to his wife, Mary D. Kellogg, who was his natural beneficiary, if she survived him, with the provision that, if there was anything left of his estate, after she had invaded the principal as she might, in her , desire, the then remaining property should go to his sister Jessie Fesenmeyer, and, in the event his wife should not survive him, his entire estate, after payment of debts and funeral expenses and expense of administration, should go to his sister absolutely. In other words, his sister Jessie Fesenmeyer, is only a contingent beneficiary who was entitled to receive the entire net estate of the testator in the event the testator\u2019s wife should predecease him and was also entitled to receive any portion of his estate which might remain upon the death of his wife and not consumed by her during her lifetime. It is difficult for this court to imagine how the intent of the testator could be more clearly expressed than in the language contained in his will."], "id": "910bd6bd-5151-4393-a368-a4c27bc4e5c1", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is the view of this court that defendant must offer some rational basis for this refusal. In a case recently decided by the Appellate Term, First Department, Nina Equities Corp. v Wardhaw (NYLJ, April 20, 1982, p 7, col 1), a lease between the parties gave to the landlord the right to rescind permission to harbor a pet \u201cif the landlord, in its , is of the opinion that the behavior of said animal is not in conformity with the practice of the building or that the continued presence of said animal in the building is detrimental to the building or its Tenants.\u201d (Emphasis added.)"], "id": "4d4c6291-13b3-48db-bd7a-15ddac8d3329", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The progenitor of section 671 of the Code of Criminal Procedure was the common-law power of nolle prosequi lodged in the Attorney-General and later the District Attorney. (Matter of McDonald v. Sobel, 272 App. Div. 455, affd. 297 N. Y. 679.) It is now within the court\u2019s to dismiss an indictment in the interest of justice. (People v. Quill, 11 Misc 2d 512.)"], "id": "4cb28c6d-ce13-4617-bb8b-62ca2f796819", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Judiciary Law \u00a7 468-b, entitled \"Clients\u2019 security fund of the state of New York\u201d, states, in pertinent part, \"[T]he board of trustees shall have the to determine the merits of claims presented for reimbursement, the amount of such reimbursement and the terms under which such reimbursement shall be made\u201d (Judiciary Law \u00a7 468-b [4]). Thus, it is clear that applications for reimbursement are committed to the sole discretion of the individual respondents, who constitute the board of trustees of the Clients\u2019 Security Fund of the State of New York."], "id": "fc19e10c-8895-4951-8f91-2718cd239d0c", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This the referee has found that the claimant herein has failed to do; and a careful reading of the lengthy report and the voluminous record discloses no reason why the findings of fact by the referee should be reversed. It is conceded that there was no mention of commissions or percentages upon sales in the original contract of employment of the claimant, who was engaged as a salesman at a weeHy salary of twenty dollars; a promise to pay commissions did not constitute part of the consideration of the original contract of employment, of the original agreement for the services of the claimant as an employee of the assignors; and in the uncertainty and omissions of the facts concerning the continuation of the employment, and the retention of the claimant by the assignors, the referee has evidently found, not inconsistently with the weight of the evidence, that the agreement to pay commissions constituted do part of the consideration of the renewed contract of the claimant to continue in the service of the assignors as their employee, but was an enterprise independent of the relation of employer and employee established by the original and renewed contract of employment at a weeHy salary. This theory is supported by so many facts upon the record as to justify the confirmation of the report of the referee herein; thus the facts that the soliciting of sales upon commission by the claimant was carried on at different times and was independent of the regular duties of the claimant as a salesman upon a weekly salary, that the claimant retained the amount of tMs weekly salary, but did not regularly retain, credit himself with or claim the commissions, that, in inducing sales, or securing the consignment to him of goods for sale, the goods were consigned to Mm, and might be by him further consigned to the assignors or any other merchants, and that, therefore, he was, so far as the subject-matter of the claim presented by him is concerned, vested with , and independence that were not, of themselves, consistent with the fact of an employment, subject to the control of the assignors \u2014 all indicate that, while, under his original and renewed contract of employment, he was a salesman of the assignors at a weeHy salary, yet subsequently and in addition thereto he became an independent consignee, who, in his discretion, recon*428signed the goods to the assignors and shared with them the commissions on the sales of such goods. The weight of evidence is not contrary to the finding of the referee that, under the original or renewed contract of employment, the percentage of sales induced, through his consignment, by the claimant was not essentially a portion of his wages or salary as an employee under such contract; and that, therefore, he has failed with respect to the item upon which his claim is founded, to establish the facts which would meet the tests established by the cases on the subject, necessary to bring him within the preferential language of the statute."], "id": "0b5c0b67-0c3d-47d0-9434-7a8c26d7197f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Since the provisions of section 47-b of the Decedent Estate Law prohibit present payment of the capital sum to the beneficiary outright, some alternative mode of investment, which will effectuate the- testator\u2019s wishes, must be adopted. This can be accomplished by the executrix\u2019 retaining the fund pursuant to appropriate directions of the court. The executrix is accordingly authorized and directed to retain the fund available under subdivision \u201c (c) \u201d of paragraph \u201c Third \u201d and to invest a portion or all thereof in legal investments and deposit any balance in a savings bank or banks doing business in the State of New York, the proportion between the two prescribed modes of investment to be in the of the executrix. The executrix will collect the income therefrom and pay the same, after deducting any proper charges thereon, and so much of the principal as may be necessary to provide a monthly payment of $50 to the primary beneficiary, Fred Kracke, so long as he lives, or until the fund is exhausted. Under the well-settled - authorities, the prescribed annuity is payable from the death of the testator. (Kearney v. Cruikshank, 117 N. Y. 95; Matter of Stanfield, 135 N. Y. 292.) Upon the decease of the primary beneficiary before the depletion of the fund, the remaining provisions of the will with respect to the secondary beneficiaries will be effectuated in like manner. The executrix will be required to file a bond of an approved surety company in an. amount to be fixed in the decree to be made hereon, unless all the named beneficiaries waive the same by appropriate instruments."], "id": "521f3e68-f00a-4f09-884b-6f47dd958331", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The grievance sought to be arbitrated is the request of an employee, Bosomworth, that he \u201cbe promoted immediately\u201d because \u2018 \u2018 I am now, and have been performing * * * the work of a higher classification.\u201d The contract between Sperry and the Association provides that \u201c Unless otherwise provided elsewhere in this Agreement, all disputes, differences or grievances arising out of the interpretation or application of the provisions of this Agreement * * * shall, at the request of either party, be promptly submitted to arbitration \u201d (italics supplied). However, article 18(E)(2) does provide \u201cotherwise \u201d as to the question whether an employee is entitled to a \u201cmerit increase\u201d: \u201cIt is distinctly understood and agreed that such merit increases are at the of the Employer (Sperry) and failure to receive such increase shall not be deemed a grievance -subject to the grievance and arbitration machinery herein set forth.\u201d If the grievance here involved clearly relates to a \u201c merit increase \u2019 \u2019, it is not arbitrable, for the general arbitration clause, by its terms, is inapplicable in a case \u201c otherwise provided (for ) elsewhere in this Agreement.\u201d On the other hand, if the grievance does not pertain to a \u201c merit increase \u2019 \u2019, as that term is used in the agreement, the dispute is arbitrable. The controversy is likewise arbitrable if it is not clear whether or not the grievance is a \u201c merit increase \u2019 \u2019 within the meaning of the agreement, for the general arbitration clause encompasses \u201c disputes, differences or grievances arising out of the interpretation * * * of the provi*549sions of this Agreement \u2019 \u2019 (italics supplied). The provision for arbitration of disputes relating to the interpretation or construction of the agreement does not, however, extend to cases where the language sought to be construed is so clear that only one interpretation is possible. Thus, in Matter of International Assn. of Machinists (Cutler-Hammer) (271 App. Div. 917, 918) the court said: \u201c If the meaning of the provision of the contract sought to be arbitrated is beyond dispute, there cannot be anything to arbitrate and the contract cannot be said to provide for arbitration.\u201d The Court of Appeals affirmed (297 N. Y. 519). Cases to the same effect are legion. Many of them are cited in Sperry\u2019s brief."], "id": "7c6453c6-ca22-478a-8e25-936eebcfbbfd", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The General Contract of Indemnity executed by plaintiff specifically provides that, in the case of pending litigation, plaintiff will furnish defendant with a cash reserve. Paragraph 3 of the agreement recites that plaintiff promises \"to deposit with [defendant], immediately upon demand, a sum equal to any loss reserve * * * that [defendant], in its , establishes in connection with any bond\u201d (emphasis added). Plaintiff advances two arguments why it should not comply with this provision: (1) the court should deny recovery to defendant because of its failure to mitigate damages and, *523(2) the amount of damages sustained by defendant, if any, is a question of fact."], "id": "1113bf28-2106-44fe-9d4d-25af68437486", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cA court cannot by implication supply in a statute a provision which it is reasonable to suppose the *826Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended\u201d (McKinney\u2019s Cons Laws of NY, Book 1, Statutes \u00a7 74). Given the legislature\u2019s intent to specifically omit any duty of good faith or loyalty on behalf of a non-managing member of an LLC, coupled with the fact that the operating agreement gives Kalikow the to manage the business and affairs of the LLC, the court concludes that the second cause of action asserting that Shalik, as a non-managing member, breached his fiduciary duty to the LLC and to Kalikow fails to state a cause of action and, therefore, must be dismissed."], "id": "cc799d65-bab6-4201-86c7-7bb9d5f6298d", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In examining the will the fact is clear that the terminology used was to some extent unskillful. However, the intent of the testator can be ascertained from the will as a whole. The testator, after leaving one half of his estate outright to his wife, was faced with the proposition of how to further provide for the needs of his wife in the event her one-half share proved inadequate. His solution was to place this second one half in a trust under the coritrol and of his \u201c good friend and advisor morris lauegrabeh \u2019 \u2019 who, should- the need arise, could \u201c determine the amount of any income and/or principal which should be paid to either or both of the beneficiaries and *713as to the time\u201d thereof, even to the extent of expending the whole of the sum for his wife, and should the need arise, to his daughter. Provided that his wife, in the opinion and discretion of his \u201c trustee \u201d did not need the balance of the estate, then the daughter was to receive the remainder."], "id": "8f305ea1-ae94-4a6e-864f-d407feb85186", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Matter of Megrue (135 Misc, 16) the language of the paragraph in question read as follows: \u201c I give and bequeath all of the residue of my jewelry, clothing and personal and household effects not hereinbefore disposed of, to my executors hereinafter named, to *763be distributed or disposed of by them in such manner as they in their shall deem best. It is my wish and desire that my said executors follow out as near as possible the special instructions contained in a letter which I shall deliver to them before my death.\u201d"], "id": "f7156842-2be4-42ff-bed6-adc555fe7392", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["0202 - 3629? Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has in determining whether to entertain a writ petition). In particular, the availability of an appeal is generally an adequate legal remedy precluding writ relief. Pan, 120 Nev. at 224, 88 P.3d at 841; see NRS 34.170; NRS 34.330. Petitioners may appeal from the district court's order denying an injunction, NRAP 3A(b)(3), and we are not persuaded that such an appeal would be an inadequate remedy here. Accordingly, we ORDER the petition DENIED.'"], "id": "f493e342-a6e9-40b6-8dcb-89d87d59f29c", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Pollard, a husband and wife reached an agreement on the division of equity in their residence that was incorporated into a judgment of dissolution. (Pollard, supra, 204 Cal.App.3d at p. 1382, 251 Cal.Rptr. 751.) The wife was to continue to live in the residence, and the husband was to receive $33,429.50 as his equity share. ( Ibid. ) However, the wife did not have any present ability to pay that sum and minor children continued to live with her. Thus, the parties agreed that the sum would be due upon sale of the home. Their agreement gave the wife to decide when to sell. ( Ibid. ) Over six years later, the wife still had not sold the residence, and the husband sought interest on the $33,429.50. ( Id. at pp. 1382-1383, 251 Cal.Rptr. 751.)"], "id": "06fc4463-7403-47ad-ae58-895d5a910f37", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is against the background of these facts that the court must construe the residuary clause of her will which says: \u201c Sixth: All the rest residue and remainder of my estate, both real and personal, wherever situated I do bequeath and devise to the Rector\u2019s Fund-of the Church of the Incarnation to be disbursed at the of the Rector.\u201d"], "id": "dc90443b-af80-436f-88b4-9ac11b5c481c", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The combined cost of the petitioner\u2019s bid, plus the other contracts involved, brings the total price to over the authorized $314,823.29. This bid could rightly be rejected by the Commissioner of Purchase in his . Other objections to petitioner\u2019s bid have been raised, but need not be considered in this proceeding. The O\u2019Brien bid is the only one that came within the total cost authorized by the Common Council."], "id": "1473ebad-da17-4a4f-80f6-46164a169033", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Matter of Dowling (191 Misc. 818 [1948]) the Surrogate of Queens County found a defeasible interest in an estate where income was left to the widow for life or until remarriage and the trustees were empowered to pay principal necessary for her care and support in the of such trustees. In that case the estate of the widow was not only defeasible by marriage but also any invasion of principal was limited by the necessity for care and support and by the discretion of the trustees."], "id": "497a5214-6f60-4286-9b73-f18bb8bf81ea", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*290The accounting trustee, because of the failure and refusal of the corporate fiduciary named in the will to qualify as a trustee, and because of the disqualification of his cotrustee under section 141 of the Real Property Law, as hereinabove set forth, now has the to determine whether an invasion of the trust fund is required for the support, comfort, and maintenance of his cotrustee, the life beneficiary herein. This discretion, although resting solely in the accounting trustee, is not absolute. The court has the right to inquire as to the proper use of such discretion. (Matter of Ahrens, 185 Misc. 427, affd. 269 App. Div. 977; Matter of Clark, 280 N. Y. 155; Matter of Atkins, 98 N. Y. S. 2d 690; 2 Scott on Trusts, \u00a7 187.4.) The court, therefore, directs the life beneficiary herein to submit to the accounting trustee a statement of her personal means and income outside of the trust fund as requested by him in accordance with the rule laid down in Matter of Martin (supra). If, after submission of such information, the accounting trustee should act in an arbitrary and capricious manner in his determination as to whether there should be an invasion of the principal of the trust in favor of the life beneficiary, this court will review the matter to determine whether the-accounting trustee has acted properly (Matter of Ahrens, supra; Matter of Clark, supra; Matter of Atkins, supra)."], "id": "db1bbd25-023b-4218-9c87-0ef550f29115", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On January 4, 2017, appellees Seth Anderson and Trevor Anderson, as grandchildren and beneficiaries of the Trust, filed a \"Complaint for Breach of Trust\" against the appellants as Co-Trustees. The appellees alleged that the Amendment was obtained by the undue influence of the appellants while Woodrow, Jr. was under the influence of heavy narcotics for medication of his terminal illness. The appellees asserted that the revisions in the Amendment were not in the best interests of the beneficiaries. In particular, the Amendment revised the Trust's provision for all grandchildren to receive education benefits as generally described above by giving the Co-trustees as to whether to pay such benefits. According to the complaint, appellant Co-Trustee Kandice A. Gibbons had stated that she controls the money and that it will go only to people who respect her. The complaint further *146alleged that there were other changes in the Amendment that benefited the Co-Trustees personally and were discriminatory to the beneficiaries. The complaint also alleged that the appellants had breached the Trust by failing to provide the beneficiaries a vehicle and $ 500 per month in miscellaneous expenses as set forth by the Trust and not modified by the Amendment. The appellees claimed that the Co-Trustees had acted in bad faith and had breached their fiduciary duty to the appellees. The appellees sought to set aside the Amendment and to reform the Trust as set forth in the original Trust agreement; to remove the Co-Trustees with new trustees appointed; for the Co-Trustees to receive no compensation under the Trust; an accounting of the Trust; to restore any funds improperly distributed under the purported Amendment; a constructive trust for any property improperly removed from the Trust; a judgment against the appellants and the Trust for the value of the vehicles that should have been purchased; payment of $ 500 per month that should have been paid pursuant to the Trust; and the amounts the appellees had expended on educational expenses."], "id": "6d56144d-9e76-4030-aa16-b5fe066ba6f8", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Paragraph fifth of the will gave authority to the residuary legatee, in his , to personally substitute in place of the securities comprising the principal of each of the trust funds mentioned in paragraphs a, b, c, d, e, f, g and h of his will, the sum of $100,000 in cash or in legal securities at the par value thereof."], "id": "faf148c4-6753-400d-b90f-f9fce60860c0", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The tenants contend that this was a \u201cpackage deal \u201d and that there is no readily ascertainable purchase price and, therefore, the purchase price cannot be used as a base. However, there is no definition, in the law or in the rules pertaining thereto, as to what constitutes a \u201c package deal.\u201d A \u201c package deal \u201d is an exception to the mandatory use of the sales price in determining a fair net return. It therefore comes within the of the Administrator to determine in each case whether the transaction is or is not a \u201cpackage deal\u201d within the intention of the statute."], "id": "ee68f8ab-b2a8-46ff-a64d-380fc08e3fcd", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The mineral, royalty and leasehold interests in oil and gas involved in the controversy were originally acquired by the University of Buffalo at the time it was a private institution of higher education, under the will of one Ralph Hochstetter, admitted to probate in Erie County on June 13, 1955. Under the *347terms of that will the testator gave to the University of Buffalo certain oil and gas royalties of which he died possessed, and he expressly provided that this gift was to be used and administered by it as a fund in connection with certain medical research studies in the University\u2019s Department of Medicine. The donor directed that the principal, as well as the income of such fund, was to be used only for such purpose or purposes above mentioned as are comprehended in the general objects authorized by the Charter of the University of Buffalo and that the principal of the fund could be used if the income, in the judgment and in the of the Board of Trustees of the University, be insufficient. The will also provided that the fund was \u201c to be held and disposed of\u201d by the University for purposes connected with the same medical research program. The University of Buffalo held the property and property interests acquired under the will and held and expended the income therefrom for the purposes specified by the donor, until its merger into the State University of New York. Since the merger on August 31, 1962, the State University of New York has held, managed and administered all of the endowment assets which were owned by the University of Buffalo prior to the merger, including the assets acquired under the donor\u2019s will. In carrying out its duties in the management and use of the funds acquired by the State University of New York following the merger, its Board of Trustees offered the oil and gas interests so acquired for sale for the purpose of investing the proceeds in other types of income-producing securities. As a result of competitive bidding, the defendant submitted the highest bid for the purchase of those interests, which was accepted by the Board of Trustees of the State University of New York. Thereafter, and upon tender of a deed of conveyance of said oil and gas interests by the State University of New York, the defendant refused to accept the conveyance on the ground that title to such property interests was vested in the People of the State of New York and the State University was without authority to sell or convey."], "id": "fdfa5356-34c3-4998-b6fa-20d27667e753", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cin such capacity to act as . . . the agent and true and lawful attorney-in-fact of each Stockholder . . . and with full capacity and authority in his , to act in the name of and for and on behalf of each Stockholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to [the APA].\u201d In article XII of the APA, the stockholders, also defined as \u201cRepresentors,\u201d agreed to indemnify WPP1 and assume liability for, inter alia, breach of any representation contained in article III of the APA; breach of the APA or contemporaneous agreements, excluding employment and noncompete agreements; third-party claims relating to any retained liability, a defined term; and any litigation or claim relating to disclosed claims listed on a schedule to the APA. Section 13.15 of the IA allowed the representative, i.e., Salomone, inter alia, to accept service of process for the stockholders; to bring, assert, defend, negoti*321ate or settle any indemnity claims arising out of the APA; and to retain legal counsel and be reimbursed by the representors for all legal fees, expenses and other charges for such counsel. Contemporaneously, the stockholders entered into the IA, in which they agreed to indemnify Salomone and assume responsibility for liabilities arising pursuant to article XII of the APA in proportion to the percentage of the stock that they owned, as stated in section 2 of the IA. Defendants now dispute those percentages and counterclaim for reformation of the IA."], "id": "68a1181f-413b-4b0b-89d7-7ecc034c2a5b", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cObtaining an Order of Expungement of Customer Dispute Information from the Central Registration Depository (CRD System) \u201c(a) Members or associated persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief. \u201c(b) Members or associated persons petitioning a court for expungement relief or seeking judicial *637confirmation of an arbitration award containing ex-pungement relief must name NASD as an additional party . . . unless this requirement is waived pursuant to subparagraph (1) or (2) below. \u201c(1) Upon request, NASD may waive the obligation to name NASD as a party if NASD determines that the expungement relief is based on affirmative judicial or arbitral findings that: \u201c(A) the claim, allegation or information is factually impossible or clearly erroneous; \u201c(B) the registered person was not involved in the alleged investment-related sales practice violation, forgery, theft, misappropriation, or conversion of funds; or \u201c(C) the claim, allegation, or information is false. \u201c(2) If the expungement relief is based on judicial or arbitral findings other than those described above, NASD, in its and under extraordinary circumstances, also may waive the obligation to name NASD as a party if it determines that: \u201c(A) the expungement relief and accompanying findings on which it is based are meritorious; and \u201c(B) the expungement would have no material adverse effect on investor protection, the integrity of the CRD system, or regulatory requirements.\u201d (FINRA Manual Rule 2130.) NASD designed these rules and notices (collectively, the new expungement regulatory scheme) in an effort to balance the need to maintain the integrity of the CRD as a comprehensive database for regulatory purposes with the legitimate desire of brokers and dealers to be relieved of the burden of having spurious claims maintained on their records. (See NASD Notice to Members 99-54 [NTM 99-54] at 351; Amendment No. 1 at 6, 7; SEC Approval Statement, 68 Fed Reg at 74671.)"], "id": "5e11c0e8-d11f-455c-8b89-6005fd75855f", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["upon proper notice to the Court on behalf of either or both of the parties. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties\u2019 settlement and this Stipulation shall be voidable at the of either party."], "id": "9e29565b-4e03-40e7-bd45-19dec833d5a3", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondents\u2019 argument that the classes already exist lacks merit. The SBEA has in the past changed its classifications of properties, and it may do so again in the future (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 97 Misc 2d 637, supra). \"At present, the SBEA has segregated all real property into nine classes (Property Type Classification Codes, NY State Div. of Equalization and Assessment, May, 1977). In the past, the State board had as many as 17 classes (see 860 Executive Towers v Board of Assessors of County of Nassau, 43 AD2d 910, supra), and occasionally listed certain types, such as apartments, as a separate category in some years but not in others. The difficulty of cataloguing property into classes is apparent, and the Legislature has not undertaken to define the classes.\u201d (Matter of Slewett & Farber v Board of Assessors of County of Nassau, supra, p 646.) There is no legislative restriction on the ability of the SBEA to reclassify property tomorrow, if that agency, in its , determines the necessity of such action. In view of the foregoing, the court finds that subdivision 3 of section 307 results in an impermissible delegation of legislative power (see Matter of Slewett & Farber v Board of Assessors of County of Nassau, supra)."], "id": "41fbf82f-7c97-497c-8b23-12cab0ec3c78", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If the People have a right to provide an oral statement to the court with reference to sentence at the time thereof, why should they not be able to file preliminarily, with timely notice to the defendant, a written presentence statement? If the statutes permit a defendant to proffer a presentence memorandum at any time before sentence (CPL 390.40); allow the People to make a statement at the time that sentence is to be pronounced (CPL 380.50); and encourage the court to hold a presentence conference to resolve any factual disputes (CPL 400.10), it would appear both legal and logical for the court, in its , to countenance a proper and authorized submission by the People of a written presentence memorandum."], "id": "9033f49a-4645-4a66-b842-5d01f1e55ee7", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Public Authorities Law \u00a7 1020-f (h) provides the LIPA with the power \u201c[t]o make and execute agreements, contracts and other instruments necessary or convenient in the exercise of the powers and functions of the authority * * * including contracts with any * * * municipality * * * and all municipalities are hereby authorized to enter into and do all things necessary to perform any such agreement, contract or other instrument with the authority\u201d. Public Authorities Law \u00a7 1020-h (2) authorizes LIPA to acquire \u201call or any part\u201d of LILCO\u2019s securities or assets to further the legislative findings as LIPA in its may determine providing that prior to any such acquisition the LIPA determines that higher utility rates will not result."], "id": "0855f1f8-58da-47f5-97cc-a429ab6fa6b6", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[EDC], as Lease Administrator of the [Premises], writes in regard to the Lease Agreement (\u2018Lease\u2019) for the Premises, dated as of July 1, 1999, as amended. *452\u201cBased upon a visual observation of the Premises on or about June 8, 2015, it appears that [Royal], Tenant of the Premises (Tenant\u2019), has vacated the Premises. Further, third parties [i.e., Urban] unaffiliated with [Royal] have contacted [EDC] to inquire about building permits. Because of the apparent vacancy and these inquiries, we write to remind you that the Premises are use-restricted, pursuant to the Lease. \u201cArticle 9 (\u2018Use of Premises\u2019) of the Lease provides that Tenant shall use and occupy the Premises \u2018for the storage and distribution of food products, (crackers, canned goods, soups) and alcoholic beverages, for activities directly related to the storage and distribution of food products and alcoholic beverages, for related office uses and for no other purpose.\u2019 It further provides, \u2018Tenant shall not use the Premises or permit the Premises to he used for any other purpose except with the prior written approval of Landlord to be given at Landlord\u2019s . [\u2019] \u201cArticle 14 (\u2018Assignments, Subleases and Transfers\u2019) of the Lease conditions assignments, subleases, transfers and other actions by the Tenant upon the prior written consent of the Landlord (City of New York). Furthermore, if Landlord consents to any assignment, sublease transfer or other action as set forth in Article 14, Landlord may impose any conditions to its consent that Landlord determines, in its sole reasonable discretion, may be necessary or appropriate, including that the terms, covenants and conditions of the Lease become applicable to any Person (as defined in the Lease) to whom the provisions of Article 14 apply. \u201cThe Premises is located within an M3-1 zoning district. M3 districts are \u2018Heavy Manufacturing Districts\u2019 (see Section 42-13 of the New York City Zoning Resolution). M3 districts are generally designated for areas with heavy industries that generate noise, traffic or pollutants. Only certain uses are allowed within M3 districts, as set forth in the New York City Zoning Resolution (\u2018Zoning Resolution\u2019). A zoning change to permit uses not permitted by Article TV, Chapter 2 of Zoning Resolution can only be achieved through the Uniform Land Use Review Procedure (ULURP). ULURP is a standardized procedure set forth in the New York *453City Charter whereby applications affecting land, use are publicly reviewed. The Charter also establishes mandated time frames within which application review must take place. Key participants in the ULURP process are the Department of City Planning (DCP) and the City Planning Commission, Community Boards, the Borough President, and the City Council. \u201cTo date, the uses about which [EDC] has received inquiries do not conform to the use provisions of the Lease. \u201cPlease inform us of your intentions regarding the Premises as soon as possible.\u201d (See Doc No. 11 [the June 12 letter] [emphasis added].) According to his July 8, 2016 affirmation, on June 15, 2015, Royal\u2019s counsel, Kenneth Kanfer, called Thrasher to discuss the June 12 letter. (See Doc No. 34 at 3.) Kanfer claims that \u201cThrasher was perturbed that [Urban] had prematurely approached the EDC about subleasing the premises before the EDC was presented with a proposed Sublease.\u201d (See id.) Kanfer states that he informed Thrasher about the sublease and that it was subject to the City\u2019s consent. (See id.) According to Kanfer, \u201cThrasher requested that I provide him with the Sublease and a letter explaining the highlights.\u201d (See id. at 4.) Kanfer claims that immediately after his call with Thrasher, he called Abitbol, \u201cread the June 12 letter to him,\u201d5 and informed him of his conversation with Thrasher. (See id. [emphasis added].) According to Kanfer, \u201c[a]t the end of the call, we agreed that since I had spoken to . . . Thrasher, I would promptly draft a letter to . . . Thrasher which, for the first time, would include the Sublease as well as other materials that were requested.\u201d (See id.)"], "id": "68d9946f-7615-4cc9-8e4b-969d94a4d10b", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By its terms, the legatee, in consideration of $4,850 paid by Vera Lillian Cornell, sells, assigns, transfers and conveys to her all his right, title and interest, both present and prospective, that he now has, or may hereafter have, in and to any gift, devise, legacy, annuity or trust fund that may be provided for, or contained in any will, or any codicil thereto of John H. Cornell, and that may be admitted to probate after his death, together with all of the right, title and interest that he may hereafter have in and to the estate of which the said John H. Cornell may die seized, or possessed of, as an intestate, in trust for the support, maintenance and education of Vera Ann Ferrer during her minority, and to pay the balance remaining in her hands, if any, to the said Vera Ann Ferrer, either upon her marriage or upon attaining her majority, at the of the trustee. The assignor irrevocably appointed the assignee his attorney to demand, sue for, recover and receive any and all moneys or other property, now or hereafter due, owing and payable upon, or under the assignment with authority to perform any act necessary or expedient for that purpose, and covenanted that he would, upon request, execute and dehver any further instruments necessary to perfect the vesting and confirming in the assignee all his right, title and interest in the property, claims or demands thereby assigned."], "id": "345b9140-15fc-4789-8025-c1b590a58ab0", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Given the documented circumstances of this case, we agree that the trial court properly reviewed and emphasized the parties' standard of living. Husband brought Wife to the United States. Wife struggled with English, and either worked part-time or was unemployed throughout the marriage. Husband completely controlled the parties' finances and firmly fixed the parties' standard of living during the entirety of the marriage. Specifically, Husband determined the amount and provided Wife a monthly allowance; Husband paid the parties' expenses; and Husband bought Wife expensive gifts and took Wife on numerous vacations at his . Given his many years of complete dominance and control over the parties' finances, we are not persuaded that the trial court erred in its consideration of the parties' standard of living."], "id": "eb71ea66-4d0f-45f1-8b56-6345b60730cd", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Matter of Burnett (89 N. Y. S. 2d 152), the testator directed his executor \u201cin its , to pay and distribute my estate to the legatees, as specified in my Last Will and Testament, in kind \u201d. In analyzing the testamentary direction contained in that will, this court referred to Villard v. Villard (219 N. Y. 482) in which the opinion by Chase, J., stated at page 500: \u201c A legacy or other payment pursuant to a direction in a will is ordinarily payable in cash, but it does not prevent any other form of payment which is acceptable to the payee.\u201d This court then concluded that where a testator manifests an intention that a legacy shall be satisfied by delivery in kind, such intention will be enforced."], "id": "0ac14fa5-4476-4401-8e8f-f1e63b93bf10", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the issue of consistency, Marwit argues that ev3, Inc. v. Lesh, supra , 114 A.3d 527 at page 528 is instructive. In ev3 , the parties entered into a letter of intent stating the purchaser of a medical device company \" 'will commit' \" to provide funding to ensure sufficient capital to achieve regulatory \" 'milestones' \" toward the approval and marketability of a medical device. The parties later entered into a merger agreement which provided that the purchaser would fund and pursue regulatory milestones in the purchaser's \" ', to be exercised in good faith.' \" ( Ibid. ) The merger agreement had an integration clause that stated the merger agreement did not supersede the letter of intent. ( Ibid. ) The Delaware Supreme Court concluded the funding provision in the letter of intent was not a binding provision and *1018\"[t]he reference in the letter of intent in the integration clause did not convert the non-binding Funding Provision into a binding contractual obligation.\" ( Id. at p. 536, fn. omitted.) The Delaware Supreme Court also concluded the funding provision of the letter of intent was inconsistent with the merger agreement because \"[a] provision that allows a buyer to make funding decisions in its 'sole discretion' is plainly inconsistent with the Funding Provision, which required [the purchaser] to fund on a specific schedule.\" ( Id. at p. 537.)"], "id": "d2973721-90f0-43c1-a67d-54f2ab614aa5", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The last pronouncement by the Supreme Court of the United States, with respect to the question at issue, is its decision in the Merchants Bank case (supra, p. 258). There the will authorized the trustee to invade the corpus \u201c at such time or tim.es as my said Trustee shall in its deem wise and proper for the comfort, support, maintenance and/or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund * * # my said Trustee shall exercise its discretion with liberality to my said wife, and con*361sider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.\u201d"], "id": "ba14f9aa-ea44-4b50-ba5f-a8fa81f6ecce", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["According to the terms of the instant trust instrument, the beneficiaries, collectively designated as a family group, of which Thomas W. Doran is a member, was created for providing comfortable support, maintenance and/or education to any one or more of the members of said family group. The trustee has complete and . pursuant to the terms of the trust to apply and expend1 the income or principal for the support of any one or all of .the members of said family group. The trustee is further authorized not to observe any rule or pr\u00e9cept of equality as between the members of said family group."], "id": "d1fb36fd-ead3-4b96-b985-801dbc7f92ff", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cbusiness and affairs of the Company shall be managed by Edward Kalikow in his . Edward Kalikow shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all power, statutory or otherwise possessed by the members under the LLCL\u201d (exhibit B to motion \u00b6 5 [emphasis added]).1 Indeed, Kalikow admits in his affidavit that he is the managing member of the LLC (Kalikow aff \u00b6 1)."], "id": "236ef4a7-3bd2-4822-bd85-deecbd6a90bc", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under subdivisions (c), (d) and (e) of paragraph \u201c Seventh \u201d, testator directed his trustees to take from the trust fund created thereunder such sums of the income and principal as may be required, in their , to bring to this country those of his sisters, brothers and their families who resided in Europe; to provide for the support and maintenance and benefit of those so brought here; and to provide for the support of such other members who continued to reside in Europe. Subdivision (f) provided that should there then be any money left in the fund after all of the foregoing had been paid, the *849trustees \u201c shall have the right to dispose of these moneys to such charitable institutions as they may deem advisable \u201d."], "id": "f604440a-c3ac-441d-b3f2-feb65b791a51", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["CORDANI, J. INTRODUCTION The City of Shelton (city) appeals a final decision of the Connecticut State Board of Labor Relations (board) finding that the city violated the Municipal Employees Relations Act, General Statutes \u00a7 7-467 et seq. (MERA), by changing its process for evaluating candidates for promotion within the city\u2019s workforce without negotia- tion with the Shelton Police Union (union). FACTS AND PROCEDURAL HISTORY At all times relevant to this appeal, the city and the union had a long-standing collective bargaining rela- tionship and had been parties to a collective bargaining agreement, the most recent version of which became effective on July 1, 2016 (CBA). The CBA \u00a7 17.01 pro- vides: \u2018\u2018Promotions will be made in accordance with the provisions of the Merit System of the City of Shelton. Promotional opportunities will be posted with sufficient time to prepare for the examination and a list of study materials will be provided. Challenges to the promo- tional testing results shall be in accordance with Section 29.03A.\u2019\u20191 (Emphasis added.) The merit system of the city is defined by city ordi- nance.2 Prior to February 9, 2018,3 the merit system of the city was provided for in Ordinance 896.4 Ordinance 896 provided in pertinent part: \u2018\u2018All appointments to positions within the classified service of the City of Shelton shall be made as provided herein. Examination and testing shall be established in accordance with the job description by the [A]dmin- istrative [A]ssistant who shall first determine whether an examination shall be open competitive or promo- tional. . . . \u2018\u2018The examination process shall be of a practical nature and shall relate to subjects which fairly measure the relative capabilities of the person examined to exe- cute the duties and responsibilities of the position sought. The [A]dministrative [A]ssistant may adopt or authorize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications. . . . \u2018\u2018Examinations for positions within the classified ser- vice shall be competitive and may include written, prac- tical and oral interview test components. All applicants meeting the prescribed requirements shall be allowed to participate in the initial test component and shall be notified, in writing, of the time, place and date of the initial test.\u2019\u2019 (Emphasis added.) Shelton Code of Ordi- nances, c. 2, Art. VI, \u00a7 2-312 (a), (b), and (e). On February 9, 2018, the city adopted a new ordi- nance (2018 Ordinance)5 concerning the merit system with the goal of enhancing promotion from within the city\u2019s ranks, which new ordinance provided in perti- nent part: \u2018\u2018Upon the recommendation of the Department Head that there are qualified employees presently employed by the City, including both full time and part time employees, who are qualified to perform the job that is opened, the Administrative Assistant may, in his , limit the applications to City employ- ees and proceed with only a promotional examina- tion.\u2019\u2019 (Emphasis added.) Shelton Code of Ordinances, c. 2, art. VI, \u00a7 2-301 (7.1.1). It is the adoption and implementation of this 2018 Ordinance that the union challenged. The board factu- ally found that \u2018\u2018since on or before October, 1981, to February, 2018, the promotional process for bargaining unit members entailed participation by qualified candi- dates in written and oral examinations, each having a relative weight of fifty percent (50%) in determining each candidate\u2019s final score.\u2019\u2019 (Footnote omitted.) In April of 2018, it was determined that there was a need for additional lieutenants in the city\u2019s police department. In accordance with the 2018 Ordinance, the department head, [the] chief of police, notified the administrative assistant that several employees within the city\u2019s police department were qualified for the new positions. The administrative assistant then engaged the internal promotion process provided for in the 2018 Ordinance. Five internal candidates applied for the three available positions. All of the candidates who applied were subjected to oral examination, determined to be qualified and ranked. All five were placed on a certified list of eligible candidates. The police chief then selected three candidates from the list. No written examination was given in the process. The union claimed that the adoption of the 2018 Ordi- nance and its implementation in the promotion of the three police lieutenants amounted to a unilateral change in the material conditions of employment by the city without the mandatory negotiation with the union. In particular, the union claimed that conducting the pro- motional process without a written examination was an improper unilateral change made without negotiation with the union. The city admits that it did not negotiate with the union over the adoption of the 2018 Ordinance or its implementation in the promotion of the lieuten- ants without a written examination. The union then filed a complaint with the board. The matter was heard before the board on July 19, 2019. Testimony was taken and evidence entered into the record. On March 10, 2020, the board issued its final decision which concluded that the city violated MERA by unilaterally changing the promotion process to elimi- nate the written examination portion of the process, thereby changing the mandatory equal weighting between written and oral exams. The city then appealed the board\u2019s final decision to this court. The city is aggrieved because it has exhausted its administrative remedies and appeals a final adverse decision of the board finding that the city violated MERA and compelling the city to change its promo- tional process. STANDARD OF REVIEW This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Stat- utes \u00a7 4-183.6 Judicial review of an administrative deci- sion in an appeal under the UAPA is limited. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). \u2018\u2018[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency\u2019s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evi- dence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its dis- cretion.\u2019\u2019 (Internal quotation marks omitted.) Id. Although the courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute\u2019s purposes, \u2018\u2018[c]ases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.\u2019\u2019 (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Informa- tion Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). ANALYSIS The board\u2019s final decision finds that the city violated MERA by removing the written examination from the promotional process without negotiation with the union. Specifically the board found that the fact that the promotional process contained a mandatory written examination7 weighted at 50 percent of the candidate\u2019s overall score was a material term and condition of employment and could not be changed without negotia- tion with the union. Based upon the foregoing violation, the board ordered various remedies. Pursuant to General Statutes \u00a7 7-474 (g), the merit system, once established, is not subject to mandatory negotiation, except for three particular topics specified in the statute, which statute provides in pertinent part: \u2018\u2018The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional pro- cess have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to col- lective bargaining: (1) The necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for writ- ten, oral and performance examinations. . . .\u2019\u2019 Here the board found that the administration of a written examination was required by the merit system, and therefore by conducting the promotional process without a written examination, the city changed the relative weight to be attached to each method of exami- nation without negotiation. However, as found by the court below, the city\u2019s merit system did not require a written examination, and accordingly, the city\u2019s choice to act in accordance with its merit system and not employ a written examination was not a change in the relative weight to be attached to each method of exami- nation. Thus the exception in \u00a7 7-474 (g) was not engaged and no negotiation was required. The court begins its analysis by examining what the CBA provided for concerning the city\u2019s merit system promotional process. The CBA \u00a7 17.01 provides: \u2018\u2018Pro- motions will be made in accordance with the provisions of the Merit System of the City of Shelton.\u2019\u20198 The forego- ing provision is subject to only two possible interpreta- tions. First, the provision could mean that promotions will be made in accordance with the city\u2019s merit system as it existed at the time that the CBA was entered into, namely, July 1, 2016. In the alternative, the provision could mean that promotions will be made in accordance with the city\u2019s merit system as that system is amended from time to time.9 The interpretation of contract lan- guage is a question of law for the court to resolve. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). If the provision has the first meaning, namely, that the merit system authorized by the CBA is that system in effect on July 1, 2016, when the CBA was signed, then that merit system was reflected in Ordinance 896 which was publically adopted several months before the CBA was signed, and which provided that (i) the examination could be open competitive or promotional, (ii) the administrative assistant may adopt or autho- rize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications, and (iii) that examinations may include written components. Thus, the city\u2019s merit sys- tem as it existed on July 1, 2016, did not absolutely require a written examination because the ordinance gave the administrative assistant power to adopt any procedures deemed appropriate and because the ordi- nance indicated that the process may contain a written component. A 1977 Ordinance provided: \u2018\u2018Effective immediately any written and oral examinations speci- fied in the requirement sections of all ordinances deal- ing with job descriptions will be weighed equally, 50% written and 50% oral.\u2019\u201910 (Emphasis added.) Shelton, Conn., Code of Ordinances, adopted March 14, 1977. This clearly meant that if the process included written and oral examinations, the two exams would be weighted equally. Accordingly, it is clear that the merit system that existed on July 1, 2016, did not absolutely require a written examination, but instead only required that if the process contained both oral and written com- ponents, they would be weighted equally. The adminis- trative assistant was provided with the discretion to choose the appropriate procedure. If the CBA provision authorizes any merit system that the city maintains as amended from time to time, then the merit system relevant to this case was as described in the 2018 Ordinance, and that merit system did not require a written exam. Similar to Ordinance 896, the 2018 Ordinance provided the administrative assistant with discretion to determine the proper procedure. Thus, in either case the CBA authorizes the use of a merit system which allows for but does not require a written examination and allows the administrative assistant to choose the appropriate procedure.11 The board factually found that, in practice, from Octo- ber, 1981, through February, 2018, the city\u2019s merit sys- tem was actually conducted in such a manner that it included a written examination weighted at 50 percent. Such a long established practice of an important aspect of employment could amount to a material term and condition of employment and the board found that it did. A material term and condition of employment gen- erally cannot be altered without negotiation with the union. Further, the board found that the weighting of the written and oral examinations at 50 percent each was a condition that required negotiation to change under . . . \u00a7 7-474 (g).12 Thus, the board found that the provision of a written examination weighted at 50 percent within the merit system could not be changed without negotiation with the union. However, \u00a7 7-474 (g) only required negotiation if a change was made to the relative weight to be applied. Here no change was made because the merit system allowed a process with- out a written examination. Further, if the CBA covers this term and condition of employment, then the city and the union have already negotiated over the matter and arrived at a result that is memorialized in the CBA. A failure to negotiate over a term of employment cannot be found where an express agreement between the parties that covers that term of employment is found in a collective bargaining agreement such as the CBA here. An employer does not have a duty to bargain over a term of employment that is covered by a provision of a collective bargaining agreement. See Board of Edu- cation v. State Board of Labor Relations, 299 Conn. 63, 74, 7 A.3d 371 (2010); see also Norwich v. Norwich Fire Fighters, 173 Conn. 210, 215\u201316, 377 A.2d 290 (1977). Collective bargaining agreements are the cornerstone of the relationship between the employer and labor. Collective bargaining agreements memorialize the bar- gaining that has occurred between the parties and estab- lish each party\u2019s rights and obligations concerning the topics covered by the collective bargaining agreement. Thus, it is clear that the parties have the right and the obligation to conduct themselves in accordance with the terms of the collective bargaining agreement. Clearly the CBA covers this matter. The CBA requires that promotions be made by the city in accordance with the city\u2019s merit system. As noted [previously], the merit system authorized by the CBA does, and did, not require a written examination within the process. Although the board factually found that, since 1981, the city utilized written examinations, on July 1, 2016, the union and the city negotiated and agreed that the merit system would be that system described in the city\u2019s ordi- nances.13 Thus the union has had its negotiation con- cerning this term of employment and came to an agree- ment reflected in the CBA, and that agreement does not require a written examination. The board found the city\u2019s reliance on the ordinances misplaced. The court respectfully disagrees. The CBA required the city to use its merit system. The merit system was defined by the ordinances. Thus the CBA, and therefore the union, agreed that the city should use its merit system as defined in the ordinances. The board found that \u00a7 17.01 of the CBA must be read as a whole, and should be read consistent with \u00a7 29.03A. That may be so, but a corresponding reading does not change the court\u2019s interpretation of the CBA. Section 29.03A of the CBA refers to a written memoran- dum of understanding that is attached to the CBA. The memorandum of understanding establishes procedures to be followed to allow candidates to challenge results on written tests given for promotional purposes. Thus the memorandum of understanding allows for individ- ual challenges to scores on written examinations, if such written examinations are administered. The mem- orandum of understanding does not change the meaning of the CBA and does not require the administration of written examinations. Section 29.03[A] is not meaning- less, it merely provides procedures that may be used in applicable circumstances. The past practice of the city in using written examina- tions is entirely consistent with the CBA and the ordi- nances. Both the CBA and the ordinances allow for written examinations but do not require them. Reading the CBA as the union and the board do, results in a meaning that invalidates or undermines the plain mean- ing of the ordinances which were in existence when the CBA was signed. Since the CBA clearly uses the ordinances to define the merit system,14 a reasonable reading of the CBA must be consistent with and not undermine the ordinances. Further, reading the CBA to allow but not require written examinations produces an interpretation that is consistent with the plain words of the CBA, including the attached memorandum of understanding, past practice, and the ordinances. The union in this instance has not waived its right to negotiation,15 it has had its negotiation when it agreed to the CBA, and the CBA does not mandate written examinations be part of the merit system. Accordingly, in passing the 2018 Ordinance, and in implementing the 2018 Ordinance in the promotion of the lieutenants, the city has not deprived the union of negotiation concern- ing this topic and has not violated MERA.16 Accordingly, the court determines that the plaintiff has established on appeal that the final decision of the board is (1) affected by error of law, and (2) clearly erroneous in view of the reliable, probative, and sub- stantial evidence on the whole record. The court there- fore respectfully sustains the appeal. ORDER The appeal is sustained. Judgment enters for the plaintiff. The city of Shelton has not, on the record before the court, violated MERA. Accordingly, the judg- ment and orders of the board are vacated. * Affirmed. 210 Conn. App. 390, A.3d (2022). Section 29.03A refers to a September 18, 2003 memorandum of under- standing which is attached to the CBA and provides procedures to be fol- lowed to allow candidates to challenge results on written tests given for promotional purposes. Although the CBA uses \u2018\u2018Merit System\u2019\u2019 in capital letters, it does not define the term. The only place in the record where the merit system is defined in written documents is in the city ordinances. The city ordinances, in particular Ordinance 896, provide a definition of the merit system, explaining in detail how the system is applied and how it operates. See Record Exhibit 17, pages 248\u201366 for Ordinance 896 entitled \u2018\u2018Merit System and Personnel Rules.\u2019\u2019 See also Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. As required, these ordinances are adopted through the normal legislative process of the city which process is open to the public. The foregoing Ordinance is entitled \u2018\u2018Merit System and Personnel Rules\u2019\u2019 and is found in the Record at Exhibit 17, pages 248\u201366. The city\u2019s ordinances concerning the merit system have been amended by the city on a multitude of occasions over the years, but the details of the changes are not specifically reflected in the record. See Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. A 1977 ordinance provided: \u2018\u2018Effective immediately any written and oral examinations specified in the requirement sections of all ordinances dealing with job descriptions will be weighed equally, 50% written and 50% oral.\u2019\u2019 (Emphasis added.) Shelton, Conn., Code of Ordinances. See Record Exhibit 18, pages 267\u2013352. Again, this ordinance, which amends the previous merit system ordinances, defines the merit system and provides significant details concerning the applicability and operation of the merit system. General Statutes \u00a7 4-183 (j) provides in relevant part: \u2018\u2018The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, con- clusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .\u2019\u2019 The board\u2019s decision thus depends upon its finding that the city\u2019s merit system absolutely required a written examination, and therefore proceeding without a written examination changed the relative weight to be attached to each method of examination. The CBA further provides for a process of challenging the test results, however it is clear that this challenge process is directed to case-by\u2013case challenges of individual candidates. Thus, if a particular candidate believes that there was a mistake in scoring, that candidate may challenge the particu- lar score(s) through the specified challenge process. Thus, this challenge process adds nothing to the analysis of the issues before us. The board factually found that the merit system had been amended by the city on a multitude of occasions over the years, but that the record does not reflect the details of all changes to the merit system by city ordinances. Thus, this 1977 ordinance refers to \u2018\u2018any written and oral examinations\u2019\u2019 \u2018\u2018specified in the requirement sections of all ordinances.\u2019\u2019 (Emphasis added.) Clearly this ordinance does not specify that a written examination is required. Instead, it indicates that, if a written examination is administered, it will be weighted equally with the oral examination. Given the multitude of changes to the merit system over the years made by city ordinances, the court finds that the meaning of this CBA provision is that the city is authorized and required to use the city\u2019s merit system as that system is defined and modified by city ordinance from time to time, with the potential exception for negotiation required by \u00a7 7-474 (g) if changes are made that fit within the statutory exceptions. However, since no change was made to the relative weighting of examinations, no negotiation was required here. The court notes that the CBA defers to the city ordinances to define the merit system and does not prohibit the city from changing the merit system. This also makes sense since the merit system is used citywide across many unions and collective bargaining agreements. Further the vari- ous union\u2019s interests here are to ensure that promotions are provided in an evenhanded, fair and rational way. This interpretation is also consistent with \u00a7 7-474 (g), which exempts the merit based promotional process from mandatory negotiation except for the specific topics specified in the statute. However, regardless of which interpretation of this CBA provision is applied, the provision does not require the use of written examinations, thus no change was made in that regard. General Statutes \u00a7 7-474 (g) provides, inter alia, that the merit based promotional process is exempt from mandatory negotiation with a union except that changing the relative weight to be attached to methods of examination shall be subject to negotiation. As noted [previously], regardless of the interpretation of this provision, the merit system as described by the ordinances did not require a written examination, whether we look to Ordinance 896, which was in effect when the CBA was signed, or the 2018 ordinance. Neither ordinance required a written examination. The CBA does not itself explicitly define or describe the city\u2019s merit system in any detail. The city defined its merit system through city ordi- nances. However, even if we look at waiver, the union signed the CBA referencing the city\u2019s merit system while knowing that Ordinance 896 had been enacted months before defining and explaining the city\u2019s merit system as a system that \u2018\u2018may\u2019\u2019 include, but does not require, a written examination, and authoriz- ing the administrative assistant to utilize any procedures deemed appropriate by the administrative assistant. This ordinance was adopted through the normal public legislative process, and the union either was aware of it or should have been. The union chose to adopt the CBA requiring the city to use its merit system without further definition or limit in the CBA. If the union was dissatisfied with Ordinance 896, it should have objected when the ordinance was enacted or dealt with the matter in the CBA. The city now is merely acting in accordance with its agreement. The board found that the CBA language did not reflect a mutual intent to authorize elimination of the written exam. However, the CBA is absolutely clear in requiring the city to use its merit system in evaluating promotions. The city\u2019s merit system, whether the system in place at the time that the last CBA was signed or the system as established from time to time by city ordinance, does not require a written examination. Thus, there was nothing to waive. Conduct in accordance with the CBA effective at the time does not require a waiver because the city had the right and the obligation to conduct itself in accordance with the CBA. Although the city did use a written examination for some time, the system that it was operating under allowed for but did not require the use of a written examination. Further the CBA signed in 2016, and applicable to all relevant periods here, specifies and confirms that the city is to use its merit system. This is exactly what the city did."], "id": "86bf9d36-2c57-4d4a-a8ce-543968fc6080", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The persons mentioned in paragraph 1 as residing in Soviet Russia when the will was executed have no rights under testator\u2019s will which they may enforce. The only aid they could have received was in the exercise of the of the fiduciaries and only until distribution. The account shows that the executors and trustees have not allocated nor intend to allocate any funds for their benefit. The special guardian who represents 'them reports that they have not been heard from since before the beginning of World War II and that the community in which they lived in Soviet Russia was invaded by the German army during said war and all Jews in their town were shipped to Germany to concentration camps and cremated."], "id": "de0fca4b-1494-43df-b91a-5ed0c2acaafc", "sub_label": "US_Terminology"} {"obj_label": "sole discretion", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The above case differs materially from the case in question. In the above case the executors had power to distribute and dispose of the property as they in their deemed best. No such power of disposal and no such discretion was given Mrs. Higgins. Also, in the present case, no such precatory language was used as in the above-mentioned case. For these reasons, I believe the above case is clearly distinguishable from the present one."], "id": "98e89c96-72a3-4ea1-991c-a20044c975d4", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In conclusion, our Supreme Court remanded this case to us \"with directions to conduct further proceedings to determine whether the Board acted properly in failing to issue a full and complete opinion.\" In re Equalization Appeal of Target Corp., 311 Kan. at 773. For all the reasons discussed in this opinion, we hold that BOTA abused its discretion and acted unreasonably because its failure to issue a full and complete opinion under the totality of circumstances was without regard to the harm incurred by the County and was so wide of the mark that its un is outside the realm of fair debate. See In re Tax Application of Emporia Motors, Inc., 30 Kan. App. 2d at 624."], "id": "e1803967-d7d8-4cf2-bbde-ca92d4e8f71d", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I have failed to find, from an exhaustive research made upon the question involved herein and upon the authorities cited by the defendant herein, any authority for the proposition that a carrier, who on *358documents which it has itself altered, wholly without authority from the true owner, when no relation of shipper and carrier exists, has taken possession of the goods and has carried them over the state line, may compel such owner to appeal to the interstate commerce commission for the return of the moneys paid by him in order to recover possession of his g\u2019oods. Congress never intended to provide, nor has it provided, that such a situation, involving no question of the of rates to be charged to a shipper by a carrier, is a transaction involving interstate commerce which should be cognizable only before the interstate commerce commission."], "id": "34ab5ae6-74f7-426e-b400-b8b9d359eca3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". In addition to his cause of action for conversion, plaintiff also asserts a claim of \u201ccommercially unreasonable sale.\u201d Plaintiff alleges, in short, that the defendants sold plaintiffs vehicle at the auction for an amount far less than the fair market value. Because material issues of fact clearly exist with respect to the commercial of the sale, that portion of plaintiffs motion seeking summary judgment on this particular cause of action is denied. Likewise, plaintiffs motion seeking summary judgment on his cause of action for punitive damages is denied."], "id": "deb3ea47-86b2-423b-9ec4-c9e35cb33563", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The United States Supreme Court has used the same balancing test of to review other infringements of Fourth Amendment privacy rights without determining whether the intrusion was \"closely tailored\" to its purpose. For example, by applying the balancing test, the court found to be reasonable, and thus constitutional, a state statute requiring officers to take a DNA swab from persons charged with committing crimes of violence even though the swab was taken without a warrant ( Maryland v. King (2013) 569 U.S. 435, 448, 133 S.Ct. 1958, [186 L.Ed.2d 1] ); a warrantless search of public employees' offices and desks ( O'Connor v. Ortega (1987) 480 U.S. 709, 725-726, 107 S.Ct. 1492, [94 L.Ed.2d 714] ; and warrantless searches of school students ( New Jersey v. T.L.O., supra , 469 U.S. at pp. 341-342, 105 S.Ct. 733 )."], "id": "9076d37f-a360-46b2-af52-7866024b24f7", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"[S]chool officials may conduct a search of the student's person and personal effects based on a reasonable suspicion that the search will disclose evidence that the student is violating or has violated the law or a school rule. 'Reasonable suspicion' is a lower standard than probable cause. Ultimately, the legality of the search 'depend[s], simply, on the , under all the circumstances, of the search.' \" (In re Cody S. (2004) 121 Cal.App.4th 86, 91, 16 Cal.Rptr.3d 653, fn. omitted (Cody S. ), quoting T.L.O., supra, 469 U.S. at p. 341, 105 S.Ct. 733.) In T.L.O.,\"the court held that teachers and school officials need not obtain a warrant or have probable cause to search a student. 'Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.' [Citation.] The court set forth a twofold inquiry for determining the reasonableness of a student search. The *1296action must be 'justified at its inception' and the search, as actually conducted, must be ' \"reasonably related in scope to the circumstances which justified the interference in the first place.\" ' [Citation.] 'Under ordinary circumstances, a search of a student by a teacher or other school official will be \"justified at its inception\" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.' [Citation.]\" (In re William V. (2003) 111 Cal.App.4th 1464, 1469, 4 Cal.Rptr.3d 695 (William V. ).)"], "id": "a1c44fdf-e162-4e2e-8794-aa9b93284267", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*861However, this court finds that the benefits of the proposed settlement to the class are illusory and not of substance. In deciding whether to approve or reject the settlement terms, this court must apply a \" under the totality of the circumstances\u201d standard. (Grunin v International House of Pancakes, 513d 114, 124.) \"In approving a class settlement, the district court must consider whether the settlement is 'fair, reasonable, and adequate.\u2019 \u201d (Van Horn v Trickey, 840d 604, 606; Fed Rules Civ Pro rule 23.) No sufficient evidence has been provided to this court to allow it to make a determination as to fairness, reasonableness and adequateness of the proposed settlement. All parties keep referring to an eight million dollar benefit to the class, but no amount of questioning has brought forth a satisfactory explanation as to such an alleged eight million dollar refund. Plaintiffs\u2019 counsel speak about a \"stream of payments\u201d into the future which will benefit the class. A review of the information provided to this court indicates that this \"stream of payments\u201d is an imaginary interest payment a borrower could receive if he or she actually invested any excess money that was being paid into his or her escrow account, into an interest-bearing account. The only money that will be exchanged if this proposed settlement is accepted is the sum of approximately $125,000 which is the interest that could have been earned on funds in the borrowers\u2019 escrow accounts, broken down to approximately $1 per eligible loan and an award of fees of $150,000 which would be paid by PHH. \"[W]hen the principal, if not the only, beneficiaries to a class action are to be the attorneys for the plaintiffs, and not the individual class members, a costly and time consuming class action is not the superior method for resolving the dispute\u201d. (82 NY Jur 2d, Parties, \u00a7 258, at 273.) \"For the sake of their own integrity, the integrity of the legal profession, and the integrity of Rule 23, it is important that the courts should avoid awarding 'windfall fees\u2019 and that they should likewise avoid every appearance of having done so\u201d. (City of Detroit v Grinnell Corp., 495d 448, 469.) In addition, what PHH is agreeing to do is exactly what it is mandated to do under the law. (See, 12 USC \u00a7 2609.)"], "id": "80bbbd49-b68a-425e-82fd-0ef930471841", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The no-fault act provides for attorney fees when an insurance carrier unreasonably withholds benefits. The trial court\u2019s decision about whether the insurer acted reasonably involves a mixed question of law and fact. What constitutes is a question of law, but whether the defendant\u2019s denial of benefits is reasonable under the particular facts of the case is a question of fact. [Citations omitted.]"], "id": "28517e7b-9401-4037-92b8-6886e7d8df7f", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["These holdings do not bar a defendant from claiming on appeal that a waiver of the right to appeal was not knowing or intelligent, and, if he or she prevails on this argument, from challenging the of the later-imposed probation *563conditions. But they do bar a defendant from making these arguments when challenging a matter within the scope of the plea agreement without first obtaining a certificate of probable cause."], "id": "4b15a92d-bdaf-4533-9a84-794e099f6eed", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cThe important factors in determining whether a retroactive tax transgresses the constitutional limitation are (1) \u2018the taxpayer\u2019s forewarning of a change in the legislation and the of . . . reliance on the old law,\u2019 (2) \u2018the length of the retroactive period,\u2019 and (3) \u2018the public purpose for retroactive application\u2019 \u201d (21 NY3d at 246, quoting Matter of Replan, 70 NY2d at 456). With respect to the first factor, which has been described as the \u201cpredominant\u201d factor (Replan, 70 NY2d at 456), plaintiffs here had no actual forewarning of the change made by the 2010 amendment. Indeed, the amendment was not even proposed to the legislature until after the Mintz decision was issued in June 2009, long after plaintiffs had entered into the February 2007 TMC transaction. Thus, plaintiffs had \u201cno warning and no opportunity [in 2007] to alter their behavior in anticipation of the impact of the [2010 amendment]\u201d (James Sq., 21 NY3d at 248)."], "id": "faecc9de-1aed-410a-b234-66c8a792d0bd", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Turner, 482 U.S. at 84 (quoting Procunier, 416 U.S. at 405). We \u201capply a deferential standard of review to challenges regarding prison regulations\u201d derived from Turner. Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc); see also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (\u201c[R]egulations affecting the sending of a \u2018publication\u2019 . . . to a prisoner must be analyzed under the Turner standard.\u201d). Under Turner, a \u201cregulation is valid if it is reasonably related to legitimate penological interests.\u201d 482 U.S. at 89."], "id": "8b08a405-baf9-4954-a05c-87097a8411eb", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By the express terms of sections 401 (subds 1, 2) and 1709 (subd 6) of the Education Law, the power to select school sites is vested in the board of education of the school district (Matter of Delfino v Nyquist, 19 AD2d 687) and no statute demands or requires that the power be shared with the respondent commissioner. The pertinent provision of the Environmental Conservation Law (ECL 3-0301, subd 1) says instead that \"[i]t shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law * * * to carry out the environmental policy of the state\u201d (emphasis added). The foregoing statutory pattern suggests that neither the commis*954sioner himself nor his hearing examiner could condition the grant of the permit upon their being satisfied that the board of education of the instant school district had selected the \"most appropriate\u201d site and the court does not construe the commissioner\u2019s aforesaid order as so directing. Instead, the court believes that the commissioner could quite properly, and did, demand only that the circumstances surrounding the selection of this site as opposed to any other site be revealed so that the of the permit application could be properly weighed. The school district did comply with the commissioner\u2019s order as so construed by introducing testimony before the hearing examiner which demonstrated that it had considered alternative sites and that, from its standpoint, the proposed site was the most appropriate."], "id": "6aa0118e-0894-44b8-a4c7-29822e5f4654", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On February 9, 1984, petitioner Byrnes submitted to this court a six-page affidavit describing the details of his representation, and also submitted a preprinted voucher, directed to the County of Monroe, for payment of fees in the sum of $873 and of disbursements in the sum of $120, or a total sum of $993. These documents were submitted to this court in accordance with County Law \u00a7 722-b, the penultimate paragraph of which provides that this procedure shall be followed in respect to compensation and reimbursement for representation by assigned counsel. This court reviewed these documents, and, being satisfied with their accuracy, their , and their necessity, *702awarded petitioner his full $993 request. Admittedly, this sum was $493 more than County Law, article 18-B, \u00a7 722-b allows for the defense of a misdemeanant, save but for \u201cextraordinary circumstances\u201d. (See, County Law \u00a7 722-b.) This court found that, in this case, the extraordinary circumstances conditions had been met."], "id": "b6bc0f4d-60fb-4ff3-8e48-a3dc2e14a89a", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Second, the Court sensibly focuses on the of the traffic stop rather than trying to decide what part of the road the \"fog line\" belongs to. As the Court notes, the term \"fog line\" does not appear in the Transportation Code. Chief Justice Quinn allowed that \"arguably, the 'fog line' may be the 'different ... marking' referred to in \u00a7 541.302 (15).\"5 But that's all it is, an argument."], "id": "dfd19c1b-34ab-4409-81f8-76e57b2c7010", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["With respect to the and safety of the proposed procedures for the taking blood and saliva samples, this court will take judicial notice of the manner in which such samples are taken and the fact that the procedures do not involve the risk of serious physical injury to defendant. \u201cIn general, the court will take judicial notice of all facts which are notorious; that is, of common knowledge, within the court\u2019s jurisdiction\u201d (Richardson, Evidence [10th ed], \u00a7 9). The methods used in obtaining these samples are commonplace and involve the taking of a small amount of blood from defendant\u2019s finger and his moistening a piece of paper with his saliva. Both are simple, routine and safe procedures involving a minimal degree of intrusion and little risk of harm to defen*612dont especially when it is noted that these samples will be taken by trained personnel from the Suffolk County Medical Examiner\u2019s Office. In addition, defendant has not raised the issue of the safety of the above procedures."], "id": "c4c0b790-5717-4960-b05f-dd031b3e7827", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Insofar as the statute is concerned, it grants to the officer the right to disregard various traffic regulations and maximum speed limits. (See Vehicle and Traffic Law, \u00a7 1104, subd [b].) These privileges, however, do not relieve him from the duty to \u201cdrive with due regard for the safety of all persons\u201d, nor do they protect him from \u201cthe consequences of his reckless disregard for the safety of others.\u201d (Vehicle and Traffic Law, \u00a7 1104, subd [e].) This has been interpreted to mean that the immunity accorded can only be denied where there is evidence of an exercise of these privileges in excess of under the circumstances. (Strobel v State of New York, 36 AD2d 485, affd 30 NY2d 629; Stanton v State of New York, 29 AD2d 612, affd 26 NY2d 990.) In determining whether the officer has exceeded reasonableness, his actions are to be considered as of the time and under the circumstances in which they occurred and not by subsequent facts or in retrospect. (Simmen v State of New York, supra; Selkowitz v County of Nassau, 58 AD2d 888, affd 45 NY2d 97; Stanton v State of New York, supra.)"], "id": "940ff4b4-272b-4806-b42d-e46fea24ab94", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Furthermore, Bear Stearns\u2019 reliance on Porzig v Dresdner, Kleinwort, Benson, N. Am. LLC (497d 133 [2d Cir 2007]) is misplaced. In Porzig, the Court of Appeals for the Second Circuit vacated a modified award issued after remand based on the panel\u2019s failure to award the claimant reasonable attorneys\u2019 fees in accordance with the Age Discrimination in Employment Act. In reaching this conclusion, the court wrote that the lack of \u201cany transparent fee calculation analysis by the Panel . . . handicaps our ability to review the of the Modified Award.\u201d (497d at 143.) However, the court specifically noted that in general \u201carbitration] panels are not required to explain their awards\u201d and limited its holding to the circumstances where, like the case before it, the panel\u2019s previous award had been vacated \u201cafter a federal court had taken the rare step of concluding, correctly, that the Panel had acted in manifest disregard of the law\u201d and, on remand, the panel issued a part of the award \u201cwithout any authority.\u201d (Id. at 143 n 7.) As the circumstances underlying the decision in Porzig are not present here, the arbitrators in this case were not required to explain the basis for awarding $250,000 in attorneys\u2019 fees to Fulco."], "id": "5195bcde-4cb1-4f02-a0f1-7727977ed097", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["For the purposes of this motion the averments complained of in the complaint are considered to be true although the legal conclusion that the delay on the part of the defendant was unreasonable is not binding upon the court. Neither of the parties to the action, however, raise any factual question with respect to the un of the delay in giving notice."], "id": "64b2c38b-9b7f-4522-a779-850f972ff84b", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of , or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case."], "id": "6cd27312-9d4a-49f8-9acc-eda7d636ec50", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Physicians have a duty to provide a reasonable explanation of the available alternatives and potential dangers of a medical procedure. When a plaintiff alleges that such an explanation was not reasonable, this question fs an issue of fact to be determined by a jury. (See, Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199 [2d Dept 1975]; Lipsius v White, 91 AD2d 271 [2d Dept 1983].) In assessing the of the explanation provided by a physician, the issue is whether, under the facts and circumstances of a given case, the physician\u2019s description of the risks and alternatives to the proposed procedure would enable a reasonably prudent patient to make a knowledgeable evaluation of whether to submit to that procedure (see, Fogal v Genesee Hosp., 41 AD2d 468 [4th Dept 1973]; Zeleznik v Jewish Chronic Disease Hosp., supra; Dries v Gregor, 72 AD2d 231 [4th Dept 1980])."], "id": "ef93f5c4-2183-402a-b266-26332c935125", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While there was extensive trial testimony offered by plaintiffs expert and defendant\u2019s expert, directed both to the question of whether the malfunction of the elevator, as described by plaintiff, would have occurred in the absence of negligence, as well as to the question of the of defendant\u2019s maintenance, inspection and repair of the elevator, there was no evidence of any specific defect which might have caused the malfunction. There was some evidence of prior malfunctioning of the elevator in question, but not in the same manner as alleged by plaintiff to have occurred on the date of the accident. Four months prior to the accident there was some flooding which may have caused corrosion in the electrical components which controlled the operation of the elevator. A report by defendant immediately after the flooding noted that there was potential for corrosion and advised to \u201cwatch for future equipment problems.\u201d Plaintiffs expert was of the opinion that corrosion was the probable cause of the malfunction, while defendant\u2019s expert disagreed."], "id": "afd8b231-62aa-4394-8cc4-1c2a90d23f1b", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*905First, although Regents declined to formulate the standard of care, the Court's analysis of the duty a university owes to its students is more consistent with the ordinary reasonable person standard than the narrowly-drawn standard defendants have proposed. The Court's opinion repeatedly states that the duty requires colleges and universities to use \"reasonable care\" to protect their students, emphasizing that \"[r]easonable care will vary under the circumstances of each case.\" ( Regents, supra, 4 Cal.5th at p. 632, 230 Cal.Rptr.3d 415, 413 P.3d 656 ; see also id . at p. 634, 230 Cal.Rptr.3d 415, 413 P.3d 656 [\"the of a school's actions in response to a potential threat is a question of breach\"].) Moreover, the opinion contains no language suggesting a university can be held liable only when the evidence shows the perpetrator previously made an actual threat of harm against an identifiable victim."], "id": "152f7a56-1875-4352-96e4-9a93e5bc62bd", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As to the issue of the written retainer agreement, it is clear that petitioner, rather than respondent, had the burden of proof at the hearing (see, 22 NYCRR 136.6 [b]). While this burden normally requires proof only of the of the fee, it also presumes that the fee, whatever the amount, could be charged and collected without a violation of the Code of Professional Responsibility. The Code effectively precludes an attorney from collecting any fee where there is no written retainer in any case where one is required under the matrimonial rules, and certainly, such a fee could not be reasonable if it were one expressly precluded by court rule."], "id": "af3be9a5-cf9f-4000-81c9-5dc763252fb6", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Ward v. Hudson Riv. Bldg. Co. (125 N. Y. 230, 235) allowed liquidated damages to a landowner for a contractor\u2019s delay in erecting certain houses. Curtis v. Van Bergh (161 N. Y. 47, 52-54) allowed liquidated damages to a tenant for the landlord\u2019s failure to deliver possession of factory premises on the stipulated date. Weinstein & Sons v. City of New York (264 App. Div. 398) denied liquidated damages to the Welfare Department for plaintiff\u2019s delay in delivering dress woolens to a W. P. A. sewing project for manufacture into shirts for distribution to welfare recipients. The court said (p. 400): \u201c All the facts and surrounding circumstances herein indicate that *643the so-called liquidated damages bore no reasonable relation to any probable or actual loss and that the clause in question provided for a penalty and not liquidated damages. The proof establishes that no claims were made against defendant and that defendant suffered no financial damage whatsoever. By its own action defendant impliedly admits the un and excessiveness of its formula since it did not take the full percentage it claims it was authorized to take, but an arbitrary figure fixed by someone in the department of welfare on the basis of a telephone communication from the department of purchase. \u2019 \u2019"], "id": "9cfe990c-e34c-4fdb-9771-5f97bde32fcc", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Considering the entire record, the evidence CCEMS presented on the of its attorney's fees, including the evidence relevant to the Arthur Andersen factors, the common knowledge of the participants as lawyers and judges, and the relative success of the parties on the Rule 91a motion, we cannot say that the trial court abused its discretion in awarding CCEMS $850 in attorney's fees. See Ragsdale , 801 S.W.2d at 881 ; Tex. City Patrol , 2016 WL 3748780, at *5."], "id": "8641cfe9-1872-4569-96a4-7c70b9a51243", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The key becomes whether the attorney-client relationship between Volpe and D\u2019Elia was in some fashion a filter for the *635work done by Hershman. Did it in some way influence the relationship between Volpe and Hershman? Volpe\u2019s claim is that the acts of Hershman and apparently his reliance on Hershman\u2019s advice for a lengthy period was to his detriment. Therefore, the advice Volpe received from other lawyers on that advice, and most specifically the advice he received from other lawyers on the agreement, would relate to the of Volpe\u2019s reliance on the acts of Hershman."], "id": "26f2c723-10d2-4f46-ac06-357374bf37bc", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Nor do we believe Shauna has stated a claim to relief based on ineffective assistance of counsel, the other accepted use of habeas corpus in a dependency proceeding. It is well settled that a litigant seeking habeas relief must \" 'state fully and with particularity the facts on which relief is sought.' \" ( In re Reno (2012) 55 Cal.4th 428, 482, 146 Cal.Rptr.3d 297, 283 P.3d 1181 ( Reno ), quoting People v. Duvall, supra , 9 Cal.4th at p. 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252.) The petitioner bears a heavy burden initially to plead sufficient grounds for relief. ( In re Martinez (2009) 46 Cal.4th 945, 955, 95 Cal.Rptr.3d 570, 209 P.3d 908.) \"[T]his pleading requirement logically applies to explaining why a specific claim is cognizable in the first place.\" ( Reno , at p. 482, 146 Cal.Rptr.3d 297, 283 P.3d 1181.) To assert a claim of ineffective assistance, a petitioner must allege that the performance of trial or appellate counsel fell below an objective standard of under prevailing professional norms and was therefore deficient. He or she must also claim there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. ( Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1407-1408, 174 Cal.Rptr.3d 547.)"], "id": "a049f98b-0598-4e2c-bb1c-35ae129b3467", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest un, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings."], "id": "55eb88a8-2f7d-44fd-88ae-a1089aa55e01", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*254\u201cIn Bruken, the Court of Appeals delineated the test to be used in determining the validity of a preemptive right under the common-law prohibiting unreasonable restraints on alienation. It is the of the restraint, judged by its duration, price and purpose, that is determinative. Significantly, the duration of the restraint is not measured by the life of the preemptive right, but rather by the period during which the right can be exercised once the owner decides to sell.\u201d (Anderson, 119 AD2d at 78-79 [citation omitted], citing Bruken, 67 NY2d at 167.) In applying this test to contingent interests in real property, the court must take into account that \u201c[t]he lease, like any other contract, should be construed in such a manner as to effectuate the intent of the parties and as to produce a reasonable result.\u201d (Omath Holding Co. v City of New York, 149 AD2d 179, 184-185 [1st Dept 1989]; see EPTL 9-1.3 [\u201c(a) Unless a contrary intention appears, the rules of construction provided in this section govern with respect to any matter affecting the rule against perpetuities, (b) It shall be presumed that the creator intended the estate to be valid\u201d].)"], "id": "177b92bb-4a64-4b7f-9939-a8d8b59781b1", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". In People v Hansen (38 NY2d 17, 23, supra), the Court of Appeals *138granted automatic standing to the defendant and suppressed contraband seized pursuant to an invalid search warrant, without having specifically addressed the defendant\u2019s reasonable expectation of privacy in the vehicle searched. (Cf. id., at p 27 [dissenting opinion, Gabrielli, J.].) In the present case, this court utilizes the latest Fourth Amendment analysis mandated by the Supreme Court and therefore examines the of the defendant\u2019s expectation of privacy, which is antecedent to determining \u201cwhether applicable cause and warrant requirements have been properly observed.\u201d (See Rawlings v Kentucky, 448 US 98, \u2014, 100 Ct 2556, 2565, supra [concurring opn, Blackmun, J.].)"], "id": "0a4de775-f780-49f4-9f90-e1cc78b1a74f", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["read to reach a contrary result. Determining the significance of Dean on this question, however, is complicated both by the unusual circumstances of that particular case and by the fact that the parties did not contest whether the right to confer applied pre-charge. In connection with the underlying criminal matter, shortly before the initiation of criminal proceedings against a corporate defendant, the government first filed an ex parte proceed- ing seeking (and obtaining) a court order restricting notice to victims under the CVRA until after charges (and a plea agreement) had been filed and unsealed, arguing that this met the \u201creasonableness\u201d requirements of 18 U.S.C. \u00a7 3771(a)(5) because of the practical difficulties any pre-charge notice would have entailed. See Dean, 527 F.3d at 395. In rejecting this argument, the Fifth Circuit ruled that such an ex parte proceeding was contrary to the provisions of the CVRA and unprecedented as a matter of law. Id. It is unclear whether the court\u2019s subsequent criticism of the government\u2019s failure to confer pre-charge was simply a response to the unusual ex parte filing in the case or reflected a broader view that the CVRA obligates the government to engage in such pre-charge referrals more generally. The court appeared to recognize the unique \u201cposture of this case,\u201d and was careful not to \u201cspeculate on the applicability to other situations.\u201d Id. at 394. In any event, the question of whether the right to confer under the CVRA applied at all pre-charge (as opposed to the question of the of the procedure used in that case) was not contested or briefed in the district court or on appeal. To the extent that the court of appeals in Dean held that the right to confer under the CVRA can be triggered during the initial investigative phase of the case, and that CVRA obligates the government as a general matter to confer with crime victims during pre-charge negotiations with criminal suspects regarding a potential plea agreement, we respectfully disagree. A number of subsequent decisions do not follow Dean on this point. See, e.g., United States. v. Merkosky, No. 1:02cr-0168-01, 2008 WL 1744762, at *2 (N.D. Ohio Apr. 11, 2008) (victim has rights under the CVRA only once prosecution has begun); Rubin, 558 F. Supp. 2d at 420 (victims\u2019 rights accrue upon filing of the indictment); see also In re Acker, 596 F.3d 370, 373 (6th Cir. 2010) (whether a victim has rights prior to formal charges being filed is \u201cuncertain\u201d)."], "id": "d03475eb-f507-4fbb-b9bd-5715ce67f7cc", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There can be no question that the present objectants are conclusively estopped from questioning now either the of the amount, or its being a proper charge against the assets of this decedent. It is urged that the Ohio administrator and claimant should look for his payment to those who retained him; and that he had no right to receive or apply the rentals as aforesaid; and that the New York real estate is not liable for the legal expenses of the Ohio joint deposit litigation."], "id": "dac7e445-5031-47b3-8cdc-779985a5e07f", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The open fields doctrine announced in Hester v United States (265 US 57), and recently followed in Oliver v United States (466 US_, 104 S Ct 1735), does not apply to this particular application for two reasons. First, the Department seeks to enjoin OLSI from interfering with inspections for an indefinite period of time in the future. Since an owner\u2019s subjective expectation of privacy at the time of the search is a critical part of the privacy test, the court cannot project now the precise nature of future expectations nor objectively measure the of the expectations.7 Second, the court cannot say that landfill operations are not entitled, as a matter of law, to some expectation of privacy recognizable as reasonable by society. A commercial facility may have constitutionally protected privacy interests, particularly concerning enclosed structures and perhaps open areas immediately adjacent. See, Dow Chem. Co. v United States (749d 307 [6th Cir 1984], revg 536 F Supp 1355), where the Court of Appeals concluded that the open areas of a chemical manufacturing plant did not enjoy an expectation of privacy from aerial observation but reached no conclusion as to the reasonableness *989of Dow Chemical\u2019s subjective expectation of privacy from ground level intrusions. Moreover, neither the statute nor regulation at issue limit the scope of inspection. The inspection conceivably could include books and records (see, 6 NYCRR 360.8 [a] [18]), water and toilet facilities (see, 6 NYCRR 360.8 [a] [12]), and shelters for mobile equipment (see, 6 NYCRR 360.8 [a] [14]). The Department\u2019s routine inspection report requires an examination of available equipment, and OLSI maintains a garage and storage facilities for its equipment. Clearly, the statute and rules authorize inspection of areas that are not \u201copen fields\u201d. Equally as clear, an owner would have a reasonable expectation 1 of privacy in these private areas."], "id": "4badd078-fc97-4084-87f7-ce59941d22cd", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As the court stated in its prior order, SCC chapter 8 and the challenged amendments are akin to zoning ordinances and amendments thereto. As such, they are to be measured, for due process purposes, by the police power test, as an exercise of the police power to regulate private property which is unreasonable constitutes a deprivation of private property (see Town of Orangetown v Magee, 88 NY2d 41 [1996]; Fred F. French Inv. Co. v City of New York, 39 NY2d 587 [1976]). In addition, a party alleging a deprivation of property must demonstrate the existence of a protectable property interest which has been held not to arise in benefits that are wholly discretionary (see Matter of Daxor Corp. v State of N.Y. Dept. of Health, 90 NY2d 89 [1997]; Huntington Yacht Club v Incorporated Vil. of Huntington Bay, 1 AD3d 480 [2d Dept 2003]). Here, the plaintiffs\u2019 submissions failed to address, let alone establish, that their PDR interests qualify as constitutionally protected property rights for purposes of substantive due process analysis and that the challenged amendments constitute an unreasonable exercise of the County\u2019s police power which deprived the plaintiffs of their PDR interests in violation of the Due Process Clauses. Accordingly, the defendants are awarded summary judgment dismissing the ninth and tenth causes of action advanced in the supplemental and amended complaint."], "id": "28d04d26-ba00-4dc8-8665-6455cb6f81ce", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is well settled that when considering an application for leave to file a late notice of claim, the court should consider a number of factors, including: (1) the of the excuse offered by the claimant for the delay in filing the notice of claim; (2) whether the municipality obtained actual knowledge of the essential facts constituting the claim within the 90-day as-of-right filing period or within a reasonable time thereafter; and (3) whether the municipality was prejudiced because the claimant did not file during the as-of-right period. (See, generally, General Municipal Law \u00a7 50-e [5].)"], "id": "2a6a5f2e-1377-4ab1-80b8-51512d42fe98", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Board counters by arguing make whole relief was proper because it appropriately concluded Grower, and not its employees, should bear the financial risk of its decision to litigate the application of settled NLRB precedent. The Board contends the or good faith of Grower's litigation position does not control the decision to award make whole relief. In Board's view, \"the employees' interest in collective bargaining after the [Union] requested negotiations was not outweighed by [Grower's] interest in litigating its claim.\""], "id": "b8c4681f-95e6-4481-9763-3800de508bd3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*953and he was not contesting the first or third elements of design immunity, namely the existence of a causal relationship and of the design. On that basis, he asserted only two issues remained: (1) whether there had been discretionary approval of a design plan within the meaning of the statute; and (2) whether the failure to install rumble strips was a dangerous condition."], "id": "88be3c32-8c04-4593-9477-2d8965a163ed", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The fairness or of the charge is not impeached, and I must presume the consignee acted in good faith for the best interest of the owner, and is entitled to recover the amounts paid for discharging the cargo. The same remarks, in some respects, are applicable to the amounts claimed for port charges and for adjusting, and commissions for collecting the general average. . These are proper charges against the ship and owner, and should be allowed."], "id": "0149ce9e-64c2-4db3-a7d0-2f89d408348a", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A party's unreasonable delay in invoking an appraisal clause is one aspect, or factor, of a waiver-by-conduct analysis. See id. at 408 (stating that \"unreasonable delay is a factor in finding waiver\"). Whether the party's delay in invoking an appraisal clause is reasonable or unreasonable depends on the time between the \"point of impasse\" in the parties' negotiations concerning the amount of loss and the time the appraisal clause is invoked. Id. (stating that \" must be measured from the point of impasse\"). \"Point of impasse\" is a mutual understanding that neither party will negotiate further on the amount of loss. See id. at 408-10. An impasse is reached when it becomes apparent to both sides that they disagree as to the damages and that further negotiations are futile. Id. at 409-10 ; see Jai Bhole, Inc. v. Emp'rs Fire Ins. , No. CIV.A. G-10-522, 2014 WL 50165, at *2 (S.D. Tex. Jan. 7, 2014) (holding point of impasse occurred when insurer chose to stand on its defenses)."], "id": "f6ad062f-ae7e-4708-b826-cd46a6f37cbc", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Miller-Leigh , the trial court sustained the defendants' demurrer premised on a forum selection clause, requiring reversal. ( Miller-Leigh , supra , 152 Cal.App.4th at p. 1150, 62 Cal.Rptr.3d 83.) As the reviewing court explained, \"The [trial] court did not mention either of the inconvenient forum statutes in making its ruling, *762nor did it consider any issues relating to the of enforcing the parties' choice of forum provisions .... Instead, the court sustained defendants' demurrer for lack of subject matter jurisdiction, explicitly citing section 430.10, subdivision (a), as authority for its decision. That ruling was erroneous.\" ( Miller-Leigh , at p. 1150, 62 Cal.Rptr.3d 83.) Instead, Miller-Leigh observed that \"a party seeking to enforce a forum selection clause cannot do so by means of a demurrer,\" but explained the trial court \"could have considered this matter on its own motion as authorized by section 410.30, subdivision (a).\" ( Miller-Leigh , at pp. 1149, 1150, 62 Cal.Rptr.3d 83.)"], "id": "27c4bc84-f708-4d39-a0c5-b026324029ff", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Is the legislation reasonable? In point of time the moratorium expires on July 1, 1934, less than a year after it went into effect. It only applies if the default is in the payment of principal. Interest, taxes and assessments must be paid so that the mortgagee\u2019s security shall not be impaired in this manner. It provides for application to the court for conserving the surplus, if any, over running expenses for the benefit of the mortgagee, to be used in reduction of the mortgage debt. It meets the test of ."], "id": "9776e38b-b6e5-4326-bf17-13c4915d7dc1", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When a search is challenged, the People have the burden of showing that it was \"conducted pursuant to standardized procedures\u201d (People v Lloyd, 167 AD2d 856, 857; accord, People v Ballard, supra, at 1026), a finding which is adequately supported in this record. The of a search is calculated by weighing the governmental and societal interests advanced by the search against the defendant\u2019s right to be free from arbitrary interference by the police (People v Galak, 80 NY2d 715, 718). The very circumstances that provided probable cause for the stop, the lack of a valid operator\u2019s license or vehicle registration, the arrest, and the necessary impoundment properly followed by an inventory search of every part of the vehicle and its contents were all fully justified (see, People v Burghart, 177 AD2d 866, 868, Iv denied 79 NY2d 998). Accordingly there was no basis to suppress the evidence found by the impound search and County Court properly denied the motion."], "id": "822992eb-f86e-4e07-8eaa-9117a08b800d", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the record before this court, there has been no showing of bad faith or flagrant or egregious conduct on the part of the respondents. However, the record is incomplete on the issue of the of the position adopted by the respondents which has been successfully challenged in this litigation. Accordingly, the issues relating (1) to whether the respondents had adopted a reasonable view in their position that the college senate and its executive committee were not \"public bodies\u201d within the context of the Open Meetings Law, and (2) to the amount of reasonable attorneys\u2019 fees and costs, if any, to be awarded to the petitioners are referred to Special Referee John Buckley, to hear and report, with recommendations."], "id": "a29bf4eb-cf17-4a8f-a8f6-05dfade358f2", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court has not been cited, nor has its own research disclosed, a case in New York whose factual pattern closely parallels that of the present proceeding. However, the court has found that a similar situation was presented to the Supreme Court of New Jersey in Phillips v. Township Council of Teaneck (125 N. J. L. 77 [1940]). In that case property owners attacked an ordinance of the defendant township claiming that insofar as it affected their property it was unreasonable, capricious and arbitrary. A previous ordinance of like import had been set aside by the Supreme Court of New Jersey and its determination affirmed by the Court of Errors and Appeals. Both ordinances were amendments to the zoning ordinance, the earlier one having dealt only with a district in which, these property owners had property, while the subsequent amendment not only made the same change in that locality but made other changes *142in other parts of the township. The changes which affected the complaining property owners was an attempt to place their property in a Class C Residence Zone, whereas it had been in a business zone. It was admitted that there had been no changes in the physical situation of the complaining property owners since the determination of the earlier case. The court held that the earlier judgment which determined that the zoning amendment placing the property in a Class C Residence Zone was unreasonable, was res judicata on the question of the of the subsequently enacted amendment. The court stated (p. 78): \u201cIn this situation, we are of the opinion that the prior determination is controlling here. That litigation is res adjudicata on the question of the reasonableness of zoning prosecutors\u2019 property for residence purposes in the factual situation presented. Admittedly there has been no chang\u2019e. The questions here presented have, therefore, been determined adversely to the defendants, and the ordinance must be set aside in so far as it affects the property of the prosecutors, with costs.\u201d The application of the principle of res judicata in the foregoing case is in harmony with the rule in New York that \u2018 \u2018 Generally speaking, a declaratory judgment is res judicata in the same manner and extent as any other judgment\u201d (7 Carmody-Wait, New York Practice, p. 490 and cases cited under \u00a7 217; see, also, Restatement, judgments, \u00a7 77; annotation: \u2018 \u2018 Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief \u201d, 10 A. L. R. 2d 782)."], "id": "c29e0da9-e272-48b5-b3f6-22ebcdfdc06e", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Section 125.25 (subd 1, par [a]) of the Penal law provides for an affirmative defense where: \u201cThe defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the of which is to be determined from the viewpoint of a person in the defendant\u2019s situation under the circumstances as the defendant believed them to be.\u201d"], "id": "dd2fda75-876b-48a8-adec-37b685608bdf", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["wrote that \u201c[i]t is not clear whether a party may bring an ac- tion under Chapter 1 to vacate an award issued by an arbitra- tor in a U.S. jurisdiction, but governed by the Convention.\u201d 712 F.3d 1021, 1025 (7th Cir. 2013). We recognized that \u201c[t]his could be important in some cases, because the Convention grounds for vacatur are slightly di\ufb00erent from those in Chap- ter 1 of the FAA.\u201d Id. Because \u201cwe d[id] not regard [Johnson Controls] as a close case,\u201d however, we saw no reason to an- swer the question. Id. For the same reason, we decline to do so now. As we now explain, Okada cannot prevail under either provision. B Okada insists that when fundamental fairness is at issue, rather than the merits of an award, it is not enough simply to \ufb01nd that there is a minimally reasonable basis for the arbitral panel\u2019s actions. Instead, he argues, a court must ask whether the panel\u2019s decision was reasonable and fair. Looking only at , he concludes, leads to an overly deferential standard of review. This is a strained argument to begin with, but worse, it mischaracterizes the district court\u2019s decision. The district court did not overlook fairness. It concluded that the Panel\u2019s decision to proceed without Okada was fair because it was rea- sonable. Every circuit to conduct a fairness inquiry under sim- ilar circumstances has adopted this approach. See, e.g., Laws, 452 F.3d at 400 (\u201cLaws was not denied a fair hearing because the record supports several bases on which the panel reason- ably could have denied him a continuance.\u201d); id. at 401 (\u201cIn light of these reasonable bases for denying Laws\u2019s continu- ance, the panel did not deny him a fair hearing.\u201d); El Dorado, 8 No. 21-1633"], "id": "300c0620-d7a4-4bac-96e7-728998508a88", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Court of Appeals disagreed. Although conceding that courts possess the power to modify excessive fee arrangements and concern themselves with what a plaintiff has bound himself to pay his attorney, it held this does not preclude the court from awarding the reasonable fees provided for by law in addition to the contingent fee privately contracted for between client and counsel so long as the court is satisfied that counsel would not thereby obtain an excessive fee. The court pointed out that there are some important differences between a determination of according to canon 12 standards and the reasonable fee provided for by statute, which \"contemplates an estimate of reasonableness from the perspective of one looking back over the litigation\u201d (421d 61, 89, supra)."], "id": "d5009ae7-7052-4e51-b7aa-8f71f3627a93", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"No case in this state has passed upon the specific question of the of an amendment, made before an employee is eligible to retire, which provides for termination of pension rights if he is convicted of a felony after retirement. In order to determine this question we must look to the general principles set forth in the Kern [v. City of Long Beach (1947) 29 Cal.2d 848, 179 P.2d 799 ] and Packer [v. Board of Retirement (1950) 35 Cal.2d 212, 217 P.2d 660 ] cases where it was pointed out that a city may make reasonable modifications of pensions, prior to retirement, for the purpose of keeping the pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system and carry out its beneficent policy. [Citations.] We must also keep in mind the facts that pension payments are deferred compensation to which a pensioner becomes entitled upon performing all services required under the contract and that his retirement because of age ordinarily shows that he has done everything necessary to entitle him to payment of the pension. [Citations.]"], "id": "b07366a0-f91c-4472-ba29-2c1904a39e98", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff opposes much of the requested relief on several grounds. First, it opposes reimbursement of monies expended by former defendants Lorraine M. Vorbeck and Joseph J. Vorbeck, parents of the deceased. Second, it opposes relief of monies expended by Marelli prior to her appointment as administratrix of the estate. Lastly, plaintiff opposes the propriety of certain expenses listed by Marelli as administration expenses (and of a future \u201creserve\u201d fund) and the of the professional fees requested. It appears from a review of the documents submitted by Marelli that much of the nonfees debts or expenses incurred were expended on behalf of Robert Vorbeck after his arrest or on behalf of his estate prior to appointment of Marelli. Additional funds were or will be expended for maintenance, operation or preservation of property which is the subject of the order of attachment."], "id": "69ff0136-0e4a-4102-b48c-8af43b6d9ec1", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The ALJ filed his opinion on June 7, 2016, in which he found that the fact that appellee sustained an accidental fall on August 26, 2013; the extent of appellee's injuries; and the and necessity of the medical treatment received by appellee were not in dispute. In part pertinent to this appeal, he further found (1) that the employee-employer carrier relationship existed between appellee and Graves at the time of appellee's injury; (2) that appellee was temporarily totally disabled from August 25, 2013, until a date yet to be determined;9 and (3) that Graves had notice of appellee's August 26, 2013 injury and failed to post notice of compliance pursuant to Arkansas Code Annotated section 11-9-407, and so was estopped from asserting a statute-of-limitations defense to appellee's claim. Regarding his finding that Graves was estopped from asserting a statute-of-limitations defense, the ALJ specifically found that appellee \"relied on the conduct of [Graves], and indeed filed his initial workers' compensation claim against [Dixie] because he had been informed by [Graves] that [appellee] worked for [Dixie].\" Dixie was found to have no liability on appellee's claim and was dismissed from the matter."], "id": "9fac06a8-48c5-4ea3-b1a1-82dbc396d4e5", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At bar, no claim is made by the county of any misfeasance or nonfeasance by any of the affected employees. The sole basis for the county\u2019s action was fiscal restraint as has heretofore been stated. It, therefore, becomes material and necessary to examine the and the legality of the county\u2019s action in the light of the circumstances and of the classification made."], "id": "aab6b1c7-4273-4cfb-8f9d-443cde0e2988", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It wrote (p 504): \u201cIn each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of . The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is \u2018unreasonable\u2019 in the light of the values of freedom of expression.\u201d"], "id": "417650e5-70d5-4064-b68d-d54af4375b88", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*456Finally, plaintiffs argue that the Port Authority could not possibly argue that the bombing was unforeseeable as a matter of law, because, in fact, not only was it foreseeable, but it was actually foreseen. They urge that the undisputed facts show that domestic terrorism was on the rise, car bombs were the preferred method, the WTC was a prime target for a terrorist attack, and the parking garage was highly vulnerable. They contend that the record establishes that the Port Authority knew, or at the least, should have known, that there was a likelihood that third parties would engage in conduct that would endanger the safety of those using the premises, and that it was obligated to take measures to safeguard against that risk. Plaintiffs contend that, contrary to what the Port Authority is arguing, a landlord does not have to have past experience with the precise sort of criminal activity in the same place before a landlord could be found negligent in failing to take precautions that would have prevented the crime. Plaintiffs point to the evidence in the record that prior to the WTC bombing there had been successful terrorist bombings of buildings in the immediate neighborhood, and that the FBI had warned, just a month before, that Middle Eastern terrorists had threatened to blow up a major office building in New York, to show that the bombing was foreseeable. They aptly assert that the law does not permit, as the Port Authority appears to claim, a landlord one free catastrophic event, particularly where, as in this case, the Port Authority was aware of the threat of terrorism, was aware that the WTC was a potential target, and was specifically warned by its own experts, as well as by other terrorist experts, of exactly the type of attack that occurred in 1993. Plaintiffs further contend that, at the least, the issue of foreseeability is a question for the jury. Plaintiffs urge that the Port Authority failed to implement reasonable safety precautions in the underground parking garage, leaving it completely open and accessible, and that the issue of the of safety precautions is almost always a factual issue for the jury."], "id": "87feb195-f835-44d7-9a95-cfdd6ee9aea9", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"The question whether there has been a breach of duty is usually a fact issue for the jury and may be resolved only as a matter of law if the circumstances do not permit a reasonable doubt as to whether the defendant's conduct violates the degree of care exacted of [it]. [Citations.] If there is room for honest difference of opinion ... as to whether there has been a breach of duty, the question becomes one of fact for the jury.\" ( Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1077, 91 Cal.Rptr. 319 ; Carlin, supra , 13 Cal.4th at p. 1116, 56 Cal.Rptr.2d 162, 920 P.2d 1347 ; Finn v. G.D. Searle & Co., supra , 35 Cal.3d at p. 700, 200 Cal.Rptr. 870, 677 P.2d 1147 [jury determines the of the manufacturer's conduct in negligent failure to warn cases]; see also Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1239, 115 Cal.Rptr.3d 151.) There was substantial evidence to support the jury's finding that a reasonably prudent manufacturer would have known about the risk of ovarian cancer from genital talc use, and would have warned about that risk. ( Carlin , at p. 1115, 56 Cal.Rptr.2d 162, 920 P.2d 1347 ; Anderson v. Owens-Corning Fiberglas Corp., supra , 53 Cal.3d at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549.)"], "id": "d4b5e002-f485-409e-8183-ad57b9d8fd86", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is true that \u201cthe of a plaintiff\u2019s reliance on an alleged misrepresentation . . . is generally a question of fact inappropriate for summary judgment.\u201d Annaco, Inc. v. Corbin, No. 02A01-9804-CH-00111, 1998 WL 929637, at *4 (Tenn. Ct. App. Dec. 31, 1998) (citing City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 737 (Tenn. Ct. App. 1996)). However, in cases involving policies of insurance, Tennessee Code Annotated \u00a7 56-7-135 provides, in relevant part:"], "id": "e4f0fcf4-a75f-4c2d-99a0-31658ffaa8fd", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court reviews challenges to the length of a sentence within the appropriate sentence range \u201cunder an abuse of discretion standard with a \u2018presumption of .\u2019\u201d State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must consider any evidence received at the trial and sentencing hearing, the presentence report, the principles of sentencing, counsel\u2019s arguments as to sentencing alternatives, the nature and characteristics of the criminal conduct, any mitigating or statutory enhancement factors, statistical information provided by the Administrative Office of the Courts as to sentencing practices for similar offenses in Tennessee, any statement that the defendant made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. \u00a7\u00a7 40-35-103, -210; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see T.C.A. \u00a7\u00a7 40-35-102 (2018), 41-1-126 (2018) (validated risk and needs assessments)."], "id": "821458d9-2a8e-4d20-b234-63d50b355db3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Warrantless searches are presumptively unreasonable under the Fourth Amendment, and \"'the ultimate touchstone of the Fourth Amendment is \".\"'\" State v. Torres, 308 Kan. 476, 481, 421 P.3d 733 (2018) (quoting Riley v California, 573 U.S. 373, 381-82, 134 S. Ct. 2473, 189 L. Ed. 2d 430 [2014]). Generally, such reasonableness requires officers to obtain a warrant before performing a search. A warrantless search is reasonable only if it falls into one of the exceptions to the warrant requirement\u2014and the State carries the burden to justify a warrantless search. 308 Kan. at 481."], "id": "70b847eb-8bd2-4fda-b459-946f0d9f8490", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It seems to the court that these objections relate to the of the plan of operation under the statute, rather than to its legality. Under the powers granted by the statute to the banking board to regulate the conduct of common trust funds created thereunder it cannot be said that such board lacked authority to permit the petitioner to establish the present fund with provisions for its operation as stated in the filed plan of operation, except with respect to the last paragraph of article X of the plan, to which objection 13 relates. The provision is: \u201c The compensation and expenses of the auditors, other than auditors who are regular employees of the Trust Company, for the audit of the Common Fund and any liquidating account, and the cost of printing and other proper charges in relation to such audit, shall be chargeable against and payable out of the principal of the Comm on Fund when incurred.\u201d"], "id": "763a79fe-e1e8-4221-bbba-3bdd4d2741d9", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The respondent claims the notice of nonrenewal fails to set forth facts necessary to establish the existence of a ground for nonrenewal regarding the tenant\u2019s alleged failure to use the subject apartment as her primary residence. When the sufficiency of a predicate notice is being assessed, the appropriate test is one of in view of the circumstances. (Hughes v Lenox Hill Hosp., 226 AD2d 4 [1st Dept 1996]; Miller v Vosooghi, NYLJ, Apr. 18, 2001, at 18, col 1 [App Term, 1st Dept].) In the case at bar, the nonrenewal notice provides the fact specific allegations necessary to maintain this proceeding. The notice clearly sets forth the grounds of the underlying non-primary residence case as per Rent Stabilization Code (9 NYCRR) \u00a7 2520.6 (u) which states: \u201c[although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this code is occupied as a primary residence shall include, without limitation, such factors as listed below: * * * [alternative] address, * * * tax return, [DMV] registration, driver\u2019s license * * * , voting address [and] occupancy * * * for an aggregate of less than 183 days * * * [a] year.\u201d Respondent\u2019s occupancy is at issue: She admitted at trial that she only came back to New York for this proceeding. Further, respondent stated no basis why the notice served by petitioner should be regarded as unreasonable or, alternatively, should be subject to strict construction as a matter of equity. (See e.g., MSG *147Pomp Corp. v Doe, 185 AD2d 798 [1992] [landlord misrepresentation of ownership and rent regulated status of apartment].) Petitioner\u2019s nonrenewal notice reasonably sets forth the reasons petitioner claims the subject premises are not being used as her primary residence. The court finds the notice of nonrenewal is sufficient to serve as a predicate notice for this holdover proceeding. (London Terrace Gardens v Sacks, 149 Misc 2d 292, 294 [1990].)"], "id": "229d5435-9205-49f0-8d4a-10aed98efe9a", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The People\u2019s burden of proof as to the programmatic purpose is derived from the constitutional principle underlying \u201cthe *723 of a suspicionless roadblock stop, i.e., \u2018a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty\u2019 \u201d (Trotter, 28 AD3d at 168, quoting Brown v Texas, 443 US 47, 50-51 [1979]). Absent such proof, a court is left \u201cwithout any basis to assess \u2018the gravity of the public concerns served by the seizure\u2019 or \u2018the degree to which the seizure advance[d] the public interest\u2019 \u201d (Cabrera, 13 Misc 3d 1205[A], 2006 NY Slip Op 51689[U], *3)."], "id": "117e64a0-761f-4895-93f4-3ad3db8337c1", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Because the word \"calculated\" may be reasonably interpreted in either of two ways, our precedents indicate that it is ambiguous, permitting us to consult extra-textual interpretive sources to best discern its meaning.27 And, for the following reasons, we conclude that, in Penal Code Section 42.01(a)(8), \"calculated\" is best understood to mean \"likely,\" according to an objective standard of and from the perspective of an ordinary, reasonable observer."], "id": "07ba8d4d-1e11-4cf3-a77f-967009e00990", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cguarantor is a \u2018debtor\u2019 within the definition set forth in Uniform Commercial Code \u00a7 9-105 (1) (d) [now \u00a7 9-102 (a) (28) (debtor); \u00a7 9-102 (a) (71) (secondary obligor)], and, therefore, a guarantor may not waive the defense of commercial reasonable*262ness, pursuant to Uniform Commercial Code \u00a7 9-501 (3) [now \u00a7\u00a7 9-601, 9-610].\u201d (Marine Midland Bank, N.A. v Kristin Intl., 141 AD2d 259, 261 [4th Dept 1988].) In so holding, the court relied on Ford Motor Credit Co. v Lototsky (549 F Supp 996 [ED Pa 1982]), in which it was stated that it was not \u201canomalous that a surety under section [3-606] of the Code can consent to impairment of collateral while upon default a surety is precluded from waiving the defense of commercial in the disposition of collateral\u201d because section 3-606 \u201cis applicable only to the pre-default stage, while \u00a7 9-504 [now \u00a7\u00a7 9-601, 9-602, 9-610] specifically governs the disposition of any collateral remaining to secure the debt.\u201d (Id. at 1005 n 34; see also, Weinstein v Fleet Factors Corp., 210 AD2d 74 [1st Dept 1994]; Marine Midland Bank v CMR Indus., 159 AD2d 94, 104-107 [2d Dept 1990]; Bank of China v Chan, 937d 780, 785-786 [2d Cir 1991] [canvassing the New York authorities on the subject].) Accordingly, the nonwaiver rule of UCC 9-602 (g) (disposition of collateral) applies to this post-default-repossession context. (See UCC 9-602, Comment 2 [\u201cin the context of rights and duties after default, our legal system traditionally has looked with suspicion on agreements that limit the debtor\u2019s rights and free the secured party of his duties . . . The context of default offers great opportunity for overreaching\u201d]; AAR Aircraft & Engine Group, Inc. v Edwards, 272d 468, 472-473 [7th Cir 2001] [nonwaiver rule \u201cprevents economic waste and unjust enrichment because creditors who believe that they have obtained a waiver have no incentive to behave in a commercially reasonable manner\u201d].)3"], "id": "4f6228a2-d496-4b20-9fa7-85c0549304cd", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Moreover, even accepting plaintiff\u2019s argument that the covenant at issue should be viewed in the context of the sale of the Canton office and, hence, judged solely by the standard of (see, Mohawk Maintenance Co. v Kessler, supra, at 283-284), we are of the view that plaintiff has failed to satisfy the remaining two prongs of the preliminary injunction test. First, as to whether plaintiff has suffered irreparable harm, we note that although plaintiff has alleged both a loss of business and customer goodwill, he has also set forth a claim for money damages. In this regard, we note that one of the requirements for a preliminary injunction is that the movant has no adequate remedy at law (see generally, Perez v Computer Directions Group, 177 AD2d 359; Malik v Higgins, *21173 AD2d 791). Additionally, we are not convinced that a balancing of the equities weighs in favor of plaintiff, particularly in view of his conduct immediately following the termination of his business relationship with defendant. For all these reasons, we are of the view that plaintifFs application for injunctive relief should have been denied. The parties\u2019 remaining arguments have been examined and found to be lacking in merit."], "id": "534e63bb-fa59-42e4-9b0c-c62028247dc3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*466Mr. Reape\u2019s affidavit also claims that it is expensive for the petitioner to do business because of \u201cthe size and timing of payments, internal cost of funds, servicing expenses, the cost of locating potential clients, and the expenses associated with obtaining court orders.\u201d Moreover, it is difficult for his company to sell assets on the secondary market, in order to free up capital for future transactions, because only \u201ca handful of companies [are] currently purchasing these rights.\u201d But the of the proposed sale cannot be established by proof that the petitioner is undercapitalized and incapable of sustaining its operations without selling its receivables to a third party. And if the cost of doing business is so high that a secured investment must be treated as an unsecured one \u2014 so that Mr. DeMallie would be better advised to make minimum payments on a 12.99% credit card until he can pay off the entire balance in three years\u2019 time \u2014 the court must conclude that this business is one in which the terms simply cannot be \u201cfair and reasonable.\u201d Surely the Legislature did not mean to equate fairness with \u201cwhatever the market will bear.\u201d"], "id": "195c2d1f-919e-4de4-a10c-f49631cdb89d", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The petitioner seeks to bolster his position by contending that the subject premises \u201c is located in an area and on a business street, that would not lend itself to large units containing families with children.\u201d Thus he argues, he answered such need for smaller housing units which entitles him to a waiver of the mandated requirements. With this premise the court cannot agree. Occupants of housing accommodations, in the court\u2019s view, contemplate a family life which hopefully includes the presence of children. Thus to purposely create smaller units to ensure the absence of children, as petitioner claims he has done, would be contrary to the rent regulations and therefore gives and justification to the City Administrator\u2019s determination."], "id": "18a57a19-6ef6-4f4c-9712-8b34387a955e", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court recognizes that the resale of this automobile for only 57% of the original purchase price only seven months after the original purchase does not by itself create triable issues of fact. (Bankers Trust Co. v Dowler & Co., 47 NY2d 128; Marine Midland Bank v St. Louis, 75 AD2d 972.) The court also recognizes that naked assertions of impropriety in the sale cannot overcome the presumption of commercial . (First Nat. City Bank v Cooper, 50 AD2d 518.) But where, as here, the defendants show that a great discrepancy between the purchase price and the resale price exists, that they did not receive notice of the public sale within the requisite time period, and that a private sale was later conducted without notice to them, the burden then falls- upon the plaintiff to show at trial that notice was adequate and that the sale was commer*455cially reasonable, without any self-dealing. (Security Trust Co. of Rochester v Thomas, 59 AD2d 242.)"], "id": "91e5b40d-e92d-45c4-971d-7b8d6478a471", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The purpose of the stipulation at issue is clear to the extent that it sets forth a process whereby the parties have decided to avoid the expense of continued litigation and at the same time permit plaintiffs\u2019 counsel to place before the court a request for attorneys\u2019 fees. There is no question the defendants have reserved their right to challenge the of the request and, in that context, whether or not plaintiffs\u2019 counsel have achieved any benefit, substantial or otherwise, in being a causative factor in the Medical Action filing of the subject Form 8-K with the SEC. However, there exists no purpose whatsoever in allowing for the application if it is, as argued by defendants, illegal on its face. The entire purpose of the stipulation is to avoid expense of litigation and allow the application for counsel fees; to permit an application which is illegal on its face would render the agreement, in the view of the court, completely illusory."], "id": "4753b60e-7379-4619-8dd8-fcc7c6751226", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges with great restraint. (People v. Thomas (2011) 51 Cal.4th 449, 474, 121 Cal.Rptr.3d 521, 247 P.3d 886.) The trial court's determination is a factual one, and as long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications *10offered, its conclusions are entitled to deference on appeal when they are supported by substantial evidence. (Hamilton, supra, 45 Cal.4th at pp. 900-901, 89 Cal.Rptr.3d 286, 200 P.3d 898 ; Thomas, at p. 474, 121 Cal.Rptr.3d 521, 247 P.3d 886.) In essence, the issue is whether the trial court finds the prosecutor's explanation to be credible, based on factors such as the of the explanation, the prosecutor's demeanor, and the trial court's own observations of the voir dire. (Lenix, supra, 44 Cal.4th at p. 613, 80 Cal.Rptr.3d 98, 187 P.3d 946.) With these principles in mind, we turn to the specific peremptory challenges under review."], "id": "e77758f4-fcc2-4892-b47b-f962b87e41ed", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is conceded that this court has authority to direct payments out of these funds for the current maintenance and support of the infants and no one questions the of the expenses incurred by the department of welfare but the Veterans \u2019 Administration requests the court to limit the current payments to $68.55 per month for each infant, the amount paid into the funds by them."], "id": "53d5fbec-1e70-4622-9c69-f906c8ea6d68", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In People v. Schmitz (2012) 55 Cal.4th 909, 149 Cal.Rptr.3d 640, 288 P.3d 1259, the California Supreme Court applied the balancing test to hold a warrantless search of a known parolee who was a passenger in a vehicle did not violate the driver's Fourth Amendment rights. ( Id. at pp. 921-922, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) The court described the test as follows: \"Whether a search is reasonable within the meaning of the Fourth Amendment depends on the ' \"totality of the circumstances.\" ' [Citations.] This test includes an assessment of the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy. [Citations.] Both we and the United States Supreme Court have employed traditional standards of to evaluate the constitutionality of warrantless vehicle searches and parole searches. Accordingly, we consider whether the officer's search here was reasonable, with a 'salient circumstance' being the presence of a parolee subject to a search condition. [Citations.]\" ( Id. at pp. 921-922, 149 Cal.Rptr.3d 640, 288 P.3d 1259.)"], "id": "bca09618-3285-4a62-8fe9-9fc2509900c3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["8. counsel \u2026 would have requested mental health diversion under section 1001.36.\u201d The People respond Banner \u201ccannot establish \u2026 ineffective assistance of counsel\u201d \u201c[b]ecause the record does not establish [he] was eligible for pretrial mental health diversion \u2026.\u201d We agree with the People. A. Additional Background At a pretrial hearing approximately seven months after the crime occurred, Banner\u2019s counsel declared a doubt regarding Banner\u2019s mental competency to stand trial. (\u00a7 1368.) Just before trial, counsel indicated the possibility of calling an expert witness to describe Banner\u2019s mental state during the incident. 17 During sentencing, counsel sought local mental health court as an alternative to imprisonment. Counsel also argued Banner\u2019s testimony, i.e., disclaiming responsibility, was a \u201csymptom of his mental illness.\u201d As noted above, the court recognized Banner suffered from \u201cmental health issues\u201d but believed it \u201cwas somewhat in abeyance at the time of the situation for whatever purpose or whatever reason.\u201d B. Analysis The Sixth Amendment guarantees the \u201c \u2018right to the effective assistance of counsel.\u2019 \u201d (Strickland v. Washington (1984) 466 U.S. 668, 685\u2014686.) \u201c \u2018[T]o establish a claim of ineffective assistance of counsel, [Banner] bears the burden of demonstrating, first, that counsel\u2019s performance was deficient because it \u201cfell below an objective standard of [\u00b6] ... under prevailing professional norms.\u201d [Citations.] Unless [he] establishes the contrary, we shall presume that \u201ccounsel\u2019s performance fell within the wide range of professional competence and that counsel\u2019s actions and inactions can be explained as a matter of sound trial strategy.\u201d [Citation.] If the record \u201csheds no light on why counsel acted or failed to act in the manner challenged,\u201d an appellate claim of ineffective assistance of counsel must be rejected \u201cunless counsel was"], "id": "8682d0f2-0514-476d-b6f6-15bd0ff2f612", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Nor could it be effectively contended that the conversation can predicate an estoppel on the defendants. The plaintiff was, or should have been, aware of the provision in his contract under which the securities might be sold without notice the moment their value fell below the 110 per cent. In the panicky condition of the market at the time, that might have been reached any moment. He, in , could not rely on the stability of any given factor for any space of time; nor could he reasonably expect the defendants in a toppling market to hold off selling, for their protection and possibly for his own. In fact, he himself would possibly have allowed the securities to go, with the hope of repurchasing at a lower figure, and thus recouping his loss. That is conjectural, of course, and, in retrospect, he has suffered damage. But I cannot see the breach of any legal duty by the defendants. Damages without such breach cannot be compensated at law. I will, therefore, give judgment for the defendants."], "id": "1ca5cd50-2741-4ad6-91bb-c82d33b8baac", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In construing the amendment we must consider its design and practical tendency, its and necessity. A law is not to be pronounced unwise nor condemned as unreasonable because it may occasion some evil. All general laws are liable to this objection, yet without general laws society could not be governed. Whenever a law is found to be a dead letter, or productive of little or no good, or to- cause much evil, it well deserves the attention of its makers. Until it is repealed it is binding upon its subjects."], "id": "6b23aee0-b614-45b7-ae02-f590e167819c", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["to consent to an unreasonable search. Notwithstanding that the terms of both the model log-on banner and the model computer-user agreement would permit monitoring of an employee\u2019s computer use for purposes other than network defense, we believe that the specific EINSTEIN 2.0 operations to which Executive Branch employees would be asked to consent would be reasonable. 8 Where, as here, an Executive Branch employee is being asked to consent only to a reasonable search, there is no invalid conditioning of public employment on the employee\u2019s relin- quishment of his Fourth Amendment rights against unreasonable searches and no coercion that renders a search involuntary. See, e.g., United States v. Sihler, 562 F.2d 349 (5th Cir. 1977) (prison employee\u2019s consent to routine search of his lunch bag valid); cf. Drug Testing at 7 (\u201c[C]onsent to an unreasonable search is invalid.\u201d) (emphasis added); Anobile, 303 F.3d at 124 (similar); McDonnell, 807 F.2d at 1310 (similar). Thus, the inquiry regarding the voluntariness of an Executive Branch employee\u2019s consent merges with the underlying inquiry regarding the overall of EINSTEIN 2.0 operations. 9 See Drug Testing at 7 (\u201c[I]t appears that the government could not insist upon a complete waiver of Fourth Amendment rights as a condition of public employment and that the courts will scrutinize the search under the Fourth Amendment to deter- mine whether it is reasonable.\u201d). Therefore, we turn to the reasonableness of EINSTEIN 2.0 operations. A work-related administrative search by a public employer conducted for a non-law enforcement purpose is not per se unreasonable under the"], "id": "8ee8f83b-7bfb-41f5-8f7f-a15b2a414134", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This provision is mandatory and admits of no exceptions. This section further provides in substance that at the expiration of sixty days from the grant of letters testamentary or letters of administration the person having such a claim may present to the Surrogate\u2019s Court a petition praying that the executor or administrator may be cited to show cause why he should not be required to make such payment. Upon the return of the citation if it appears that the executor or administrator has in his possession money belonging to the estate and that the validity and of the claim is admitted the surrogate shall direct the payment within ten days thereafter."], "id": "ab609490-0d4a-4e60-ada8-de14ac7aa85d", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Family Court made the following relevant COLs: 9. \"The use of force upon or towards another person is justified when the actor believes that such force is immediately necessary to protect himself against the use of unlawful force by the other person on the present occasion.\" HRS \u00a7 703-304(1) (2014). The of the Minor's belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the Minor's position under the circumstances of which the Minor was aware or as the Minor reasonably believed them to be. The amount of force used by Minor was not reasonable under the circumstances. 10. \"Deadly force\" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm.\" HRS \u00a7 703-300 (2014). The act of Minor stabbing [CW] in the abdomen constituted deadly force. 11. \"The use of deadly force is justifiable ... if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.\" HRS \u00a7 703-304(2). The Court does not find the use of deadly force by Minor was justifiable, and the use of said force was not objectively reasonable under the circumstances in this case."], "id": "b2de80c9-8912-422b-af3a-1acc7b14ac4c", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The motion is made pursuant to CPL 240.20 (subd. 3) which, standing alone, might be deemed to warrant such relief upon a showing of materiality and . In this \u00a1State, however, inspection of Grand Jury minutes has been codified in 210.30 (subd. 2) and the court\u2019s power to grant such relief before trial and absent Brady considerations, is limited to motions directed at the legal sufficiency of the indictment."], "id": "1f673fcb-d48c-4815-9c62-8b773ef3865e", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As the statute tells us, where there are practical difficulties ur unnecessary hardship in the way of carrying out the strict \u25a0letter of the zoning ordinance, the Board \u201c shall have the power *870* * * to vary or modify the application of any of the regulations or provisions of such ordinance \u201d. (Town Law, \u00a7 267, subd. 5). The exercise of such power is permissive and not mandatory. Before such discretion may be exercised favorably in behalf of the petitioner on the ground of practical difficulties and unnecessary hardship, he has the burden of proof to establish that the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; that the plight of the owner is due to unique circumstances and not to general conditions in the neighborhood which may reflect the un of the zoning ordinance itself, and that the use to be authorized by the variance would not alter the essential character of the locality (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76; Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86; Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Young Women\u2019s Hebrew Assn. v. Board of Stds. & Appeals, 266 N. Y. 270)."], "id": "6cdbc06c-7e1e-4789-ac9d-52f18fd23671", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Appellees' Counsel: And under the expert disclosure I said-'Answer: 194.2(f) for testifying expert. 2. Dr. Himmelsehr is expected to testify regarding the nature, extent and causation of the injuries, the and necessity of the medical care received by plaintiff for the injuries sustained in the collision, including but not limited to the need for future treatment and the costs associated therewith as well as all other damages listed above.' Appellant's Counsel: And that's incomplete, though, Your Honor, because that is just responsive to the subject matter. The next one, No. 3, is the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them or the documents provided. All she cites to are the affidavits on file. So if this is an opinion that's not contained in the medical records, which it's not, then he's precluded from testifying. The Court: Objection's overruled. Based on this record, we cannot conclude that the trial court abused its discretion in impliedly ruling that the disclosure response was adequate. The record establishes the disclosure putting Appellant on notice regarding the subject matter of Dr. Himmelsehr's testimony and cited to affidavits containing the medical records. Rule 194.2(f) is not meant to encourage \"gotcha\" objections at trial, but to provide opposing counsel with a meaningful opportunity to prepare for cross-examination; failure to object or to notify the responding party of the inadequate disclosures before trial subjects the complaint to waiver. Morua , 979 S.W.2d at 620. Because it is not clear that the trial court abused its discretion in overruling Hernandez's objection, Point of Error Five is overruled."], "id": "794ad8c4-88a7-44fa-9725-ccfeec690ae3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A probation condition is not invalid unless it has no relationship to the conviction, relates to conduct which is not in itself criminal, and is not reasonably related to future criminality. ( People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1 ( Olguin ).) We review the of probation conditions for abuse of discretion. ( Ibid. ) We focus on defendant's arguments related to the first and third prongs because it is undisputed that using electronic devices is not in itself criminal."], "id": "25dc66c3-0c4d-4422-a46e-d082dbf9e8f5", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The two prongs of the test for ineffective assistance of counsel may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel\u2019s actions were reasonable. Id. To show that counsel\u2019s performance was deficient, a defendant must show that counsel\u2019s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel\u2019s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Pineda makes three ineffective assistance of counsel arguments: trial counsel was ineffective for not objecting and moving for a mistrial based on prosecutorial misconduct, appellate counsel was ineffective for failing to raise on appeal trial counsel\u2019s ineffectiveness in regard to the first argument, and trial counsel was ineffective for not calling any witnesses at trial. Failure of Trial Counsel to Object and Move for Mistrial. Pineda first argues that his trial counsel was ineffective in failing to timely object and move for a mistrial in response to prosecutorial misconduct during the State\u2019s opening and closing statements. We conclude, as the trial court did, that this claim is procedurally barred. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel\u2019s performance were known to the defendant or apparent from the record. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). Pineda was represented by different counsel on direct appeal than his trial counsel. Although his appellate counsel raised certain ineffective assistance of trial counsel claims on direct appeal, he did not raise the claim now being raised. Further, these alleged deficiencies in his trial counsel\u2019s performance were either known to Pineda or apparent from the record. Therefore, the claim of ineffective assistance of trial counsel in regard to prosecutorial misconduct either was or could have been brought on direct appeal, and these claims are procedurally barred. See State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). Failure of Appellate Counsel to Include Ineffective Assistance of Trial Counsel Claims. Pineda next argues that his appellate counsel was ineffective for failing to assign as error on appeal trial counsel\u2019s ineffectiveness for failing to timely object and move for a mistrial in response to prosecutorial misconduct. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a \u201clayered\u201d claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the Strickland test. State v. Parnell, supra. If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel\u2019s failure to raise the issue. Id. Much like claims of ineffective assistance of trial counsel, the defendant must show that but for counsel\u2019s failure to raise the claim, there is a reasonable probability that the outcome would have been different. Id. In determining whether trial counsel\u2019s performance was deficient, courts give counsel\u2019s acts a strong presumption of . Id."], "id": "49a060ae-9213-4545-a4bc-7c74954d15b9", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In support of these judicial exemptions, the Court of Appeals stated: \u201cThe determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work (Cannon v Putnam, 76 NY2d, at 650). In formulating this test, the Court was mindful of the \u2018underlying notions of and fairness that motivated the Legislature\u2019s adoption of the dwelling-owner exemption.\u2019 \u201d (Khela v Neiger, 85 NY2d, supra, at 337.)"], "id": "d6b8810f-f887-47aa-90b1-0c675ccdc9d4", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under normal circumstances, pursuant to Executive Law \u00a7 259-i (3) (c) (iii), the Department is to serve a parolee a copy of the notice of violation within three days of execution of the parole warrant. Accordingly, since the Department lodged the warrant against petitioner on October 29th, pursuant to Executive Law \u00a7 259-i (3) (c) (iii), the three-day limit would have fallen on November 1, 2012. However, on October 29, 2012, date of execution of the warrant, New York City was battered with wind and flood damage caused by Hurricane Sandy. In his attempt to emphasize the un of the delay in service, defense counsel makes reference to the fact that the Rikers Island Judicial Center was only closed for two days after the hurricane, and that it resumed full operations on Wednesday, October 31st (see defense affirmation at 6), so therefore there was no excuse for not serving the petitioner with his notice until November 9th. The defense counsel, however, failed to acknowledge that a difference in location that day made a significant difference in how quickly an area and the people therein were able to rebound. The Rikers Island Judicial Center is located in an inland bay in the East River surrounded by Queens and Bronx boroughs. The petitioner\u2019s parole officers and offices, however, were located on Bay Street in Staten Island, an area exposed in a direct line with the surge from the Atlantic Ocean, and one of the most well publicized areas most devastated by the hurricane flooding which resulted in unprecedented power and communication outages and structural damage. Accordingly, using the Rikers Island Judicial Center as the yardstick for reasonableness in this situation is inapposite."], "id": "6be2ec79-6a76-41a2-aeb4-b14f88a5b818", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u2018\u2018 Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power. The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld. \u201c In determining or fairness, the primary concern must be with the terms of the contract considered in light of the circumstances existing when the contract was made. The test is not simple, nor can it be mechanically applied. The terms are to be considered1 in the light of the general commercial background and the commercial needs of the particular trade or case \\ Corbin suggests the test as being whether the terms are \u2018 so extreme as to appear unconscionable according to the mores and business practices of the time and place 1 cobbin, op. cit. supra Note 2. We think this formulation correctly states the *622test to be applied in those cases where no meaningful choice was exercised upon entering the contract. \u2019 \u2019 Therefore, pursuant to subdivision (2) of section 2-302 of the Uniform Commercial Code the defendants are entitled to a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in determining whether the contract was as a matter of law unconscionable."], "id": "a613bcfe-9059-4f2a-88f6-38a2384d5ad5", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In some respects Illinois v. Krull, supra,480 U.S. 340, 107 S.Ct. 1160 had been presaged by Michigan v. DeFillippo(1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, which held that the exclusionary rule did not apply to fruits of an unlawful arrestmade in reliance on an ordinance later held unconstitutional. The analysis there was framed not around the of the officer's reliance as such but on the existence of probable causeto believe the defendant had committed a crime, which in turn depended on whether the ordinance was reasonably believed to be valid. The court reasoned that \"[a] prudent officer, in the course of determining whether respondent had committed an offense ... should not have been required to anticipate that a court would later hold the ordinance unconstitutional.\" (Id.at pp. 37-38, 99 S.Ct. 2627.)"], "id": "64c4e8d5-6030-4440-9b75-a48955e0d1b3", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner\u2019s claim that the consent given was conditioned upon the veracity of the information provided by respondent is also without merit. While petitioner\u2019s consent did state that it was \"[predicated upon the accuracy of the information provided in all prior submissions\u201d, Real Property Law \u00a7 226-b does not contain any language which contemplates a \"conditional\u201d consent. The statute gives the landlord ample time to investigate the request and determine . To permit such conditional consent would create uncertainty and leave subtenants and tenants alike in limbo during the sublease period."], "id": "10106769-cc7f-42f2-8d00-571bdccc977b", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The question to be determined now is whether it was proper to issue a search warrant in order to inspect the premises involved. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But is still the ultimate standard. (Camara v. Municipal Ct., 387 U. S. 523.) If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant (Camara v. Municipal Ct., supra). Where considerations of health and safety are involved, the facts that would justify an inference of \u201c probable cause \u201d to make an inspection are clearly different from those that would justify such an inference where *736a criminal investigation has been undertaken (Frank v. Maryland, 359 U. S. 360). The test of \u201cprobable cause \u201d required by the Fourth Amendment can take into account the nature of the search that is being sought. (Frank v. Maryland, supra.) Both the Camara and Frank cases (supra) deal with the searches of residences and also of commercial buildings by municipal authorities (building and health inspectors, fire marshals, etc.) for violations of the local building, health, sanitation and fire ordinances. In the Frank case it was held that such inspections may be made without first obtaining a search warrant, the theory being that the safety, health and welfare of the community is at stake."], "id": "900be4f1-474a-4b83-a231-9bb305679cbf", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A pretrial identification of a defendant is not admissible if it is the product of unnecessarily suggestive procedures (Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241). \"The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned\u201d (Stovall v Denno, supra, at 302). In the absence of exigent circumstances, showup identifications are strongly disfavored (People v Johnson, 81 NY2d 828, 831; see, People v Rivera, 22 NY2d 453, cert denied 395 US 964). Showups held shortly after the commission of a crime may be permissible in the interest of prompt identification because the victim\u2019s memory is still fresh (see, People v Johnson, supra; People v *874Duuvon, 77 NY2d 541; People v Riley, 70 NY2d 523). The showup here, occurring either a week or two months after the incident, was unduly suggestive. First, it was not prompt and immediate (see, People v Johnson, supra). Additionally, the police officer\u2019s comment that the person outside the car \"was a boy that was accused\u201d of the crime was highly suggestive (see, People v Liano, 142 AD2d 602, lv denied 72 NY2d 958). Thus, the People failed to sustain their burden of establishing the of the identification procedure and the lack of undue suggestiveness (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833)."], "id": "a37667d6-2258-4bb3-a2c7-c6b48304d56b", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Over the course of seven years of litigation, plaintiffs have produced voluminous non-privileged material related to the amounts demanded by the regulatory agencies and class plaintiffs, the facts and legal theories alleged as the basis for the demands and liability, and permitted extensive interrogation of its former legal counsel, Lewis Liman, Esq., who represented Bear Stearns in its defense of the regulatory investigations. Moreover, the need to determine the of settlements under an objective standard does not require a waiver of the attorney-client privilege and the legal analysis of its counsel (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 65-66 [1st Dept 2007])."], "id": "69d55cb0-131a-4bfc-9b03-569b9281225c", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In determining the validity of a contract for sale of religious property, the court, in Church of God of Prospect Plaza (supra), promulgated a two-tier analysis of the proposed sale. This analysis was adopted by the court in Matter of Church of St. Francis De Sales (110 Misc 2d 511, 512 [Sup Ct 1981]), where the court stated that consideration must be given to (1) *471the fairness and of the terms of the transaction, as of the \"time of the making of the contract\u201d, and (2) whether the sale is in the best interest of the congregation at the time approval of the contract is considered. The critical variable of the contract for the court was timing. The time the contract was entered into was the moment for calculating fair market value. If approval was sought a year later and there was a rise in market value, the contract could not be defeated because the sale price was below market value. The second tier of the formula would allow the court broad discretion in analyzing the terms of the contract and whether it is in the best interest of the religious society. This is determined at the time of application for approval and would allow the court to deny the application if it would not benefit the religious society. Under certain circumstances, there may be protection for the purchaser. Where a religious corporation breaches a contract before receiving court approval, a purchaser may be entitled to recover reliance damages expended by him in performance of the contract. (Wilson v Ebenezer Baptist Church, supra.)"], "id": "590b5d51-f09d-4ad3-b344-2f83b628bd62", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When applying the test set forth in Adams, it can hardly be said that the issuance of the search order in the instant case was proper. The defendant\u2019s status as a probationer is not contested. However, defendant was supervised as a result of a misdemeanor charge of making a false written statement. Defendant was not on probation for a sex offense, nor does the affidavit reflect that defendant has ever been arrested for similar charges. Defendant merely failed to alert his probation officer that police questioned him \u2014 he was not arrested, nor based on the facts presented in the affidavit does it appear that defendant committed any wrongdoing. However, after a mere technical violation on a misdemeanor probation supervision (defendant\u2019s probationary supervision term was approximately two months away from expiring), the probation officer felt \u201ccompelled\u201d to seek a search order and search defendant\u2019s residence, including a padlocked closet. The court fails to see how searching defendant\u2019s residence would be consistent with the duty the probation officer has to supervise defendant, but rather, it seems that the probation officer, after supervising defendant for almost three years had a \u201chunch\u201d that defendant perhaps was in possession of illegal pornography. However, a \u201chunch\u201d is insufficient to establish the of the search, especially after a month had transpired from the time defendant was merely questioned by police to when the search was actually conducted; the items seized from defendant\u2019s residence had nothing to do with the police questioning at Glen Island Park. It seems that the search was aimed at finding evidence of a new crime rather than just merely for supervising defendant. It can hardly be concluded, based on the scant facts of the probation officer\u2019s affidavit, that there was reasonable cause for the issuance of the search order. Indeed, this is belied by the fact that the Ossining Justice failed to execute a search order with sufficient specificity for a proper search. The order reads as follows:"], "id": "098176d1-81e3-4e25-82e9-87550003c09a", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This case presents several questions concerning proper police conduct within the confines of the Fourth Amendment of the United States Constitution, and section 12 of article I of the New York State Constitution. Where, as here, the of a search and seizure is at issue, the police conduct must be examined step by step, as each incremental intrusion must find legitimate justification."], "id": "102ac643-5610-46cd-afea-ca4f6865be86", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The elements of a private nuisance cause of action are \"(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person\u2019s property right to use and enjoy land, (5) caused by another\u2019s conduct in acting or failure to act\u201d (Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 570). Defendant contends the plaintiffs\u2019 proof as to the third element was lacking and, in particular, that Supreme Court erred in admitting the testimony of plaintiffs\u2019 expert as to un because the expert failed to measure the actual sound level generated by the unit in question."], "id": "4eb14c80-526a-4b0d-b7df-58e91ac3dc78", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Inasmuch as the divorce decree \u201cratified and confirmed \u201d the agreement between the parties dated February 27, 1956, as modified by agreement of August 31,1956 \u201c as fully as if set out herein \u201d (emphasis supplied), the provision for the payment of counsel fees was likewise incorporated. The of such counsel fees, however, cannot be determined summarily. Accordingly, while the court holds and determines that the defendant is now liable to the plaintiff for additional alimony for the years mentioned above and for counsel fees \u2018 \u2018 as and for further alimony,\u201d the question of the amount of such additional alimony, including counsel fees, will be referred to an official referee for an assessment, in accordance with the provisions of rule 113 of the Rules of Civil Practice as recently amended."], "id": "b4ed9828-5186-4c22-ae3e-23e94e84f1c7", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the affirmation in opposition, the People argue that sufficient proof was presented before the grand jury to show the intent of the defendant and that Michelle Moon was reasonable in fearing physical injury, or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of herself. The People do not address defendant\u2019s argument that the standard of article 35 of the Penal Law should be applied to the victim\u2019s fears. Also, the People do not address defendant\u2019s argument that the fear must be imminent in order to come within the scope of the statute."], "id": "3c790165-1457-40aa-939c-a60d7c10b591", "sub_label": "US_Terminology"} {"obj_label": "Reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The \"facial invalidity of [a search] warrant\" is a separate question from the \"manner in which the officers conducted the search.\" Baranski , 452 F.3d at 443. See also Hamilton , 591 F.3d at 1025 (\"Whether a warrant is properly issued, however, is a separate question from whether it is reasonably executed, which is governed by the Clause of the Fourth Amendment[.]\"); United States v. Basham , 268 F.3d 1199, 1204 (10th Cir. 2001) (noting the reasonableness of the execution of a warrant \"is an entirely different matter than the question of whether the warrant itself is valid\"). \"To say that a warrant satisfies the Warrant Clause upon issuance, however, by no means establishes that a search satisfies the Reasonableness Clause upon execution[.]\" Baranski , 452 F.3d at 445."], "id": "b02164ea-675b-481d-9e01-98d0dc62f038", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the proofs submitted to the court there is shown to exist a substantial controversy as to the extent of the services rendered and the of the charge made. Equally there is substantial controversy respecting the circumstances preceding and attending the collection of the check referred to. As a matter of discretion the court has determined to remit the parties to an appropriate action at law and will not exercise its power to make a summary order in the circumstances. (Matter of Bailey v. Rutherford, 242 N. Y. 220; Matter of Shanley, 124 App. Div. 935; Matter of Nellis, 116 id. 94; Matter of Hitchings, 157 id. 392.) This disposition is without prejudice to the respective rights of the parties as they may be determined in such action, if initiated."], "id": "e9d739a8-533e-4977-88e0-d9112ad3a0ec", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["For the reasons explained above, Vista Verde Farms is distinguishable and does not provide a sufficient legal basis for attributing legal responsibility to Gerawan for the donation made by CFFA, a distinct third party. (See, e.g., Superior Farming Co. v. Agricultural Labor Relations Bd . (1984) 151 Cal.App.3d 100, 122-123, 198 Cal.Rptr. 608 [ Vista Verde Farms rule must not \"be applied mechanically, without regard to circumstances, , and fairness\"].) There was no substantial evidence in the record to indicate that any workers were coerced or misled by CFFA's donation. Moreover, because of the important conjunction and interplay of free speech and concerted activities in this matter, we hold that Gerawan was not required to prevent, intervene in or repudiate the workers' bus trip and protest, and its failure to do so was not an unfair labor practice.91 Accordingly, the Board's finding that Gerawan committed an unfair labor practice in connection with the events surrounding the October 2, 2013 bus trip was not supported by substantial evidence."], "id": "f4cf98f8-e51a-43c4-91b7-321c9abd7f43", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As hereinbefore stated, the parties had reached agreement at the initial stage of the proceeding except as to the issue of attorneys\u2019 fees. Continued litigation at that point became unnecessary and self-serving. The \"bootstrap\u201d doctrine urged by plaintiffs attorney is that because the parties could not agree on attorneys\u2019 fees, 40 hours were spent in litigation and now such a fee is justified and reasonable. Such a \"catch-22\u201d argument is rejected by this court. It was unnecessary to pursue the default money judgment, and the 40 hours are not compensable under section 108 of the Banking Law. The *288intent of section 108 of the Banking Law is to protect the borrower and it would go against such intent to require the defendants herein to pay for attorneys\u2019 fees unnecessarily incurred. The courts of our State have enough caseload to administer without creating a greater burden merely for the purpose of justifying legal fees. In fact, by making the of attorneys\u2019 fees initially rest upon the criterion of necessity, there should result a lessening of litigation and an encouragement for settlement. In this instant fact situation, a defaulting borrower may more readily acknowledge his default knowing that he will be reducing his further liability for attorney fees."], "id": "53f41fc5-6c8e-4c2c-821b-59a45020825b", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Similarly, the of searches of persons at a correctional institution or a detention facility must turn upon the nature of the search and its level of intrusiveness. This must be balanced against the institution\u2019s legitimate need to maintain security and order. In attempting to strike such a balance, the United States District Court for the Western District of New York, in Black v Amico (supra), held that the strip search of a visitor to a jail is so degrading and embarrassing (i.e., intrusive) that it should be permitted only when other less offensive measures would not render the facility secure."], "id": "fe3266df-dbf5-4f2d-918e-b88f955b8b96", "sub_label": "US_Terminology"} {"obj_label": "reasonableness", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Pursuant to section 1988, any sum the court, in the exercise of its discretion, elects to award as legal fees must be reasonable. In turn, what constitutes a reasonable award depends primarily upon the degree of plaintiffs success not only in terms of liability but also in terms of the level of damages awarded relative to the amount that was sought (see Farrar v Hobby, 506 US 103 [1992]). Thus, \u201cthe degree of plaintiffs overall success goes to the [of the legal fees award]\u201d (id. at 114) and thus, \u201cthe most critical factor is the degree of success obtained\u201d (Hensley v Eekerhart, 461 US 424, 436 [1983]). \u201cWhere recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought\u201d (Farrar, 506 US at 114 [internal quotation marks omitted], quoting Riverside v Rivera, 477 US 561, 585 [1986])."], "id": "2a1bc700-a346-4139-a0bc-c7dc8662edae", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Schwartz v Greenfield, Stein & Weisinger (90 Misc 2d 882), the court referred to the \u201cobsolescence of the strict doctrine\u201d in holding that an attorney who under*931took but failed to file and perfect security agreements was liable to a third-person lender who was damaged thereby. In part the court noted that (p 884) : \u201c \u2018[w]ith the case of McPherson v. Buick Motor Co. [217 NY 382, 11 NE 1080 (1916)] the privity requirement began to assume less importance in one area of the law after another. The court began to recognize liability to third persons where the actor negligently rendered services which he should have recognized as involving a foreseeable injury to the third party\u2019 \u201d. (Accord 45 ALR3d 1181, 1184-1185.)"], "id": "f9352d55-c195-443b-82fb-d61144f7a1c9", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". But, so far as appears, the company to which the offer was made *395did nothing of the kind. It was divested of its property and franchises by the foreclosure sale in 1874. The grading and completing of the road and, so far as appeal\u2019s, the locating of the route between the points specified in the subscription paper were done by the new company. Between that company and the defendant there was no . The defendant\u2019s offer was not made to the new company. The new company did not acquire the interest of the original company in the subscription paper. It succeeded to such property only, of the original company, as was covered by the mortgage and sold on the foreclosure."], "id": "0316b05b-2ef8-4724-b855-e9da8d6faeb5", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This result is warranted notwithstanding the fact that petitioner was not a party to the trial. As subrogee, petitioner stands in place of Dykes, its subrogor. The issue in the personal injury litigation as well as the subsequent arbitration was identical \u2014 to wit, the liability of respondent\u2019s insured. Both petitioner and its subrogor were interested in obtaining a judgment against respondent on the issue of liability, and petitioner\u2019s interests were effectively represented at trial. Petitioner\u2019s relationship as subrogee of Dykes is such that it can be reasonably said that the two are in \u201c,\u201d sufficient to bind petitioner by the prior judgment to which it was not a party of record (see, Watts v Swiss Bank Corp., 27 NY2d 270, 277). This situation would include \u201cthose who are successors to a property interest\u201d (see, Watts v Swiss Bank Corp., supra). Thus, the doctrine of res judicata would apply to preclude petitioner\u2019s claim for recovery of the amount of benefits it paid to Dykes."], "id": "8c96e574-8f4a-4fcf-8b80-5768e189f3ae", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Chief Judge Desmond, speaking of the rule, said: \u2018 \u2018 But the present rule which we are being asked to modify is itself of judicial making since our statutes say nothing at all about privity and in early times such liabilities were thought to be in tort [authorities omitted]. Alteration of the law in such matters has been the business of the New York courts for many years [authorities omitted].\u201d (Greenberg v. Lorenz, 9 N Y 2d 195, 199-200; see, also, Badigian v. Badigian, 9 N Y 2d 472, 481.)"], "id": "619e0809-ae5a-4cc1-a271-2db3d0c3f110", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At this point still extant was the principle enunciated in Redmond v. Borden\u2019s Farm Prods. Co. (245 N. Y. 512) that a dependent child for whom food was purchased by his mother could not claim of contract with the seller. And it was to correct this specific 1 \u2018 injustice and impracticality \u2019 \u2019 that expressly motivated the Greenberg decision."], "id": "78874d3c-771c-4fb2-8fbf-94118b840636", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On principle and authority, then, the jury should not take into consideration the money received by the plaintiff, Jane C. Warner, from the insurance company. But, without reference to any adjudicated case, there are principles springing from the relations of the parties, and the statute creating the right of \u2022 action in favor of the plaintiffs, which forbid the consideration of any benefit elsewhere received. Jane G. Warner was entitled to the whole amount of the policy of insurance. It was for her-benefit alone; and it was secured by the payment of a premium to which the defendant did not contribute. The benefits growing out of the right of action here sought to be enforced, are not given to her by the statute, but are given to the widow and next-of kin, and do not arise upon any common law liability. They are, therefore, res inter alios acta. The case is very different from that which would be presented for an injury to a chattel, and *354it rests upon a statute, the object of which was to punish the wrongdoer who by his carelessness destroyed life. There is no between him and the insurance company, and the insurance company cannot repair the injuries done by the defendant. They cannot restore to the widow and next of kin of the deceased, the society, advice and protection which he could have afforded them, aside from the pecuniary losses incident to the deprivation which his death occasioned, and thus, either by analogy, or on principle even, the doctrine that an insurance company could be substituted for the deceased in this action, as in the case of Mason v. Salisbury, could not apply to this action. But, however that may be, the judge Was clearly right in refusing to charge the first of the defendant\u2019s requests. The second request was not authorized by law. Fagan was engaged in removing the snow from the defendant\u2019s house and by his express direction, when Mr. Warner was killed. It is. true that Fagan had askedCashan to help him, but this does not change the defendant\u2019s responsibility. It is said, by Blackstone, (Yol. 1, p. 431, marginal paging), that \u201c a master is chargeable if any of his family layeth or casteth anything out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty\u2019s liege people: for the master hath the superintendence and charge of all his householdand the following cases illustrate the doctrine that where the master has intrusted a servant with the performance of a service, it is no answer, in an action brought to recover damages resulting from the manner in which the service is performed, that the servant .acted amproperly in the discharge or performance of it."], "id": "1b70be24-1184-4fa5-a4b9-cf5d98197120", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Home improvement contractors working in Suffolk County are required to be licensed (Code of Suffolk County \u00a7 563-17). The purpose of the Suffolk County Legislature, in enacting such licensing requirements, was to enhance \u201cthe health, safety and general welfare of the consumers of Suffolk County\u201d (Code of Suffolk County \u00a7 563-1). Here, however, the action is not against a \u201cconsumer,\u201d which we interpret here to mean a homeowner, but, rather, against a licensed contractor, the entity in *22with the homeowners in the home improvement project at issue."], "id": "34026fba-f6a8-49b6-9bf2-adbc91b6def9", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Vrooman v. Turner (69 N. Y. 280) Judge Allen said : \u201c To give a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an .intent by the promisee to secure some benefit to the third party, and second, some between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally. It is true there need be no privity between the promisor and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.\u201d"], "id": "df71c430-32b6-4dc6-8916-50168346797b", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The basic principles are well settled. \u201cThe doctrine of collateral estoppel bars \u2018a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in , whether or not the tribunals or causes of action are the same.\u2019 \u201d (Chiara v Town of New Castle, 61 AD3d 915, 916 [2d Dept 2009], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984].) Two conditions must be met: first, \u201cthe issue sought to be precluded [must be] identical to a material issue necessarily decided . . . in a prior proceeding,\u201d and second, the losing party must have been afforded \u201ca full and fair opportunity to contest this issue\u201d in the prior proceeding. (Chiara v Town of New Castle, 61 AD3d at 916, quoting Jeffreys v Griffin, 1 NY3d 34, 39 [2003].)"], "id": "9b3f3be5-7a0c-4bc4-bd6d-27680a75b695", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As set forth in the above-quoted letter from the owner\u2019s counsel, the only reason proffered for refusing to consent to the Sublease was because of a contemplated 24-hour, seven-day-a-week operation. Yet the owner subsequently leased the premises to Walgreen for the very same use contemplated by Duane Reade, with no limitation on the hours of operation. *678Prior to the surrender, Duane Reade, as a sublessee of Apple and thus not in with the owner, lacked the authority to enforce the Lease prohibition against an unreasonable refusal to consent. (See, Tamco Enters. v Mitsubishi Elec. Am., 190 AD2d 623 [1st Dept 1993]; Mogull Music Corp. v Madison-59th St. Corp., 162 AD2d 336 [1st Dept 1990].)"], "id": "0c9669cf-ea60-432f-b025-9efb042a7756", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in with a party to the prior proceeding.\u2019 \u201d (People v. Barragan (2004) 32 Cal.4th 236, 253.) The arguments here center on the first of the three elements. Chaudhuri\u2019s argument conflates the issues involved in the administrative proceeding with the issues the trial court considered on his petition for writ of mandate. Indeed, in his briefing, Chaudhuri clouds the question by arguing that the trial court\u2019s judgment operates as a bar to further proceedings by the Committee by explaining that \u201cthe claim to be decided in the second disciplinary hearing\u2014whether Dr. Chaudhuri sexually harassed [E.B.]\u2014is identical to the claim which was adjudicated in the first hearing.\u201d But it is not the results of the first hearing that Chaudhuri attempts to use to bar a second hearing. It is the judgment on his writ petition. The trial court\u2019s judgment on Chaudhuri\u2019s petition for writ of mandate adjudicated only whether the evidence in the administrative record was sufficient to support the administrative findings, and not whether Chaudhuri had sexually harassed either of the complainants. The issues in the two proceedings were not identical. The trial court explained as much at the hearing in this matter: \u201cMy decision [on the first writ petition] was reviewing whether or not there was sufficient evidence below. And it\u2019s not the same decision that the agency made.\u201d The agency did not then and does not now challenge the trial court\u2019s conclusion or issuance of a peremptory writ of"], "id": "48a696cf-3c96-4ee6-a78a-dcc1008bf5e7", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["After the trial had ended, the California Supreme Court clarified that for the claim preclusion aspect of res judicata, a complete identity of parties was *671required; the requirement of the same party or its privy applies to both the party asserting the defense and the party against whom the defense is asserted. ( DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825, 189 Cal.Rptr.3d 809, 352 P.3d 378 ( DKN Holdings ).) Based on this clarification in the law, Cal Sierra moved for judgment notwithstanding the verdict, a new trial, and to vacate the judgment, contending had not been established. The trial court found the license agreement between Western Aggregates and Reed was sufficient to establish privity. The court reiterated that the case was one of derivative liability."], "id": "eefca5fe-8b1b-481c-a6f7-8c5147cd654b", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*844The doctrine of res judicata or claim preclusion dictates that in ordinary circumstances a final judgment on the merits prevents relitigation of the same cause of action in a second suit between the same parties or parties in with them. ( DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, 189 Cal.Rptr.3d 809, 352 P.3d 378.) The doctrine of collateral estoppel or issue preclusion prevents \"the relitigation of issues argued and decided *725in a previous case, even if the second suit raises different causes of action.\" ( Ibid. ) \"Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.\" ( Ibid . )"], "id": "5b86e6a5-2337-4966-b5c7-8d2c49932043", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court has not been presented, and has not found, any authority to sustain the argument in the factual situation of the instant claim, that the third-party beneficiary Westgate must accept an offer by the promisor Capitol Hill to discharge the debt of the promisee SUNY. While may be found to exist here sufficient to allow the enforcement of the promise by Westgate, absent consent by the latter the court holds that it *614was not legally obliged to accept Capitol Hill\u2019s offer to pay STJNY\u2019s remaining rent dne."], "id": "9969d4aa-35e7-4331-b61a-2dac08c6280a", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Assuming arguendo that the McClendon class was not limited to persons whose property was held by the Property Clerk prior to the end of that litigation in 1993, the 1974 and 1993 decrees cannot be given preclusive effect here. The issues actually litigated and determined in McClendon (supra) differ from those now raised. (See also, O\u2019Brien v City of Syracuse, 54 NY2d 353, 358.) McClendon found the prior procedure inadequate, inter alia, because it placed the burden of proof on the property owner instead of the City. McClendon did not afford petitioner, or anyone who can be considered in with him, a full and fair opportunity to litigate the issues raised here. (See, Schwartz v Public Adm\u2019r of County of Bronx, 24 NY2d 65; Restatement [Second] of Judgment \u00a7 27; 2 Chase, Weinstein-Korn-Miller, CPLR Manual \u00a7 25.03 [d] [rev 2d ed].) *454Fundamental fairness requires that the court consider these issues on the merits."], "id": "723c8519-6ffc-40b7-be9e-2f68834e700f", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The question was raised during the trial, and is again raised now, on motion by the defendant Hot Shoppes, to the effect that Hot Shoppes cannot be liable here as a matter of law, because there was no of contract between the restaurant and the infant. The trial proceeded on the theory of breach of warranty. The defendant Hot Shoppes apparently does not seriously question the legal proposition of its liability to a contractual party if there was breach of implied warranty that food sold by it was fit for human consumption. The defendant argues, however, that the only contractual party here was the gentleman who ordered and paid for the ice cream. Defendant says that the infant is merely a third party, not within the contemplation of the contract, and therefore not protected by any implied warranty. Defendant in this connection cites a substantial number of cases including Chysky v. Drake Bros. Co. (235 N. Y. 468); Redmond v. Borden\u2019s Farm Prods. Co. (245 N. Y. 512); Salzano v. First Nat. Stores (268 App. Div. 993); Gimenez v. Great Atlantic Pacific Tea Co. (264 N. Y. 390)."], "id": "45cbb32a-66eb-4ed7-bccb-1421c977e0a6", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Such a theory cannot be upheld. Defendant, knew that plaintiff was the- auctioneer to conduct the sale. His name appeared in the advertisement annexed to the terms of sale, and the contract to pay the auctioneer\u2019s fee, was for his benefit only, and not of Field, the referee. Such payment was one of the conditions of defendant\u2019s purchase, and his promise in relation thereto, established a of contract between the plaintiff and himself (Bleecker v. Franklin, 2 E. D. Smith, 93; Muller v. Maxwell, 2 Bosw. 355)."], "id": "a48474e2-e5de-4ece-9206-52c9dbcade76", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Workmen\u2019s Compensation policy issued to Milnag by the State Fund constituted a contract between them imposed by statute (Workmen\u2019s Compensation Law) for the benefit of Mil-nag\u2019s employees. They are the only persons who could call on the State Fund to pay for injuries sustained by an employee. The State Fund, having issued its policy of Workmen\u2019s Compensation Insurance, owed a duty to Milnag and to his employees. Even assuming, for the sake of argument only, that Leonora Jones was an employee of Milnag, and thus within the terms of the Workmen\u2019s Compensation policy issued by the State Fund to Milnag, the claimant Zurich, upon the facts herein set forth, has failed to state a cause of action. There is no of contract between Zurich and the State Fund arising out of the policy of insurance. All that the State Fund agreed to do was to pay awards made to Milnag\u2019s employees for injuries under the Workmen\u2019s Compensation Law and to indemnify Milnag against the payment of such claims. The fact that Zurich stepped in and made itself liable for payment of the claim of Leonora Jones cannot constitute a subrogation of any claim Milnag might have against the State Insurance Fund."], "id": "b4354cb2-1d55-4dbb-a85d-90e7498af6a2", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["New York authorities do not extend liability to an attorney whose negligence may bring harm to a third party with whom he has no , provided the charge is simple negligence. An attorney is not liable to a third party for acts performed in good faith and mere negligence on the part of the attorney is insufficient to give a cause of action to the injured third party. He is liable to a third party only when he is guilty of fraud or collusion or of a malicious or tortious act (3 N. Y. Jur., Attorney and Client, \u00a7 78; 7 C. J. S., Attorney and Client, \u00a7 52, subd. b; Matter of Cushman, 95 Misc. 9; Dallas v. Fassnacht, 42 N. Y. S. 2d 415)."], "id": "bf1d0b45-f2a4-435b-ba18-5f7c01c56b80", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" \"In order to establish the requisite to enforce a restrictive covenant, a party need only show that his [or her] property derives from the original grantor who imposed the covenant and whose property was benefit[t]ed thereby, and concomitantly, that the party to be burdened derives his [or her] property from the original grantee who took the property subject to the restrictive covenant\" (Malley v Hanna, 65 NY2d 289, 291; see Shea v Signal Hill Rd. LLC, 172 AD3d 1604, 1606). \"This 'vertical privity' arises wherever the party seeking to enforce the covenant has derived his [or her] title through a continuous lawful succession from the original grantor\" (Malley v Hanna, 65 NY2d at 291-292). Where vertical privity has been established, a party's right to enforce a restrictive covenant \"does not depend upon his [or her] demonstrating a common plan or scheme\" (Malley v Hanna, 65 NY2d at 292); rather, \"it is sufficient that the surrounding circumstances manifest the original grantor's intent that the covenant run with the land\" (id.)."], "id": "69bfddf8-28eb-4ff8-b616-c4c0c06449d0", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As a general rule \u2018 \u2018 a manufacturer * 6 * of personal property is not liable to third persons under an implied warranty, who have no contractual relations with him. The reason for this rule is that of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either express or implied, does not run with a chattel on its resale \u201d. (Chysky v. Drake Bros. Co., 235 N. Y. 468, 472, 473.) Although recently in Greenberg v. Lorenz (9 N Y 2d 195) it was held that not merely the individual buyer but all the members of a household benefit by a warranty as to food and household goods, it has not been held that a buyer or the members of his household may sue a manufacturer with whom the buyer had no contract."], "id": "c19bb089-8057-4820-8fee-83e366376637", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiffs also assert claims based upon the defective design of the container, and the manufacture of a fuel with a dangerously low flash point. Such defective design claims are independent of the product\u2019s labeling and, thus, are not preempted (see, Higgins v Monsanto Co., supra; Bingham v Terminix Intl. Co., 850 F Supp 516). It should also be noted that, since the elimination of to support an action for breach of implied warranty (UCC 2-318), there is little, if any, difference at present between an action for strict products liability and one for breach of implied warranty (see, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407). Therefore, to the extent that plaintiffs\u2019 implied warranty claims relate to the inadequate design of the container and the dangerously low flash point of the camp stove fuel, rather than to inadequate labeling or warnings, those claims survive. In arriving at this determination, we also take heed of the rule of interpretation that *139preemption clauses in a statute are to be narrowly construed and that matters beyond their scope are not preempted (Cipollone v Liggett Group, 505 US, supra, at 524)."], "id": "3edf6182-ec67-4f74-8402-4f433a5fad46", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["These findings of and agency are significant. While this case was pending, a separate class action brought against, among others, GCA resulted in a final, court-approved settlement agreement. (Gomez v. GCA Production Services, Inc. (Super. Ct. San Bernardino County, 2014, No. CIVRS1205657 (Gomez ) ).) The Gomez settlement agreement contains a broad release barring settlement class members from asserting wage and hour claims such as those *267alleged here against GCA and its agents. The Castillos are members of the Gomez settlement class and did not opt out of that settlement."], "id": "e8f110f6-58e7-42fb-b563-4a9a05dc20d2", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But the bank owes no duty to the holder of a check drawn upon it, and may refuse payment (even though the drawer has ample funds on deposit), without being liable to an action by such holder. This is because there is no between the holder and the bank, and the latter does not become a party to the check until acceptance or payment by it (Ball on Nat. Banks, 265), nor does a check upon the general fund operate as an assignment fro tanto to the payee, unless it has been accepted by the drawee (Ib.). Money deposited with a bank ceases altogether to be the money of the person paying it in; it becomes the money of the banker, who is to return an equivalent by paying a similar sum to that deposited with him, when he is asked for it (Grant Law of Banking, 3 ed. 2). Hence it is said that the relation between a banker and his customer is that of debtor and creditor only (Id. 5)."], "id": "9121210f-4409-4e7a-91af-26211b33fa7c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["With respect to their motion to dismiss, defendants contend that plaintiffs failed to state a cause of action against defendants because they have no with defendants. Defendants are not sponsors of the condominium offering plan for the medical office building and, furthermore, the hospital is not the owner of the medical office building. Next, defendants argue that plaintiffs do not have standing because there is no private right of action under the Martin Act."], "id": "65dd9b95-8aaf-4273-abe0-77e26318851f", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["No of contract existed between the parties originally insured and the reinsurers, even in case of the insolvency of the original insurers (Herckenrath v. Am. Mut. Fire Ins. Co. 3 Barb. Ch. 63). Under the ordinary construction of contracts of reinsurance, they impose upon the reinsured no obligation to pay the insured or to prove actual payment of the loss before he can call upon his reinsurer (3 Kent Com. 279, and cases cited in note s; Hone v. Mut. Safety Ins. Co. supra ; 1 Pars. on Mar. Ins. 300). \u201c When the loss has happened and been duly ascertained, the reinsurer must pay to the first insurer the amount of the loss within the policy, notwithstanding the first insurer has become insolvent, and can only pay in part. He must pay the entire sum reinsured, and has no concern with any arrangement between the first insured and his creditors \u201d (2 Kent Com. 279, note e). This contract of reinsurance having been made with express reference to the original policy of insurance, prescribing the time for payment of the loss thereby insured against, must be construed as merely fixing a like titne for payment of the pro rata loss to the reinsured. Such is its natural construction as a mere contract of reinsurance: the loss against which it insures is \u201c payable \u201d at the same time with the reinsured\u2014not when the reinsured have actually made payment. Whatever ambiguity or uncertainty, if any, exists, is upon well recognized principles of construction, to be held the most strongly against the defendants as the contracting party. The terms used do not indicate with any plainness of intention, as against the rules of law above stated, that the payment to be made under it should be deferred until the reinsured had made actual payment of the whole loss. And, in my opinion, the clause in question has reference to the time which, by the original insurance, the North American were required to make payment of the loss, rather than to the circumstance that they had made such payment."], "id": "60f3620b-0884-4660-91ca-f743aefc48b0", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Lansing v. Montgomery (2 Johns., 382), one joint trespasser relied upon a judgment in favor of another joint trespasser, as a defense to the action afterwards prosecuted against himself, and it was held to be no bar, for the reason that \u201c one who is not bound by cannot take advantage of an estoppel.\u201d (Id., 383.) That case was analogous to the present one, for the liability of the corporation and of the trustee, was of a distinct and several nature, as much as that of joint tort-feasors. (Lawrence v. Campbell, 32 N. Y., 455.) Substantially the same rule was acted upon in Castle v. Brown (14 id., 329), where the judgment was only held binding upon the master, because he actually defended the action in which it' was recovered in the name of his servant. It was there declared that, upon the facts shown, the parties are to be regarded as the same; \u201c it is by no means true that in order to constitute an estoppel by judgment the parties on the record must be the same. The term has a broader meaning; it includes the real and substantial parties, who, although not upon the record, had a right to control the proceedings and appeal from the judgment.\u201d (Id., 335.) In the present case the defendant could have done neither, in the action prosecuted by the plaintiff against the corporation. \u201c Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defenses, or to control the proceedings and to appeal from the judgment; this right involves also the right to adduce testimony and to cross-examine the witnesses.\u201d \u201c Persons not having these rights are regarded as strangers to the cause.\u201d (1 Greenl. on Ev. [7th ed.], 654, \u00a7 523.) The term parties includes not merely those who are named as such in the action, but it extends to all who stand in with them, and that comprehends all who afterwards derive title to the subject-matter of the litigation, from or under one of the parties to the record (id., \u00a7 189), but it will not affect, or include an interest acquired previous to the commencement of the action. (Campbell v. Hall, 16 N. Y., 575.) Within this principle, there w^s no such privity between the defendant *276and the corporation as would affect him by a judgment against the latter, and, consequently, he cannot, on any such relation, avail himself of its protection. (Lawrence v. Campbell, 32 N. Y., 455.)"], "id": "d6a9327f-c425-4ee3-a931-47d79c93572e", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The subtenant further argues that the actions of a landlord, including the acceptance of rent, can revive the landlord-tenant relationship (DiGiglio v Tepedino, 173 AD2d 763 [2d Dept 1991]). In this case there was no indication that the tenancy would be reinstated. In addition, the movant does not have of contract with the landlord, and therefore, even if checks were accepted, the attempted payments could not revive a tenancy because a tenancy never existed between the movant and the petitioner."], "id": "030475e1-f68c-4871-8ad4-c0aa88ae9fc5", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\" ' \"The concept of ... refers 'to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights....' \" ' \" ( Roberson , supra , 226 Cal.App.4th at p. 1511, 173 Cal.Rptr.3d 66, italics omitted.) \"Over time, courts have embraced a somewhat broader, more practical concept of privity. ' \"[T]o maintain the stability of judgments, insure expeditious trials,\" prevent vexatious litigation, and \"to serve the ends of justice,\" courts are expanding the concept of privity beyond the classical definition to relationships \" 'sufficiently close to afford application of the principle of preclusion.' \" ' [Citation.] For example, more recently our Supreme Court explained the basic tenets of privity in broader terms: 'As applied to questions of preclusion, privity requires the sharing of \"an identity or community of interest,\" with \"adequate representation\" of that interest in the first suit, and circumstances such that the nonparty \"should reasonably have expected to be bound\" by the first suit. [Citation.] A nonparty alleged to be in privity must have an interest so similar to the party's interest that the party acted as the nonparty's \" ' \"virtual representative\" ' \" in the first action.' \" ( Castillo v. Glenair, Inc . (2018) 23 Cal.App.5th 262, 276-277, 232 Cal.Rptr.3d 844.) \"Put another way, privity, ' \"as used in the context of res judicata *257or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person's relationship to the subject matter of the litigation.\" ' \" ( Id. at p. 277, 232 Cal.Rptr.3d 844, italics omitted.)"], "id": "d2d04a8a-f1e9-4df6-b427-f5db29c299c7", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Furthermore, there is no between the drawer and the collecting bank and a fortiori between the drawer and the impleaded defendant Kirk and the drawer owes to these parties no duty of vigilance. (Fallick v. Amalgamated Bank of New York, 232 App. Div. 127; City of New York v. Bronx County Trust Company, 234 id. 244; Manufacturers Trust Company v. Harriman Nat. Bank T. Co., 146 Misc. 551; American Exchange Nat. Bank v. Yorkville Bank, supra.)"], "id": "150c2347-5222-4c58-bdc8-937fb37ffc2e", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In addition, although AriesOne admitted owning these leases for a period of time, as we noted above, the Energy Assignment does not include several of these leases. Hence, for these leases, MJR has not established an unbroken chain of title from Energy to AriesOne. Since an unbroken chain of title has not been shown, MJR has not established that there is of estate between Energy and AriesOne, or that AriesOne is charged with notice of its ROFR. In addition, MJR has not produced any summary judgment evidence showing that AriesOne had actual notice of its *707ROFR. Therefore, genuine issues of material fact remain on these issues."], "id": "4fe38c5a-a5dd-4944-a442-f3f1a32abc2c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The determination of respondent Modell\u2019s appeal to the Court of Appeals on June 9, 1982 was followed by two successive motions in the Civil Court to vacate the October 30, 1981 final judgment of possession on the basis of newly discovered evidence. Both motions to vacate were ultimately denied and in May 1990 petitioner moved for a trial of its use and occupancy claim. Modell responded with a motion to dismiss the claim and the motion was ultimately submitted to this court for determination. One of the grounds for the motion, in which respondent The Camera Barns joins, is lack of between petitioner and respondent undertenants. As to the ground, Modell and The Camera Barns contend that the lack of privity, as a matter of law, bars recovery of use and occupancy against them in a summary proceeding.1"], "id": "99fb138b-4c6a-42f7-ba4f-9ed96c425839", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The decisions of our own courts, above cited, call this transaction a contract, and treat it as such. Then the law is clear, that by the employment of under agents or servants, for his own convenience or to perform part of w]iat he has contracted to do, the employer becomes civilly responsible to those with whom he contracts or deals in his business. The general principle of Lord Holt has always been cited with approbation, though the correctness of its application to a political office was denied, that \u201c where a trust is put in one person, and he whose interest is intrusted is damnified by the neglect of such as that person employs in the discharge of that trust, he shall answer to the person damnified.\u201d 12 Modern R. 490. The same dpctriue is thus summed up by judge Story, from a long succession of authorities : \u201c It is a general doctrine of law, that the principal is held liable to third persons in a civil suit for the frauds, *231deceits, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify, or indeed know of such misconduct, or even if he forebade them or disapproved of them.\u201d Story on Agency, ch. 17, \u00a7 452, and authorities cited in note 3. \u201c The maxim is,\u201d says Lord Kedyon, \u201c Respondeat superior\u2014The principals are responsible for the acts of the servants in those things that respect their duty under them, though not answerable for things that do not respect their duty.\u201d 8. T. R. 531. This rule sums up the dotrine with great force, clearness and precision. Thus the carrier is liable for the negligence of his agent, by which goods committed to his care are damaged. So the ship ower is liable to the shipper^ for damages caused by reason of the neglect or misconduct of the master or mate. .\u201cThis liability,\u201d says Judge Story, \u201c extends not only to the injuries and wrongs of the agent immediately employed in a particular business, (as in this case to the Merchant\u2019s Bank itself,) but also to the injuries and wrongs done by others who are employed by that agent under him, or loith whom he contracts for the performance of the business; for the liability reaches through all the stages of the service.\u201d Story on Agency, \u00a7 454, -and cases there cited in note. It is this distinction, on which I have already insisted as founded in the reason of contracts, between the undertaking to perform any thing, and the mere receiving a delegation of authority to act for another, which reconciles many decisions evidently equally just in themselves, but apparently clashing in words and conflicting in authority. I include among these, in addition to the class of cases already cited or referred to, those in which persons dealing or contracting with an agent or contractor, and trusting to his credit, have endeavored to charge his principal, with whom, however, they themselves had no ; see for instance, the two cases in 6 Taunton, 147, 148. If it be not a mere representative agency, but a contract or und\u00e9rtaking to do the business, the original principal is answerable; and for the same reason he is too look to the immediate contractor with himself, and not to the inferior *232and distant under contractors or agents, for defaults injurious to bis own interest."], "id": "a6b9c6ad-455c-4118-b496-0a62dd361dea", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Court of Appeals in Jenkins v. Moyse (254 N. Y. 319, 324) spoke as follows: \u201c The test of whether this loan is usurious is whether it was in fact made to the plaintiff. Doubtless at times loans are made in fact to an individual though in form they are *411made to a corporation to hide the fact that the lender has exacted an illegal rate of interest from the real borrower \u2019 The record shows that the loan was in fact made to Sales and not to the individual Fassoulis. Hence the defense of usury was not sustained. The court having reached the conclusion that the secured loan was not usurious as a matter of fact and law, the question of whether the instant defendants were in with the secured loan is immaterial."], "id": "13696122-8491-42fc-8b95-03bf92b1cfaa", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c The lessee does hereby acknowledge between itself and the holder of any mortgage or mortgages now or hereafter placed on the lessor's interest in the said premises and on the land and building of which the said premises are a part, or upon any buildings hereafter placed upon the land upon which the leased premises form a part and to which this Lease is subordinate, and in the event of a foreclosure of any such mortgage or mortgages, as aforesaid, then this Lease, without the execution of any further documents shall be deemed to have been assigned by the lessor to any such purchaser or purchasers at the foreclosure sale.\u201d (Emphasis supplied.)"], "id": "bb11955c-326c-4d71-8db4-0ce215ace19c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At the close of trial the defendant made eight motions to dismiss: the first motion for failure of the plaintiff to prove *138prima facie case; the second that the plaintiff herein was not the proper party plaintiff and, therefore, the actions should be dismissed; third, that the Department of Transportation was not the legal owner of Republic Airport and, therefore, the action should be dismissed; fourth, that the action of imposing said landing fees at Republic Airport with respect to the Metropolitan Transportation Authority (M.T.A.) was ultra vires and, therefore, the landing fees were not proper and, therefore, the action should be dismissed; fifth, that there was no of contract between the defendants and the M.T.A.; sixth, that the landing fees were discriminatory, in that other airports allegedly similarly situated did not have such landing fees; seventh, that the statute does not permit the M.T.A. to appoint agents \u2014 only contractors and people in like categories; and eighth, that the landing fees are a violation of the defendants\u2019 constitutional rights to travel."], "id": "851494f2-5f5e-40d2-9f67-77815b465597", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Republic Petroleum establishes that both the original contracting party and the assignee would have standing to bring a breach of contract suit against the defendant. Consequently here, Vernco as original contracting party had standing to sue Hood and Nelson because those parties were in and Vernco suffered the alleged injury. Vernco's assignment of its claims to the Bank as part of the Foreclosure Agreement also gave the Bank potential standing to bring the claim as well, since the Bank thereby obtained a property interest in the claim. However, the separate issue of whether Vernco had the actual authority to bring suit on the Bank's behalf in light of the agreement's scope and what was actually transferred is a capacity issue that was waived by Hood and Nelson's failure to file a timely verified objection on that ground as required by TEX.R.CIV.P. 93(1).13"], "id": "ab543551-5a5f-44b1-882f-98e5bd105983", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"Collateral estoppel, an equitable doctrine, is based upon the general notion that a party, or one in with a party, should not be permitted to relitigate an issue decided against it * * * As this doctrine has evolved, only two requirements must be satisfied. First, the party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action * * * Second, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination.\u201d (D\u2019Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990].) In discussing the flexible nature of the doctrine, in Staatsburg Water Co. v Staatsburg Fire Dist. (72 NY2d 147, 153 [1988]), it was stated:"], "id": "bc23c0bf-8f7a-4d8e-98d8-7bbe4eaf3a88", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["From this brief view of authorities in relation to sureties and bail, it clearly appears that an agreement to give time to the principal is void without good consideration. The plea of the defendant, therefore, treating it as one setting up an agreement by the plaintiff to give time to the principal, is defective in not setting forth a consideration for the agreement. Such an agreement did not prevent the plaintiff from issuing a co. so. and arresting the principal, nor the bail from surrendering him at any time. It is also farther defective in not setting forth that the agreement was made without the and knowledge of the bail."], "id": "df75eed4-e6e6-4dd4-8b8e-67dc034112f4", "sub_label": "US_Terminology"} {"obj_label": "Privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cPersons who may maintain proceeding\u2014 Landlord or lessor \u2014 is required \u201cThe relationship of the landlord to the respondent must involve both privity of contract, based on the agreement between the parties, and privity of estate, based on the transfer of interest in the real property. (New Amsterdam Casualty Co. v National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 754, 99 A.L.R. 216 [1935]). \u201cIn other words, an owner may maintain a summary eviction proceeding against a respondent if the owner entered into a lease or other occupancy agreement with the respondent, or if the owner succeeded to the interests of one who had such an agreement.\u201d (See e.g. 3414 KNOS LLC v Bryant, NYLJ, Jan. 12, 2011 at 25 [Civ Ct, Bronx County] [proceeding brought by owner, not leaseholder, of apartment was jurisdictionally defective and not amendable].) Based upon the foregoing, this proceeding is dismissed without prejudice to renewal because there is no landlord/ tenant relationship between petitioner and respondents."], "id": "3c784b49-2f12-4410-a3b2-337c58a6569a", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[T]he term does not have a technical and well-defined meaning\u201d (Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]). Rather, it \u201cis an amorphous concept not easy of application\u201d (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 *873[1990]).4 \u201cIt includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action (Restatement, Judgments, \u00a7\u00a7 81-90)\u201d (Watts v Swiss Bank Corp., supra, 27 NY2d at 277)."], "id": "4728dcdd-91fe-4b2e-8c77-e621f062ba3c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*989The cases cited by the respondent assignee to the contrary are not applicable. In Halsey v. Winant (258 N. Y. 512), it was held that the judgment creditors could not secure cancellation of a consummated usurious transaction without offering to pay the lender the sum advanced with legal interest. The rule is well established that where one in with the borrower seeks to take affirmative action against the lender and to compel him to give up certain security which he holds for the payment of the debt, such person must restore or offer to restore the sum advanced by the lender with legal interest. (Wheelock v. Lee, 64 N. Y. 242; Rice v. Schneck, 189 App. Div. 877, affd. 228 N. Y. 561; Lubetkin v. Stern & Co., 223 App. Div. 770.) But in the pending proceeding the entire fund is in the hands of the executors subject to the conflicting claims of the parties. The question whether the assignee is entitled to the amount advanced with interest, even if the transaction be usurious, is one of the issues presented for determination in this proceeding."], "id": "cc0cd90d-d4fb-4f4c-9827-95875a4a6bd9", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendants\u2019 moving affidavit asserts that the contract was made with Boss, that the plaintiffs never acquired any rights under the contract or bill of sale, that the plaintiffs are not in with the defendants but are strangers to the *836transaction, and that therefore they have no basis for bringing the suit. Clearly, however, nothing else being shown, where a vendee of a businss transfers his interest therein to another, the transferee may enforce a covenant not to compete which was contained in the original sale agreement. (Francisco v. Smith, 143 N. Y. 488.) Even if the defendants \u2019 affidavit were sufficient in this respect, the plaintiffs\u2019 opposing affidavit and exhibits raise a triable issue of fact as to whether the plaintiffs are the successors of Boss. The defendants\u2019 reply affidavit by their attorney George Meade does set forth facts which of themselves would seem to show that the action for reformation has no merit. He states that Boss knew that the covenant in regard to the potted plants, and flowers, etc. was not in the written agreement when he signed it, and therefore that it was not left out of the written agreement through the inadvertence or mistake of Boss. This would normally defeat a claim for reformation. However, in Brandwein v. Provident Mut. Life Ins. Co. (3 N Y 2d 491) it was held that where a party intended that a certain provision be inserted into a written contract, but was persuaded to sign it even though he knew it did not contain the provision by the fraudulent oral representation of the other that he intended to perform the requirements of such a provision though not incorporated in the writing, the remedy of reformation was available."], "id": "afa69147-e2fc-44eb-b00c-0efdde6daab8", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This has been interpreted by some to mean that, unless the covenant is of such a nature as to \u201crun with the land,\u201d m the view of a court of law, knowledge of its existence will not, in a court of equity, bind an assignee. This conclusion was emphatically repudiated in Tulk v. Moxbury (2 Phillips, 775-779). The lord chancellor accordingly said, \u201cWith respect to the observations of Lord Brougham m Keppell v. Bailey, he never could have meant to lay down that' this court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law. If that be the result of Ins observations, I can only say that I cannot coincide with it.\u201d The proposition which was established m the case was\" that a covenant between a vendor and purchaser, on the sale of land, that the purchaser and his assigns shall use or abstain from using the land in a particular way - will be enforced in equity against all subsequent purchasers with notice, indepen dently of the question whether it be one which runs with the land so as to be binding upon subsequent purchasers *332at law. Tulk v. Moxbury has been confirmed repeatedly in this respect, and has become settled law, Lord Brougham\u2019s dictum as interpreted in that case having been uniformly received with marked disfavor in the English courts (De Mathas v. Gibson, 4 De Gex & Jones, 276; Wilson v. Hart, Law Rep. 1 Chan. 363; Colt v. Pawle, 4 Id. 654; Whatman v. Gibson, 9 Sim. 196; Cole v. Lewis, 5 De G. M. & G. 1; Western v. McDermot, L. R. 2 Ch. App. 12; Parker v. Nightingale, 6 Allen, 341). The spirit of the rule is well explained by Lord Justice ENight Bruce in De Mathas v. Gibson, supra. He says: \u201c Reason and justice seem to prescribe that, at least as a general rule, where a man by gift or purchase acquires property from another with knowledge of a previous contract, lawfully and for a valuable consideration made by him with a third person, to use and employ the property for a particular purpose and in a specified manner, the acquirer should not, to the material damage of the third person, in opposition to the contract and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller, from whom he derives his own title \u201d (p. 282). In Parker v. Nightingale, the whole subject is carefully considered by Bigelow, Ch. J., and the distinction between the rule in law and inequity clearly pointed out. It is there said: \u201c A court of chancery will recognize and enforce agreements concerning the occupation and mode of use of real estate, although they are not expressed with technical accuracy, as exceptions or restrictions out of-a grant, nor binding as covenants real running with the land. Nor is it at all material that such stipulations should be binding in law, or that any of estate should subsist between parties m order to render them obligatory, and to warrant equitable'relief in case of their infraction. . . .\u201d So long as an owner retains a title in himself, his covenants and agreements respecting the use and enjoyment of his estate will be' binding upon him personally, and can *333be specifically enforced in equity. When he disposes of it by grant or otherwise, those who take under him cannot equitably refuse to fulfill stipulations concerning the premises of which they had notice. It is upon this ground that the courts of equity will afford relief to the parties aggrieved by the neglect or omission to comply with agreements respecting real estate after it has passed by mesne conveyances out of the hands of those who were parties to the origiual contract. A purchaser of land, with notice of a right or interest in it existing only by agreement with his vendor, is bound to do that which his grantor had agreed to perform, because it would be unconscientious and inequitable for him to violate or disregard the valid agreements of the vendor in regard to the estate of which he had notice when he became the purchaser (Burrows v. Richards, 8 Paige, 351. See, also, Whitney v. Union Railway Co., 11 Gray, 364). In applying the principles to the case at bar, it will be found that the defendant, having had full notice of the arrangement between McMaster and Cummings, is hound in conscience not to avail himself of the privilege of the agreement without bearing the burdens. His claim, in substance, is that he can rest his beams on another man\u2019s wall and pay nothing for it to any one, for if the burden of the covenant does not, either in law or in equity, follow the land, he hable to no one. The same general course of reasoning shows that the benefit of the covenant in equity no longer appertains to McMaster, but enures to the plaintiff. When McMaster conveyed, the entire wall passed to his grantee, together with the easement. When the defendant makes use of the wall, he takes not McMaster\u2019s property (which has already passed from him), but the plaintiff\u2019s. He cannot avail himself of the agreement to take the wall without being equitably bound to pay him who is the owner at the time he appropriates it. This point was decided in this court in Brown v. Penz, 1 Ct. App. Dec. *334227. That was an action in equity in which it was held that the- equitable benefits and obligations of a party-wall agreement, such as is now in question, attached to the assignees of the respective parties. It is said by the reporter to have been disposed of by an equally divided court. Our brother, Judge Hiram Gray, who was a member of the court when the decision was rendered, dissented from the prevailing view, and remembers that it was a decision by a majority. It is binding as an authority and is founded on good sense and convenience. It is a- matter of common knowledge in the city of Hew York that such agreements -are much resorted to by professed builders and others, and great practical injustice would be done if the party who has incurred a large expenditure to build an entire wall should be deprived of all remedy against an assignee of a contiguous proprietor with whom a well understood contract was made. It is believed that a decision that the assignees of the original contracting parties are not within the scope of the contract, either in law or equity, would be an unwelcome surprise to the profession. Assuming it now to be established that the covenant in the case at bar binds the assignee, the next inquiry is as to its true scope and meaning. The judge at the trial found that the agreement was that Cummings, or his assignees, should have the right to use the wall as a party-wall, and that, when he or they used the same, he or they should pay McMaster, his heirs or assigns, one-half of the value of said wall. The terms of the unexecuted written agreement were, \u201c if the party of the second part, etc., shall at any time use the said wall, he or they shall then pay to the party of the first part the value of one-half of such part as shall be used. McMaster testified that- the oral agreement was that Cummings, etc., was to pay before he used the wall, not after he had elected to use it; that his experience as a builder had always been to that effect, and that Cummings was not to put a chisel into the wall until *335he had paid for it. He further testified that the proposed written agreement was drawn to carry out that understanding, by one of his clerks. Cummings was not sworn. The plaintiff insists that the finding of the judge was unsustained by evidence, and \u25a0 was, \u2022 therefore, erroneous in point-of law."], "id": "5161116f-16ca-4e32-8c4a-fc30efded777", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u2018 \u2018 There seems after all to be little if any difference between a liability based upon an implied warranty and a positive duty *46based upon public policy. Both operate irrespective of negligence, and the same facts will support either. Peculiar as it may seem, however, the courts require for recovery in cases resting on the theory of warranty but not in those resting on the theory of tort liability. This distinction is questionable \u2019 \u2019. (7 Calif. L. Bev. 360, 364.)"], "id": "1e4928cb-0d00-40b5-b9f5-512a3539462c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The only point for the present discussion, is, the correctness of the judge\u2019s charge. This must be understood in reference to the facts of the case. The lease was proved *and admitted to be in the handwriting of the defendant. If, therefore, any alteration was made, it must have been made by the defendant himself, and not by a stranger. Had the judge said, that if the lease (supposing it to be for a term of years and therefore a chattel,) had been altered by Payn, though in a part not material, yet it would thereby become void and inoperative as respects Payn\u2019s right to recover upon it, no fault could possibly have been found with the charge. The law was thus laid down in Pigot's case, (11 Co. 27.) That was an action on a bond. It was there resolved, \u201cthat when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line, or through the midst of any material word, the deed thereby becomes void,\u201d \u201c So, if the obligee alters the deed by any one of the said ways, although it is in words not material, yet the deed is void; but if a stranger, without his privity, alters the deed by any of the said ways in any *73point not material, it shall not avoid the deed.\u201d So in Shepherd\u2019s Touchstone, 69: \u201c If the alteration be made by the party himself that owneth the deed, albeit it be in a place not material, and that it tend to the advantage of the other party, and bis own disadvantage, yet the deed is thereby become void.\u201d This doctrine is referred to and adopted in numerous authorities. (4 Com. Dig. by Day, p. 294; 15 John. 297.) The ancient doctrine on this subject is supposed by the plaintiffs\u2019 counsel to have undergone some modification in modern times. Platt, justice, in Jackson ex. dem. Malin v. Malin, (15 John. 297,) expresses a doubt whether the act of a stranger should prejudice a party, though the altertion be in a part material; and in Rees v. Overbaugh, (6 Cowen, 746,) we held that it should not. Yet no doubt is any where expressed, that a deed is rendered void by an alteration in favor of the party making it."], "id": "c9ec6de7-92e7-45ac-96d8-e1c42c22975b", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Article fifth trust funds are presently in the possession of the American Funds Service Company, a California corporation which has apparently been acting as custodian of such funds following their improper removal from this State without the permission of the court (see, SCPA 710 [4]). The decision of this court in imposing a constructive trust directed the \"depository presently in possession of the funds\u201d to turn over such assets to the trustee of the Article sixth trust to whom they are payable in default of the exercise of Blanche\u2019s power of appointment. Presently a proposed decree and counterdecree have been submitted, the estate of Blanche S. O\u2019Rourke contending that it is improper to direct the American Funds Service Company (American) to return the funds to this State by payment to the Article sixth trustee since American is not a party to these proceedings. However, the doctrine of collateral estoppel may apply to an individual even though not one against whom the judgment was rendered but who is someone in with a party (North Fork Hous. Guild v Mackay, 97 AD2d 433). In proceedings in California, both Fred D. Montgomery, as executor of the estate of Blanche S. O\u2019Rourke, and American Funds Service Company stipulated that \"American Funds Service Company, whose parent company is The Capitol Group, Inc., is a stakeholder only, and neither entity has an interest in the account in question.\u201d It is seen therefore that American Funds Service Company has absolutely no interest in the outcome of this controversy and was not a necessary party to this proceeding, but at all times was merely an agent of the parties and consequently is bound by the decision of this court as are the parties themselves (Hughes v United Pipe Lines, 119 NY 423). Furthermore, the court enjoins Fred Montgomery and his agents and attorneys from in any way interfering with the transmission of these funds from California to New York and payment to the trustee of the Article sixth trust except upon a stay properly obtained."], "id": "0c6d33f3-0ff4-46f5-8e43-9799f4e0705d", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In their first issue, the Isaacs argue that there were \"apparent defects of title that required the trial court not to assert jurisdiction.\" In their third issue, the Isaacs assert that CitiMortgage tendered no evidence that it was entitled to treat the Isaacs as tenants at sufferance and that it was not in of contract with the Isaacs in regard to a lien instrument. We address these issues together."], "id": "eb35c36e-9178-4a9a-9748-dbd83d02cca1", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Thus, for purposes of , \" '[t]he emphasis is not on a concept of identity of parties, but on the practical situation. The question is whether the non-party is sufficiently close to the original case to afford application of the principle of preclusion.' \" ( Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1236-1237, 49 Cal.Rptr.3d 892 ( Alvarez ).) Put another way, privity, \" 'as used in the context of res judicata or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person's relationship to the subject matter of the litigation .' \" ( Cal Sierra , supra , 14 Cal.App.5th at p. 674, 223 Cal.Rptr.3d 506.)"], "id": "23f9fcb7-840e-4272-a74b-7459419d11c6", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Thus, a prescriptive easement is \u201cno more than an unopposed, continuous trespass [on another\u2019s property] for 15 years.\u201d McDonald v Sargent, 308 Mich 341, 344-345; 13 NW2d 843 (1944). \u201cIf no single period of adverse use amounts to the 15-year statutory period, a party claiming a prescriptive interest may tack the possessory periods of their predecessors in interest to aggregate the 15-year period of prescription if the claimant can show of estate.\u201d Marlette Auto Wash, LLC, 501 Mich at 203 (quotation marks and citation omitted).2"], "id": "7aeff34a-ad17-424f-b81c-0f5e007ae331", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In determining the other questions that arise under the assignment, it will be necessary also to refer to the law respecting the assignment of a lease by a lessee ; that kind of transfer being the nearest in point of analogy to an assignment of the right acquired by contract to the use of a patented machine, enjoyed upon the condition of paying a stipulated sum annually, or what is known as a royalty. The effect of the assignment of a lease by a lessee is, that the assignee takes all the interest which the lessee had by the lease, subject to the performance of such covenants in it as are connected with the demise. (Thompson v. Rose, 8 Cow. 266 ; Norman v. Wells, 17 Wend. 146, 147 ; Verplanck v. Wright, 23 id. 509, 510 ; Allen v. Culver, 3 Denio, 294-299 ; Williams v. Bosanquet, 1 Brod. & B. 238.) Under the Revised Statutes, the assignee has the benefit of any agree*203ment contained in the lease, whether express or implied, and the same remedy for its enforcement that the lessee would have had (1 R. S. 747, \u00a7 24) ; and by the common law, as the assignee is bound by all covenants connected with the land, he is also entitled to the advantage^ of them, if the)' are broken, and may bring an action, therefor. (Lewes v. Redge, Cro. Eliz. 863 ; Kane v. Sanger, 14 Johns. 93 ; Martin v. Baker, 5 Blackf. 232.) If he accepts the assignment, he becomes liable to the lessor for the performance of the covenants, and the lessor may recover the rent from him in an action of debt, founded upon the of estate, or in an action of covenant upon the privity of contract respecting the estate (2 Platt on Leases; Tongue v. Pitcher, 3 Lev. 295 ; Thursby v. Plant, 1 Wm. Saund. 241; Allen v. Bryan, 5 B. & C. 512) ; or sue the assignee and the lessee jointly for it. (Bailiff of Ipswich v. Martin, Cro. Jac. 411; Com. Dig. Det. E.) The reason given why the lessor, after an assignment, should, for the recovery of the rent, have a remedy by distress, an action of debt, or covenant against the assignee, and also an action against the lessee upon his covenant, is that the assignee may assign the lease to a beggar, or to one who may suffer the house to remain empty, so that there may be nothing in it upon which to distrain, and therefore, as was -said, the lessee \u201c should not be allowed to prevent, by his own act, the remedy which the lessor had against him by his own contract.\u201d (Pitcher v. Tovey, 4 Mod. 75 ; Tomlin\u2019s Law Dict.\u2014Privies.) He consequently continues liable upon his .contract until the end of the term. (Walton v. Crowly, 14 Wend. 63.) If the duration of the lease is optional, as if it is given for four years or twenty, if the lessee so elects, or where both concur; or if it is for so many years, with the right, on the part of the lessee or lessor, or of one of them only, to determine it at an earlier period, upon giving notice to the other (Dann v. Spurrier, 3 Bos. & P. 399 ; Goodright v. Richardson, 3 T. R. 462; Goodright v. Nichols, 4 M. & Sel. 30), this right necessarily passes to the assignee, in whom is vested all the interest in the demise which the lessee had under the lease. Thus, a cove*204nant of renewal may be enforced, by the assignee in equity (Piggot v. Mason, 1 Paige, 412); or he may maintain an action in his own name against the lessor for the breach of such a covenant. (Moor on Conditions, p. 159 ; Hyde v. The Dean, &c., of Windsor, Cro. Eliz. 553 ; Lametti v. Anderson, 6 Cow. 307,308; Bennett v. Vansyckel, 4 Duer, 462. As respects a condition that the lessee shall not assign without the express consent of the lessor, it is, in the first place, a kind of restraint that the law does not favor (Church v. Brown, 15 Ves. 265); and as the court said in Crusoe v. Brighy (2 Wm. Bl. 767), in respect to such restraints \u201c very easy modes have always been countenanced for putting an end to them.\u201d Thus, the acceptance of rent by the lessor after knowledge of the breach of a condition not to assign, is regarded as tantamount to a license and discharges the condition (Lloyd v. Crispe, 5 Taunt. 255, 256 ; Taylor on Landlord and Tenant, \u00a7\u00a7 410,411, 451; Smith on Land, and T. 119), and where the condition is once discharged, no consent or license is thereafter required in making any further assignment. (Dakin v. Williams, 17 Wend. 457 ; Siefke v. Koch, 31 How. 383 ; Brummel v. Macpherson, 14 Ves. 173 ; Taylor\u2019s Land, and T. \u00a7 410.) Where the consent is to be given in writing, a parol consent will not discharge the condition; but if the landlord, knowing of the assignment, accept rent after the forfeiture has been incurred, the forfeiture is waived and the condition gone. (Ray v. Harrison, 2 T. R. 430, 431.) There is a distinction between a condition and a covenant not to assign. The breach of a condition works a forfeiture; whilst for the breach of the covenant the remedy is an action for damages. (Paul v. Nourse, 8 B. & Cres. 480 ; Dickey v. McCulloch, 2 W. & S. 100.)"], "id": "ce060a53-87e3-48a4-bf1d-087052be5bc0", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["An assignment in violation of a restriction in the lease is not void. It is voidable and passes an estate subject to the consequences of the breach. Therefore, unless the landlord chooses to void the assignment, the assignment is valid, of estate results, and the assignee is liable thereunder. (Liebmann\u2019s Sons Brewing Co. v. Lauter, 73 App. Div. 183.)"], "id": "ce974e87-b7e0-485f-b4ed-3a45747aed34", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiff alleges that she was injured on May 10, 1960 when a gas range manufactured by R. C. A. exploded. The range, according to the first cause of action, was purchased in *8071954 by the plaintiff\u2019s husband as her agent from \u201c a dealer in such appliances located in the Township of Huntington, County of Suffolk, State of New York.\u201d It is further alleged in the first cause of action that B. C. A. expressly and impliedly warranted \u201cas fit for use * * * and * * * of merchantable quality\u201d. There are no allegations to show any of contract between B. C. A. and the plaintiff\u2019s husband; nor are there any factual allegations to show the provisions of an express warranty."], "id": "b46e0c8c-26bf-48ad-aaea-b68033dd2183", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["However, there is no need to reach any decision, with respect to the elimination of , as this court finds that the postpurchase actions by defendant, gave rise to a contractual privity relationship with plaintiff, which overcame any original purchase gap in privity. At the time of purchase plaintiff was issued defendant\u2019s \u201cTemporary Registration Card\u201d by defendant\u2019s authorized dealer. Thereafter, defendant forwarded to plaintiff an \u201cOwners Registration Card\u201d, signifying proof of ownership, date of purchase, product usage \u201cpleasure\u201d, model number, serial number, registration number, dealer/code, entitlement to warranty coverage, etc. All of this was incidental to the purchase of defendant\u2019s engine, and entails contractual and service .commitments by defendant to plaintiff, the ultimate purchaser."], "id": "87f916c1-e250-4e5b-a923-d621faeca1ff", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But the later English cases qualify the rule, in the last case, so far, as, in substance, to hold that the factor may not permit another to hold the goods, under any delegation of authority whatever, so as to establish any between such other person and the consignor, or confer any right upon Mm, to commissions or lien. (Vide Sally v. Rathbone, 2 Maule & Selw. 298 ; Cross on Lien, 264, and cases cited.)"], "id": "ac7c5b56-e452-47ce-a010-ac999ade2432", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When the defendants conveyed the premises to the plaintiff, all of estate between them and the tenant ended, and their right to enforce any agreement, not broken on the part of the *387tenant, canxe to an end (Seidlitz v. Auerbach, 230 N. Y. 167, 175); their rights were then transferred to plaintiff, their grantee, and the deed operated as an assignment of their rights, including their rights to indemnity from the funds held by them as security. (Markantonis v. Madlam Realty Corp., 262 N. Y. 354, 362, 363.)"], "id": "05c40093-b891-4888-9b49-4145a9723c15", "sub_label": "US_Terminology"} {"obj_label": "Privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The existence of a duty to use due care is \"[t]he threshold element of a cause of action for negligence.\" ( Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, 11 Cal.Rptr.2d 51, 834 P.2d 745 ( Bily ); see also Centinela, supra, 1 Cal.5th at p. 1012, 209 Cal.Rptr.3d 280, 382 P.3d 1116.) Generally, a defendant owes no duty to prevent purely economic loss to third parties under any negligence theory. ( Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 58, 77 Cal.Rptr.2d 709, 960 P.2d 513 ( Quelimane ) [\"Recognition of a duty to manage business affairs so as to prevent purely economic loss to third parties in their financial transactions is the exception, not the rule, in negligence law. of contract is no longer necessary ... [but] public policy may dictate the existence of a duty to third parties\"].) As *122the Supreme Court reaffirmed in Centinela, \"[t]he test for determining the existence of such an exceptional duty to third parties is set forth in the seminal case of Biakanja , supra , 49 Cal.2d at page 650, 320 P.2d 16, as follows: 'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant's conduct and the injury suffered, [5] the moral blame attached to the defendant's conduct, and [6] the policy of preventing future harm.' \" ( Centinela, supra, 1 Cal.5th at pp. 1013-1014, 209 Cal.Rptr.3d 280, 382 P.3d 1116.)"], "id": "96c1a227-184e-4cfd-8c63-501acf277651", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiffs also attempt to show that does, in fact, exist between the executors and the defendant. In support of this position, the plaintiffs rely upon Kramer v Belfi (106 AD2d 615 [2d Dept 1984]). That case, however, did not sustain a cause of action involving negligence in the drafting of the will by the defendant. Instead, it allowed a cause of action between the executor and the defendant attorney who was advising the executor in the administration cf the estate after the decedent\u2019s death. The negligence involved in that case was the attorney\u2019s advice or lack thereof in the administration of the estate after the decedent died. It was the estate, via the executor, who requested legal advice on estate administration. *944This is separate and apart from any negligence in the drafting of the will. The fact that the same attorneys handled both facets of the situation is irrelevant. This distinction is enough to set that case apart from the present case. The negligence asserted in the present case is not in the administration of the estate but in the drafting of the will."], "id": "acd222b6-f05d-4446-b5f7-be3dd729264f", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*1058To avoid payment of the plaintiff\u2019s claim for compensation during this period the defendants rely upon those cases which have held that persons who are not parties to the lease are not liable to the lessor for rent in the absence of of contract or estate which would create a landlord-tenant relationship (People v. New York World\u2019s Fair, 1939, 259 App. Div. 739, affd. 286 N. Y. 587), and that no recovery for use and occupation can be had unless there had been a prior relationship of the landlord and tenant or an express agreement to pay for use and occupancy (14 Second Ave. Realty Corp. v. Steven Corp., 16 A D 2d 751, affd. 12 N Y 2d 919; Castle v. Armstead, 168 App. Div. 466). The defendants have, however, overlooked those cases which hold that an action will lie even against a trespasser to recover the reasonable value of the use and occupation of property and the simple rules of equity and justice which must prevail (City of New York v. Fink, 130 Misc. 620; De Camp v. Bullard, 159 N. Y. 450; Bunke v. New York Tel. Co., 110 App. Div. 241, affd. 188 N. Y. 600; Goelet v. National Sur. Co., 249 N. Y. 287; Nims v. Mayor, 59 N. Y. 500)."], "id": "a0f77541-09b7-4abb-8831-bd719134d561", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Instead of resolving the apparent conflict between the Williamson and Bullmore decisions on the applicability of the \u201cinnocent successor\u201d exception to imputation and in pari delicto, this court views both cases as distinguishable on their facts. Here, the trustee is seeking to recoup overpayments from former limited partners, whereas in Williamson and Bullmore the claims were against the auditors and sought tort damages. The identity of the defendant was significant in Bullmore. Justice Ramos concluded that \u201cadopting an innocent successor exception here for the benefit of the Fund\u2019s investors would be inconsistent with the well-settled principle that a negligence claim against a corporate accountant belongs to the corporation-client, unless there is between the accountant and the nonclient claiming harm.\u201d (Bullmore, 20 Misc 3d at 678.) Thus, the liquidators were seeking damages from the auditor for the benefit of the fund, which was completely controlled by the offending managers, and not for the benefit of the innocent investors. The court finds, at least under the circumstances of this case, that the defense of in pari delicto does not prevent the trustee, as an innocent successor, from seeking to recoup overpayments to benefit innocent investors."], "id": "acad9cbe-3423-46ac-8c02-b0b163f21a94", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second predicate for according preclusive effect to the Supreme Court determination upon the liability issue is the master and servant relationship between the State and Ms. LeClair. In the case of Wolf v Kenyon (242 App Div 116), Mr. Wolf suffered injuries as the result of a motor vehicle collision between himself and an automobile operated by Mr. Kenyon. Mr. Kenyon was operating the automobile in the course of performing his duties for his employer William A. Verkleir. Mr. Wolf brought an action against Mr. Verkleir under the doctrine of respondeat superior to recover for his injuries and the jury returned a verdict of no cause of action. Mr. Wolf then brought a second action against Mr. Kenyon to recover for the same injuries. In deciding to dismiss the second claim upon the defense of res judicata the Appellate Division (at 117) held: \u201cStrictly speaking, master and servant are not in but where the relationship is undisputed and the action is purely derivative and dependent entirely upon the doctrine of respondeat superior, it constitutes an exception to the general rule.\u201d"], "id": "35dcc94b-d428-4804-8f40-2c1880a6ab8e", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the same article, at page 936 under \u201c Conclusion,\u201d it is stated: \u201c The merit of Justice Traynor\u2019s approach in Greenman is that he has expressed with clarity the loss-distribution rationale for imposing strict liability upon the manufacturer of a defective product and has used it to construct a conceptual framework specifically designed to realize that end. Not only has he recognized that this strict liability must be grounded in tort rather than in contract, but he has taken care not to assimilate the elements of the new cause of action to those of other torts having incompatible rationales. The bystander benefits from the explicit abandonment of a contractual basis because the requirement is abolished without an apologetic necessity for substituting some other relationship with the product or its buyer as a prerequisite to recovery. Moreover, his careful creation of a new delict to accord with the *487principle of loss distribution seems to eliminate the hazard to the bystander of the requirement that injury to a person in the plaintiff\u2019s position be foreseeable at the time of sale.\u201d"], "id": "0bb1f701-4b83-47e0-be66-f24c087109e4", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I understand Chief Justice Eyre, in Collins v. Martin, (1 Bos. & Pull. 651.) as meaning to say, that there must be a consideration paid when the bill is received. He says, \u201c if' it can be proved that the holder gave no value for the bill, then, indeed, he is in with the first holder, and will be affected by every thing which would affect the. first holder.\u201d And in the case of Joy v. Campbell, (1 Sch. & Lefroy, 346.) Lord Redesdale, referring to Lord Bolinghrolce's case, in the discussion of which a case was cited, which he mentions with approbation, where an executor transferred part of the assets, for the avowed purpose of paying his own debt, in which case, the person receiving the assets was held liable, for, by this sort of dealing, the person concurs in a devastavit, as the value he gives for the assets is of a nature which it is impossible should be applied to the purposes of the administration. JThe administrator had the legal ownership ; he had a right to sell the goods; but as the purchaser paid him nothing, but took the goods on account of his debt against the administrator, equity would not allow him to retain them. The case, in principle, is Very analogous to the present."], "id": "5f888d6d-f1b4-4865-8972-7c79886b26c2", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*604The jury was instructed that the mere fact that the needle broke did not in and of itself establish negligence, but that they could find the doctor liable only if they found such negligence in the maintenance, care or use of the needle from the time of its purchase by him up to and including the time of the injection as caused it to break. If it found such negligence on his part, it was to render a verdict against him and in favor of defendant supplier. But, if it did not, thereby leaving as the only possible cause of the occurrence the delivery to the doctor of a defective needle by his supplier, it should then render a verdict against the supplier on plaintiff\u2019s cause of action against that defendant for breach of warranty. (The court was mindful of the limitations imposed by the rule of in breach of warranty actions, but was of the opinion that patients, for whose use hypodermic needles are purchased by their doctors, belong in the same category as members of the family or employees of purchasers, for whose benefit as direct intended users of the product the privity rule has in recent cases been relaxed; in any event, that issue was submitted, subject to reservation on the motion to dismiss.)"], "id": "0624006d-1d96-4e8c-b074-72fc9a38eb23", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*758Finally, this court notes that although lack of is no defense to a cause of action based upon strict tort liability (Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395) it is a legitimate defense to a products liability action based on breach of warranty (Martin v Dierck Equip. Co., 43 NY2d 583, 589-590; Titlebaum v Loblaws, Inc., 64 AD2d 822) and plaintiff does not dispute the fact that they had no contract with the defendants with respect to the concrete walkway in question."], "id": "dbec3e14-a76d-4082-bc65-2a2e8e2b8c47", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Sosa also points out that before the probate court granted CES's motion for summary judgment, it signed a judgment declaring heirship that concluded Sosa was Howard's common-law spouse. But the heirship proceeding was uncontested. Because the issue of informal marriage was not fully and fairly litigated in the heirship proceeding, and CES is not in with a party to that proceeding, the heirship judgment has no preclusive effect. See Buster v. Metro. Transit Auth. , 835 S.W.2d 236, 237 (Tex. App.-Houston [14th Dist.] 1992, no pet.)."], "id": "cf733a02-fb93-44f8-bc03-3c76c5b3f846", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As stated in Fox v. Fox , 247 Ark. 188, 444 S.W.2d 865 (1969) : The theory [of estoppel] is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid. .... [T]he defendant by reasons of his conduct will not be permitted to question *580its validity or the divorce; so far as he is concerned, he and the plaintiff are husband and wife. 247 Ark. at 199, 444 S.W.2d 865. In the present case, it was the decedent who initiated the [marriage] of himself and the appellant, and it was at his insistence that she attend the divorce hearing. The evidence shows that the appellant relied, in good faith, on the validity of Bill's divorce from Brenda and relied in good faith on the validity of her marriage to Bill for almost seven years. On our de novo review, Taylor v. Hill , 10 Ark. App. 45, 661 S.W.2d 412 (1983), we find that Bill was at least culpably negligent in not determining that his divorce decree was final before initiating his [marriage] with the appellant and that he would have been estopped to deny that the decree was final. See J.F. Hasty & Sons v. Hampton Stave Co. , 80 Ark. 405, 97 S.W. 675 (1906). By this holding, we do not declare the validity of common-law marriage in Arkansas. A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity can, and we hold that it does, under the facts in this case, require that the parties be estopped from denying the validity of a marriage. Fox , supra .... We hold that the estate and the heirs of Bill Brown are estopped from challenging the validity of Bill's marriage to the appellant because they stand in to the decedent. Because Bill himself would be barred from challenging the validity of the marriage, his heirs and his estate are in no better legal position to challenge the validity of Bill's marriage to the appellant. Brown , 28 Ark. App. at 129, 771 S.W.2d at 313-14."], "id": "f074ad52-6767-4482-ac2e-28f4c98651ef", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As to fraud and undue influence, objectants allege that the propounded instrument and any subscription and publication thereof was obtained by fraud and undue influence practiced by a designated person, named as a legatee, or by some other person or persons acting in concert or whose names are unknown. Allegations that the paper offered for probate was procured by fraud and undue influence practiced upon decedent have been held sufficient. (Matter of Hone, 226 App. Div. 715; Matter of Heughes, 144 Misc. 922.) Although it has been stated that the names of the persons claimed to have exerted the undue influence or fraud and the times and places when and where they were accomplished should also be alleged (Matter of *814Mullin, 143 Misc. 256, affd. 240 App. Div. 996, affd. 265 N. Y. 491), the courts have generally regarded as sufficient allegations of fraud and undue influence in general terms, and permitted the names of the persons claimed to have exerted the fraud or undue influence, or alleging that such persons were unknown, to be furnished by a bill of particulars. In any case, the objections filed herein allege the requisite facts with respect to the person or persons claimed to have exerted the alleged fraud and undue influence. The motion to strike out subparagraphs 1 and 3 of paragraph First of the objections is denied. (Matter of Broch, N. Y. L. J., July 27, 1956, p. 6, col. 7.)"], "id": "3adbd2f0-041b-4517-a148-4716124bb759", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["That branch of defendants\u2019 motion to dismiss the second cause of action against defendants for breach of implied warranty under the Warranty Act is granted as to Chrysler and denied as to Adzam.4 New York does not recognize a breach of implied warranty claim in which economic losses have been sustained absent of contract (see, Gordon v Ford Motor Co., 239 AD2d 156 [1st Dept 1997]). Despite plaintiff\u2019s attempts, privity between him and Chrysler cannot be based on the fact that Adzam is Chrysler\u2019s sales agent. Here, the language in the sales and service agreement between Chrysler and Adzam clearly provides that there is no principal/agent relationship between them and \u201cunder no circumstances is either party to be considered the agent of the other\u201d (see, Goodrich reply affidavit, exhibit A, sales and service agreement 36)."], "id": "e42e410c-d171-4792-8cc5-dc8a3ad8da51", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By contrast, a series of decisions at the trial and Appellate Term levels, in the First Department have held that, despite the absence of , a third party using or occupying real property may nevertheless be liable to the owner for use and occupation of the premises (City of New York v Fink, 130 Misc 620 [Sup Ct, NY County 1927], supra; Christatos v United Cigar Stores Co., 144 Misc 322 [App Term, 1st Dept 1932]; Matter of Radway, 144 Misc 352 [Sur Ct, NY County 1932]; Oboler v Miller, 146 Misc 509 [App Term, 1st Dept 1933], supra; Rand v Mintz, 69 Misc 2d 1055, affd 72 Misc 2d 621 [App Term, 1st Dept 1973], supra; see also, Gasoff Realty Corp. v Berger, 188 Misc 622, 626 [App Term, 1st Dept 1947, Hammer, J., dissenting opn], supra)."], "id": "cd2bdf7f-eb07-4f14-a362-9d5722f5979b", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The question of whether a landlord serving a proper notice can impose liability upon a hold-over for a greater rental than that reserved in the lease, the term of which had expired, where the tenant dissents from the increase mentioned in the landlord\u2019s notice, although referred to in counsel\u2019s brief, is not directly involved in the present case. This seems to be the effect of the dictum of the justice who decided the case of Machson v. Katz, N. Y. L. J., Jan. 11, 1921. It may be observed that the authority for the annunciation of that rule is the case of Lasher v. Heist, 126 Ill. App. 82. A reference to that case indicates that it is based upon the law as laid down in the earlier case of Hunt v. Bailey, 39 Mo. 257, in which the following is stated as the principle: \u201c If the tenant manifests his dissent from the terms proposed for increased rent, then no of contract *516will \"be created for the increased rent; and if he holds over, it will he considered on the terms of the lease by which he originally gained possession. In such case, the remedy of the landlord would 'be ousting the tenant from the possession, under the statute, if he objected to a continuance of the occupation according to the terms and conditions of the lease.\u201d"], "id": "6412d2dd-267e-428a-895f-dde7709d31df", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff\u2019s position as urged upon the court is that Maryland Casualty is a stranger to this action, that the release was never intended to release plaintiff\u2019s right against the corporate defendants and that there is no between Maryland Casualty Company and the alleged tort-feasors, County of Onondaga and Syracuse Constructors. The corporate defendants were not a party to any of the negotiations between the plaintiff and Maryland Casualty Company. They were total strangers to it and Maryland is not a party to this proceeding."], "id": "2fa3af9b-6165-4aca-a258-61d789da4486", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Persons not parties who have knowledge of the injunction may be bound by the injunction providing they are in with a party, such as officers or agents * c servants of a party acting in collusion with the party. (28 NY Jur, Injunctions, \u00a7 172.) This is so even if the initial process and injunction order were improperly served on the named party (Daly v Amberg, supra). It is noted in the instant case that service of the temporary restraining order and preliminary injunction was made upon the parties by service upon their attorneys. CPLR 6313 (subd [a]) authorizes the granting of a temporary restraining order without notice. CPLR 6313 (subd [b]) provide\u00a7 that a temporary restraining order be served in the \u00a33asrj3 manner as a summons unless the court orders otherwise. tjTnlike the ordinary ex parte proceeding for a temporary restraining order, however, the . parties herein, other than Lloyd, were served with notice of the application for both the temporary restraining order and. preliminary injunction and if the parties have had such notice and an opportunity to be heard \"no reason appears why the order cannot be served in the manner of any other interm^TaSe order \u2014 ordinarily by serving it with a notice of entry' fy mail upyn the defendant\u2019s attorney\u201d. (14 Standard Cff Prac Service, FIvisory Comm;, Notes to CPLR 6313, <\\p 93; see, also, 7A Weinstein-Korn-Miller, NY Civ Prac,/par 6313.06; 12 Carmody-Walt 2nd, FT Practice, \u00a7 78:78; r\u00bbf. Puro v Puro, supra.) The tekipoirr.ry restraining order and the preliminary injunction wero therefore properly served on the parties. It is noted that none of the parties, except Lloyd, has raised any objection as to proper servjce of the injunction order (CPLR 5104), but just as to timeliness of service. It is further noted that to the extent that the date of the temporary restraining order and shipment *870of paintings are the same, those paintings are not included as violative of the restraint."], "id": "48cf43ce-0e02-4c64-997e-2fd1245564e2", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiffs claims against Accurate sound in negligence. Accurate owed no duty to the plaintiff as the contract between Tilcon and Accurate contained \u201cno provision specifically creating an obligation to plaintiff as a member of *228the general public.\u201d (Haigler v City of New York, 135 AD2d 362, 363 [1st Dept 1987].) Even if the plaintiff had been lawfully present on the premises, plaintiff would not be entitled to recover absent of contract. (Buckley v I.B.I. Sec. Serv., 157 AD2d 645 [2d Dept 1990] [security company not liable where security guard armed only with \u201cwalkie talkie\u201d refused to intervene when plaintiff was injured in physical confrontation with defendant].) Accordingly, Accurate\u2019s motion for summary judgment on the plaintiffs\u2019 claims is granted."], "id": "f238e8c2-2542-4cf1-93c9-7b144a5de14a", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["McKinney\u2019s Consolidated Laws of NY, Book 1, Statutes \u00a7 94 requires that courts give effect to the plain and literal meaning *964of language contained in legislative enactments. The plain language of CPLR 3215 (g) (3) permits consideration of a default motion, without notice to the defendant, where there is an additional mailing of the summons in an appropriately marked envelope, and where the action is based upon the nonpayment of a \u201ccontractual obligation.\u201d The civil penalty sought by the plaintiff as a result of the defendant\u2019s violation of Administrative Code \u00a7 270.106 (12) is not a \u201ccontractual obligation,\u201d but rather, a statutory obligation of general applicability not borne of any between the parties."], "id": "3957e52a-a66f-4d5a-b712-701faa7ad80c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["With respect to the contention of the respondents that they are third-party beneficiaries of the regulatory agree*430ment: \u201cNew York follows the nearly universal rule that a third person may, in his own right and name, enforce a promise made for his benefit even though he is a stranger both to the contract and to the consideration. New York also follows the rule that the contract must have been intended for the benefit of the third person in order to entitle him to enforce it. Finally, New York follows the prevailing modern rule that there is no need for any consideration moving from the third person, any with him, or any obligation to him.\u201d (22 NY Jur 2d, Contracts, \u00a7 271 et seq., pp 129-130, citing 17 Am Jur 2d, Contracts, \u00a7\u00a7 302, 304, 308.)"], "id": "df1f36dd-8171-4ec7-857f-bd036e244a86", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In order for the defendant to avail itself of the defense that the injury was caused while doing stevedoring work and that it was due to the or negligence of the owner or managing officer, both of which causes defendant asserts to be excepted risks under the policy, it was incumbent upon the defendant to affirmatively plead and establish that the injury was incurred from a cause within the scope of these exceptions."], "id": "771c0105-3f4d-409e-ba86-8600d77a9abf", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiffs in Bily lost their investments in a company. They sued the company's auditors for purely economic losses. The Bily majority never mentioned Rowland. It noted the absence of was not an analytical impediment and immediately recited the Biakanja factors.6 ( Bily, supra, 3 Cal.4th at p. 397, 11 Cal.Rptr.2d 51, 834 P.2d 745.) The majority *124examined only the foreseeability element, however, and concluded the mere presence of a foreseeable risk of injury to third persons, was not \"sufficient, standing alone, to impose liability for negligent conduct.\" ( Id. at p. 399, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In arriving at this conclusion, the five-justice majority held: \"Even when foreseeability was present, we have on several recent occasions declined to allow recovery on a negligence theory when damage awards threatened to impose liability out of proportion to fault or to promote virtually unlimited responsibility for intangible injury.\" ( Id. at p. 398, 11 Cal.Rptr.2d 51, 834 P.2d 745.) The majority then observed, \"An award of damages for pure economic loss suffered by third parties raises the spectre of vast numbers of suits and limitless financial exposure\" ( id. at p. 400, 11 Cal.Rptr.2d 51, 834 P.2d 745 )7 and provided the *590following example: \"One frequently used illustration of the need to limit liability for economic loss assumes a defendant negligently causes an automobile accident that blocks a major traffic artery such as a bridge or tunnel. Although defendant would be liable for personal injuries and property damage suffered in such an accident, it is doubtful any court would allow recovery by the myriad of third parties who might claim economic losses because the bridge or tunnel was impassible.\" ( Bily, supra, at p. 400, fn. 11, 11 Cal.Rptr.2d 51, 834 P.2d 745.)"], "id": "4ba271a3-1358-4b90-8c36-559b97c23e35", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A subtenant is not in of contract or privity of estate with the landlord (Stewart v Long Is. R.R. Co., 102 *950NY 601; Century Paramount Hotel v Rock Land Corp., 68 Misc 2d 603) and thus is not liable to the landlord for performance of any of the convenants of the major lease (Tefft v Apex Pawnbroking & Jewelry Co., 75 AD2d 891). The sublessee\u2019s obligation is to the sublessor, who under common law and the specific language of the last sentence of subdivision 2 of section 226-b, remains personally liable to the landlord under the main lease."], "id": "416743cf-daf9-4a8f-a3e8-d5c4293e5d6c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff relies primarily upon the statement in the majority opinion of the Court of Appeals in Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432, 436) that: 11 A breach of warranty * * * is not only a violation of the sales contract out of which the warranty arises but is a tortious wrong suable by a noncontracting party whose use of the warranted article is within the reasonable contemplation of the vendor or manufacturer.\u201d However, the characterization of the alleged breach of warranty as a \u201c tortious wrong \u201d was not made to sustain jurisdiction under CPLR 302 (subd. [a], par. 2). Rather it was intended to furnish a logical basis for obliteration of the old requirement of \u2018\u2018 of contract \u201d as an element of a cause of action for breach of warranty in the sale of personal property. For in the Goldberg case, the court permitted suit to recover damages for the death of one of the passengers in the crash of an airplane against the manufacturer of the airplane for breach of warranty of fitness."], "id": "9cf60877-b466-467e-8505-d8a7e5263197", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But where, as in the case under consideration, there is no or connection between the new party and the original defendant, where he may not know, and has no interest to support \"the title of the new party, it seems to me that it would he a very unjust rule which would oblige the new party to abide by the testimony taken while he was a stranger to the suit, and would prevent his producing witnesses to support the title he sets up."], "id": "2b97f25a-3b6c-4b12-8e11-4368360f2c3c", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The subsisting between landlord and tenant, will not authorize the tenant to have surveys made of the lands he holds from him, so as to bind the interest of the landlord. But if the survey is of land not in *503Ms tenure, it is an interference without even a pretence of right. The land he held as tenant might have been in another town or another county, and there is nothing in the verdict to attach it to the land in question."], "id": "80e0728c-7744-4ae5-a06b-28ea81b70105", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Inasmuch as each complaint alleges a good cause of action in negligence, it is not necessary to pass upon the causes of action based on a breach of warranty set forth in the pleadings. It may be appropriate, however, to mention that such an action may not be maintained in the absence of of contract between the parties thereto. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Campo v. Scofield, 301 N. Y. 468, 471.) Unlike the actions pleaded against defendants Helene Curtis Sales, Inc. and Occhino \u2014 both of which contain allegations that the named defendant sold to the plaintiff \u2014 there is nothing in the complaint against Cassalia, the wholesaler, to indicate any privity between him and the plaintiff. However, the court does not pass upon the sufficiency of the warranty causes of action at this time."], "id": "47d296b7-4a9d-44dd-ab91-56c8b50b5ba6", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201ccrucial inquiry focuses upon the juncture at which the relationship between the party to the first action and the person claimed to be his or her privy is established. In the assignor-assignee relationship, must have arisen after the event out of which the estoppel arises. Hence, an assignee is deemed to be in privity with the assignor where the action against the assignor is commenced before there has been an assignment\u201d (id. at 486-487 [emphasis added]). The reasoning for this determination is set forth in the very next sentence: \u201cIn that situation, at the time the assignee succeeded to the rights of the assignor . . . the assignee is charged *73with notice that his rights to the assignment are subject to [a] competing claim\u201d (id. at 487)."], "id": "05b78577-db3f-471d-9c30-578014e005f8", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["11 A similar rule exists in tort actions where a servant who was the immediate actor is sued on his personal liability for negligence. The action results in a judgment for defendant. Plaintiff then sues the master. There is no between a master and servant except in the rare instances where the master directs the servant\u2019s acts. (Castle v. Noyes, 14 N. Y. 329.) If the former did not control the acts of the latter at the time the transaction occurred, and his instructions were to act with care, the master\u2019s liability depends upon the doctrine of respondeat superior. The liability is purely of a derivative or secondary character. In such cases the action is barred by the previous judgment in favor of the servant. (Snyder v. Trumpbour, 38 N. Y. 355; Pangburn v. Buick Motor Co., 211 id. 228; Hein v. Sulzberger & Sons Co., 175 App. Div. 465; New Orleans, etc., R. R. Co. v. Jopes, 142 U. S. 18; Bigelow v. Old Dominion Copper Co., 225 id. 111, 127.)"], "id": "d1961c6d-8be9-4d0a-ab28-71ce730ca644", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is a class of cases of which Lawrence v. Fox (20 N. Y, 268) is a good illustration, which holds that where one person, for a valuable consideration, makes a promise to another for the benefit of a third, that third person may maintain an action on the promise; but the Court of Appeals has recently decided in the case of Vrooman v. Farner, not yet reported, that \u201c to give a third party who may derive a benefit from the performance of the promise a right of action there must be, 1st. An intent by the promisee to secure some benefit to the third party; and, 2d. Some between the two, the promisor and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him an equitable claim to the benefit of the promise or an equivalent from him personally. There must be a sufficient consideration passing between the promisor and his immediate promisee, and then the third person must adopt the promise and then bring himself into privity with the promisor, but not otherwise. If there is no consideration, the promise is void as in all other cases.\u201d"], "id": "8edaa3e3-1165-46b9-b1f2-e029530c286f", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is suggested, however, that there cannot be a joint judgment for damages against all the defendants. That is probably so. There is no of contract between the under-tenants and the plaintiff, and there cannot be a recovery against them of damages for the breach of the lessees\u2019 contract. But I cannot see any difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code (\u00a7\u00a7 118, 274), and is constantly exercised by the courts even in actions at law."], "id": "62c366de-4748-4e93-ab5e-4fa328d2a580", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While the recital by the corporation in the consent and acceptance that it 1 \u2018 makes no representation as to the physical condition of the apartment \u2019 \u2019 is relevant to an action for fraud and misrepresentation, a nuisance may exist although nothing whatever has been said about it. Moreover, the acceptance by plaintiffs of the premises \u201cas is \u201d appears in the contract between them and the Greens, which is of no avail to the defendant corporation which was neither a contracting party, in , nor a third-party beneficiary. (Lorillard v. Clyde, 122 N. Y. 498; Atlantic & Pacific Wire & Cable Co. v. Duberstein Iron & Metal Co., 136 N. Y. S. 2d 736.) Further, representations or statements by one party or the other as to the condition of the apartment cannot bar a claim for a condition arising outside the apartment."], "id": "8543aec9-6731-47ff-bc51-dceedae60d72", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Courts have addressed with respect to defendants who, like MLLF, were agents and attorneys and, like SPS, were mortgage servicers. In Kimball v. Orlans & Associates , 651 Fed. Appx. 477, 481 (6th Cir. 2016), the Court of Appeals for the Sixth Circuit barred the plaintiffs' claims against Orlans & Associates, a law firm that served as Chase's agent and attorney in connection with foreclosures. The Sixth Circuit held that \"[t]he Attorney Defendants are also in privity with Chase concerning mortgage foreclosure by virtue of their position as foreclosure counsel.\" Id. Similarly, in finding that a mortgage servicer acts as the agent of the mortgagee to effect collection of mortgage payments, the First Circuit noted that \"it will be a rare case in which those two parties are not perfectly identical with respect to successive suits arising out of a single mortgage transaction.\" RG Fin. Corp. , 446 F.3d at 187. This is not one of those rare cases."], "id": "e02dbc2f-a7b5-42e2-ae2a-e3095497dfa8", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Here, the undisputed material facts show that MLLF was acting as attorney for Chase and was Chase's appointed successor trustee to foreclose on Topchian's property. The undisputed material facts also show that SPS became the sub-servicer of Topchian's loan under a 2013 Limited Power of Attorney. Topchian has not alleged that either MLLF or SPS acted in any other capacity in their dealings with him. Therefore, both MLLF and SPS were in with Chase and are identical to Chase for purposes of res judicata. Point V also is denied with respect to MLLF and SPS."], "id": "0772986f-a5e8-4e4a-ae0a-e68b2e1b432a", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the case at bar, plaintiff has made a sufficient factual demonstration of defendants\u2019 awareness that Penvest was going to use the financial statements for the purpose of loaning money to Etna and understood that Penvest was relying thereon. This satisfies the requirement of showing the functional equivalent of necessary for a malpractice action against an accountant. However, having cleared this hurdle, plaintiff has failed to overcome the obstacle of submitting evidentiary detail that the compilation financial statement was, in fact, negligently prepared. Conspicuous by its absence is any affidavit by an accountant or other similar expert sufficient to raise a triable issue as to whether defendants\u2019 conduct departed from the level of care required of an accountant rendering a compilation in such circumstances (see, Spitzer v Ciprut, 80 AD2d 891 [2d Dept 1981], lv denied 54 NY2d 603 [1981]; Amendolare v Piontkowski, 118 AD2d 529 [2d Dept 1986]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The conclusory affidavit by plaintiff\u2019s attorney (who is not an accountant) stating what plaintiff \"will prove\u201d, and that \"[attaching a compilation\u201d cover letter does not absolve them of the liability they undertook on this particular transaction, and that \"[i]t is beyond credibility\u201d that this court will accept *778defendant Ross\u2019 statements; and that \"Something had to have been said\u201d; and that defendants \u201cshould not be allowed to use the technical language contained in a cover letter * * * they prepared to shield themselves from liability\u201d, is more appropriate for a brief or for a summation before a jury. However, for purposes of a motion for summary judgment, it is insufficient and is of no probative value. Since plaintiff has failed to demonstrate the existence of any factual issues by submitting evidence of probative value, that branch of the motion seeking summary judgment dismissing the second cause of action is granted and it is dismissed."], "id": "d9c8426b-d54e-4183-88dd-547a874a4d4a", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This provision of the statute was made for the exclusive benefit of the wife to prevent her from being controlled in the disposition *408of her property, by her husband, and secured to her the right of acting with complete and perfect freedom in the disposition of her property rights. And if she did not, but on the contrary acted under the compulsion of her husband, it' was for her benefit that the provision was made that her estate should not pass without this acknowledgment. She, and those claiming under her, might, where this certificate was required to be made, and not in fact made, reclaim or recover the property, attempted to be conveyed without it. But neither of the two defendants, against whom the verdict was directed, stand in this relation to this property. The defendant Brady, who was in its possession, was there under a lease executed to him by John Townshend on the 15th of July, 1874., The only title which the lessor appears to have acquired was by virtue of a deed executed to him by Bushnell Stevens on the 30th day of October, 1868. The grantor in this deed is not shown to have acquired any right or interest to the property under Mrs. Pool, or any party claiming to derive title through her deed or otherwise. The other defendant, Lockwood, was made a party as a claimant in reversion, or by way of remainder under the authority of section 1503 of the Oode, and had no greater interest. He derived his title in part under a deed executed to him by William A. Cunningham on the. 21st of November, 1882, and in part under Robert L. Roe, the grantee of J ohn Townshend. These parties were all strangers to the title, apparently claiming the property adversely to it, and they were, therefore, not in a position to object that Mrs. Pool had not parted with her title to the property by the deed executed and delivered by her, and for a valuable consideration to Johnson. They stood in no with her or with either of the persons through whom the plaintiffs derived their title to this property, and were not in a condition to defeat that title by means of this informality, if in fact it was such, in the execution and delivery of this deed. The law certainly will not tolerate a mere stranger, without right, in seizing and taking possession of the property of others where his power to do so is exclusively dependent upon a mere informality in the legal title to which no person through whom it has been derived, or through whom it may hare passed, has presented the slightest objection. As long as no actual claimant of the title, representing the person executing the deed, *409without strict conformity to tbe law, denies the right of the grantee, mere strangers should be precluded from presenting the objection."], "id": "25fbf251-5926-4674-8993-cf0cd7f798c0", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To the defendants\u2019 argument that the first and second causes are insufficient because there is no between .the parties and that plaintiffs arc at most incidental beneficiaries whom there was no intention by the parties to the contract to benefit, plaintiffs respond that they are not suing on that contract (although .the complaint says that they are) but on a different oral contract made at the time the roadway was conveyed to Westbury Park Industries, Inc."], "id": "b26860ed-f585-4e7e-9c3b-82b6e81b6a53", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in , whether or not the tribunals or causes of action are the same\u201d (Breslin Realty Dev. Corp., 72 AD3d at 263). Here, respondent\u2019s subrogor and petitioner litigated, in an earlier court proceeding, the very same claim heard by the arbitrator. Specifically, a court heard the very same facts relating to subrogor\u2019s claim that petitioner was liable for her injuries. A jury evaluated these facts and made the determination that someone other than petitioner was 100% liable for subrogor\u2019s injuries. Hence, the claim brought by respondent in the arbitration, standing in the shoes of subrogor, arose out of the same factual transaction and had been fully litigated and determined by a court prior to the arbitration hearing. The arbitrator\u2019s decision to not give preclusive effect to a final determination made by a court was irrational (Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644 [1st Dept 2011]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420 [1st Dept 1998] [based on the principle of res judicata, an arbitrator exceeds his power by conducting a hearing and making an award premised on the same claim as a prior award]; see also Matter of Pinnacle Envt. Sys. [Cannon Bldg. of Troy Assoc.], 305 AD2d 897 [3d Dept 2003] [second arbitration was barred by the doctrine of res judicata as it involved the same parties and precisely the same issues]; Matter of State of *710N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269 [3d Dept 2007]; Matter of New York Tel. Co. v State Farm Ins. Co., 137 Misc 2d 376 [Sup Ct, NY County 1987]). At bar, since the claim against petitioner had been litigated and a court had rendered a final judgment after jury verdict, by not giving this final judgment and verdict res judicata effect, the arbitrator disregarded applicable rules of law."], "id": "f91908d8-6e45-4cf1-a269-969fda64e827", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But the right of this plaintiff to maintain an action against these defendants is very earnestly attacked by their attorney herein, principally upon the ground that there is no \u201c of contract \u201d between his clients and this plaintiff. This brings ' up what I regard as perhaps the most serious point in this case. It is true that the appeal bond was not in form given to this plaintiff nor did his name appear therein; but I am not prepared to decide that, at least indirectly, it was not given for his benefit. \u201c Privity of contract \u201d may, I think, involve more than the mere question of whether or not somebody\u2019s name may appear in a writing. In this case the appeal bond, which as Schedule A is made a part of the complaint, was in the usual form, really in the form of an undertaking, and does not run to anybody in particular. Among other things, its concluding paragraph is to the effect that the sureties \u201c ateo undertake that if the judgment so appealed from, or any part thereof, is affirmed, or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it shall be affirmed.\u201d This bond was doubtless executed at the instance and for the benefit of the defendant Harrison, and for the purpose of preventing his wife, the plaintiff, through her attorney, the plaintiff in this action, from collecting the judgment which had been awarded against him. I repeat that the bond did not in form run to her alone, or to her at all, and I think it should be held to redound to the benefit of any one interested in that situation, that is, in the *389collection of that particular judgment. The bondsmen made it impossible to collect that judgment then; and in order to do so they agreed, generally, that if it was affirmed in whole or in part, they would pay the judgment. The case is, therefore, to be differentiated from those cases in which a bond or undertaking runs to some particular person as in the case of Leary v. New York Central R. R. Co. (212 App. Div. 689). To hold otherwise would be' to rob the attorney of any protection he has, and any right which he has, in a judgment which he has obtained by his efforts, in every case in which an appeal is taken."], "id": "56648683-65a9-4fb9-b541-26b1989673ff", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The city\u2019s claim of lack of is inappropriate. Having undertaken to changing a welfare recipient\u2019s rent allotment to two-party status and promising, in writing, to advise landlord of any change in that status, the DSS is liable to landlord for any loss incurred by landlord in reliance thereon. To say there was no privity is to close our eyes to the truth. At the very least, landlord is a third-party beneficiary of that part of the relationship between DSS and the welfare client. (Lawrence v Fox, 20 NY 268.) In addition, we think the city is liable to landlord in tort. One who, by its wrongful conduct induces another to act to its detriment should be answerable in damages to the aggrieved party. It is basic tort law that one who induces another to breach its contract is liable to the wronged party regardless of privity. The tests for the tort of inducing breach of contract are \"(1) the existence of a valid contract * * * (2) the defendant\u2019s knowledge of that contract; (3) the defendant\u2019s intentional procuring the breach * * * (4) damages\u201d. (Israel v Wood Dolson Co., 151 NYS2d 1, 5.) In this case, at the very least, we have (1) a month-to-month lease (contract), (2) knowledge of the lease by the defendant, as shown by two-party checks, (3) a unilateral termination of two-party checks without notice to landlord, and (4) damages in the amount sued for."], "id": "cc79a383-6198-48e4-8120-e315c57c4ac6", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["These cases do not speak to the issue tendered by McLean, \u201c Breach of leasing agreement \u201d, although they do point up the absence here of the two elements of proof just noted. A lessor or bailor for hire impliedly warrants that the subject of the lease or bailment is fit for its intended purpose during the term of the lease or bailment. Breach results in liability for the damages sustained by the lessee or bailee. (Covello v. State of New York, 17 Misc 2d 637; Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; Gambino v. Lucas & Co., 263 App. Div. 1054.) An employee of the lessee or bailee may also recover even though, as to him, no exists. (La Rocca v. Farrington, 301 N. Y. 247, supra, extending the doctrine of MacPherson v. Buick, 217 N. Y. 382, against \u201c suppliers \u201d, i.e., lessors or bailors for hire; MacKibbin v. Wilson & English Constr. Co., 263 App. Div. 1014, mot. for lv. to app. den. 288 N. Y. 738; see Outwater v. Miller, 3 Misc 2d 47; Thomas v. Leary, 15 A D 2d 438.) Whether liability extends to bystanders and strangers, not employees of the lessee or bailee, on the theory of strict liability in tort, founded upon breach of implied warranty of fitness, is unresolved in New York. (Berzon v. Allen Motors, 23 A D 2d 530; Greenberg v. Lorenz, 9 N Y 2d 195; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432.) Although these cases involve only the liability of manufacturers and sellers, their rationale would seem to apply with equal force with respect to lessors or bailors. However, as already noted, the liability of defendants to plaintiff here was not founded upon breach of warranty or strict liability in tort. Accordingly, McLean\u2019s reliance on these theories of liability as a basis for its cross complaint is misplaced."], "id": "d03df5f6-8264-4840-b0b4-58b6025ff854", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"Generally, ' \"[r]es judicata\" describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in with them.' \" ( Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226, 103 Cal.Rptr.3d 124.) Res judicata bars a subsequent claim when \" '(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.' [Citation.] Upon satisfaction of these conditions, claim preclusion bars 'not only ... issues that were actually litigated but also issues that could have been litigated.' \" ( Ibid . )"], "id": "fa7debd6-eaa9-4ef2-b904-89bcbe65e5d8", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Generally speaking, there has been a hesitancy on the part of the courts to extend liability beyond reasonable limits (see, Palka v Servicemaster Mgt. Servs. Corp., supra, at 586-587). As stated in Strauss v Belle Realty Co. (65 NY2d 399, 402-403 [1985]):* \"But while the absence of does not foreclose recognition of a duty, it is still the responsibility of the courts, in fixing the orbit of duty, 'to limit the legal consequences of wrongs to a controllable degree\u2019 (Tobin v Grossman, 24 NY2d 609, 619; see also, Howard v Lecher, 42 NY2d 109), and to protect against crushing exposure to liability (see, Pulka v Edelman, 40 NY2d 781, supra; Ultramares Corp. v Touche, 255 NY 170). 'In fixing the bounds of that duty, not only logic and science, but policy play an important role\u2019 (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055; see also, Becker v Schwartz, 46 NY2d 401, 408). The courts\u2019 definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.\u201d"], "id": "d7af227e-0b7b-467c-a363-01ee40a0c9e6", "sub_label": "US_Terminology"} {"obj_label": "privity", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c 4. That the plaintiffs\u2019 original Complaint and Amended Complaint allege the following causes of action: (1) seeking to recover for negligence; (2) seeking to recover for breach of *306warranty; (3) alleging strict liability and tort; (4) a derivative cause of action on behalf of the plaintiff\u2019s wife based on the preceding three causes of action. * * * \u201c 7. Any cause of action in tort whether based upon strict liability or ordinary negligence has been barred at the latest by the expiration of more than three years from the date of the accident which occurred on June 27,1968, namely June 27, 1971. Obviously, the plaintiff can not now institute a new action against the defendant for strict liability and tort or for negligence because the statute of limitations prohibits it. At the same time, the plaintiff has no pending\u2019 action and Complaint which is subject to amendment because his Complaint, in its entirety, has been dismissed as to all causes of action. \u201c8. It is now over 10 years since the date of the sale of the machine referred to in the Complaint from the defendant to the Endicott Johnson Corporation. It is 5% years since the date of the occurrence alleged to have caused injury to the plaintiff. It is over 4 years since the Summons in the action originally was served. To create a completely new cause of action and new Complaint after the lapse of such time can not be justified. \u201c 9. It is respectfully submitted that the Court is without the power to supersede the prior Order dismissing the cause of action for strict liability and tort which was affirmed by the Appellate Division and leave to appeal to the Court of Appeals denied. There is nothing in the case of Codling vs. Paglia, 32 N. Y. 2d 339, which in any way reflects a determination of the Court of Appeals to overrule the statute of limitations question which has already been passed upon in this case by an Order of the Appellate Division which the Court of Appeals refused to review.\u201d It appears that a significant distinction is unfolding between \u201c strict liability in tort \u201d or \u201c strict tort liability \u201d (Mendel v. Pittsburgh Plate Glass Co., 25 N Y 2d 340, 343, 345) and \u201c strict products liability \u201d (Codling v. Paglia, 32 N Y 2d 330, 343), and that * \u2018 a new cause of action for strict products liability, independent of warranty \u201d has been established (Rivera v. Berkeley Super Wash, 44 A D 2d 316). As noted in Mendel (supra, p. 345), \u201c strict liability in tort and implied warranty in the absence of are merely different ways of describing the very same cause of action \u201d, and the statutory time limitation is computed from the time of sale. The statutory time limitation for the commencement of a strict liability in tort action may, and at times does, expire before the injuries complained of are sus-*307tained. The new cause of action, \u201c a strict-products-liability cause of action is founded on a tortious wrong and thus is governed by accrual and limitation rules applicable to claims sounding in tort \u201d and \u201c the three-year Statute of Limitations applicable to actions to recover damages for personal injuries, with accrual of the action at the time of injury, is applicable \u201d (Rivera, supra, p. 325). Whether Codling establishes a new rule concerning the quantum of proof required in a products liability case, or whether it restated the rule which the court had approved in Market v. Spencer (5 N Y 2d 958, affg. 5 A D 2d 400), need not, under the circumstances, be considered in determining the present motion. Contributory negligence is a defense to an action for strict products liability. In Codling v. Paglia (32 N Y 2d 330, 335, supra) the court wrote, inter alia: \u201c We hold that today the manufacturer of a defective product may be held liable to an innocent bystander, without proof of negligence, for damages sustained in consequence of the defect \u201d, and stated (p. 342): \u201c We accordingly hold that, under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.\u201d"], "id": "1b74c09c-c6d1-4a08-8603-575807dd25a1", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The basic, and in my view the only sustainable, thrust of the respondent mother\u2019s claim of unconstitutionality, lies in the complementary propositions (A) that the Court of Appeals has established that no natural parent can be permanently deprived of custody of her young infant child without parental consent, absent , unless that parent is \u201c unfit \u201d (cf. People ex rel Kropp v. Shepsky, 305 N. Y. 465; People ex rel. Portnoy v. Strasser, 303 N. Y. 539; Matter of Bistany, 239 N. Y. 19), and (B) that no such permanent deprivation can be decreed where a parent is fit enough to care for her other young children, unless her unfitness for this one is proved in the same manner as required by another statutory scheme leading to a finding of \u201cpermanent neglect\u201d under the Family Court Act (art. 6, part 1). Perhaps unfitness is not the test under the \u201cpermanent neglect\u201d provisions of the Family Court Act, but rather that the \u201c permanency \u201d of the neglect, that is to say, a true intention permanently to \u201cabandon\u201d, or permanently to be unable to care for, the infant is requisite to be inferred from the provisions of the Family Court Act. That statute expressly mandates the custodial agency to try to encourage and strengthen the parent-child relationship. Under sections 611, 614 and 622 of the Family Court Act, the agency must plead and prove that the parent has substantially and continuously failed to maintain contact with the child or the agency with whom the child was placed for a period of more than one year and that the parent has failed to plan for the future of the child, although physically and financially able to do so, \u201cnotwithstanding the agency\u2019s diligent efforts to encourage and strengthen the parental relationship \u201d. The 1971 amendment of section 611 of the Family Court Act continues the one-year period, but excuses proof of diligent efforts to encourage and strengthen the parent-child relationship when such efforts are detrimental to the welfare of the infant. (L. 1971, ch. 901.)"], "id": "e2ba4756-dc30-4f62-9ca7-66b646f97b90", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Ordinarily, the surrender of a lease is accomplished by the vacating of the premises and the return of the keys to the landlord (see Matter of Eight Cooper Equities v Abrams, 143 Misc 2d 52 [1989]). However, when a tenant abandons, a landlord may also elect to treat the as a surrender of the tenant\u2019s interest (see e.g. Lewis v Cathedral Parkway Towers, 17 Misc 3d 129[A], 2007 NY Slip Op 51935[U] [App Term, 1st Dept 2007]; 2 Dolan, Rasch\u2019s Landlord and Tenant\u2014 Summary Proceedings \u00a7 26:6 [4th ed]; see also tenBraak v Waffle Shops, Inc., 542d 919 [4th Cir 1976])."], "id": "f501f3ab-c74b-4529-b34c-02a650eaee13", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We now review whether Mother failed to support her children for four consecutive months immediately preceding her incarceration. Tenn. Code Ann. \u00a7 36-1- 102(1)(A)(iv)(a). At the outset of DCS\u2019s involvement with this family, Mother reported that her last employment was ten years ago with Waffle House. According to Ms. Williams, Mother claimed to have worked several jobs during DCS\u2019s involvement with the family: a phone sex operator; a receptionist at a moving company; an employee with a sitting company; and an employee with a cleaning service. Despite these claims, DCS never received verification of Mother\u2019s employment at any time during its three years of involvement with this family. In a CASA report from October 2020, Dr. Wood noted that Mother had stated on several occasions that she wanted to start paying child support. However, Dr. Wood further noted that there was no record of any payments or any arrangements to begin payments. Throughout DCS\u2019s involvement with this family, Mother was consistently required and reminded to obtain employment with an income sufficient to provide for her needs and her children\u2019s needs. In July 2019, approximately five months before the applicable four-month period, the third permanency plan noted that Mother still needed to obtain employment and provide a check stub in order to verify her employment. Following this reminder, Mother did not report that she had obtained employment until around April 2020, which was after her incarceration and after the subject petition was filed. Ms. Williams testified that there should not have been any excuse for Mother not to seek a job because DCS provided her with bus passes. Ms. Williams testified that, to her knowledge, Mother had not provided any income or support from her various alleged jobs to help with her children\u2019s care. The juvenile court credited the testimony of Ms. Williams. \u201cBecause the trial court is able to observe witnesses as they testify, appellate courts afford deference to the trial court\u2019s credibility assessments of live, in-court testimony.\u201d Phillips v. Hatfield, 624 S.W.3d 464, 474 (Tenn. 2021) (citing Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999)). Given - 18 - Ms. Williams\u2019 testimony concerning Mother\u2019s continual failure to obtain employment, provide employment verification, and provide income and support for her children, we find that Mother failed to support her children. Mother has failed to provide financial support for her children since DCS became involved in March 2018, which includes the four months immediately preceding her incarceration in January 2020. Therefore, we affirm the juvenile court\u2019s finding that DCS met its burden of proof on the ground of by an incarcerated parent for failure to support."], "id": "9ab20c57-a3f4-4643-85c3-41673185e1fe", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although the testatrix may have been entitled to a decree of separation prior to 1937, or as late as 1940, she made no effort to obtain it, and apparently did not want it, for she took petitioner back and lived with him as husband and wife until her death. By April, 1947, any cause of action which she may have had arising prior to 1940 was lost to her by lapse of time. (Brauch v. Brauch, 142 Misc. 464.) Respondent, therefore, must stand on the marital situation in the subsequent years of testatrix\u2019 life, during which time petitioner cohabited with her. No question of is presented, therefore, but only the question of whether the petitioner neglected or refused to provide for his wife."], "id": "a97f7e15-c21b-4201-b1b5-3d9c4c3a5643", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is clear that the appellants understood that they would be required to pay $250 each if Richards should abandon his family. The mistreatment and of his family by Richards has been well established, and one would prefer to enforce the undertakings which the appellants are morally bound to fulfill, but legal basis for their enforcement does not exist. Such undertakings may be forfeited only by the failure to make weekly payments ordered by the magistrate. No weekly payments have been ordered."], "id": "68b5059d-9fa1-40e8-9e5e-d7f8e8a8eb27", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Perkins asserts two points on appeal. In Point One, Perkins argues that the motion court clearly erred in failing to conduct an inquiry following appointed counsel's filing of a statement in lieu of an amended motion. In Point Two, Perkins maintains that the motion court clearly erred in denying the claim in his pro se amended motion that his plea was involuntary because the plea court failed to inform him of the range of punishment."], "id": "6a05ba41-23c0-4efe-a0bf-a3cc31870602", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under 8 USC \u00a7 1101 (a) (27) (J) and 8 CFR 204.11 (c), state juvenile courts are charged with making a preliminary determination of the child\u2019s dependency and his or her best interests, which is a prerequisite to an application to adjust status as a special immigrant juvenile. \u201cThe SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or , and a child\u2019s best interests\u201d (J.J.X.C., 318 Ga App at 425, 734 SE2d at 124 [citation omitted]; see also In re Adoption of Peggy, 436 Mass 690, 699, 767 NE2d 29, 37 [2002], cert denied sub nom. S.T. v Massachusetts Dept. of Social Servs., 537 US 1020 [2002]; In re Juvenile 2002-098, 148 NH 743, 748, 813 A2d 1197, 1201 [2002]; Y.M., 207 Cal App 4th at 908, 144 Cal Rptr 3d at 66; B.F., 207 Cal App 4th at 629-630, 143 Cal Rptr 3d at 735-736)."], "id": "d72a912d-a188-4d18-9dde-6c3409b356d4", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["2 The government\u2019s notice of appeal, filed December 29, 2020, sought to appeal both the October 7, 2020 order granting Wright\u2019s \u00a7 2255 motion and the November 3, 2020 amended criminal judgment. However, the government now states it challenges only the \u00a7 2255 order and not the amended criminal judgment. In light of the government\u2019s express , we need not address Wright\u2019s argument in response to this Court\u2019s Jurisdictional Question that the government\u2019s notice of appeal was untimely as to the amended criminal judgment and DENY AS MOOT Wright\u2019s construed motion to dismiss the government\u2019s appeal from the amended criminal judgment. 3 When reviewing a district court\u2019s denial of a \u00a7 2255 motion, we review ques- tions of law de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Similarly, we review de novo whether procedural default precludes a \u00a7 2255 movant\u2019s claim, which is a mixed ques- tion of law and fact. Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021). USCA11 Case: 20-14869 Date Filed: 01/14/2022 Page: 8 of 22"], "id": "47d334dc-e658-4cd3-83e6-290822caf3f4", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There can be no doubt that' the words \u201c final adjudication by the supreme court denying alimony in a \"separation action \u201d embrace a case where a decree of separation was entered in favor of the husband, either upon his complaint or counterclaim. In such type of case it is manifest, and well settled, that the Supreme Court judgment relieves the husband of the duty to support the *837wife except to the residual extent recognized and enforceable under the statutory provision just quoted, (see Anonymous v. Anonymous, 20 N. Y. Supp. [2d] 514.) Typical decisions in that category are Matter of Chandler v. Chandler (241 App. Div. 390); Gilgun v. Gilgun (N. Y. L. J., May 2, 1935, p. 2249); Cosgrove v. Cosgrove (23 N. Y. Supp. [2d.] 586), and Anonymous v. Anonymous, (supra.) But, in my opinion, despite certain language (hereinafter analyzed) in Matter of Collins v. Collins (245 App. Div. 612) and Myers v. Myers (251 id. 267), different considerations are applicable to a case where there was only a dismissal of the wife\u2019s separation action complaint unaccompanied by an affirmative finding of of the husband by the wife or cruel and inhuman treatment of him by her or such conduct on her part towards him as may render it unsafe and improper for him to cohabit with her and a consequent reduction of the husband\u2019s support duty to one of merely indemnifying the community against the burden of her support as a public charge, (cf. People v. McCarthy, 257 N. Y. 567; affg., 139 Misc. 746; Hodson v. Holmes, 162 id. 226; Aronowitz v. Aronowitz, 159 id. 103; Hodson v. Picker, 159 id. 356; People v. Schenkel, 258 N. Y. 224.)"], "id": "529652ba-75e8-4a21-ac5f-d2ca2ec8c62e", "sub_label": "US_Terminology"} {"obj_label": "Abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" has been defined as the desertion of a spouse with intent not to return or with an intent that the marriage should no longer exist. (Matter of Hess, 143 Misc. 335, 336; Matter of Bingham, 178 Misc. 801, affd. 265 App. Div. 463.) Matter of Bingham (supra) involved the validity of an asserted right of election by a husband against whom decedent during her lifetime had obtained a Nevada divorce decree which the Surrogate determined to be invalid. The court held that the husband by having remarried and having accepted the benefits of such divorce decree and having thereby recognized the validity of such subsequent marriage, could not retain the benefits which would have been derived from the continued existence of the prior marriage, citing Mirizio v. Mirizio (242 N. Y. 74). The court also determined that subdivision 5 of section 18 of the Decedent Estate Law relating to the abandonment of a wife, must necessarily embrace an abandonment of the marriage or of the marital status as a forfeiture of the right to elect against a will. There can be no clearer or more convincing abandonment of the marital status, or of a spouse, than the solemnizing of a ceremonial marriage to another followed by open and continuous cohabitation and the birth of issue of the subsequent union. The abandonment would not be negated by reason of any invalidity of the subsequent marriage. Although abandonment cannot be predicated upon a voluntary separation or living apart (Matter of Stolz, 145 Misc. 799), it does not follow that such a separation prevents a subsequent abandonment within the meaning of subdivisions 4 or 5 of section 18 of the Decedent Estate Law. (See Matter of Bingham, supra.)"], "id": "7b6c0690-3564-4627-a0e3-50983e678473", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Hernandez too had said the bag was not hers. But she clearly had no rights of privacy therein (or in Castro\u2019s small bag) even before any . The placing of property in the bag of another cannot give one a reasonable expectation of privacy in such bag. (Rawlings v Kentucky, 448 US 98; People v Buckley, 81 AD2d 511 [1st Dept].)"], "id": "7a10944b-af57-48e6-b2f4-70164789fb3d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The one exception to the attorney\u2019s entitlement to protect his or her fee by the assertion of a lien is the situation presented where the attorney is discharged for cause, i.e., as a result of attorney misconduct or the unjustifiable of the representation, in which case neither a retaining lien nor a charging lien may be asserted (see, Klein v Eubank, 87 NY2d 459, 464 [1996]; Teichner v W&J Holsteins, 64 NY2d at 979, supra; see also, Campagnola v Mulholland Minion & Roe, 76 NY2d 38, 44 [1990]; Matter of Montgomery, 272 NY 323, 326 [1936]; Holmes v Evans, 129 NY 140 [1891]; Shalom Toy v Each & Every One of Members of N.Y. Prop. Ins. Underwriting Assn., 239 AD2d 196, 198 [1st Dept 1997]). Whether an attorney was discharged with or without cause must be determined by a timely hearing (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra; Matter of Clark [Vitiello], 261 AD2d 824 [4th Dept 1999]; Marschke v Cross, 82 AD2d 944 [3d Dept 1981]). If the discharge was for cause, the attorney may not recover his or her compensation (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra). If it is determined that the discharge was without cause, and occurred before the completion of the attorney\u2019s services, the amount of compensation must be determined on a quantum meruit basis (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra)."], "id": "0bc202fb-fdde-4471-8751-58d7782f53fe", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The referee in the present case appears to have assumed that an of some kind was necessary to entitle the plaintiffs to recover. He states in his report that the plaintiffs, \u201cby reason of\u201d an abandonment which he'had previously found as a fact, and them payment to the consignees of the amount of their loss, \u201c as well \u201d (meaning, undoubtedly, \u201c as much \u201d) as by virtue of the assignment to them, acquired the rights of the consignees. That he meant that such rights were acquired by either means, separately and indifferently, I think evident from his contrasting the phrases \u201cby reason of\u201d and \u201c by virtue of,\u201d as well as his use of the word \u201c subrogated,\u201d to express the mode of acquiring such rights, which is not appropriate to an assignment, and his succeeding statement \u201cthat the circumstances of the ease constituted notice to the defendants of the intervening rights of the plaintiffs \u201d [not as assignees, but] \u201c as insurers of the property injured; and that, therefore, \u201c their settlement * * * was without affect on the previously acquired rights of the plaintiffs.\u201d I cannot doubt, therefore, that the referee meant to rest his conclusions as much, if hot more, on the right of the plaintiffs as insurers to whom the consignees had, by other means, transferred all their interest in the goods, than on them right as assignees, particularly as he does not speak of any express or implied *109notice of the assignment as such before the settlement, which would be necessary to defeat it."], "id": "1c497898-9711-4c1f-a2f2-04511688f437", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["According to the prosecutor\u2019s information which replaced the original accusatory instrument, defendant was charged with 17 counts of overdriving, torturing and injuring animals; failure to provide proper sustenance (Agriculture and Markets Law \u00a7 353), and seven counts of (Agriculture and Markets Law \u00a7 355). The court dismissed several counts prior to trial, and of the 11 counts submitted to the jury, defendant was only found guilty of four counts of abandoning animals."], "id": "47765218-576e-4419-9532-5e295bff2099", "sub_label": "US_Terminology"} {"obj_label": "Abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["70 Cornell Law Review 316, 316-317 ( of the Two-Pronged Aguilar-Spinelli Test: Illinois v Gates) states of the decision of Illinois v Gates (supra): \"Gates does more than replace the two-pronged test with a simpler, more practical standard; it drastically expands the opportunity for police to use less than reliable information as a basis for warrants * * * [T]he fourth amendment sometimes collides with law enforcement interests by limiting the use of suspicious but useful information as a basis for warrants.\u201d"], "id": "fd088d92-934f-4971-805c-47043b118ac9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Indeed, the court in Matter of Goethie (9 Misc 2d 906, 908) conclusively stated: \"There can be no clearer or more convincing of the marital status, or of a spouse, than the solemnizing of a ceremonial marriage to another followed by open and continuous cohabitation and the birth of issue of the subsequent union.\u201d In the case at bar, the respondent remarried after returning to Iran, has lived with his second wife for the last 25 years and together they have raised two children. Although he returned, with his new family to the United States, he took no affirmative steps to reunite with decedent before her death."], "id": "7e2757d5-9d6a-42ca-89bf-7c6eaa5459c8", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*837The executrix also claims a constructive eviction from the apartment. \u2018A constructive eviction occurs only where, through the landlord\u2019s acts, the tenant has been substantially deprived of the beneficial enjoyment of the demised premises \u201d (2 McAdam, Landlord and Tenant [5th ed.], p. 1392) or where \u201c there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord \u201d (Tollman v. Murphy, 120 N. Y. 345, 351). The executrix testified to a number of omissions by the landlord which she claims had the cumulative effect of depriving her husband and her of the beneficial enjoyment of the premises and thus evicting her. Most of the matters are of minor importance. The painting and decorating of the apartment and finishing the floors were not completed until more than six weeks after they moved into the apartment. She complained of a failure to finish the closet floors, but there is no basis for finding that the landlord ever agreed to provide wood flooring in the closets. There were leaks in plumbing, temporary failure of an air conditioner, excessive moisture from an air conditioner and difficulties in ventilation of the kitchen, but it would appear that these minor matters were adjusted to the extent that the landlord was obliged to do so. There is no evidence that these conditions persisted up to the time of the of the premises."], "id": "21346763-a0e6-4dcf-9559-97fe50b2bec5", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On February 9, 1954, the Town Board voted to \u201c temporarily abandon \u201d three town roads, one of which being the town road from the \u201cElmer Barnum Residence to Joseph Chodakowski Residence.\u201d On May 15,1959, the Town Board passed a resolution which provided that the words temporarily abandoned should be amended to read \u201cqualified .\u201d The latter resolution was an apparent attempt to comply with section 205 of the Highway Law. As the required notices, public hearings, etc. were not performed, said resolutions were undoubtedly a legal nullity and did not accomplish anything. It is possible, of course, that, if an article 78 proceeding had been brought to set aside the qualified abandonment, it might have been denied on the ground of laches; or, on the ground that to require this town to reconstruct a road on a public easement, which had essentially reverted to nature, would work an unnecessary financial hardship on said town; and, as no householder resided on the abandoned section of the road, would compel the town to perform an idle and useless act. (See Matter of Salisbury v. Rogers, 252 App. Div. 223.) In any event, said resolutions do demonstrate the Town Board members\u2019 thoughts as to the use and usability of said town road in 1954 and 1959. The town did accept State aid for said town road up to 1961 when such aid was discontinued. Having worked with several towns as a Town Attorney, I am not too surprised by the latter fact and do not attach any significance to it as it might relate to a nonabandonment of said road."], "id": "e856f75d-7a56-4a5f-92f6-098ce396bbb5", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c To create a contract by implication there must be an unequivocal and unqualified assertion of a right by one of the parties, and such silence by the other as to support the legal inference *836of his acquiescence.\u201d (Gray v. Kaufman Dairy & Ice Cream Co., 162 N. Y. 388, 397.) There is no basis for implying an acceptance of the surrender from the landlord\u2019s failure to respond to the letter. The letter indicates an of the premises by the widow of the tenant. It did not call for any response by the landlord. There is \u201cno rule of law which requires a person to enter into a correspondence with another in reference to a matter in dispute between them, or which holds that silence should be regarded as an admission against the party to whom the letter is addressed.\u201d (Gray v. Kaufman Dairy & Ice Cream Co., supra, p. 398.) There would be even less reason for drawing an inference from the failure to respond to the letter in this case because that letter did not even assert a surrender of the lease or make any other positive assertion of right."], "id": "6ba6c9a0-1963-4044-be87-f611296473e2", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Accordingly, I find that no default at all has occurred to justify judgment over for indemnification, nor is there any legal justification for dismissal of the suit based on its claimed . In these circumstances, arguments urged by the parties relative to the sufficiency of the complaint in its present form and the adequacy of the evidence in the main suit, referable to the issues of control and active negligence, adequate to support a finding of liability for indemnification without a trial on the merits, must await an appearance and joinder of issue. Naturally, if on the pleadings as they may shortly emerge, such a trial becomes necessary, the plaintiff in the main suit should not be required to await resolution of the issue of indemnification before enforcement of the judgment procured by him."], "id": "0cc0f3bc-1269-458d-a485-861fdbe29ad4", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As I have previously commented: \u201c Convictions of the husband as a \u2018 disorderly person \u2019 under criminal statutes predi*701coted on of a wife allegedly likely to become a burden on the public have been frequently reversed on the square ground that the accused was willing, able, and offered in good faith to provide for such wife in a joint home. (People v. Pettit et al., 74 N. Y. 320; People ex rel. Feeney v. Dershem, 78 App. Div. 626; People ex rel. Demos v. Demos, 115 App. Div. 410; cf. People ex rel. Mueller v. Mueller, 164 App. Div. 386.) However, those statutes, being penal, were subject to strict construction, and decisions thereunder are not necessarily determinative of the question whether subdivision 4 of section 137 of the Domestic Relations Court Act may not constitute a subsequent mandate of the Legislature for a contrary conclusion in a civil proceeding (see Matter of Kane v. Necci, 269 N. Y. 13) under the Domestic Relations Court Act of the City of New York.\u201d (\u201c Salvatore \u201d v. \u201c Salvatore \u201d, 185 Misc. 309, 312.)"], "id": "82dd8001-df0f-457d-af52-720199e96a80", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In opposition to this branch of the motion, petitioners refer to Department of Hous. Preservation & Dev. v St. Thomas Equities Corp. (128 Misc 2d 645 [App Term, 2d Dept]). They assert this case provides that the court should not discharge a 7-A administrator absent \" 'a prima facie showing that the reason for the appointment no longer exists. In other words, the movant would have to demonstrate to the trial court that repairs have been made or essential services provided and that there is a plan for the continued maintenance of the *230building. In the absence of such a showing, a court would be remiss in granting a motion seeking the discharge of the Administrator since \"a grant of the relief requested would place the property in a state of to the great detriment of the tenants\u201d \u2019 \u201d (128 Misc 2d, at pp 649-650, quoting Swallow v Schnipper, supra)."], "id": "11f2d9cd-0c61-4df6-b145-73c2de2d5000", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The respondent mother testified that after she recovered from her operation, she urged the father to return her son to her custody. The respondent mother nevertheless allowed the father to keep her son because of the father\u2019s persuasion that her son\u2019s learning disability was being solved by remedial schooling in New York City. The mother therefore consented to a second year of custody by the father and stepmother, subject to a visitation arrangement. Minor conflict appears as to whether there has been any visitation between mother and son since 1970. A single visitation in 1971 in Putnam County is the only visitation involved in this conflict. I find that this one visitation did take place, but it is undisputed that there has been no visitation from early 1971 until commencement of this adoption proceeding in April, 1974. This period of nonvisitation, if \u201c without good reason \u201d, is well in excess of the six-month statutory period of nonvisitation which qualifies as an element of ."], "id": "f5bb69ea-724a-4a62-9a21-0bcf7d694955", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is no evidence in this case of a direct and formal relinquishment by the consignees of all then interest in the damaged grain to the plaintiffs; and the question of its as a fact is, therefore, not without difficulty in this case. The preliminary steps of possession taken by the plaintiffs of such damaged part, by direction of the defendants, after a series of notices of the loss, first by the latter to the consignees, then by them to the plaintiffs, and finally, some negotiations between the parties to this action, did not constitute an abandonment; nor would the mere sale of part of the cargo, and the receipt of its proceeds by the plaintiffs, unless by the consent of the consignees, operate as such. In fact, at the time when the plaintiffs thus took possession of the cargo, it was still in possession of the defendants as carriers; and they only delivered it to the plaintiffs to take charge of it for the parties interested. There is no direct evidence that the consignees, at that time, had any agency in the transfer of the property. Subsequently, however, their agent, in the very receipt given by him to the agent of the defendants, on the 9th of May, 1861, and which they claim to be a settlement, admitted that the damaged grain had been received by the consignees at Fort Plain, thus recognizing the delivery to the plaintiffs as a receipt by themselves. The damaged grain having been sold by the agent of the plaintiffs, and its proceeds received by them, they settled with the consignees as for a total loss of the damaged grain, without regard to such sum so received. That evidence was certainly strong enough to have defeated any action by the consignees against the plaintiffs for the conversion of such damaged grain. I think it was also evidence from which the referee was at liberty to infer an abandonment of the damaged grain.\u2019 (See New York Insurance Co. agt. Roulet, 24 Wend. 513.) And if necessary for the determination of the ease, we, ought not to disturb his finding Upon that point."], "id": "d1e9466a-b949-4e1f-a020-976a99c965f6", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["(b) I do not deduct the quantity of water used for the operation of the old or \u201c Baldwinsville canal,\u201d namely, twenty cubic feet per second, from the quantity required for the Barge canal. The state has not abandoned the old canal or the right to use so much of the impounded waters as shall be necessary for operating in navigation that canal and lock, and which remains appropriated alone to that canal and lock. An of that canal and lock (if permissible, without just compensation to the owners of the water rights, a question I do not consider) must be effected, not by a judicial, but by a legislative declaration. City of Mt. Vernon v. New York, N. H. & H. R. R. Co., 232 N. Y. 309."], "id": "f8a1b77c-4614-4458-992e-3e2f714c38a9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"mr. prosperi: Your honor, Mr. Huether from our office is engaged in a trial today. He told me that the Court was to set a trial date today. I believe the Court may have preliminarily discussed a May 1st date, and Mr. Huether says that would fit in his calendar. \"the court: How is that with the defense counsel? \"mr. scanlon: That will be fine, Your Honor.\u201d The court finds that defendant waived his right to a trial within the 180-day period by concurring in the decision to set a trial date beyond the statutory period. The Court of Appeals has held that \"[t]he facts in a particular instance may warrant a factual determination that the defendant has elected not to assert or has abandoned his rights under the Agreement on Detainers and has chosen to proceed to disposition without reference thereto\u201d (People v Torres, supra, at 124). Courts in this State have found an , or waiver, of a defendant\u2019s rights under the IAD in a myriad of circumstances (see, Matter of Amiger v Long, 101 AD2d 616; People v Lambert, 61 NY2d 978; People v Gooden, 151 AD2d 773; People v Sacco, 199 AD2d 288). Although the precise issue before this court has not been determined by a court in New York State, courts in other jurisdictions have held that a defendant who concurs in a decision to set a trial date beyond the statutory period waives his rights under the IAD. People v Jones (495 NW2d 159, 160-161, 197 Mich App 76 [1992]) merits quotation: \"A waiver is established when a defendant, either expressly or impliedly, agrees or requests to be treated in a manner contrary to the terms of the IAD * * * Valid waivers have *1036been found where either the defendant or his attorney agree to a continuance or a later trial date * * * To avoid waiving any rights under the IAD, the defendant must generally object to those procedures or actions by the trial court that may infringe upon the protections afforded by the IAD * * * [cjonduct that is inconsistent with the IAD will be viewed as establishing a waiver of statutory rights.\u201d"], "id": "8e1f2764-714c-4901-9aa3-fe33bd22a993", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Based upon the foregoing, plaintiff is entitled to summary judgment dismissing the defendant\u2019s second counterclaim and the same is hereby dismissed. The motion is also granted insofar as the defendant seeks compensatory and punitive damages on her fourth counterclaim. The remainder of his application must be denied. Defendant demonstrates the existence of material issues of fact as to whether plaintiff has substantially performed his obligations under the separation agreement and as to the defense of justification regarding his claim for constructive ."], "id": "5b2c7d26-efb4-4302-a983-a3e024480191", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The stipulation entered into on behalf of the petitioner shows the two enterprises to be essentially different. According to that, \u201cno tubular ways for the transmission of cars and passengers by the application of atmospheric power, compressed air or other power, are intended to be constructed.\u201d And that involves an of the railway described in terms in the petitioner\u2019s charter. For the road, as it is now proposed to build it, \u201c is to be, in all respects, constructed and operated in conformity with the conditions and restrictions prescribed by the commissioners of rapid transit.\u201d These commissioners were provided for and appointed under the authority of chapter 606 of the Laws of 1875. This is *318a general law prescribing the terms on which elevated railways may be constructed and operated in all portions of the State. And the authority created by it is ample for the inclusion of all feasible plans which may be found promotive of that end. And they are to be devised and adopted only by the commissioners, whose appointment it has provided for. (Laws of 18Y5, 741, chap. 606, \u00a7 5.) It is according to their plan, which differs very materially from that of the petitioner\u2019s charter, and in no way includes a tubular railway, that it is now proposed to construct the railway. That is clearly indicated from the description given of the design itself by the commissioners, and it is implied by the terms of the stipulation already referred to. Indeed, if there had been no material difference intended, the petitioner would have been in-no need of the authority of the commissioners acting under the act of 1875. It was because it was necessary to avail itself of the authority of that act that it was induced to adopt their plan."], "id": "e1c51f49-f7c7-4c33-b0e3-2d42d67b3308", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Therefore, article 18-B ought to be viewed as an ameliorative partial provision, not as an of the pro bono publico concepts. The statute is not intended to change the nature of assigned counsel\u2019s obligations and expectations, except insofar as it provides for some limited compensation. This should not be read to open the floodgates to permit assigned counsel to assert a claim for fees against sources other than the county, in excess of statutory fees. The assignment of counsel has been based on a prior determination that the client, here the petitioner, could not afford to retain counsel. It is in this capacity that the attorney was assigned."], "id": "c5375278-5d4e-4ef5-bb1f-661602677388", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To constitute a dedication of land there must be clear, unequivocal and decisive acts of the owner manifesting a positive and unmistakable intention to make a permanent of his property to the specific purpose intended. Dedication itself is an easement in land, but these plaintiffs do not contend for the effect of a full dedication to the public. They claim the devotion to them and others of the space called the Ramble, by right of their purchases, and this involves another view."], "id": "d3309b71-1003-4991-a12c-4408f011f491", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Furthermore, undaunted by the of that application, defendant, having married his second wife, submitted a second application in July 1987. Thus, at the time of his plea, defendant had been consistently working for the preceding two years to legalize his status so that he could remain in this country. His actions subsequent to the plea, in persisting to secure legal status, similarly demonstrate his concern with avoiding deportation."], "id": "5850875c-9c23-40ce-830f-b59590632463", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Federal Circuit considered the evidence available in Cauquelin and found, in the absence of evidence affirmatively indicating the railroad did not intend to abandon the line, there was sufficient evidence to support the trial court\u2019s ruling granting summary judgment in favor of the plaintiffs. Caquelin, 959 F.3d at 1372\u201373. In Caquelin, the Federal Circuit considered the railroad\u2019s actions before the NITU (\u201cThe railroad filed an application to abandon, indicating an affirmative intent to abandon.\u201d), during the NITU (\u201c[I]t refused . . . [to consent to an extension of the NITU], confirming an interest in abandoning sooner rather than later\u201d and removed track during the NITU, \u201ca precondition to abandonment-based easement termination under Iowa law.\u201d), and after the NITU (\u201cIt completed just three months after . . . the date . . . it became legally authorized to abandon the line, suggesting a comparable time period had authority been granted [earlier].\u201d). Id. at 1373. Accordingly, Caquelin clarified that a court must consider events occurring before, during, and after the NITU issues when assessing the railroad\u2019s intent at the time of the NITU. 6 Id."], "id": "21dcb6e8-14f1-4b65-a3d5-1d03c8dd8cad", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If it is claimed that the consideration for the granting of such a right consists in part of a greatly lowered price that the private contractor charges the State for compiling and supplying the information, the illegality of the contract is further demonstrated. Section 174 of the State Finance Law *313requires competitive bidding except when a State department or agency may purchase specified equipment or supplies up to $1,000. The pegging of the price of the contract herein involved at $975 was a transparent attempt to come under the exception for public bidding by purportedly fixing the consideration at $25 less than the cutoff price. In actual fact, however, as has been indicated, the contract had an actual value of up to one million dollars. The alleged by RX Data Corp. of the $975 payment shows how inconsequential it is in the light of the over-all contractual scheme."], "id": "e1a10403-5af1-41e4-b89e-f42c52a89c6d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["An erroneous assumption that the language now found in the Constitution (art. VI, \u00a7 7) was in effect in 1924, makes it understandable how with perfect sincerity, time after time, litigants have appeared in this court quoting Matter of Bistany (239 N. Y. 19, supra), and have urged the fallacious rule that on the issue of the natural parent must be given the benefit of eyery controverted fact, no matter how improbable the story and no matter how unworthy of belief his testimony appears to the trier of the facts. For this argument the following anachronistic quotations from Matter of Bistany are relied on: \u201cTo prevail they must be able to show that even though the parents be given the benefit of every controverted fact, a finding of abandonment follows as an inference of law \u201d (p. 21). \u201c Again we must assume the acceptance of the parents \u2019 *657version \u201d (p. 22). \u201cWe are unable to. yield to the petitioners\u2019 contention that the facts above recited point so decisively to an abandonment that every other inference must be held to be excluded\u201d (p. 23)."], "id": "9414cd16-c8c6-47a0-a736-86ea716b7a19", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Board has interpreted the Agricultural Labor Relations Act to mean that once a labor organization is certified as the exclusive bargaining representative of a group of employees, it remains certified \"until it is decertified or a rival union is certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees.\" (Lu-Ette Farms, Inc. (1982) 8 ALRB No. 91, p. 5.) This principle is referred to as the \"certified until decertified\" rule and its two exceptions. (Arnaudo I , supra , 40 ALRB No. 3, p. 9.) The exceptions of defunctness5 *655and disclaimer are not expressly stated in the Agricultural Labor Relations Act. Thus, from the perspective of statutory construction, the exceptions were not clearly stated in the text, but were derived by inference. *36Both of the exceptions are referred to by the Board under the label \",\" which the Board describes as \"a legal term of art.\"6 (Bruce Church, Inc . (1991) 17 ALRB No. 1, p. 9.) \"[T]he Board has defined abandonment as a showing that the Union was either unwilling or unable to represent the bargaining unit.\" (Id . at pp. 9-10.) More generally, abandonment is, \"in essence, a showing that the Union had effectively left the scene altogether.\" (Id . at p. 10.)"], "id": "307ef879-030e-4963-8752-5bf1d2736bdd", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although there is some confusing language in various decisions regarding the owner\u2019s right to recover for unfinished work (see, e.g., Clark v. Fleischmann Vehicle Co., 187 N. Y. S. 807, 814), there is no reason for distinguishing between the actual cost necessarily expended by the owner in completing the job and the reasonable cost of the uncompleted work, except in the nature of the proof and the kind of testimony to be required by the court. In Comey v. United Sur. Co. (217 N. Y. 268, 276-277), Judge Cabdozo stated the rule applicable to an owner\u2019s damages for an of a contract: \u201cIf he had not completed it, he would still have been entitled to his damages (Kidd v. McCormick, 83 N. Y. 391, 397). The fact that he did complete it makes the proof of his damages more certain. It supplies evidence of his loss which might otherwise have depended upon the estimates of experts. It has no other importance.\u201d"], "id": "002fe087-6b91-40b4-be67-aa0a7e70284c", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["So Lord Cottenham says in Munro a. Munro (7 Clark & Fin. R., 77): \u201c To effect the of the domicile of origin and substitute another in its place, is required le concov/rs de la volonte et dufait\u2014animo et facto ; that is, the choice of a place, actual residence in the place then chosen, and that it should be the principal and permanent residence.\u201d"], "id": "bc299d38-e3a2-486b-8db9-6e6984ff845d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It appears that while the decedent was alive and during the matrimonial action, the petitioner was awarded temporary alimony. The right to such payment, however, ceased upon the death of the decedent and termination of that action. The proceedings in this court based upon the issue of have been termed \"posthumous matrimonial trials\u201d. (See Matter of Lamos, 63 Misc 2d 840.) A surviving spouse has no right to any temporary alimony in such proceedings and no right, according to respondents, to any advance payment from the estate for her support if her status is challenged. While a restrictive view of the wording of SCPA 2102 (subd 5) might support such a position, the court is of the opinion that it may *718in its discretion authorize an advance payment, when the question of status is at issue, at least where the alleged surviving spouse is willing to post a refunding bond. (Cf. EPTL 11-1.5; Matter of Brodin, 32 Misc 2d 651.)"], "id": "1579cd80-2b72-48c5-af7c-d31b11a0c115", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is therefore the decision of this court that in the absence of other circumstances making applicable one of the statutory exceptions, the consent of the natural father is mandatory. The petitioners shall be given the opportunity to prove allegations of by the said father in order to overcome this requirement. Notice to the natural father shall be given in such manner as shall be directed by this court upon application by the petitioners."], "id": "6dde98bf-0362-4ab4-8d7a-0fb9a3d74afc", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["They deny (if that were material) that they ever received notice from the appellant of his intention to abandon the agreement, until after the three first instalments became due. And they swear, that instead of neglecting to fulfil the contract on their part, as the bill charges, they commenced the performance of the agreement immediately after it was made; that they employed twenty workmen besides themselves, in manufacturing the machinery; that they prosecuted the work in good faith; and that, at the #time when the appellant gave them notice of , (1st of August, 1815,) they had actually expended in labor and materials, for that machinery, upwards of 3,000 dollars; and which had so depreciated, as not to be worth more than 400 dollars, at the time of filing their answers. The injustice and hardship complained of in the bill is, that White, Taylor &f White were taking an unfair advantage, and abusing their legal rights under the independent covenants, by suing for the three first instalments, without having performed any part of the contract, and not having earned any thing, as a consideration or equivalent for those in-stalments : this was an essential and indispensable allegation in the bill, without which no injunction would have been granted ; the prayer for an injunction would have contained no equity, if the bill had not charged the fact, that White, Taylor &f White had not proceeded in the execution of the agreement pari passu with the stipulated payments. The answers are, therefore, on that point, strictly responsive to the bill; and they positively, explicitly, and circumstantially, deny that allegation. The respondents confess their insolvency ; but swear, that it has been occasioned solely by the appellant himself, in refusing to fulfil that contract. These answers we are bound to take as true, in respect to the injunction, in this stage of the cause; and if so, the right of these respondents to recover 1,900 dollars, with interest, as established at law, seems to me to be perfectly consonant with the principles of equity."], "id": "87e07c3b-807f-459e-82a9-2043c557d69d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Has the petitioner, the adopted child, the right to challenge the original order and obtain its vacation? It appears to me that inasmuch as the child having been under the age of fourteen when the adoption order was granted, and there is no requirement by statute for her consent to the adoption, she cannot be a party and particularly an instituting party in a proceeding to vacate an order of adoption involving a failure of notice, actual or constructive, to a natural parent or a failure of proof of by said parent."], "id": "d32eabcc-524a-43a5-be7c-dc768494fff4", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Mendes & Mount had a right to continue their test of the law and to obtain a ruling on their position from the highest court of this State. Under the circumstances, did the of further appeals following the granting of the motion to dismiss by the Appellate Division affect their posture? I think not. In the spring and summer of 1981, when the defendant\u2019s appeals were dismissed, the then-current average prime rate was even higher (19%; 20.5%) than the average prime rate during the period encompassed by the two judgments involved which were the basis for plaintiff\u2019s damage claim for loss of interest. If, as plaintiff argued, delay was the defendants\u2019 goal in order to give them the opportunity to earn more on the withheld rents than the interest rates allowed by the court, then the defendants\u2019 decision not to appeal further is completely at odds with this allegation. The more likely inference is that the decision was reached after their counsel assessed the likelihood of success on further appeals as against all the associated costs."], "id": "84108b7a-8d43-4889-9bbf-035395dc18ec", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The answer and waiver which plaintiff admits signing is entitled \u201c In the County Court of Chilton County, Alabama, In Equity \u201d, and denies the entire bill of complaint. This complaint which she denies alleges the complainant was a resident citizen of Chilton County, Alabama, and had been for a period of time required by law for divorce, and that respondent was a nonresident of the State of Alabama with her last known address in Canton, New York. This complaint also alleges a separation of the parties on May 7,1958 and demands judgment for divorce on the ground of ."], "id": "35b2cc31-1e39-43b5-a79d-dd7e81910f2c", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The principle was first stated in Halberstadt v New York Life Ins. Co. (194 NY 1, 10-11), where the court sought to set forth a single, comprehensive rule for determining the sufficiency of a prior termination. When the court examined the facts of the then existing cases, it found that the prior criminal terminations, therein, fell within two categories, which were characterized by the following sufficiency rules: \"The first one is that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action.\u201d In an effort to distinguish the \"obvious\u201d differences between the two categories, the court sets forth the subject principle. This principle, when applied in its original context, would bar only those cases which fall within the second category, and this the court believes was its intent. The rationale for this is apparent, for in such cases the circumstances of the prior termination implies probable cause and the accused should not be allowed to benefit therefrom."], "id": "725424af-ee55-44aa-b3a6-324b0eb83b55", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Furthermore, the failure to use the remaining property upon completion of the roadway and installation of its appurtenances constitutes, after 45 years, an of such property for any further easement purposes. Since abandonment can extinguish an entire easement, it can likewise extinguish such portion of an easement which becomes surplusage to the intended and executed purpose of the grant. (Norris Hoffman, 133 App Div 596, affd 197 NY 578; Small v Levitt, 110 NY 595; Wilson v Ford, 148 App Div 307.) The *467actual use has, in this instance, defined the extent of the easement. (People v Sutherland, 252 NY 86; Walker v Caywood, 31 NY 51; Foster v Webster, 8 Misc 2d 61.)"], "id": "6c336eb7-de77-4d33-b31d-2716bc553110", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The argument of the State Tax Commission that shortly after the death of her husband, Mrs. Daly established her domicile at No. 725 Fifth avenue, New York city, that she abandoned the matrimonial domicile in Anaconda, Montana, and treated the house at Hamilton, Montana as a mere country home finds no support in the evidence. The shift from the principal place of residence from Anaconda to Hamilton, Montana, is inconsequential. By no *946affirmative act or decisive declaration was there any of the State of Montana as the place of her legal residence, whether between the period from 1900 to 1907 or in any subsequent year to the time of her death. !"], "id": "0be5ae2d-5a51-4407-9be7-e25b03161362", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["No objection having been made to the proposed distribution *336of gifts pursuant to paragraph Two of the will, the decree on an accounting may direct such distribution. No objection having been made to the statement in the schedule of proposed gifts that the family portraits have no value, the decree to be submitted may provide for their or the disposition proposed in the schedule."], "id": "6eac2fa6-8c66-4e6b-9607-a4bc30750ba1", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Similarly, this building was in a very deteriorated condition at the time Mr. Bodak assumed its management. The roof and walls leaked, the elevator and incinerator were inoperative, oil was not being delivered to the building, the superintendent had quit and no repairs were being made or other services provided to the tenants. One third of the apartments were vacant, the building had been the subject of rent strikes and was on the verge of . Again, it is undisputed that, after considerable effort, Mr. Bodak returned the build*219ing to a truly habitable condition and made all real estate tax payments current."], "id": "dc3e3e01-84b2-4a45-842a-b127ebbc4a2f", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To prove , the conduct of a spouse must be shown to be unjustified and without consent of the other spouse. Defendant claims that he could not have \u201cabandoned\u201d plaintiff after agreeing to a separation agreement. The facts indicate otherwise. The agreement to separate was for a six-month period, after which the defendant fled from the court\u2019s jurisdiction to a foreign country, leaving the wife and children behind and unsupported. It is graphically clear that plaintiff wife did not want nor consent to her husband\u2019s exodus from Israel while the divorce action was pending. Nor can defendant claim that disobedience of a court order can be justified. The husband\u2019s conduct is indeed a classic example of abandonment."], "id": "f3d1be1e-78fa-4308-a538-6b54b0fe9cf9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The trial court did not commit clear error in failing to conduct an inquiry after appointed counsel timely filed a facially sufficient statement in lieu of an amended motion. And because Perkins's pro se amended motion was not the reply authorized by Rule 24.035(e), the trial court was not obligated to consider the pleading as a reply in the manner directed by Latham ."], "id": "5431496c-8b0d-4766-9110-ab372d8bb2a8", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The petitioner, however, seeks to overturn or nullify the effect of a Supreme Court judgment of separation in her late husband\u2019s favor against her on the ground of on the basis of the conduct of the parties, i.e. a reconciliation. It is clear that such a separation judgment can only be revoked *106as provided in section 203 of the Domestic Relations Law or overturned on appeal. The former was attempted without success but the latter was never pursued by petitioner."], "id": "3ba46f61-2665-41aa-90bf-7b08d44aaa13", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The papers in support of the motion allege that plaintiff wife had obtained in this court, in December, 1957, a judgment of separation upon the grounds of and nonsupport; that said judgment provided for payment of $15 per week for plaintiff\u2019s support and maintenance; that shortly thereafter, in January, 1958, the husband commenced an action for divorce in the courts of Alabama in which he alleged a bona fide residence in Alabama for a period of more than one year next immediately preceding the commencement of the action there; that such allegation is false and fraudulent and that in fact the husband was at all times and continues to be a resident of the State of New York; that the husband gave a Brooklyn residence at the time of the trial of the separation action; that he is and at all times has been a part owner of a substantial business in the city of New York; and that if he was in Alabama at any time it was solely for the purpose of executing papers in connection with his divorce action there. Plaintiff wife further alleges that she received by mail a copy of the summons and complaint and order of publication in the husband\u2019s divorce action instituted in Alabama but that she has not been served personally in that action. The wife further contends that her husband has commenced the Alabama action for purposes of circumventing the laws of this State as well as his obligations and her rights as established under the judgment of separation. Plaintiff further states that she is presently unemployed and that her sole income comes from unemployment insurance payments, and from the $15 per week, allowed under the judgment of separation, which the husband has not paid promptly to date. The wife contends that she is unable to pay a counsel fee."], "id": "78603d7e-e94b-4c94-9001-bac94b076b13", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["New York\u2019s law (Domestic Relations Law art 5-A), the Uniform Child Custody Jurisdiction Act, is comparable to and largely parallels the PKPA. Specifically, section 75-d provides four possible predicates for jurisdiction: (a) home State; (b) significant contacts or substantial evidence concerning the child\u2019s care in New York; (c) physical presence, plus or emergency; and (d) no other State has jurisdiction or has declined to exercise it because this State would be a more appropriate forum."], "id": "7647babf-ac67-4cfd-8a89-6e1ee8928497", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The law in this state is that the testimony of a single person, including the *488plaintiff , may be sufficient to support an award of emotional distress damages. \"If credited by the jury, appellant's testimony about the extreme pressure she was under and her state of mind during the last few weeks of Richmond's representation-including feelings of and betrayal by her attorney, anxiety over her possible loss of her family home, and undue pressure to obtain financing on a timetable established for the benefit of her attorney and opposing counsel-as well as her loss of lifetime health benefits, may well be sufficient to support an award of damages for emotional distress from the alleged breaches of fiduciary duty.\" ( Stanley v. Richmond, supra, 35 Cal.App.4th at p. 1097, 41 Cal.Rptr.2d 768 ; see McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1162-1163, 29 Cal.Rptr.2d 559 [emotional distress damages in insurance bad faith action may be established by the plaintiffs' testimony; it was improper for the jury to award emotional distress damages to those plaintiffs that neither testified nor produced other evidence of their damages]; Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 708, 243 Cal.Rptr. 907.)"], "id": "1616fcbc-2e74-445b-82bf-fa78c4828a58", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is true the amended statute of 1882 enlarges the statute of 1871 by an addition of the words \u201cor who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means; \u201d yet the crime is , and the words \u201c leave them,\u201d refers to the original leaving, and if it is intended to make \u201c neglect to provide for them according to their means,\u201d an additional or new offense, there is no proof here to make the husband guilty; there is no proof that he had any means. \u00a5e prefer to place our decision on the ground of want of jurisdiction in the magistrate to entertain the proceedings. The original law had relation only to abandonment in the county of Kings, and the amendatory statute was intended to have the same scope and be subject to the same."], "id": "8ae1ebb9-ce02-428a-bad3-9e3e88a23764", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Loft Law was enacted in 1980 in an attempt to solve an interconnected group of problems which had become increas*487ingly serious over the preceding 20 years. The by manufacturers in the 1960\u2019s of such areas of the city as Soho and the garment district for locations outside the State had left city landlords with an abundance of large, empty, and seemingly undesirable factory buildings for which commercial tenants could not be found. Coincidentally, this period saw other areas of the city \u2014 Greenwich Village to name one \u2014 grow in desirability. As a result, artists who had worked in these neighborhoods found themselves unable to pay the escalating rents which were being obtained for residential units. Forced out of their traditional haunts, these artists turned to the large loft and factory spaces which had become available with the relocation of manufacturers and the demise of other commercial tenants. Landlords were pleased to have artists take over these raw spaces and often collaborated in renovating the premises to suit their new residential tenants. Gradually portions of these neighborhoods began to gentrify and eventually to become affluent, as loft after loft was turned to residential use."], "id": "dbe1ba69-8ab3-4941-8a98-062f109f1a88", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under the facts testified to herein, the court finds that the plaintiff has met her burden. Courts have recognized that there comes a time in such relationships where it would clearly be futile for one spouse to continue to ask the other to engage in sexual relations. Where, as here, the defendant, on his own, moves out of the marital bedroom and into a room on a separate floor and refuses a request after that, it is the court\u2019s opinion that the plaintiff should be relieved of any requirement to continue to ask for sexual relations. This court\u2019s position is further supported by precedent established in Smith v Smith (254 AD2d 788 [1998]), where the Appellate Division, First Department, held that when the wife specifically requested sexual relations, and the husband made disparaging remarks about the wife\u2019s weight, told her that she was no longer attractive to him, and removed himself from the marital bedroom permanently, that sufficiently established the grounds of constructive ."], "id": "24239ea4-2764-44b2-9b14-fea168bf767c", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I am therefore brought to the conclusion that Clark, subsequent, to his purchase in 1815 of the west half of the TontineCoffee House, entered into a contract with Stewart for the sale of a moiety thereof: that Stewart, by delivering up Clark\u2019s bond for $16,000, actually satisfied him for the consideration agreed to be given therefor; that the subsequent of the Contract (if it in fact ever was abandoned) was an invalid act by reason of its having been done in fraud of Stewart\u2019s creditors; and the release executed in 1819 was not designed and should not now be permitted to have the affect of discharging any interest of Stewart in the premises derived from that contract."], "id": "b18d81f4-cc35-4499-a389-6663b4dd1014", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Notably, section 111 (subd 1, par [c]) of the Domestic Relations Law, on which this court relies, was previously declared constitutional by the Court of Appeals of New York State in Matter of Malpica-Orsini (36 NY2d 568) and that opinion has been recently affirmed by the Supreme Court of the United States. (Orsini v Blasi, 423 US 1042.) The New York Court of Appeals held not only that consent of an unwed father was unnecessary to adoption by the stepfather, but also that of the child by the father need not be established. Regular support and visitation by the losing father was emphasized in the dissent. (Matter of Malpica-Orsini, supra, p 590.) The majority expressly held (p 576): \"To contend that at least some of the fathers of children born out of wedlock should be accorded the option or veto of consent is meaningless as far as ameliorating the problem. To grant this right to those who acknowledge paternity would require a most difficult search and constant inquiry. To extend it to those who have contributed to the support of the child would be an excursion into relative values difficult of proof.\u201d"], "id": "0269f079-f5b1-4131-8dd3-cc35ef6c7e82", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The proof is legally sufficient, however, to grant a divorce on the ground of constructive . Domestic Relations Law \u00a7 170 (2) provides that an action for divorce may be maintained upon the ground of the abandonment of the plaintiff by defendant for a period of one or more years. The essence of abandonment is a refusal on the part of one spouse to fulfill basic obligations arising from the marriage contract (Diemer v Diemer, 8 NY2d 206). To establish a constructive abandonment, plaintiff must prove that there was a failure and refusal on the part of defendant to engage in marital relations for at least a year prior to commencement of the action (De Angelis v De Angelis, 54 AD2d 1088). Plaintiff testified that the last time they had sexual relations was in 1982. Defendant denied that allegation but conceded that they had not had sexual relations in the year prior to commencement of the action. Plaintiff testified that she tried \"every couple of months\u201d for years to discuss defendant\u2019s forbearance with him, but defendant refused to discuss it. Once plaintiff makes out a prima facie case of abandonment, judgment should be granted unless defendant pleads and proves justification (Maryan v Maryon, 60 AD2d 623). That did not occur in this case. We remit the matter to Supreme Court to grant judgment in favor of plaintiff and to consider the remaining issues. (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J.\u2014Divorce.) Present\u2014Bailo, J. P., Lawton, Wesley, Callahan and Davis, JJ."], "id": "46be34fc-a146-4bdb-baa2-c605798dd44c", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Thus it appears that the legal effect of the policy in suit was to restrict the liability of the underwriters to an actual total loss, *387which can only be construed to refer to the well settled definition of an absolute total loss, by a destruction of the thing in specie, and to guard against any liability to arise from a partial loss, where the expense of repairs would exceed the value of the vessel when repaired, or when, as the expert witnesses in this case, in effect, say, \u201c the vessel was not worth repairing.\u201d And probably the reason for this restriction is to be found in the fact that the vessel insured was rated as B. 2, which shows that she was estimated as an old and inferior vessel, likely, if damaged at all so that repairs became necessary, to be liable to , as for a total loss, under the American rule, that a constructive total loss may arise where the repairs will exceed one-half the value of the vessel when the loss occurred. The limitation of the risk of the underwriters being confined to an actual total loss, was evidently intended to exclude the idea of repairs."], "id": "531eeb4c-e882-4297-8ad9-d2cf1c0fd43e", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This finds support in Sandowski\u2019s own affidavit wherein he states: \u201cUp to now, the defendant\u2019s attorneys (who are the same attorneys that represent Charles E. Wetzler and Victor Fabry, individually, in the pending arbitration proceeding) have uniformly and consistently taken the position that the alleged agreement can raise issues only as between the three individuals who signed it and that the arbitration clause in it binds only them to arbitrate those issues. In this connection, it is to be noted that the original notice or demand for arbitration was made by Wetzler and Fabry, as individuals * * *. The *957motion to direct arbitration which led to the pending arbitration proceeding and the petition in support thereof were made by those individuals and were directed to Wladyslaw Sandowski, as an individual alone * * *. In that petition, Wetzler averred that pursuant to the agreement (the agreement upon which defendant bases its present motion) Wetzler and Fabry have attempted \u2018 to perform all of the aforesaid duties and obligations on their part to be performed \u2019 Judge Cardozo put it this way in Newburger v. Lubell (257 N. Y. 383, 386-387): \u201c We see no force in the objection that a waiver or of the benefits of arbitration could be inferred from the mere commencement of an action in the absence of notice that a controversy existed. \u2018 Waiver is an intentional abandonment or relinquishment of a known right \u2019 \u201d."], "id": "dd435368-7d5c-4968-a2e9-fd037f9a0ac9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Giving the relator the benefit of all doubts relative to her home life during this trying period, the subsequent events point to a definite relinquishment of her parental rights. As the court stated in Matter of Maxwell (4 N Y 2d 429, 433): \u201c The mother did not, it is true, leave her child on a doorstep, but surely an may be established by proof of conduct less drastic than that. Just as plainly, a settled purpose to be rid of parental obligations and to forego all parental rights spells out abandonment.\u201d There can be no question that the relator removed herself from the alleged domineering influence of her father when she married three months later and took up her abode in her own home. Even assuming the tentacles of the father\u2019s oppressive domination reached over and extended to her own home, such influence and control surely must have terminated and dissolved completely when her father passed away in January, 1958. Yet, in spite of the freedom she obtained by her marriage and the disappearance of any alleged fear of her father upon his death, no action was taken by her with regard to the child. It is undisputed that neither she nor her husband ever went to the police, the church, the District Attorney, Legal Aid Society, Surrogate\u2019s Court or any other agency to obtain help in locating her child. Regardless of what may have been the reason for the relator turning over her child to the respondents, her complete inactivity and indifference to locating her child until approximately three years later clearly evinces an utter disregard of the exercise of her parental duties."], "id": "2c12c3f5-0fb9-4b14-a7f5-4b698ba48ee7", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Gilbert Rabin, J. Respondent, by the instant motion, moves to vacate the judgment and warrant issued by this court on November 8, 1985, and seeks dismissal of the underlying petition for sum*80mary judgment by reason of petitioner\u2019s failure to effect proper service of the petition upon the respondent. Although neither respondent nor petitioner has attached correct copies of the aforementioned judgment and warrant, the same is contained in the original court file under docket No. SP 5186/-85. Petitioner opposes said motion on the grounds that process was properly served and that respondent\u2019s actions in seeking this relief some eight months after respondent\u2019s eviction creates a laches defense and that the respondent\u2019s actions thereafter evidence an of the premises."], "id": "56b3c2f7-4225-4c87-816a-925365d5393d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I am inclined to the reasoning in the latter case, that the burden of proving by a spouse is upon those who assert it and thereby hope to establish the right and privilege to take the intestate\u2019s property free from any claim of the spouse. I cannot conceive that the Legislature intended to put the burden of proof of a negative on a spouse claiming the right to elect, while placing the burden of proof of abandonment by a spouse on those who assert it to bar succession in a case of intestacy."], "id": "50497f7a-0298-4b74-820d-4d09d97a998d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I am aware that some cases define \"abandonment\u201d in terms of \"separation\u201d (see, e.g., Belandres v Belandres, 58 AD2d 63, 64 [1st Dept 1977] [\" 'In order to establish it must be shown that the separation is against the will and without the consent of the complaining spouse\u2019 \u201d]). However, the Merricks\u2019 unusual circumstances initially involved a separation of living quarters without a concomitant severance of the marital relationship or connection. This is not the type of separation to which these cases refer."], "id": "3559f506-1a40-46a3-900c-0cbda3a30b75", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The disqualification of EPTL 5-1.2 (a) (5) applies to several distinct issues relating to a decedent\u2019s estate: the right to serve as administrator (SCPA 1001), the right to an intestate share (EPTL 4-1.1), and the right to elect against a will in which the surviving spouse is left less than one third of the decedent\u2019s estate (EPTL 5-1.1-A). Like so much of the law, the purpose of the disqualification statute in each of these areas is based on assumptions which have, over time, evolved into policy. These assumptions (and the resulting policies) are, in turn, grounded in the conditions and mores of a particular society, at a particular time."], "id": "94ca2143-92ba-4e25-8ec1-4978e32e13cc", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Had both parties consented to such a disposition of the case at the time, their consent probably would have been an or waiver of the exceptions. (Byrnes v. The City of Cohoes, 67 N. Y., 204.) But there is no evidence of such consent on the part of the defendant; on the contrary, the case shows that his counsel excepted to the order by which the case was disposed of."], "id": "7dcc4a9d-6aa7-4e92-8e76-942d4264d024", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Further observation of rule 301 of the Buies of Civil Practice in the light of the decision in Mink v. Keim (supra) indicates clearly that this decision is not apposite here. Mink v. Keim *794{supra) was decided in 1943 prior to the adoption of the present rule 301 of the Rules of Civil Practice. The dissenting opinion of Judge Desmond, in which Judge Loughban concurred, distinguishes between voluntary nonsuits, inadvertent failures to answer the calendar and intentional , such as was occasioned in this case. Judge Lottghban, as Chairman of the Judicial Council, which recommended the adoption of the amended rule 301, was undoubtedly aware of the problem to be dealt with, for it was he who joined in Judge Desmond\u2019s strong dissent from the majority holding in Mink v. Keim (supra, p. 307) which contained the following observation: \u201c When their causes of action were consolidated with others by an order which still stands, plaintiffs could not deprive that consolidation order of all effect by standing silent at the trial or by remaining* away from it and permitting a dismissal on the merits, and then commence, without anyone\u2019s leave, a new action for the same relief.\u201d"], "id": "3239c947-fea7-4c01-a61c-9c85dd47006b", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At the time this matter was marked off the calendar, the parties\u2019 attorneys entered into a stipulation to restore the case to the calendar on consent. Thereafter, however, there ensued a 17-month period, with no activity whatsoever regarding the case, before the plaintiffs\u2019 attorney contacted the defendants\u2019 attorney to request that he sign a stipulation to restore. The plaintiffs have offered no adequate excuse for this delay. Although the agreement to restore on consent is some indication that the plaintiffs did not intend to abandon the action, the agreement alone is an insufficient ground upon which to predicate restoration, especially since there was no activity in the case during the period it was off the calendar (see, Bergan v Home for Incurables, 124 AD2d 517, 518; Escobar v Deepdale Gen. Hosp., 172 AD2d 486). Accordingly, the plaintiffs have failed to rebut the presumption of which attaches when a matter has been automatically dismissed pursuant to CPLR 3404 (see, Escobar v Deepdale Gen. Hosp., supra, at 486)."], "id": "e60ea0ca-6c22-44e1-b764-f4fa8f4eae71", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The subject of the litigation is an artificial body of water known as the Beaver Dam Reservoir in Sullivan County and Orange County. The primary issue is whether certain rights in the reservoir were appurtenant to a canal operated by the original owner of those rights, so as to be extinguished upon the of the canal; or whether they were, rather, in the nature of a profit or an easement in gross, thus surviving the abandonment of the canal and being susceptible of conveyance to a third party."], "id": "398da676-572f-44de-a065-9396840bc8b5", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cThe failure to order or make timely and proper incisions and excisions, failure to order or use a proper shunt, failure to order or take timely and proper diagnostic tests prior to surgery or prior to termination of surgery, failure to pay timely and proper attention to results of same, failure to order or make timely and proper diagnostic tests following surgery, failure to pay timely and proper attention to findings of same, failure to order or provide timely and proper post-operative monitoring and *802supervision, failure to order or provide timely and proper post-operative recovery, failure to order hospitalization to monitor patient\u2019s post-operative progress, failure to monitor patient\u2019s post-operative progress timely and properly, failure to diagnose or treat post-operative hemorrhage, improper and premature discharge of patient from hospital care, of patient needing emergency care, failure to order or perform timely and proper surgery upon patient, failure to review timely and properly surgeon\u2019s plans for patient\u2019s treatment, failure to order or provide timely and proper training to surgeons, physicians and staff treating patient, failure to order or provide timely and proper supervision for hospital staff surgeons, physicians, nurses, nurses\u2019 aides and other support staff monitoring patient\u2019s progress and treating patient\u201d (notice of intention 1\u00cd 3). It is alleged that, as a result of the improper treatment and premature discharge, Ms. Danney suffered a fatal postoperative hemorrhage at her home in the early morning hours of July 4, 2002 (id. If 4). The notice expresses the intention to commence an action seeking damages for pain and suffering and wrongful death arising out of the alleged facts (id. 1i 5)."], "id": "cbcb1b81-945f-4b0e-baa7-8644c4d5cecb", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The burden of establishing by the respondent falls upon the petitioners. The court determines that the petitioners have not sustained their burden and that the abandonment has not occurred on the part of the respondent. The courts have held that a finding of abandonment against a parent may be made only after the parent has been given the benefit of every controverted fact."], "id": "15562791-ac2f-4b47-9067-c0b124bd9e80", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When the systems board became cognizant of their error, they correctly informed the parties that they would reconvene to make a determination. Plaintiff asserts that he ordered the union on his behalf to desist and withdraw its request for the board to reconvene. The union responded by informing Messina that if his grievance was withdrawn he would be time barred from a further filing on this same issue. Withdrawal would then act as an of his claim before the board, which has sole jurisdiction over these matters. Nevertheless, Messina persisted in his demand to withdraw and, failing that, in his refusal to appear or have his counsel argue his case before the board."], "id": "4245f86f-98a7-45bb-ad28-27edf5afe2d3", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["(Ibid.) As we explained: \u201cAn appellant must direct us to the parts of the record that show the claimed error. \u2018An appellate court is not required to search the record to determine whether or not the record supports appellant[\u2019s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellant[\u2019s] position.\u2019 [Citation.] Under the California Rules of Court, each brief must \u2018[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.\u2019 [Citation.] \u2018If no citation \u201cis furnished on a particular point, the court may treat it as [forfeited].\u201d \u2019 [Citation.]\u201d (Id. at p. 626, fn. 8.) Here, appellant does something different, but equally problematic. Under the heading \u201cThe Project Description omits crucial facts,\u201d appellant provides the applicable legal standard for assessing the sufficiency of a project description, but then, in arguing that standard is not met, shifts the argument to assert the EIR provides \u201can \u2018inadequate description of the environmental setting for the project . . . .\u2019 \u201d These are separate and distinct issues. (See San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 654-659.) In order to properly raise the latter issue, appellant was required to do so under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1135 [argument forfeited for lack of separate heading].) Then, still under the heading indicating the project description is at issue, appellant challenges the EIR\u2019s impact analysis and conclusion that the Blair Road alternative\u2019s of most of the Upper Main Ditch \u201cwould not result in significant damage\u201d to the environment through flooding. 6 Finally, the argument returns to discuss the importance of an accurate, stable, and finite project description. Because"], "id": "11b4df8c-b7fa-4c7f-8b21-9cd506f5e762", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This is not a custody proceeding in which parental ties would be preserved. It is an adoption proceeding which involves severance of all parental ties with its mother, the grandparents and other relatives. Such factors are to be considered. (Matter of Ekstrom, 24 A D 2d 276.) The grandmother, as mother of the natural mother, would be the natural guardian of the child if anything happened to the mother. (See Matter of Erhardt, 27 A D 2d 836; First Trust Co. v. Goodrich, 3 N Y 2d 410.) The court must give careful consideration to severance of all ties of a child to its natural mother unless there is or the *858parent is manifestly unfit. The burden to show such is on the nonparents. (Matter of Willing, 43 N. Y. S. 2d 834; Matter of Anonymous, 32 Misc 2d 683.)"], "id": "83652194-544c-476a-a6d3-4235e906aa24", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the instant case Marlborough respondents used the existence of the 1969 agreements and its contention that those agreements were enforceable after decedent\u2019s death as a lever to extract from the fiduciaries the new agreements which were different and more beneficial to these respondents. They may not now be heard in their contention that the 1969 *859agreements should be reinstated. Apart from , the resulting massive change in position detrimental to the estate estops the Marlborough respondents from resurrecting the abandoned and superseded 1969 inter vivos contracts."], "id": "a7e91313-b758-4e25-b56e-44c9c17784f8", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The vessel Avas then simply derelict; that is, abandoned through an overwhelming necessity, having been sunk by force of the elements to the bottom of Long Island Sound, in the place where the disaster happened to her, a buoy having been attached to her bow before she sank, so that the spot where she lay might easily be found. This was not such an as would divest the owner of his property in the vessel, for that results only where an abandonment is made voluntarily by an owner with his free consent (1 Abb. U. S. Pract. 575; 2 Phillips Ins. \u00a7\u00a7 1490, 1525, 1526, 1527)."], "id": "0115899b-65ce-4999-84fb-7a5d35f4b3f6", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The appellant contends that the foregoing testimony presented a question of fact for the jury to pass upon and relies on the opinion in Parnell v. Holland Furnace Co. (234 App. Div. 567; affd., 260 N. Y. 604). In that case an automobile owned by defendant, which had been stripped of most of its parts, had been abandoned in the rear of its place of business where it remained for months; at the time of its , gasoline had been left in the tank; children in playing about had removed the cap from the gasoline tank, and later the infant plaintiff struck two stones together which caused a spark to enter the exposed gasoline and an explosion occurred, causing a fire from which the plaintiff was severely burned."], "id": "3a13e709-a464-49a1-ab6e-ba951401894f", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By the Chancellor. This is an action upon a policy on the freight of the ship Pallas, on a voyage from New-Orleans to Havre, and the right of the plaintiff to recover for a total loss depends upon the question whether there was a valid to the underwriters upon the policy on the *50ship. I shall therefore proceed, in the first place, to examine that question."], "id": "81e34b5f-eeeb-4983-aca6-86e99c537737", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Trails Act reflects \u201cthe culmination of congressional efforts to preserve shrinking rail trackage by converting unused rights-of-way to recreational trails.\u201d Preseault v. I.C.C., 494 U.S. 1, 5 (1990) (\u201cPreseault I\u201d). This temporary, or interim, use of established but unused railroad rights of way functions \u201cto preserve [such] rights-of-way for future reactivation of rail service,\u201d should the need arise. 16 U.S.C. \u00a7 1247; see also Caquelin v. United States, 959 F.3d 1360, 1363 (Fed. Cir. 2020) (\u201cThe [Trails Act] provides for blocking of \u2018,\u2019 however, despite the absence of any rail use, present or in prospect, if a proper entity agrees with the railroad to take over the rail right-of-way for trail use.\u201d) (citation omitted). According to the Trails Act, \u201cif such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.\u201d 16 U.S.C. \u00a7 1247. Commonly known as \u201crailbanking,\u201d this process \u201callows a railroad to negotiate with a state, municipality, or private group (the \u2018trail operator\u2019) to assume financial and managerial responsibility for operating the railroad right-of-way as a recreational trail.\u201d Caldwell v. United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6\u20137)."], "id": "8738e24c-cc8b-4b36-ae38-f9eae452e1b7", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Supreme Court reversed. It held this to be a \u201c major \u201d rather than a \u201c minor \u201d dispute (362 U. S. 330, 341). The majority said, per Black, J. (pp. 338-339): \u201c The railroad has argued throughout the proceedings that the union\u2019s strike here may be enjoined, regardless of Norris-LaGuardia, because its effort to bargain about the consolidation and of railroad stations is unlawful. * * * Here, far from violating the Railway Labor Act, the union\u2019s effort to negotiate its controversy with the railroad was in obedience to the Act\u2019s command that employees as well as railroads exert every reasonable effort to settle all disputes \u2018 concerning rates of pay, rules, and working conditions.\u2019 45 U. S. C. \u00a7 2, First.\u201d"], "id": "449b7234-57fa-4794-bfe8-9db25b58e8b9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The cross motion by plaintiff to discontinue her causes of action is denied. Defendant\u2019s motion for summary judgment of divorce on plaintiff\u2019s first cause of action (grounds of [Domestic Relations Law, \u00a7 170, subd (2)]) is granted and such cause is severed accordingly. In view of this determination, plaintiff\u2019s second and third causes of action, together with defendant\u2019s counterclaim are dismissed as academic. (Cf. Hickox v Hickox, 72 AD2d 688, supra.)"], "id": "7ea1d9b5-67fd-4a74-a5ba-3dcfc69b26e9", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court is satisfied that section 1425 of the Civil Practice Act which permits a tenant to interpose in his answer a claim of equitable title, specifically limits the equities to be determined by such a defense to the right of possession only on the part of the landlord, and that this court, not being a court of general jurisdiction, has no authority or power to direct the relief requested in the answer, inasmuch as such relief should be sought in a court of equity and not in a proceeding of this nature. (See Blumenauer v. Richelson, 219 App. Div. 462.) This same principle of law is reaffirmed in the Matter of Gladstone v. Drew (257 App. Div. 696, 697-698) where the court said: \u201c In this proceeding only petitioners \u2019 present right of possession may be determined. Whether upon the title reverts to the appellant Drew or to the heirs of Bassett and Peake, grantors in the deed to the school district, is not here presented. Courts have advised that when the right of possession involves title, reversion or equities, the quarrel between the parties may be dealt with better by a court of general jurisdiction. (Hoffman v. Hoffman, 212 App. Div. 531, 534; Blumenauer v. Richelson, 219 App. Div. 462.)\u201d"], "id": "580630ac-d8b5-4038-8c8f-4519aba20289", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Tlie question on the evidence was whether the defendant took' the fixtures during tlie possession by the plaintiff. If lie did, then he was liable in damages. The right of the plaintiff to remove during possession cannot well be doubted, and the violation of that right must subject the wrongdoer to an action. If the fixtures had been removed by the defendant after the plaintiff\u2019s of them by yielding.. possession, sucli removal could not, on the authorities, be regarded as a tortious taking, though the detention mi\u00bfhi be held to be unlawful. In the latter ease, a demand would be necessary, and perhaps a serious *327question might arise as to the right of the plaintiff to maintain an action of trover to recover their value. The Justice seems to have regarded a demand necessary In any event, for upon its absence from the plaintiff\u2019s evidence he found against her. The finding is the move objectionable for the reason that the defendant made no motion for a dismissal of complaint on the ground referred to or called upon the plaintiff to make the proof omitted. I think the judgment should be reversed."], "id": "1d3177f9-d1fc-4a49-bad1-4d860e643cda", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In sum, we conclude that under section 15610.07, subdivision (a)(1), \"treatment\" that is neither physical abuse, neglect, , isolation nor abduction, can constitute elder abuse if the treatment results in \"physical harm or pain or mental suffering\" even if the alleged abuser has no responsibility to care for the elder and no control of the elder's property. Accordingly, the trial court erred in dismissing Darrin's petition on the basis of Miller's claim that Darrin lacked standing: the court should have given Darrin the opportunity to present her evidence. We express no opinion on the merits of Darrin's claims."], "id": "95e8a2c7-3f89-4dd8-bb51-d1104dd3dc3f", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The word \u2018 \u2018 \u2019 \u2019 has been defined by the courts in a multitude of cases, and the definition of abandonment as it relates to an adoption proceeding where it is alleged that a natural parent abandoned an infant, and because of such an abandonment the consent of such parent shall not be required to effect adoption, is most ably defined by former Judge Cabdozo of the Court of Appeals. (Matter of Bistany, 239 N. Y. 19.)"], "id": "5e92433e-a0b5-47e6-b85c-1ec40ac5a000", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The putative father\u2019s consent is not necessary, but he must be given an opportunity to be heard in the adoption proceeding in order for the court to make a determination as to what is in the best interests of the infant. One of the issues to be heard, that may have a bearing as to the best interests of the infant, is the alleged of the putative father."], "id": "0fd7ad27-9c72-4a93-88a0-08d551fd3911", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent contends that the court must follow the procedures of a parental rights termination, a two-step process beginning with a fact-finding hearing, followed by a \u201cdispositional hearing\u201d to determine custody. This argument was used in Matter of Anonymous (101 Misc 2d 169, 170), where the petitioner contended that the \u201cstandard in Matter of Bennett v Jeffreys * * * has changed the entire field of adoption and custody.\u201d According to that standard, the court must first find (p 171) \u201csurrender, , unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody or extraordinary circumstances\u201d before it could inquire into the child\u2019s best interests. The court rejected that argument as \u201cnot supported by the law in this area. The standard in Matter of Bennett v Jeffreys (supra) is applicable in a custody proceeding, but not an adoption matter\u201d (101 Misc 2d 170, 171; emphasis supplied). The respondent relies upon the case of Matter of Sanjivini K. (47 NY2d 374) in support of her argument that the rights of a natural parent are superior to those of prospective adoptive parents and that (p 382) \u201cit is in the best interest of a child to be raised by his parents, unless the parents are unfit\u201d. However, that case unlike the present one, involved a natural mother who had never consented to an adoption and who had never surrendered her child for adoption."], "id": "9c536f73-2b15-439b-84e1-5b149f672f35", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is true that the findings of fact are confusing. This court is of the opinion that the reference to the plaintiffs \u2019 of an interest in the real property after September 1,1970 was intended to refer only to their possessory rights in the property. For it was on this date that the premises were leased by the plaintiffs to one, Frank Daniels. Abandonment of the prop-erty could not, as the defendant insurer urges, have been the basis of the court\u2019s legal conclusion that there was no binding -agreement between the parties. The basis of that legal conclusion had already been made in the earlier finding of fact (No. 5) that the written instrument was vague and indefinite and was not an agreement for the sale of real property, but rather was an agreement to make an agreement. The \u201c abandonment \u201d more properly characterized as a voluntary \u201c removal \u201d of the plaintiffs from the premises, coincident with their lease of the premises to a third party was material to the court\u2019s determination only in reference to the proper equitable relief to be made by virtue of the $35 monthly payments which plaintiffs had paid to the seller. The conclusion of the court was that such payments should not be deemed payments of interest on the unpaid balance of the purchase price, but rather payments of rent by the plaintiffs on premises from which they had departed and rented to another. ."], "id": "928e12c8-d505-48fc-b823-5ede0f8cfc73", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["That\u2019s the factual basis for plaintiff\u2019s claim that defendant abandoned him. He is gracious enough not to charge her with abandoning him in 1955 (1959) when he went off to prison, but claims the occurred in 1969 when he was released and refused his request for her to return when he found she was not at home waiting for him (Tie a Yellow Ribbon Around the Old Oak Tree)."], "id": "32f1de47-0180-420a-b7bf-70c262f2eb43", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Thus, from the whole testimony, I think it is entirely clear that the settlement of the Wood claim was entirely independent of this sewerage connection ; that this .claim was finally settled as the result of the negotiations between McClelland and Vedder, the president of the Chauncey Realty Company ; that while there had *539been preliminary talks between Lamb and McComb in relation to the grant of sewerage connection for' the houses to be erected by the Chauncey Realty Company upon its property, the exact form of that concession was not finally determined, but was to be represented by written instruments thereafter to be executed; that this concession was subsequently asked for solely upon the ground that the development of the Chauncey Company\u2019s property, as proposed by that company, would benefit McComb\u2019s property, and that to accomplish the erection of these dwelling houses and club house and the establishment there of a residential location, McComb was willing to give a limited right to use the sewer, but that no actual easement was ever granted either verbally or in writing ; that the subsequent by the Chauncey Company of its proposed improvements, the foreclosure of the mortgage upon its property, and the failure of that company to carry out its building scheme, upon the performance of which whatever promises there were were made, terminated the right of the Chauncey Company, whatever it was, and thus no easement ever became appurtenant to the property which would so attach to it as to pass by the referee\u2019s deed given in pursuance of the foreclosure of a mortgage that had been on the property prior to the time when this agreement was made, and by which the whole scheme of development of the Chauncey property, upon which whatever promises McComb made were based, was destroyed."], "id": "83ba6453-4ac4-434f-91af-a05872891295", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Barnier (43 AD2d 568, supra), the same court as in Mante reversed the trial court, which had dismissed a complaint alleging both cruel and inhuman conduct and . The court stated (p 568): \"In Mante v. Mante (34 A D 2d 134), we upheld the sufficiency of a complaint in an action for divorce for cruel and inhuman treatment which alleged that *734from the beginning of the marriage the defendant was cold and indifferent to the plaintiff, denied her sexual attention, was rigid and harsh to her and neglected and humiliated her. The proof adduced at the trial in the present case reached the level necessary under Mante to support the action. Plaintiff testified to a period of sexual denial prior to his leaving the marital residence. There was proof that defendant isolated him from family life and refused to perform her wifely duties. She also threatened to 'break him\u2019 and 'get rid\u2019 of him. Plaintiff testified that as a result of defendant\u2019s course of conduct he had sought and received medical care and treatment, could no longer properly perform in his work and had become, in essence, a nervous wreck.\u201d and (p 569): \"Nor was the proof insufficient to support a divorce on the theory of abandonment by reason of defendant\u2019s refusal to engage in sexual intercourse (Diemer v. Diemer, 8 N Y 2d 206; Mante v. Mante, 34 A D 2d 134, 137, supra). There was proof that such refusal commenced and existed for some time before plaintiff\u2019s departure from the marital residence.\u201d Stated another way, mere refusal to engage in sexual intercourse is sufficient for abandonment (assuming it continues for the statutory period), but, refusal, standing alone, does not constitute sufficient grounds for a divorce under subdivision (1) of section 170 of the Domestic Relations Law."], "id": "cf6a61e7-1f16-4862-9c44-368119ca681d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["That the defendants have the first, and, consequently, paramount title, to use the waters for propelling the machinery of their mill there *217can be no doubt. But can they go higher up and take the -water from the stream, and convey it to a different place, for the purpose of selling it to miners ? If so they can defeat the object for which they first intended it, and have ever subsequently applied it. I hold that it is not permissible for a party to abandon the use of water, which they have used as a motive power for turning a mill at a particular place, and then take the same water up and apply it at a different place for another purpose, when by so doing it will destroy a water privilege acquired by a second party, before the of the first use. The plaintiffs constructed their ditch Ho. 2, and used the water subject to the right of defendants. When the defendants were engaged in sawing, plaintiffs ceased to take water, and only appropriated it when the mill was idle. This seems to have been the understanding of both parties prior to the construction of the third ditch by defendants. But it is contended that a first locator may change the point of diversion without losing his present right. This, I grant, may often be done, but in so doing the rights of subsequent proprietors above him on the water course must not be impaired. In other words, he cannot divest himself of a right already acquired in order to assert title elsewhere to the prejudice of subsequent locators. Our supreme court has decided, and justly, that the owners of a ditch may extend it so as to convey water from where it was last used to other localities ; and I have no hesitation in saying that the defendants in the case at the bar, might at any time previous to plaintiffs\u2019 constructing their ditch Ho. 2, have preserved the water used at then* mill (which was off the stream) and taken it where they chose."], "id": "ba455b03-28a9-4edd-bb76-1c6652b30360", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Person in need of supervision (PINS) petitions had also been filed against Anthony for the same behavior. He was placed on probation and then placed with the Department of Social Services on April 22, 1999 on disposition of a violation petition. Ms. O. continued to experience problems with Anthony\u2019s behavior and voluntarily signed a judicial surrender of her parental rights on March 13, 2001. The Department of Social Services had commenced a termination of parental rights proceeding against Anthony\u2019s biological father, alleging . Anthony\u2019s biological father also voluntarily signed a judicial surrender of his parental rights on March 13, 2001 and the termination of parental rights petition against him was dismissed. Anthony was subsequently adopted by Arthur R and Maria E, his longtime foster parents."], "id": "4a99ec6a-6953-4b86-b4ae-e33701074dae", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second counterclaim is for a separation. It contains by reference all of the allegations of the first counterclaim and, altogether, presents several grounds for the separation, such as cruelty, and nonsupport, forcing defendant to execute a separation agreement by duress, etc. If defendant has more than one cause of action for separation, she should separately state and number each cause, and, moreover, she should omit unnecessary, irrelevant and immaterial allegations. Also, allegations by omnibus reference should not be made in the count unless required to support the cause of action pleaded. Finally, rule 280 of the Rules of Civil Practice requires allegations of fact, not conclusions, of which there are a number in this counterclaim."], "id": "af5220fb-2e64-4992-8d11-386256aaa51d", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Mental Hygiene Law former article 78, the committee statute, required a finding of complete incompetence. That statute provided no guidance regarding what constituted incompetence, no standard governing the type of proof required to establish incompetence, and no specification respecting the range of powers assumed by a \"committee of the person\u201d. However, a finding of incompetence resulted in a complete loss of civil rights and the accompanying stigma of total incapacity. Because of this stigma and loss of civil rights, the judiciary became increasingly reluctant to invoke article 78. This reluctance, together with the statutory preference for a conservator which appeared in both Mental Hygiene Law former articles 77 and 78, resulted in the virtual of the committee procedure (Koppell and Munnelly, The New Guardian Statute: Article 81 of the Mental Hygiene Law, 65 NY St BJ [No. 2] 16 [Feb. 1993] [hereinafter Koppell and Munnelly])."], "id": "c9b54e61-6596-481b-b2a6-c6e1bbb4a5db", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Defendant\u2019s first counterclaim/third affirmative defense is based on plaintiff\u2019s alleged of defendant in July, 1978. It is undisputed that on April 4,1978, while the parties resided in New Jersey, they signed an agreement which, among other things, stated that they would live separate and apart from one another. The agreement apparently executed in New Jersey does not conform to the formalization requirements of subdivision (6) of section 170 of the Domestic Relations Law."], "id": "e9760066-ef19-442a-9ce2-464a9f4d97cb", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". The legislative history for EPTL 5-1.2 provides: \u201cSince the cases generally hold that the substantive law of . . . is no different under these statutes than in matrimonial actions no study of this substantive law is deemed necessary.\u201d (4th Rep of Temp St Commn on Estates, 1965 NY Legis Doc No. 19, Report No. 1.14B at 275-276.)"], "id": "dc11f5d9-415e-42f7-a462-516e696f80fa", "sub_label": "US_Terminology"} {"obj_label": "abandonment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["3. Legislative history is not helpful. We first find it mentioned, in slightly different form, in the Office of Court Administration\u2019s (OCA) Proposed Uniform Rules for New York State Trial Courts (Jan. 1984). It required service of judgments in 30 days. OCA\u2019s January 1984 commentary to the proposed rules (a separate volume) said only that section 208.33 was new, but \"substantially the same\u201d as proposed Supreme/County Court Civil Rules \u00a7 202.48. The January 1984 commentary for section 202.48 says it was based on Supreme Court rules in the 1st District, in Queens, and numerous local courts. The submission was required in 30 days, and \"failure to submit the judgment timely is deemed an of the matter, unless good cause is shown.\u201d Of course, upon further consideration, the proposed 30 days were changed to 60 days."], "id": "b7c630fe-a0c6-4412-8fa9-9d9a6c9a2944", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The O. P. A. has long since ceased to exist, and after 1952 no possible conflict with any rent control law could arise from the imposition of penalty rent either for vacating without the statutory notice or continuing in possession despite the notice. When a commercial or business tenant gives notice of intention to vacate, he removes himself from the entire field of rent control (White-Way Arcade v. Broadway Turtle King, 273 App. Div. 281, 285 decided in 1948, holding that such a case fell \u201c outside the purpose and intent of the statute \u201d and authorized his even in the absence of statutory provision therefor; subdivision [g] of section 8, amended expressly in *5101949 [ch. 534] to incorporate this principle as one of the statutory grounds for eviction; section 13 of the Commercial Bent Law and section 12 of the Business Rent Law [L. 1945, chs. 3, 314, as amd. by L. 1950, chs. 326, 327] decontrolling space then vacant or thereafter vacated)."], "id": "28af6d89-532f-426b-8b56-401254dd3bb7", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case the tenant protections are predicated on the preexisting nexus between the owners and the tenants and do not involve, as did the Seawall case (supra) the obligation to rent-up vacancies. That is an important distinction, as Judge Hancock, Jr., indicated in the writing for the majority in Seawall (74 NY2d, at 112, n 11, supra): \"As we have already discussed, government has considerable latitude in regulating landlord-tenant relationships to preclude in hardship, emergency and rent-control cases, and both this court and the Supreme Court [of the United States] have upheld such efforts.\u201d (Emphasis added.)"], "id": "3f2a0ae2-55bb-42cd-82d0-599a3492bf33", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Article 7-C is the counterpart of the Emergency Tenants Protection Act of 1974 (ETPA) (L 1974, ch 576, \u00a7 4), and embodies a clear legislative intent to protect \u201cresidential occupants\u201d of \u201cInterim Multiple Dwellings\u201d (IMD) due to an \u201cacute shortage of housing.\u201d Its provisions parallel the ETPA provisions prohibiting the of \u201cresidential occupants\u201d who are not in default in the payment of rent and provide for their \u201ccontinued occupancy.\u201d The implementation of the law is delegated to a loft board."], "id": "9dee31d9-ebc0-4ee0-99ba-0129c56ba214", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cHowever, the attorney\u2019s fees award was improper. As a general rule, whatever the prior agreement between the parties, a landlord may not collect costs, penalties and other non-rent items as \u2018added rent\u2019 from a Section 8 benefits recipient unless specifically provided in the Section 8 lease (Matter of Binghamton Hous. Auth. v Douglas, 217 AD2d 897, 898; Port Chester Hous. Auth. v Turner, 189 Misc 2d 603, 604 [App Term, 9th & 10th Jud Dists]).\u201d See also Douglas v Nole (20 Misc 3d 1119[A], 2008 NY Slip Op 51394[U] [Nassau Dist Ct 2008]), holding that legal fees cannot be the basis for in a summary proceeding involving a Section 8 tenant."], "id": "bd692e8f-b65e-4159-918e-89699f68d1af", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[s]o long as all payments have been made timely pursuant to Paragraph 2a above, Purchaser shall have the right to lease the subject premises . . . The failure to make any of the payments called for . . . shall be deemed a default in the lease herein and buyer\u2019s right to the tenancy herein shall be terminated if such default is not cured within 7 days . . . Seller shall have the right to evict Purchaser and Purchaser in such event shall be liable for Seller\u2019s attorney fees.\u201d While the contract does call the use of the property during the 20-year period of payments a \u201clease,\u201d that alone is not *225enough to show an express agreement to continue a landlord-tenant relationship. Petitioner argues that the right to evict upon purchaser\u2019s default (given to him under the terms of the contract) expressly gives him the right to commence a summary proceeding. However, petitioner may seek to evict respondent via an ejectment proceeding in the Supreme Court rather than a summary proceeding, and this would be in line with the general rule of merger and termination of the landlord-tenant relationship. In the case cited by petitioner (Lind v Lind, 203 AD2d 696, 696 [1994]), the contract terms stated that \u201call payments shall be regarded as rent and the relationship between the parties shall be that of landlord and tenant,\u201d that in the event of default seller was entitled to commence a summary proceeding for the removal of the purchaser, and that \u201call payments previously made shall be considered rent and the Seller shall be entitled to retain such funds and the Purchaser shall not be entitled to any refund.\u201d Those terms clearly set forth an intention to continue a landlord-tenant relationship and expressly allow seller, upon purchaser\u2019s default, to commence a summary proceeding for the of the purchaser."], "id": "9225c5e3-0a21-404a-bf87-36f158d272b8", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the morning of December 18, 1979, the Marshal *274executed the warrant at tenant\u2019s place of business by changing the locks and providing landlord with a certificate of repossession. The Marshal did not remove tenant\u2019s property from the premises because landlord did not direct him to do so. Contrary to the contentions of tenant, this was a valid execution of the warrant. It was a legal possession, as opposed to a complete . Section 6-2 of the Marshals Handbook of Regulations provides that \"the distinction between an eviction and a legal possession is that in an eviction, both the tenant and his property are removed from the premises, whereas in a legal possession, only the tenant is removed and the property remains on the premises, under the care and control of the landlord as bailee for the tenant.\u201d The warrant was executed just prior to 9:30 a.m. on the morning of December 18, 1979. During its execution, tenant\u2019s counsel informed the Marshal by phone that two of tenant\u2019s employees were in court at that very moment to pick up an order to show cause containing a stay of eviction which had been left with the court the day before. The Marshal, nevertheless, went ahead with the eviction and was absolutely correct in doing so. He was not obligated to stop the eviction unless and until he was served with a copy of a valid order containing a valid stay. The Marshal was not served with the order to show cause containing a stay until 10:20 a.m. on December 18, 1979, when he returned to his office following his execution of the warrant an hour earlier."], "id": "b3628715-4ea4-47aa-b5f2-daba7f9e9189", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The cases and the statutes make it abundantly clear that even after execution of the warrant of , the Civil Court retains jurisdiction, in appropriate circumstances, to grant relief from its own judgments or orders (Iltit Assoc, v Sterner, 63 AD2d 600, 601; Third City Corp. v Lee, 41 AD2d 611; Papp v Maffei, 64 Misc 2d 739; CPLR 5015; CCA, \u00a7 212). This court has recently and repeatedly held that \u201c[tjhere is no doubt of the right and power of this Court to restore a wrongfully removed tenant to possession of a premises, even after the execution of a warrant, under proper circumstances\u201d (Teachers Coll, v Dzubey, NYLJ, Dec. 20, 1979, p 10, cols 2, 3, lv to opp to App Div den by App Div, NYLJ, April 10, 1980, p 6, col 6; Solack Estates v Goodman, 102 Misc 2d 504; Nelson v Kaufman, NYLJ, Nov. 24, 1978, p 12, col 1; see, also, JAR Mgt. Corp. v Foster, 99 Misc 2d 315, and cases cited). This court is empowered to grant the judgment which the Civil Court should have granted (Traubner v Alben Motor Corp., 40 AD2d 775, 776; CPLR 5522; and see Siegel, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR, C5522:l, pp 222, 223)."], "id": "228a7379-a62f-4832-9928-456a3c8160ca", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is the respondent\u2019s contention that this petition is jurisdictionally defective by virtue of the fact that he was not a resident of the subject premises pursuant to the court order when nail and mail services were made of both the notice to quit and later the petition. The court need not endeavor to undertake an exhaustive consideration of the import of a court order compelling a new residence and respondent to stay away from the premises. Unlike section 308 of the CPLR, *543\u201cactual residence\u201d is not a requirement of section 735 of the RPAPL if the petitioner does not have written notice of the respondent\u2019s new residence or place of employment. The justification for disregarding the actual residence criteria is that unlike plenary actions, \u201csummary proceedings\u201d involve expedited hearings concerning occupancy and possession rights of real property, i.e., a \u201cres\u201d as defined in the common-law legal vernacular. It is assumed that the legislature has deemed that posting of a petition challenging possession of a \u201cres\u201d at the site of the res, together with mailing same, gives adequate if not the best manner of notice of same if the respondent has not advised the petitioner of a new address in writing. (See generally Siegel, supra \u00a7 575.)"], "id": "bd53c85b-4731-4951-9e6a-d3c23abe4911", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is alleged in the complaint that the plaintiff is the owner of the property known as the Hotel Armstrong and that the premises had not been subject to rent control under the Federal rent control laws because it had been operated as a hotel within the Housing Expediter\u2019s interpretation of the term \u201chotel\u201d. On December 21,1949, the New York City Department of Buildings granted to the owners of the subject property a certificate of occupancy stating that the premises constituted a hotel. Under section 2 (subd. 2, par. [b]) of the State Residential Rent Law, the accommodations in the subject premises continued to be exempt from rent control, save as to tenants whose occupancy was continuous since December 2, 1949, because the establishment was commonly regarded as a hotel in the community in which it was located and customarily provided hotel services. Section 2 (subd. 2, par. [b]) of the rent law, was amended (L. 1959, ch. 695) effective June 30, 1959, and, pursuant to subdivision 2-b of section 4 (as amd. by L. 1959, ch. 695 and likewise eff. June 30,1959) the commission promulgated effective November 1, 1959, subdivision 10 of section 21 of the State Rent and Regulations, which, as to premises which had at one time been rent-controlled but which had been decontrolled by reason of a previous order, finding, opinion, or determination of the commission that the premises constituted a hotel, and which was now being recontrolled because it is not now being operated as a hotel within the definition of that term as contained in the 1959 amendment, fixed the amount of rent as the rent charged on July 1,1959, or the date of first renting, whichever was later. Pursuant to the same amendments, the commission promulgated subdivision 11 of section 21 and subdivision (e) of section 36 of the State Rent and Eviction Regulations, which, as to premises which had never before been controlled because it had always been regarded as a hotel but which is not now being operated as a hotel within the definition of that term as contained in the 1959 amendment, fixed a maxi*91mum rent on the basis of comparable accommodations. A proceeding was instituted by the Administrator, which resulted in an order determining that plaintiff\u2019s premises is no longer a hotel, and rents were reduced approximately by 50%. Plaintiff\u2019s premises, it is alleged, had never before been subject to rent control."], "id": "083e6b5b-9c35-4d61-907c-38338b478941", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Nor should tenant\u2019s noncompliance be excused by the fact that the stipulation did not contain a provision that no default would be considered de minimis. Nothing in the law requires the presence of such language to uphold the validity of a stipulation. To conclude otherwise, as the majority does, would permit some tenants to evade the consequences of a binding stipulation and discourage landlords from ever entering into stipulations without the inclusion of such language. Since tenant failed to tender payment pursuant to the terms of the stipulation, and there is no basis in law to excuse her failure, the Civil Court properly denied tenant\u2019s motion to stay the execution of the warrant of (see Chelsea 19 Assoc. v James, 67 AD3d 601 [2009])."], "id": "2a73d56f-63b9-4673-80a7-0714c0bb2884", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["These tenants have been long-suffering and patient. They claim, and the evidence abundantly establishes, that the various acts of the defendants and their curtailment of the various services, the cumulative effect of which is to deprive the tenants of the beneficial use and enjoyment of the premises and which constitutes a partial , were designed to make the continued presence of the residential tenants enjoying the protection of the statutory rent laws so untenable as to force their eviction in order to make possible the introduction of new commercial tenants at vastly increased rents. This scheme and design on the part of the defendants is abundantly established by the testimony of the witnesses, and the evidence of the manner and method of the operation of this building by the present owner."], "id": "bc901d69-ca26-4d33-8068-5c7cbaabee87", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Following said order of the Honorable Diane Gasworth, respondent, with the assistance of counsel from Legal Aid, obtained a second order to show cause dated September 27, 1983, which sought permission to allow respondent to *835proceed as a poor person on the appeal from the September 20, 1983 order of Judge Gasworth, a stay of the petitioner landlord and marshal from executing the warrant of pending said appeal, or in the alternative, vacating the final judgment and warrant of eviction and dismissing this proceeding or permitting respondent tenant to have a new trial or in the alternative, requiring proper service of a new 72-hour notice of eviction."], "id": "2f238ecd-6eb2-44a6-83be-25d1a89caf92", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Bradley v. DeGoicouria, 14 Abb. N. C. 53, the fact was that the plumbing work of the apartment-house occupied by a number of families, had been for some time in a defective condition, sewer gas escaped into the apartment occupied by the defendant, and the landlord failed to comply within a reasonable time with the order of the board of health to remedy the defect, and it was held that this amounted to a -constructive , and justified the tenant in abandoning the premises."], "id": "6bdc98e7-d16c-46df-b7f8-6777af7c2da6", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under the New York common law, it was held that \u201cIn every case of a sale of personal property there is an implied warranty of title, and this is analogous to a convenant for quiet enjoyment of land * * *. The effect of such a warranty is to guarantee the purchaser against or injury from other parties \u201d (McGriffin v. Baird, 62 N. Y. 329, 331 [1875]; McClure v. Central Trust Co., 165 N. Y. 108 [1900]; Burt v. Dewey, 40 N. Y. 283 [1869])."], "id": "c4be1668-3bb0-4937-b5c1-78acb2f9f590", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The dwelling involved is a two-room apartment in the rear of a store on the ground floor of the premises at 318 Bedford .Avenue, Brooklyn, New York. On or about June 6, 1955, upon the complaint of the tenant, the local rent administrator commenced an administrative proceeding, pursuant to section 36 of the State Rent and Regulations, to fix a maximum rental for the apartment of the sum of $5.50 per week. At the time, the weekly rental received therefor was $13.50 and registrations were filed by the landlord to that effect on or about December 27, 1954, and January 5, 1955. She opposed the tenant\u2019s application upon the ground that the apartment was not subject to control. The issue presented is whether the apartment in question was in fact converted from a non-housing to a housing use after February 1,1947, so as to qualify it for exemption within the purview of the State Residential Rent Law and of the State Rent and Eviction Regulations. The statute (\u00a7 2, subd. 2, par. [g], cl. [1]; L. 1946, ch. 274, as amd. by L. 1950, ch. 250) in its present form specifically exempts *437from control, among others, \u201c housing accommodations created by a change from a non-housing to a housing use on or after February first, nineteen hundred forty-seven \u2019 \u2019. The regulations (\u00a7 9, subd. 4), in their pertinent part, provide that: \u201c These regulations shall not apply to the following: * * * 4. Housing accommodations created by a change from a non-housing to a housing use on or after February 1, 1947.\u201d"], "id": "016bc832-4222-4997-a81e-ca33452ea2c6", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Bembrandt Building is one of the Carnegie Hall properties which was acquired by the city and leased to the Carnegie Hall Corporation. It adjoins the building known as Carnegie Hall. It is strictly a commercial building, used exclusively for commercial purposes. Plaintiff, Schreiber, has admitted, in a brief heretofore filed by her attorney in prior litigation, that the building \u201c has never been used for any cultural purpose\u201d. Plaintiff, Schreiber, occupies a millinery store in the Bembrandt Building. She and all the other occupants of the building have been ordered evicted by final orders unanimously affirmed by the Court of Appeals. (Carnegie Hall Corp. v. Schreiber, 15 A D 2d 916, affd. 12 N Y 2d 680.) Schreiber and her coplaintiff are joint owners of a piece of real property in this city and, by reason thereof, qualify to bring the present taxpayers\u2019 action. It is clear, however, from the papers before the court that the real purpose of the action is not to protect the interests of the city, but rather to further the personal interests of Schreiber by preventing her from the millinery store operated by her."], "id": "2f6e860b-6037-40c1-9afd-ef47922170e4", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendant\u2019s contention is that the subtenant removed from the premises because of an alleged failure of the plaintiff to keep the premises in any kind of condition or state of repair, and the defendant further contends that Mutual Designers, Inc., the subtenant, vacated the premises because of a constructive under the terms of the paramount lease between the plaintiff and the defendant."], "id": "cd4c10c2-d5d5-4b05-9442-e6b3386419ac", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Accordingly, there is no doubt but that the Rochester City Court has the power to accommodate any equitable defense, including retaliatory . This power, together with the fact that the tenant has affirmatively raised that defense in its answer which is part of the record before the court, renders spurious the argument of the landlord that this court\u2019s limited jurisdiction as an appellate court does not permit it to \u201c conjure up any inherent equity defense based upon allegations extraneous to the record.\u201d"], "id": "48580e72-4161-4ebb-92a5-295a0d2b08b3", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Associates argues, however, that People ex rel. McGoldrick v Sterling (283 App Div 88 [1st Dept 1953]) establishes that in a non plan, a purchaser of the shares allocated to an apartment does not become the \"landlord\u201d of a nonpurchasing rent-controlled tenant. Associates reads McGoldrick far too broadly. The Appellate Division held that a purchasing shareholder by merely purchasing the shares does not become an \"owner\u201d within the meaning of the then Emergency Housing Rent Control Law (L 1946, ch 274) so as to obtain the benefit of an \"owner-occupancy\u201d eviction of the nonpurchasing occupant. The language of McGoldrick (p 93), that the owning corporation \"is the landlord, not the stranger to whom its shares are sold,\u201d must be taken in the context of the court\u2019s effort to read the statute to avoid the result of unintended evictions. \"[A] statute may not be read so literally that it yields in application a nonsensical result.\u201d (283 App Div, at p 93.)"], "id": "9101c00f-a135-4fa7-aa8a-19015d1a00e5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*307This court believes that pursuant to the consent decree in Escalera v New York City Hous. Auth. (supra) the Housing Authority is obliged to conduct an administrative hearing before it may terminate a tenancy for nondesirability and commence summary proceedings seeking the tenant\u2019s . This conclusion, however, does not compel the granting of respondent\u2019s motion. This proceeding has been brought by the Kings County District Attorney\u2019s Office, not the New York City Housing Authority. While clearly authorized by RPAPL 721 (8) to bring this proceeding under RPAPL 715, the District Attorney\u2019s Office was not a party to the consent decree in Escalera (supra), and there is no basis presented on which it could be held to be bound by same. (Bronx County Dist. Attorney v Mulrain, NYLJ, Apr. 13, 1992, at 30, col 6 [Civ Ct, Bronx County], supra; Kings County Dist. Attorney\u2019s Off. v Underwood, 143 Misc 2d 965 [Civ Ct, Kings County 1989], supra.) Far from being an alter ego of the landlord, when the District Attorney is forced to bring a proceeding under RPAPL 715, the landlord must be made an adverse party to such proceeding and the landlord may be liable under RPAPL 715 (4) for substantial civil penalties and the payment of costs and attorneys\u2019 fees. Since this proceeding has been brought by the District Attorney, not the Housing Authority, respondent\u2019s motion on Escalera grounds was also denied.2"], "id": "894f3fa3-f298-4b48-bfa8-f9f81822c702", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is some conflicting authority on the necessity of obtaining a certificate of in the lower court and in some cases *356from the Appellate Term. For example, in Bromer v Rosensweig (166 Misc 2d 201 [1995]) the Appellate Term reversed the sua sponte dismissal of a licensee holdover petition, prior to a trial or even the submission of an answer by respondent. While the procedural posture of Bromer is very different from the case at bar, the sua sponte dismissal was based on the landlord\u2019s failure to have obtained a certificate of eviction from DHCR prior to the commencement of the proceeding."], "id": "16ce95fb-108c-4bdb-b8b7-5823379f8709", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Should a final order be granted as of this time, the landlord could not achieve the purpose for which it seeks the of the tenant, in that it would be illegal for it to create and construct a parking lot for motor vehicles, and the tenant would be ousted from possession. True, the tenant may have his remedy in an action for damages, as provided for under subdivision (ccc) of section 8 if the landlord shall fail to start demolition of the improvement within 90 days after the removal of the tenant, or after having commenced demolition, shall fail or neglect to prosecute the work with reasonable diligence. The landlord, unless for good cause shown, would be liable to the tenant for all damages sustained on account of such removal."], "id": "922169f9-8538-408e-8a50-fce732a8bd65", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cDefendant, STP Associates, LLC (\u2018STP\u2019), purchased the Syosset Trailer Park located at 80 West Jericho Turnpike, Syosset, New York, in 2007. Plaintiffs are the remaining tenants at the trailer park. Real Property Law \u00a7 233(e) requires each manufactured home park owner to offer each tenant the opportunity to enter into a lease with a term of not less than one year. On June 1, 2007, STP sent each tenant of the park a written lease in which it offered a one-year rental agreement. None of the plaintiffs executed the lease agreement. Therefore, as of September 1, 2007, they became month-to-month tenants of the park. In September 2007, STP terminated plaintiffs\u2019 tenancies. \u201cIn November 2007, it commenced proceedings against each of the individual plaintiffs in the Nassau County District Court, First District, Landlord/Tenant Part. In response to those proceed*492ings, plaintiffs commenced a lawsuit in Nassau County Supreme Court, entitled Amatuzio v STP, index number 021154/07 (the prior action). The first cause of action sought to void the sale of the park from Hormi Holding to STP based on an alleged violation of RPL \u00a7 233(b)(6). The second cause of action sought a court order directing STP to provide a six-month notice of change of use pursuant to RPL \u00a7 233 prior to commencing eviction proceedings. The third cause of action sought an order directing STP to modify the proposed written lease to include terms and conditions favorable to and desired by plaintiffs. The fourth cause of action alleged that the proposed rent increase by STP violated RPL \u00a7 233(g)(3) and sought an order directing compliance with that requirement. \u201cSimultaneously with the filing of the prior action, plaintiffs sought and obtained a temporary restraining order from this court preventing STP from continuing the holdover proceedings and the District Court from considering the proceedings or issuing a judgment of eviction. In denying plaintiffs\u2019 request for a preliminary injunction, this court determined that STP offered leases to plaintiffs in accordance with the statute. None were executed, thereby creating a month-to-month tenancy. (Decision of the Hon. Thomas R Phelan, dated 3/20/08, Amatuzio, et al. (2008 NY Slip. Op. 30867(H), Sup. Ct. Nassau County) (p. 4) (the prior decision). On April 29, 2008, plaintiffs filed for, and were granted, a further stay of the summary proceedings by the Appellate Division, Second Department. \u201cOne of the major contentions of plaintiffs in the prior action was that they were entitled to a six-month change-of-use notice before the commencement of a holdover proceeding against residents of a manufactured home park. In the context of the prior action, on May 30, 2008, the parties agreed in a written stipulation to the following: 1) Defendant STP retroactively withdrew all previous Notices to Terminate served on plaintiffs as if the same had never been served and retroactively restored the tenancies. The pending Holdover Summary Proceedings were withdrawn. 2) In accordance with Real Property Law \u00a7 233(b)(6), STP agreed to serve six (6) months Change of Use notices on each plaintiff *493herein prior to commencing a Summary Holdover Proceeding based on a month-to-month termination. 3) The second cause of action in plaintiff\u2019s Amended Complaint was withdrawn. 4) Plaintiffs withdrew their appeal to the Appellate Division Second Department. \u201cIn June 2008, plaintiff served a Six Month Change of Use Notice, pursuant to Real Property Law \u00a7 233(b)(6) advising defendants that the owner proposed a change in the use of the park and that their month-to-month tenancies were terminated as of December 31, 2008. Pending the expiration of the notices of termination, defendant filed Non-Payment Summary Proceedings, which were concluded by stipulation. Plaintiffs settled the non-payment proceedings by paying approximately 19 months rent of the 23 claimed due. \u201cOn August 6, 2008, the prior action was discontinued with prejudice by stipulation. Three homeowners residing at the park (Giner Bonner, Marcy Rappaport and Lisa Caramico) were not provided with the Notice of Termination when the other plaintiffs were served. Defendant was prohibited by federal bankruptcy law from giving notice to those three homeowners (United States Bankruptcy Code, 11 U.S.C. \u00a7 362). The bankruptcy stay relative to these three residents was lifted by the United States Bankruptcy Court, Eastern District of New York, on March 9, 2010 (Orders of the Hon. Robert E. Gross-man, dated March 9, 2010). These homeowners were served Notices of Change In Use on March 17, 2010, with a termination date of September 30, 2010. The court notes that on January 26, 2010, defendant also served Notices of Termination on each plaintiff advising that each of their tenancies would terminate on March 31, 2010. \u201cIn the action now before the court, plaintiffs again seek a preliminary injunction pursuant to CPLR 6311 enjoining STP from commencing any eviction proceedings against plaintiffs in reliance on its service on plaintiffs of the Notice to Quit dated September 15, 2009, that stated \u2018Six Month Notice of Proposed Change in Use of the Land Comprising Syosset Trailer\u2019s Park.\u2019 Plaintiffs also seek an order directing summary judgment pursuant to CPLR *4943212 on the first cause of action, declaring and setting forth the rights of the parties, specifying that plaintiffs are in good standing and were entitled to a written lease for a te[r]m of at least twelve months on or before October 1, 2009, containing terms and conditions, including provisions for rent and other charges, consistent with all rules and regulations promulgated by the manufactured home park owner/operator prior to the date of the offer, with rent charges identical to the rents currently paid by plaintiff; on the second and third causes of action, declaring and setting forth the rights of the parties, specifying that the Notices to Quit are null and void and of no effect; on the fourth cause of action, permanently enjoining STP from serving any further notices pursuant to RPL \u00a7 233, without leave of the court, on any of plaintiffs or until such time as the court may determine that STP is in compliance with the requirements of RPL \u00a7 233 (b)(6)(i); and declaring that pursuant to RPL \u00a7 233(b)(6), STP may only move forward to evictions based on an actual change in use, not a proposed change in use.\u201d Justice Phelan dismissed the Drasser complaint, holding that STP\u2019s September 2009 change of use notices complied with Real Property Law \u00a7 233 as a predicate to commence holdover proceedings, that plaintiffs were not entitled to further lease offerings, that the stipulation discontinuing the first action was valid and enforceable, and that plaintiffs were not entitled to injunctive relief."], "id": "e2576766-2e46-4020-846c-5b4500692189", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On March 10, 2006, the District Attorney sought and obtained from me an order unsealing the case as to both defendants in order to pursue an proceeding pursuant to Real Property Actions and Proceedings Law \u00a7 711 (5) and \u00a7 715 in the Civil Court of New York City, New York County. On March 22, 2006, the District Attorney sent a letter to the managing agent of the target premises requesting that the landlord begin eviction proceedings. The unsealed records were enclosed in the letter. They included the property vouchers, the search warrant and return and laboratory reports. The demanded proceeding was first scheduled for August 21, 2006, has since been adjourned and is now stayed pending the outcome of this motion."], "id": "08903023-514c-44b8-a19e-ce2845d0a1fd", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This action was then instituted to recover (1) $75 as damages, for breach by the defendant of the lease, being the amount of the rent for the month of September, which had previously been paid \u2022 by the plaintiff to the defendant; (2) $225 damages allegedly sustained by reason of defendant\u2019s trespass upon plaintiff\u2019s apartment and therefrom; and (3) $225 damages, representing treble damages for alleged forcible entry or detainer."], "id": "c3ecacdb-09a2-4341-b0c7-81bdf8fd6a34", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The amendment of the Code was made in conjunction with the purpose and intention of the Rent Stabilization Law which is to prevent any disruption in the housing market and to protect the public interest and welfare. The wholesale and displacement of family members, including spouses and children, would not only cause extreme hardship for many city dwellers but also would create turmoil in a city already facing an emergency housing shortage. In certain instances, such as in winter condition, it could result in life-threatening situations. This is the type of housing catastrophe which the *643Legislature sought to avoid in its enactment of the Rent Stabilization Law in 1969 and which the DHCR was empowered to prevent."], "id": "a1eeb283-06f2-4dae-bde7-891e7abc3153", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Final judgment of the court below (100 Misc 2d 120) unanimously reversed, with $30 costs, and the clerk of the court below is directed to enter a final judgment of possession in favor of landlord. Issuance of the warrant of stayed until further order of this court upon condition that tenants remove the dog within 30 days after service of a copy of the order hereon."], "id": "6ae2383b-7db4-4015-9afb-7722773c28aa", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Barbara Jaffe, J. *736By notice of cross motion dated September 6, 2006, petitioner cross-moves pursuant to CPLR 3212 for an order granting it partial summary judgment on the instant holdover petition, awarding it a judgment of possession against respondent with respect to the vault space at the above-referenced premises, issuing a warrant of , striking respondent\u2019s affirmative defenses, conforming the pleadings to the proof, and striking respondent\u2019s jury demand. For the following reasons, the motion is granted in part."], "id": "d3504874-bcfc-4355-b132-4047ff90aedd", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the meantime, a warrant was issued by this court on March 26, and delivered to a City Marshal for execution. On March 30, he notified the tenant that was scheduled for April 1. Under the circumstances, this court on March 31, 1964 signed an order to show cause temporarily staying the execution of the warrant until a hearing could be had with respect to the facts alleged."], "id": "ca1d25d5-51e6-4686-9af6-af99b1f49b7f", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The harm sought to be avoided by the provision of the Martin Act is the of tenants in possession prior to and during the conversion process. As noted by the Appellate Division, \u201cthe Martin Act reflects a public interest in protecting tenants properly in possession who do not desire or who are unable to purchase the units in which they reside, and therefore should be liberally construed\u201d (MH Residential at 104). Respondent was lawfully a tenant in possession of the subject premises as of May 6, 2014, as well as the months before and after said date. Respondent therefore qualifies as a non-purchasing tenant under the act and is not subject to eviction based on the 30-day notice of termination."], "id": "d13ff88f-0b5a-4700-bcea-fcec8afb8dfa", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Thus, Morrisania (supra) does not provide authority for this court to apply the two-year coresidency requirements of State and local regulations to the respondent herein because to do so would limit his rights as a remaining family member secured under Federal law. As Morrisania held in the same footnote as cited above (at 656, n 1), \"the rights of section 8 occupants are independently rooted in Federal law.\u201d Also, to impose such a two-year rule would be contrary to the Federal purpose of section 8: \"In sum, section 8 guarantees continued protection to every legitimate member of the family unit in occupancy. It recognizes that no such family member should suffer , dislocation and homelessness upon the death of the tenant of *450record. It is thus consistent with the original ameliorative purpose of the United States Housing Act of 1937, the comprehensive legislation of which section 8 forms a part.\u201d (Morrisania II Assocs. v Harvey, 139 Misc 2d, at 657 [citation omitted].)"], "id": "7e202027-015b-4410-a310-0daa1aaa9010", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This brings us, then, to the consideration of the only question left on this branch of the lease, to-wit, was the delay of the plumbers employed by the plaintiff in completing the repairs a sufficient ground to constitute an eviction? It appears that the plumber commenced work and did some excavating in the area about April 10th, and, for some unexplained reason, did not again proceed with the work in hand till April 18th, on which day defendant moved out of the premises. It is conceded that the defendant made no complaint to the plaintiff of the delay in completing the repairs, although she lived next door to the demised premises. The tardiness of mechanics in completing household repairs is, we think, a matter of general knowledge to all householders, and this case formed no exception to the general rule. Plaintiff employed a plumber to make the required repairs, and there is no claim that he was an incompetent person. In the absence of any complaint or notice from defendant, we think that plaintiff was justified in assuming that the repairs were proceeding in the usual way. That the delay of the plumber employed by plaintiff in not proceeding with the work commenced by him for a period of eight days was such an interference with defendant\u2019s beneficial enjoyment of the premises as to constitute an , and authorize him to abandon the premises, especially in the absence of any notice to the plaintiff of such delay, we are not prepared to hold. Here was no wrongful act on the part of the landlord. She was doing just what the defendant, through the department of health, had required her to do, and she was pursuing the usual course. She was engaged in acts calculated to add to the habitability and enjoyment of the demised premises by the defendant. While, of course, the principalis generally liable for the wrong-doing of her agents, we think that it would be a harsh and unwise application of that rule to hold, in the present instance, that, by the neglect of the plumber in promptly completing the work he was employed to perform, he could evict defendant from the demised premises so as to release him from all liability under his lease."], "id": "176fa60f-9367-4976-846c-310fe128ab7a", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On July 30, 1979, the Director of the Brooklyn District Rent office ordered that the petitioner\u2019s apartment was not subject to the rent control law. This decontrol order was mailed and received by the petitioner\u2019s attorney on August 3, 1979. Thirty-three days later, on September 5, the petitioner mailed his administrative protest, and it was postmarked the next day, September 6. Subdivision b of section 92 of the Rent and Regulations of the Office of Rent Administration provides: \"A protest against an order of a District Rent and Rehabilitation Director must be filed with the Administrator within 33 days after the date such order is issued unless paragraph c of this section is applicable. A protest served by mail, postmarked not more than 33 days after the date of such order, shall be in compliance with this paragraph\u201d (emphasis supplied)."], "id": "7b0bdd37-2a62-442d-95bd-8a3046967838", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Insofar as are here pertinent, the following statutes are under examination: The State Residential Rent Law (L. 1946, ch. 274, as amd., \u00a7 2, subd. 2, par. [h]): \u201chousing accommodations which are rented after April first, nineteen hundred fifty-three, and have been continuously occupied by the owner thereof for a period of one year prior to the date of renting \u2019 \u2019 and, to the same effect, subdivision 11 of section 9 of the State Rent and Regulations, \u201cHousing accommodations not subject to rent control * * * (h)ousing accommodations which are rented after April 1, 1953 and have been continuously occupied by the owner thereof for a period of one year prior to the date of renting \u201d."], "id": "a648c99c-107b-4e8b-b64c-f6dde286ee58", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent\u2019s fail-back argument is that even if petitioner is entitled to be restored to possession, she should not be restored as she would only be subsequently subject to by court proceeding, citing Wagman v Smith (161 AD2d 704 [2d Dept 1990]). Such a rationale should not allow the legitimation of, for lack of a better description, a \"shoot first and *298ask questions later\u201d approach. How does one know a person has no right of possession unless there first is a judicial determination of same. In the case of an apartment subject to rent stabilization or rent control the person in possession may have succession rights to the apartment. Allowing an ouster without a prior hearing leaves the respondent in the position of being the judge of the facts and the law as applied to the person in possession. To say that the respondent may later prevail at a hearing on the ouster is not a substitute for a prior hearing. One\u2019s right to be heard first should not be dependent on the other party\u2019s belief in the correctness of his actions. The individuals ousted, which often include young children, should not be made to suffer the indignity, humiliation and associated suffering involved in an ouster, on a gamble of respondent\u2019s assessment of their right to possession. That the ousted person has a right to sue for damages if wrongfully ousted is not a sufficient balm to remedy such a wrong."], "id": "64f474ac-a28a-4289-a667-1dffe059af8d", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Edward H. Lehner, J. The plaintiff in this action was removed from his apartment on July 3,1980 pursuant to a warrant duly issued in a summary proceeding in this court. Items that were in his apartment immediately prior to his were not located when he redeemed his property from the New York City Department of Sanitation, which is charged with storing property removed during an eviction."], "id": "1e67be7e-f6eb-4bd5-8f1d-42ef5c01d66c", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is still a further answer to this defense. A constructive , as claimed here, requires an abandonment of the premises without unreasonable delay. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247; Two Rector St. Corp. v. Rein, 226 App. Div. 73; Vessell v. Reisfield, 152 Misc. 464, 466; Spoken Realty Corp. v. Raddock, 150 N. Y. S. 2d 835; Bliss v. Clark, 104 Misc. 543, 545.) The landlords made it abundantly clear that they would consent to a rescission of the lease, and the tenants\u2019 offer to surrender, and the acceptance by the landlords placed the tenants under the obligation to relinquish possession of the premises. It is well established that the tenants were required to act promptly or else they forfeited the right of rescission. Continuance in *1080possession for a five and one-half-month period cannot he held to he a prompt act of acceptance. It is arguable that in the event of a claimed breach, the tenants could have waived their right to vacate, but assuming that a forfeiture did occur, the action of the tenants in holding possession for the period mentioned, and the continued payment of rent can be considered as a reinstatement of the lease with full force and effect as if no forfeiture had ever taken place. The tenants must exercise their option to abandon within a reasonable time after discovering the untenantable condition of the premises. Moreover, it is difficult for the court to believe that in the month of July, 1962, a lack of adequate heat would be seriously proposed as the basis of a constructive eviction and consequent abrogation of the lease."], "id": "5235d310-eb55-40c1-abf4-33b58712d045", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Knickerbocker Oil Corp. v. Richfield Oil Corp. (259 N. Y. 657) the Court of Appeals ruled that, where the tenant is made a party to the foreclosure action, it is the sale, bringing about a change of title, that causes the , and that before the sale occurs, the commencement of the foreclosure action involves no breach of the rental contract."], "id": "4441bfb1-1ea2-40ab-839f-3b6871c6f3a4", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On January 8, 1965, the defendant made application to the City rent agency for permission to evict all tenants residing in said buildings on the ground the defendant would immediately demolish the premises and construct a new building with at least 20% more housing accommodations than were contained in the existing buildings. (Administrative Code, \u00a7 Y51-6.0, subd. b, par. [4]; Rent, and Rehabilitation Regulations, \u00a7 58, subd. a, par. [1].) The defendant\u2019s application was granted. After exhausting all administrative and judicial remedies, the plaintiff was evicted on February 20, 1967. He was the last tenant to be evicted from the premises."], "id": "6c1827b7-cdbe-40a0-907e-d55d810f6792", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The mere existence of a violation in and of itself does not entitle the landlord to an order of under subdivision c of section 52 of the regulations. (H. Casabianca, Inc. v. Connobbio, 205 Misc. 380; H. I. M. Props, v. Gross, 6 Misc 2d 666.) The questions are whether it is the occupancy of this tenant which is illegal, and whether removal is the only available procedure to cure the illegality. It has not been demonstrated that this tenant\u2019s apartment is the one of the three which creates the illegal occupancy. Although the fact that this apartment is on the top (fourth) floor, which has no landing, is persuasive, it is not controlling. This is apparently the basis for the testimony of the Building Inspector, called by the landlord, that this tenant\u2019s occupancy is illegal. It is noted he is not the inspector who made the inspection."], "id": "b0f65d97-ebf2-451f-8860-55cf027f6ee5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Even affording landlord every favorable inference, the facts as alleged in the record do not trigger the remedy authorized by RPAPL 715 (1), an essential element of which is that the illegal use made of the premises be customary and habitual (see e.g. Grosfeld Realty Co. v Lagares, 150 Misc 2d 22, 23 [1989]; 1165 Broadway Corp. v Dayana of N.Y. Sportswear, 166 Misc 2d 939, 943-944 [1995])."], "id": "e0fb5f91-612b-4472-936b-1d0d5a53fa05", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*306An article 78 proceeding is the exclusive method provided for the judicial review of an order of the agency involved in the issuance of the certificate of (Montalbano v. De Luzio, 39 Misc 2d 834, and the cases cited therein). (See, also, 535-7 West 163rd St. Inc. v. Otero, N. Y. L. J., April 8, 1969, p. 2, col. 5; affd. N. Y. L. J., June 20, 1969, p. 2, col. 5.)"], "id": "98b2caf8-5392-4c06-99fb-15d2ee5df6e0", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Residents, on the other hand, are not to be subjected to curfews and check-ins. They may live alone and work long hours (cf., Sarraf v Szunics, 132 Misc 2d 97), travel on business (Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946), accept temporary employment or assignment (Kamvan Co. v Rammel, 130 Misc 2d 675) and not fear the loss of their home. They may sublease if not for profit (ETPA \u00a7 10-a) to help keep their home while they are temporarily away. They may also adopt life-styles which lead to the maintenance of two residences where tradition leads us to expect to find one. (Cf., Newport Apts. Co. v Schechter, 124 Misc 2d 760, affd 127 Misc 2d 793.) What they may not do is dabble in regulated residential apartments, inserting an illegal marketplace between the legitimate owner and a prospective or actual resident. Such nonresident \"investors\u201d may be evicted either by the landlord, or by a resident subtenant (cf., e.g., Rocconi v Strong, 132 Misc 2d 190) for whom all conversion plans would otherwise be plans."], "id": "6b8202f3-bdfe-4163-93a5-4b149b883f31", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court, therefore, holds that in this State, a tenant who is delinquent in rent payment, and who is still in possession, may only be dispossessed pursuant to section 711 et seq. of the Real Property Actions and Proceedings Law. Accordingly, the intentional acts of the landlord herein amount to an actual illegal of the tenant, relieving the tenant of any and all obligations under the lease. Therefore, all the causes of actions of the plaintiff are dismissed, except that the petitioner is awarded summary judgment for the rent for September, 1976 in the amount of $340."], "id": "cf36fd88-531e-4676-8079-883600d8143a", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*512Nevertheless, the equitable precept has been consistently enforced that the tenant must leave the premises to avoid the payment of rent, if constructive is claimed (City of New York v. Pike Realty Corp., 247 N. Y. 245; Matter of Westchester County Syndicate Corp. v. Menke, 250 App. Div. 782) and has been recently reaffirmed (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117). The defendant herein, therefore, could not remain in possession and not pay rent during the period of possession. On the plaintiff\u2019s complaint, therefore, judgment is awarded against the defendant in the sum of $1,200."], "id": "3a6e001a-1595-41ff-a416-89160e920650", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c g. (1) Where after the city rent agency has granted a certificate of authorizing the landlord to pursue his remedies pursuant to law to acquire possession and a tenant voluntarily removes from a housing accommodation or has been removed therefrom by action or proceeding to evict from or recover possession of a housing accommodation upon the ground that the landlord seeks in good faith to recover possession of such accommodation: * * *"], "id": "634d7795-5ad1-4ca6-9e54-12e58c89ba2e", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*145In Wouk v Harewood the relevant standard form lease clause provides: \"it is expressly agreed by and between the parties hereto that in the event of a dispute * * * whether concerning the lease or otherwise, which * * * shall result in action at law * * * or a proceeding by one party against the other and whether the form of the claim advanced is either in the nature of a complaint or a counterclaim in the action or proceeding * * * Tenant agrees to and hereby does waive any rights he may have to a trial by jury.\u201d Other clauses provide for a unilateral tenant waiver of rights to \"notice\u201d, \"proceedings,\u201d of the landlord\u2019s right to re-enter and to possession; and barring interposing any setoff and counterclaims in nonpayment cases. The unilateral nature of the tenant\u2019s waiver of rights, clearly proscribed under law, marks the unconscionability of the provisions on their face. In fact, according to the terms of this lease, the landlord has granted to itself a \"self-help\u201d right of without any process of law whatsoever within the same provision as the tenant\u2019s jury trial waiver. By commencing this proceeding, it could be argued, the landlord has waived the right to assert the entire clause including tenant\u2019s jury trial waiver."], "id": "9b57691d-de88-4be4-903e-5fa9cdd445ce", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Schweiger v. Superior Ct. of Alameda County (3 Cal. 3d 507), at a time when the California law making retaliatory a defense had not as yet become effective, the court employed the same rationale, holding that the statutory construction of California\u2019s law regarding housing mandated the court\u2019s recognition of the defense. \u201cIf we deny tenants a defense against retaliatory eviction in unlawful detainer actions \u201d the court said, \u201cwe lend the exercise of the judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights.\u201d (p. 513)."], "id": "c4c5ec04-d3a8-4a38-9a53-43bf7aa1140f", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At issue in these six consolidated nonpayment proceedings is the validity of petitioner\u2019s three-day demands for rent. We agree for the reasons stated by Civil Court that the notices, insofar as they demanded \"any and all arrears which may be due\u201d for a three-to-four-year period commencing June 1989, were too indefinite and equivocal to serve as a predicate for a summary proceeding. It is apparent that petitioner, an assignee of the rents in suit, lacks knowledge as to the amounts which may be owed and the amounts paid to its predecessors in interest. The disclosure petitioner seeks in order to ascertain the remote arrears dating back to 1989 is more appropriately invoked in the context of a plenary action."], "id": "aeadc50f-2287-4696-9f8e-1af6609c7455", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". RSC \u00a7 2522.5 (a) (2) provides: \"For housing accommodations in hotels rented to an occupant who has never had a lease, such occupant may at any time during his or her occupancy request a lease and the owner must, within 15 days after such request, grant a lease commencing on the date such request was made at a rent which does not exceed the legal regulated rent, for a term of at least six months. The hotel occupant who requests such a lease becomes a permanent tenant but the lease need not be renewed. Notwithstanding the above, an owner shall not refuse to grant a lease or to extend or continue a tenancy in order to prevent the hotel occupant from becoming a permanent tenant, except to the extent that the owner may be permitted to do so by law pursuant to a warrant of , or other order of a court of competent jurisdiction, or a governmental vacate order.\u201d"], "id": "481207b8-f959-4860-a69d-4a329eb2d7ba", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We agree that the reservation of rights provision contained in the parties\u2019 March 11, 1999 settlement stipulation contemplated the institution of an independent, plenary action in the event that tenant chose to pursue the counterclaims asserted by her in the underlying summary proceeding settled by the stipulation. Having followed that precise course by commencing a Supreme Court action mirroring the allegations of the earlier Civil Court counterclaims (an action ultimately dismissed on statute of limitations grounds), tenant may not now disregard the plain meaning of the prior settlement agreement and achieve a second bite at the apple by attempting to resurrect the counterclaims via the within motion to \u201crestore\u201d them to the Civil Court calendar (compare Greenburger v Diether, 10 Misc 3d 21 [2005] [decided herewith]). Viewed somewhat differently, \u201c[t]he dismissal on statute of limitations grounds of [the] prior [Supreme Court action] seeking the same relief against essentially the same parties is sufficiently close to being on the merits to bar the [Civil Court remedy now sought by tenant] on the ground of res judicata\u201d (Matter of Ferranti v New York City Prop. Clerk\u2019s Off., 6 AD3d 178, 179 [2004], citing, inter alia, Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981])."], "id": "70624655-4e95-43ff-9fa6-9ed1583b1b68", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Clearly, the landlord is under no obligation to accept rent after the issuance of a warrant of (Greenberg v. Cagle, 212 N. Y. S. 2d 767), because the issuance of the warrant annuls the relationship of landlord and tenant (Emray Realty Corp. v. Lloyd, 158 N. Y. S. 2d 852). However the matter continues to be a pending proceeding until the warrant is executed (Whitmarsh v. Farnell, 298 N. Y. 336). Even after execution of the warrant, the court retains jurisdiction for certain purposes (Matter of Albany v. White, 46 Misc 2d 915; Matter of Joseph v. Cheeseboro, 42 Misc 2d 917, revd. on other grounds 43 Misc 2d 702)."], "id": "866959ca-10c5-426e-b0bf-3c59a2176955", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["These decisions from over 20 years ago notwithstanding, it is common practice in New York City summary proceedings for termination notices to contain the conclusion that a tenant has failed to cure in accordance with a previously served notice to cure, but also for those notices to omit any factual allegations supporting such a conclusion. Whether or not the law requires these facts in a notice of termination, there can be no dispute that no notice of termination should be served unless a landlord has determined that the tenant has in fact failed to cure within the specified time period. Service of a notice of termination should not be an automatic activity, triggered merely by an email reminder or other tickle informing the landlord or its attorney that the cure period has expired and that the next step before a petition can be served is service of another predicate notice."], "id": "0fc49b60-c3cd-4cf5-8417-63fca2401d12", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent argues that because this proceeding has been brought against a rent-controlled tenant without a certificate of petitioner may only seek an eviction when a vacate order has been issued or the violations result from tenant\u2019s actions. (Administrative Code of City of New York \u00a7 Y51-6.0 [a] [3]; New York City Rent and Eviction Regulations \u00a7 52 [c] [9 NYCRR 2204.2 (a) (3)].)"], "id": "052e36a9-7945-4c4a-801f-6592c73e9767", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["New York City Housing Auth. v. Jackson (58 Misc 2d 847 [Civ. Ct., Bronx County, another case cited by the defendant]) involved a summary proceeding for nonpayment of rent brought by the Authority against 53 tenants who urged as a defense the alleged failure of the petitioner to supply adequate protection against criminal activity in their project. The court in that case found insufficient support for the technical defense of an alleged constructive . It is on that ground alone, readily distinguishable from the tort here. However, I can and do take issue with any conclusion that the Jackson case is authority for a rule that the Housing Authority has no obligation in any circumstances to provide police protection. The court in Jackson (p. 850) found no proof that isolated acts, widely separated in time \u201c could reasonably have been anticipated so as to impose a duty upon the landlord to increase existing security measures.\u201d The facts here beyond question point the other way."], "id": "558894a0-dc72-44c8-8404-dc92893fc89d", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Because a valid notice to cure and notice of termination (i.e., one which sets forth sufficient facts) is a condition precedent to the commencement of an proceeding, dismissal of the petition upon which the notice is predicated is required where the notice is deficient. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 788 [1980].) Furthermore, because a summary holdover proceeding is entirely the creation of statute, strict compliance with all statutory provisions is demanded. (MSG Pomp Corp. v Doe, supra, 185 AD2d, at 799-800; Berkeley Assocs. Co. v Di Nolfi, 122 AD2d 703, 705 [1st Dept 1986].)"], "id": "04f74acb-a414-406c-98b1-4919b119c6a2", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To remedy this obvious defect in our jurisprudence, the Legislature enacted section 1444-a of the Civil Practice Act. This section gives a tenant, who has been wrongfully evicted upon any one of three grounds, relief in an action against the landlord. The three grounds mentioned in the statute are: (1) Personal use and occupancy by the landlord; (2) Personal use and occupancy for his immediate family; (3) The immediate purpose of withdrawing the housing accommodations from the rental market. These are three of the grounds which warrant an under both the Federal enactments and the regulations promulgated under chapter 250 of the Laws of 1950. However, there was and still are a number of additional grounds for eviction, other than those listed in section 1444-a. Despite this fact, that section specifically enumerates only the three grounds stated above and does not grant a remedy even though there has been a wrongful eviction under any of the other grounds set forth in the regulations. It is not for the court to determine that the Legislature inadvertently failed to provide a remedy in such cases; nor is it possible to place a broader construction upon the very specific language of the statute. Therefore, I am constrained to hold that the plaintiff in this action has no remedy against the landlord, even though I were to find the eviction was wrongful or fraudulent."], "id": "0db8a3e5-18b9-4946-9622-376211cdcda5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["However, our appellate courts have held that in a proper ease a landlord has the right to include as additional rent its expenses in the nature of reasonable counsel fees and to obtain a final order of based upon tenant\u2019s refusal to pay the same (Stakser v. Rodriguez, 23 Misc 2d 954; Matter of Ross v. Novod, 163 N. Y. S. 2d 787; Barrow Realty Corp. v. Village Brewery Restaurant, 272 App. Div. 262)."], "id": "4d4376b0-76da-4bdf-81df-be8568cec431", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case, the respondents argue that petitioner never answered the December 24th letter/request to sublet. In support of this position, there is annexed to the May 29th notice of motion and affirmation by John H. Rubin, Esq., respondents\u2019 former attorney, in which he states that he did not receive any notices or letters from petitioner between December 4, 1986 and March 6, 1987. The allegation is therefore raised that petitioner surreptitiously submitted a judgment and warrant of to the Yonkers City Court on or about January 7, 1987 without notice to the respondents or their attorney and that the affidavit of service by Elaine Abraham was a \"total and complete fabrication\u201d."], "id": "4626fa51-9eba-42db-87be-e04e284b315a", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In its notice of petition, the landlord prays for a final judgment of against the tenant, awarding the landlord possession of premises: \u201cApartment No._on *507the 2nd floor, consisting of all rooms in premises known as and located at 129 East 56th Street, 2nd FL, New York, New York.\u201d (Emphasis supplied.) In its petition dated September 8, 1981 the landlord likewise describes the premises for which possession is sought as: \u201cThe all-room apartment at 129 East 56 Street, 2nd FI., New York, N.Y.\u201d (Emphasis supplied.) The landlord also alleges that Leonard Harrison is the tenant of said premises."], "id": "f12fe8ac-ee25-4488-86e4-c3b5d1206d9d", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We note that the posture of this litigation has changed since the motion court initially set the undertaking. By this decision, we have modified the injunction to permit the owner to enter the tenant\u2019s space to work on the elevator, and we have affirmed the motion court\u2019s judgment declaring that the owner is not entitled to engage in a self-help . Accordingly, we remand the matter to determine what undertaking, if any, should be set on the tenant\u2019s preliminary injunction. The court should also determine whether, pursuant to CPLR 6314, the owner should be required to post an undertaking as a result of our modification of the injunction."], "id": "96da966c-fc8e-4228-bcb0-622ae834926c", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["That argument overlooks two dispositive points. One is that any rights conferred by subdivision 7 accrue only if a conditional renewal lease had been voluntarily and timely offered to a nonpurchasing tenant. Once having chosen not to offer a cancelable renewal lease and to gamble on the plan being declared effective and sustained as an plan, an owner may not take advantage of this provision. The second is that the right to collect increases under subdivision 7 vests when the plan is abandoned, not where it is declared void ab initio."], "id": "3ab7c1ea-369e-471c-810c-2d4a71002654", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*250Less than a year later, the same landlord surfaced again in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 97 Cal.Rptr. 650, a Court of Appeal case that also involved a pre- section 1942.5 . The Aweeka case was a virtual replay of Schweiger , supra, 3 Cal.3d. 507, 90 Cal.Rptr. 729, 476 P.2d 97, but in a slightly different procedural posture. There, a group of tenants demanded the repair of dilapidated conditions, and for that, their rent was raised from $75 to $145 per month. Instead of waiting to be sued in an unlawful detainer action, they sued for retaliatory eviction. They lost on demurrer. Reversing, the Court of Appeal extended Schweiger to authorize an affirmative claim for damages. The court explained: \"We can discern no rational basis for allowing ... a substantive defense while denying an affirmative cause of action. It would be unfair and unreasonable to require a tenant, subjected to a retaliatory rent increase by the landlord, to wait and raise the matter as a defense only, after he is confronted with an unlawful detainer action and a possible lien on his personal property. ... Accordingly, we conclude on the authority of Schweiger that the complaint stated a cause of action for retaliatory eviction.\" ( Aweeka , supra , at p. 281, 97 Cal.Rptr. 650.)"], "id": "a946bf36-dc20-42be-87fe-fcfc05006491", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Edward H. Lehner, J. This action raises issues as to (1) whether a tenant who successfully defended two holdover proceedings, both of which were dismissed on procedural grounds without a determination on the merits, but whose is still being sought in a pending nonpayment proceeding, may recover an attorney\u2019s fee under the implied covenant of section 234 of the Real Property Law, and if so, (2) may *81such a fee be payable to the tenant who is an attorney and represented himself."], "id": "317751ab-c15e-453d-8c87-77e3d39d8265", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While the rent laws make no provision for co-operative apartments, they do authorize the Bent Administrator to promulgate regulations in connection with increases in rent and evictions. Pursuant to such power, the Bent Administrator has promulgated Amendment 39, effective June 30, 1955 (amdg. State Bent & Begulations, \u00a7 55, subd. 3, par. [c]) which provides the method by which owners of co-operative apartments may obtain a certificate of eviction. The co-operative plan presented by defendants is claimed to be in compliance therewith."], "id": "d1db961d-009a-42d3-b0f0-b8607fbed48b", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cPersons who may maintain proceeding\u2014 Landlord or lessor \u2014 Privity is required \u201cThe relationship of the landlord to the respondent must involve both privity of contract, based on the agreement between the parties, and privity of estate, based on the transfer of interest in the real property. (New Amsterdam Casualty Co. v National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 754, 99 A.L.R. 216 [1935]). \u201cIn other words, an owner may maintain a summary proceeding against a respondent if the owner entered into a lease or other occupancy agreement with the respondent, or if the owner succeeded to the interests of one who had such an agreement.\u201d (See e.g. 3414 KNOS LLC v Bryant, NYLJ, Jan. 12, 2011 at 25 [Civ Ct, Bronx County] [proceeding brought by owner, not leaseholder, of apartment was jurisdictionally defective and not amendable].) Based upon the foregoing, this proceeding is dismissed without prejudice to renewal because there is no landlord/ tenant relationship between petitioner and respondents."], "id": "a667f87e-dadb-4a93-822d-63ad5695cdee", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The facts are not disputed. The landlord brought suit in the Municipal Court on February 18, 1958, to evict the tenant for nonpayment of rent. On the same day, the parties stipulated that judgment be entered in favor of the landlord for $1,550, that a final order be issued immediately with a stay until February 21,1958, at which time the tenant was to pay the landlord $1,000 and upon such payment the final order was to be stayed until February 28, at which time the balance of $550 was payable. The stipulation further provided that if the agreed payments were made, the final order would be vacated and if not, a warrant could be issued ex parte and without notice on February 28. Upon submission of the stipulation to a Justice of the Municipal Court, it was \u201cso ordered\u201d. The tenant then made the initial payment of $1,000, but failed to make the payment of $550 which was due before February 28. It appears that on March 6,1958 a warrant was issued in the proceeding. That warrant has not, as yet, been executed. On March 8, the tenant obtained from the Municipal Court an order to show cause why the final order and warrant should not be vacated on the ground that there had been substantial compliance with the stipulation by the $1,000 payment. In support of the order to show cause, the tenant submitted an affidavit in which she attempted to excuse her inability to pay the additional amount of $550 because of the illness of herself and her nine-year-old daughter. Moved undoubtedly by the severity of the relief available to the landlord, the respondent Municipal Court Justice ordered, among other things, a further stay of the warrant so as to extend the tenant\u2019s time to make the additional payment of $550. That order is the subject of the present review."], "id": "ec094295-f2be-4cfa-b5b5-8250300d76c7", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But the defendant alleges, and alleges truly, in my opinion, that no other plea than an entry and will be a good bar in an action of covenant for the payment of rent. It seems to me that this is the strongest evidence of the correctness of the opinion of the supreme court, which they so strongly fortify by the cases to which they have referred, that an actual entry and eviction must not only be pleaded, but proved."], "id": "2c6ee92f-f130-45bd-969c-ce1d5bf5da1f", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The amendment makes clear that a landlord cannot use a violation as a predicate for unless either of two circumstances are proven: (1) an appropriate agency has already issued a vacate order or (2) the violation was created by the tenant. This amendment therefore rendered moot the premise of Widamo\u2019s dictum. (See, Sandflow Realty Corp. v Diaz, 64 Misc 2d 625, owner permitted to maintain eviction proceeding where uncontradicted city inspection report found gross overcrowding and where uncontradicted evidence indicated that condition was caused exclusively by the tenants.) Nevertheless, Widamo was cited, despite the change in law, as part of an alternative holding in Munroe (supra), a case involving the rights of unrelated occupants under the then-applicable law. (See, Hudson View Props. v Weiss, 86 AD2d 803, revd 59 NY2d 733, legislatively abrogated by Real Property Law \u00a7 235-f, as added by L 1983, ch 402 \u00a7 39.) Munroe is therefore also inapplicable to the case at bar."], "id": "d0d18e57-a727-43dd-b21a-a3d46e6f5305", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A little further on in the return the Justice throws light upon the above terse entries by stating in a signed statement that the \u201c Decision in favor of the petitioner in the above entitled matter having heretofore been made by the undersigned, * * * and the date for the signing of a warrant of having not yet arrived and the tenant, Minnie Loughrey, having duly made application for a re-opening of this case,\u201d he thereby ordered, adjudged and decreed \u201c that this proceeding be and the same is hereby re-opened and that a hearing upon the merits be and the same hereby is ordered and directed to be held \u201d stating as grounds for such order reasons numbered 1 through 3 set forth in substance as follows:"], "id": "28b4fabe-3c56-42ab-b9f2-0444bbea928c", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff commenced the instant action by securing an order to show cause dated December 3, 2007, which included a temporary restraining order restraining and enjoining defendants from initiating or filing proceedings against plaintiff or taking any other action to evict him from his apartment. In issuing the order to show cause, the court directed plaintiff to pay use and occupancy in the amount of rent provided in his prior lease, commencing December 5, 2007 and by the fifth day of each month, until further order of the court."], "id": "cbb4072b-0dd6-46aa-a107-97c79d2a2c08", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is a further question made by the plaintiff, viz., that, as no notice was ever served on him, the occupant of a part of the lot, the right of redemption has never been cut off. We do not think it necessary to decide that. The present case is like that of McCoy v. Lord (19 Barb., 18). The only difference is that in that case the plaintiff redeemed the lands on the last day of the two years\u2019 time for redemption; in this case the defendant redeemed the lands within the additional six months given by the subsequent section. We are of the opinion that there was no proved ; that no cause of action arose for a breach of the covenant."], "id": "5a112e70-324e-460a-b2ce-393717800da8", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The landlord certainly cannot be held liable for the conduct of strangers, and especially when relief might have been had against them by application to the police; nor can the acts of strangers, claiming under no title, produce an ; which must arise from the wrongful acts of the lessor in interfering with or disturbing the tenant\u2019s occupation. Edgerton v. Page, 1 Hilton, 320; affirmed, 20 N. Y. R. 281."], "id": "5aa2d353-21a0-4999-a95c-b647cc99f0b7", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The of the tenant is sought under the provisions of paragraph (a) of subdivision 1 of section 5 of the State Residential Rent Law (L. 1946, ch. 274, as amd.) which, among other things, authorizes summary removal of a statutory tenant when it is shown that he is \u201c violating a substantial obligation of his tenancy \u201d. (Italics added.)"], "id": "0050ccaa-26ff-4c19-b037-e68bd9af0891", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Daly, F. J. In the summary proceedings instituted by the plaintiff to dispossess the defendant, the defendant traversed the second allegation that he was indebted to the plaintiff for two quarters\u2019 rent, from the first of May to the first of November, 1863, that he had made default in the payment of the rent, that he had held over after making default, without the landlord\u2019s permission, that the rent had been demanded of him; and set up in his affidavit the facts upon which he now relies as constituting the . The present action *451was brought to recover the quarter\u2019s rent from the first of \u00a1May to the first of \u00a1November, 1863, so that the question at issue in this action, whether the defendant was indebted for that quarter, was at issue in the summary proceedings."], "id": "f035615d-5088-4952-a1d6-1b7d71e841e6", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As the Appellate Term, First Department, recently Wrote in an proceeding:17 \u201cThe manifest purpose of *411emergency rent legislation is to secure to a tenant in possession the right to be continued in possession at a regulated rental. We find the totality of tenant\u2019s conduct to be inconsistent with this objective and constitutes a material breach of the obligations of a statutory tenancy.\u201d"], "id": "3e5d4072-3cc4-4580-9357-4c8bbf6587c8", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent\u2019s defense raised the question as to the necessity of petitioner to obtain a certificate of from the Commissioner of DHCR prior to the commencement of this proceeding, as required by the regulations of the Private Housing Finance Law and 9 NYCRR 1727-5.3. Relying on several decisions of this court to the effect that since the respondent was neither a tenant nor cooperator, such certificate was not required, petitioner contended that it could proceed herein. I view this to be a very narrow interpretation of the term \"tenant\u201d especially in instances where the respondent in possession has a color of right to the apartment to begin with. When administrative procedures are set up, it is desirable that such agency be resorted to before court proceedings are commenced."], "id": "e14f0632-413b-49d6-8da7-20e03a3b1840", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["John R. Schwartz, J. In this summary proceeding, the landlord/petitioner, Cross*831roads Apartments Associates, a Federally assisted apartment complex (hereinafter referred to as Crossroads), seeks to evict its tenant/respondent, Kenneth LeBoo (hereinafter referred to as LeBoo). The sole basis for this proceeding is that LeBoo is in possession of a cat in violation of the terms and conditions of a written lease. In particular, rule 8 of that lease states that: \"No dogs, cats or animals of any kind shall be kept or harbored in the apartment for any period of time.\u201d LeBoo answers affirmatively that he is a handicapped person as defined by section 504 of the Rehabilitation Act of 1973 (29 USC \u00a7 794) and its implementary regulations (24 CFR 8.1 et seq.) and as defined by the Fair Housing Amendments Act of 1988 (42 USC \u00a7 3602 [h]) and its implementary regulations, by virtue of his mental illness."], "id": "e4727fe7-591d-422a-a195-5a807815bbe2", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The issue of whether a wife is a necessary party to an proceeding is therefore not subject to determination as a matter of law, but only upon consideration of whether she has \"independent possessory rights\u201d based on the particular circumstances of her occupancy of the apartment. Thus, petitioner\u2019s motion to dismiss respondent\u2019s defenses must be *757denied because based solely on the untenable claim that a wife has no tenancy rights independent of her husband\u2019s. Conversely, respondent\u2019s motion to dismiss will not be granted as a matter of law simply because he has a wife who was not named as a party. Rather, in seeking dismissal for failure to join his wife, respondent has the burden of showing that the circumstances of his wife\u2019s occupancy are such that she is a necessary party in whose absence \"the court should not proceed.\u201d (See, CPLR 3211 [a] [10].)"], "id": "569f2266-9eb0-42ca-b4f3-9bca7ca3b1ec", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Helen E. Freedman, J. Faced with imminent for nonpayment of rent from long-term or otherwise desirable residences, Jannett Doyley and several petitioners-plaintiffs interveners (collectively, *653plaintiffs) applied for Emergency Home Relief (EHR) grants to pay the arrears and retain their homes. The applications were denied on the ground that their individual or family income exceeded 125% of the Federal income poverty line, a ceiling prescribed by a recent amendment to the regulations governing the EHR program.1 The amendment at issue was first adopted as an emergency regulation and then on a permanent basis by the New York State Department of Social Services (DSS), which administers the EHR program. Defendant-respondent (defendant) was acting Commissioner of DSS."], "id": "87be99bf-3c7d-44c6-88df-b0558d39d717", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On August 12, 1982, the United States Court of Appeals affirmed the District Court\u2019s decision. The tenants then moved in the Civil Court to vacate the final judgments and warrants of based upon the 1982 Loft Law. On August 16, 1982, a Civil Court Judge signed an order staying any eviction of the tenants pending hearing of their motion. On August 17, 1982, the landlord applied to that Judge to vacate the stay. The Judge, after hearing both sides, substantially denied the landlord\u2019s application, stating that the new loft legislation presented an overriding issue that had never been before any court."], "id": "dee4749a-35d7-4724-b296-7aa6025e5ec5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It must be held on this record that landlord railed to sustain the burden of proof to warrant an on the grounds of malicious damage, refusal to grant access for necessary repairs, or nuisance interfering with the safety and comfort of landlord and other tenants in the use of housing accommodations. The charges as to false complaints of forgery relate to the agent personally and may not serve as an independent ground of eviction, although admissible on the question of tenants\u2019 intent. Such evidence, as well as that dealing with a similar forgery complaint concerning tenants \u2019 alleged filing of a wholly unwarranted application, for a rent decrease, was neither clear nor complete. Assuming that these charges are connected with the issue of nuisance in the use of housing accommodation, which is the basic ground for which an eviction is permissible, it would be necessary to produce the original evidence supporting them and not rely upon the testimony of interested persons. The final order in landlord\u2019s favor is not justified on the basis of the evidence presented by her on this trial. There may be substance to her complaints, but the proof given fell short of the requirements reasonably imposed to protect tenants during this emergency period. This determination is not to be construed as a vindication of tenants\u2019 position but simply as holding that the proof elicited was insufficient."], "id": "32c1d2b9-efe8-4b50-a9e4-6a477671680d", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c17. First, as mentioned above, there was no delay as the Lender and Landlord requested that I refrain from qualifying while said parties attempted to negotiate a resolution to the foreclosure lawsuit. Secondly, the issues relating to the Parking Garage began long before I was appointed *206Receiver. Moreover, had I qualified at an earlier date and collected the monies during the period in question, the funds collected would not have covered the cost of the repairs of the Parking Garage, which is over $8 million dollars! Lastly, the repairs to the Parking Garage constitute a capital improvement, and the Appointing Order does not authorize me to pay for such improvements. \u201c18. For these reasons, Respondent cannot hold me responsible for the closure of the Parking Garage.\u201d As of November 11, 2015, respondent owes $415,932.30 in rent and additional rent for which respondent was billed. Petitioner requests a money judgment with a judgment of possession and warrant of ."], "id": "f82a5d99-95ae-442d-9c55-d7b086c23561", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I think the motion should be denied upon the following grounds: There are two questions which the magistrate before whom the summary proceedings for are now pending, will be bound to determine upon the trial before him: Eirst, whether the relation of landlord and tenant exists, as stated in the complaint before him, and, Second, whether the tenant is holding over after her term has expired. As to the former, there will of course be no difficulty. The latter fact will be established, prima fade, by the lease itself, proof of notice to quit, and a refusal of tenant to go. But if the defendants in those proceedings shall succeed in establishing the fact that the landlords, for a sufficient consideration, had, prior to any notice, agreed even by parol with the tenant, to waive and abandon their right to give the ten days\u2019 notice, or in other words, had undertaken that they would not exercise such right, it will follow that at law as well as in equity the subsequent giving of the notice in violation of that agreement must be held to be void and of no effect, and therefore that the tenant is not holding over contrary to the terms of the sealed lease. There is not a single question raised by the complaint in this action which may not properly be inquired into and determined by the magistrate before whom the summary proceedings have been instituted. He has full jurisdiction to hear and determine al,l those questions, and for that reason this court ought not by its injunction to restrain the plaintiffs in the summary proceedings from prosecuting the same."], "id": "c8a1ac9a-4821-45fd-a076-2c7a5cc70e84", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The parties consciously chose to chart the procedural course of this action when they filed a motion and cross motion for summary judgment. In its cross motion for summary judgment, petitioner expressly alleged that respondent breached its obligations pursuant to the lease and the law by illegally subletting and profiteering. Petitioner specifically sought a final judgment of possession and a warrant of . At this point, the case was no different from any other summary proceeding based upon alleged illegal sublet or profiteering. As in the original complaint, petitioner alleged that respondent took occupancy pursuant to a written rental agreement which is used to calculate the legal rent for the subject loft. Both the complaint and the moving papers alleged that respondent violated the law and impliedly his lease by collecting an amount in excess of the legal rent. The basis for the claim of an illegal sublet is found in the prohibition on subletting set forth in the lease as well as in the prohibition on subletting set forth by statute, incorporated by implication into the lease."], "id": "b9385050-9f39-4b19-908d-2b8c3eb519f8", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The statutory protections against retaliatory are set forth in section 223-b of the Real Property Law, which applies to \u201call rental residential premises except owner-occupied dwellings with less than four units.\u201d (Real Property Law \u00a7 223-b [6].) It provides, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for"], "id": "9d4765a5-fb2f-47b8-a0d2-29ed7e6fbc71", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This is manifest upon referring to the early cases. In Cibel v. Hills (1 Leon., 110; 18 Vin. Abr., 513, tit. Rent, 1, subd. 2), it was held that the possession must be in the landlord, to suspend the rent. In Reynolds v. Buckle (Hob., 326 a), the defendant pleaded that before rent became due, \u201c the plaintiff did enter upon him,\u201d but did not say that \u201c he expelled him or held him out;\u201d and it is said, in the report of the case, that, as a plea in bar, it was insufficient. In Jones v. Boddinger (Comb., 380), it is said expulsion makes the first part of the bar, and holding out, the rest. In Arnold v. Foot (3 Keb., 453), the plea was declared bad, because it did not say expul-it or amovit, nor that the plaintiff continued in possession, as it ought to be, being pleaded by way of suspension. In Hunt v. Cope (Cowp., 243), Aston, J., said: \u201c All the cases in the books suppose the lessee to be put out of possession; therefore, merely saying that he is deprived of the enjoyment of the premises is not sufficient,\u201d and the plea was held no bar. The distinction which runs through all the early cases\u2014that it is the deprivation of the possession of the whole or of some part, by the wrongful resumption of it on *9the part of the landlord, which works the suspension or extinguishment of rent\u2014has been recognized and acted upon in several American cases. (Briggs v. Hall, 4 Leigh, 485.; Jackson v. Eddy, supra; Bennet v. Bittle, 4 Rawle, 339; Cram v. Dresser, 2 Sandf. S. C., 120; Wilson v. Smith, 5 Yerger, 399.) In this last case it is said: \u201c An interference by the landlord, unless the tenant be wholly evicted and expelled from the possession, is not a discharge from the payment of the stipulated compensation ; but makes the enterer upon his possession a trespasser, liable to make satisfaction for the damages in the appropriate actionand it was further remarked, that the relation of tenant continues as long as the tenant continues to hold the possession. Sometimes the distinction between a mere trespass and an is very close. As in Briggs v. Hill (supra), where the landlord entered upon a farm he had demised to the tenant, and mowed the meadow-land. This was held to amount to an eviction, because the principal enjoyment and possession of a meadowland is the taking and using the hay, and the man who does this is, to every rational purpose, the possessor. This was an extreme case, for declaring that the possession of part of the premises demised was in the landlord and not in the tenant, but it shows that this change of possession must take place or there is no eviction."], "id": "ec398d80-dac5-45fc-826d-4728ad394577", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On May 31, 1983, the Loft Board promulgated a regulation that authorized landlords of registered IMD\u2019s to bring proceedings against residential occupants whose units were not their primary residences. (New York City Loft Board, Rules and Regulations Relating to Determination of Interim Multiple Dwelling Status and Issues of Coverage and Bases for Eviction under Article 7-C of the Multiple Dwelling Law, \u00a7 J[l][a], The City Record, June 7, 1983 [hereinafter cited as Rules & Regs on Bases for Eviction].) This regulation was purportedly promulgated pursuant to section 1105 of the New York City Charter, section 282 of the Multiple Dwelling Law and the Mayor\u2019s Executive Order No. 66.1"], "id": "25d03c2d-17dc-4f99-aeb7-3d51e7432d2f", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As noted above, Mr. Huggins did not file a written answer, and the only defense he raised at the pretrial conference was that his lease was still in effect. He did not raise a retaliatory defense until he began to testify on the first day of trial. Because retaliatory eviction must be asserted as an affirmative defense, the court may consider that defense, therefore, only if Mr. Huggins\u2019 answer is amended to include it as such."], "id": "60979886-cee3-4947-88a6-015ca8c0f0e5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Accordingly, the petition is granted and the orders reviewed herein and the certificate of issued thereunder are vacated, for the reason that the determination of the respondent was not in keeping with established administrative principles, set forth in Matter of Everly v. Weaver (7 Misc 2d 965, 976977). However, the matter will be remanded to the respondent for further consideration, including the making of specific findings as to the time elements herein indicated and appropriate findings on the evidence as to the controlling factors warranting the issuance of a certificate of eviction, if it be found upon such further consideration that eviction is appropriate."], "id": "84de8c5a-8bb6-482c-961e-d8f4581241a8", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At the time the petitioners and Anderson took title, the *6ground floor apartment was vacant and the other two apartments were occupied by rent-controlled tenants. Anderson immediately began to renovate the ground-floor apartment with the intention of occupying it himself, and on February 14, 1975 petitioner Sperrazza applied to the Central Unit of the Department of Rent and Housing Maintenance for a certificate of eviction of the tenant occupying the second-floor apartment and petitioner Schiller made a similar application with respect to the third-floor apartment. Each sought the apartment for his own personal use and occupancy. Petitioners\u2019 applications were denied by the Director of the Central Eviction Unit on October 9, 1975 and thereafter, on October 28, petitioners filed individual protests against the orders of denial. The protests were consolidated by respondent commissioner and on February 4, 1976 he issued a single order denying them. The basis for respondent\u2019s determination, as set forth in his order and opinion, was that petitioners and Anderson were not tenants in common but were members of a co-operative association, and that as such, they were required to comply with subdivision c of section 55 of the regulations, which they had concededly not done."], "id": "547e952c-1601-454e-b9cd-4b66fbbd0292", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Katherine A. Levine, J. The first issue presented is whether a commercial lease term can be terminated automatically when a tenant defaults in payment of rent or real estate taxes, and the landlord previously violated the lease resulting in a judgment for the tenant which remains unpaid. The second issue is whether the tenant established a valid defense to the holdover by showing that the judgment amount in the tenant\u2019s favor exceeded the unpaid real estate taxes claimed as the basis for ."], "id": "f92c6e63-4c0c-49d0-a0be-84411f4cf04e", "sub_label": "US_Terminology"} {"obj_label": "Eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The petitioner claimed that respondent\u2019s decision is arbitrary and not warranted by the facts or law. The respondent contends that it acted in accordance with its interpretation of subdivision b of section 21 of the Rent, and Rehabilitation Regulations of the City of New York. This section provides that \u201c b. For housing accommodations for which there was no maximum rent in effect on April 30,1962, and which were rented subsequent to April 30, 1962, the maximum rent shall be the first rent charged \u201d, Petitioner contends that by the term \u201c the first rent charged \u201d is meant rent actually collected under a valid rental agreement. The respondent contends that the Edwards lease was binding on the petitioner until disavowed by Edwards and established the first rental charged, even though the tenant Edwards never entered into possession. The Edwards lease, when executed and until disaffirmed by Edwards, was a valid lease and enforcible by Edwards against petitioner. It certainly was evidence of what the petitioner thought the proper rental of the apartment should be at the time. The interpretation by respondent of its own regulations is entitled to great weight (Hotel Armstrong v. Temporary State Housing Rent Comm., 11 A D 2d 395) and, even if the court might have arrived *864at a different conclusion, should not be disturbed unless the decision is clearly arbitrary and contrary to law. Under the circumstances here, the decision of respondent fixing the rental of this apartment cannot be considered arbitrary or contrary to law. The petition is dismissed."], "id": "e5322547-bdf7-4bb4-9f57-d11c0a7ebb16", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*593All the cases distinguished above involve properties held out as residential units where the tenants presumably received the benefits flowing from the occupancy of a residential dwelling including but not limited to heat, sanitation, and rent regulation statutes. In the case at bar, the petitioner contends these buildings are commercial buildings with permissible AIR occupancies and that substantial compliance with the external structual safety requirements of article 7-B of the Multiple Dwelling Law and local housing codes, relieves him of the penalties imposed for failing to comply with sections 301 and 325 of the Multiple Dwelling Law and section D2641.01 of the Administrative Code. However, the respondents have not had the legal benefits of multiple dwelling status and their occupancy, in violation of the commercial certificate of occupancy makes them subject to at any time. The Multiple Dwelling Law and the Administrative Code were designed to \"discourage landlords who would ignore building restrictions and offer an illegal apartment to an unsuspecting tenant. It further serves to penalize the owner as well as protect the tenant from eviction at the whim of the landlord.\u201d (Corbin v Harris, supra, p 483.) Accepting the petitioner\u2019s argument would result in owners circumventing the statutory scheme regulating multiple dwellings and render meaningless the public purposes of the protective framework of housing safety, health and land use laws."], "id": "b49bde4e-dcb6-4b6e-9c29-5c616acd0340", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This holdover proceeding was commenced in October 1990 based on nuisance, specifically the accumulation of newspapers and debris in respondent\u2019s apartment causing a health and fire hazard (see, Frank v Park Summit Realty Corp., 175 AD2d 33, mod on other grounds 79 NY2d 789). After numerous adjournments and stipulations, giving respondent ample time to cure with the assistance of numerous community organizations, which cure was not effected due to respondent\u2019s refusal of access to her apartment, a stay of the warrant of was lifted."], "id": "bb87c73f-c3ee-4b64-b5a8-2c2a51523eeb", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["J. Kevin Mulroy, J. This is an appeal from a decision/order of the Syracuse City Court, dated December 23, 1996 (172 Misc 2d 254), dismissing the petitioner-appellant\u2019s petition for recovery of real property from respondent, a public housing tenant. The stipulated facts are that on May 3, 1995, the respondent\u2019s usual babysitter became unavailable and the respondent asked the father of her child to come to the premises which are the subject of the peti*401tion in order to care for the child while respondent worked. While respondent was at work, respondent\u2019s child\u2019s father invited two other people to the premises and they sold drugs from the premises and, as a result, were arrested. Petitioner, citing (among other cases) City of S. San Francisco Hous. Auth. v Guillory (49 Cal Rptr 2d 367, 41 Cal App 4th Supp 13) and Minneapolis Pub. Hous. Auth. v Holloway (1995 Minn App LEXIS 1028 [Minn Ct App, Aug. 15, 1995, Holtan, J.]), contends that a tenant can be evicted from public housing based on conduct which a tenant cannot reasonably foresee, prevent or control. The lower court disagreed, holding that when a public housing tenant is not personally at fault for the drug-related criminal activity of a guest, good cause for termination of the lease and does not exist. Petitioner appeals from that determination."], "id": "6b02b4df-843c-4565-bc3f-bff745b6d0f5", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This proceeding, brought in the commercial landlord/ tenant part, seeks the of the respondent tenant and undertenants on the basis that their commercial lease has expired. The court has ruled above that the tenancy of the fourth floor that is the subject of this proceeding contains four separate residential, not commercial, spaces. The court has also ruled that there are four other spaces in the building that have been converted to residential use. The building is, therefore, a multiple dwelling within the meaning of Multiple Dwelling Law \u00a7 4 (7). The petitioner has failed to plead and/or prove at trial that a multiple dwelling registration has been filed for this building, as required by Multiple Dwelling Law \u00a7 325. It is also clear from the evidence that the residential oc*401cupancy of this building is in violation of the certificate of occupancy and, thus, violates Multiple Dwelling Law \u00a7\u00a7 301 and 302. Moreover, RPAPL 741 requires that a petition properly allege the multiple dwelling and rent regulation status of the building. The failure to allege a multiple dwelling registration where one is required compels the dismissal of this proceeding. Similarly, the failure to allege the rent regulation status of the building where the building qualifies for such status compels the dismissal of the proceeding. As petitioner has failed to plead and prove the filing of a multiple dwelling registration or registration of the unit with the Division of Housing and Community Renewal as rent stabilized, the petition is dismissed."], "id": "438dd413-e5ad-4fdd-b917-ccc8e9130945", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this action for unlawful , the jury awarded plaintiff $2,000 for economic loss, $133,000 for pain and suffering, and $100,000 for punitive damages, for a total of $235,000. The court granted defendants\u2019 motion to set aside the verdict and ordered a new trial unless plaintiff agreed to accept a reduced sum of $21,000 computed as follows: $2,000 for economic loss and $5,000 for pain and suffering, for a total of $7,000, which sum was to be trebled pursuant to RPAPL 853 to $21,000."], "id": "6a8f2f3d-1f8f-4c51-875d-878664a39661", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Hosey v. Club Van Cortlandt (299 F. Supp. 501, supra) the Federal court faced the same problem and had available to it the same cases which are available to us. It held the law in New York unsettled \u201c whether retaliation is a defense to a holdover proceeding\u201d (299 F. Supp. 501, 507). It denied the preliminary injunction for a lack of the threatened constitutional violation which would have been present were it settled in New York that such a defense could not be raised. At the least, we concur with the reasoning of the Federal court. At the most, we feel that the same cases settle the law in New York to permit the defense of retaliatory to be raised in a summary holdover proceeding. (See Club Van Cortlandt v. Hosey, *256N. Y. L. J., June 11, 1970, p. 2, col. 2; Portnoy v. Hill, 57 Misc 2d 1097.) Of the seemingly contradictory cases Matter of New York City Housing Auth. v. Gantt (57 Misc 2d 447) did not involve a defense of retaliatory eviction, and Lincoln Sq. Apts. v. Davis (58 Misc 2d 292) which was affirmed without opinion by the Appellate Term (64 Misc 2d 859) was, by the same court in Club Van Cortlandt v. Hosey (supra), limited to its own facts with such succinct finality as to make it practically an orphan and deprive it of hope for posterity."], "id": "00fc7509-f633-4546-9480-c6110edc8b10", "sub_label": "US_Terminology"} {"obj_label": "eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Clearly, so far as stated the council was within its power to enact a local law addressing the power of a landlord to procure an . But the third paragraph, however, of section 1 of chapter 372 of the Laws of 1971 contains a so-called Urstadt restriction, herein set forth in pertinent part: \u201cNo housing accommodations presently subject to regulation and control pursuant to local laws * * * [and] ordinances adopted or amended under authority of this subdivision shall hereafter be by local law or ordinance subjected to more stringent or restrictive provisions of regulation and control than those presently in effect.\u201d"], "id": "0b56d723-df05-41e8-aa80-45a0b38cfb68", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The answer in this case shows a disturbance of the beneficial enjoyment, but no interference with the possession. Any trespass upon the premises demised is a disturbance of the beneficial enjoyment, but an interference with the possession is either an entry under color of right or assumption of title, or an absolute deprivation of the possession in whole or in part. The answer does nob show an eviction, total or partial, or any unlawful injury to the premises in violation of the contract. There is implied in the contract, being a demise or letting for a year, a covenant for (The Mayor of New York v. *11Mabie, 3 Kern., 151); but a covenant for quiet enjoyment, whether express or implied, relates only to title, and not to the undisturbed enjoyment of the premises demised when there has been no eviction, or entry under assumption of title. (Howard v. Doolittle, 3 Duer, 474; The Mayor of New York v. Mabie, 3 Kern., 151; Lloyd v. Tompkins, 1 T. R., 671; Platt on Covenants, 312-320.) Nothing of that kind appears by the answer. It sets up'a trespass not made under an assumption of title nor resulting in an eviction, and therefore no breach of the contract of hiring. It is not then a cause of action arising out of the contract, and as the contract is here the subject of the action, it cannot be said to be connected with the subject of the action."], "id": "38bced4e-1d3d-43a6-b7bc-1edfed6a5239", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Furthermore, the right to a declaratory judgment is discretionary; and this court may decline jurisdiction (Rules Civ. Prac., rule 212) where existing forms of action are reasonably adequate to protect the interests of the plaintiff and there is no necessity for seeking a declaratory judgment (Newburger v. Lubell, 257 N. Y. 383 ; James v. Alderton Dock Yards, 256 N. Y. 298; Balkan Demolition Co. v. Yorkshire Ins. Co. of N. Y., 3 A D 2d 902; American News Co. v. Avon Pub. Co., 283 App. Div. 1041). Plaintiff has traditional remedies available; among others, it may sue for damages for breach of lease, for breach of covenant of , for constructive eviction, or it may remain in possession and sue for any breach, or it may make repairs and sue for reimbursement."], "id": "c408866f-7318-4cc6-8c6b-aef476433daf", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Jekyll, the parties stated in the lease that the interest of the lessee was an estate for years and that the lease created a \u201cleasehold estate.\u201d Second, the lessee had a right to extend the lease upon expiration of the 55-year term. Third, the Diversified Golf, LLC., lessee had the right to encumber its interest in the property as security for loans. Fourth, the lease contained a covenant of for the lessee\u2019s benefit. Finally, the restrictions placed on the use of the land in [Diversified] are much greater than those in Jekyll, where use of the property was not burdened with wastewater disposal. Here, Diversified\u2019s use is severely restricted and always subject to use as a wastewater spray field."], "id": "e87f6363-6a9d-48da-887d-b9b05cf7c2f3", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In opposition to Knight's motion, Salima argued that she was lawfully in possession of the premises, and retained all legal rights of possession up to the time she was dispossessed following the completion of the unlawful detainer process. With regard to the conversion claim, Salima argued that Knight's defense that Salima had abandoned her property was legally deficient because her claim was based upon environmental contamination, and that the act of conversion was completed when her medical equipment and supplies were contaminated as a result of the raw sewage spill. She also argued that the abandonment defense was factually deficient because Knight failed to show that she complied with statutory notice requirements that apply when premises are vacated. With regard to the breach of the covenant of claim, Salima agreed with Knight's assertion that this kind of claim does not apply to commercial properties, but argued that the allegations of the claim adequately pleaded a claim for constructive eviction; she asked the court to ignore the label of the claim and treat it as a claim for *845constructive eviction. Addressing the nuisance claim, Salima argued that Knight's illegality argument was baseless, and that there were disputed factual issues raised by Rahim's testimony. Salima argued that the negligence/strict liability claim could not be resolved on summary judgment because there was evidence that Knight was given notice of plumbing problems in the past, and was given notice of the sewage issue immediately after it occurred. With regard to the contract interference claim, Salima argued there were factual disputes regarding Knight's knowledge of the sale and the fact of the sale; she noted there was a signed contract for the sale, and that her deposition testimony that she did not sell her practice was of \"no moment\" because she was not involved in the business end of the practice. Finally, Salima argued there were no grounds to grant summary adjudication of the section 17200 claim because it is based upon her other claims, all of which should survive summary adjudication."], "id": "a3dd020a-66c6-45a7-a843-5c37ad2fc90b", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As a counterclaim, Greenwich-Kinney asserts that under paragraph FIFTH it had the right to erect a car wash and, accordingly, Texaco\u2019s refusal to permit the assignment to Black Hawk for such purpose was unreasonable. It seeks a declaratory judgment to the effect that (1) the car wash is a permitted use under the lease as incidental to parking; or (2) circumstances beyond its control having prevented it from operating the parking lot *821profitably, it is entitled to use the premises as a car wash under paragraph FIFTH. Finally, Greenwich-Kinney seeks recoupment of rents paid since August 1,1969 based on Texaco\u2019s alleged breach of by its refusal to consent to the assignment."], "id": "e6d5501f-39b6-413b-b3c6-fa27018cb02c", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["24 CFR 450.3 (c) defines the term \u201cmaterial noncompliance with the rental agreement\u201d to include one or more substantial violations of the rental agreement or repeated minor violations of the rental agreement which disrupt the livability of the project, adversely affect the health or safety of any person or the right of any tenant to the of the leased premises and related project facilities, interfere with the management of the project or have an adverse financial effect on the project. Petitioner has elected to charge the tenant with one or more substantial violations of the rental agreement."], "id": "2bf87d53-91ca-4d4c-8f26-2461816182b9", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Richard F. Braun, J. Plaintiff is suing defendants for damages for breach of the covenant of , pursuant to the New York City Smoke-Free Air Act (Administrative Code of City of NY, tit 17, ch 5 \u201cand/or\u201d Public Health Law art 13-E), and for nuisance. Defendants 370 Lexington Avenue, LLC and Murray Hill Property Management, Inc. moved for summary judgment dismissing the complaint and all cross claims. By stipulation, the branch of the motion addressed to cross claims was withdrawn."], "id": "e0b5216f-58c2-48f6-bdf1-b135a4959240", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The main question on this appeal is whether the sale under the surrogate\u2019s order, the purchase by defendants and deed to them, '' operate to perfect a liability in favor of defendants against plaintiffs\u2019 assignors, on their covenant of warranty in the deed to defendants. In the case of Cowdrey v. Coit (44 N. Y., 382) the grantee, in a deed containing covenants of warranty and of , became himself the purchaser on the foreclosure of a prior mortgage and then sold his bid to a third party, surrendering to him the possession on his obtaining the sheriff\u2019s deed, and it was held to be an eviction and available as a defense to an action on a bond for purchase-money, and the court say (p. 388) it was immaterial *230whether the grantee or the third party took the sheriff\u2019s deed; there was in equity an eviction, the defendant was dispossessed under a title paramount to his own, and there was a failure of the consideration of the bond. This proposition was said to be authorized by the case of Hunt v. Amidon (4 Hill, 345). There the plaintiff, being entitled to the benefit of a covenant of the defendant for quiet enjoyment, brought an action in assumpsit to recover of defendant the amount paid by plaintiff upon his purchasing the premises upon a foreclosure sale of a prior mortgage. It was held the plaintiff could recover. In Waldron v. McCarty (3 Johns., ,471) the action was of covenant and the declaration set out a covenant of defendant for quiet enjoyment, the existence and foreclosure of a prior mortgage and a sale, and that the plaintiff was obliged to purchase the premises in order to prevent his being deprived and ousted of them. On demurrer the declaration was held bad as not containing an allegation of entry and expulsion or some actual disturbance in the possession, it being stated that the action in that form would not lie; but whether in some other form or count it would not lie it was not decided. This case and many subsequent ones apparently approving it are relied on by the plaintiff\u2019s counsel in the case before us as establishing the proposition that there was not such an eviction of the defendants as will make their defense available. If the \"Waldron case is claimed to be authority against the idea of a constructive eviction properly plead, it certainly would not be followed at this day. In Shattuck v. Lamb (65 N. Y., 500) a party was allowed to recover though never in possession, it being said that if the covenantee is kept out by means of a superior title this is equivalent to an eviction. There need be no eviction by process of law but a covenantee may voluntarily surrender possession to one having paramount title and then maintain his action for breach of covenant. (Shattuck v. Lamb, supra, p. 505 and cases cited.) So it has been held that when the title under which a mortgagor held has been extinguished, so that he may be legally evicted, he may then either attorn to the holder of the paramount title or surrender possession to him on demand and defend against his mortgage without actual eviction. (Curtiss v. Bush, 39 Barb., 664, and cases cited.) In Rawle on Covenants (4th ed., 158, et seq.), the rule is laid down and *231supported by many cases, that a constructive eviction exists where the covenantee has compulsorily purchased or taken a lease under the paramount title without any actual change of possession. (See Brown v. Dickerson, 2 Jones [12 Penn. St.], 372; Whitney v. Dinsmore, 6 Cush., 124; Loomis v. Bedel, 11 N. H., 74.)"], "id": "5638d41a-1d8f-4b83-9280-4b4185156d97", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiff\u2019s argument would have a great deal of merit if its action was grounded in negligence or the defendant\u2019s counterclaims for damages were based upon injuries to her person or property caused by the negligence of plaintiff\u2019s employee during the course of his employment. However, the alleged acts which the employee committed that caused injury to defendant\u2019s person \u2014 were: assault, rape and intimidation; and the alleged act that caused injury to her property \u2014 was robbery. None of these acts resulted from the employee\u2019s negligence. If he did what is alleged, he committed deliberate and willful torts. Plaintiff\u2019s argument is based solely upon the defendant\u2019s unartful use of the word \"negligence\u201d in formulating one of her counterclaims. She claims plaintiff failed to exercise proper care in selecting, training, supervising and retaining an employee with vicious and larcenous propensities. This counterclaim is in reality related to the counterclaims of breach of and constructive eviction. All three counterclaims are sounded in contract. An action in contract is an action in contract, no matter what name the \"rose\u201d is called. There was a contract (the lease) between the plaintiff and and defendant. In exchange for the payment of rent, the plaintiff promised to provide defendant with the \"quiet enjoyment\u201d of an apartment. Whether plaintiff is guilty of breaching the contract by failing to exercise reasonable (and perhaps foreseeable) care in hiring, training, supervising and retaining Clarence Warren as an employee is a burden that defendant has to prove on trial; but the relevant facts are wholly within the knowledge and control of the plaintiff, thus, they are \"fair game\u201d for interrogatories."], "id": "626f3d79-ac84-46cf-b8ea-202802b4f14f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As the trial court noted, the notice does cite to several different covenants in the lease agreement, including Covenants 3(A), 5(C), 6(A), (B), (F), and (G), and 15(A) and (B). Covenants 3(A), 5(C), and 6(A), (B), (F) and (G) simply require the tenant to meet certain income requirements and comply with the federal subsidy certification process in a timely manner. Covenant 15(A) grants the landlord the power to terminate the lease under certain conditions, including actions by the tenant which disrupt the livability of the project by a direct threat to the health and safety of any person, or the right of any person to the of the Premises. Covenant 15(B) defines \"material noncompliance\" with the lease to include nonpayment or repeated late payment of rent, or use or sale of an illegal controlled substance on the premises by the tenant or a member of the tenant's household."], "id": "0ee0639e-1577-49e1-afd1-fbffa0764eea", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*410Involved in this proceeding are two separately pleaded counterclaims. The first contains two subdivisions; one in paragragh 17 of the answer, the other in paragraph 18. The first subdivision claims damages for alleged destruction of personal property due to water leakage resulting from landlord\u2019s alleged failure to make repairs; the second seeks damages resulting from \u201cinhabitable cold\u201d [sic]. The second pleaded counterclaim concerns damages due to an alleged breach of the covenant of ."], "id": "456f252d-3a24-4300-a520-f856b37b4fa5", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cAn implied covenant, or an express covenant * * * for , in effect is an agreement on the part of a landlord that for the period of the demised term the tenant shall not be disturbed in his quiet enjoyment of the demised premises by any wrongful act of the landlord * # * or by the enforcement of any title superior to that of the landlord.\u201d (Rasch, N. Y. Landlord and Tenant, \u00a7 890). \u201cAs a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for quiet enjoyment.\u201d (Rasch, N. Y. Landlord and Tenant, \u00a7 893; Sears Roebuck & Co. v. 9 Ave. 31-St. Corp., 274 N. Y. 388, 398; McQuade v. Carvel Stores of Penn., 8 Misc 2d 659; Mouse of Chan v. Dyckman, 14 Misc 2d 595). When breach of this covenant is alleged as a defense to a rent action, or used as a basis for a damage claim, it is the act of the landlord which must preclude the tenant from beneficial enjoyment of his leasehold. (Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77; Hornstein *108Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Diehl v. Watson, 89 App. Div. 445; Self Serv. Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774.)"], "id": "7db77382-b2de-4303-aff2-90a3adf5a73f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["After trial and due consideration of all admissible evidence, the court finds and decides in fact and law, there was a constructive eviction by landlord of this tenant under the subject facts and circumstances. Here, landlord failed, as required under the lease, to soundproof the common wall until this tenant (a psychotherapist-psychologist and certified social worker, with a legally recognized confidential and privileged patient relationship [CPLR 4507, 4508] and known to this landlord under the lease) repeatedly complained to landlord, who did not commence soundproofing until this tenant either notified landlord of her abandonment or actually abandoned (for a higher rental) and landlord assented or permitted the noises of the neighboring tenant, to whom landlord ultimately rented this tenant\u2019s abandoned office. The court finds this was a material, substantial and effectual deprivation and wrongful disturbance by landlord of this psychotherapist\u2019s beneficial and professionally necessary of the demised premises calculated to and necessitating this tenant\u2019s total abandonment of possession. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-84; Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117; Finkelstein v Levinson, 74 Misc 2d 105; Rasch, supra, \u00a7 920 et seq.)"], "id": "4ba69b1c-0a08-4223-aa68-b17aaa52982e", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The cases cited by petitioner do not apply in this case, and they are, in the main, decisions before the amendment of said section of the Code. Mor does the defendant dispute the title of the petitioner by the evidence. In the alleged lease it is specifically agreed that she does not covenant as to \u201c title or .\u201d"], "id": "7ee88932-3577-42d4-bf43-6b2a189b2437", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The fulcrum issue is whether there was constructive eviction (since generally necessary to establish breach of covenant of \u2014 Rasch, Landlord and Tenant [2d ed], \u00a7 893). If so, such justifies, per se, tenant\u2019s total abandonment (and renders moot all other secondary issues, i.e., landlord\u2019s reasonable attorneys\u2019 fees and mitigation of damages), a disputed question of fact for the court in this nonjury action. (Rasch, supra, \u00a7 930; Leider v 80 William St. Co., 22 AD2d 952; Read v Levy, 101 Misc 547; Lathers v Coates, 18 Misc 231.)"], "id": "dbcb33bc-eee6-4127-8fd6-5892d6e5e70e", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Actually, all that was accomplished by the assignment herein at best was an attempt to assign the rents for the business spaces occupied by tenants. Accordingly, I find the assignment to be of no force and effect and that petitioner had no authority to commence summary proceedings herein. To paraphrase the case of Mitchell v. McClellan (193 Misc. 116) there certainly has not been a grant of those premises as such. Lefcourt necessarily remained as the only one who could give quiet and peaceable enjoyment to the tenants. It alone could operate the elevators, furnish the heating, take care of the plumbing as it was required to do under the lease and by the rent laws (L. 1945, ch. 314, \u00a7\u00a7 2, 6, 7, as amd.) and so for all practical purposes Lefcourt remained landlord. Since it is Lefcourt that owes the duties of and warranty the tenant should owe rent, the equivalent of a tenant\u2019s services, only to Lefcourt. It is quite beside the point to ask whether in the absence of the emergency rent laws petitioner would be entitled to the rent despite its inability to discharge the duties of landlord. We are not dealing with such a case and in view of the great risk to tenants whose possession it was the objective of the emergency laws to secure, we should confer upon the petitioner the rights of a landlord including the right to rent only when it has, in fact not merely through a form of legal phraseology, assumed the *214status of landlord. Petitioner cannot assume that status and cannot ask to be considered landlord only for the narrow purpose of collecting rents."], "id": "aeb23c79-2f7d-4c74-b9dd-b25abd81034f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cHere, Supreme Court inconsistently ruled that plaintiff\u2019s lost profits were both consequential damages that could not be awarded for breach of , because the sublease excluded the recovery of consequential damages, and direct damages that could be awarded for breach of the parking requirement. In our view, however, plaintiff\u2019s direct damages are the actual rental value of the *214parking spaces lost due to defendant\u2019s breach, and they must be proven by expert testimony as to the portion of the rent allocable to those spaces (see 487 Elmwood v Hassett, supra at 289). Lost profits, even if shown to be foreseeable and caused by defendant\u2019s breach, are an item of consequential damages as to both of the breaches shown by plaintiff and, thus, are excluded by the terms of the sublease (see Scott v Palermo, 233 AD2d 869, 870 [1996]).\u201d Based upon the above, this court rules that all consequential damages are excluded by paragraph 7.03 of the lease, which excludes respondent from showing any losses except for general (direct) damages by expert testimony."], "id": "2a206c50-fb7c-4153-b1f1-663a0568c54a", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second cause of action, for breach of the covenant of , is not maintainable, however, since there has been no abandonment of the premises and there is no covenant by the landlord to perform specific repairs (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117, 121). In any event, damages for such a breach would be the difference between the rent reserved and the rental value of the premises in their present state (Thomas-Houston Elec. Co. v. Durant Land Improvement Co., 144 N. Y. 34), and there is a complete absence of proof on that score."], "id": "986ccb87-2296-42f1-889a-3de846f25847", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The contention of the learned counsel for the appellant is that by the release the defendant is estopped from claiming title under that deed; and -although the jury have found that the plaintiff had no title under the deed to her, yet she as one of the heirs-at-law of the testator was entitled as tenant in common to recover her share in the land. It is difficult to see how 'the defendant\u2019s title taken by that deed to her was affected by the settlement and release referred to< It did not, by its terms, release any interest in the premises, and no-greater effect can be given to it than its purpose, ascertained by its terms, fairly justifies. The testator made to her a deed importing a conveyance of the land to the defendant, and in addition, as protection to the grantee, inserted a covenant of . The-conveyance of the title did not depend upon the covenant, that afforded a mere right to the grantee to require him to reimburse her, if by reason of a defect in the title she should be disturbed in her possession by some party having the better title. It was a mere personal obligation assumed by the grantor, which was of no value if her title was perfect. If by an arrangement with her grantor he had obtained a release of her from the effect of that covenant and paid her for it, that would not restore the title to him or affect h\u00a7r interest in the premises, but would merely relieve him from his covenant of indemnity."], "id": "87ef3332-2cdf-4166-8101-290cac88560d", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner\u2019s motion to dismiss the counterclaim alleging breach of implied covenant of is granted. The gravamen of this claim is landlord\u2019s failure to furnish heat during the winter months. However, respondent fails to allege abandonment which is an essential element of the cause of action (Bliss v Clark, 104 Misc 543; CPLR 3013), and consequently the counterclaim is not sufficiently stated."], "id": "76ac7ae4-c0da-4e63-8b86-d65ca4c9beba", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Geovee, J., in Edgerton v. Page, 20 N. Y., at page 286, says: \u201c Unless the acts of the defendant amount to a breach of the contract of letting they are not connected with the subject of the action. In the case of the Mayor of New York v. Mabie, 3 Kern. 151, it was held by this court that a covenant for by the lessor was implied in a lease under seal for a term not exceeding three years since, as well as before, the Revised Statutes; that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently, that damages sustained from such acts might be recovered in an action for rent.\u201d See, also, Cook v. Soule, 56 N. Y. 422; Code Civ. Proc. \u00a7 501."], "id": "c491c450-3159-4a30-9eeb-2b405ca8af75", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"When a lessor covenants for , he is bound to take such measures in relation to the mortgage as will enable him to accomplish the purpose of his covenant. His promise survives his divestment of title * * * he will not be allowed to abandon the obligations which he has assumed\u201d (Ganz v Clark, 252 NY 92, 96)."], "id": "20aecdb7-069e-4fa2-96f0-3a4a14aef96b", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cAs a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for . * * * In other words, there must be an ouster, or a justified abandonment \u201d (Rasch, Landlord & Tenant [2d ed.], \u00a7 893). The record herein is devoid of a showing of actual or constructive eviction. The counterclaim also cannot be sustained on the theory of negligence. Even assuming negligence on petitioner\u2019s part, there is no evidence indicating that it was the proximate cause of the loss. V The rule is well-settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. If the matter is left in doubt, and it is just as probable that the accident was the result of one cause as the other, there is no *1091liability. In these circumstances a verdict holding defendant answerable to plaintiff would be based upon mere speculation \u2019 \u2019 (1 Warren\u2019s Negligence, ch. 5, \u00a7\u00a7 5.01, 5.10, pp. 130-131)."], "id": "99d37060-e6d8-4d60-afde-97f3f04a05b0", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The very basis of the settlement in this case was the lease. It was this very lease which was surrendered by the defendant and accepted by the landlord. The June, 1956 rent accrued on June 1, 1956, prior to the settlement and the execution and delivery of the releases on June 25,1956. There may have been some basis for the plaintiff\u2019s claim if there had been a mutual mistake or a mistake on the part of the plaintiff and fraud, deceit or misrepresentation by the defendant. (Rector of St. James Church v. City of New York, 261 App. Div. 614, 617; Farrington v. Harlem Sav. Bank, 280 N. Y. 1; Gilbert v. Rothschild, 280 N. Y. 66; Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182.) I cannot find such a situation in the case at bar although the plaintiff does claim that he did not intend to release June rent and that the defendant \u201c concealed \u201d the fact that this rent had not been paid. This plaintiff is an experienced real estate operator and the defendant is not in such relationship to him as would require any disclosures. The defendant received a demand for rent and refused to pay it because the landlord violated the clause in the lease granting . He was under no obligation to inform the plaintiff and nondisclosure under such circumstances is not misrepresentation, deceit or *151fraud. (Matter of Ohrbach, 4 Misc 2d 964, 969; Matter of Schoenewerg, 277 N. Y. 424, 428.) In the Ohrbach case (supra, p. 969) the court stated that, \u201c one may not escape on the ground of mistake the consequences of a deliberate signing of a release when simple inquiry would have elicited the information needed. In either event, then, whether she and her attorney knew the facts, or, being ignorant thereof, had her execute a release completely unconcerned about any claim she might have, she is barred from objecting to the account.\u201d"], "id": "960beb0d-d3f8-47c9-bd7c-8d5bea7e5e0f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendant Cohen is not entitled to judgment on his cross claim. He has proved neither legally sufficient conspiracy, nor damages by reason of the breach of the covenant of . He remains in possession. He has not been evicted Metropolitan Life Ins. Co. v Childs Co., supra; Knickerbocker Oil Corp. v Richfield Oil Corp. of N. Y. 234 App Div 199, affd 259 NY 657). The cross claim is dismissed."], "id": "fc250608-0afd-40e4-808a-0c310d5d490a", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Final judgment reversed, with $30 costs, and final judgment directed in favor of landlord as prayed for in the petition, with costs, five-day stay; and counterclaim dismissed. In this summary proceeding for nonpayment of rent for January, 1972, in the sum of $100, respondent tenant interposed a counterclaim for $209.05 alleging breach of warranty of fitness and . At trial the petitioner\u2019s prima facie case was conceded and the issue of jurisdiction withdrawn. Essentially respondent\u2019s testimony is that she gave a duplicate set of keys to the landlord\u2019s agent so that repairs could be effected at the subject apartment, that the keys were never returned, and that subsequently she discovered that a TV set was missing from the premises. Respondent was awarded the full purchase price for the TV, purchased by her some four years prior to these circumstances."], "id": "c7209312-1dde-4d25-8695-7ee04d7bea5e", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u2018 \u2018 A covenant of will be implied in oral leases. It results from the mere relation of the parties * * * . [citations] \u201d (Fifth Ave. Bldg. Co. v. Kernochan, supra, p. 376). The tenant having paid the rent for the month of September in advance, was entitled to quiet enjoyment of the premises the entire month. The landlord breached this covenant by his act and the tenant\u2019s damages resulting therefrom are one half of the month\u2019s rent paid in advance. The October rent, he did not pay and will not be required to pay."], "id": "8c981ce3-c7bb-458c-af06-ca7a5261a2c0", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On May 5, 2015 Sierra Palms filed its original complaint against Metro and Foothill Transit alleging against each of them causes of action for negligence, inverse condemnation and nuisance (private and public).1 The gravamen of each claim was that these entities had constructed and/or maintained the Gold Line railway in a manner that interfered with the condominium owners' of their property and caused property damage, including damage to the condominium complex's block boundary wall, in a manner that, among other things, resulted in a government taking of property without just compensation."], "id": "f185bc93-02f8-42f9-9909-a286c5b2f505", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Appellate Term, First Department, has recognized that \u201c The tenants should be protected from insult.\u201d (Manhattan Leasing Co. v. Schleicher, 142 N. Y. S. 545, 546 [App. Term, 1st Dept. 1913] Page, J.) Where the landlord\u2019s conduct is \u201c so grossly insulting and threatening in character as to seriously and substantially deprive the defendant of the beneficial enjoyment of the premises demised,\u201d and as a result, the tenant is forced to vacate the premises, there may be a constructive eviction and a breach of the covenant of (cf. Onward Constr. Co. v. Harris, supra, p. 318, Seabury, J.). Whether or not there are sufficient facts to support a constructive eviction is a matter to be determined upon the circumstances of each case."], "id": "132a4c67-5a36-4c7f-b1b3-8c72a0f80e7c", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The pleaded claims in the operative first amended complaint are for: (1) tortious breach of the implied warranty of habitability (\u00a7 1941); (2) contractual breach of the implied warranty of habitability (\u00a7 1941); (3) violation of section 1942.4; (4) breach of contract (\u00a7 3300 et seq.); (5) breach of (\u00a7 1927); (6) private nuisance (\u00a7 3501 et seq.); (7) premises liability (\u00a7 1714); (8) retaliation in violation of section 1942.5, subdivision (d) ; (9) negligence; (10) violation of the Oakland Just Cause Ordinance (Oakland Mun. Code, \u00a7 8.22.300 et seq.); (11) violation of the Oakland Tenant Protection Ordinance (Oakland Mun. Code, \u00a7 8.22.600 et seq.); (12) constructive eviction-negligence; (13) unfair business practices (Bus. & Prof. Code, \u00a7\u00a7 17200 et seq., 17500 ); (14) fraud; and (15) retaliatory eviction."], "id": "a8d3631d-1a60-4235-8412-ae470dee4017", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Doyle v. Allstate Ins. Co. (1 N Y 2d 439) the carrier undertook \u201c To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * and as damages because of injury or destruction of property, including the loss of use thereof.\u201d The policy also provided, as in the instant case, that the insurer would \u2018 \u2018 defend any suit against the insured alleging such injury * * * even if such suit is groundless, false or fraudulent \u201d. An action was brought against the insured to enjoin him from operating a kennel for dogs. The complaint alleged that the continual barking of the dogs destroyed the peaceful and of the neighbors\u2019 property and further alleged: \u201c 5. That by reason of said nuisance maintained and operated by the defendant as hereinbefore set forth, the value of plaintiffs\u2019 property has been impaired and the health of plaintiffs has been injured. \u2019 \u2019 The prayer for relief was for an injunction and there was no demand for damages. The insurer refused to defend and the insured instituted suit to recover the amount expended for legal fees and expenses in defense of the original action. Cross motions were made for summary judg*489ment; Special,Term denied the insured\u2019s motion and granted the insurer\u2019s motion upon the ground that the insurer undertook to defend only actions wherein money damages were sought against the insured and that damages could not have been awarded in the original action. The Appellate Division (1 A D 2d 738) unanimously affirmed. In reversing, the Court of Appeals said (pp. 442-444).:"], "id": "7579943d-c509-450d-bfcc-d49a3f180edf", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendants breached their warranty of by willfully failing to rent plaintiff a legal apartment in compliance with the NYCRR and Y.F. & B.C. (see, e.g., 74 NY Jur 2d, Landlord and Tenant, \u00a7\u00a7 250, 260, 266; see also, Various Tenants of 155 E. 52nd St. v GSL Enters., supra; Roli-Blue, Inc. v 69/70th St. Assocs., supra). As a consequence of defendants\u2019 failure to follow applicable regulations the Yonkers BHB declared the cellar apartment illegal and ordered that the cellar apartment be vacated. The action of the Yonkers BHB was caused solely by defendants\u2019 failure to meet the requirements of the C.O. and the NYCRR and Y.F. & B.C. (see, e.g., Al\u2019s 334 9th Ave. Corp. v Herbener, 83 NYS2d 676 *490[Sup Ct 1948] [landlord liable for damages arising from eviction of tenant by municipality and breach of covenant of quiet enjoyment; landlord failed to follow applicable regulations and make building safe]). The defendants are liable for all appropriate damages flowing from their breach of warranty of quiet enjoyment."], "id": "be3493e5-97b0-468a-9276-0793959ee4db", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The complaint alleges in substance that plaintiffs are the owners of real property in Greene County; that the defendant has entered upon their lands without their consents or permission and has performed certain activities thereon which have interfered with the and use of said lands, and have interrupted and impaired plaintiffs\u2019 possession of their real property. It is further alleged that damage and injury has been caused by the defendant to the lands of the plaintiffs. They seek a judgment declaring the entries by defendant upon plaintiffs \u2019 lands to be illegaltrespasses, and beyond the powers granted to defendant under the Public Authorities Law, and if found to be authorized by statute, then such statute be declared unconstitutional in that it provides for taking of private property for public use without just compensation therefor. Plaintiffs also seek to enjoin defendant from entering upon and conducting activities on their lands, unless and until defendant obtains rights to enter and conduct such activities by condemnation or otherwise."], "id": "0e8cab8e-12ac-4d03-9ec4-ae3039d0f0cf", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The learned counsel for the defendants calls the court\u2019s atten*89tion to the case of House v. McCormick 57 N. Y. 310, which holds that, where a deed contains express covenants of warranty or , it operates as an estoppel against a claim of the grantor or his privies to a subsequently acquired estate, as well, where the grantor had a present right or interest which passed at the time of the grant, as when nothing whatever passed. An examination of that case and of the principle therein decided will show that the case is not controlling of the, question here under consideration. In that case, the grant was absolute and of the entire estate, while, in this case, the grant from John Moon was really subject to the mortgage in question. The grant expressly states that the mortgage is a valid lien, and the grantee takes the premises, subject to that lien, and the covenant for peaceable possession c'annot be extended to or applied as to that mortgage; in other words, that covenant is subject to the mortgage and to the remedies to enforce it."], "id": "7cb441c7-51b9-4fde-a8df-34e6da4b3e00", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case, plaintiff Salima Multani (Salima1 ), who operated a medical clinic in a space she leased from defendant Evelyn Knight, brought claims against Knight for conversion, breach of the covenant of , nuisance, negligent maintenance of property and/or strict liability (negligence/strict liability), negligent interference with contract relations (contract interference), and violations of Business and Professions Code section 17200 ( section 17200 ). The trial court granted Knight's motion for summary adjudication as to all of the claims except the contract interference claim, finding that Salima was not lawfully on the premises when the alleged sewage spill occurred. The contract interference claim went to trial before a jury, and the jury found in favor of Knight, finding that the alleged contractual or economic relationship did not exist."], "id": "90c81829-a561-4f00-b8b6-04917b53c8e7", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" Defendant's gross negligence in removing the roof of the building while plaintiff was in possession and destroying plaintiff's property and improvements in the leased premises constitutes a breach of the covenant of and entitles plaintiff to indemnification for its losses under the lease (see 87 Chambers, LLC v 77 Reade, LLC, 114 AD3d 525 [1st Dept 2014]). The award of $125,000 is supported by the testimony of plaintiff's principal as to the amount plaintiff invested in renovating the space to operate the restaurant, which was uncontroverted by any evidence submitted by defendant (see Dinicu v Groff Studios Corp., 257 AD2d 218, 224 [1st Dept 1999]; Wathne Imports, Ltd. v PRL USA, Inc., 101 AD3d 83, 88-89 [1st Dept 2012])."], "id": "b6dc5ee6-70ef-4533-a6c5-2f2de6251468", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The covenant of is not broken by the landlord\u2019s neglecting or refusing to keep the premises in repair. The letting implies no obligation by him that the premises shall be or shall continue fit for the use for which the tenant designed them (Howard agt. Doolittle, supra), or even that they are or shall be tenantable (Cleves agt. Willoughby, 7 Hill, 83 ; Sherwood agt. Seaman, 2 Bosw., 127; Post agt. Vetter, 2 E. D. Smith, 284)."], "id": "2ca65e8e-ff8b-41e2-8af9-c194dfb3adc7", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A lawful eviction or disturbance of possession must be shown to support an action on such a covenant (St. John v. Palmer, 5 Hill, 599 ; Greenvault v. Davis, 4 id., 643), though it is enough if the grantee voluntarily yields possession to one having a paramount. *476title; but the grantee then assumes the burden of proving that tbe title was paramount. There cannot be a constructive eviction without abandonment of possession. (Boreel v. Lawton, 90 N. Y., 293; Edgerton v. Page, 20 id., 281). There is an actual eviction when the grantee is dispossessed by process of law. There is a constructive eviction when he yields possession to a title which is actually paramount. There is neither actual nor constructive eviction while he continues in possession. And without an eviction, actual or constructive, there can be no recovery on a covenant of warranty or of . There lies the distinction between those covenants and a covenant against incumbrances. \u00a5e are referred to no case where a plaintiff has recovered on a covenant of warranty or of quiet enjoyment, merely on the fact that he has redeemed the premises by the payment of money. That is all that the defendant did. No one ever had an indefeasible and paramount title to this land, because there was a six months\u2019 right to redeem. The expression in section 63 (chap. 427 of 1855), .that the conveyance shall vest in the grantee an absolute estate in fee simple cannot prevent us from recognizing the right to redeem given by section 68, in the case of occupied lands, and the further provision of section 73, that on proof of service of notice, etc., the conveyance shall thereupon become absolute."], "id": "333b2083-9cff-4f75-9e63-a92d994a46de", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At the outset the first three defenses are dismissed as insufficient at law. Constructive eviction is not available to tenant because he still occupies the demised premises. (See City of New York v. Pike Realty Corp., 247 N. Y. 245, 247.) Section 756 of the Real Property Actions and Proceedings Law is not available, because said section involves the discontinuance of \u201c utilities * ' * * because of the failure of the landlord *375* # * to pay for utilities for which he may have contracted \u2019 \u2019 and there is no proof in the instant case of any discontinuance of utilities because of such nonpayment. The defense of breach of covenant of will not be considered because such a contention is involved with the subject matter of the counterclaims, which have been severed. Consequently, the court will proceed to a consideration of the remaining defense of partial actual eviction."], "id": "f2d81c29-61bf-410b-9dc7-62e05a139a47", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In summary, California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of that compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result *815in a wrongful constructive or actual eviction is a breach of contract. ( Ginsberg, supra , 205 Cal.App.4th at pp. 898-902, 141 Cal.Rptr.3d 62.)"], "id": "0cda6674-d6ec-4108-a512-96f0afb78c8d", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The rule of law applicable to the facts before this court was stated in Mead v. Stackpole (40 Hun, 473, at p. 476): \u201c There cannot be a constructive eviction without abandonment of possession. * * * There is an actual eviction when the grantee is dispossessed by process of law. There is a constructive eviction when he yields possession to a title which is actually paramount. There is neither actual nor constructive eviction while he continues in possession. And without an eviction, actual or constructive, there can be no recovery on a covenant of warranty or of .\u201d (Stanton v. Conley, 244 App. Div. 84.)"], "id": "e11e132e-16fe-42b5-871e-4b1a5ddbcb5c", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The answer goes further; it alleges 'that he, J. H. Bell, at that time told the complainant that he could not give him any other paper than a release, or quit-claim, of his right and title under the contract with the Hollisters; that he had not then the legal title to the premises, and only held said contract of sale; and that he would not then make a legal title. That the complainant said he would be satisfied with any thing that Bell could or would choose to give him, as an evidence that he had any title whatsoever in the premises; and that as he was in' a hurry and going to Europe, he had not time to attend to it, *545and would authorize Mr. Dutilh to give Bell a bond and mortgage for the balance of the purchase money; that Bell then completed the purchase with the complainant by executing and delivering to him the deed, and received the bond and mortgage executed by the complainant by his said attorney, to secure the payment of $4,000, the balance of the purchase money. It is said that this statement is not credible ; but it is responsive to the bill, and entitled to be credited as true, unless there is competent evidence in the case to show it false. What evidence of that -character is there in the case 1 There is not the evidence of any witness on the subject, substantially; all the facts in that respect stated in the answer, except that which relates to the conversation alleged to have taken place in relation to Bell\u2019s title, and his ability to convey a valid title, is admitted. It is said that the giving of a deed by Bell, with a covenant of warranty for , is a declaration that he was the owner in fee simple absolute. I do not see that why may it not as well be taken as showing that the complainant reposed full confidence in Bell\u2019s ability, at some future day, to complete his title to the land under his contract with the Hollisters, and a reliance upon his integrity, as well as pecu-' niary interest, so to do, by which, the title would enure to his benefit, and thereby save any breach of his covenant which might otherwise thereafter occur; and if he failed thus to complete his title, he could safely fall back upon the covenant of warranty, and obtain ample redress; and that Bell, fully believing that he could and should thereafter complete his title, did not hesitate to give such deed. But again, it is said, if Bell had given the complainant such information in regard to his interest as stated in the answer, and intended honestly to transfer to him such right as he had, he would have executed an assignment of the contract which he held for the lots, leaving the complainant to fulfil the unpaid purchase money on the Hollisters, and taken his personal obligation for the residue of the $4,000."], "id": "6aff97ab-306e-4b22-aa90-40e63eb32219", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Winter went into possession of the lot, and held as owner, until May, 1805, when in consideration of two thousand six hundred and sixty dollars, he bargained, sold and conveyed the same to Samuel' Boyd, in fee simple, with covenants of seisin, *667warranty of title, for and farther assurance. Boyd thereupon took possession and expended large sums of money in the reparation and improvement of said premises. In 1806, Boyd sold and conveyed said lot to Josepn Otis, in fee, with covenants of seisin, warranty and for quiet enjoyment; and in 1810, the same title, through sundry mesne conveyances, was transfered to Richard Yarick, who thereupon took and held peaceable and undisturbed possession of the lot, until 1822, during which time, he expended several thousand dollars in making permanent improvements upon it."], "id": "c4c1a8be-3552-4ef9-bbab-d86152d5242e", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["(2) Habitable and usable: This branch concerns dwellings which are fit for human habitation and the existence of \u201cthose essential functions which a [dwelling] is expected to provide\u201d (supra, p 328). The covenant of , upon which the theory of constructive eviction is based, \u201cinclude [s] a duty to refrain from any act or omission which would render the premises unusable by the tenant\u201d (supra, p 323). These two latter concepts are clearly encompassed by this branch of the warranty."], "id": "ae7b07bc-93fb-491e-b74e-32932377f3fb", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although there cannot be a constructive eviction without a surrender of possession by the tenant in an action for damages for breach of the covenant for (1 Rasch, Landlord and Tenant and Summary Proceedings 710, \u00a7 876) a surrender of possession by the tenant is not necessary to invoke the sanction of section 755 of the Real Property Actions and Proceedings Law. (See Matter of Emray v. De Stefano, 5 Misc 2d 352.)"], "id": "9f7f713b-c414-4f08-9bd9-ac406c723103", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The tenants appearing by the same attorneys interposed three defenses, but. at the hearing two of them were withdrawn and the' only defense relied upon is defense of uninhabitability and *719section 755 of the Real Property Actions and Proceedings Law, as set forth in paragraph 2 of the answer, in that the premises are not habitable because the petitioner knew or should have known for a long time prior to the commencement of these proceedings that its premises were and are being used for immoral purposes, thus interfering greatly with the of the premises by the respondents."], "id": "a15fe65b-ca97-4d7c-81c9-d474195ddd44", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although the verdict forms combined breach of contract and breach of the covenant of under the single heading: \"BREACH OF CONTRACT/BREACH OF THE COVENANT OF QUIET ENJOYMENT,\" the forms also treated the two theories as being separate. The forms first asked the jury whether defendants breached their contract with the plaintiff or plaintiffs identified on the form. If the jury answered \"yes,\" they were directed to answer the question whether defendants breached the covenant of quiet enjoyment with the plaintiff or plaintiffs. If they answered \"no\" to the first question (finding no breach of contract), they were directed to go to the first question under the next cause of action (negligence/negligence per se) and not decide whether defendants breached the covenant of quiet enjoyment. Only if the jury found the defendants breached both their contract with the plaintiffs and the covenant of quiet enjoyment was the jury directed to answer the question, \"Was DEFENDANTS' breach of contract or breach of the covenant of quiet enjoyment a substantial factor in causing harm to [the plaintiff]?\" If the jury answered \"yes\" to whether defendants breached their contract with plaintiffs but answered \"no\" to whether defendants beached the covenant of quiet enjoyment with plaintiffs, it was directed to go to the next theory or cause of action. As to each of the 16 plaintiffs, the jury found defendants liable for both breach of contract and breach of the covenant of quiet enjoyment."], "id": "cf6a0214-30cd-42ab-83a5-e59f08f29560", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Implicit in the lease agreement between the plaintiff and defendant was a covenant of which \"is an agreement on the part of a landlord that for the period of the term of the lease the tenant shall not be disturbed in his quiet enjoyment of the leased premises\u201d (2 Rasch, New York Landlord and Tenant \u2014 Summary Proceedings \u00a7 27.1, at 321 [3d ed]). The breach of a covenant of quiet enjoyment requires actual or constructive eviction (2 Rasch, op. cit., \u00a7\u00a7 28.1, 28.21). Constructive eviction arises when the landlord interferes with the tenant\u2019s possession of the premises to such an extent that the tenant is deprived of its beneficial enjoyment. Typically, the causative factors are noise and water damage (see, e.g., Bernard v 345 E. 73rd Owners Corp., 181 AD2d 543 [1992] [noise]; Minjak Co. v Randolph, 140 AD2d 245 [1988] [water damage and sandblasting; punitive damages]; Rockrose Assocs. v Peters, 81 Misc 2d 971 [Civ Ct, NY County 1975] [noise])."], "id": "e350acc4-634f-441b-8632-66d9800c9e5f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Specifically, respondent\u2019s claim for an abatement of rent is based upon three grounds, viz.: (i) the \"bright light\u201d generated *671by the illuminated awning erected by Lechters (the first floor commercial tenant directly below respondent\u2019s apartment) interfered with respondent\u2019s of the apartment, (ii) Lechters\u2019 renovation process of the street level premises included unauthorized and disruptive activities, and (iii) security lights placed by petitioner on a sidewalk bridge erected during Lechters\u2019 renovation shone intermittently into respondent\u2019s apartment."], "id": "f7f9228d-25e3-4901-84af-004037d2b641", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Further, it is plain that the plaintiffs have not paid the proprietary rent (or maintenance) for the apartment. The covenant of clearly does not become effective unless *578the tenants \u00a1have paid the rent and complied with the other conditions of the 'lease. Payment of rent is a condition precedent to the maintenance of the action for breach of the covenant of quiet enjoyment. (Herstein Co. v. Columbia Pictures Corp., supra, p. 121; Baitzel v. Rhinelander, 179 App. Div. 735.) Plaintiffs claim to have been paying the money in escrow. As a result of nonpayment to the landlord, summary proceedings have been brought against them for eviction, but those proceedings have been stayed by order of this court. Defendant corporation may move for removal of the summary proceedings from the Civil Court and consolidation with this action. Upon consolidation, the court will entertain an application for an order vacating the stay heretofore granted and directing the payment of all rent due by the plaintiffs. It would be manifestly unfair, even while this controversy remained pending, to permit the plaintiffs to continue to reside in the premises without bearing their fair share of the maintenance expenses which have to be shouldered by the remaining tenants. In any event, the fifth cause of action, which seeks recovery for the breach of covenant of quiet enjoyment resulting in \u2018 \u2018 physical discomfort, annoyance, inconvenience and emotional distress \u201d, cannot be maintained. In actions predicated upon breach of contract, where the breach does not amount to a willful or independent tort, and where mental anguish, inconvenience or annoyance are the damages alleged as a result of the contractual breach, the cause of action may not stand. (Frank v. Justine Caterers, 271 App. Div. 980. See Williston, Contracts [3d ed.], \u00a7 1341.)"], "id": "8a4d8fc8-4880-4556-8d4f-2f1a08794a0d", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiff\u2019s motion for new trial was denied and judgment entered on the verdict. The plaintiff appeals. It appears that both the plaintiff and the defendant Emily N. Rugg claimed title to the premises, under deeds alleged to have been made by one Jonathan G. Rugg to them respectively; that the plaintiff was his daughter, and the defendant Carlos A. Rugg was his son, and husband of defendant Emily; 'that after plaintiff had t\u00e1ken possession under the judgment in her favor, the defendant Emily brought an action upon the covenants in the deed to her against.the executors of the will of Jonathan G. Rugg, who died intestate in 1811. The plaintiff in that action alleged the conveyance to her, with covenants of , etc., ankd that she had been ejected by title paramount. The executors by their answer denied that the plaintiff Ann M. Dawley had any title to the premises at the time of the conveyance to the defendant Emily M. Rugg, and that the latter took the title by the deed of Jonathan G. Rugg to her. That action came on to trial and during its progress was settled by the parties to it and discontinued. The terms of the settlement appear in a release under seal, made by her to the executors, which purports to be an instrument made between her of the first part and tlie executors and all the heirs-at-law of Jonathan G. Rugg, deceased, of the second part, and after the recital of the fact of the execution and delivery by the testator of the deed to her, with covenant *145of warranty, and the purpose of the action, there follows. \u201c Now, in consideration of the settlement of said action and certain moneys paid by said executors to said Emily N. Rugg, the said Emily N. Rugg does hereby release to said executors, and to all the heirs-at-law of said deceased, all her cause of action on said covenant of' warranty, or any covenants in said deed, and all claims or right of action on said covenants against said executors or the heirs-at-law of said deceased grantor.\u201d The amount paid to her by the executors on such settlement was $500. After this she obtained the order vacating the judgment in this action and granting a new trial as before mentioned. The plaintiff then put in a supplemental complaint, setting forth the facts of that action and the settlement and release, and on the trial she proved all those facts and her judgment entered on the first verdict. She also gave evidence tending to prove, that on or about the 27th day of May, 1875, the testator and his wife executed and delivered to her a deed of \"the premises, which was not recorded; that the grantor, after its delivery, borrowed the deed of her and destroyed it without her knowledge or consent; that before the defendants had or claimed any title to\" the premises, they were advised of the plaintiffs\u2019 claim-of title, and that she gave her father a life lease of the premises at the time she claimed to have taken the deed. And it appeared that she was the daughter of the testator and that she had one sister and three brothers at the time this action was commenced. The defendants gave evidence tending to prove that the deed claimed by plaintiff to have been delivered by her father to her was never, in fact, delivered, but before delivery was destroyed with her consent. The defendant Emily N. Rugg read in evidence a warranty deed of the premises made by Jonathan G. Rugg to her of date July 6, 1876, and recorded in the proper clerk\u2019s office, September 21, 1876."], "id": "5ce42fd6-9de8-4325-8c90-29cc8c03b8af", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the case at bar, although the foregoing descriptive evi*145dence was not found at respondent\u2019s premises, the absence of such direct proof should not reduce the credible testimony of petitioner\u2019s six witnesses who are all residents of the same building and who live in close proximity to respondent\u2019s apartment. Building residents and their families should not be disturbed or live in fear while pursuing their rights as law abiding tenants to the peaceful and of their homes. They should be free from the serious, questionable activities in respondent\u2019s apartment which continue to have a stringent and unfavorable impact on their daily lives."], "id": "e53c314d-a635-4990-b96e-50d2ca45ad4a", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*565It is contended by tbe appellant\u2019s counsel \u2022 that tbe substance of Harter\u2019s agreement was merely that the plaintiff should have , and that until ousted, there was no breach. The agreement was more than that. It was to do certain specific acts, to wit, to purchase the outstanding mortgages, and hold them until the expiration of the plaintiff\u2019s term. On the failure of the intestate to do either of those things, his agreement was broken. The difference between mere covenants of quiet enjoyment and covenants to do some specific acts, the object of which is to secure the possession of the covenantee, is recognized by numerous decisions. In the former class there is no breach till actual eviction. (Waldron v. McCarty, 3 Johns., 472; Kortz v. Carpenter, 5 id., 121; Sedgwick v. Hollenback, 7 id., 376; Kemball v. Van Slyke , 8 id., 487; Kerr v. Shaw, 13 id., 236.) In the latter class failure to do the specific thing stipulated for, gives a right of action, even though the possession be not disturbed. (Juliand v. Burgott, 11 Johns., 477; Thomas v. Allen, 1 Hill, 145; Gilbert v. Wiman, 1 N. Y., 550; Rector, etc., of Trinity Church v. Higgins, 48 id, 532.) The present case has been before this court on a former appeal, and on that occasion it was held, in effect, that the agreement of Harter was broken by his failure to purchase all four of the mortgages, so that the plaintiff had a perfect cause of action, and a judgment of nonsuit which had been theretofore ordered was set aside and a new trial ordered. (MS. op. of Gilbert, J.) This brings us to the question, what is the proper measure of recovery ? Nominal damages, or the value of the unexpired portion of the term ? I think the latter. The term of the lease was subject to the outstanding mortgages, and their amount largely exceeds its value. A foreclosure and sale under them would have deprived the lessee of her entire interest. To secure to her that interest was the purpose of the arrangement. The object* was not to indemnify her in case of an eviction, but to prevent the possibility of an eviction, and to make her term worth to her what it would have been worth if the mortgages had not been in existence. The extent of the probable loss of value by reason of the existence of the incumbrances is the measure of damages, even though the lessee paid nothing on account of the incumbrances, and was not disturbed in her possession. These views are sustained by authority. In Port *566v. Jackson (11 Johns., 239), tbe plaintiff, wbo was tbe assignee of a lease for a term of years, bad assigned tbe same to tbe defendant, and tbe latter bad covenanted to perform all tbe covenants, etc., to be performed by the plaintiff, among which was a covenant, to pay tbe rent as it should accrue upon tbe lease. Tbe action was covenant to recover tbe amount of rent alleged to be due to B., tbe plaintiff\u2019s assignee, for about twenty-four years. Defendant pleaded that before any rent became due, be assigned tbe term to GL, wbo entered and was accepted by B. as bis tenant. Held, on demurrer, that tbe plea was bad; that tbe defendant\u2019s covenant was express to pay tbe rent, etc., for which tbe plaintiff remained liable on bis covenant to B. by privity of contract, notwithstanding tbe assignment by tbe defendant to Q-. and tbe acceptance of him by B. as bis tenant; that tbe defendant\u2019s covenant was broken by tbe non-payment of tbe rent, and tbe plaintiff was entitled to recover tbe whole rent in arrear, for which be was bable on bis covenant with B., though be bad paid nothing, and bad not been damnified. In Gilbert v. Wiman (supra), it was said by Pratt, J., in tbe Supreme Court, after stating tbe rule as to strict contracts of indemnity against damages: \u201c But in personal contracts, where tbe instrument deviates tbe least from a simple contract to indemnify against damages, even when indemnity is tbe sole object of tbe contract, and when in consequence of tbe primary habihty of other persons, actual loss may be sustained, tbe decisions of our courts, although by no means uniform, have gradually incbned towards fixing tbe rule to be one of actual compensation for probable loss, so that in contracts of that character it may now be considered as a general rule both in this country and in England.\u201d Although tbe decision of tbe Supreme Court in that case was not concurred in by tbe Court of Appeals, tbe rule above stated was not questioned, tbe latter court bolding that tbe obbgation sued on was one of indemnity merely. In tbe case of The Rector, etc., v. Higgins, above cited, it was held by tbe Commission of Appeals that a covenant in a lease, whereby tbe lessee agrees to bear, pay and discharge all taxes and assessments which sbab be imposed upon tbe demised premises during tbe term, is broken when tbe lessee neglects to pay a tax or assessment duly imposed. It is not simply a contract of indemnity, but by it tbe tax or assessment, as between tbe parties, *567becomes tbe debt of tbe lessee; tbe lessor, therefore, can maintain an action thereon without first paying tbe tax or assessment, and, as damages, be is. entitled to recover tbe amount of such tax or assessment. And tbe general doctrine was asserted tbat parties have tbe right to make a contract contravening tbe rule that actual compensation will only be given for actual loss, and where tbe intent so to do is expressed in apt and suitable language, courts of justice will support it. In tbat case, LeoNAbd, C., cited many other cases (p. 537) which support tbe rule of damages above suggested, to wit, compensation for tbe probable loss against which tbe parties by their agreement intended to provide. Another point deserves consideration. It seems tbat in an action by a lessee against tbe lessor, on a covenant for quiet enjoyment, to recover damages fo\u00edan eviction, be can recover nothing for a rise in value of tbe use of tbe demised premises. (Kinney v. Watts, 14 Wend., 38; Kelly v. Dutch Church of Schenectady, 2 Hill, 105.) Tbe cases so bolding proceed upon tbe ground tbat tbe lessee stands upon tbe same footing as a purchaser who, in an action for a breach of a covenant for quiet enjoyment, is held to tbe price agreed upon by tbe parties as tbe true value of tbe land. By analogy, tbe rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for tbe use of tbe demised premises; but tbat rule has not been very satisfactory to tbe courts of this country. (Mack v. Patchen, 42 N. Y., 167.) Its soundness has been questioned (Sedg. on Dam. [lsted.], 170), and we think it is not to be extended beyond this class of cases, to wit, actions between lessee and lessor, to which it has been applied. In our opinion, tbe correct measure of damages in this case is tbe value of tbe unexpired portion of tbe plaintiff\u2019s term, less the rent reserved. (Mack v. Patchin, supra.) Tbe appellant\u2019s counsel insists tbat tbe referee erred in admitting evidence of tbe worth of tbe use of tbe premises, be contending that tbe true mode of ascertaining tbe damages was to show tbe receipts and expenses. Tbe evidence was properly received."], "id": "7805f52a-2c9a-4042-98de-456663ce4ff2", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The answer in this case shows a disturbance of the beneficial enjoyment, but no interference with the possession. Any trespass upon the premises demised is a disturbance of the beneficial enjoyment, but an interference with the possession is either an entry under color of right or assumption of title, or an absolute deprivation of the possession in whole or in part. The answer does not show an eviction total or partial, or any *126unlawful injury to the premises in violation of the contract. There is implied in the contract, being a demise or letting for a J'ear, a covenant for ; (The Mayor of New-York agt. Mabie, 3 Kern. 151;) but a covenant for quiet enjoyment, whether express or implied, relates only to title, and not to the undisturbed enjoyment of the premises demised, where there has been no eviction, or entry under assumption of title, (Howard agt. Doolittle, 3 Duer, 474; The Mayor of NewYork agt. Mabie, supra; Lloyd agt. Tomkies, 1 T. R. 671; Platt on Covenants, 312-320.)"], "id": "8902337f-0d81-441f-9ec3-4e81b9cf545b", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Implicit in the lease agreement between the landlord and tenant was a covenant of which \"is an agreement on the part of the landlord that for the period of the term of the lease the tenant shall not be disturbed in his quiet enjoyment of the leased premises\u201d (2 Rasch, New York Landlord and Tenant \u2014 Summary Proceedings 27.1 [3d ed]). The breach of a covenant of quiet enjoyment requires actual or constructive eviction (2 Rasch, op. cit., \u00a7\u00a7 28.1, 28.21). Constructive eviction arises when the landlord interferes with the tenant\u2019s possession of the premises to such an extent that the tenant is deprived of its beneficial enjoyment (see, e.g., Minjak Co. v Randolph, supra [water damage and sandblasting; punitive damages]; Nostrand Gardens Coop. v Howard, 221 AD2d 637 [excessive noise deprived tenants of quiet enjoyment]; Yochim v McGrath, 165 Misc 2d 10 [1995])."], "id": "a784bfbf-1dd3-476e-b3ec-e587c24d4b13", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In their 10th cause of action for breach of the covenant of plaintiffs alleged: \"Defendants have breached the covenant by failing to maintain the Park as set forth herein in paragraphs 12 and 13, by interfering with Plaintiffs' ability to sell their mobilehomes in place[,] including by raising rents to unreasonably high levels , by illegally changing the use of the Park, and by Defendants' other actions and conduct alleged in this Complaint.\" (Italics added.)"], "id": "cc06f126-5996-4055-bd07-fbc022c36169", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The purpose of the Noise Control Code is to protect citizens from the intrusion of noise caused by construction activity. (See Administrative Code, \u00a7 1403.3-1.03.) To advance this policy the respondent contends that the term \u201cweekdays\u201d should be construed in such a manner as to afford maximum protection to city residents during the time when most are not at work and generally expect relaxation and . It therefore urges that the most reasonable construction is one which prohibits construction on weekdays, during the hours which are not expressly permitted and on weekends, entirely. (See, generally, New York Tel. Co. v New York Transp. Admin., 44 AD2d 784.) In view of the fact that variances are available to permit construction during other time periods, and *605emergency construction is permitted without a variance (Administrative Code, \u00a7 1403.3-4.11, subd [b]) the respondent argues that the interpretation adopted by it is consistent with that intended by the drafters."], "id": "9c4dd282-b72e-49f9-a102-4009c023b251", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the Ginsburg v. Woolworth Case (supra) the Appellate Division *323of the Second Department reversed a judgment of the Trial Term dismissing the complaint, and sent the case back to Special Term for the purpose of ascertainment of damages. If the claim of the defendant in this action of breach of covenant of be deemed a counterclaim, there is no basis in the evidence upon which to declare a money judgment. No actual money loss was shown. The defendant might have offered testimony to show the difference in rental value of the apartment occupied by the defendant before and after the condition described in the defendant\u2019s testimony, but this was not done, and I do not know of any basis upon which I could render a money judgment for the defendant on its counterclaim. The counterclaim will, therefore, be dismissed, and judgment given for the plaintiffs Byrne & Bowman for the sum of $312.50, and for the plaintiff 450 West End Avenue Corporation for the sum of $412.50, with appropriate interest in each case."], "id": "2eb203c4-56c6-4cd8-9196-69b5ef34bdab", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Regulation 880.607 states that the only grounds upon which a section 8 new construction tenancy can be terminated are (1) material noncompliance with the lease; (2) material failure to carry out obligations under any State landlord and tenant act; or (3) other good cause (24 CFR 880.607 [b] [1]). The term material noncompliance with the lease is defined as including \u201c(i) one or more substantial violations of the lease, or (ii) repeated minor violations of the lease which disrupt the livability of the building adversely, affect the health or safety of any person or the right of any tenant to the of the leased premises and related facilities, interfere with the management of the building or have an adverse financial effect on the building.\u201d (24 CFR 880.607 [b] [3].)"], "id": "ad8f1890-aff9-4d0f-ac48-72aacd161fa1", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*855The covenant of , as codified in Civil Code section 1927, arises from a lease: \"An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring.\" ( Civ. Code, \u00a7 1927.) \"Under this section, there is an implied covenant on the part of a landlord that a tenant shall have quiet enjoyment and possession of the premises during the continuation of the term .\" ( Lee v. Placer Title Co. , supra , 28 Cal.App.4th at p. 512, 33 Cal.Rptr.2d 572, italics added.) In this case, the trial court found-based upon the undisputed facts that Salima stopped paying rent and failed to comply with Knight's three-day notice to pay rent or quit-that at the time of the alleged constructive eviction (i.e., when the purported sewage spill occurred in January 2012) there was no lease, and Salima was not lawfully in possession of the premises. As discussed in section A., ante , these findings were correct in light of the undisputed facts before the court. Therefore, the court properly granted summary adjudication in favor of Knight on Salima's breach of the covenant of quiet enjoyment claim."], "id": "27c21a72-a2d5-452f-8394-84eb038f22e5", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The complaint alleges that on October 2,1972 plaintiff Robert Zamzok entered into a contract with defendants Harold and Lillian Green to purchase the Green\u2019s co-operative apartment 2B at 650 Bark Avenue. On or about November 1, 1972 the co-operative corporation issued a new stock certificate to the Zamzoks, the Greens assigned to them their proprietary lease, and the Zamzoks took up residence in the apartment. They allege that they immediately became aware of the loud noises emanating from outside the apartment, presumably caused by the operation of an elevator for a garage located in the building, leased from the co-operative corporation and operated by the defendant Sulgrave, Inc. They allege further that the noise has continued despite numerous complaints, as a result of which the peaceful and of their dwelling has been destroyed."], "id": "a6f6d21f-6a62-46d3-b0c4-98192222e7f3", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In 1154 Union Ave. Corp. v. Davis (supra) the plaintiff, a subtenant, sued the tenant for damages by reason of the tenant\u2019s failure to comply with the provision in the major lease which required the tenant (defendant) to deposit a sum of money as security with the landlord. The tenant failed to deposit said security and the plaintiff (subtenant) offered to deposit said security, but the major landlord refused to permit him to post the security. The landlord brought summary proceedings and evicted the major tenant and the plaintiff subtenant. The Appellate Division states (p. 465): \u201c The defendants failed to comply with the provision of the original lease with respect to the giving of security on May 30, 1923. The plaintiff sought to make good this default, but there has never been any attornment to the original landlords and they refused to accept the security from any one other than their original tenants, the defendants. * * * The original landlords were under no obligation to accept the rent or security from any one but their own tenants. If the defendants had failed to pay the rent to the original landlords they would clearly have violated the covenant of in the sublease. They similarly violated it in failing to post the security. The covenant of the sublease to comply with the terms and conditions of the original lease cannot be construed as putting on the subtenant or its assignee the obligation to do what they could not do without the landlords\u2019 consent. No one other than the defendants could post the security without the consent of the landlords and it was their affirmative duty to post the security. Their failure so to do breached the covenant of quiet enjoyment.\u201d"], "id": "3473ce88-964b-40e7-8d2b-1eaacb3408a3", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To summarize, the court finds that petitioner has failed to establish that respondent committed \u201c(1) [o]ne or more substantial violations of the rental agreement, or (2) repeated minor violations of the rental agreement which disrupt the livability of the project, adversely affect the health or safety of any person or the right of any tenant to *782the of the leased premises and related project facilities, interfere with the management of the project or have an adverse financial effect on the project\u201d (24 CFR 450.3 [c]). The petition is therefore dismissed."], "id": "cd3fe951-ddcb-45fc-8df4-8da32ffe2ed7", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Take this case for an example. The lessor in violation of his covenant with his lessee that he should quietly enjoy^ the demised premises for the full term, becomes an actor with another, and ousts his lessee from an unexpired term worth about $2,000, in such manner that trespass will not lie against him, and goes into the enjoyment of it himself. The lessee brings action upon the lessor\u2019s covenant for . What shall he recover ? I think the true answer is found in the rule laid down upon the trial.' It was said by the counsel of the defendant, that Mr. Dorsheimer, by his purchase at the foreclosure sale, became the owner of the equal undivided half part of the demised premises ; that the plaintiff was therefore only evicted by the defendant from the one undivided half part of them, and that the defendant was at most only liable for the one-half of the value of the unexpired term. The answer to this position is found in what I have already said. It was the eviction, and not the sale under the judgment in the foreclosure action, that constituted the breach of the defendant\u2019s covenant for quiet enjoyment. And it is the active part which the defendant took to cause the eviction of the plaintiff from the demised premises, that takes his case out of the rule of damage established for the protection of those Avho have acted in good faith, and places it under that rule Avhich gives to the lessee the damages \u00c1vhich he has suffered, propter ipsam rem non habitam. I do not see how a case can be partly under one rule and partly under the other. The conduct of the defendant must place it entirely Avithin one of the rules."], "id": "e2f69810-25e3-434f-b57e-db508f5dd946", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The condominium located at 1800 Second Street, part of the East Shore Commercial Condominiums, was owned by William R. de Carion dba Surfwood Properties (de Carion) and was leased to defendants, who owned and operated a furniture manufacturing business. The parties' relationship was governed by a written lease dated February 1, 2013 (the Lease). Paragraph 5 of the Lease provided, \"Lessee shall not commit waste, nor carry on any activity which would destroy or impair the of other lessees in the building of which the Premises form a part.\" Paragraph 6 required the Lessee to keep the Premises *556in good repair. Paragraph 8(A) required the Lessee to \"keep in force a public liability insurance policy covering the leased Premises, including parking areas, if any, included in this Lease, insuring Lessee and naming Lessor as an additional insured. ... Said insurance policy shall have minimum limits of coverage of $ 1,000,000 in the aggregate.\" (Italics added.) The Lease did not specify which party (Lessor or Lessee) would carry fire insurance."], "id": "aded3e70-945a-4bb1-a1d1-88f5f6bed887", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We recognize that \"overpayment of rent\" could refer to a rented property not being worth the amount of rent being paid because a nuisance created by defendant negatively affects the property's habitability or the tenant's of the premises. However, plaintiffs' primary nuisance theory was that defendants failed to maintain the park in good working order and condition and the jury expressly rejected that theory on the special verdict forms. Although the jury found in favor of plaintiffs on their secondary nuisance theory based on defendants' failure to follow their own park rules that required them to maintain their park-owned vacant mobilehomes in good condition, and presumably some percentage of the jury's award is attributable to that claim, it is inconceivable that this secondary nuisance claim was the main basis for the jury's award of $ 1,289,000 in compensatory damages and $ 57 million in punitive damages. The twofold gravamen of plaintiffs' case clearly was that: (1) defendants' failure to maintain the park in good working order and condition created a nuisance that caused them compensable harm and (2) defendants imposed unreasonably high space rent increases that some plaintiffs could not afford and that made it difficult or impossible for plaintiffs to sell their mobilehomes. In light of the jury's rejection of plaintiffs' primary nuisance claim based on failure to maintain the park, it is reasonable to conclude that the main basis for the jury's awards of compensatory and punitive damages was the high rental rates plaintiffs had paid or were paying."], "id": "fe076fb2-20da-4386-ab6d-2adae3983923", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The taking down of the building was, therefore, either the act of Whiting or of his contractor, Sniffen, and those employed by SnifEen. Whether those who took it down had any lawful authority to do so, does not appear. It does not appear distinctly whether they did so by any lawful order or direction of the department of public buildings. Tripler testifies that it was ordered down by the department of buildings, and Eidlitz testifies that it was removed, as he understood, by that department. As the defendants were themselves dispossessed, as well as the plaintifE, and as no act of Kane or his agent was shown directing or authorizing the taking down of his building (for the conveyance of the property by him to Whiting conferred no authority upon Whiting to disturb the plaintiff\u2019s and the defendants\u2019 possession, even if the conveyance had been delivered to Whiting before the building was taken down), then Whiting, or his contractor, SnifEen, and Tripler and Eidlitz were, as respects the plaintiff, mere wrong-doers and trespassers, unless they acted under the authority of the department of buildings, exercised in the mode provided for by the statute, of which there was no evidence, no proceeding on the part of that department having been shown, except the putting on the building of the preliminary notice. If those, therefore, who took down the building, did so without authority, the plaintiff\u2019s remedy was against them, and their acts constitute no breach of the defendants\u2019 covenant in the lease for ."], "id": "8fce50bf-965e-4033-9b8d-f12848fd904c", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When asked the question: \u201cWas the provision in the will in Article Fifth designed to ensure that ultimately Gary and Gregory Hennel would be vested with the property at the termination of Edmund\u2019s life estate free of any mortgage that Edmund Hennel placed on the property,\u201d attorney Parisi responded: \u201cThat was my understanding from what they told me.\u201d When *555asked the question: \u201cWas the mortgage provision in the will, namely Article Fifth, and the and warranty provisions in the deed meant to work together and be read consistently with each other,\u201d attorney Parisi responded: \u201cI believe so.\u201d (May 1, 2012 tr at 13-14.)"], "id": "348e1521-ca2c-4222-bd9a-6fd1d5d0dfbf", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We have examined the answer with some degree of care, and are of the opinion that the defendant was entitled to prove each and all of the matters alleged therein, and entitled him to go to the jury thereon, and that it would be a denial of justice to hold over him a judgment that subjected him to damages for which he was in no way responsible, and to the enforcement of a clause in a lease to pay rent for premises he could not occupy or use for the purposes of his business, and which were of no use or value to him whatever, without the benefit of the plaintiff\u2019s covenants of of all the demised premises."], "id": "5b741109-f280-4ab1-8ff9-1b646c697f31", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\"Each public housing agency shall utilize leases which * * * \"(5) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or *258near such premises, engaged in by a public housing tenant, any member of the tenant\u2019s household, or any guest or other person under the tenant\u2019s control, shall be cause for termination of tenancy\u201d. (42 USC \u00a7 1437d [Z] [5].) The Court of Appeals of North Carolina concluded that Congress did not intend that the subject statute impose strict liability upon tenants for all criminal activity irrespective of their knowledge of or ability to control the acts. The court reached this conclusion upon review of the applicable expressed legislative intent. The court cited the congressional committee\u2019s report that accompanied the 1990 amendment to 42 USC \u00a7 1437d (Z) (5): \"This Section would make it clear that criminal activity, including drug related criminal activity, can be cause for eviction only if it adversely affects the health, safety, and of the premises. The Committee anticipates that each case will be judged on its individual merits and will require the wise exercise of humane judgment by the PHA and the eviction court. For example, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent the activity. S.Rep. No. 316, 101st Cong., 2d Sess. 179 (1990)\u201d. (Charlotte Hous. Auth. v Patterson, supra, 120 NC App, at 556-557, 464 SE2d, at 71-72.)"], "id": "9f3d4561-0a7d-4c8a-86de-e1c8885111eb", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent\u2019s fifth counterclaim argues that petitioner had a duty to disclose to the respondent prior to the execution of a lease whether it had any knowledge of lead-based paint hazards in the apartment pursuant to 24 CFR 35.88 (a). Pursuant to the Lead Paint Act (42 USC \u00a7 4821), United States Department of Housing and Urban Development (HUD) promulgated regulations that prohibit the use of and presence of lead-based paint, namely, 24 CFR part 35. The latter lists *829the disclosure requirements imposed on sellers and lessors which loosely include providing prospective buyers/lessees with an Environmental Protection Agency (EPA) approved lead hazard information pamphlet, a lead warning statement, and a statement disclosing any known lead-based paint or lead hazard. (24 CFR 35.88 [a].) Respondent contends that petitioner\u2019s failure to disclose this information rises to a breach of the parties\u2019 rental agreement and has interfered with her of the apartment in that she has been displaced from the apartment for several months."], "id": "f46e5e09-d522-4185-b4f7-e030cc7b74b1", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner\u2019s notice to cure implies that respondent is allowing undesirables into his apartment who may be using drugs and consuming alcohol excessively which has interfered with the peace and of other tenants in the building. Although no specific details of drug activity are provided in the notice to cure, the court concludes that said notice is not infirm."], "id": "6c722edc-c3ec-4902-a438-d45fc7cdbfb2", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is evident that Judge Brady, who granted the injunction, did not consider the plaintiff entitled to such sweeping reliefj as his order expressly reserved to the defendants the right to institute summary proceedings before the justice of the district court within whose jurisdiction the premises were situated. Why this permission was not extended so as to include the other officers\u2014the mayor, recorder, and justices of the Marine Court\u2014upon whom jurisdiction in these proceedings is conferred, does not appear; but the fact that such proceedings were permitted at all shows that the injunction was aimed solely at the particular proceeding then pending, and that the facts were deemed insufficient to warrant the general injunction prayed for. In that opinion I entirely concur, for reasons to which I will presently advert; but I go further, and, after careful consideration, I think the facts were insufficient to support even the limited injunction granted. In the aspect of the case upon which this particular proceeding, and that alone, was restrained, the equity of the complaint consists simply in the averments respecting the testimony of the city judge. Now, how is the-plaintiff prejudiced by the inability of his tenants to pro*440cure that testimony ? He is neither a party to the proceedings,, nor in any legal sense privy to them. Neither his title nor James,\u2019 can be tried therein. If the relation of landlord and tenant really exists by agreement between himself and these tenants, it cannot be disturbed by. a proceeding in which the only issues are whether that same relation exists by agreement between other and distinct persons, and whether these tenants in occupation have (illegally if, as the plaintiff states, they are really his tenants) attorned to any such other persons. These tenants can only be disturbed by James, in case they have, in violation of their duty to the plaintiff, assumed the positioti, by express agreement and not by mere operation of law, of subtenants of James\u2019 alleged tenants. The proceedings being based, therefore, upon the existence of an agreement which, if ' entered into, was a practical denial of the plaintiff\u2019s title, and upon alleged facts, with which neither the plaintiff nor his assigns are in any wise connected, this action cannot be sustained on the ground of the landlord\u2019s duty to protect his ten- - ants in the of the demised premises. The plaintiff, therefore, really has no interest in the summary proceedings. They cannot affect the relations subsisting' between-the tenants and himself, and should they even result favorably to James, and thus enable him to acquire actual possession\u2014a most unlikely contingency upon the facts before us\u2014still, as-against the plaintiff) he would, if devoid of title, be as much a . mere trespasser, as though, with\u00f3ut any proceeding, the premises . had been collusively abandoned to him by the plaintiff\u2019s tenants. It is for the tenants, therefore\u2014for they alone \u00e1re interested in the proceedings\u2014to complain if unjustly deprived of ' testimony. The result, however, would have been the same if \u2018 the action had been instituted by the tenants. A very strong case should, in my judgment, be presented to justify a court of ' equity in restraining, upon such grounds, the exercise of legitimate judicial functions. Otherwise any judge may be ousted of his lawful jurisdiction by a loose affidavit, claiming generally,, upon the advice of counsel, that he is a necessary and material witness for one side or the other. The utmost that can be glean- - ed from the plaintiff\u2019s complaint and affidavits is, that the city;*441judge may, by producing the records of the previous proceedings, shake the credibility of E. D. James. Surely, this does not make the city judge \u201c a necessary and material witness for the plaintiff\u2019s tenants, without the benefit of whose testimony they cannot safely proceed to trial.\u201d Ought we, from-that slight circumstance, prevent the exercise of a lawful jurisdiction % We are not even assured that E. D. James will be a witness in those proceedings, nor that his testimony is likely to affect the result, nor that the plaintiff has ineffectually requested, either the judge to have these previous affidavits before him at the trial or his adversary to admit them. There is nothing but the bald fact that the judge has in his possession certain records, in which are embodied affidavits made by E. D. James, conflicting in respect to the alleged term of hiring with each other and with that upon which these last proceedings are founded. It appears, also, by the plaintiff\u2019s own papers, that the tenants have it in their power, not only to contradict, but actually to impeach the witness in question; and thus the testimony, upon the alleged deprivation of which the equity of the complaint rests, will probably be merely cumulative. The interference claimed should be most sparingly exercised, and only upon facts the extreme opposite in strength and importance of the exceedingly slight averments here presented. It should, in fact be made to appear, clearly and unmistakably, that the judicial testimony is not of itself privileged, and that its absence would involve a complete denial of justice."], "id": "c20f1e69-b865-42c0-bf94-bca839e5ddb3", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["By the terms of the demise, the plaintiff agreed to let and the tenant to take, the premises, to be occupied as a lumber yard. This was an express covenant to occupy them as a lumber yard. To constitute an express covenant, no formal, technical, or precise terms are required; but wherever the intent of the parties can be collected out of the deed, for the doing or the not doing a particular thing, that is sufficient to make an express covenant. \u2019 Platt on Covenant, 27. The intention here is as plain as if the words of the lease were \u201c I covenant and agree to occupy the premises as a lumber yard,\u201d and occupying them for another purpose was a breach of the covenant. The case of Kinney v. Watts (14 Wend. 38) was very different. There, under a de*45mise for years, tbe defendant was sought to be charged upon a covenant for . As no such covenant \u2018was expressed, it had to be implied as the necessary consequence of the grant of the land, but as no covenant, in a conveyance of real estate, can be implied under the Revised Statutes (1 Rev. Stat. 738), it was held that the plaintiff could not maintain an action of covenant for a disturbance of his possession, though he might have maintained one for the injury done. But here the defendant expressly agreed that the premises should be occupied as a lumber yard; that was a covenant running with the land, and the assignment to the defendant was subject to that covenant. The erection of the buildings, therefore, was a wrongful act, and the defendant having thereby imposed a permanent charge iqpn the plaintiff\u2019s property, which he refused to pay off, the plaintiff was forced to discharge it to release the property, and has a claim against the defendant for restitution."], "id": "8c35700f-32c0-47b4-98dd-8736fff5c5b0", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The conditions that faced them on the date of their \u2018 \u2018 taking possession\u201d constituted a major violation of the landlord\u2019s covenant of , and represented a constructive eviction of the plaintiffs at the very inception of their projected occupancy. The apartment then was substantially as when viewed earlier, with few if any efforts at improvement undertaken. In one respect, the apartment was \u2022 substantially worse, and in another significant respect the apartment, viewed in the improved light provided by a lighting fixture in the bathroom, appeared worse."], "id": "f26ec2c5-7b54-4246-beee-e9308d8de2ea", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But the position of affairs changed when a union of all the' lands and interests and the appurtenances was effected in Lindsley, who was also the owner of the uplands to the east of the highwater mark. It then became competent for him to convey the pier property with appurtenances that did not previously belong to it, but were necessary to the use of the pier, as a pier, in case of its severance from the other property. He, it is true, did not do so. He conveyed the whole to La Farge. But this placed La Farge in the same position. When, therefore, the devisees of La Farge made severance and conveyed the pier property while they retained the remainder, and in doing so conveyed the pier, by the description contained in the deed from the city to Lindsley, together with the extent of the width of the street, and also together with all and singular the appurtenances, &c., &c., and all the estate, right, title, interest, property, claim and demand which in La Farge, at the time of his decease, of, in and to the same, and every part and parcel thereof, and added covenants, in the ordinary form, for the and warranty, not only of the pier property specifically described, but also of the appurtenances, the grant carried with it all that La Farge had owned which was necessary to the use of the pier as a pier (Lampman agt. Milks, 21 N. Y., 505; Doyle agt. Lord, 64 N. Y., 432; Simmons agt. Cloonan, 81 N. Y., 557)."], "id": "954b014b-b3e9-41a7-a926-05deef8814fe", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiffs' position is that defendants' charging unreasonably high rent subjects them to liability in tort for intentional interference with property rights. There is not a clearly defined cause of action in tort in California for intentional interference with property rights. In Barkett v. Brucato (1953) 122 Cal.App.2d 264, 264 P.2d 978 ( Barkett ), the Court of Appeal acknowledged the existence of a tort cause of action for \"willful wrongful eviction, that is, the breach of the covenant of , accomplished by a series of intentionally annoying acts designed to compel the tenant to vacate. Such a tort (as distinguished from an action for breach of the covenant of quiet enjoyment) is recognized in the law. Section 822 of the Restatement of Torts defines this tort as follows: [\u00b6] 'The actor is liable in an action for damages for a nontrespassory invasion of another's interest in the private use and enjoyment of land if, [\u00b6] (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and [\u00b6] (b) the invasion is substantial; and [\u00b6] (c) the actor's conduct is a legal cause of the invasion; and [\u00b6] (d) the invasion is either [\u00b6] (i) intentional and unreasonable; or [\u00b6] (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultra-hazardous conduct.' \" ( Barkett , at pp. 274-275, 264 P.2d 978.)"], "id": "69da2f5f-6bec-4871-8f10-2c9dd945effc", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Even had the landlord not entered into any stipulation, he would have been obligated to provide heat and hot water. In a lease agreement, whether commercial or residential, where there is no express covenant by the landlord to furnish heat, and where the entire building is heated from a central plant which is within the landlord\u2019s exclusive control, as averred here, the covenant of will carry with it an implied obligation to furnish heat. (Rasch, New York Landlord and Tenant \u2014 Summary Proceedings [2d ed], \u00a7 152, citing Berlinger v MacDonald, 149 App Div 5, and Jackson v Paterno, 58 Misc 201.)"], "id": "27e8769f-cf11-4cab-a359-bb644a8c8029", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Upon the argument of the present appeal the court was pressed by the counsel for the appellants to reconsider this decision for the reason which was urged, that the deed should not be so construed as to contain a condition, but as merely limiting the use which might be made of the premises by a covenant on the part of the grantee. The terms made use of for this purpose as they were inserted in the deed are as follows : \u201c Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof or any building, or build *251ings tbereon erected or to be erected, be at any time thereafter used or occupied as a tavern or public house of any kind.\u201d The language as it was made use of was appropriate only for the creation of a condition, and that it was so understood arid designed by the parties is to be further inferred from other portions of the deed referring to this as a condition. Before the deed itself was made, a contract had been entered into between Hogan and Jacob Mark for the sale of the property for the price of $16,000, and it is declared in the deed that the contract was \u201c upon the specific condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.\u201d And in the portion of the deed to which the persons executing it as trustees were more .particularly the parties, the grant is stated to be \u201c subject to and upon the condition hereinbefore expressed.\u201d And the same clause follows and qualifies the warranties contained in the deed, and the final covenant for is in like manner made \u201c subject always to the condition hereinbefore expressed and the rights which may at any time result therefrom.\u201d These several clauses are so clearly and explicitly expressed as to exclude all probability that the parties intended anything different from the creation of a condition by means of the language inserted for this purpose in the deed. And when such an intention has been expressed, or is necessarily to be inferred from the deed, the court is required to be controlled by it and to give effect to it in the disposition of the case. (Glaholm v. Hays, 2 Mann. & G., 257.)"], "id": "3ef74f04-4463-4bf1-9228-9378791e8dc4", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Knight filed a motion for summary judgment or summary adjudication of each of Salima's claims. She argued that Salima could not prevail on any of her claims because she was unlawfully on the premises at all times after July 1, 2011, and was illegally on the premises after December 9, 2011. She also argued that (1) the conversion claim failed because Salima abandoned and did not try to recover her property left on the premises; (2) the breach of the covenant of failed because Salima's occupancy of the premises was illegal after December 9, 2011, and because this claim did not *843exist for commercial property as a matter of law; (3) the nuisance claim failed because Salima's occupancy of the premises was illegal and there was no evidence of a legally sufficient nuisance; (4) the negligence/strict liability claim failed because Salima's occupancy of the premises was illegal, there was no strict liability as a matter of law, and Knight was not negligent; (5) the contract *543interference claim failed because Salima did not have a contract to sell her business, but even if she did, Knight was unaware of it and did nothing to harm any alleged relationship, and Salima sustained no damages; and (6) the section 17200 claim failed because all the underlying claims failed, there was no business practice within the meaning of that statute, and Salima sustained no actual injury."], "id": "5ea07534-2b03-4861-be7d-e90849b0492a", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Vincent W. Versaci, S. Petitioners, Gregory Hennel and Gary Hennel, two grandchildren of the decedent, Edmund Hennel, commenced this proceeding pursuant to SCPA 1809 to determine the validity of their claim against the estate for satisfaction of an outstanding mortgage encumbering certain real property that the decedent conveyed to the petitioners four years prior to his death. The petitioners\u2019 claim also seeks reimbursement for the mortgage payments they have paid since the decedent\u2019s date of death, with interest from the date of each such payment. The petition*550ers allege four causes of action sounding in (1) breach of contract; (2) breach of title warranty and the covenant of ; (3) promissory estoppel; and (4) unjust enrichment. In addition, the petitioners seek an award of attorneys\u2019 fees on their second cause of action for breach of warranty."], "id": "d58544aa-918c-4c2b-9632-3e32bf6976aa", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In her appellant's opening brief, Salima concedes that the trial court *552correctly accepted Knight's argument that there can be no claim for breach of the covenant of in commercial tenancies, but she argues the trial court erred by granting summary adjudication because her complaint alleged, and she presented evidence to support, a constructive eviction claim. Although we note that her concession was misguided-every lease, including a commercial lease, includes an implied covenant of quiet enjoyment, although the covenant may be waived in commercial leases ( Civ. Code, \u00a7 1927 ; Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1191, 122 Cal.Rptr.3d 417 ; Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 512-513, 33 Cal.Rptr.2d 572 )-we conclude the trial court's grant of summary adjudication nevertheless was proper."], "id": "fadade90-f24f-45af-bf62-bcbafe97c04f", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If it had appeared, or if the evidence would warrant the \u25a0 conclusion, that the building had been taken down by the direction of the superintendent of buildings, in the lawful exercise of the power and authority conferred upon him by statute, then, in my opinion, there would have been no breach of the covenant in the lease for . Such a covenant is necessarily entered into subject to the possibility of such a state of things occurring from the nature and condition of the premises demised, and the rights of the owners of the adjoining land. Where there is no covenant on the part of the landlord to repair or rebuild, and none is implied in a covenant of quiet enjoyment (Brown v. Quilter, Amb. 621), the tenant takes the premises as they are, and if, in consequence of natural decay, or the taking down of a building by the owner of adjoining land, or his excavations of subjacent soil, it becomes indispensable, as a public duty for the public safety, to take down the building, to prevent its falling down, there is no violation of the covenant for quiet enjoyment, which is nothing more, in the language of Mr. Taylor, than \u201c that the lessee shall not be evicted or disturbed by persons deriving title from the lessor, or by virtue of a title paramount to his \u201d (Taylor\u2019s Landlord & Tenant, \u00a7 305, 5th ed.). The taking down of a building, as an act of necessity, to prevent its falling down, either by the public authorities, or in obedience to their orders, is not an eviction or disturbance of the possession by title paramount, there being no question of title involved in such an act. The taking down and destruction of the building, under such circumstances, has no more effect upon the covenants in the lease, than the destruction of the building by fire would have, an event which does not operate to produce the effect of an eviction, unless the landlord has expressly covenanted to rebuild or keep the premises in repair (Taylor\u2019s Landlord & Tenant, \u00a7 309, and cases there cited)."], "id": "8bf0ee84-a256-440c-90a0-887f0b5f40fe", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["3. The third objection under the appellant\u2019s second point was that the judgments are satisfied by the sale of property. This is not quite true in point of fact; but if it were, it would not in this case be a Valid objection to the plaintiff\u2019s right to the relief sought by their bill. They wish to remove an impediment to their of the property purchased, the defendant\u2019s mortgage casting a cloud upon the title to it. The plaintiffs in the court below state that the sale of the property mortgaged was void and of no effect as to them; so says the defendant; the circuit judge says the sale was valid; and the chancellor understands the supreme court as having *347decided that an equity of redemption in personal property is not a subject of levy and sale under an execution. I apprehend there is some mistake as to this point, though not material perhaps in this case. It was held by Chancellor Kent, in Hendricks v. Robinson, above cited, that a mere equity in the proceeds of personal property cannot be sold on execution. There property had been assigned for the' payment of debts, and to indemnify against responsibilities incurred ; and from the statement of the assignees, there would still be a balance due them after the appropriation of the property assigned. The law, however, would hold the assignees liable to account for any balance which might be in their hands after indemnifying themselves. Executions had been issued after the assignment, and the chancellor says, \u201c I cannot see upon what principle the execution affected or touched the residuary equitable interest of the Franklins in the property which had been assigned. Again ; \u201c If the execution cannot sell, there is no reason why it should affect or bind a mere equity, and the doctrine would be equally inconvenient and absurd. The party\u2019s only remedy, if he wishes to prevent the assignment or release of a chose in action, is by application to this court; and without such aid, the validity of the transfer will depend entirely upon the question of consideration and fraud.\u201d In Marsh v. Lawrence, 4 Cowen, 461, it was decided that the equity of redemption on the mortgage of a chattel existing in that case, could not be sold on execution. The reporter has indeed stated it as a general proposition; but it will be seen from the opinion of the court, that that doctrine was intended to apply where the mortgagor had no right of possession for any definite period. All the interest the mortgagor had, if any, was an equitable right to any surplus which might remain in the hands of the mortgagee after a sale by him. But when the mortgagor has a right to redeem, and a right to the possession for a definite period before the property can become forfeited, and liable to be taken and sold by the mortgagee, the mortgagor has an interest which may be sold on execution. The purchaser in such case takes the property subject to the incumbrance ; he purchases the right of the mortgagor, which is a right to the possession and the absolute own*348ership, subject to the incumbrance ; but if the mortgage at the time of the sale on execution has been forfeited, the mortgagor has not the right of possession for a moment; all the right he has is an equity. In accordance with these views, the supreme court held in McCraken v. Luce, referred to in Otis v. Wood, 3 Wendell, 500, that a mortgagor of a chattel having a right to \u2022 the possession for a definite period, had an interest which was liable to be sold. This is in accordance with the doctrine as to mortgages of real estate. The interest of the mortgagor in possession, and before forfeiture, is liable to be sold on execution. If therefore in this case the mortgage were valid, Green still had an interest which might be sold on execution, and the purchaser would have a right to redeem. The mortgage did not become absolute until the first of J anuary, 1828 ; the sale was on the 8th of December previous. The bill, however, was properly filed as a bill to redeem on the first January, 1828, supposing the mortgage to be valid, the defendant having refused to accept the money due him."], "id": "9edfc4b4-f2b6-4e45-8c31-58433045d778", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The lease contains a covenant of (par 22). It also contains a broad subordination clause (par 7). Plaintiff contends that the subordination clause clearly makes the lease subject to \"all mortgages which may now or hereafter affect such leases\u201d (Wagner v Van Schaick Realty Co., 163 App Div 632). That the covenant of quiet enjoyment is superseded by the subordination clause."], "id": "6e4f8629-53da-484e-a10e-a733b7545fc6", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As noted, our partial reversal of the judgment remands the cause for a new trial and places the parties in the same position as if the cause had never been tried, with the exception that this opinion must be followed to the extent it is applicable. ( Hall v. Superior Court, supra , 45 Cal.2d at p. 381, 289 P.2d 431.) Based on our discussion above, the following claims remain viable on remand: (1) plaintiffs' cause of action for declaratory relief, seeking a determination that certain provisions in plaintiffs' long-term leases are unconscionable; (2) plaintiffs' cause of action for unfair business practices in violation of the UCL; (3) plaintiffs' nuisance claims that defendants failed to maintain the park in good working order and condition and failed to follow their own park rules that required them to maintain park-owned vacant mobilehomes in good condition; and (4) plaintiffs' claims for breach of contract and breach of the covenant of , negligence and negligence per se, to the extent these claims are based on conditions in the park and not on high rent. Plaintiffs' cause of action for intentional interference with property rights may be legally viable; however, as we discussed, it cannot properly be based on rental rates allowed by the parties' leases or law."], "id": "870029d0-5880-46e3-ba53-1d198d7f2390", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As recited in the stipulation of the parties, the appropriations by the State of lands of abutting owners, some twenty-eight in number, were made in 1909, excepting as to two parcels which were made in January and August, 1910. Concededly, certain of the awards had been made, and settlements consummated with other abutting owners prior to the date of the service of the map and notice of appropriation upon the claimant in November, 1911. It is not claimed that the deposit of any such award was ever made by the Comptroller pursuant to section 88 of the Canal Law, or that a notice of the appropriation of any of the abutting lands was ever given to claimant, or that at the time any award or settlement was made it was suggested by the State authorities that an award to the claimant was intended to be included in an award to an abutting owner. In fact, the State concedes that the value of claimant\u2019s property was never taken into consideration in estimating the value of any property appropriated by the State, and claims that there is no liability upon the part of the State to the claimant. It is certainly not the policy of the State to confiscate private property for State uses. As was said by Judge Cardozo in Jackson v. State of New York (213 N. Y. 34): \u201cCondemnation is an enforced sale, and the State stands toward the owner as buyer *321toward seller. On that basis the rights and duties of each must be determined. \u201d The value of an easement to erect and maintain a pole was stipulated at one dollar, but it is doubtful whether there was in fact any damage whatever to the fee by reason thereof, as in an action for breach of covenant of it is the manner in which an easement affects the value of the premises as a whole which constitutes the loss, if any. (Hymes v. Esty, 133 N. Y. 342, 346.) Indeed, a telephone line along country highways such as these were might be considered a benefit rather than an injury to the abutting property. Whether the State may have questioned claimant\u2019s easements being incumbrances within the meaning and intent of the Canal Law, and hence may have doubted its legal right to distribute claimant\u2019s compensation among the twenty-eight different property owners, or may have considered that method too vexatious and dilatory, is not material in view of the fact that it has sought to appropriate claimant\u2019s property as a whole, which it had the right to do; and in view of the record in this case it hardly .lies with the State to claim otherwise."], "id": "4ee93d82-4848-4f20-8493-6d8b404478ec", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Since April, 1979, plaintiff has resided in his rent-controlled apartment pursuant to an agreement with the prime tenant creating a valid sublease through December 31, 1985. The sublease was undisputed and undisturbed, and the defendant landlord accepted rent from plaintiff through July, 1980. This was interrupted, however, when the landlord refused plaintiff\u2019s August, 1980 rent check. A 30-day notice to cure dated August 29, 1980 was allegedly served upon the prime tenant for permitting occupancy by persons other than the prime tenant or his immediate family. This was followed by a notice of termination dated September 18, 1980."], "id": "f4409645-b3d1-4fd2-bbca-3d16f94fa71b", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the case of Leech v. Schweder (L. R., 9, Ch. App., 463), there was a demise of premises \u201c with all lights, easements, \u2022advantages and appurtenances,\u201d and a covenant of . The judges in their opinion say that the covenant of quiet enjoyment does not enlarge that which was previously granted ; that the grant of lights is \u201c the grant of that which had, in law, an existence as an easement over another man\u2019s property at the time when tlie grant was made.\u201d"], "id": "d658e510-da77-40c3-8fae-6869a85d94ca", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under the ancient law, only the actual eviction of the tenant by the landlord, and not constructive eviction, was recognized as a defense (Hunt v. Cope, 1 Cowp. 242). The strictures of this principle have been eroded through the succeeding years; and our courts did not respect the English rule that neither fire, flood, nor violence destroyed the obligation to pay rent (3 Kent\u2019s Comm. [14th ed.], 460). As Chancellor Walworth early said, in Gates & Colvin v. Green (4 Paige Ch. 355, 357): \u201c It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used.\u201d (See, also, Van Voorhis, J., in Schantz v. American Auto Supply Co., 178 Misc. 909.) Through the passage of time, the assault on the common-law doctrine has continued (1) through the acceptance of the defense of constructive eviction on behalf of the tenant where the landlord, by the commission of acts, or the sufferance of a condition, has interfered with the tenant\u2019s enjoyment of the premises (Haydon Co. v. Kehoe, 177 App. Div. 734; Park Ave. M. E. Church v. Barrett, 30 N. Y. S. 2d 667, affd. 264 App. Div. 879); (2) through the construction by the courts that all leases have an implied covenant of (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370) and (3) through the enactment of statutory relief (L. 1860, ch. 345, now Real Property Law, \u00a7 227; cf. Meserole v. Hoyt, 161 N. Y. 59; Butler v. Kidder, 87 N. Y. 98)."], "id": "4a78fdf2-cb10-4d48-a026-aca270286894", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is no question that the interrogatories which will assist the defendant in her defense of plaintiffs contract action and her counterclaims grounded in contract (breach of covenant of and constructive eviction) will also assist her in her counterclaim alleging plaintiffs \"negligence\u201d in hiring, training, supervising and retaining (after Feb. 22, 1974) Clarence Warren in its employ. Plaintiff contends that if the action sounds in negligence, i.e., if recovery is dependent on proof of negligent conduct the courts will prevent the use of interrogatories, even though the complaint may allege other cause of action, such as breach of contract *523(Marotta v Roundtree Estates, 50 Misc 2d 149). Further, in an action where there are viable causes of action other than negligence, the court will strike those interrogatories which relate and are directed to the question of negligence (Fusco v Enzo-Gutzeit, 42 Misc 2d 101)."], "id": "c1f93203-a501-4ba3-a62a-c1f9b957f54b", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The landlord\u2019s covenant of of the premises demised, only goes to the extent of engaging that the landlord has a good title, and can give a free, unincumbered lease of the premises for the term demised (Weeks v. Bowerman, 1 Daly, 100; Johnson v. Oppenheimer, 34 N. Y. Superior Ct. 416, 428, affirmed in 55 N. Y. 280 ; 3 Duer, 464 ; 3 Hill, 330). There is no legal reason, therefore, which excuses the tenant from the performance of his covenant."], "id": "6eac5e6c-bc93-4e0f-a3f6-c71a2a654fa3", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Peng filed a cross-complaint against Hong Sang, Ming Kee, and Ming's Poultry, LLC. Peng alleged four causes of action against Hong Sang: interference with contractual relations, breach of the covenant of , declaratory relief, and conspiracy. Peng alleged that Hong Sang had falsely advised her that Ming Kee was in default under the master lease and that her sublease was terminated as a result. She claimed that she was forced to hire an attorney as a consequence and incur attorney fees and costs to defend herself against the unlawful detainer action filed by Hong Sang in 2009. In the conspiracy cause of action, Peng alleged that the cross-defendants had conspired to render Ming Kee insolvent and prevent her from collecting her judgment against Ming Kee by offsetting the amount *106of the judgment against rents owed to Ming Kee. The declaratory relief cause of action sought a declaration of the parties' rights and duties pertaining to the premises occupied by Peng."], "id": "2ca525b6-790f-48a2-ba06-7986c3063ed8", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The tenants have urged this court to imply that a breach of the covenant of , a constructive eviction, has occurred by reason of the claimed inadequacy of police personnel assigned to their project and to the insecurity that they experienced due to this claimed inadequacy. There are a variety of conditions and circumstances which have been construed by the courts as constituting a constructive eviction and a substantial deprivation of enjoyment of leased premises. Some of these conditions have consisted of noxious odors, lack of heat or water, excessive noise, water leakage, the presence of vermin and the lack of elevator service (1 N. Y. Law of Landlord and Tenant, \u00a7 251; 1 Rasch, Landlord and Tenant, \u00a7\u00a7 882-903; 33 N. Y. Jur., Landlord and Tenant, \u00a7\u00a7 171-178). Inadequate protection has never been construed to constitute a constructive eviction or a breach of the covenant of quiet enjoyment."], "id": "a974e982-553f-4f75-ba94-48eb4ac433e8", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While the evidence before the grand jury shows that on June 18, 1931, the property covered by the lease was sold pursuant to a judgment of foreclosure of the mortgage made by the defendant, the record is barren of any evidence that Wiegand was made a party to the foreclosure action, so as to cut off his lease. This is fatal to the prosecution, since there would be no breach of the covenant of . (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 289, 290.) In this case Judge Andrews wrote: \u201cAs a general rule a tenant is liable under his contract of lease until he is evicted. * * * If * * * he is not a party to the action his rights are not affected. There is never an eviction. * * * where he is not a party his interests are not touched.\u201d"], "id": "602fda04-214e-4ab4-9fea-11a83dc0cbeb", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I suppose that the Bevisfed Statutes intended to require grantees who desired to protect themselves to have the necessary covenants inserted to leave nothing to implication or inference. It has been well settled that the covenant of warranty was broken only by eviction ; that is, by the actual taking away the whole or some part of the land which by the deed purported to be guaranteed. Mere limitations or restrictions upon the use of the land are not evictions. The title remains in the grantee and the possession. The easement may be a great incumbrance. But a covenant of warranty is not a covenant against incumbrances. And a covenant of is practically the same as a covenant of warranty."], "id": "7972ee93-13b2-4f0f-a77b-8777de75ac15", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cunlawful for any owner or any person acting on his or her behalf, directly or indirectly, to engage in any course of conduct (including but not limited to interruption or discontinuance of required services, or unwarranted or baseless court proceedings) which interferes with . . . the . . . of the tenant in his or her use or occupancy of [his or her apartment], or is intended to cause the tenant to vacate such [apartment] or waive any right afforded under th[e Rent Stabilization] Code.\u201d Accordingly, 363-367 Neptune Avenue, LLC\u2019s motion for an order requiring Thomas Neary, Salvatore Benevento, and Carmel Salerno to vacate the subject premises is denied. 363-367 Neptune Avenue, LLC\u2019s additional motion is denied insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s first and fourth counterclaims, is granted insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s second and third counterclaims, and is denied as moot insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s affirmative defenses. In view of the dismissal of 363-367 Neptune Avenue, LLC\u2019s complaint, Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s motion is rendered moot insofar as it seeks a preliminary injunction; however, 363-367 Neptune Avenue, LLC is directed to *796make repairs and maintain essential services on an ongoing basis and to take prompt steps to correct maintenance problems as they arise in accordance with the Rent Stabilization Code, and to also refrain from harassing Thomas Neary, Salvatore Bene vento, and Carmel Salerno in compliance with the Rent Stabilization Code."], "id": "a2bb3805-493e-43e4-b6a4-36cbe56b567c", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The trial court's error in finding that breach of the covenant of did not apply to commercial leases does not affect the correctness of its grant of summary adjudication because the breach that Salima asserted was that she was constructively evicted (see Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299, 173 Cal.Rptr.3d 159 [the covenant of quiet enjoyment \"is breached upon actual or constructive eviction of the tenant\"] ), and the trial court properly rejected that assertion."], "id": "65db0fc3-6f43-47cc-a53a-2ee2904afbd0", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["First, frequent arguments arise regarding whether annoyance and inconvenience may serve as a basis for a finding of a breach of the warranty of habitability. It is clear that under the covenant of , annoyance and inconvenience would not breach that covenant. (Goldner v Doknovitch, 88 Misc 2d 88, 91, upon remand NYLJ, Jan. 12, 1977, p 14, col 2.) The entire warranty of habitability, on its face, is a broader and more encompassing theory. Based upon a close analysis, annoyance and inconvenience could well serve as a basis for a determination of a breach of the third branch of the warranty and as a factor to consider in relation to the breach of the first branch of the warranty."], "id": "928b84f8-b8e8-4d0c-bf05-37b1205dc753", "sub_label": "US_Terminology"} {"obj_label": "quiet enjoyment", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Boreel v. Lawton (90 N. Y., 293), it is said that there cannot be a constructive eviction without abandonment of possession. That remark should be construed in connection with the case then before the court which was was an action by a landlord against his tenant for rent, and the defendant, admitting the continuance of the tenancy during the time for which rent was demanded, alleged certain acts done or permitted by the landlord to the tenant\u2019s damage which he set up as a counter-claim. It was held that there was not such an eviction as would furnish a basis for an action on the covenant for , and that although the defendant may have had a cause of action, it was not the subject of a counterclaim. Several other cases are cited arising out of leases, but none question the right of a tenant to attorn to a paramount title and thereby defeat an action for rent subsequently accruing. (Simers v. Saltus, 3 Den., 214; Wood\u2019s Land, and Ten., 807, and cases cited in note 1.)"], "id": "4fbe336e-b377-40bc-b09a-15d6f7d2762d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Based upon the foregoing, respondent\u2019s first and fifth counterclaims set forth valid claims for relief and are appropriately interposed in this nonpayment proceeding. Accordingly, respondent\u2019s motion is granted to the extent of allowing respondent leave to amend and file her amended answer, absent her third affirmative defense and fourth counterclaim nunc pro tunc. Additionally, petitioner\u2019s reliance on New York City Hous. Auth. v Alexander (NYLJ, July 18, 1996, at 21, col 3 [App Term, 1st Dept]) is misplaced inasmuch as that case involved the applicability of the defense of breach of warranty of to a summary holdover proceeding."], "id": "64fe8999-6813-4823-a729-3f57f712398c", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this nonpayment summary proceeding, tenant moved to vacate a default final judgment and warrant, asserting, inter alia, that she had not been served with the rent notice or notice of petition and petition, and that landlord\u2019s agent had removed mail from her mailbox. She also asserted a defense of breach of the warranty of , and attached a printout of the violations in the apartment. On the September 8, 2005 return date of the order to show cause, tenant\u2019s then attorney appeared without her and entered into a stipulation of settlement. The stipulation provided that tenant\u2019s motion was granted solely to the extent of staying execution of the warrant until October 15, 2005 for tenant to pay $10,148.60 plus October rent. The stipulation was signed by tenant\u2019s then counsel as \u201cLL Atty.\u201d Shortly thereafter, tenant filed a consent to change attorney, and her new counsel promptly moved to vacate the stipulation. Tenant claimed that her former attorney, whom she had retained only after she had received the marshal\u2019s notice, did not inform her of the return date of the order to show cause and that he entered into the stipulation without her knowledge and consent. She also claimed, inter alia, that the amount of rent arrears agreed to in the stipulation was as much as $4,000 in error, and she noted that the stipulation made no provision for repairs. *86Landlord opposed the motion on the ground that tenant showed no basis to rescind the stipulation."], "id": "d4478b9b-64ff-4b49-92a9-a13b87162b42", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*436Although under Park West Mgt. Corp. v Mitchell (supra), violations by themselves are not necessarily a breach of the warranty, although a prima facie indication of the same, it cannot seriously be argued here that the impact of the conditions in the case at bar upon tenants\u2019 is de minimus. They do not merely involve aesthetic or cosmetic matters having no serious negative impact on the tenants\u2019 habitability. And, where the uses which the tenants reasonably intend to make of the premises at the time they rented the same are frustrated, the warranty has been breached entitling tenants to damages. (Real Property Law, \u00a7 235-b; Park West, supra, pp 316-317.) Now, as for the damages."], "id": "1c88745f-1601-4bb7-9d3c-174fd0a9a22b", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A trial has now been held at which the tenant argued as a factual matter that a violation of the warranty of has and is still taking place and urged that a rent abatement be granted. The testimony before the court clear*954ly and credibly established that the noise and dust from the demolition and construction were annoying, irritating and disrupted the lives of occupants of the multiple dwelling. As to the individual respondents, only William Corley appeared and he testified that Ena Malone had moved from the apartment and had established another residence. At the time that they had rented the apartment, it was shown that at least William Corley had knowledge of the plans for the immediate commencement of demolition and construction and that he and Ena Malone had previously resided in the half of the building which has now been demolished."], "id": "cf9bb10a-edc7-4daf-8d5f-939f948aeee0", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Finally, the court relies on Highview Assocs. v Koferl (124 Misc 2d 797) where plaintiff landlord of a 366-unit garden apartment complex breached the implied warranty of , as well as the express warranty of use and quiet enjoyment, by its failure to take any steps to protect its tenants in the face of the many (i.e., 10) notices of theft and burglaries committed in the complex in one year."], "id": "963baa04-bb6a-4b21-b9d0-8295cecf49ea", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[t]he [c]curt notes that petitioner would be hard pressed to claim surprise as to the alleged conditions in the respondent\u2019s apartment. [As i]n prior litigation between the parties . . . there were \u2018well documented claims\u2019 as well as class \u2018C\u2019 violations . . . [Additionally, i]n the instant proceeding, the respondent\u2019s pro se answer alleged that *710there were conditions in need of repair.\u201d7 The \u201ccourt\u2019s discretionary grant of the tenant\u2019s motion to amend her initial, pro se answer to include a counterclaim based upon the landlord\u2019s alleged violation of federal lead paint disclosure requirements was consistent with the general rule favoring amendments of pleadings in the absence of prejudice or surprise.\u201d8"], "id": "49eddcbb-e50a-47f7-888a-c9248b40f552", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The evidence sustains the implicit finding of the Trial Judge that appellant failed to establish its claim that tenant set the fire of September 15, 1975. The evidence also supports the findings of the Trial Judge that tenant had not abandoned the apartment, and that more than a reasonable time had expired since the fire for respondent to have restored the apartment to . Furthermore, there was no administrative hearing finding petitioner-respondent to be an undesirable tenant (see Escalera v New York City Housing Auth., 425d 853). Therefore, there was no proper basis for denying petitioner occupancy of the apartment and she is entitled to be restored to her right to occupancy of the apartment."], "id": "acaeabe2-7486-4988-a051-ae792b59b0e7", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The tenant claims in response that from the date of the 755 order until the termination of the tenancy, conditions persisted which justified the continuance of the order, and that she in turn should receive the deposited money, first, because that result more effectively advances the purposes of section 755, and second, because of the landlord\u2019s alleged breach of the implied warranty of ."], "id": "e9f65121-8efe-4d58-931b-4fda19d41c23", "sub_label": "US_Terminology"} {"obj_label": "Habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The First Report also contained the following disclaimers and liability limitations: \"(1) Defects Disclaimer: You are cautioned that even though these premises and/or equipment *339may be in good condition upon examination, that this condition may vary thereafter and we are not responsible for not reporting latent defects or defects caused by previous misuse * * * (2) Disclaimer: This report should not be construed as a basis for evaluating the habitability of the premises, or the future merchantability of the premises, or the monetary worth of the premises, or whether the same should be purchased; (3) Warranty Disclaimer: This report provides no guaranty or warranty of the premises or equipment therein or of their suitability for use or of any recommendations made herein. We are only available to provide advice and discuss with you conditions and defects that concern you * * * This report is not an insurance policy * * * and we make no warranties, guaranties or representations, expressed or implied, in connection with the enclosed report * * * (4) Liability Limitations: * * * our liability is limited to the cost of the inspection; [and] (5) Acceptance As Assent: By accepting this report and utilizing it, the prospective owner(s) named above accept the terms, disclaimers, inspection limitations, and liability limitations of this report. These limitations of liability include and apply to all consequential damages, bodily injury and property damage of any nature. \u201d"], "id": "954dc388-bb12-402f-a2c7-8c0add48e261", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent now moves by order to show cause to vacate the stipulations herein, stating she was not aware of various defenses when she signed the stipulations. The respondent is now represented by the Legal Aid Society which raises on her *679behalf the defense of breach of warranty of and improper rental amount. The respondent alleges the petitioner or the New York City Department of Housing Preservation and Development (DHPD) failed to assist her in obtaining section 8 benefits as required by the Rules and Regulations for Rent Increases to Tenants in Occupancy in Division of Alternative Management Programs (DAMP regulations). The DAMP regulations are applicable to all buildings owned by the City of New York and managed by nonprofit organizations, tenant associations or private entities such as the petitioner."], "id": "6449def4-c71f-4b28-9387-f818b3ad9fa7", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Summary judgment must be \u201cdenied if any party shall show facts sufficient to require a trial of any issue of fact.\u201d (CPLR 3212 [b].) Here, there are issues of fact which must be tried. For example, respondents assert both as a defense and as a counterclaim that petitioner brought this proceeding to retaliate against them for lodging complaints about, among other things, a lack of heat; however, petitioner avers that respondents destroyed the heating system. For another example, respondents assert as both a defense and a counterclaim that petitioner breached the warranty of ,1 yet petitioner avers that respondents prevented her from making repairs. The court may not resolve these disputes on motion papers."], "id": "9b625b5b-c950-4332-b54d-ba3d3459ae57", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Respondent\u2019s answer alleges that the landlord failed to furnish adequate heat, and based thereon, has interposed the *85defense of retaliatory eviction for tenant\u2019s complaint to the building department, and three counterclaims seeking damages, the first based upon breach of implied covenant of quiet enjoyment; the second, for breach of implied warranty of and the third, based upon the elements of retaliatory eviction."], "id": "be21c48c-1f0c-4655-8ad8-5b2a57e70885", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff concedes that a claim of statutory warranty of is not available, but without providing any authority, contends that a condominium owner can, nonetheless, be actually or partially evicted from his or its premises. Citing Hohenberg v 77 W. 55th St. Assoc. (118 AD2d 418 [1st Dept 1986]), plaintiff contends that, even absent a claim for warranty of habitability, damages are available for costs incurred as a result of the disconnection of the auxiliary tower, including, but not limited to, costs of reconnection."], "id": "24516b5f-fd4a-4bcf-b0a1-665f5ebe10ee", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Nonetheless, the lower court\u2019s determination should be sustained based upon a finding that plaintiff breached the warranty of (Real Property Law \u00a7 235-b). After the dumpster was placed in front of the townhouse, defendant\u2019s family became ill due to the odors. There were 20 townhouses in the complex and each of them used this one dumpster to dispose of their garbage. The defendant had to keep the townhouse windows closed but the odors still permeated his home. Defendant could not enjoy the use of his deck or the company of friends."], "id": "b3765619-0d4e-4bbf-8e9b-85ffbe6f3c6d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Obviously, when dealing with uninhabitable vacant space converted by a loft pioneer into living quarters, the application of the warranty must necessarily be different. The concept of separate standards for loft residents was recognized by our Appellate Term in Silverstein v Roof Bin (NYLJ, Dec. 16, 1982, p 7, col 2) where, in dicta, it said (col 3) that in: \u201cdefining the scope of the warranty and computing the amount of damages sustained by a loft tenant as a result of its breach, it may become necessary to draw a distinction between the standard of to which an interim multiple dwelling may reasonably be expected to conform and the standard governing more conventional classes of housing accommodations.\u201d"], "id": "a89c054a-4334-4f23-a558-e9fa0d9d9329", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Court of Appeals in Park W. Mgt. (47 NY2d 316, 329, supra) stated that \"the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. \"The court left open the issue whether remedies other than contract damages were available to the aggrieved party. Initially, courts held the landlord was strictly liable for the breach of the warranty of , thus awarding consequential damages. (See, for example, Kaplan v Coulston, 85 Misc 2d 745 [Civ Ct, Bronx County 1976]; McBride v 218 E. 70th St. Assocs., 102 Misc 2d 279 [App Term, 1st Dept 1979]; Goodman v Ramirez, 100 Misc 2d 881 [Civ Ct, NY County 1979].)"], "id": "c578b44a-884d-4e55-9ca4-46325b056643", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As an affirmative defense to this proceeding tenant asserted a breach by landlord of the warranty of . In that regard it is alleged in tenant\u2019s answer that the *987ceiling in the bathroom leaks; the plumbing is defective; the toilet is broken; the bathroom tiles are loose; there are cracks in the kitchen walls; the refrigerator door doesn\u2019t close; the apartment is infested with roaches; and the wiring in the second bedroom is defective. While these allegations are sufficient to state an affirmative defense of breach of the warranty of habitability (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, cert den 444 US 992; Goldner v Doknovitch, 88 Misc 2d 88), the court below concluded that such an affirmative defense of breach of the warranty may not be asserted against the City of New York qua landlord, and thus summarily awarded final judgment in landlord\u2019s favor."], "id": "06e8f9e1-c4a9-4d56-8100-01660a434858", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court below in denying tenant\u2019s motion for summary judgment rejects the tenant\u2019s contention that strict liability devolves upon the landlord if the premises are rendered, in part or in whole, uninhabitable, and adopts the landlords\u2019 argument that proof of a \"defect\u201d within the premises is a prerequisite to the imposition of liability upon a landlord for breach of the warranty of . The court having so held noted that a question of fact was presented as to whether the flooding was caused by a \"defect\u201d within the premises or by heavy rains overloading storm sewers."], "id": "95405050-9dfe-4423-bcd7-b5561a2dfa40", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This brings us, then, to the consideration of the only question left on this branch of the lease, to-wit, was the delay of the plumbers employed by the plaintiff in completing the repairs a sufficient ground to constitute an eviction? It appears that the plumber commenced work and did some excavating in the area about April 10th, and, for some unexplained reason, did not again proceed with the work in hand till April 18th, on which day defendant moved out of the premises. It is conceded that the defendant made no complaint to the plaintiff of the delay in completing the repairs, although she lived next door to the demised premises. The tardiness of mechanics in completing household repairs is, we think, a matter of general knowledge to all householders, and this case formed no exception to the general rule. Plaintiff employed a plumber to make the required repairs, and there is no claim that he was an incompetent person. In the absence of any complaint or notice from defendant, we think that plaintiff was justified in assuming that the repairs were proceeding in the usual way. That the delay of the plumber employed by plaintiff in not proceeding with the work commenced by him for a period of eight days was such an interference with defendant\u2019s beneficial enjoyment of the premises as to constitute an eviction, and authorize him to abandon the premises, especially in the absence of any notice to the plaintiff of such delay, we are not prepared to hold. Here was no wrongful act on the part of the landlord. She was doing just what the defendant, through the department of health, had required her to do, and she was pursuing the usual course. She was engaged in acts calculated to add to the and enjoyment of the demised premises by the defendant. While, of course, the principalis generally liable for the wrong-doing of her agents, we think that it would be a harsh and unwise application of that rule to hold, in the present instance, that, by the neglect of the plumber in promptly completing the work he was employed to perform, he could evict defendant from the demised premises so as to release him from all liability under his lease."], "id": "1f338486-933e-4cd4-a294-90a49b0394f2", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["First, it is claimed that the creation of a conditional limitation based upon a rent default interferes with the tenant\u2019s right to cure rent defaults in nonpayment proceedings pursuant to RPAPL 751 (1). Second, it is claimed that the clause severely limits the statutory right to assert a breach of the warranty of . For the following reasons, I agree, and hold that the conditional limitation is void as contrary to public policy."], "id": "6479d0c7-101a-427f-a96a-d72c5108d2c9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Hilalys argue that allowing the defense \"would result in the following absurd scenario: (1) if such an alleged change in the terms of tenancy was so great that it affected the tenantability or of a property, then such a defense would be precluded; but (2) the further away from habitability the change in terms is, the more likely such change would serve to bar a landlord's possession.\" The Hilalys' concerns are misplaced."], "id": "76108832-7cc9-4a97-a489-7fa24669a41f", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is the opinion of this court that while section 235-b of the Real Property Law grants and protects the right of the tenant to claim a breach of warranty of and voids as against public policy any provision of a lease which claims a waiver of said right, said statute does not mention and has no bearing on the jury waiver provision found in the lease at bar."], "id": "f06d6e1c-eeb0-47fe-bb5e-5ee5123b4f8d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiffs allege that due to the defendant landlord\u2019s failure to provide central air conditioning, they have been damaged in the amounts sued for. The plaintiff, Ms. Hausman, claims she was required to .rent an air conditioner and to clean a rug. The plaintiff, Mr. Hynes, claims reimbursement for expenses incurred for meals taken away from home, hotel expenses and the purchase of an air conditioning unit. The plaintiffs assert that the defendant landlord has breached their leases in failing to provide air conditioning as contracted for and moreover has breached an implied warranty of ."], "id": "d4c0014d-a861-455b-9d10-0a1b4fec3f84", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Within a lifetime, the major wars, the consequences of industrialization, the gravitational pull of agricultural workers to the city, having resulted in urban congestion and a scarcity of residential housing. In New York, these factors and an increasing sensitivity on the part of law makers to the electorate (more tenants than landlords) tipped the scales of landlord and tenant law away from his historic bias. This shift in legal attitude has been evidenced by legislative adoption of rent controls, recognition of the warranty of , imposition of multiple dwelling safeguards and a myriad of other laws designed to protect tenants. Long before this exhibition of legislative solicitude for the rights of tenants, one area in which the common law had been quite protective of the tenants\u2019 rights was with respect to the assignment or subletting of the leasehold. Even in the formative days of the landlord and tenant law, the public policy supporting the free alienation of land was seen as stronger than the policy protecting landlords."], "id": "734df939-9690-49e6-a271-3903bc6980f8", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". A tenant may enforce his rights under the warranty of by seeking damages in a plenary action or by asserting breach of the warranty of habitability as a defense and/or counterclaim in a summary nonpayment proceeding. (See Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979].) Thus, a tenant may enforce his rights under section 235-b by withholding rent and inducing a landlord to commence a nonpayment proceeding."], "id": "fe5d4929-d6bb-4e95-b1a0-6e7d891d332b", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Tenant and Landlord orally agreed that Tenant would rent a house from Landlord for $600 a month on a month-to-month basis. Tenant began living in the house and paying rent in September of 2015. On March 10, 2016, Landlord filed a rent and possession petition in the associate circuit division of the circuit court alleging that Tenant owed $600 in rent for the month of March. Tenant filed a responsive pleading denying that any rent was due. Tenant alleged that he was withholding rent until necessary repairs were made to the house. He asserted as an affirmative defense and counterclaim that Landlord breached the implied warranty of by failing to provide a premises fit for human occupation due to a sewer problem. Tenant also asserted as an affirmative defense that the Landlord's petition was an attempt to enforce an illegal contract. Tenant alleged that the City of St. Louis condemned the property because Landlord never obtained a certificate of inspection permitting occupancy of the house."], "id": "9ab44ad5-3ac0-4868-bf0d-4651b8e450fd", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Along with this narrower approach comes a concomitant reduction in the scope of damages. (Brussel v Ruxton Assoc., supra.) The proper measure of damages for a breach of the section 235-b warranty of is the reduction in the fair market value of the premises due to the alleged defect; said compensatory damages to be awarded by lump sum or percentage rental abatement. (See, 2 Rasch, New York Landlord & Tenant\u2014Summary Proceedings \u00a7 561.5 [2d ed, 1986 Cum Supp].)"], "id": "285b3370-f8b4-42b4-95ad-8a8386a65917", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this action for nonpayment, petitioner landlord affirmatively puts forth the argument that Federal law preempts a State court from adjusting rent increases approved by HUD. The landlord petitioner\u2019s second argument, put forth defensively in response to the tenants\u2019 counterclaim of a breach of the warranty of , argues that alleged deficiencies in services and conditions, even if substantiated, do not reach the level of a breach of the implied warranty of habitability. The respondent tenants\u2019 polemical powers are spent interpreting all available data on the boundaries and limitations of the warranty of habitability and applying those interpretations favorably to the present situation. As a result of this alleged breach, the tenants seek a rent abatement."], "id": "cceb5dc2-97dc-4b2e-8ecf-bf7db3351f01", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The respondent alleges that his apartment is subject to rent stabilization, and accepting same as true, he is entitled to certain predicate notices (9 NYCRR 2524.2) as indicated in his ninth affirmative defense. In addition, the respondent\u2019s warranty of defenses (i.e., twelfth, fourteenth and fifteenth) are viable defenses to the petitioner\u2019s request for use and occupancy. (Evans v Charap, NYLJ, Dec. 18, 1991, at 23, col 1 [Civ Ct, NY County].) Therefore, the petitioner\u2019s request to dismiss said defenses is denied. On the other hand, as the petitioner has produced a valid certificate of occupancy and *471multiple dwelling registration, the respondent\u2019s tenth and eleventh affirmative defenses regarding same are dismissed. Lastly, as the respondent\u2019s thirteenth defense of waiver is set forth in conclusory terms and completely devoid of facts (Hyman v Levin, 243 App Div 6 [1st Dept 1934]), said defense is likewise dismissed."], "id": "d157e742-3a79-44a8-a9c4-3e1496f28093", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is well settled that the warranty of applies to the City of New York. In City of New York v Rodriguez (117 Misc 2d 986 [App Term, 1st Dept 1983]) the court noted that the Legislature had at times specifically exempted city-owned property from remedial tenant legislation. It deemed signifi*752cant the failure of the Legislature to grant city-owned property an exemption from Real Property Law \u00a7 235-b."], "id": "9fd923fb-2d89-49e8-96d6-e7466265bf1e", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Except for the warranty of , parties are, of course, free to change their statutory and common-law rights and responsibilities by contract. In the instant situation such changes must be derived from the express language of the proprietary lease. The construction of the relevant portions of the proprietary lease here is critical to the determination of the issue at bar, namely who bears the expense of the ceiling repair."], "id": "31162bfd-eacf-4a2f-a8e3-a9965e7455df", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court initially denied petitioner\u2019s motion to amend, but is now reversing that decision. The petition is, therefore, deemed amended to conform to the finding that the building is a de facto class \"A\u201d multiple dwelling. Respondent\u2019s motion to amend his answer to allege a breach of the warranty of as an affirmative defense as well as a counterclaim is also granted, although initially denied."], "id": "6e86df7a-5b01-47f4-bdf9-37c9739fa466", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Judge Davis found that the landlord respondent had, therefore breached the warranty of , and that the fair market value of the rented premises was 50% of the agreed rate of $250 per month or $125 per month for the months of June and July, 1980. The court found that the tenant appellant had paid for her rent in full for the month of June, 1980, and thereafter, withheld the entire amount of the rent for the months of July and August, 1980. The court then went on to award the tenant appellant a rent abatement in the amount of $125 per month for the months of July and August, 1980. However, the decision does not reveal any specific finding of a breach of the warranty of habitability for the month of August, 1980. The court also failed to award a rent abatement to the tenant appellant for the month of June, 1980, for which a specific finding of a breach of the warranty of habitability had been made and for which a fair market rental value of $125 had been established."], "id": "f39eceba-e4d7-4e48-a182-faad7cf506b4", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*623Additionally, the court dismisses plaintiffs\u2019 unjust enrichment claim. The warranty of arises from the subject leases \u2014 which are written contracts \u2014 and, hence, cannot give rise to the quasi contract, unjust enrichment cause of action. (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561 [2005]; accord Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987].) The claim also would fail against the managing agent defendants because it seeks to improperly impose contractual liability onto third parties. The subject rent is the property of the landlords, not the managing agents, and can only be recouped from the former. Absent veil piercing allegations, there is no basis to maintain a claim against the managing agent defendants."], "id": "3c61cf03-ecff-440d-ae3f-a2bfd2258790", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["12 Respondent argues that appellant \u201ccannot raise a negligence per se argument as to statutes identified for the first time in her opposition to [the] motion for summary judgment. Appellant cannot keep moving the goal post. The tactic of changing one\u2019s story to avoid summary judgment . . . is improper.\u201d We note that she objected to appellant\u2019s new claims based on the implied warranty of , nuisance, and unfair business practices, but there was no similar objection to claims based on the Building Code, the Civil Code or the State Housing Act of California. As to those last three statutory based claims, Cassell briefed them in her reply papers. Though these issues are moot, it bears noting that respondent cannot be heard to complain that appellant raised new theories in her opposition to the summary judgment motion because the reply brief addressed appellant\u2019s new theories on the merits without raising an objection. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302 [by briefing the merits and not objecting, defendant waived objection to plaintiff asserting a new cause of action in opposition to summary judgment].)"], "id": "ee743363-a04c-48ea-a336-e435894b665d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Since respondent is a pro se litigant- the court must take special care in determining whether she has asserted legally cognizable defenses and counterclaims. Ms. Braxton has raised an affirmative defense and counterclaim alleging breach of the warranty of based on the landlord\u2019s failure to provide adequate security. Her second counterclaim seeks damages for the loss of property that occurred as a result of the alleged burglary."], "id": "8964d22a-2be5-4e5b-b876-f4ca745336c8", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord\u2019s duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of breach. Such damages, however, may not include a sum awarded for embarrassment or anxiety. That damages are not susceptible of precise determinations does not insulate the landlord from liability. This court finds that the rental value of tenant\u2019s apartment was diminished 50% on each of the 13. days of water deprivation. Calculated on the monthly rental of $558, tenant is entitled to an abatement of $120 as against the rents which tenant conceded were lawfully demanded in this summary nonpayment proceeding. But, since tenant has sustained her affirmative defensive and counterclaim for breach of the warranty of , she should not be liable for attorney fees, which are hereby denied. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, supra; Kalikow Props. v Modny, NYLJ, May 2, 1978, p 5, col 1; Goldner v Doknovich, 88 Misc 2d 88, supra; Whitehouse Estates v Thomson, 87 Misc 2d 813.)"], "id": "74a63fa7-26eb-463b-b790-6dc52ce1ebe1", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The proposed amendment does not seek to replace the measure of damages for the alleged breach of the implied warranty of . The third cause of action in the proposed amended complaint still refers to plaintiff being damaged in the sum of $500,000. All the proposed amendment does is add to the ad damnum clause a phrase which requests $4,900 for diminution in rental value as an alternative to the $500,000 in compensatory damages. Moreover, plaintiff made no evidentiary showing that her claim of $4,900 in diminution in rental value can be supported (see, Mathiesen v Mead, 168 AD2d 736, 737). In these circumstances, we see no basis to disturb Supreme Court\u2019s order."], "id": "3ddd8cca-50e2-44e8-be41-1ac8ff03d7ad", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The only issue before the court is what is to be the measure of damages for an abatement hearing on the breach of the implied warranty of . The respondent is a section 8 tenant who pays a share of the rent while the Department of Housing and Urban Development (HUD) makes section 8 *757payments to complete the balance of the rent charged. The petitioner argues that the measure of damages is the tenant\u2019s share of the rent, and not the combined amount of the tenant\u2019s monthly share plus the section 8 monthly payment made to the petitioner by HUD on the respondent\u2019s behalf. The respondent argues that the scope of damages must be the aforementioned combined amount which is called the \"contract rent\u201d by HUD."], "id": "52078347-ec1d-4413-b2ed-20e6e1e53412", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Separate Statement No. 21 stated, \u201cThe only evidence regarding causation is from Mazza\u2019s testimony that her worn out bath mat may have been the cause of [appellant\u2019s] slip-and-fall because the rubber traction on the bottom of the bath mat was worn away.\u201d Mazza testified that there was a bath mat in the bathroom the night appellant fell, and that it was around the base of the commode. She stated that the \u201cmat was screwed on the backside, and I threw it away after [appellant] fell because I thought that may have had something to do with it.\u201d Mazza added that she was aware the rug did not have a \u201cwhole lot of traction[.]\u201d Opposing Papers Appellant opposed the motion and argued that it had to be denied because there were triable issues as to whether Cassell breached ordinary and statutory duties by failing to maintain the stairs in a safe and habitable condition. According to appellant: (1) Cassell had a duty to remedy the stairway under the implied warranty of and Civil Code sections 1941 and 1941.1 6 regardless of notice; 7 (2) the failure to maintain a building in a"], "id": "cbe2e409-6ee4-4f2d-b458-05669d1487e9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner\u2019s position is supported by Cosmopolitan Assoc. v Ortega (90 Misc 2d 437). In Cosmopolitan, the tenant counterclaimed for damages for negligence (for which the landlord was insured) and for breach of the warranty of (for which the landlord had no insurance coverage). A clause in the lease prohibited counterclaims of any kind. The court severed the counterclaim for negligence but permitted the cause of action based on breach of the warranty, reasoning that while a negligence counterclaim may validly be covenanted away, one based on breach of the warranty of habitability may not, pursuant to the explicit terms of section 235-b of the Real Property Law. However, the court limited recovery on that counterclaim to the rent demanded in the petition, so that the landlord not be answerable for damages otherwise covered by his insurance policy."], "id": "5fb3e5b0-547b-47f3-b351-0ac49995f364", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The circuit court relied on King in barring her from asserting a breach of the implied warranty of . In King , a landlord sued a tenant for rent and possession. 495 S.W.2d at 67. The tenant lost in the magistrate court and vacated the premises before appealing to the circuit court. Id. The tenant asserted, as an affirmative defense, that the landlord breached an implied covenant to provide premises in a safe, sanitary, and habitable condition. Id. at 68. The circuit court determined the tenant failed to state a valid defense. Id. The court of appeals reversed, holding the tenant stated a valid defense because all residential leases include an implied warranty of habitability obligating lessors to guarantee the \"dwelling is habitable and fit for living at the inception of the term and that it will remain so during the entire term.\" Id. at 75."], "id": "883629c6-f47d-4cc3-97af-f8b644b28a19", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Remaining is the warranty of issues caused by the unremediated code violations. Pursuant to Real Property Law \u00a7 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Despite the expansive language of the statute, the Court of Appeals has"], "id": "12282bb0-9224-45ed-ab7f-86c40952e2f6", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Consideration of the counterclaims for punitive damages and the intentional infliction of mental distress was allowed because the facts pleaded for the warranty claim also served as the foundation for these two counterclaims. The elements of proof involved are similar to those which must be taken into account in relation to the warranty of as defined by the Court of Appeals in Park West Mgt. Corp. v Mitchell (47 NY2d 316, 329): \u201cIn ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord\u201d. Given that the warranty counterclaim was to be tried, all three counterclaims were \u201cintertwined with the landlord\u2019s petition and * * * equitably tied together,\u201d in which instance a court has an \u201cequitable power to disregard\u201d such a provision barring counterclaims with the recognition that the power \u201cshould be sparingly used and only if warranted by the circumstances at issue.\u201d (50 Ct. Co. v Wild, NY LJ, Feb. 21,1978, p 13, col 1.)"], "id": "c32c816e-00e2-4c83-950d-74438c257371", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As authority for the proposition that the petitions need assert compliance with the warranty of (Real Property Law, \u00a7 235-b) the court below relies upon Houston Realty Corp. v Castro (94 Misc 2d 115). There exists no appellate authority for that proposition and to our view the court in Houston Realty Corp. v Castro (supra), erred in casting as a jurisdictional requisite to nonpayment proceedings a requirement that nonpayment petitions allege compliance with the warranty of habitability."], "id": "5e4ac7ac-6f6a-4450-836f-955cfd35cf74", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The evidence presented by respondent in support of his counterclaim for breach of warranty of begins in August 1999 with his fax, dated August 10, 1999, notifying petitioner about a leak in the bathroom ceiling. Respondent included a request to restore lights in the bathroom, to correct a structural defect in the bathroom wall and ceiling, to replace bathroom tiles and do caulking, repair the kitchen sink cabinet, and repair the kitchen stove. Respondent testified credibly that in addition to the fax sent to \u201cArthur,\u201d he also called the super and informed him that the water leaking from the bathroom ceiling was coming through the electrical light fixture in the bathroom, and that the chronic and reoccurring crack in the bathroom wall had returned. The super came to respondent\u2019s apartment and inspected the bathroom in response to the August 1999 fax. Several weeks later, when no repairs had been attempted, the super informed respondent Henry that the roof leak, the apparent cause of the bathroom leaks, had still not yet been repaired. Mr. Brown testified that a roof repair is not within the province of the super and it is an \u201cunusual\u201d repair."], "id": "c7c858be-4cc6-4eff-ae3f-adbd5d067a57", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Code of Civil Procedure section 1174.2, subdivision (b), provides, \"If the court determines that there has been no substantial breach of Section 1941 of the Civil Code or of any warranty of by the landlord or if the *64tenant fails to pay all rent accrued to the date of trial, as required by the court pursuant to subdivision (a), then judgment shall be entered in favor of the landlord, and the landlord shall be the prevailing party for the purposes of awarding costs or attorneys' fees pursuant to any statute or the contract of the parties.\" Code of Civil Procedure section 1174.2, subdivision (c), provides, \"As used in this section, 'substantial breach' means the failure of the landlord to comply with applicable building and housing code standards which materially affect health and safety.\""], "id": "2a78a32e-4cee-43e3-aeac-61045fd3ce82", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The tenant herein successfully defended these nonpayment summary proceedings upon the principal contention that the landlord failed to acquire a certificate of occupancy, in violation of sections 301 and 302 of the Multiple Dwelling Law. Assuming arguendo that the subject premises constitute a multiple dwelling (see Multiple Dwelling Law, \u00a7 4, subd 7; Matter of Herzog v Thompson, 50 Misc 2d 488), the defense is inapplicable to the instant case. Section 302 is a penal statute in derogation of the common law and should be strictly construed so that a landlord is not deprived of rent due for the use and occupation of his property (Wokal v Sequin, 167 Misc 463; Matter of Herzog v Thompson, supra; Washington Sq. Professional Bldg. v Leader, 68 Misc 2d 72). The premises in question were constructed prior to the statutory requirement for certificates of occupancy. Their occupation, legal in inception, did not become illegal by virtue of a subsequent alteration made without requisite permission, so as to constitute a defense under the Multiple Dwelling Law to a tenant remaining in possession against the landlord\u2019s demand for rent, especially where the alteration did not adversely affect the of the structure and the occupation of the premises is not otherwise criminal or illegal (941 Park Ave. Corp. v Fried, 148 Misc 137 [App Term, 1st Dept.]; Tompkins Sq. Holding Co. v Gilson, 167 Misc 77; Washington Sq. Professional Bldg. v Leader, supra; see, also, Chatsworth 72nd St. Corp. v Rigai, 71 Misc 2d 647, affd 74 Misc 2d 298, affd 43 AD2d 685, affd 35 NY2d 984)."], "id": "3b9b0c3f-282d-4271-bcc3-9433fde2b75d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Michelle D. Schreiber, J. Petitioner commenced this holdover proceeding against the executor of the estate of Robert Mooney claiming the estate illegally sublet or assigned the rent-stabilized subject premises to underrespondent Frank Garcia. Mr. Garcia is the only respondent who has appeared in the case. On October 9, 2002 he served a written answer in which he asserts succession rights to the subject premises as a nontraditional family member under Rent Stabilization Code (9 NYCRR) \u00a7 2523.5 (b) and \u00a7 2520.6 (o) (2) because he lived with the deceased prime tenant, Robert Mooney, as his domestic partner for more than two years prior to Mr. Mooney\u2019s death. The answer included a demand for a jury trial. The case was marked off calendar on March 24, 2003 pending document production and a deposition of Mr. Garcia. The discovery was concluded and on November 3, 2003, pursuant to a stipulation, the case was restored to the calendar; the answer was amended only to the extent of including an affirmative defense and counterclaim for breach of warranty of . The petitioner moved to strike the jury demand and for outstanding use and occupancy; the motion was denied on December 8, 2003 as petitioner failed to appear after checking in to the Part."], "id": "c94074d1-8e7a-43a9-98ed-63b39270355b", "sub_label": "US_Terminology"} {"obj_label": "Habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["And in a law review article by Margaret R. Scherer, entitled New York\u2019s Search for an Effective Implied Warranty of in Residential Leases (43 Albany L Rev 661, 686), Ms. Scherer states: \u201cIn light of the rule that statutes enlarging or limiting common law rights or liabilities should be construed as consistent with existing common law principles unless the intention to overrule such case law plainly appears by express legislative declaration or necessary implication, Kaplan should be overruled as an *132unwarranted extension of section 235-b and the implied warranty of Tonetti.\u201d"], "id": "25a0ca1a-3a04-44c3-91e2-c95c3dd6df76", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner is entitled to use and occupancy even though respondents allege that petitioner breached the warranty of . Breach of the warranty of habitability is not a defense that allows respondents to withhold use and occupancy over a five-year period. (See Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 467 [2004] [finding that tenants \u201cmust\u201d deposit use and occupancy under RPAPL 745 even if they \u201cclaim() a breach of warranty of habitability\u201d or \u201cseek an abatement\u201d].)"], "id": "511beb16-df8e-4538-a075-45e44baf7887", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["JCW Elecs., Inc. v. Garza , 257 S.W.3d 701, 705 (Tex. 2008) (quoting William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) , 69 YALE L.J. 1099, 1126 (1960) ). The implied warranties recognized in Texas are: (1) the implied warranty of for new homes, recognized in Humber v. Morton , 426 S.W.2d 554, 555 (Tex. 1968) ; (2) the implied warranty of good and workmanlike construction, also recognized in Humber , id. ; (3) the implied warranty of merchantability, created by the Uniform Commercial Code, codified in TEX. BUS. & COM. CODE \u00a7 2.314 ; (4) the implied warranty of fitness for a particular purpose, also created by the UCC, codified in Tex. Bus. & Com. Code \u00a7 2.315 ; (5) the implied warranty of workmanlike repairs of tangible goods or property (at issue in the present case), created in Melody Home Manufacturing Co. v. Barnes , 741 S.W.2d 349, 353 (Tex. 1987) ; and (6) the implied warranty that leased premises are suitable for their intended commercial purpose, recognized in Davidow v. Inwood North Professional Group , 747 S.W.2d 373, 377 (Tex. 1988). We have recognized additional implied warranties that have since been superseded by other law. See Jacob E. Decker & Sons v. Capps , 139 Tex. 609, 164 S.W.2d 828, 829 (1942) (implied warranty of the fitness of food for human consumption), superseded by McKisson v. Sales Affiliates, Inc ., 416 S.W.2d 787, 789 (Tex. 1967) (adopting the Restatement (Second) of Torts \u00a7 402A to govern strict liability tort claims for defective products that cause physical harm); Kamarath v. Bennett , 568 S.W.2d 658, 661 (Tex. 1978) (implied warranty of habitability for residential leases), superseded by statute , Act of May 28, 1979, 66th Leg., R.S. ch. 780, \u00a7\u00a7 1-18, 1979 Tex. Gen. Laws 1978."], "id": "ee258a2d-ca29-4ed0-814c-6e9cb5038825", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*35However, as the trial proceeded, it became clear that a substantial legal issue was raised as to the availability to the tenants of a partial defense or setoff arising out of the apparent violation of the landlord\u2019s covenants to provide hot water and heat during the winter months. A similar issue was presented as to the landlord\u2019s possible breach of the implied warranty of arising out of the apparent violation of section 75 of the Multiple Dwelling Law, requiring hot water, and section 79 requiring adequate heat. Since the attorneys for both sides were advised of the court\u2019s concern with these issues, and there was no indication that the landlord was unprepared to meet them, I deem each of the answers amended to incorporate these defenses and setoffs."], "id": "aafbe0b7-07b3-4df2-ab16-659bd536a1c0", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Goldcrest, the litigation involved a claim by a cooperative corporation that a sponsor who held the unsold shares allocated to 15 apartments had failed to pay maintenance, and a claim by the sponsor that it had prepaid the maintenance. The warranty of was not in issue there, nor could the sponsor, which did not reside in any of the apartments, have raised a warranty of habitability claim. Thus, while this court must follow Goldcrest (see Stadt v Durkin, 35 Misc 3d 128[A], 2012 NY Slip Op 50585[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]), for the reasons that follow, it is our view that Goldcrest does not apply in cases in which a residential tenant withholds rent because of a breach of the warranty of habitability."], "id": "5347eb1d-c6e6-424c-87b7-2742cfd39e83", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Four of the Family Court orders under review order the Authority \"to assist [the mother] in obtaining a suitable apartment so as to enable the court to effectuate the discharge of [the child] from the foster care and custody of the Commissioner of Social Services to the [mother] * * * and to submit to the court * * * a written progress report in regard to the aforesaid apartment.\u201d One order directs that \"NYCHA shall provide larger apartment for respondent.\u201d One order directs the Authority \"to process the application previously filed by Mrs. Osson, to interview her, and to render such information, assistance and cooperation to the court, the Department of Social Services, and Mrs. Osson as may be required to enable Mrs. Osson to find suitable public housing at the earliest possible date * * * [and to] report on the effort made * * * to effectuate this order.\u201d One order directs \"necessary repairs * * * to the extent that such premises are' restored to standards of normal * * * [and to] appear at a hearing * * * to satisfy this court as to the completion date of said repairs.\u201d One order directs that, \"The lease * * * should be changed to name of Jean Brown, and her husband should no longer be considered co-leaser.\u201d Another order made after this matter was submitted directed the Authority \"to provide suitable housing for Florence Lewis and four children.\u201d"], "id": "603c2bb0-108c-49bd-9fe3-0c57a6d20205", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The landlord of the subject apartment building commenced 62 separate summary proceedings for nonpayment of rent, in which respondent tenants sought rent abatements for an alleged breach of the warranty of . The proceedings were jointly tried over a period of 16 weeks; generated a number of intermediate appeals and related litigation; and culminated in rent abatement awards of 5% for conditions in the dwelling\u2019s public areas, and additional offsets in varying *567amounts to certain tenants for conditions within their individual apartments (Solow v Wellner, 150 Misc 2d 642, mod 154 Misc 2d 737, mod 205 AD2d 339 [1st Dept]). The present appeals concern a posttrial award of sanctions under 22 NYCRR part 130 against appellant Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P. C. (Finkelstein, Borah), landlord\u2019s attorney of record, in the amount of $250 per case, and sanctions against appellant Ray L. LeFlore, landlord\u2019s trial counsel, in the amount of $3,000 per case."], "id": "0fd433ca-fe3b-43b2-87e9-2f00d30c93aa", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The majority has outlined the relevant facts of this case, indicating that the plaintiff initiated this action to recover damages of $5,000, arising out of defendant\u2019s alleged failure to provide adequate heat, that the plaintiff moved for summary judgment and that the defendant cross-moved for identical relief. The court below denied both motions, noting only that \u201cIssues of fact remain which may only be resolved at trial.\u201d My colleagues suggest that \u201cby denying summary judgment to the defendant corporation, the Court below implicitly recognized the applicability of the [breach of warranty] statute to proprietary tenancies since that was the major item of contention of each party.\u201d While plaintiff in his affidavit submitted in support of his motion for summary judgment indicates he is relying upon the breach of warranty statute, and while defendant in its affidavit submitted in support of its cross motion for summary judgment and in opposition to plaintiff\u2019s motion argues that the breach of warranty of statute should not be applied to co-operatives, I believe the subtle complexities of the issue of whether section 235-b of the Real Property Law applies to co-operative corporations are such that no implication can be gleaned from the order on *141appeal as to whether Special Term was of the opinion that the statute did or did not apply to co-operative corporations."], "id": "a46ec51e-1956-48b5-a144-9101aeee9600", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["More importantly, an examination of the in custodia legis procedure espoused in King reveals its origin is not rooted in application of common law principles. Rather, the recognition of an implied warranty of marked a change from Missouri's previous application of caveat *288emptor. King , 495 S.W.2d at 69. In recognizing the implied warranty of habitability, Missouri courts acknowledged a shift in the common law from a landlord's unfettered right to rent and possession toward recognition of a bilateral contract in which the tenant's obligation to pay rent is dependent on the landlord's performance of the obligation to provide a habitable dwelling. Id. It is not surprising, therefore, that, in the course of that transition, the court of appeals discussed the in custodia legis procedure, which undoubtedly reserved some remnants of protection for the landlord. But the fact remains such a procedure had no basis in present property law or contract principles."], "id": "fe8239c1-bbca-4abe-8ed4-82fefcc87371", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[s]ection 390 is a detailed statute, with 13 subdivisions and many more subparts ... It specifies which child care providers shall be licensed and which only registered . . . Social Services Law \u00a7 389 (1) imposes criminal liability for willful violations . . . [b]ut there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of Social Services Law \u00a7 390, and would have created a private right of action against erring government agencies if it found it wise to do so. This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts (see e.g. Negrin v Norwest Mtge., *443263 AD2d 39, 47-48 [2d Dept 1999]).\u201d (12 NY3d at 200-201.) Turning to another provision of the Social Services Law, article 7 (\u00a7 460 et seq.) is entitled \u201cResidential Care Programs for Adults and Children.\u201d Under this article, no private right of action exists for appointment of a temporary receiver because there is no explicit statutory predicate (Carrier v Salvation Army, 88 NY2d 298 [1996]), but subdivision (2-a) of section 461-c does specifically allow suit by a resident to enforce either the implied warrant of or an individual\u2019s written admission agreement with a facility (Green v Lakeside Manor Home for Adults, Inc., 101 AD3d 809 [2d Dept 2012])."], "id": "8cad3a76-9efa-4068-9208-f50ea9c0c952", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We have been presented with no compelling reason which would justify precluding full and fair consideration of the key issue underlying possession in this matter (Martin's intent), especially when Martin filed his unlawful detainer action in unlimited civil jurisdiction. (See Ytuarte v. Superior Court, supra , 129 Cal.App.4th at p. 275, 28 Cal.Rptr.3d 474 [\"a court in a limited civil action cannot determine the title to real property\" (italics added) ].) \" 'Certainly the interest in preserving the summary nature of an action cannot outweigh the interest of doing substantial justice. To hold the preservation of the summary proceeding of paramount importance would be analogous to the \"tail wagging the dog.\" ' \" ( Green v. Superior Court, supra, 10 Cal.3d at p. 636, 111 Cal.Rptr. 704, 517 P.2d 1168 [considering whether summary nature of unlawful detainer should foreclose tenant from raising breach of defense].) The trial court abused its discretion to the extent it relied on the summary nature of unlawful detainer actions to exclude evidence highly probative on the key possession issue. \"[W]hile the state does have a significant interest in preserving a speedy repossession remedy, that interest cannot justify the exclusion of matters which are essential to a just resolution of the question of possession ....\" ( Ibid . )"], "id": "40a28579-ed2c-4ece-8fc3-d0f0b14a9045", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The credible evidence considered by this court leads it to the inescapable conclusion that the demised premises, the one-family house located at 437 Atlantic Avenue, Freeport, New York, was deliberately demolished at a critical point in this litigation, to preclude the respondents from having the same inspected in furtherance of their defense and counterclaim relating to the warranty of ."], "id": "843efac6-305e-43ba-b8de-7b8278edbd28", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*413Therefore, upon the theory that \u201cthe fact that the tenant had claimed the landlord\u2019s failure to supply services which were a vital and integral part of the leasing arrangement\u201d (72nd Tenants Corp. v Rosen, p 15, col 2, supra), it has also been held that a bare \u201cno counterclaim\u201d provision does not waive the right to interpose the same where rent may be abated for an alleged failure to provide essential services (Horing v Langlieb, NYLJ, July 8, 1974, p 13, col 6 [App Term]; Steinberg v Carreras, 77 Misc 2d 774 [App Term]; Levine v Ehrenberg, NYLJ, June 11, 1973, p 18, col 2 [App Term]). Similarly, the clause may not bar proof on a counterclaim based upon an alleged breach of the warranty of (Cosmopolitan Assoc. v Ortega, 90 Misc 2d 437, supra)."], "id": "c2c11a77-c88f-4397-9ce5-dd5b887a721a", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The difficulty with the reasoning of the Richburg court is that its logical basis harkens to common-law times, when the tenant\u2019s obligation to pay rent was entirely divorced from the landlord\u2019s duty to maintain the premises. As is stated in one treatise: \u201cAt one time, a lease was deemed to be the functional equivalent of a conveyance of land rather than a contract, so that the obligation of the tenant to pay rent was independent of the obligation, if any, of the landlord to maintain the premises in tenantable condition. This meant that, absent adverse conditions sufficiently severe as to constitute an actual or constructive eviction, the tenant was limited to whatever remedies were contained in the lease. As a result, such tenants generally could not use the withholding of rent as a weapon to compel the landlord to maintain building services. Although the law has changed little with respect to commercial tenants, the law has changed dramatically with respect to residential tenants. A residential lease is now, to a large extent, deemed to constitute a sale of shelter and services and contains an implied warranty of .\u201d (7 Warren\u2019s Weed, New York Real Property, Leasing: Rights & Obligations, \u00a7 6.03 [3] [a] [4th ed].)"], "id": "503aabda-d9b1-43ad-907b-8d79375194d9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is under the third branch of the warranty of \u2014 failure of reasonable expectation \u2014 that relief must be granted, if it is to be granted at all. A difficulty arises because of the particular facts involving this tenant, who moved into the unit which is the subject of this proceeding while aware of the pendency of the demolition and construction, yet who also resided in the building in another unit in the demolished wing and moved to facilitate the demolition."], "id": "3e6c0859-8a7a-45fd-b931-999b643cc330", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*343In Covington v McKeiver (88 Misc 2d 1000) the Appellate Term for the Ninth and Tenth Judicial Districts permitted the maintenance of a counterclaim based upon breach of the warranty of for moneys paid under the lease (see also, Edgemont Corp. v Audet, 170 Misc 2d 1040 [App Term, 9th & 10th Jud Dists]). This is the position of the Appellate Term, First Department, as well (see, Alp Realty Corp. v Huttick, 160 Misc 2d 76, and cases cited therein). For the reasons that follow, we agree with this position and cases outstanding from this court which may be to the contrary should not be followed (Fisher v Cronin, NYLJ, Feb. 1, 1990, at 29, col 5 [App Term, 2d & 11th Jud Dists]; Fisher/Knickerbocker Co. v Green, NYLJ, May 14, 1992, at 27, col 6 [App Term, 2d & 11th Jud Dists])."], "id": "6eb1edee-11f2-47f2-87af-60e91e21f0c9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["VOA claims that they simply \"restored\u201d a facility to . However, a determination to fund the placement of clients of DMH in a charitably run SRO may be an \"action\u201d as delineated above. Nevertheless, we need not (and do not) decide whether there was any \"action\u201d here since we find that if there was any \"action\u201d it was \"Type II action.\u201d"], "id": "50113db2-6c01-40dc-8208-612d4120ac70", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Other cases have addressed the issue of the cumulative effects of a number of what may be termed \u201cminor\u201d lapses. In one case, the court held that the landlord\u2019s action in firing both a full-time superintendent and a full-time handyman, which led to a failure to provide, at various times, heat, hot water, elevator service, security (by failing to repair a broken front door lock), and garbage collection and disposal, amounted to a breach of the implied warranty of . (111 East 88th Partners v Simon, 106 Misc 2d 693; see, also, Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.)"], "id": "5b34d3ea-4231-48b4-a904-6074e700c53c", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201c[W]here the parties, both represented by counsel, have freely entered into a stipulation of settlement in open court, such stipulation will generally be enforced unless public policy is affronted, i.e., where judicial enforcement of such an agreement would be the approval of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense\u201d (1420 Concourse Corp. v Cruz, 135 AD2d 371, 372 [1987], appeal dismissed 73 NY2d 868 [1989]). \u201c[U]nless public policy is affronted, parties to a civil dispute are free to chart their own litigation course and, in fashioning the basis upon which a particular controversy will be resolved, they \u2018 \u201cmay stipulate away statutory, and even constitutional rights\u201d \u2019 \u201d (id., quoting Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]). Tenants\u2019 contention that the stipulation is void because it purported to modify the statutory warranty of by requiring written notice, raised for the first time five years after they received the benefits of the stipulation, is unavailing. Tenants\u2019 arguments overlook the fact that the stipulation was the culmination of extensive arm\u2019s length negotiations to settle the latest of many disputes arising out of the failure of tenants \u2014 one of whom is an experienced real estate and landlord-tenant attorney \u2014 to timely pay maintenance based on dubious habitability claims."], "id": "eccec315-344f-4741-bc6e-b935a3c19cd8", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The doctrine of the implied warranty of has been slow to evolve. As noted in Tonetti v Penati (48 AD2d 25), at common law there was no such warranty and the rule was lessee beware. Courts have recently begun to recognize the existence of such a relief (Amanuensis Ltd. v Brown, 65 Misc 2d 15; Jackson v Rivera, 65 Misc 2d 468; Garcia v Freeland Realty, 63 Misc 2d 937; Mannie Joseph, Inc. v Stewart, 71 Misc 2d 160; Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Kipsborough Realty Corp. v Goldbetter, 81 Misc 2d 1054; Groner v Lakeview Mgt. Corp., 83 Misc 2d 932) and it can be said that this warranty existed even prior to its codification as section 235-b of the Real Property Law."], "id": "f5c6dd04-9d37-4624-a221-422b362e472e", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In light of the testimony given by many of the tenants, and the testimony of their expert witness, concerning the decrease in essential services which occurred in or about November 1979, the award of damages for landlord\u2019s breach of the implied warranty of was within the permissible range of evaluation and is not disturbed. We do disagree with so much of the outcome below as assessed substantial punitive damages against the landlord in addition to the award of contract damages. There is no hard evidence that the decline in services was linked to some ulterior motive or design, and it appears that the landlord did make some efforts to restore services. Nor is there any indication of rent impairing violations or any showing that landlord was in contempt of outstanding administrative or court orders relating to the maintenance of the building. Accordingly, even assuming that the law of punitive damages may appropriately be extended to habitability cases, we conclude that on the facts here there was not demonstrated that measure of \u201chigh moral culpability\u201d or \u201ccriminal indifference to civil obligations\u201d (see, Walker v Sheldon, 10 NY2d 401, 405) necessary to sustain such an award."], "id": "809d453b-bcbb-4d9c-95b0-5e24e868c26d", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" We do not reach the plaintiffs' contentions concerning those branches of their motion which were for summary judgment on the first and third causes of action, which alleged breach of the proprietary lease and breach of the implied warranty of , respectively, as those branches of their motion were not addressed by the Supreme Court (see Katz v Katz, 68 AD2d 536, 542-543)."], "id": "fda98fff-54dc-4bc2-99de-19273dd954e6", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The law is clear that a tenant may defeat an eviction for non-payment of rent, for example, by showing that the owner has breached the warranty of . (See Civ. Code, \u00a7 1942.4, subd. (a)(1) ; see also Code Civ. Proc., \u00a7 1174.2, subd. (a).) A tenant, however, may not defeat an Ellis Act eviction by showing that her apartment is untenantable. (Id .) From the fact that an owner seeking to withdraw rental property under the Ellis Act has no obligation to maintain the tenantability of the premises for purposes of a claim of possession it does not follow that an owner seeking to remove a unit from the market is free to take any and all action against a tenant or their leasehold. By section 7060.4, subdivision (b)(1), the Legislature required that a withdrawing owner seeking to evict an elderly or disabled tenant under the Act must continue the tenancy on the terms and conditions prevailing at the time of notice and, by section 7060.6, the Legislature instructed that an aggrieved tenant \"may assert by way of defense that the owner has not complied with the applicable provisions of this chapter,\" such provisions including the no-change mandate. In the Ellis Act, the Legislature essentially drew a \"do no harm\" line: For purposes of possession rights under the Act, an owner withdrawing a unit is relieved of affirmative repair responsibilities, but also must refrain from taking affirmative steps to reduce an elderly or disabled tenant's leasehold during the notice period. These straightforward directives are internally consistent and wholly reasonable."], "id": "12533e58-8586-4c0e-a94a-6095b5928613", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Landlord\u2019s agent testified that he did not intend to reinstate tenant\u2019s tenancy by accepting the $656.40 from her on November 30, 1979; but, tenant disagreed, testifying that the agent promised her that by her payment she was back in good standing; and, that both agreed that she would pay the balance of $293.40 to cover her entire indebtedness through November, 1979, when the agent completed all of the repairs on the listing he wrote and signed; and, that thereafter an adjustment would be worked out to compensate tenant for the deprivations she sustained because of landlord\u2019s breach of the *644warranty of . She further testified that the agent agreed to forego legal fees, and this is supported by the agent\u2019s omission of any amount for legal fees in his calculation of the total indebtedness owed through November, 1979. Tenant testified that had she been aware that landlord intended to take her $656.40 and then break his promises and then evict her anyhow, she would not have given the money to the agent but would have returned it to the City of New York and moved from the apartment. Tenant\u2019s version is supported by both the rent receipt and the repair listing, written and signed by landlord\u2019s agent. There is no independent support for the agent\u2019s version. This court believes the testimony of the tenant and disbelieves the agent\u2019s version. An example of the poor credibility of landlord\u2019s agent was his testimony at the hearing that he could not keep his written promise of November 30, 1979 to remedy the leaks in tenant\u2019s apartment because of his inability to gain access to the apartment above tenant\u2019s. That he could not gain access to the overhead apartment during the four- and one-half month intervening period is simply not credible."], "id": "640837d3-b75f-4c20-acc5-4d5b56ce45ba", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioners\u2019 contention that the absence of a pass-along renders the regulation arbitrary and capricious is inconsistent with the specific legislative intent expressed in Multiple Dwelling Law \u00a7 280, the public policy of this State which culminated in the legislative adoption of the warranty of (Real Property Law \u00a7 235-b) and national policy (see, Memphis Light, Gas & Water Div. v Craft, 436 US 1, 18 [\u201cUtility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety\u201d])."], "id": "9beb9e38-24cb-4acc-8c71-5f24af3a3234", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I vacated the default as I found respondent\u2019s failure to appear excusable. Respondent came to court on the return date of the motion but was confused as to which courtroom to appear in. She waited in room 325, the courtroom where she originally appeared on the date of the inquest. Respondent establishes as well a meritorious defense based on an alleged breach of the warranty of . Therefore, I will now reconsider landlord\u2019s motion on its merits."], "id": "82a36e5f-b602-460b-b622-0f3adc20e94b", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The doctrine of implied warranty of has not been squarely passed upon by the appellate courts of this State, although it has won increasing approval among Trial Judges faced with the day by day need to achieve decent and fair results. However, a firm basis for expecting its ultimate acceptance in this State may be found in the unmistakable trend of judicial opinion throughout the country, the broad approval it has received from informed scholarly opinion, and the obvious compelling need to adapt the law to current realities. Significantly, the underlying principles of the doctrine have been fully accepted in the proposed Uniform Residential Landlord and Tenant Law, which represents the careful and painstaking work of distinguished scholars and specialists throughout the country."], "id": "f055e7ed-8fa0-492a-adab-4ef2aa267b65", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The only real issue here is whether Good Luck should be liable for the unsanitary conditions about which Ms. Shlivko testified, and which were not disputed. There is no evidence that Good Luck knew or had reason to know of the unsanitary conditions or even of the possibility; and, therefore, to the extent that Good Luck\u2019s duty is only one of reasonable care, it might not be liable. If, however, this court follows the lead of the Pennsylvania court in Tuohey v Trans Natl. Travel Inc. (47 Pa D & C 3d 250 [1987]), and finds that there was a contract between Ms. Shlivko and Good Luck that included an implied warranty of , Good Luck might well be liable. Under New York law, the warranty of habitability that is implied in all residential leases is breached by vermin infestation. (See Kekllas v Saddy, 88 Misc 2d 1042 [Nassau Dist Ct 1976]; Mayers v Kugelman, 81 Misc 2d 998 [Suffolk Dist Ct 1975].)"], "id": "86a247fe-a0b2-4a91-8f6d-6ebaa091c5c5", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cWarranty of \u201c1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and . . . the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused *222by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties\u201d (id.). Case law has established that NYCHA is subject to the warranty of habitability of Real Property Law \u00a7 235-b (City of New York v Rodriguez, 117 Misc 2d 986 [1983]). Plaintiffs allege that defendant NYCHA has breached this warranty of habitability by failing to eradicate the bedbug condition in apartment 1C. Defendant alleges that there was no breach of the warranty of habitability either because it took all reasonable steps to eradicate the bedbug infestation or that the condition was caused by one or more of the plaintiffs."], "id": "d362780a-e300-4d3c-9e06-2d66c7805e62", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While bedbugs feed on their prey (humans) by penetrating the skin, leaving behind welts and red marks, plaintiffs have failed to raise a triable issue of fact whether bedbugs are anything more than a nuisance. According to the New York City Department of Health and Mental Hygiene \u201cBed Bug Fact Sheet,\u201d bedbugs do not spread disease, (http://www.nyc.gov/ html/doh/html/vector/vector-faq 1. shtml.) Moreover, the New York City Health Department recommends that anyone with bedbugs hire a pest control professional, and the hotel had a service contract with an exterminator. (Id.) Therefore, plaintiffs have not only failed to raise a triable issue of fact whether the presence of bedbugs violates any applicable health code, ordinance or statute, they have also failed to raise triable issues of fact whether the defendants acted with such reckless abandon *809that punitive damages are available. (Compare Mathias v Accor Economy Lodging, Inc., supra [health code violations]; Ludlow Props., LLC v Young, supra [breach of warranty of ; tenant entitled to rent abatement for constructive eviction].) There being no factual allegations to support plaintiffs\u2019 punitive damages claim, it is hereby severed and dismissed, as a matter of law."], "id": "15355c78-2f9e-4590-a93b-f5645b517605", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Defendants also checked the boxes asserting: the existence of a rebuttable presumption that the lessor breached the warranty of because the *61conditions existed and were not abated for 60 days after lessor was given notice pursuant to Civil Code section 1942.3 ; the landlord was demanding rent in violation of Civil Code section 1942.4 because the apartment unit was uninhabitable and the conditions existed for at least 35 days after a public agency gave the landlord notice of the conditions; and \"[a] substandard order was issued by a governmental agency with respect to the subject property.\""], "id": "a48aee4e-1d30-4ee1-888f-eaf2e0a26a0c", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although respondents argue that to \u201cestablish a standard for enforcement of the warranty of that lumps loft tenants in a category different from that of all *746other residential tenants would be a direct contravention of the statute\u201d, the court agrees with the foregoing dicta. This case clearly illustrates not only a need for different criteria in loft cases, but even further, different rules depending on the nature of the space rented. Here, where raw space was leased, the factors to be considered in determining whether to grant an abatement are different from those where a loft was rented with residential appurtenances. If a toilet installed by the tenant doesn\u2019t work (assuming the fault not due to the plumbing outside the unit), there would be no reason for an abatement, while the opposite would be true if the premises were rented with such facility. (See Lomreal Realty Corp. v Deutschman, NYLJ, Feb. 9, 1981, p 12, col 5 [App Term, 1st Dept].)"], "id": "518a9647-b7e5-4daa-b9ff-70b29999efb5", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Other than the engineering expert, no witness testified at trial for landlord, who inexplicably saw fit not to offer the testimony of any principal, agent or employee to refute any of tenant\u2019s contentions. Nor did landlord offer any evidence of any attempt to remedy the lack of water after receiving notice thereof. If this court were to accept landlord\u2019s contention that *614it was not obligated to do anything to remedy the lack of water because of excessive use of local fire hydrants, it would amount (as tenant\u2019s counsel so aptly put it) to the grant of an immunity which would undermine the objectives of the warranty of statute."], "id": "55a746d5-1e3a-4ff0-8393-670639b62201", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Defendants move for summary judgment dismissing the complaint upon the grounds, inter alia, caveat emptor, merger, no breach of warranty of is implied on sale of a previously lived-in home, lack of confidential relationship, absence of mutual mistake and, factually, that no chlordane problem exists as evidenced by the Westchester County Department of Health report and an expert\u2019s report and affidavit submitted in support of the motion. Plaintiffs argue that triable issues exist with respect to defendants\u2019 knowledge that requires discovery; also because of differing opinions on the extent of the chlordane problem; and by reason of paragraph 11 (a) of the contract which survived delivery of the deed."], "id": "71d83cff-7965-44fb-bebd-544f323e1197", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is a distinction, however, between the process reviewed in Bell (supra) and the statutory procedures involved here. In Bell, there was absolutely no opportunity to assert a viable defense unless a bond was posted. In contrast, under RPAPL 745 (2) a tenant may raise a warranty of defense and receive a prompt hearing on the issue. It is only in seeking to adjourn the trial is a deposit required of postpetition rent, a situation which the Supreme Court in Lindsey (405 US 56, supra) held was appropriate."], "id": "5a93b8a8-e488-4bb5-a046-06db0679aa25", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The jury waiver is valid as against all claims arising out of the leasehold, save those items proscribed by statute, specifically actions for personal injury and property damages (Real Property Law, \u00a7 259-c). While the statute codified common and case law with regard to the warranty of , it did not specifically prohibit the implementation of jury waiver provisions in trials dealing with breach of warranty of habitability claims. Further, although the statute prohibits waiver of the right to bring such an action, it does not negate the fact that the warranty arises out of and by reason of the leasehold between the parties hereto. The jury waiver may therefore be invoked regarding a counterclaim for the breach of warranty of habitability."], "id": "23572f1e-ce2e-4ca8-b8a3-c3ed5f7ad4ee", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The result reached above on the basis of the lease provisions would be independently required under the developing doctrine of implied warranty of , at least with regard to the period not connected with the repair of the boiler. The Multiple Dwelling Law, expressing the public policy of the State, mandates that landlords must provide hot water throughout the year (\u00a7 75) and heat during the appropriate time of the year (\u00a7 79)."], "id": "bc19139d-2c4e-4506-9c33-542e7ea16721", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Homeowners state in their brief that, \"in the case at bar, there was no evidence that [Builder] foresaw any water issues.\" But the absence of such evidence at trial does not automatically establish a right by Homeowners to equitable garnishment here because their claim in the warranty trial was not based on negligence or unforeseeability; it was based instead on a breach of implied warranty of . And \"[i]n order to recover for breach of implied warranty of habitability in Missouri, negligence, knowledge or fault on the part of the builder-vendor need not be shown.\" Allison v. Home Sav. Ass'n of Kansas City , 643 S.W.2d 847, 851 (Mo. App. W.D. 1982). Accordingly, the verdict director in the warranty trial did not require the jury to determine whether Builder had negligently caused the water problem or had not foreseen the water problem. In fact, Homeowners maintained at the warranty trial that \"the problem's cause remained unknown[.]\" Davies , 410 S.W.3d at 304."], "id": "ce2ae95c-005b-4f30-9c4b-245cd35b479e", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The warranty of , unlike other clauses in the standard form lease has been isolated by the Legislature as a nonwaivable owner obligation, designed to ensure habitable housing and the implementation of public policy. The tenant\u2019s remedies under sections 743 and 755 of the Real Property Actions and Proceedings Law to assert a breach of the warranty as an affirmative defense or counterclaim remain unaffected. (It is noted the tenant may affirmatively seek rescission of a lease on the ground of a material breach including that of warranty of habitability.)"], "id": "853efe63-d270-407e-a623-d1b4e3490b03", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". It has long been clear that the existence of minimum standards, with no enforcement except by State and city officials is entirely inadequate to insure that those *800standards are met. (See, e.g., Bar Housing Corp. v Calhoun, NYLJ, June 16, 1982, p 13, col 2.) This situation was responsible for the creation of the Housing Court (see, e.g., the legislative history of CCA, \u00a7 110, 1972, ch 982; \u00a7 1, subd [a]), the statutory warranty of discussed below (see, e.g., Park West Mgt. Corp. v Mitchell, 47 NY2d 316, cert den 444 US 992) and, presumably, section 230 of the Real Property Law."], "id": "0a0466f7-2ff8-430e-a241-c0e4af549047", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I conclude here, as I did in Amanuensis (supra), that the Davar opinion is most reasonably construed as intended to apply to the kind of situation before that court \u2014 one in which the landlord acted in good faith; the violation did not significantly impair and was not emergency in character; and in which it might reasonably be anticipated that enforcement procedures would be effective."], "id": "3f43f263-c25d-448a-b2d5-35c82c9767c7", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The modern concept of a lease, as viewed both by the courts of this State (Goldner v Doknovitch, 88 Misc 2d 88; West, Weir & Bartel v Carter Paint Co., 29 AD2d 526; 25 NY2d 535; Tonetti v Penati, 48 AD2d 25; Barasch v Goldbetter, NYLJ, April 15, 1975, p 17, col 3), and the Legislature (Real Property Law, \u00a7\u00a7 226-b, 235-b, 235-c, enacted in 1975 and 1976) is that a lease is a contract and that the contract principle of interdependency of covenants should be applied. Further, recognition has been given, that the landlord and tenant are not in equal bargaining positions. Both the courts and the Legislature have applied these principles in matters dealing with (1) the right *203to sublet; (2) the warranty of and (3) in striking out unconscionable clauses. The only major area not yet dealt with by the appellate courts and Legislature of this State is this question of \"Mitigation of Damages\u201d. A number of other States have responded judicially. American Jurisprudence (Second Series, vol 49, Landlord and Tenant, \u00a7 621, p 594) states: \"On the other hand, there is direct authority, as well as dicta, which takes the view, respecting the duty of the landlord in this regard, that it is the duty of a landlord on wrongful abandonment of the premises by his tenant, to make reasonable efforts to reduce the damages from the breach by reletting the premises to a new tenant.\u201d (Benson v Iowa Bake-Rite Co., 207 Iowa 410; Marmont v Axe, 135 Kan 368; Weinstein v Griffin, 241 NC 161; Wright v Baumann, 239 Ore 410; Patton v Milwaukee Commercial Bank, 222 Wis, 167.) \"According to considerable authority, also, if the landlord reenters in pursuance of a forfeiture or under a provision of the lease permitting him to do so after his tenant has abandoned the premises, he must then use diligence in seeking a new tenant in order to lessen the damages.\u201d (International Trust Co. v Weeks, 203 US 364; Bradbury v Higginson, 162 Cal 602; Kanter v Safran, 68 So 2d 553 [Fla]; Jordan v Nickell 253 SW2d 237 [Ky]; Crow v Kaupp, 50 SW2d 995 [Mo]; Carey v Hejke, 119 NJL 594; Church Co. v Martinez, 204 SW 486 [Tex]; Brown v Hayes, 92 Wash 300.)"], "id": "6e2d9ab6-3fa9-47ed-88a9-1ba984b1daae", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The novel issue to be determined herein is whether secondhand smoke emanating from a neighbor gives rise to a breach of the implied warranty of and a constructive eviction under the realities of modern urban dwelling. Most urban dwelling in New York City comprises \u201cvertical living\u201d in high-rise apartment buildings with possibly multiple neighbors in all directions. With multiple neighbors living beside each other comes basic duties and responsibilities. There is a duty to protect each other\u2019s right to privacy and a responsibility not to invade a neighbor\u2019s privacy. The unwanted invasion of privacy comes in many guises such as noise, smells, odors, fumes, dust, water and even secondhand smoke."], "id": "ebca570d-1381-4c65-b42d-e1804dbfe0b4", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The implied warranty of is breached if \"in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide\u201d (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 328 [1979]). Leaks and damaged plaster have long been recognized as falling under the warranty (Century Apts. v Yalkowsky, 106 Misc 2d 762 [Civ Ct, NY County 1980])."], "id": "3784c052-0bc0-4f16-9867-211fcad5bee6", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Adam Seiden, J. Claimant brought this proceeding to recover $3,000 for alleged breach of the warranty of in regard to an apartment located at 332 Highland Avenue, Mount Vernon, New York. On September 1, 1994 claimant moved into a third floor apartment at said address. Claimant paid $700 per month pursuant to an oral agreement. The parties disagree as to *342whether the arrangement was month to month or for a period of time. The issue is not important as the warranty of habitability is applicable to the relationship in either event. (See, Real Property Law \u00a7 235-b [1].)"], "id": "897be50b-cb4b-4377-9284-e1c7f5e39ed9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This holding does not conflict with the decision reached in Frisch v Bellmarc Mgt. (supra). There the Appellate Division concluded that the defense of the statutory warranty of for leased premises did not apply to condominiums; condominium is a fee ownership interest rather than leasehold. In the case at bar any defective conditions within the unit must be remedied by the unit owner since they are presumed to be within petitioner\u2019s control. However, it is uncontroverted that there is a violation of record involving penetration of water into petitioner\u2019s apartment through common areas of this multiple dwelling which is within the sole control of the respondent and/or its delegees. It is undisputed that petitioner has no control over the common areas/elements that would enable him to correct the violations found by the housing inspector. Condominium units in multiple dwellings are by nature of their proximity to each other and common areas, and their shared services, interconnected and interrelated to such a degree that there is no reasonable way to separate each unit from the multiple dwelling as a whole."], "id": "e7feff56-b3bc-428d-a8bb-0c1490bf3df6", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cNaturally, it is a patent impossibility to attempt to document every instance in which the warranty of could be breached. Each case must, of course, turn on its own peculiar facts . . . \u201cProblematical in these cases is the method of ascertaining damages occasioned by the landlord\u2019s breach . . . Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord\u2019s duty to maintain the premises in habitable condition, the *622proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding . . . \u201cIn ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions.\u201d (Id. at 327-329 [emphasis added and citations omitted].) As set forth above, section 235-b only applies to the parties to the lease. Although the warranty of habitability applies to all leases (including oral leases), this warranty, like all warranties, is merely part of the contract itself. (170 W. 85th St. Hous. Dev. Fund Corp. v Marks, 40 Misc 3d 1237[A], 2013 NY Slip Op 51332[U], *5 [Civ Ct, NY County 2013] [\u201cAs the warranty of habitability sounds in breach of contract ... (a nonparty) does not have standing to seek an abatement predicated on the breach of the warranty of habitability\u201d].) Ergo, the warranty of habitability does not bind nonparties, such as the landlord\u2019s agents. Plaintiffs argue that certain cases suggest that the word \u201clandlord\u201d in section 235-b must be read broadly to include all those with a nexus to the lease, such as managing agents. However, the cases cited by plaintiffs concern public administrators (governed by RPAPL art 7-A), not private third-party management companies. (See e.g. Department of Hous. Preserv. & Dev. of City of N.Y. v Sartor, 109 AD2d 665 [1st Dept 1985].) Of course, owning the leased premises is not a prerequisite to being a \u201clandlord\u201d for the purposes of section 235-b (e.g. sublessors are equally obligated to keep the premises habitable), but being a contracting party is. Where, as here, the managing agent defendants are not parties to plaintiffs\u2019 leases, they are not liable for monetary damages for breaches of the warranty of habitability. A breach of such warranty is a mere breach of contract, requiring privity. The section 235-b claim, therefore, is dismissed as against the non-landlord defendants: Ogden, Solil, and Goldman. Similarly, plaintiffs cannot amend to assert a claim against Matel Realty, LLC, or any other managing agent."], "id": "80b08b8b-f9e1-4d6f-af7c-6fb817df52f1", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As to interest: CPLR 5001 (a) would appear to leave the issue to the court\u2019s discretion. Although the rent due for which the judgment was issued would have been due December 1, 1987 and therefore interest could be computable beginning that date, we must also remember that a breach of warranty of occurred in October and November, for which petitioner could arguably owe respondent some amount of \"interest\u201d. Respondent of course tendered payment of the principal in court. I made no award of \"interest\u201d in my verbal decision and I make none now."], "id": "11d25273-dadf-4e90-a387-c8b82d9ca394", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this residential nonpayment summary proceeding the novel issue presented at trial was whether petitioner, a proprietary lessor, violated its statutory obligation to respondent, a proprietary lessee, and breached the warranty of provided in section 235-b of the Real Property Law by permitting a commercial tenant of the contiguous lower floor (street level) of the building to erect and maintain an illuminated white awning directly below and outside of respondent\u2019s bedroom window. This court holds that under the facts presented at trial no breach of the warranty of habitability occurred as a result of the erection and maintenance of the illuminated awning."], "id": "36d23d61-7bc4-45e8-b19b-3cd5b6023bad", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In 205 W. End Ave. Owners Corp. v Adler (NYLJ, Nov. 2, 1990, at 21, col 4) and 61 E. 72nd St. Corp. v Zimberg (161 AD2d 542), the courts held that in the case of a residential tenancy, a contractual provision that permits the landlord to terminate the lease based on nonpayment of rent (other than in chronic nonpayment situations) is void because it violates public policy. In Adler, Appellate Term reasoned that the enforcement of such a provision interferes with a tenant\u2019s opportunity to cure rent defaults by payment of the amount of rent ultimately found due upon an adverse judgment and frustrates a tenant\u2019s right to litigate defenses. Moreover, Appellate Term stated that a landlord should not be permitted to prosecute an ordinary nonpayment case in the guise of a holdover and thereby precipitate an irrevocable forfeiture.* (205 W. End Ave. Owners Corp. v Adler, supra.)"], "id": "b78fb9c4-e21f-42d4-ac6e-01cc185884d9", "sub_label": "US_Terminology"} {"obj_label": "habitability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although controversial and, as yet, not directly addressed by major appellate scrutiny, it seems manifest that section 235-b should be reviewed in contract theory, not strict tort liability. If respondent can establish that petitioner has indeed breached his statutory warranty of , respondent would be entitled to a rent abatement or compensatory damage award due to the reduced fair market value of the leased premises. However, any personal injury action would be based upon the traditional tort theory of negligence; respondent cannot sue in strict liability using as her cause of action breach of the section 235-b warranty."], "id": "5872d272-395e-428d-bfe8-a064915ea42a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court has also taken into consideration the observations made by the two Judges in the Majen and the East Haven cases {supra) concerning the critical housing shortage prevailing in the city. It was urged in both cases that the rule requiring a family to abandon the demised premises should be relaxed because of the scarcity of available decent housing. It would be beyond the jurisdiction and scope of this court to assume the role of the Legislature and to extend the already existing law concerning the requirement that demised premises be abandoned in cases of ."], "id": "c17df4d0-397b-481a-a3d2-46bb9d90fe93", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cBut alterations to leased premises, made with the consent of the tenant, do not amount to an eviction, no matter how extensive or the degree of interference with the tenant\u2019s occupancy (see Two Rector St. Corp. v Bein, 226 App Div 73 [1929]). Here, the entry for making repairs was made pursuant to a right reserved in the proprietary lease, to which the tenants, by signing the lease, consented (see Winston Churchill Owners Corp. v Churchill Operating Corp., 193 AD2d 396 [1993]).\u201d In the case at bar, the respondent continued in possession of the office space and continued to use the on-site parking provided. Thus, there is no . A case in point is Matter of Scolamiero v Cincotta (128 AD2d 224 [3d Dept 1987]), wherein the tenant failed to vacate the leased premises and renewed the lease. The Court held there was no constructive eviction regarding the leasing of the parking space to another tenant. The tenant\u2019s claims were restricted to the amount of damages suffered in the diminution of use of the parking spaces:"], "id": "75370b09-fd54-45e5-996c-db2f617f1597", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Boreel v. Lawton (90 N. Y., 293), it is said that there cannot be a without abandonment of possession. That remark should be construed in connection with the case then before the court which was was an action by a landlord against his tenant for rent, and the defendant, admitting the continuance of the tenancy during the time for which rent was demanded, alleged certain acts done or permitted by the landlord to the tenant\u2019s damage which he set up as a counter-claim. It was held that there was not such an eviction as would furnish a basis for an action on the covenant for quiet enjoyment, and that although the defendant may have had a cause of action, it was not the subject of a counterclaim. Several other cases are cited arising out of leases, but none question the right of a tenant to attorn to a paramount title and thereby defeat an action for rent subsequently accruing. (Simers v. Saltus, 3 Den., 214; Wood\u2019s Land, and Ten., 807, and cases cited in note 1.)"], "id": "574508c7-3709-4b45-ab71-399967098bd4", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To further illustrate that is established only in cases where the intolerable condition is neither caused nor can be remedied by the tenant, reference is made to the case of Madden v. Bullock (supra) in which the loathsome stench of dead and putrescent rats in the walls and under the floors, which was made worse by the use of chloride of lime, was held to be a sufficient cause for abandonment of the premises, upon the ground that the \u201c defendant [tenant] was powerless to abate this peril to health.\u201d And in Barnard Realty Co. v. Bonwit (155 App. Div. 182), in which a \u201c disturbance caused by the nightly meetings and performances of rats in the walls and ceilings, coupled with a most offensive odor which increased until the place became untenantable,\u201d a constructive eviction was likewise held to have taken place."], "id": "1a214ed9-ea42-4bed-8a48-5ff769dd2e4a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner\u2019s motion to dismiss the third affirmative defense, that rent-impairing conditions render the premises untenable and the ninth affirmative defense that petitioner\u2019s actions constituted an actual and/or , is granted. Article 52 of the net lease of the entire building known as 1833 First Avenue provides that \"[i]t is understood and agreed that is a 'Net Lease\u2019 \u201d and that \"all costs and expenses relating to the demised premises and in connection with the operation and maintenance of same shall be paid for by the Tenant.\u201d Article 39 of the net lease further provides that respondent is obligated to maintain the subject building \"at its sole cost and expense.\u201d"], "id": "2400e737-ba89-4ecf-a767-99044044b350", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["With regard to the breach of the covenant of quiet enjoyment claim, the court agreed with the parties that it does not apply to a commercial lease. The court declined to treat the claim as one for for two reasons: first, there was no lease; and second, by December 2011 or January 2012, Salima was not lawfully on the premises."], "id": "bf578c4e-bdb2-46f6-81c8-cd7638b7bb0a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Defendant\u2019s counterclaim seeks $25,000 in damages for the alleged resulting uninhabitability\u201d and (answer \u00b6 19). Whether analyzed in a light most favorable to the pleader as the court must on a motion to dismiss (CPLR 3211 [a] [7]), or as a motion for summary judgment (CPLR 3212) as urged by defendant himself, the counterclaim does not plead, and defendant\u2019s accompanying affidavits do not set forth, a valid claim. (See, Rovello v Orofino Realty Co., 40 NY2d 633.) Defendant\u2019s allegations about the neighbor\u2019s acts, even if true, are insufficient as a matter of law. Neither the pleading nor the proof demonstrates that the neighbor\u2019s acts rendered the leased premises unfit for human habitation, or that they created conditions that were dangerous to life, health or safety or that they denied defendant any essential functions. (See, Solow v Wellner, 86 NY2d 582.) By definition, the warranty of habitability does not extend to aesthetics or inconveniences which do not render premises dangerous or unsafe (Park W. Mgt. Corp. v Mitchell, supra, at 328) even if unexpected in a luxury building. (See, Solow v Wellner, supra.) Disinclination to catch an occasional glimpse of a neighbor under the circumstances set forth here does not constitute breach of the warranty of habitability.4 Moreover, the lease clearly prohibited the interposition of counterclaims in any action between the parties related directly or indirectly to the lease. Accordingly, the counterclaim is dismissed."], "id": "b8ed24f7-25b6-4d9c-878e-ffda6e2590c3", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Since respondent continues to use the parking provided, even if the usage is greatly diminished, claims of will fail. (See Arpino v Cicciaro, 38 Misc 3d 129[A], 2012 NY Slip Op 52392[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; 737 Park Ave. Acquisitions, LLC v Eastside Comprehensive Med. Servs., LLC, 44 Misc 3d 1207[A], 2014 NY Slip Op 51048[U] [Civ Ct, NY County 2014].)"], "id": "bdf41397-52cc-45a0-a0bc-f09a433e23ca", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Appellant does however cite Charalambous v. Jean Lafitte Corp. , which we find helpful here. In Jean , the tenants had a commercial lease whereby they ran a restaurant. Id. at 523. The tenants alleged that when the landlord's agent became disturbed by the noise made by a musical group performing at the restaurant, the agent cut off the restaurant's utilities without warning, resulting in substantial food spoilage and loss of restaurant business. Id. The tenants further alleged that the landlord and the agent subsequently changed the locks on the restaurant floors eleven days later. Id. After outlining the elements for a , this Court found that the elements were satisfied \"by the undisputed testimony regarding defendants changing the locks and effectively preventing the [tenants] from carrying on their business after [the lockout date]. Jean , 652 S.W.2d at 526. Importantly, this Court did not rely on the date the utilities were cut."], "id": "4efdf3e2-0a82-4fe6-b71f-aa223261fa60", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["First, the whole thrust of later developments discloses to be an illusory protection for the ordinary residential tenant, and establishes that code enforcement is ineffective to achieve broad compliance with the law. (See Gribetz and Grad, Housing Code Enforcement: Sanctions and Remedies, 66 Col. L. Rev. 1254; Note, Enforcement of Municipal Housing Codes, 78 Harv. L. Rev. 801.)"], "id": "d3ede25b-e295-4257-a8bb-c16fe9534f0c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Appeal No. 47. The landlord\u2019s affirmative case was admitted. There was no because the tenant did not quit the premises. There was no partial eviction because there was no deprivation of a substantial portion of the demised premises. The counterclaim for damages to tenant\u2019s property is inadequately pleaded and the instructions to the jury did not make this phase of the case clear and were so bound up with issues that should not have been presented at all that the findings of the jury cannot be \u2022 considered as a determination of the facts. The counterclaim is dismissed without prejudice to a separate action for this relief or to pleading it as a counterclaim in the second action between the parties."], "id": "9cc208cf-766e-4b9b-8cfd-6a30a5c027ca", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["After joinder of issue, TCI moved for summary judgment on both causes of action. Modell cross-moved to dismiss the complaint or for summary judgment dismissing the same or, alternatively, for leave to file an amended answer. Modell\u2019s motion to dismiss was based on its alleged surrender of the demised space to the landlord as a result of the landlord\u2019s purported breach of the covenant of quiet enjoyment. Specifically, Modell claimed that its occupancy of the demised premises was plagued from the onset by a \" 'dirt migration *216problem\u2019 \u201d, that is, a \" 'film-like dust\u2019 \u201d, with a high iron content, which seeped through a faultily constructed premises wall abutting an adjoining subway station and tracks. Modell feared that prolonged exposure to this \" 'steel dust\u2019 \u201d would adversely affect the health and well-being of its customers and employees. In view of the \"actual and/or constructive eviction\u201d, Modell argued, it was relieved of its obligation under the April 25, 1986 agreement to make the monthly assignment payments to TCI. In moving to amend its answer, Modell sought to interpose counterclaims alleging actual and , breach of the covenant of quiet enjoyment, lost profits, breach of contract, negligence and seeking, inter alia, damages, rescission and reformation. Additionally, Modell sought to commence a third-party action against the landlord."], "id": "126f7339-233b-4106-b880-29d647f113a7", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Nevertheless, I am unable to conclude that the departure of the defendant and his family from the apartment at the end of July, 1966 constituted their from the entire premises. The evidence clearly discloses that the terrace had become unusable no later than the early spring of 1965, and quite possibly earlier. The law is clear that the abandonment must occur with reasonable promptness after the conditions justifying it have developed. (See 1 Basch, Landlord and Tenant, \u00a7 877, and cases cited.)"], "id": "93cb5806-a7a6-4bc7-85f6-dd170467e204", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under the ancient law, only the actual eviction of the tenant by the landlord, and not , was recognized as a defense (Hunt v. Cope, 1 Cowp. 242). The strictures of this principle have been eroded through the succeeding years; and our courts did not respect the English rule that neither fire, flood, nor violence destroyed the obligation to pay rent (3 Kent\u2019s Comm. [14th ed.], 460). As Chancellor Walworth early said, in Gates & Colvin v. Green (4 Paige Ch. 355, 357): \u201c It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used.\u201d (See, also, Van Voorhis, J., in Schantz v. American Auto Supply Co., 178 Misc. 909.) Through the passage of time, the assault on the common-law doctrine has continued (1) through the acceptance of the defense of constructive eviction on behalf of the tenant where the landlord, by the commission of acts, or the sufferance of a condition, has interfered with the tenant\u2019s enjoyment of the premises (Haydon Co. v. Kehoe, 177 App. Div. 734; Park Ave. M. E. Church v. Barrett, 30 N. Y. S. 2d 667, affd. 264 App. Div. 879); (2) through the construction by the courts that all leases have an implied covenant of quiet enjoyment (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370) and (3) through the enactment of statutory relief (L. 1860, ch. 345, now Real Property Law, \u00a7 227; cf. Meserole v. Hoyt, 161 N. Y. 59; Butler v. Kidder, 87 N. Y. 98)."], "id": "bf3adce2-1dd8-4bd3-a8dc-53f5c6e5e665", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This is all that I understand to have been decided by that case, though it has been supposed to have gone much further. Thus Savage, C. J., in Lewis v. Payne (4 Wend. 428), said, \u201c In Dyett v Pendleton, it seems to have been held that any obstruction, by the landlord, to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract, by the act of the landlord,' amounts to a .\u201d The only foundation for this opinion is to be found in one of the reasons assigned by Senator Spencer, who delivered an opinion for reversal, to show that actual entry was not essential to an eviction."], "id": "b9df4223-7e1d-46fa-bf26-54ffb9d8c8ed", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On appeal, tenant contends, among other things, that the Civil Court committed reversible error by directing it to pay landlord one month\u2019s use and occupancy, since it had interposed the affirmative defense of partial and/or , and RPAPL 745 (2) (a) (ii) provides that a tenant cannot be ordered to pay use and occupancy if a partial or constructive eviction defense is interposed. Landlord contends that the Civil Court providently exercised its discretion in requiring tenant to pay use and occupancy as a condition of a further adjournment; that the court had the inherent power to strike tenant\u2019s pleading based on tenant\u2019s failure to pay the use and occupancy; and, in any event, that the order was proper pursuant to RPAPL 745 (2)."], "id": "01a83927-231b-4e74-b993-d1751f50264b", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Kathy J. King, J. Petitioner moves by order to show cause to be restored to possession based on an illegal lockout and of the premises located at 124 Avenue J, Basement and Atrium, Brooklyn, New York (hereinafter the subject premises). Petitioner also seeks treble damages pursuant to RPAPL 853 and attorney fees. Respondent submitted an answer and notice of appearance opposing the motion on the basis that no permission had been given to utilize the basement of the subject premises, thereby resulting in his right to regain possession. While respondent appears in the action by an attorney, the court notes that an answer is an improper method for opposing the relief requested in the petition. In accordance with CPLR 2214, respondent should have properly submitted an affidavit by an officer of the corporation with knowledge of the facts and circumstances. Notwithstanding this procedural deficiency, the court held a hearing on March 28 and April 2, 2008 on the issue of whether the petitioner had a right to use the basement."], "id": "218ccee3-10f5-46aa-92a1-47b24ba99772", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This issue necessitated testimony focused primarily on proving that the landlord\u2019s willful act in installing inferior quality interlocking tiles on the play roof curtailed defendant\u2019s use and enjoyment of the area, which constituted a partial eviction, actual or constructive (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77). It was not alleged that plaintiff physically ousted or excluded defendant, a necessary element in an actual eviction (Jackson v Paterno, 58 Misc 201, 204, affd 128 App Div 474; Meerbaum v Crepes D\u2019Asie, 81 Misc 2d 842, 845), therefore, only remains open as a viable approach."], "id": "75ffdf83-cdc9-47e7-b846-4f2ea04e9e98", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Defendant\u2019s claim that there was a because of the landlord\u2019s failure to maintain sufficient elevator service is untenable. By remaining in possession until actual eviction by summary proceedings, defendant waived her right to plead constructive eviction (Ashton Holding Co. v. Ross, 98 Misc. 586 ; Cable v. Bonnell, 9 Misc. 154 ; Cornwell v. Sanford, 222 N. Y. 248). Constructive eviction, therefore, is no defense (79th & 3d Realty Corp. v. Weiner, 27 N. Y. S. 2d 693)."], "id": "5bfb63c4-45a1-42b5-adad-56ee0797cb0b", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*401The question arises, do the facts in this case constitute an eviction, and if so is it a case of actual eviction, or constructive eviction? From time to time throughout the year there has been a repetition of cases involving the failure of the landlord to supply water, electricity, plumbing facilities, and the like. The tenants have repeatedly complained that such conduct on the part of the landlord results in a substantial deprivation of the beneficial use of the premises so as to amount to an eviction. The courts have generally held that in a case where the facts justify, a results, rather than an actual eviction. The Court of Appeals in Tallman v. Murphy (120 N. Y. 345, 352) has clearly set forth the law applicable to these cases as follows: \u20181 The heating of the apartments, the supply of water, all sanitary arrangements and many other things essential to the proper enjoyment of the apartments in the building by the tenants thereof, are regulated and controlled by the landlord, and he owes a duty to the tenant to see that all such matters and appliances are kept in proper order, and if he persistently neglects them, and, by reason of such neglect, the tenant is deprived of heat or hot water, or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction.\u201d The courts have accordingly held in similar circumstances that a constructive eviction results from the acts or the omissions of the landlord. (Cf. Sully v. Schmitt, 147 N. Y. 248 [failure of the landlord to repair open sewer under leased premises]; Edgerton v. Page, 20 N. Y. 281 [defective waste pipes]; November v. Wilson, 49 Misc. 533 [dampness, leakage of water, defective management of boilers and other machinery]; Krausi v. Fife, 120 App. Div. 490 [defective plumbing causing upflow of sewer gas]; O\u2019Gorman v. Harby, 18 Misc. 228 [defects in boiler, insufficient heat due to stoppage of steam]; Self Serv. Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774 [defective piping, water and disposal facilities causing water flow].)"], "id": "cc386f23-01b1-4ff0-a5b6-6cb8082e5414", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Certainly no basis exists for allowing the defense in commercial tenancies which include residential use, and not in ordinary commercial tenancies (see, 114 Fifth Ave. Assocs. v Satnet Inc., NYLJ, Aug. 14, 1989, at 25, col 6 [Civ Ct, NY County]). And indeed, nothing in Minjak (supra) would indicate such an intent by the Appellate Division. The court\u2019s reasoning is based on the need to provide relief where the wrongdoing of the landlord has necessitated an abandonment of some portion of the premises. No mention is made of the residential nature of the tenancy as an essential aspect of the court\u2019s holding. In fact, though Minjak deals with a situation including both commercial and residential aspects, the portion of the premises which were abandoned in that case was the music studio \u2014 not the residential portion of the loft. In addition, references to Mr. Page\u2019s injury \"in the prosecution of his business\u201d in Edgerton v Page (supra, at 282), on which the Minjak court leans, would seem to indicate a commercial tenancy there. While the court in Edgerton did not find that a partial had occurred, that finding was based entirely on the fact that the defendant had never abandoned any part of the premises. The underlying implication that had there been an abandonment of some portion of the premises the court would have found a partial constructive eviction, is quite clear."], "id": "368f1e15-e22b-4544-8261-a2331c54fab0", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The landlord argues that the principle of while recognized in section 1446-a is disregarded in the statute under consideration and states \u201c The principle that a tenant who has the beneficial enjoyment of property, must pay a rent even if there are conditions which might constitute a constructive eviction, is to be balanced with this law which says that a tenant may have the beneficial enjoyment of property, the condition not only need not be a constructive eviction, but may have nothing to do with the tenant\u2019s apartment or the use or enjoyment thereof, yet, the tenant, if he or she is a welfare recipient, need not pay the rent. All others do.\u201d (Landlord\u2019s Memorandum, p. 5.) However, the landlord is losing sight of the fact that this law applies only where there are existing violations in the building which are 1 dangerous, hazardous or detrimental to life or health \u2019 \u2019. The purpose of the law to eradicate slums is not adequately served by conditions which may exist in a particular apartment only. It is concerned with buildings which are dangerous and unsafe to life and which are made so by conditions in the building uncorrected by the landlord. As Judge Pound said: \u201cWhat is taken is the right to use one\u2019s property oppressively and it is the destruction of that right that is contemplated and not the transfer thereof to the public use. The taking is, therefore, analogous to the abatement of a nuisance or to the establishment of building restrictions, and it is within the police power. \u2019 \u2019 (People ex rel. Durham Realty Corp. v. La Fetra, supra, p. 444.) Furthermore, even if the statute may effectuate a suspension of summary proceedings, that is no basis for invalidating the statute. \u201c [T] he right to a particular remedy is not a vested right * * * As a"], "id": "40071434-203c-4753-ad35-c1d4f4c53142", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A covenant is implied into leases that the lessee is entitled to quiet enjoyment of the demised property (Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370, 376 [1917]). There must be an actual or from the premises for there to be a breach of the covenant of quiet enjoyment (Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117, 119-121 [1958]). A constructive eviction does not require physical removal from the premises; it is sufficient to demonstrate that the lessee could not use the premises for the purpose(s) intended and had to abandon the premises under the circumstances (Dinicu v Groff Studios Corp., 257 AD2d 218, 224 [1st Dept 1999]). A breach of the covenant of quiet enjoyment can be predicated upon a partial constructive eviction, where the lessee only gives up part of the premises (Bernard v 345 E. 73rd Owners Corp., 181 AD2d 543, 544 [1st Dept 1992])."], "id": "bf5a79e8-c642-4cff-beea-464ec61f406b", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The plaintiff\u2019s argument would have a great deal of merit if its action was grounded in negligence or the defendant\u2019s counterclaims for damages were based upon injuries to her person or property caused by the negligence of plaintiff\u2019s employee during the course of his employment. However, the alleged acts which the employee committed that caused injury to defendant\u2019s person \u2014 were: assault, rape and intimidation; and the alleged act that caused injury to her property \u2014 was robbery. None of these acts resulted from the employee\u2019s negligence. If he did what is alleged, he committed deliberate and willful torts. Plaintiff\u2019s argument is based solely upon the defendant\u2019s unartful use of the word \"negligence\u201d in formulating one of her counterclaims. She claims plaintiff failed to exercise proper care in selecting, training, supervising and retaining an employee with vicious and larcenous propensities. This counterclaim is in reality related to the counterclaims of breach of quiet enjoyment and . All three counterclaims are sounded in contract. An action in contract is an action in contract, no matter what name the \"rose\u201d is called. There was a contract (the lease) between the plaintiff and and defendant. In exchange for the payment of rent, the plaintiff promised to provide defendant with the \"quiet enjoyment\u201d of an apartment. Whether plaintiff is guilty of breaching the contract by failing to exercise reasonable (and perhaps foreseeable) care in hiring, training, supervising and retaining Clarence Warren as an employee is a burden that defendant has to prove on trial; but the relevant facts are wholly within the knowledge and control of the plaintiff, thus, they are \"fair game\u201d for interrogatories."], "id": "953c4d61-d7bd-41cd-bbb5-314a35abd432", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Without discussing whether or not the acts complained of and proved by the tenant are sufficient to constitute eviction, it is sufficient to point out that, assuming that the tenant was evicted as claimed by him, nevertheless he would be liable for the rent which became due from the 1st day of October, 1931. The courts of this State have many times held that does not relieve the tenant from payment of rent already due at the time of his abandonment of the premises, even though such rent is payable in advance. (Hayden Co. v. Kehoe, 177 App. Div. 734; Bookman v. Polachek, 165 N. Y. Supp. 1023; Perry-Freeman Co. v. Murphy, 164 id. 74.) The facts alleged and proved on the trial herein may, no doubt, be interposed as defense to the payment of any further claims of the plaintiff for rent falling due after the month of October, 1931. (Edgerton v. Page, 20 N. Y. 281; Sully v. Schmitt, 147 id. 248.) It follows, therefore, that judgment must be given in this action for the plaintiff in the sum of $116.67."], "id": "4e9f3f40-35a1-42b5-a7f4-8d56a8b949da", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Since the lease provisions authorize repairs without abatement of rent, there can be no claim for actual partial eviction nor for . (See Winston Churchill Owners Corp. v Churchill Operating Corp., 193 AD2d 396 [1st Dept 1993]; Cut-Outs, Inc. v Man Yun Real Estate Corp., 286 AD2d 258 [1st Dept 2001]; Ernst v Straus, 114 App Div 19 [1st Dept 1906]; Two Rector St. Corp. v Bein, 226 App Div 73 [1st Dept 1929].)"], "id": "93626887-3cbb-46fa-a986-345ced3bc8d7", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It cannot be said, upon the basis of the allegations, that mere inconvenience is involved or that construction is merely threatened or that would not ensue. Both parties also rely on House of Chan v. Dyckman (14 Misc 2d 595) where an application for temporary injunction was denied. There, however, it appeared that the acts complained of were not the acts of the landlord and did not have its consent. Moreover, it also appeared that the conditions complained of had existed prior to the commencement of plaintiff\u2019s tenancy and had endured for quite some time prior to the application for injunctive relief. The motions are denied."], "id": "d5245328-beb4-439a-bc59-3de7b50dda81", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The burden of proving the facts upon which to base a conclusion of is on the tenant, yet no proof was offered as to the source of the water leak and he admits that he never had anyone even look at the windows during the entire three years of his occupancy, notwithstanding that under paragraph 5 of the lease, the general duty to repair is placed upon the tenant."], "id": "e5b0d1b5-ce96-4e77-900b-522f2126bda5", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The law is well settled that where the tenant unreasonably delays in abandoning the premises by reason of the asserted , his right \u2018 to repudiate the hiring is lost.\u201d (Seaboard Realty Co. v. Fuller, 33 Misc. 109 [App. Term].) In Siebold v. Heyman (120 N. Y. S. 105 [App. Term, 1909]) continued occupancy of the premises for four months was held unreasonable; in the Seaboard case (supra) a delay of five months was held unreasonable; in Kent v. Ward (111 N. Y. 8. 743 [App. Term, 1908]) six months was held unreasonable; in *652Heilbrun v. Aaronson (116 N. Y. S. 1096 [App. Term, 1909]) seven months\u2019 continued occupancy was held unreasonable. As the court said in the Seaboard case (supra, p. 111), \u201c The retention of the premises for such a period after the commencement of the alleged annoyance was a confirmation of the tenancy, and must be treated as an election by the tenant to perform the covenants of the lease and to retain its benefits.\u201d In the Appellate Term decisions following the Seaboard case the courts have construed unreasonable delay as a waiver of the defense of constructive eviction (see Heilbrun v. Aaronson, supra)."], "id": "2bbea5b7-dc9d-4886-818d-e9c6230384c7", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The third cause of action alleges that, because of the excessive and unhealthy heat and humidity in the apartment, plaintiffs were constructively evicted from the apartment during the summer months. This cause of action for partial is subject to a one-year statute of limitations (Jones v City of New York, 161 AD2d 518 [1st Dept 1990]; Yokley v Henry-Clark Assoc., 170 Misc 2d 779 [App Term, 2d Dept 1996] [claim based on constructive eviction is actually one for wrongful eviction subject to a one-year statute of limitations]). To the extent that any of the alleged constructive eviction occurred within one year from the commencement of this action, the claim is not time-barred."], "id": "833ce595-08d1-4d84-a0a6-2f362157d553", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A new trial is warranted in connection with the other items of damages. With respect to plaintiffs property damage claims, the court awarded plaintiff an aggregate recovery of $9,775, even though plaintiffs own receipts for such charges, to the extent decipherable, appear to total no more than $5,500. *56As to plaintiffs claimed entitlement to a return of rents previously paid, the record shows that, while the water problems in the demised space may have existed from the commencement of the lease in March 2011, tenant remained in possession until June 2012. Since there was no until that time (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]) and tenant\u2019s rental obligations remained extant during the interim, the court\u2019s blanket award of the full amount of the rent paid during the plaintiffs tenure cannot stand (see West Broadway Glass Co. v I.T.M. Bar, 245 AD2d 232, 232 [1997]). Rather, the proper measure of plaintiffs loss vis-a-vis the rent is \u201cthe difference between the value of the leased premises as they were intended and the value as a result of the breach\u201d (id.), an amount indeterminable on this record."], "id": "0fbbaa6d-e039-4d7e-87aa-1421d5b7abaa", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While it has been held that the \u201ccommon-law doctrine of Act of God\u201d is, \u201cclearly, preempted by the statutorily imposed obligations\u201d mandating warranty of habitability in every residential lease,19 this court holds that damage alleged to have been caused by such an \u201cact of nature,\u201d to wit, Hurricane Sandy, cannot support a defense of , as a crucial element of the defense (a wrongful act by the petitioner) is lacking.20"], "id": "7f657ea3-f962-43b1-97a7-2fcf3a24fe71", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The defendant\u2019s contention is that the subtenant removed from the premises because of an alleged failure of the plaintiff to keep the premises in any kind of condition or state of repair, and the defendant further contends that Mutual Designers, Inc., the subtenant, vacated the premises because of a under the terms of the paramount lease between the plaintiff and the defendant."], "id": "b53ddf75-f046-4bc6-9930-575b62b94956", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["While Jean and Downtown Realty both involved commercial leases, we nevertheless find both cases instructive here in the residential lease context. Appellant did not produce any evidence at trial as to why HP Home failed (i.e. omitted) to pay the utilities. Nor did Appellant product any evidence as to when or whether they were restored. The record is also void as to whether only Appellant's utilities were cut as a result of non-payment, or if the entire Trailer Park's utilities were affected, or only certain tenant's utilities were affected. Other than her own testimony as to the utilities cut as the result of non-payment, Howard was the only other witness to testify at trial on the subject, explaining he was unaware of why the utilities were unpaid. Appellant also did not present evidence HP Home, through Howard or anyone else, acted with intent to deprive Appellant with the use and enjoyment of the property by failing to pay the utilities. Because Appellant did not produce any evidence indicating anyone's intent in failing to pay the utilities, failed to show if either HP home or Howard were aware of the failure, or if the utilities were ever restored (or if there was a restoration attempt), and there is no evidence to indicate which tenants' utilities were affected, we find that the County Court did not commit error in granting the directed verdict against Appellant on the claim."], "id": "3ec520bf-cd8d-43a0-b171-50af48db03ab", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff countered with testimony by a teacher employed in the day care center who attested to the fact that the play roof was in daily use during clement weather and had been since the opening of the center. Recent photographs of the play roof area offered by plaintiff showed some slight buckling of the tile, but more decisively, showed children at play. This graphic evidence eliminated the effectiveness of a partial claim which would necessitate not only a showing of material deprivation of the beneficial use and enjoyment of the premises, but proof that the tenant abandoned a substantial part of the premises (Union Dime Sav. Bank v Frohlich, 57 AD2d 862 [abandonment]; Zamzok v 650 Park Ave., 80 Misc 2d 573 [partial eviction]). Furthermore, by remaining in possession long after the occurrence of the condition on which defendant based its claim it waived its right to abandon the *1106premises because of an alleged eviction (Waldene Realty Co. v Pfalzer, 223 App Div 787)."], "id": "d74ca85f-7347-4235-b2ee-975a89017272", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Modell\u2019s only discernible defense is that the monthly assignment payments were conditioned upon its use and occupancy of the Modell Lease premises and that its actual or therefrom excuses its obligation to make those payments. Whether Modell has been evicted, constructively or otherwise, from the demised premises is irrelevant to Modell\u2019s obligations under the April 25, 1986 agreement, which constitutes a $1,725,000\u2014payable over 15 years\u2014sale of a leasehold, not a sublease. Upon the April 29, 1986 execution of the assignment of the lease, which was simultaneously surrendered and a new lease executed incorporating the former TCI space into it, TCI had no further obligations with respect to the premises. There was never any landlord/tenant relationship between TCI and Modell and the April 25, 1986 agreement contains no representations or promises as to the condition of the premises."], "id": "8279c6de-3527-4f49-94d5-c3fd84db8639", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Appellate Term, First Department, has recognized that \u201c The tenants should be protected from insult.\u201d (Manhattan Leasing Co. v. Schleicher, 142 N. Y. S. 545, 546 [App. Term, 1st Dept. 1913] Page, J.) Where the landlord\u2019s conduct is \u201c so grossly insulting and threatening in character as to seriously and substantially deprive the defendant of the beneficial enjoyment of the premises demised,\u201d and as a result, the tenant is forced to vacate the premises, there may be a and a breach of the covenant of quiet enjoyment (cf. Onward Constr. Co. v. Harris, supra, p. 318, Seabury, J.). Whether or not there are sufficient facts to support a constructive eviction is a matter to be determined upon the circumstances of each case."], "id": "9d1d10f1-fc8a-433d-8930-16990b65d771", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the case at bar the Emergency Rent Laws has no application, as the plaintiffs herein do not come within its provisions, in that the rent paid for the apartment in question was eighty-seven dollars per month for four rooms, o\u00ed more than twenty dollars per room, and that the tenant could have moved from the premises and claimed a ."], "id": "81eea0be-63dd-493a-8f99-82424800636c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Implicit in the lease agreement between the plaintiff and defendant was a covenant of quiet enjoyment which \"is an agreement on the part of a landlord that for the period of the term of the lease the tenant shall not be disturbed in his quiet enjoyment of the leased premises\u201d (2 Rasch, New York Landlord and Tenant \u2014 Summary Proceedings \u00a7 27.1, at 321 [3d ed]). The breach of a covenant of quiet enjoyment requires actual or (2 Rasch, op. cit., \u00a7\u00a7 28.1, 28.21). Constructive eviction arises when the landlord interferes with the tenant\u2019s possession of the premises to such an extent that the tenant is deprived of its beneficial enjoyment. Typically, the causative factors are noise and water damage (see, e.g., Bernard v 345 E. 73rd Owners Corp., 181 AD2d 543 [1992] [noise]; Minjak Co. v Randolph, 140 AD2d 245 [1988] [water damage and sandblasting; punitive damages]; Rockrose Assocs. v Peters, 81 Misc 2d 971 [Civ Ct, NY County 1975] [noise])."], "id": "4c444f7b-4d35-4256-b404-54498947c199", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["However, a may also occur when, as in the instant case, the landlord does not have legal authority to rent the premises (see, H.B.A. Realty Co. v Miller, 14 AD2d 607 [1961], supra [\"The plaintiff having purported to lease to the defendant property he claimed to possess, but, actually over which he had no control or right to lease, constituted constructive eviction\u201d]). Having leased her apartment without coop board approval the defendant willfully caused plaintiff to be subjected to harassment from the Fleetwood Board and threatening letters from their attorneys."], "id": "e4554764-4f20-4428-8677-ffa9f7986e9c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case, the verdict of a jury has established the fact of a from the premises in dispute, and notwithstanding the doubt of the learned appellate court of the first instance as to the rule of law, I incline to the belief that cases of this character must hereafter be decided upon the distinctive facts as presented by the whole evidence in each particular case."], "id": "0e62630b-a992-4b8a-adfd-4c2620bd9353", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Pursuant to RPAPL 745 (2) (a) (ii), at the second of two adjournment requests made by a tenant, or on the 30th day after the first appearance of the parties in court (less any days that the proceeding was adjourned at the request of the petitioner), the court can direct the tenant to pay the landlord use and occupancy unless the tenant can establish, at an immediate hearing, that it has properly interposed a defense of actual eviction, actual partial eviction, or and the tenant has quit the premises. RPAPL 745 (2) (a) (ii), however, is inapplicable in the case at bar since December 10, 2012, when the parties entered into the so-ordered stipulation in which tenant agreed to pay use and occupancy, was not the second of two adjourned dates requested by tenant, and 30 days had not elapsed within the meaning of RPAPL 745 (2) (a) (ii), as all of the adjournments except for one had been consented to by the parties (see Allmen v Andre, NYLJ, Apr. 8, 1998 at 30, col 1 [Civ Ct, NY County 1998]). Moreover, the December 10, 2012 so-ordered stipulation did not provide for the striking of tenant\u2019s pleading in the event of a default, and the court does not have the inherent authority to grant that relief absent such a provision. Consequently, the Civil Court improperly dismissed tenant\u2019s second amended answer and af*7firmative defense, and awarded landlord a final judgment of possession and the sum of $33,280, pursuant to RPAPL 745 (2) (c) (i)."], "id": "59d695ab-583d-450d-9f9a-8ddbb416ded0", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In her appellant's opening brief, Salima concedes that the trial court *552correctly accepted Knight's argument that there can be no claim for breach of the covenant of quiet enjoyment in commercial tenancies, but she argues the trial court erred by granting summary adjudication because her complaint alleged, and she presented evidence to support, a claim. Although we note that her concession was misguided-every lease, including a commercial lease, includes an implied covenant of quiet enjoyment, although the covenant may be waived in commercial leases ( Civ. Code, \u00a7 1927 ; Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1191, 122 Cal.Rptr.3d 417 ; Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 512-513, 33 Cal.Rptr.2d 572 )-we conclude the trial court's grant of summary adjudication nevertheless was proper."], "id": "9899b8fc-454f-4dae-8ae3-735755656097", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Until several recent cases it was generally held that no could be found if the leasehold had not been totally abandoned. Therefore, even where the tenant was constructively evicted only from part of the premises, the tenant would have to abandon the entire premises in order to have redress in a summary proceeding. Where the tenant had nowhere else to go, he or she was not only relegated to make do with only a portion of the premises, but was also relegated to a lengthy plenary proceeding for relief. Thus a landlord could create or allow a condition to render any part of the premises untenantable with impunity without any effect on the landlord\u2019s ability to collect rent. The Appellate Division, First Department, in the case of Minjak Co. v Randolph (140 AD2d 245, 248 [1988]), however held that \"the tenants were *46entitled to avail themselves of the doctrine of constructive eviction based on their abandonment of a portion of the premises.\u201d Minjak involved a commercial lease for loft space, used for combined commercial and residential purposes, in which the tenant was unable to use that portion of the space set aside as a music studio due to dust and other problems created by petitioner\u2019s construction in the building. In holding that relief was available for partial constructive eviction, the Minjak court carefully pointed out that the rule of constructive eviction \u2014 derived from Edgerton v Page (20 NY 281 [1859]) \u2014 is not that the tenant is barred from relief unless he has entirely abandoned the premises, but rather is barred from relief where he occupies the entire premises. As the Minjak court was ineluctably led to conclude, nothing in this rule is contrary to a holding that where a partial abandonment has been necessitated, there is a partial constructive eviction."], "id": "ce8a144c-753b-4d16-9a6c-39c7e0ecce09", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court of errors, in establishing this doctrine of , made no change in the law. They overturned no principle or rule established by previous decisions, but merely extended the application of an acknowledged principle, in a case which justified the extent to which they carried it. This was the view taken of the case by Nelson, J., in Ogilvie agt. Hull, (5 Hill, 54,) and by Bronson, J., in Gilhooly agt. Washington, (4 Com. 219.) It was entirely consistent with the existing law to hold that a landlord who compelled a tenant to abandon the premises demised, by acts which rendered the further occupation of them impossible, inconvenient, or useless, evicted the tenant as fully, to all intents and purposes, as if he *122had gone upon the premises and ejected him from the possession by force."], "id": "aca45c22-9d90-4126-a7ee-bc51d015c56a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is still a further answer to this defense. A , as claimed here, requires an abandonment of the premises without unreasonable delay. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247; Two Rector St. Corp. v. Rein, 226 App. Div. 73; Vessell v. Reisfield, 152 Misc. 464, 466; Spoken Realty Corp. v. Raddock, 150 N. Y. S. 2d 835; Bliss v. Clark, 104 Misc. 543, 545.) The landlords made it abundantly clear that they would consent to a rescission of the lease, and the tenants\u2019 offer to surrender, and the acceptance by the landlords placed the tenants under the obligation to relinquish possession of the premises. It is well established that the tenants were required to act promptly or else they forfeited the right of rescission. Continuance in *1080possession for a five and one-half-month period cannot he held to he a prompt act of acceptance. It is arguable that in the event of a claimed breach, the tenants could have waived their right to vacate, but assuming that a forfeiture did occur, the action of the tenants in holding possession for the period mentioned, and the continued payment of rent can be considered as a reinstatement of the lease with full force and effect as if no forfeiture had ever taken place. The tenants must exercise their option to abandon within a reasonable time after discovering the untenantable condition of the premises. Moreover, it is difficult for the court to believe that in the month of July, 1962, a lack of adequate heat would be seriously proposed as the basis of a constructive eviction and consequent abrogation of the lease."], "id": "a155c66e-006c-4c04-9400-f7419a0ff101", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In 1944 the Appellate Term, First Department, in the case of Peshkin v. Powell (182 Misc. 14) set forth the manner in which section 755 should be implemented. The court held (p. 16) that: \u201c The meaning of the words \u2018 constructively evict \u2019 the tenant from a portion of the premises is not clear. The common-law rule is that there may be no of a tenant from premises unless he abandons possession; and in the case of an actual eviction from a portion of the premises, payment of the entire rent is suspended. The legislative intent would seem to be that resort may be had to the statute only in a case where the tenant is deprived of the beneficial enjoyment of a portion of the premises. As the mere existence of violations not involving unlawful occupancy is no defense to an action for rent, resort to the statute by the tenant is an admission that the. rent is due. The rent should be deposited in accordance with the Act, leaving for trial the issue whether the tenant\u2019s proofs warrant a stay. If they suffice, a stay is ordered and payment is withheld from the landlord until compliance with the Department notice or order; if insufficient, the stay is denied and the landlord is entitled to a final order and judgment to be satisfied by the deposit and the payment of costs.\u201d"], "id": "bef023ed-d450-42e1-809b-ae5eea77b68a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The court is cognizant of the decision of the Appellate Term, First District, in 11 Welwyn Road Realty v. Goldfluss (191 Misc. 667) but believes that case does not prohibit application of the doctrine of forum non conveniens. In that case the court solely discussed the problem of the relationship of section 17 of the Municipal Court Code (venue) to section 6 of the Municipal Court Code (jurisdiction). The court did not discuss the concept of forum non conveniens, no defense of having been there interposed. In addition, in that case, the property involved was located in Great Neck, Nassau County, which county immediately adjoins New York City. No undue hardship, therefore, was imposed upon the parties to that action as would be imposed upon the parties in the case at bar where the property is located in the city of Binghamton, which is 200 miles from New York City."], "id": "39125640-4a1d-41c3-9909-f3daf5361522", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*512Nevertheless, the equitable precept has been consistently enforced that the tenant must leave the premises to avoid the payment of rent, if is claimed (City of New York v. Pike Realty Corp., 247 N. Y. 245; Matter of Westchester County Syndicate Corp. v. Menke, 250 App. Div. 782) and has been recently reaffirmed (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117). The defendant herein, therefore, could not remain in possession and not pay rent during the period of possession. On the plaintiff\u2019s complaint, therefore, judgment is awarded against the defendant in the sum of $1,200."], "id": "424434a8-f29b-4bcf-a30d-3951f23e5015", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is clear that the defense of a breach of the warranty of habitability is not available to respondent. The warranty of habitability contained in Real Property Law \u00a7 235-b is applicable only to residential tenants. But the landlord cannot recover the full amount of rent in a commercial setting if the tenant has been actually or constructively evicted from either the whole or a part of the leasehold (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]; Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370 [1917]). An eviction has *45been defined by the Barash court as \"a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises\u201d. (Barash v Pennsylvania Term. Real Estate Corp., supra, at 82.) An actual eviction takes place when acts of the landlord cause a physical expulsion or exclusion from the premises. A occurs when there is an abandonment by the tenant because the continued beneficial use of the premises is impossible. In other words, in an actual eviction the tenant is physically unable to occupy the space, but a constructive eviction happens because the tenant has been forced to vacate."], "id": "299836b2-f424-4c23-8c2f-2c3b0a6532cd", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*335Brady, J. \u2014 I still acibere to tbe opinion, expressed by me on tbe decision of tbe demurrer in tbis action, tbat tbe answer sets up facts wbicb are admitted to be true, and wbicb constitute a defence to tbis action. I also adhere to tbe opinion tbat tbis case is a mucb stronger one for tbe application of tbe doctrine of ' than Cohen v. Dupont (1 Sand. 260), stated in tbe opinion referred to. My understanding of Judge Daly\u2019s opinion is, tbat tbe defendant not having abandoned tbe premises during the quarter, be was not evicted constructively or otherwise, and is not discharged. In answer to tbat view, I state tbat, by tbe lease, tbe defendant was entitled to a renewal of bis term, wbicb be abandoned because of tbe acts set up in tbe answer ; and tbat if there was no abandonment during tbe quarf%-for wbicb tbe rent is alleged to have accrued, there was an abandonment of tbe premises for tbe further term to wbicb tbe defendant was entitled. I am not aware tbat any case has yet arisen in tbe courts, deciding tbe question directly as to when and under what circumstances tbe defendant must abandon tbe premises, to make an eviction perfect; although I think tbat in tbis case, as I have already stated, there was in fact an abandonment of tbe premises. I understand a tenant to abandon premises if he leave them before his term expires, or bis right to possession ceases, without reference to tbe precise time when tbat abandonment takes place. I also understand the abandonment to be perfect when a tenant, having a' right to a further term, leaves tbe premises upon tbe expiration of tbe original term, and that the rent accruing cotemporaneously with such abandonment does not change tbe relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. Tbe law does not regard tbe fractions of a day. It seems to be con ceded, tbat if the premises are abandoned before tbe rent becomes due, tbe eviction would b\u00a7 accomplished without reference to the part or portion wbicb bad expired of tbe period for wbicb tbe rent is claimed. In tbe case of Jackson v. Eddy and others, .cited by Judge Daly, tbe landlord tried to prevent further injury to bis tenant from tbe - causes complained of, and did so *336temporarily. In this case, tbe landlord neither did nor attempted to do anything, although often requested; but wantonly, maliciously and negligently permitted the continuance down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not in point on the question here censidered, in my judgment, although it shows an eviction to have resulted from acts of the landlord that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. \u2019Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On \u2022^.contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, in consequence thereof, was compelled to abandon the premises and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up, down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent in cases like the present is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises whilst they continue and before the rent accrues, in which case they become a bar. It follows, from this, that if the disturbance cease before the rent becomes due and while the tenant is still in occupation, the rent may be recovered ; and, with equal propriety, that if the disturbance continue during the whole period of a part of the term, during which rent accrues and down to the time the rent becomes due by the agreement, the rent cannot be recovered, inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof."], "id": "6bd489e2-eca4-493e-9cb2-0bc0c8990cdb", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Indeed, in the Jacobs v. Morand case, referred to in the above quotation, the Appellate Term, First Department, held that the presence of the water bugs and bedbugs did not constitute eviction, citing some earlier cases. The court refers to Vanderbilt v. Persse (3 E. D. Smith, 428), in which a bad smell in the pantry, the kitchen being too hot with the stove in it, bad smells from the front window, a stagnant pond of water near the place, bad smell from fish, and vermin in the bedrooms, were held merely to be \u201c matters that might have given some trouble to eradicate, but none of them can be held sufficient to relieve the tenant from his liability, or to come within the rule that defines an eviction.\u201d And, too, in Pomeroy v. Tyler (9 N. Y. St. Repr. 514) Chief Justice McAdam wrote \u201c that because the rooms occupied by him [the defendant] were overrun with vermin, to wit: bedbugs, cockroaches, croton water bugs, and red ants, making it inconvenient to inhabit the premises and render them untenantable, * * * did not constitute a of the tenant.\u201d Judge McAdam said that the inconvenience was \u201c one to which all more or less are subjected at times; but which, with ordinary skill and attention, may be abated by the tenant.\u201d"], "id": "1c3e9802-b521-4432-9de3-7a087764fc66", "sub_label": "US_Terminology"} {"obj_label": "Constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second defense and the two counterclaims are untenable. Concededly the rent reserved has not been paid. The tenant claims that the cellar (basement area) is not usable as an \u201c art gallery \u2019 \u2019 and is also nonusable because of overheating, with consequent monetary damages, and maintains that constitutes a partial eviction and breach of the covenant of quiet enjoyment. From time immemorial, the legal keynote has been that tenant must show an ouster or if the eviction is constructive, as it is here, an abandonment of the premises. is to be distinguished from a partial actual eviction, where there is a physical expulsion by the landlord from a portion of the premises. (Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624; 1 Rasch, Landlord and Tenant, \u00a7\u00a7 849, 871.)"], "id": "0ab57d4f-aa3e-4091-ba7d-89a83637ec06", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [". The statute, as it then existed, permitted the court to stay evictions for nonpayment of rent if conditions had been officially noted by a New York City agency which in the court\u2019s opinion constituted a \u201c \u201d; provided, however, that all past due rents and rents from time to time to become due thereafter were deposited with the Clerk of the court. Since then the statute has been amended to permit its application without the intervention of an official agency and to extend its effect throughout the State (L. 1969, ch. 820)."], "id": "5c5b5caa-1493-496a-83c0-5a99b1ad3352", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Number Violation Found Window cannot be readily opened....................... 9 Repair tile floor in bathroom........................... 4 Door not properly fitted............................... 4 Repair waste stopper in bathroom...................... 2 Concealed leak................ 2 Inadequate supply of cold or hot water.................. 2 Replace door saddle................................... 2 Replace glass in window............................... 2 Plaster walls or ceiling in apartment.................... 3 Repair flushing apparatus............................. 1 Plaster wall in public hall.............................. 1 Repair door frame.................................... 1 Repair hole in wood floor............................... 1 *956From the testimony and from the court\u2019s own observations, obtained on an inspection tour of the premises which is discussed below, the court is convinced that the afore-mentioned conditions, found by the inspector are not of such a magnitude, individually or collectively, as to constitute a danger to the life, health or safety of the tenants. Neither are the individual conditions sufficient to constitute a so as to bring the petitioners within the purview of relief afforded by section 755 of the Beal Property Actions and Proceedings Law."], "id": "36e5f117-71ae-4591-9150-e1ed53733964", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To argue as the counsel for the defendant does that \u2018 \u2018 continuous possession under the agreement will be necessarily implied unless it were specifically negatived in the petition for some reason \u201d is to extend the rule beyond its proper scope. In any event, an actual partial eviction as distinguished from a is not inconsistent with possession, nor would possession by the tenant be a defense thereto (Seigel v. Neary, 38 Misc. 297, supra, and see Harfried Realty Co. v. Spuyten Amusement Corp., 150 Misc. 904, 905). Nor would an actual eviction which occurred on only one day in October followed by the resumption of possession by the tenant be a defense to a proceeding for the nonpayment of rent in November (cf. Kermacoe Realty Co. v. McKenna, 132 Misc. 293; Peerless Candy Co. v. Halbreich, 125 Misc. 889). Thus, there are triable issues which cannot be determined upon affidavits alone. Motion denied."], "id": "df220489-fa10-4d9e-8087-72475fc2d175", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The question before me then is whether the tenants\u2019 proofs warrant a stay until all the orders have been complied with and *963the violations removed. In my opinion the conditions upon which the violations were grounded were \u20181 \u201d violations. The conditions I found made the premises uninhabitable in accordance with civilized standards of decency and should be rectified immediately. They were obviously the result of consistent neglect and indifference on the part of the landlord over a long period of time."], "id": "e581011c-0410-42db-8783-ec1bb71ed2c4", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["At common law, a resulted when, through some act or failure to act on the part of the landlord, a tenant was deprived of the beneficial use of the premises and was forced to vacate the same. The defense of constructive eviction could not be raised to an action for rental nonpayment unless the tenant actually surrendered the premises to the landlord. To ameliorate the harshness of this doctrine, section 755 of the *496Real Property Actions and Proceedings Law was enacted. It provides that in a summary proceeding for nonpayment of rent the tenant of a building or part thereof used for dwelling purposes may avail himself of the defense of constructive eviction, although he retains possession of the demised premises provided conditions dangerous to life, safety or health exist therein."], "id": "de2329f8-335a-4f15-aeb5-a16989ccebc7", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To constitute a , the deprivation must be substantial and effectual. Not every deprivation of the beneficial enjoyment of the property in whole or in part amounts to a constructive eviction. (Lounsbery v. Snyder, 31 N. Y. 514; Bromberger v. Empire Flashlight Co., 138 Misc. 754.) In Seaboard Realty Co. v. Fuller (33 Misc. 109, 110) the court said: \u201c To constitute a constructive eviction, there must be an inten*466tional and injurious interference by the landlord, which deprives a tenant of the beneficial enjoyment of the demised premises, or materially impairs such beneficial enjoyment. An eviction depends upon the materiality of the deprivation. If trifling, and producing no substantial discomfort or serious inconvenience, it will be disregarded, and will not afford cause for termination of the relation of landlord and tenant.\u201d"], "id": "14475ceb-56b2-4176-a59b-3b253b293b06", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The rule in this State has been that in order to establish a cause of action for breach of a covenant of quiet enjoyment, the tenant must show either that he has been ousted from the premises, or that there has been a through some happening which effectively deprived the tenant of the *577use of the premises, as a result of which he is compelled to abandon it. The corporation contends that in this case, since there has been neither an eviction nor an abandonment of the apartment, the plaintiff cannot maintain a claim for breach of the covenant of quiet enjoyment. It cites Herstein Co. v. Columbia Pictures Corp. (4 N Y 2d 117) in support of the proposition that a plaintiff cannot claim constructive eviction unless he has actually abandoned the premises. (See, also, Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77; Rasch, Landlord and Tenant [2d ed.], \u00a7 925.)"], "id": "86bcfe84-26b0-42f7-bbb4-c76f0a7feeec", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Moreover, article 26 of the April 17, 1980 lease provides: \"No act or omission of Lessor or its agents shall constitute an actual or , unless Lessor shall have first received written notice of Lessee\u2019s claim and shall have had a reasonable opportunity to meet such claim\u201d. Under the term of this paragraph no eviction of the tenant could take place in the absence of adequate notice to the landlord affording the landlord a reasonable opportunity to cure the circumstances *26giving rise to the alleged eviction. While tenant claims that the eviction occurred in October of 1983 when the locks were changed, it is conceded that no written notice was given by tenant to landlord until November 30, 1984. That notice, although referring to the change of the locks, did not contemplate a cure of the acts claimed to constitute an eviction, but rather assumed the alleged eviction to be incurable. In light of the posture adopted by the tenant, landlord\u2019s delay in forwarding the key cannot be deemed unreasonable."], "id": "ba85f968-72bc-4299-a4e2-3b6f2e7e69de", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The fact that the premises were untenantable or unfit for occupation was, at common law, no defense to an action for the rent, where the lessee covenanted to pay rent, or was in possession as occupying tenant of the premises. Under the statute of 1860, (c. 345,) modifying this rule of law, it is a prerequisite that the tenant has abandoned the premises, and no longer holds them as occupant in any manner; and said statute applies only in case the building became untenantable from a cause not existing till after such tenant commenced his \u201cterm\u201d of tenancy embracing the rent sued for. Bloomer v. Merrill, 1 Daly, 485. The guaranty in the preceding sealed lease, if any there was, related to the then state of the premises at the making of such preceding lease; and was, furthermore, not the plaintiff\u2019s guaranty, but that of John C. Hays individually. The alleged paroi agreement, subsequent to the making of said lease for the first term, to have said premises again only conditionally upon an alteration of the drainage arrangements, was with the lessor\u2019s agent; and no authority in such agent to make any such agreement was shown on the trial so as to bind the present plaintiff. There was, besides, no relation of agent and principal between \u201cGuerineau and Drake, and Cornelia G. Hays,\u201d plaintiff herein. The agents were to communicate with Mr. Hays, who was not the \u201cowner, \u201d to make any disposition of the premises for the succeeding year. Notwithstanding that no changes were made in the sewer or drainage connections, the defendant stayed in the house as an occupying tenant, after-May 1,1887; and he cannot destroy now the characterization he thereby placed on the state and condition of the premises as regards their tenantableness, nor can he controvert the legal effect of such holding over, that the \u201cowner\u201d may elect to treat him as a \u201ctenant\u201d for a year, liable for the rent accordingly,instead of as a \u201ctrespasser.\u201d Not having been expelled from the premises, nor having abandoned the same, the tenant cannot insist on a , or claim damages against this plaintiff, neither with respect to the holding under the sealed lease, nor as regards the new term for another year under the \u201cowner, \u201d created by operation of law. Edwards v Candy, 14 Hun, 596, 598. The supposed actual surrender was not accepted, and is insufficient. Long v. Stafford, 103 N. Y. 283, 8 N. E. Rep. 522. The landlord is no insurer of the \u201c tenantableness\u201d of the house demised. A tenant, taking premises either originally or on a renewal, must look and judge for himself. The rule is, caveat ern/ptor. Chappell v. Gregory, 34 Beav. 253; Erskine v. Ad*387eane, 6 Moak, Eng. R. 594, 598; Cleves v. Willoughby, 7 Hill, 86; Hart v. Windsor, 12 Mees. & W. 68; Keates v. Cadogan, 10 C. B. 591; Robertson v. Tug Co., 46 Law T. (N. S.) 146. The landlord is not impliedly bound to keep the demised dwelling-house in repair as let unto defendant, or to improve the same, but*a direct covenant so to do it necessary to hold such landlord (either Mr. Hays, or, since the term of former lease, the plaintiff) to damages for any injurious consequences. Witty v. Matthews, 52 N. Y. 514; Murray v. Mace, 8 Ir. C. L. 400, 401; Post v. Vetter, 2 E. D. Smith, 248; Mullen v. Rainear, 45 N. J. Law, 520, 523; Reg. v. Bucknall, 2 Ld. Raym. 804; Taylor v. Whitehead, 2 Doug. 749; Colebeck, v. Girdlers Co., 1 Q. B. Div. 234. Says Lord Mansfield, in Taylor v. Whitehead: \u201cThe common law is, he who has the use of a thing ought to repair it.\u201d Mere omission to abate the objectionable state of things, though a nuisance, where tenant has the possession, is insufficient to render the landlord responsible to the tenant. Wenzlick, v. McCotter, 87 N. Y. 127; Howard v. Doo'ittle, 3 Duer, 464, 474, 476. The plaintiff was not in any way liable to defendant for a bad state of drainage-pipes of the house in question, Coddington v. Dunham, 3 Jones & S. 412; Loupe v. Wood, 51 Cal. 586; Ivay v. Hedges, 9 Q. B. Div. 80; Gott v. Gandy, 2 El. & Bl. 847. \u201cFraud apart, there is no law against letting a tumble-down house; and the law of easements (given for value or otherwise) is, the grantee or holder of the easement had to repair the subject of the easement, with a right of entry so to do.\u201d Robbins v. Jones, 15 C. B. (N. S.) 240, 244. The tenant\u2019s remedy is therefore only on his contracts. Id. Lessor is never liable, (without an agreement,) though he have full notice of the need of repairs. Brewster v. De Fremery, 33 Cal. 341, 343, 347. A tenant cannot complain that the building was not constructed differently. Woods v. Cotton Co., 134 Mass. 357. In conformity with the foregoing authorities, it was therefore properly held in Chadwick, v. Woodward, 13 Abb. N. C.441, as follows: \u201cThe roof of the house may leak, flues may smoke, etc., and no claim for tenant\u2019s consequent ill health, or for sickness in his family, is ever thought of; but if a pipe becomes deranged or is defective, a different rule is claimed. Tenants hire with a knowledge of the sewer connections existing, and may examine them; and these are no more concealed than may be said of the inside brickwork and nearly every portion of a substantial house.\u201d \u201cThe party hiring can have as much knowledge as the lessor; the pipe fittings are no more open to the landlord then to the house-hunter.\u201d \u201cDefects in plumbing are like defects in flues,\u2014for which latter a liability never exists on landlord\u2019s part, (in the absence of binding covenant or agreement,) even if he be aware thereof.\u201d And on the appeal to the court of common pleas, in same case, (Chadwick v. Woodward, 12 Daly, 399,) it was further held that the damages claimed, for that tenant and his family were made ill by bad sewerage, besides injury to him thereby in alleged loss of business, were too remote on behalf of the occupying tenant for any recovery, even where the landlord has covenanted or agreed to repair. Also see Mayne, Dam. 26; Middlekauff v. Smith, 1 Md. 329, 343; Dorwin v. Potter, 5 Denio, 306, 308; Academy v. Hackett, 2 Hilt. 218; Arnold v. Clark, 13 Jones & S. 256, 257. The landlord being, as above remarked, no insurer of the tenantableness of the dwelling-house in question, wholly demised to and in the continuous possession of defendant, and the landlord being by the demise or afterwards under no obligation to repair, and by implication of law a new term for another year from May 1, 1887, having then arisen in favor of this plaintiff, (as then \u201cowner\u201d of the premises,) who never contracted or guarantied concerning the premises, the defendant was bound to actually leave and abandon the premises promptly, (i. e., within a reasonable time after the occasion,) for \u201cuntenantableness,\u201d in order to make out a defense against further rent. This was, however, a case of a bad construction of the house as taken, and not one where the premises became untenantable after the letting by a subsequent cause. Under Francke v. Youmans, 17 *388Wkly. Dig. 252; Cowie v. Goodwin, 9 Car. & P. 378; Thomas v. Nelson, 69 N. Y. 121,\u2014the act of 1860 did, therefore, not apply herein. Hence the tenant had the premises at his hazard, and therefore must pay all the rent. There was no undertaking on the landlord\u2019s part to repair."], "id": "c6892eac-86a5-4a4b-9f3f-e202b7a31f6b", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The circumstances relied upon in this case have generally been governed by the rule of . (Cf. Sully v. Schmitt, 147 N. Y. 248 [failure of the landlord to repair open sewer under leased] premises; Tallman v. Murphy, 120 N. Y. 345 [defects in heating, water and sanitary equipment] ; and see Edgerton v. Page, 20 N. Y. 281 [defective waste pipes due to negligence of landlord]; November v. Wilson, 49 Misc. 533 [App. Term, dampness, leakage of water, negligent management of boilers and other machinery]; Krausi v. Fife, 120 App. Div. 490 [defective plumbing causing upflow of sewer gas]; O\u2019Gorman v. Harby, 18 Mise. 228 [App. Term, defects in boiler, insufficient heat due to stoppage in return of steam by reason of \u201c faulty construction, accident or mismanagement\u201d by landlord\u2019s agents] ; Jackson v. Paterno, 58 Misc. 201 affd. 128 App. Div. 474 [failure to supply adequate heat]; Self Service Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774 [defective piping, water and disposal facilities causing water flow due to negligence of landlord].)"], "id": "eb76449b-7737-424e-b52c-73c119ce7778", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the question of , it will not be necessary to pass upon this point at this time, although defendant has submitted several citations including: Schulte Realty Co. v. Pulvino (179 N. Y. S. 371); Ben Har Holding Corp. v. Fox (147 Misc. 300); Bromberger v. Empire Flashlight Co. (138 Misc. 754); Sully v. Schmitt (147 N. Y. 248); Real Property Law (\u00a7 227)."], "id": "4143b309-fad7-4f1a-af5f-1bb82c737477", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A similar situation also existed in Hancock Construction Co. v. Bassinger (198 N. Y. Supp. 614, not officially reported), where the Appellate Term, First Department, held that bedbugs which came from behind the moulding on the wall, out of the cracks, and from behind the wooden panels, so numerous that they got into defendant\u2019s clothes and habitually accompanied him to his business office downtown where \u201c an inquisitive bedbug would come forth from some secret place, much to defendant\u2019s embarrassment; \u201d and that \u201c after each visit of the exterminators, there would be relief for a day of two, but then the reenforced army would come forth again with renewed vigor, and the defendant and his family would spend sleepless nights as they were unable to get a resting place in the apartment where solitude and sleep could be enjoyed,\u201d was such an aggravated condition, \u201c evidently the result of negligence \u201d on the part of the landlord in not properly caring for its property, and subjected the defendant to such a \u201c disgusting experience of being overwhelmed by an army of vermin,\u201d as to make out a . The decision in favor of the defendant in that case rested upon the proposition that the defendant could not pull *303down the walls of the apartment to destroy the vermin. However, the court recognized that the defense of constructive eviction will not avail where the premises may be rid of the nuisance by some attention on the part of the tenant. The court said: \u201c It may well be that the presence of bugs and ants in an apartment, can, within certain limits, be controlled and remedied by the tenant, and which would not warrant the claim that the condition amounted to a constructive eviction, as was held in the case of Jacobs v. Morand (59 Misc. Rep. 200).\u201d (Hancock Construction Co. v. Bassinger, supra.)"], "id": "9d8639fa-f1d9-45e8-bc4d-b4cdf4337090", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The amended answer does not set up any counterclaim, but instead four separate defenses \u2014 a first separate defense incorporating the contention of a failure of consideration based upon the *326fact that the landlord failed to make certain decorations in and to the apartment, incorporating a further allegation of an offer to surrender; a second separate defense based upon the same allegations, alleging the depreciation in the value of the apartment, in which defense the defendant specifically states that a counterclaim under the head of this defense in this court would unjustly deprive this defendant of a substantial portion of his rights and remedies, and presenting a conditional offer on the part of the defendant to plead said facts as a counterclaim provided the action is removed to the Supreme Court; the third defense, consisting of a ; and a fourth defense purporting to be a claim of fraudulent representation constructed out of an allegation that the landlord never intended to make the alterations and repairs and induced the defendant to enter into the agreement, falsely representing that such decorations would be made."], "id": "cb9dfff6-7fdf-44e1-a6a1-d7408bc6289c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The statute by its 1969 amendment makes the question of and removal from the premises academic, for it gives as a further ground that the premises \u201cis or is likely to become, dangerous to life, health, or safety \u201d. In addition, the law is further expanded so that the limitation of a filed or recorded violation is no longer a necessary prerequisite. Subdivision b of section 755 of the Real Property Actions and Proceedings Law states, \u201cproof of the existence of a condition\u201d will be sufficient."], "id": "1050b334-a5a4-4cea-89c3-aefb7c013745", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cAs a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for quiet enjoyment. * * * In other words, there must be an ouster, or a justified abandonment \u201d (Rasch, Landlord & Tenant [2d ed.], \u00a7 893). The record herein is devoid of a showing of actual or . The counterclaim also cannot be sustained on the theory of negligence. Even assuming negligence on petitioner\u2019s part, there is no evidence indicating that it was the proximate cause of the loss. V The rule is well-settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. If the matter is left in doubt, and it is just as probable that the accident was the result of one cause as the other, there is no *1091liability. In these circumstances a verdict holding defendant answerable to plaintiff would be based upon mere speculation \u2019 \u2019 (1 Warren\u2019s Negligence, ch. 5, \u00a7\u00a7 5.01, 5.10, pp. 130-131)."], "id": "01f38a20-5f13-47e9-820c-911431854b4c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Brady, J. I still adhere to the opinion expressed by me on the decision of the demurrer in this action, that the action sets up facts which are admitted to be true, and which constitute a defence to this action. I also adhere to the opinion that the case is a much stronger one for the application of the doctrine of than Cohan v. Dupont (1 Sandf., 260), stated in the opinion referred to. My understanding of Judge Daly\u2019s opinion is, that the defendant not having abandoned the premises during the quarter, he was not evicted, constructively or otherwise, and is not discharged. In answer to that view, I state that, by the lease, the defendant was entitled to a renewal of his term which he abandoned, because of the acts set up in the answer. And that if there was no abandonment during the quarter for which the rent is alleged to have accrued, there was no abandonment of the premises for the further term to which the defendant was entitled. I am not aware that any case has yet arisen in the courts deciding the question directly, as to when and under what circumstances the defendant must abandon the premises to make an eviction perfect, although I think that in this case as I have already stated there was, in fact, an abandonment of the premises. I understand a tenant to abandon premises if he leave them before his term expires, or his right to possession ceases, without reference to the precise time when that abandonment takes place. I also understand the *13abandonment to be perfect, when the tenant, having a right to a further term, leaves the premises upon the expiration of the original term; and that the rent accruing cotemporaneous with such abandonment, does not change the relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. The law does not regard the fractions of a day. It seems to be conceded, that if the premises are abandoned before the rent becomes due, the eviction would not be accomplished without reference to the part or portion which had expired of the period for which the rent is claimed. In the case of Jackson v. Eddy, and others, cited by Judge Daly, the landlord tried to prevent further injury to his tenant from the causes complained of, and did so temporarily. In this case, the landlord neither did, nor attempted to do, any thing, although often requested, but wantonly, maliciously, and negligently permitted the continuance, down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not, in my judgment, in point on the question here considered, although it shows an eviction to have resulted from acts of the landlord, that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On the contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, was compelled, in consequence thereof, to abandon the premises, and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent, in cases like the present, is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises while they continue, and before the rent accrued, in which case they become a bar. It follows from this, that if the disturbance cease before the rent becomes due, and while the tenant is still in occupation, the rent may be recovered. It also follows, with equal propriety, that if the disturbance con*14tinue during the whole period of a part of the term during which rent accrues, and down to the time when the rent becomes due by the agreement, the rent cannot be recovered; inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof."], "id": "0d38764a-511c-4e7d-a75a-65aa46cc6af8", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We regard cases as containing the evidence-of the law, as evincing the rule of decision; and they are consulted to ascertain the principle on which that rule is founded. The review of the cases now made, shows that the principle on *733which a tenant is required to pay rent, is the beneficial enjoyment *of the premises, unmolested in any way by the landlord. It is a universal principle in all cases of contract, that a party who deprives another of the consideration on which his obligation was founded, can never recover damages for its non-fulfilment. The total failure of the consideration: especially when produced by the act of the plain- . ,.f , \u201e ' , . , . tiff, is a valid defence to an action, except m certain cases, where a seal is technically held to conclude the party. This is the great and fundamental principle which led the courts to deny the lessor\u2019s right to recover rent where he had deprived 4he tenant of the consideration of his covenant, by turning him out of the possession of the demised premises. It must be wholly immaterial by what acts that failure of consideration has been produced; the only inquiry being, has it failed by the conduct of the lessor ? This is a question of fact, and to establish it, the proof offered in this case was certainly competent. I do not feel called upon to say that those facts would have been alone sufficient. Of that the jury were to judge, at least, in the first instance; and the question whether they amounted to a full and complete legal defence, might have been presented in another shape. The only question for our decision is, whether that testimony ought to have been received at all ? Believing that it tended to establish a and expulsion against the consent of the tenant: that it tended to prove a disturbance of his quiet possession, and a failure of the consideration on which only the tenant was obliged to pay rent, I am of opinion that it ought to have been re-\u201e ceived; and that, therefore, the judgment of the supreme court should be reversed, with directions to issue a venire de novo."], "id": "f1d31678-1e05-4225-aba6-5f58866ce47a", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["However, I do not rest my decision on that ground in view of the decision of the New York Court of Appeals in Barash v. Pennsylvania Term. Real Estate Corp. (26 N Y 2d 77). Although the facts of the Barash case do not preclude such a finding, the wording of the opinion plainly suggests a disposition to define actual eviction rather narrowly. I therefore turn to consider the status of partial under New York law."], "id": "999e5daf-992a-4b6b-b384-a4cec3c430d7", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Although the tenant was not physically barred from using the area in question, its access to its loading dock and the *316availability of more than one half of its parking spaces was severely restricted by the other tenant\u2019s loading dock and truck deliveries. The landlord\u2019s failure to protect the tenant\u2019s access for loading and unloading of trucks making deliveries and for its parking spaces was a breach of its obligation to the tenant under the lease and a partial (KRU, Inc. v 1000 Massapequa, 238 AD2d 314)."], "id": "947572a4-9aac-4407-9196-3efff5783927", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There are circumstances which may justify a tenant to abandon the premises and from the evidence in this case it would seem that the justice very properly found that there was a . To render eviction from the premises a valid defense it must have taken place, however, before the rent became due. (Giles v. Comstock, 4 N. Y. 270.) Under the terms of this lease, the rent became due on the first day of January, ten days before the defendant abandoned the premises. It is not disputed that the defendant abandoned the premises on the tenth day of January and that no rent was paid for the month of January or any part thereof. It follows, therefore, that the judgment was- contrary to and against the weight of evidence."], "id": "91ed596e-8085-4ae1-b0aa-afc471a7afc0", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*1023nation with respect to interest and the trial court retained jurisdiction to fix interest at the statutory rate (Kiker v Nassau County, 85 NY2d 879). We also note that our order of modification provided for a new trial on tenant\u2019s claim, and necessarily contemplated the entry of an amended judgment (see, Solow v Wellner, 86 NY2d 582, 589, supra)."], "id": "3e5c05b1-05af-48cd-a27b-d75e269b1671", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The answers of the tenants are similar. In addition to a general denial, they interpose two separate defenses. The first defense alleges that the rental value of the premises is in the sum of $5 less than claimed by the landlord because of a diminution of services and equipment furnished to the tenant by the landlord as compared with the services and equipment furnished *768on March 7, 1943; and that the said diminution is in contravention to the Housing and Rent Act of 1947, as amended (U. S. Code, tit. 50, Appendix, \u00a7 1881 et seq.), and the regulations pertaining thereto. The second separate defense alleges violations constituting a ."], "id": "9045240d-49f7-4eea-998a-21a959391396", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The main issue concerns defendants\u2019 affirmative defense of . The defendants \u2019 entered into a lease with plaintiff, dated May 12,1959 for a period beginning July 1,1959 and expiring September 30, 1962. The lease covered a luxury apartment and the rent payable is $172.50 per month. Defendants\u2019 moved out of the apartment during the latter part of September, 1960."], "id": "60a5bfe5-5f03-4033-b5f9-41629ea95c34", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["What constitutes a. is generally a question of fact. \u2018 \u2018 It must appear that the landlord has persistently neglected his duty, and that the premises thereby become unfit for occupancy. A series of petty inconveniences, such as failing to light halls * * * are not sufficiently serious to warrant a claim of constructive eviction \u201d, (1 Rasch, \u00a7 886.)"], "id": "d6f88b31-edc0-41df-aa9b-ea4d8ff3bb90", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is axiomatic that a tenant must pay the rent as a condition precedent to asserting or a breach of the covenant of quiet enjoyment as a defense to a summary proceeding based on nonpayment of rent, or as a counterclaim, or as a separate action for damages. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Mosbacher v. Cleaners Enterprises, supra.) Tenant must show that it has performed the conditions precedent on its part to be performed, which it has not done here since the tenant has not made payment of the rent. (Silken v. Farrell, 281 App. Div. 718; Meyer v. Schulte, 160 App. Div. 236, affd. 213 N. Y. 675; Baitsel v. Rhinelander, 179 App. Div. 735.)"], "id": "93e42879-8760-460a-8874-cfd043d5dee6", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If, on the other hand, the right appurtenant did pass to the tenant in these proceedings, there was no actual eviction. There can be no actual eviction except from premises actually possessed. An infringement of an appurtenant right by the landlord, if of a substantial nature, may amount to a , which the tenant may avail himself of only on moving out of the premises."], "id": "09d07352-3ca6-45d8-ac2b-e0f087ae527c", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*304In the case at bar the court is merely concerned with the proposition of whether a few crickets in the tenant\u2019s premises, under the circumstances testified to, may be legally classified among the various types of creatures known to be noxious or mischievous, and commonly referred to as vermin or pests, the presence of which will, in law, constitute a ."], "id": "236e9c7d-f9ce-49e4-a330-4003238f6fee", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Under different, yet also helpful facts, in Downtown Realty, Inc. v. 509 Tremont Bldg., Inc. , our sister court found that a landlord's failure (i.e. omission) to repair the heating and air conditioning sufficiently material to constitute in a commercial context where oral and written notifications began months before the tenants abandoned the premises. 748 S.W.2d at 310-11, 312."], "id": "82fc3b9a-3fa5-42e1-b37f-0ee80763c7ff", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The act of the landlord must cause an actual eviction and physical expulsion of the tenant from all or part of the leasehold or such material deprivation of the beneficial use and enjoyment of possession in all or a significant part of the leasehold as to justify the tenant\u2019s abandonment thereof. In an actual partial eviction, the tenant may continue in possession of a part of the leasehold while a requires a surrender and abandonment of possession. (Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77, supra; Pasqua v. DeMarchi, 31 A D 2d 781; 300 West 56th St. Corp. v. Kelly, 153 N. Y. S. 2d 978; Malek v. Perdina, 58 Misc 2d 960; Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624; Matter of Siegel v. National Bead & Stone Co., 37 Misc 2d 297.) (But, cf., East Haven Assoc. v. Gurian, 64 Misc 2d 276 [Civ. Ct., N. Y. County], [new doctrine of partial constructive eviction].)"], "id": "675578f8-5012-4284-82eb-704d0460d4f3", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["As to the alleged condition with respect to the toilet facilities, the court agrees that continued failure of the landlords to provide sanitary toilet facilities for the tenant\u2019s employees may ground a claim for . The cases cited by the defendant (Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624 [decided by this court]; Self Service Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774, and West 30th St. Parking Corp. v. Sobel, 21 Misc 2d 274) do not sustain the claim of actual partial eviction but they do support the defendant\u2019s contention that the landlord\u2019s failure to supply sanitary toilet facilities for the tenant\u2019s employees may constitute constructive eviction, and with this contention the court agrees. However, it is well settled that the tenant cannot claim constructive eviction without abandonment of the premises. (Boreel v. Lawton, 90 N. Y. 293; Mosbacher v. Cleaners Enterprises, supra and eases there cited.)"], "id": "ab582dcc-86d3-442e-a0de-36f54dc2df73", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This does not dispose of the counterclaim in the defendant\u2019s answer. If a tenant is constructively evicted, there is a failure of consideration (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370, supra). It follows that payment of security for future installments of rent would be recoverable, if , coupled with actual abandonment of the premises, were established. Foul and offensive odors may be the foundation for constructive eviction (Barnard Realty Co. v. Bonwit, 155 App. Div. 182; cf. Tallman v. Murphy, 120 N. Y. 345; Tallman v. Earle, 3 Misc. 76; Sully v. Schmitt, 147 N. Y. 248; Lathers v. Coates, 18 Misc. 231). Here there was a written lease, stating in part that the landlord covenanted that the tenant would \u201c peaceably and quietly have, hold and enjoy the said demised premises \u201d, that the tenant was to use the premises exclusively for a private residence, that the landlord was to have the plumbing works, and fixtures, and other named appliances in good order when giving possession to the tenant, and that the landlord would deliver the premises in a broom clean condition. Although no covenant of habitability shall be implied from a landlord-tenant relationship (Franklin v. Brown, 118 N, Y. 110), such a covenant may be implied from the terms of a lease to the effect cited (Daly v. Wise, 132 N. Y. 306, 309-310; see Ann. 4 A. L. R. 1453,1455; cf. Mutual Life Ins. Co. v. Winslow, 183 Misc. 754). The instant lease stipulated a rental indicating premises of a character inconsistent with the condition which the tenant discovered. Moreover, the acts of the landlord and her employee in attempting to cure the condition are significant evidence of a recognition of an obligation under the lease (Zimmermann v. Roesseler & Hasslacher Chem. Co., 246 App. Div. 306, 315, affd. 272 N. Y. 566; Matter of Mencher [Geller & Sons], 276 App. Div. 556, 565)."], "id": "bc7c1acd-1553-410f-914f-b8397b8bf9c2", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second factual assumption was that a tenant whose apartment had ceased to be habitable could readily move to a suitable apartment maintained in accordance with the law. The sustained and severe housing shortage dating from World War II and the accompanying deterioration of much of our housing supply, have surely rendered an illusory protection for the urban tenant \u2014 and especially for the poor tenant. The language in the Davar opinion suggesting that tenants could simply *20move and then defend against rent proceedings has a nostalgic flavor today."], "id": "8ecfd3ed-2511-4c77-985d-b933db196415", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The majority finds a although the trial court did not make any such factual finding. A constructive eviction requires a showing that the tenant abandoned the premises due to the wrongful acts of the landlord which deprived it of the use and enjoyment of the premises. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77.) There was no physical abandonment of the premises by the tenant, only an alleged delay in opening the restaurant. Renovations were continuing during the period in dispute which indicated an intent to remain rather than to abandon the premises. Furthermore, the abandonment must take place without unreasonable delay, a fact not present here. (GSL Enters. v Bella Carla Fashions, NYLJ, Aug. 28, 1996, at 22, col 2.)"], "id": "b98009d9-eb3b-4ca3-8199-b0d8abecd4a4", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["New York City Housing Auth. v. Jackson (58 Misc 2d 847 [Civ. Ct., Bronx County, another case cited by the defendant]) involved a summary proceeding for nonpayment of rent brought by the Authority against 53 tenants who urged as a defense the alleged failure of the petitioner to supply adequate protection against criminal activity in their project. The court in that case found insufficient support for the technical defense of an alleged . It is on that ground alone, readily distinguishable from the tort here. However, I can and do take issue with any conclusion that the Jackson case is authority for a rule that the Housing Authority has no obligation in any circumstances to provide police protection. The court in Jackson (p. 850) found no proof that isolated acts, widely separated in time \u201c could reasonably have been anticipated so as to impose a duty upon the landlord to increase existing security measures.\u201d The facts here beyond question point the other way."], "id": "6f2a36a4-c82e-484e-918c-1dd5c2fbc2ee", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In opposition to Knight's motion, Salima argued that she was lawfully in possession of the premises, and retained all legal rights of possession up to the time she was dispossessed following the completion of the unlawful detainer process. With regard to the conversion claim, Salima argued that Knight's defense that Salima had abandoned her property was legally deficient because her claim was based upon environmental contamination, and that the act of conversion was completed when her medical equipment and supplies were contaminated as a result of the raw sewage spill. She also argued that the abandonment defense was factually deficient because Knight failed to show that she complied with statutory notice requirements that apply when premises are vacated. With regard to the breach of the covenant of quiet enjoyment claim, Salima agreed with Knight's assertion that this kind of claim does not apply to commercial properties, but argued that the allegations of the claim adequately pleaded a claim for ; she asked the court to ignore the label of the claim and treat it as a claim for *845constructive eviction. Addressing the nuisance claim, Salima argued that Knight's illegality argument was baseless, and that there were disputed factual issues raised by Rahim's testimony. Salima argued that the negligence/strict liability claim could not be resolved on summary judgment because there was evidence that Knight was given notice of plumbing problems in the past, and was given notice of the sewage issue immediately after it occurred. With regard to the contract interference claim, Salima argued there were factual disputes regarding Knight's knowledge of the sale and the fact of the sale; she noted there was a signed contract for the sale, and that her deposition testimony that she did not sell her practice was of \"no moment\" because she was not involved in the business end of the practice. Finally, Salima argued there were no grounds to grant summary adjudication of the section 17200 claim because it is based upon her other claims, all of which should survive summary adjudication."], "id": "d5fe55fa-e765-40e3-836e-f3ff1c0fe84f", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Plaintiff-landlord\u2019s remaining cases are clearly distinguishable. In Stein v Rice (23 Misc 348) a residential summer cottage lease contained no provision that premises were in good condition (sufficient water supply) and alleged constructive conviction occurred 17 days after final rent installment was due. In Fermaglich v Warshawiak (42 Misc 2d 1077) landlord of a residential apartment offered after IV2 months to accept surrender but tenants remained in possession for an additional 516, months. In Ernst v Wheatley (93 NYS 1116) tenant remained in possession 20 days after storm\u2019s water flooding and damages, a single event, outside of landlord\u2019s control, as distinct from landlord\u2019s continuing wrongful act by omission herein. In Finkelstein v Levinson (supra, p 108) the court (Egeth, J.) in dicta recognized that noise could justify abandonment in these commercial premises, but there, in factual contrast to the instant case, tenant did not abandon any part or all of the leased premises (total abandonment herein) and landlord therein was faultless by first attempting to muffle sound and then tried to arrange agreement with overhead noisy tenant to operate printing presses at mutually convenient time (while landlord did little to soundproof though required under lease and nothing with neighboring noisy tenant herein)."], "id": "7c7b9df6-007c-449a-82a9-7e1fe932f1c9", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The fallacy of that argument is quite evident and manifest. Applying \u20181 common sense and common justice \u2019 a tenant deprived of the beneficial use and enjoyment of a portion of the demised premises cannot be placed in a better bargaining advantage than a tenant who is deprived of the beneficial use and enjoyment of the entire demised premises. For, if a tenant must abandon the demised premises to claim the benefits of a total , then, certainly, a tenant deprived of the beneficial use and enjoyment of a portion of the premises must either vacate the said premises or pay rent if he elects to remain in possession."], "id": "7a2600ce-9e27-4377-afe8-5636713fc56d", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The executrix contends that the landlord is not entitled to recover any sum at all from the estate because (1) there was a surrender and acceptance of the lease in fact; (2) there was a surrender and acceptance of the lease by operation of law; (3) there was a in January, 1960. While conceding that rent for the month of January was due in every event, the executrix states that the sum of $370 had been deposited with the landlord as security for the lease and that when this sum is applied to the rent, there is nothing owed by the estate."], "id": "937e6a8f-8bf8-4446-bebe-3d1074a1a333", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*731This distinction, which is as perfectly well settled,as any to be-found in our books, establishes .the great .principle \u2022thatfa tenant shall not be required to pay rent, even for the part of-the premises which he retains, if he has been evicted from the other part by the landlord. As to the part re-' tained/ihis is deemed such a disturbance, such an injury-to its beneficial enjoyment, such a .diminution of the,consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then/ is a case where actual entry and physical eviction are not necessary to exonerate th.e tenant from the payment of rent; and if the principle be correct as applied to a part of -the premises, why should not the same principle equally apply to the whole property demised, where there has been an obstruction fo its beneficial enjoyment, and a diminution,of the consideration of the contract, by the acts of the landlord, although those acts do not amount ,t,o a physical eviction? If physical eviction be not necessary in the one case, to discharge the rent of the part retained, why should it be essential in the other, to discharge the rent of the whol\u00e9 ? If I have not deceived myself, the dictinction referred to settles and recognizes the principle for -which th,e plaintiff m error contends, that there -may be a produced by the acts of the landlord."], "id": "0d5daa9c-328d-4962-afa6-90ee8d15d3b9", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The appellant contends that the trial court erred when, at the conclusion of the People\u2019s case, it allowed an amendment to the information so that the information, for the first time, specifically stated that there had been a . All of the authorities cited in support of appellant\u2019s contention, however, are cases wherein an indictment, and not an information, was sought to be amended and, consequently, are inapposite. There is a vast difference between an information and an indictment in that the latter depends for its validity upon a presentment by a body distinct and separate from the court, i.e., the Grand Jury. Except for changes of nonessential details, pursuant to statutory authority (Code Crim. Pro., \u00a7 293), or the addition of related counts (Code Crim. Pro., \u00a7 295-j), a court cannot usurp the authority of a Grand Jury by a unilateral amendment of an indictment (People v. Van Every, 222 N. Y. 74). Yet, the court can permit the amendment of an information even though the amendment affects a matter of substance (People v. Easton, 307 N. Y. 336). In the case at *475hand, however, the original information sufficiently stated the matters upon which the defendant was to be tried. The amendment strengthened the information, but, as the amendment was conclusory, it was not strictly necessary in order to sustain a subsequent conviction."], "id": "c5e499d2-0b5f-4a34-88cd-d6f252780680", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The respondent refused to make further rental payments to the city on the ground that the municipality had failed to provide him with adequate heating and plumbing services in violation of section 755 of the Real Property Actions and Proceedings Law and section 302-a of the Multiple Dwelling Law. In other words, these failures, according to the respondent constituted a from the premises and relieve him from his obligation to continue rental payments pursuant to the above-mentioned lease."], "id": "c74a3c1b-c2cf-43e8-ba40-173700c9b408", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cThere was no here because the tenant never did abandon the premises (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77), instead continuing its renovation on assurances from the landlord that the problem would be remedied. Nonetheless, as the trial court noted, there was a breach of the lease due to the landlord\u2019s renting of premises it knew to be untenantable. However, this does not automatically trigger a 100% rent abatement, because a tenant in possession still remains obligated to pay rent. Rather, the tenant\u2019s loss should be the difference between the value of the leased premises as they were intended and the value as a result of the breach (City of New York v Pike Realty Corp., 247 NY 245). The measure of such damages remains to be determined. (See, e.g., Greenblott v Catskill Off-Track Betting Corp., 215 AD2d 627; Ciraolo v Miller, 138 AD2d 443.)\u201d Another case having relevancy to the matter at bar on damages is Appliance Giant, Inc. v Columbia 90 Assoc., LLC (8 AD3d at 934), which held:"], "id": "844d6345-d945-425b-94cd-0090b0078536", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Granted, the fact that a tenant spends relatively little time in a regulated apartment may not alone suffice for a finding of nonprimary residence, at least in circumstances where the tenant\u2019s absence is attributable to a credible, excusable reason (see, Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946; Katz v Gelman, 177 Misc 2d 83; see also, Claridge Gardens v Menotti, 160 AD2d 544). Significantly, however, the tenant\u2019s attempts herein to explain away her limited use of the regulated apartment premises \u2014 centering largely upon an illusory theory based on claimed asbestos contamination \u2014 were flatly (and appropriately) rejected by the trial court. To the extent that tenant sought to justify her frequent and prolonged absences from the subject apartment on the basis of the itinerant nature of her singing career, her unsubstantiated assertions in this regard were not directly addressed by the trial court and, even if accepted, would provide no excusable reason for the tenant\u2019s demonstrated failure to regularly reside in the subject apartment during her stays in New York City."], "id": "27cc5b92-ad12-4a9e-9742-747a87b47eca", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner, 169 East 69th Street Corp., is a cooperative corporation and seeks a judgment of possession and a money judgment against respondent, Robert Leland, for maintenance, late fees and legal fees. In asserting the affirmative defenses of breach of the warranty of habitability and , respondent claims, inter alia, that a \"bright light\u201d cast by an illuminated awning erected by petitioner\u2019s commercial tenant of the street level floor, as well as renovations performed by this commercial tenant, amounted to a breach of the warranty of habitability. Respondent also disputes liability for late fees and seeks an award of counsel fees."], "id": "fc749ebc-37de-4765-bd18-3f19259ae4d3", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The difficulty with the reasoning of the Richburg court is that its logical basis harkens to common-law times, when the tenant\u2019s obligation to pay rent was entirely divorced from the landlord\u2019s duty to maintain the premises. As is stated in one treatise: \u201cAt one time, a lease was deemed to be the functional equivalent of a conveyance of land rather than a contract, so that the obligation of the tenant to pay rent was independent of the obligation, if any, of the landlord to maintain the premises in tenantable condition. This meant that, absent adverse conditions sufficiently severe as to constitute an actual or , the tenant was limited to whatever remedies were contained in the lease. As a result, such tenants generally could not use the withholding of rent as a weapon to compel the landlord to maintain building services. Although the law has changed little with respect to commercial tenants, the law has changed dramatically with respect to residential tenants. A residential lease is now, to a large extent, deemed to constitute a sale of shelter and services and contains an implied warranty of habitability.\u201d (7 Warren\u2019s Weed, New York Real Property, Leasing: Rights & Obligations, \u00a7 6.03 [3] [a] [4th ed].)"], "id": "c37b944f-0600-4c88-852b-280f7d7e88f9", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*444In the event that the traverse hearing is resolved in petitioner\u2019s favor, petitioner also moves to dismiss respondent\u2019s fourth affirmative defense which alleges that respondent was partially evicted from the premises as the result of an alleged water leak. A occurs when there is a \u201cwrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.\u201d (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82 [1970].) To establish a constructive eviction of the premises, the tenant must abandon the premises. (See Minjak Co. v Randolph, 140 AD2d 245 [1st Dept 1988].) In the instant case, respondent has sufficiently raised a disputed issue of fact as to whether it was constructively evicted from the premises. Respondent alleges that there were continuous water leaks at the premises which rendered portions of the premises unusable, that petitioner knew of the leaks and that pursuant to the lease petitioner is responsible for repairing the leaks. Petitioner claims that it had no knowledge of any alleged leaks and that pursuant to the lease it is not responsible for repairing the alleged leaks. Based on the evidence submitted, the court cannot determine as a matter of law whether the petitioner or respondent is responsible for repairing the alleged leaks pursuant to the lease. Since respondent has sufficiently established material issues of fact with regard to whether it was constructively evicted from portions of the premises, petitioner\u2019s motion to dismiss this affirmative defense is denied."], "id": "892f7afa-342d-49b6-b41a-eccb38bdb22b", "sub_label": "US_Terminology"} {"obj_label": "constructive eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*837The executrix also claims a from the apartment. \u2018A constructive eviction occurs only where, through the landlord\u2019s acts, the tenant has been substantially deprived of the beneficial enjoyment of the demised premises \u201d (2 McAdam, Landlord and Tenant [5th ed.], p. 1392) or where \u201c there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord \u201d (Tollman v. Murphy, 120 N. Y. 345, 351). The executrix testified to a number of omissions by the landlord which she claims had the cumulative effect of depriving her husband and her of the beneficial enjoyment of the premises and thus evicting her. Most of the matters are of minor importance. The painting and decorating of the apartment and finishing the floors were not completed until more than six weeks after they moved into the apartment. She complained of a failure to finish the closet floors, but there is no basis for finding that the landlord ever agreed to provide wood flooring in the closets. There were leaks in plumbing, temporary failure of an air conditioner, excessive moisture from an air conditioner and difficulties in ventilation of the kitchen, but it would appear that these minor matters were adjusted to the extent that the landlord was obliged to do so. There is no evidence that these conditions persisted up to the time of the abandonment of the premises."], "id": "d9f1ba5c-384b-4fe8-9437-f50d216808e9", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Moreover, there is some authority allowing this type of even as against residential occupants who are not tenants (see e.g. Almonte v City of New York, 166 Misc 2d 376, 377 [App Term, 2d Dept 1995], citing P & A Bros. v City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267 [1992] and Paulino v Wright, 210 AD2d 171 [1994])."], "id": "fc6a95ee-e750-42f5-85af-4d5e8d3c5e12", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Second, even if petitioner\u2019s lease request is not interpreted in the manner set forth above, the court rejects respondent\u2019s contention that petitioner did not become a permanent tenant under the RSC and therefore entitled to protection against *306 because she did not expressly request a lease of six months\u2019 duration. Respondent acknowledged its failure to comply with RSC \u00a7 2522.5 (c) (2), which required respondent to inform petitioner of her right to request a lease and to become a permanent tenant. As noted above, petitioner expressly indicated an intent to become a permanent tenant. The Appellate Division has made clear that section 2522.5 (c) (2) furthered the goal of the RSL and RSC \"of insuring that the rights of hotel occupants not be frustrated due to the occupant\u2019s ignorance of the law.\u201d (459 W. 43rd St. Corp. v New York State Div. of Hous. & Community Renewal, supra, at 514.)"], "id": "29ec8e92-d2e9-4c17-9085-c9f345d94183", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["We note that the posture of this litigation has changed since the motion court initially set the undertaking. By this decision, we have modified the injunction to permit the owner to enter the tenant\u2019s space to work on the elevator, and we have affirmed the motion court\u2019s judgment declaring that the owner is not entitled to engage in a . Accordingly, we remand the matter to determine what undertaking, if any, should be set on the tenant\u2019s preliminary injunction. The court should also determine whether, pursuant to CPLR 6314, the owner should be required to post an undertaking as a result of our modification of the injunction."], "id": "2c9a8199-7d4b-4602-9f9e-750f49b0b757", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case, it is undisputed that no force was used in the accomplished by respondent. Additionally, while self-help evictions are generally not sanctioned, in the case of residential tenancies, this tenancy had many characteristics of a commercial tenancy. Furthermore, no individual who was or claimed to be using the subject premises for living purposes was displaced as a result of respondent\u2019s self-help eviction."], "id": "e386d06a-c4fe-4986-aa8b-356744c52ff7", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In either event, the petitioner is entitled to continue her occupancy at the Y.W.C.A. residence and the respondent is permanently enjoined from resort to remedies. Since no proof of damages was offered the petitioner is denied said relief. There is no basis for an award of attorney\u2019s fees and therefore all such fees, and court costs are denied."], "id": "42ddd681-abfd-4838-968a-c3fc098e9f76", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*50Where a landlord has reserved its common-law right to peaceably reenter the commercial premises upon breach of a condition in the lease, the law permits the reentry if it can be effected peaceably (Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]). Here, landlord lawfully reclaimed the premises, which is acknowledged by the majority, and landlord\u2019s \u201ccross motion\u201d was unopposed. Indeed, the exhibits annexed to the order to show cause support landlord\u2019s argument that the was peaceably effected. Tenants\u2019 only argument is the misguided presumption that in a commercial tenancy, a landlord is not permitted to avail himself of self-help. Under these circumstances, the determination of who has the right of possession is so intertwined that joint resolution of the issue is exactly what is contemplated by RPAPL 747. Pursuant to RPAPL 747, the court shall direct that a final judgment be entered determining the rights of the parties."], "id": "e1a70543-3dac-45aa-9177-eeef2a2c4dc2", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*308Respondent\u2019s interpretation of RPAPL 711 would permit of those occupying apartments pursuant to rent-stabilized leases, provided that the occupant had not remained in the premises for at least 30 days. This result is clearly contrary to the intent of the rent stabilization laws which provide that a tenant who moves into a rent-stabilized apartment has many of the primary rights associated with a rent-stabilized tenancy as soon as she signs a lease and assumes occupancy, including paying only the legal regulated rent and not being evicted except for cause."], "id": "691507d3-a67b-4533-bca6-a6cc0821bbaa", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Arkansas Supreme Court subsequently has interpreted Gorman broadly, stating that Gorman \"outlawed the use of self-help measures to regain property.\" Duhon v. State , 299 Ark. 503, 774 S.W.2d 830, 835 (1989). Further, considering Gorman and Duhon , the Attorney General of Arkansas has opined that installing a device that would enable a landlord to cut off utility service to tenants in the event of nonpayment of rent would run afoul of Gorman's prohibition of . See Ark. Op. Att'y Gen. No. 2006-223, 2007 WL 201187 (Jan. 23, 2007). Durbin , 2015 WL 1470141, at *6."], "id": "3280cf1c-bcc7-4cc1-9e23-9d8272d510a5", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Because the court has found that petitioner is a tenant within the meaning of RPAPL 711, it need not reach the question of whether or not petitioner was additionally protected against by that section because she was not a \"transient\u201d. RPAPL 711 expands the class of people protected against self-help eviction by including certain occupants or residents of a rooming house in a hotel within the definition of tenant. RPAPL 711 does not exclude from its shield against self-help eviction those already recognized under the RSC as a \"tenant\u201d, even if they did not occupy their apartment for at least 30 consecutive days.9 Chatham v Chelsea Hotel (NYLJ, Feb. 8, 1995, at 28, col 5 [Civ Ct, NY County]), relied upon by respondent to support its contention that petitioner was not protected against self-help eviction because she was not in occupancy for at least 30 days and was a transient, appears inapposite. To the extent that Chatham is inconsistent with this opinion, the court declines to follow Chatham."], "id": "eb9c63be-ae54-409f-8c7a-f87ece965b09", "sub_label": "US_Terminology"} {"obj_label": "self-help eviction", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Petitioner in the instant case occupied a room subject to the hotel stabilization provisions of the RSC. Thus, upon requesting a lease while she still was in occupancy, petitioner became a permanent tenant subject to the RSC. In Chatham (supra), on the other hand, the petitioner was merely a hotel occupant who apparently had not paid for a second night when she was ousted from a room not registered with DHCR as rent stabilized. If in fact the room in Chatham was not rent stabilized, the request for a lease would not have made the petitioner a \"permanent tenant\u201d protected against . The Chatham court stated that it did not reach the issue of whether the petitioner was protected by the Rent Stabilization Law because she was not in occupancy for at least 30 days. It is this *309latter holding that this court declines to follow in view of petitioner\u2019s status in the instant case as a permanent tenant under the Rent Stabilization Law, protected against eviction without process of law.10"], "id": "e9b8bf0a-cfa0-422d-a2eb-e96082fe223e", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cFor the purpose of regulating the rights of the parties, and giving the statute in regard to notice to quit a fair construction, the law permits the landlord to proceed upon the original default in holding over, without giving the one month\u2019s notice required to institute proceedings against a tenant by sufferance, unless the landlord permitted the tenancy to continue for such a length of time as to impress upon *439the relation the new title of ; but a delay to be called laches sufficient to impress this new relation ought to be of longer continuance than three months and should be accompanied by some evidence of negligence. McAdam on Landlord and Tenant, Sec. 39, p. 132; see, also, Adams v City of Cohoes, 127 N.Y. 175, 183, 184, 28 N.E. 25, 27.\u201d Thus, a failure by a landlord to give at least 30 days\u2019 notice to a tenant by sufferance requires a dismissal of the summary proceeding. See 2 Robert F. Dolan, Rasch\u2019s Landlord and Tenant \u2014 Summary Proceedings \u00a7 30:39 (4th ed), wherein Judge Dolan writes: \u201cA landlord who has failed to give the statutory notice to quit cannot maintain summary proceedings to remove a tenant by sufferance as a holdover.\u201d"], "id": "6e99728a-fdea-4d72-8223-e1bcdb5d96cc", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["CitiMortgage argued that these documents, \"taken together, the deed of trust which creates a post foreclosure, a copy of the substitute trustee's deed that reflects that [CitiMortgage] [has] legal title to [the Property] combined with the lawful demand sent to the Isaacs and the occupants post foreclosure are the requirements of what's necessary to establish a forcible detainer case.\" It requested that the trial court take judicial notice of the entire file, and it asked for immediate possession of the Property."], "id": "10f427c1-7365-4582-a847-53ad1dc41881", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Walls court\u2019s conclusion that a trespass can ripen into a is contrary to established principles of law. \u201cAn estate at sufferance is an interest in land which exists *718when a person who had a possessory interest in land by virtue of an effective conveyance, wrongfully continues in possession of the land after the termination of such interest\u201d (Restatement of Property \u00a7 22; see, Livingston v Tanner, 14 NY 64, supra; 1 Tiffany, Real Property \u00a7 174 [3d ed]). It is essential to the creation of this interest that the party previously have had a possessory interest. As the Housing Court correctly held, the occupancy by a trespasser who never had such a possessory interest cannot ripen into a tenancy at sufferance."], "id": "366174be-7173-4c8f-b8c1-aacef036be78", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*815The special warranty deed in evidence established that McGeary was one of the property's owners. See Rice , 51 S.W.3d at 709 (\"To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.\"). The Jimenezes' continued possession of the property following McGeary's notices to vacate created a . See Williams , 2012 WL 1899156, at *2. Evidence of the Jimenezes' tenancy at sufferance, along with the notices to vacate, established McGeary's right to immediate possession of the property. See id. We overrule the Jimenezes' fourth issue."], "id": "c155701a-46e9-4b97-a38a-439fce165bae", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If Lender acts to have the Property sold after a Breach of Duty as defined in Paragraph 28, I understand and agree that: (A) my right to occupy the Property ceases at the time the Property is sold; (B) I shall have no right to occupy the Property without written consent of the new owner of the Property ... The defining characteristic of a is the lack of the owner's consent to the tenant's continued possession of the premises. See Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 915-16 (Tex. 2013). Tenants at sufferance remain in possession of the property without the owner's consent after their right to occupy the property has ended. See id. Under the unambiguous language of the Deed of Trust, Reynoso agreed to surrender possession of the Property after a foreclosure sale of the Property, even if Reynoso asserts that the foreclosure sale is wrongful and files suit asking a court to set aside the foreclosure sale. See Hossain , 2015 WL 3751548, at *2-3. If a deed of trust provides that in the event of foreclosure, the grantor in the deed of trust will become a tenant at sufferance if the grantor does not surrender possession, the trial court can resolve possession without resort to title. See Hossain , 2015 WL 3751548, at *2. In such cases, the need to introduce the deed of trust to prove the landlord-tenant relationship does not affect the justice *338(or county) court's jurisdiction because the validity of the title is not in issue. See id. The tenancy-at-sufferance status suffices as a basis for the forcible-detainer action even though the foreclosure sale later might be set aside for wrongful foreclosure or other reasons. See id. *2-3."], "id": "f843392e-6596-439d-b380-5fcb20cb4e03", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The considered in Livingston v Tanner (supra) was that of a life tenant\u2019s lessee holding over after termination of the life estate. There the remainderman was permitted to recover possession without serving the 30-day notice required for a tenant at sufferance because a statute commanded that one \" 'having an estate determinable upon any life * * * who * * * without * * * consent * * *. shall hold over * * * shall be adjudged to be a trespasser.\u2019 \u201d (Supra, at 68; cf., RPAPL 851; see, RPAPL 713 [6].)"], "id": "44061f26-8770-4e54-b207-12887fac8e37", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Here, Niti Properties attached to its summary judgment motion (1) the substitute trustee\u2019s deed; (2) the deed of trust establishing a ; and (3) proper notice to vacate the property. It is undisputed that the Arthurs refused to vacate the property. Whether the foreclosure was conducted in violation of the TRO does not bear on the question of superior right to possession. As our sister court explained:"], "id": "4d2c34ec-924a-4d40-9cd5-7a92c6153f26", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The Housing Court granted the City\u2019s motion for summary judgment, reasoning that contrary to the holding in Walls (supra), a arises only when one holds over after the termination of a lawful tenancy (Livingston v Tanner, 14 NY 64); that occupants had failed to offer any evidence of a conscious policy by the City to acquiesce in their occupancy; and that a trespass, even of 11 years, could not deprive the City of its legal remedies \u201cif the time frame is within that for adverse possession.\u201d"], "id": "82c51318-64c3-4c52-8d2c-2f07641e3c99", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A tenant at sufferance is one who comes into the possession of land lawfully, and after his estate is ended, wrongfully continues in possession. (2 Bl. Com. 150; 4 Kent's Com. 116.) There is no provision in the agreement that the estate should end at any particular time. Therefore, Mosher has not wrongfully continued in possession, unless the plaintiff or his father, terminated by some act, his lawful term. It was by the deed, and not the death of his father, that the plaintiff acquired whatever rights he may have as against the defendant. Nothing was done to' terminate Mosher\u2019s term, till the 11th day of March, 1858. He remained on the premises lawfully till that day, at all events. Oh that day a notice was served on him\u00a1 requiring him to remove from the premises. The statute reads thus: \u201c \"Whenever there is a tenancy at will or by sufferance, created by the tenant\u2019s holding over his term or otherwisej the same may be terminated by the landlord\u2019s giving one month\u2019s hotice in writing to the tenant, requiring him to remove therefrom.\u201d (Sec. 7, title 4, ch. 1 of part 2 of R. S.) I have showti. that a common law tenancy at will, does not exist between the parties, and as the defendant was lawfully in possession, and was not wrongfully holding over his term on the 11th day of March, it follows that there was no , at that time; and if not then, there is not now ; for the statute notice of a month, is provided to terminate, not to create a tenancy at will or by sufferance."], "id": "5dc3de28-6d30-4567-9d64-844eb4eab7dc", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I think the affidavit upon which the proceedings were instituted did not show a case of mere or at will, but a holding from month to month. It appears by the affidavit that Prindle went into possession under an agreement for a written lease, for the term of one year and eight months from the first of September, 1835, and that a few days after he entered into possession he violated the agreement by refusing to accept the lease and execute the counterpart thereof. By that act he became a mere tenant at will or by sufferance, and liable to be ejected immediately. Hegan v. Johnson, 1 Taunt. 149. And he would have continued so, if Anderson had not changed the character of that tortuous holding by receiving rent from him, subsequent to that time, from month to month, at the rate specified in the verbal agreement for a lease. Had it been competent for the owner of land to make a verbal lease for a longer period than one year, under the provisions of the revised statutes, this acceptance' of rent by the landlord, at the rate specified in the original agreement for a written lease would probably be construed to have been a waiver of the agreement to execute a written lease and counterpart [ *619 ] thereof, and to convert the contract into a verbal agreement for a lease for the same period and at the same rent. But as such an agreement would not be valid, the legal construction of the acts of the parties, in accepting and paying rent monthly, was to create a tenancy from month to month, commencing on the first of September, 1835. The tenant was therefore entitled to a month\u2019s notice to quit at the end of some month from the commencement of the tenancy. A notice served on the fourth of April, to *619quit at the expiration of thirty days, or within thirty days, was not sufficient. It is well settled, that where there is a tenancy from year to year, a notice to quit at the expiration of six months is not sufficient, unless that time corresponds with the commencement of the tenancy, so as to terminate a yearly holding. Where the tenancy is from week to week or from month to month a week\u2019s or month\u2019s notice to quit must be given. And in analogy to the notice in the case of a yearly holding, it must be given in reference to the commencement of the tenancy. Doe ex dem Parry v. Hazell, 1 Esp. R. 94. Here the tenancy from month to month commenced on the first of September. The notice to quit, therefore, if intended for the first of May, should have been served on or before the first of April ; and if intended for the first of June, it should have required the tenant to quit at that time, and not within thirty days after service of the notice. No regular notice to quit having been given, there was still a subsisting tenancy from month to month, at the time of the commencement of these summary proceedings to tur.n the tenant out of possession. It is wholly unnecessary, therefore, to consider the effect of the receipt of rent for the month of May, 1836, as a waiver of the previous notice which had been thus irregularly given."], "id": "537965ee-bfab-4a9c-9a96-d014c70d5ba5", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But in order further to consider the case, I will assume that the agreement is a lease, and creates the relation of landlord and tenant. The question then arises, what is the nature of the tenancy ? Is it a tenancy for years ? a tenancy at will ? a ? or a tenancy from year to year ? It will be well very briefly to consider the nature of these different kinds of tenancies."], "id": "b0d1d5a2-8cc1-402c-8603-82a4a9cd2223", "sub_label": "US_Terminology"} {"obj_label": "tenancy at sufferance", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["After the 2005 proceeding was dismissed, respondent mailed petitioners a letter demanding a new rent-stabilized renewal lease. Petitioners never sent respondent a new renewal lease. Instead, petitioners served respondent with a 30-day notice of termination of , dated February 27, 2006. Petitioners informed respondent that his tenancy at sufferance was terminated because four years elapsed since the 2002 non-renewal notices."], "id": "35f45dd2-30bc-4a76-9157-7764a2473350", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["To the extent that the doctrine of estoppel is applicable to this proceeding at all, it operates against, not in favor of, the respondent. In the proceedings which originated in the Village Court of Walton, the petitioner argued in County Court, on the appeal of this respondent, that General Business Law \u00a7 32 was, in effect, a statutory grant of an interest which, coupled with the inaction by the People after notice of the activities of respondent, constituted a and therefore a demise of the subject real property. Respondent denied this interpretation of the law to the facts in that case, and the court agreed, stating that:"], "id": "4f677f3b-c5b5-418c-8f88-ebc2f2dda015", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The doctrine in Bradley vs. Covell (4 Cow. Rep. 349), is that a tenant entering for an unlimited period, is a tenant from year to year, and entitled to notice; that a continued possession, or other circumstances, convert a tenancy at will' into \u201c a from, year to year,\u201d and imposes the necessity of giving six months notice.\u201d (See also 1 John. R. 325; 8 Cowen, 230; 11 Wend. 619."], "id": "a86a0b52-93e3-45e4-a605-15b539cebfd5", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But under the new agreement as set forth in the petition, the defendants were four-weekly tenants for an indefinite period, that is to say, from four weeks to four weeks, analogous to month to month, at the option of the landlord. This is in effect the same as a or sufferance (Witherbee, Sherman & Co. v. Wykes, supra; Hand v. Knaul, supra, 717; citing Banks v. Carter, 7 Daly, 417), and under section 228 of the Real Property Law requires a notice of thirty days to terminate. The tenancy in question is also analogous to the common-law tenancy from'month to month, which required a month\u2019s notice to terminate. (Anderson v. Prindle, 23 Wend. 616.) The petition not having alleged that the defendants were given thirty days\u2019 notice of the termination of the lease, I am of the opinion that it did not state facts sufficient to maintain the proceeding and that it was properly dismissed."], "id": "e9df153a-b921-4382-95d8-9760c32c2111", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The second question is one which involves the construction of section 232-b of the Beal Property Law. From the evidence presented the tenancy was one from month to month. Therefore the provisions of section 228 of the Beal Property Law do not apply. Section 232-a of the same law applies to New *413York City alone and provides a mandatory method of terminating a tenancy. The section under consideration differs conspicuously from both section 228 and section 232-a aforesaid in not specifying the manner of termination of a month-to-month tenancy. It provides that such a, tenancy may be terminated by either landlord or tenant notifying the other at least one month before the expiration of his term of his election to terminate. It is urged by the tenant that the requirements of the maimer of serving a precept are the requirements which control here. The juxtaposition of the two sections mentioned and the requirement in one section for a specified mode of service of notice and the silence on that score in the subsequent section negative the argument of the tenant. The most obvious method of termination would be by written notice personally delivered. But it is equally obvious that situations will arise where personal service cannot be made. If the tenant is not home, but there is someone there of suitable age, by analogy with the requirements for termination of a , it may be left with a person of suitable age and discretion. But in the event the tenant is absent, no one else present, or neglects to answer the door, what method is to be employed? The main object is to insure the giving of notice of termination of tenancy. Affixing to the door of the dwelling or apartment would answer the requirement. But circumstances might be such that notice given in that manner would insure the tenant\u2019s not receiving notice. The service of notice to terminate a month-to-month tenancy is not a court proceeding. Accordingly the notice must be served in a manner calculated to attain the end, viz., notice to the tenant. McAdam in his work on Landlord and Tenant (5th ed., p. 792) notes that a tenancy from month to month requires one month\u2019s notice to quit to put an end to the term. \u201c This is not under any statute but is probably due to its analogy to a tenancy at will or by sufferance which is for an indefinite t\u00e9rm, and requires a notice of thirty days to terminate.\u201d"], "id": "555d71b4-30b9-4002-ad10-9925636df952", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u00a5e ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify. The referee has rejected, as fraudulently procured, the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a . We see no reason to differ from the referee in his finding of fact in this respect."], "id": "a331decd-e09a-4b11-92e4-2127cc0be7a7", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A proceeding under RPAPL 713 (subd 3) is maintainable after an entry or intrusion upon land without right or claim of right and which has neither ripened into a , for a term, nor is an unrevoked license. The touchstone is a nonpermissive entry followed by the absence of any acts, primarily on the part of the owner, such as the acceptance of rent, which would ripen the possession into any form of tenancy. Alternatively, a void entry may not allow the use of a squatter proceeding where there has been permission or license without subsequent revocation thereof. (Williams v Alt, 226 NY 283; Kaplan v Volk, 273 App Div 215; Mahoney v Hoffman, 58 Misc 217, supra; Fisher v Queens Park Realty Corp., 41 AD2d 547, supra; Century Paramount Hotel v Rock Land Corp., 68 Misc 2d 603; MacArthur v Walter, 182 NYS 690; Statement, Inc. v *199Pilgrim\u2019s Landing, 49 AD2d 28; Matter of Robbins v De Lee, 34 AD2d 870; Kaufman v Zash, 7 AD2d 927, affd 7 NY2d 831; Rosefan Constr. Corp. v Salazar, 114 Misc 2d 956; Murawski v Melkun, 71 Misc 2d 575; Carman v Fox, 86 Misc 197, supra; Stier v President Hotel, 28 AD2d 795; Altschuler v Lipschitz, 113 NYS 1058.)"], "id": "fbe09d77-2c8b-4907-bb9c-7dbed1403054", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Now, if we look at the Code (sec. 2244) it will be seen that the person against whom summary proceedings are taken may put in an answer denying generally the allegations, or specifically, any material allegation. He is, therefore, limited to denials. And there is no provision for affirmative allegations. Suppose, then, that the petitioner alleged a , and the respondent denied it. On the trial of that issue could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was, therefore, voidable, not void, as in a case of usury ? I find no case where it has been held that any question, such as here arises, can be tried in summary proceedings."], "id": "f5cd7607-7baf-4b45-830b-2ab80ffdc41a", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["(1) For removal of a tenant whose entry into possession is simply without claim of right (Mahoney v Hoffman, supra; Kaplan v Volk, supra). (2) To restore a tenant in common to an undivided right of possession subsequent to an ouster (cf. RPAPL 633; Trustees of Church & Soc. v Johnson, 66 Barb 119, supra; Matter of Panzica v Cimino, 21 Misc 2d 1076, supra). (3) To obtain unrestricted possession from a lessee, not a \u201ctenant\u201d, of premises capable only of exclusive use. (Hall v Boyd, 347 Ill App 60, supra; Schwartz v Serino, 116 NYS2d 882, supra.) However, where the original entry is with permission, the appropriate vehicle for removal is RPAPL 711. (Fisher v Queens Park Realty Corp., supra; Murawski v Melkun, supra.) Finally, where the original entry was without permission, but which ripened into a , the use of RPAPL 711 is required. (Carmon v Fox, supra.)"], "id": "87f95c73-b017-40c2-bf4d-cf63d1b88fb8", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["After the abandonment by the parties of any attempt to close the lease, there is no question that the subsequent course of conduct evolved into a tenancy agreement. The entry on the premises was pursuant to an informal oral agreement, barred by the Statute of Frauds. The tenancy created in such circumstances is a (Loughran v. Smith, 75 N. Y. 205; 2 Rasch, Landlord and Tenant and Summary Proceedings, \u00a7 1025)."], "id": "9d3a4820-6a7f-4251-a1ff-2d81d73db953", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*91At common law this notice was for half a year, terminating with the year. This the wisdom of its judges deemed but a reasonable notice to a lessee from year to year of a farm or a tenement, that he must turn out. But this common law right, was of course, subject to legislative control, which could abridge or take it away at pleasure. This power over the subject has been exerted by the legislature of this state in the enactment of \u00a7 7 of title 4th, ch. 1, p. 2 of the R. S. (2d vol. 3d ed. p. 30), in these words; \u201c Wherever there is a , or by sufferance, created by a tenant\u2019s holding over his term, or otherwise, the same may be terminated by the landlord\u2019s giving one month\u2019s notice in writing to the tenant requiring him to remove therefrom.\u201d"], "id": "f9053731-27ef-426e-9ee2-d675b3ae9f7d", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Section 232-c of the Beal Property Law was enacted by the Legislature in 1959 to create a when a tenant held, over after the expiration of his term with the consent of the landlord. In specific terms, it states that acceptance of rent by a landlord creates a month-to-month tenancy only. Its provisions do not authorize the landlord to impose a liability on the tenant, without its consent, for increased rental following expiration. The statute was interpreted by the Court of Appeals in Jaroslow v. Lehigh Val. R. R. Co. (23 N Y 2d 991) following an apparent conflict in the views of the Appellate Terms of the First and Second Departments, concerning its intent and meaning. Said the court: \u2018 \u2018 Section 232-c of the Beal Property Law changes the common-law rule relating to creation of a holdover tenancy. It provides that the mere holding over by a tenant whose term is longer than one month does not allow the landlord to create a holdover tenancy without his acceptance of rent from the holding over tenant * * * An action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent.\u201d Accordingly, the city may not maintain an action for increased rent. The first cause of action will be dismissed."], "id": "ca6e7fe6-bf44-412c-8f7d-75623ae765c0", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The lessor has the right to change the relations existing between himself and his tenants, if they prefer that he should, and it may well be conceived that it might be advantageous to the reversion, to relieve the estate from the burden of a long lease. The grant of a second lease, however, is inconsistent with the continued existence of the .prior one, and the effect of that inconsistency is equally binding upon both parties, lessor and lessee. (Cases, stcpra.) The rigorous rules which prevail in reference to sealed instruments generally, do not apply to leases which, as we have seen, though resting in covenants, may be surrendered \u2014 that is, yielded up and canceled \u2014 *162and the parties released, therefore, from their covenants, by acts which establish it, or by operation of law. The only condition which seems to attach, by the law of this State, when the surrender is by a second lease between the same parties, during the life of the first, is that the second agreement or lease shall be valid, according to the intent of the parties. On this subject a statement of the defendant Hobby, upon cross-examination, is important. He was asked whether he meant to say, if he stayed on the premises the whole ten years the reduced rent was to be continued, and he answered in the affirmative. It appears clearly, therefore, that in his interpretation and understanding of the agreement, it had relation to the whole term of the lease, subject only, to a sooner determination of the demise by a sale of the premises. This is confirmed by the provision giving him the right to remove, if the premises were sold, after three months\u2019 notice of his intention so to do. The new lease thus asserted was invalid as such, resting in parol. It was for a period of ten years, in contemplation of the parties, and made the defendants tenants at will. It is within the adjudication of Schieffelinw Carpenter [supra), in which it appeared that the alleged \u25a0new letting was to a stranger, by parol for eight years. An implied only was created, it was said, which enabled the tenants to hold from year to year, for the purpose of notice to \u25a0quit, but which they could terminate at any moment they pleased. The agreement conferred, it was also said, no rights upon the plaintiff, further than to recover his rent while they continued to occupy, and, perhaps, a quarter\u2019s rent if they abandoned the occupation, .after the commencement of a quarter and before its termination. It was suggested, also, that- if the agreement had been made with -the original tenant, the result would be the same. The second lease failed to have the effect claimed, namely, to pass the interest in the premises according to the contract, or, in other words, to carry into legal effect the intent of the parties making it, and was declared to be invalid. The same result attains here- The agreement cannot be effectuated. It fails to satisfy the rule of law stated. It is not valid. It cannot carry out the design of the parties, which was to extend it over the period of the demise, and which could not be done by parol. That is the only consideration, if any, which seems to be demanded."], "id": "8d983353-6b14-442f-87b1-3f1ac448fac2", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Post agt. Post, Justices Willard and Hand agreed that a tenancy from year to year, could be terminated only at the end of the year. Justice Willard thought, however, that no notice -would be necessary before instituting summary proceedings, and cited Nichols agt. Williams, which, however, was before the Eevised Statutes. Hand, Justice, thought notice would be necessary. But as Post agt. Post was a case strictly of , the question of notice before summary proceedings in case of tenancy from year to year, was not adjudicated. The rule held by the court for the correction of errors, in Anderson agt. Prindle, (23 Wend. 616,) would require that a month\u2019s notice to quit at the end of some year,, counting from the commencement of the tenancy, must be given, before summary proceedings can be maintained."], "id": "6d95f6f1-55a1-4723-93a0-10576d3e1abc", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The same learned commentator remarks (ib. pp. 115-16), that the Roman law, like the English, was disposed as much as possible, and upon the same principles of equity, to construe to a holding from year to year, and to give to the tenant the reasonable right of notice to quit; that, \u201c when the sages at Westminster were called to examine the same doctrines, with a strong if not equally enlightened sense of justice, they were led to form similar conclusions, even though they had to contend in the earlier period of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy and the scrupulously technical rules of the common law.\u201d"], "id": "f096d07c-c853-4eef-9283-f2d7d378c161", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Finally, entry under a void lease does not necessarily allow eviction under RPAPL 713 (subd 3), even assuming that the lease does not create the right of a cotenancy nor a . The court\u2019s analysis indicates that two diverse or antagonistic lines of cases do not exist, contrary to the views of the parties. In fact, all cited cases in the area are harmonious."], "id": "7c5c35c6-7232-41f7-96fa-45ddacabb3b9", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In this case, petitioner retained a reversionary interest in this apartment as evidenced by all her furnishings she left in the apartment together with personal belongings stored in a foyer closet. Petitioner has paid rent to the landlord at all times and continues to pay rent in her own name. Based on the conduct of the parties and the arrangement of respondent\u2019s occupancy of this apartment, the court finds that the understanding between the parties was that either party may terminate the ."], "id": "2e81df8b-b5e5-4d76-87de-37fe60b144d6", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In Bradley vs. Covel (8 Cowen R. 349), Woodworth,\" J., \u201c a is held to be a tenancy from year to year, merely for the sake of a notice to quit;\u201d and the courts of this country have in repeated instances .used the phrase \u201c tenant at will\u201d and \u201ctenant from year to year\u201d indiscriminately. By. a statute of this state (\u00a7 1 of title 2; art. 1 ch. 1 of pt. 2 of the R. S. 2d vol. 3d. ed. p. 9), \u201c Estates in lands are divided into estates of inheritance, estates for life, estates for years and estates at will and by sufferance.\u201d"], "id": "30dffe36-1550-4531-9769-49a83da04977", "sub_label": "US_Terminology"} {"obj_label": "Tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": [" is created by grant and contract by one person, who lets lands to another to hold at the will of the lessor. The characteristics of such a tenancy are uncertainty with respect to duration and the right of either party to terminate it by proper notice. Both the entry and occupation are lawful, but for no definite term of possession. A landlord\u2019s mere consent to the occupation of his land by another does not necessarily imply consent to such occupation as tenant. (Thomp. Real Prop. \u00a7\u00a7 962, 963.)"], "id": "adfcb597-66b0-4e24-b8b7-0b07575cfb61", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["It is interesting to note that Rosefsky (supra) touched on this issue but then failed to address it. There the State held over at the expiration of an approved lease while negotiating a new one. When that fell through, claimant sued. Obviously no claim under contract existed by virtue of section 112 (2). The claimant then argued that month-to-month tenancies had been created. The Rosefsky court rejected that analysis, citing the common-law rule that, rather, a had been created. That tribunal, however, then failed to address whether claimant could or could not recover under that theory. Thus, the issue, which is one of first impression, is: can a landlord who has rented to the State under a lease invalid under State Finance Law \u00a7 112 (2) recover for the resulting tenancy at will under quasi-contract?"], "id": "ad6e31fb-5a01-4f46-93d5-016e101d9532", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If an agreement is in fact made for a new tenancy, the tenant is no longer a tenant holding over after the expiration of his term; his tenancy is governed by the agreement. Where no actual agreement for a landlord-tenant relation is made, there is no reason why a statute abolishing the landlord\u2019s option to hold the tenant for a new term should provide for any tenancy implied as a matter of law by reason of the holding over and the landlord\u2019s consent. Any implication of such a tenancy involves uncertainties concerning its terms and the application of conditions that governed the expired tenancy. It may also impose burdens directly contrary to the intention of the parties where the continued occupancy is by \u201c consent \u201d but without agreement for a new term. Both a or at sufferance and a tenancy from month to month impose on the landlord a requirement of notice to terminate the tenancy, and outside the City of New York a tenant as well as a landlord must give notice to terminate a tenancy from month to month. (Real Property Law, \u00a7\u00a7 228, 232-a, 232-b.)"], "id": "00e507fb-81af-48b0-becc-ee0c1e1f6004", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["There is no question that tenancies at will require the service of a notice to quit, as the predicate to the institution of a summary proceeding. Real Property Law \u00a7 228 states: \"A or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.\u201d"], "id": "b1781372-7c61-4986-99d3-e8cac594a2cb", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Another method of reasoning leads to the same result. It has been held that a lease \u201c for the duration of the war \u201d is indefinite in duration, and for that reason does not create a term for years but rather a (Stanmeyer v. Davis, 321 Ill. App. 227; Lace v. Chandler [1944] 1 All E. R. 305) because this country was at war with several nations \u2014 Japan, Germany and Italy \u2014 and the lease did not refer to which particular war of the several in which we were engaged and actual hostilities could and did cease with one belligerent before another. Furthermore, the precise event which would terminate the war was not made clear by the parties. Did the parties' intend that the lease should terminate upon cessation of actual hostilities, the signing of a peace treaty, its ratification, the enactment of a Congressional resolution, or the issuance of a Presidential proclamation? (See 39 111. L. Rev. 85.) Under these circumstances, the tenancy here would be one at will, terminable by a thirty-day notice (Real Property Law, \u00a7 228). The landlord gave the tenant notice on July 17, 1946, that the rent beginning September 1, 1946, would be $488.75 per month."], "id": "ba61d9e8-d268-4d4c-ade1-d52523d349dc", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*118Section 228 of the Real Property Law provides for thirty days\u2019 notice by the landlord in order to terminate a tenancy by will or at sufferance. There is no statutory provision requiring a like notice by the tenant to terminate the tenancy. The courts though hold that such notice is reciprocal, and is an obligation resting on the tenant as well as upon the landlord in order to terminate the tenancy. The reasoning of this rule probably is that the statute requiring the landlord to give the notice in order to terminate the tenancy, that in case it is not so given it still exists, and, existing, it creates an obligation on the part of the tenant to pay rent for the ensuing month, if he vacates without himself giving notice, as it is a continuing and subsisting tenancy, until terminated by notice. Furthermore, it may be said that, in the absence of statutory requirement, it was provided at common law that a or at sufferance could only be terminated by giving notice, the obligation resting equally upon landlord and tenant."], "id": "498ed8dd-5fc6-465e-ba1e-b39a369415c1", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Subject to the terms of their contract, the projected occupancy was not \"a mere temporary privilege,\u201d revokable at the whim of either party (see, Miller v City of New York, 15 NY2d 34, 37; cf., Mauldin v New York City Tr. Auth., 64 AD2d 114). Moreover, judging from the manner in which rent was paid, the lease contemplated by the parties was a month-to-month tenancy (see, Cohen v Green, 21 Misc 334; Douglass v Seiferd, 18 Misc 188; 2 Rasch, New York Landlord and Tenant \u00a7 30:58, at 479 [3d ed]). At the least it was a , and not a freely revocable license (see, Real Property Law \u00a7 228; Lad v Hudson, 60 NY 102)."], "id": "29d256e6-5a01-4e56-a67f-6fdc72a488af", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Real Property Law \u00a7 228 states: \"A or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.\u201d (Emphasis supplied.)"], "id": "9c7b23ba-7945-4f41-836a-a3613e3e6edc", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If the assignee of the vendor could, in law, declare the contract void, because of the failure of the vendees to comply with its. terms and conditions, and thus create the relation of landlord and tenant, could it be done by parol, or was notice in writing essential, and if he could and did do so, when did the tenancy begin? If it began when he elected to declare the contract void, and demanded possession, it then became a or at sufferance,- because there had been no such termination of the tenancy or holding over as the statute contemplates. \u00a7 2331, Code Oiv. Pro., subd. 1-2."], "id": "79f78b5d-c37b-44d3-9f80-d68995014b4e", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["3d ib., 13.\u2014\u201c The tenancy from year to year succeeded to the old , which was attended with many inconveniences, and, in order to obviate them, the co\u00farts very early raised an implied contract for a year, but added that the tenant could not be removed at the end of the year without receiving six months notice \u201d (See also 2d Crabb's Law of Real Property, p. 269, \u00a7 1570.)"], "id": "9bbe76bb-e329-4a83-9c64-999bff273c14", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The law is well-settled that where a tenant enters into the possession of agricultural lands under an oral lease or contract, or one that is otherwise void or defective, and pays rent to his landlord, it creates a and if the tenant remains in possession, by operation of law it becomes a tenancy from year to year. Jansen v. Pobst , 922 S.W.2d 43, 48 (Mo. App. S.D. 1996)."], "id": "0cf04b9b-8f81-4ae8-9cfd-435b21b62e03", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A license, as contrasted with a , is merely permission to do a particular act or series of acts upon the land of another, and conveys no estate in the land which establishes the conventional relationship of landlord and tenant (51 C. J. S., Landlord and Tenant, \u00a7 156, p. 763; 3 Tiffany on Real Property [3d ed.], \u00a7 829, p. 401). A license confers a mere right of occupancy of the land, with the consent of the owner (Walsh, Encyclopedia of New York Law, p. 581), and \u201c without passing any estate therein \u201d (Mammy\u2019s Inc. & Pappy\u2019s Inc. v. All Continent Corp., 106 N. Y. S. 2d 635, 638). A license may encompass the *462erection of \"buildings or other structures upon the owner\u2019s land (3 Tiffany on Real Property, p. 403)."], "id": "dd99e74a-4211-4344-98d3-3d9a2c669695", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A may be converted into a periodic tenancy, in this case from year to year, where the tenant remains in possession of the premises, with the consent of the landlord under such circumstances as would permit the inference of such a tenancy (Talamo v. Spitzmiller, 120 N. Y. 37). The reservation of rent, on a yearly basis, readily permits such an inference (Adams v. City of Cohoes, 127 N. Y. 175; Coudert v. Cohn, 118 N. Y. 309). The fact that rent is actually paid more frequently has no bearing upon the characterization of the tenancy. In Adams v. City of Cohoes (supra), the annual reserved rental was paid semiannually. Similarly, in the case at bar, the rental was reserved on an annual basis, payable monthly and actually paid bimonthly. The landlord continued to accept rent on this basis for six years. Under these circumstances, it is absurd to contend that the tenant was in the premises on a month-to-month basis."], "id": "7028b98c-e4cf-4ad3-b98d-43364fe11d5d", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Could the interest of the. plaintiff in the land be considered strictly a , he would be entitled to the potatoes. *409Chancellor Kent in his Commentaries (vol. 4, p. Ill) says: \u201cIt was determined very anciently that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner and contrary to equity and good faith. The lessor could not detennine the estate after the tenant had sowed and before he reaped, so as to prevent the necessary ingress and regress to take the emblements."], "id": "b78eb547-b346-499a-a097-6eb6a2f94198", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Moreover, the tenant, while in possession under such lease, cannot dispute his landlord\u2019s title despite the fact that the lease, on its face, may show lack of title in the landlord. (Tilyou v Reynolds, 108 NY 558; Rasch, NY Landlord & Tenant [2d ed], \u00a7 91.) Thus, the lease is in effect and continues until disaffirmed by the true landlord, thereby creating a voidable, not void, lease. However, it is only the void lease, without permissive occupancy ripening into a that allows eviction under RPAPL 713 (subd 3). (Carmon v Fox, 86 Misc 197; Mahoney v Hoffman, 58 Misc 217; Fisher v Queens Park Realty Corp., 41 AD2d 547.)"], "id": "d6dc30c4-b882-4ea4-95fa-f203f0eef2ec", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When the tenancy is not month-to-month but a or sufferance, Real Property Law \u00a7 228 determines the manner in which the tenancy may be terminated and also determines the manner of service of the 30-day termination notice (see Real Property Law \u00a7 228; Fisher v Queens Park Realty Corp., 41 AD2d 547 [1973]; Carman v Fox, 86 Misc 197 [1914]; Lippe v Professional Surgical Supply Co., 132 Misc 2d 293 [1986]; North Shore Community Servs. v Lehrfeld, 3 Misc 3d 436 [2004]; Boyar v Goodman, 202 AD2d 541 [1994])."], "id": "e3f9ed5c-22e2-46a7-b028-8a745fe41830", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A tenant at sufferance is one who comes into the possession of land lawfully, and after his estate is ended, wrongfully continues in possession. (2 Bl. Com. 150; 4 Kent's Com. 116.) There is no provision in the agreement that the estate should end at any particular time. Therefore, Mosher has not wrongfully continued in possession, unless the plaintiff or his father, terminated by some act, his lawful term. It was by the deed, and not the death of his father, that the plaintiff acquired whatever rights he may have as against the defendant. Nothing was done to' terminate Mosher\u2019s term, till the 11th day of March, 1858. He remained on the premises lawfully till that day, at all events. Oh that day a notice was served on him\u00a1 requiring him to remove from the premises. The statute reads thus: \u201c \"Whenever there is a or by sufferance, created by the tenant\u2019s holding over his term or otherwisej the same may be terminated by the landlord\u2019s giving one month\u2019s hotice in writing to the tenant, requiring him to remove therefrom.\u201d (Sec. 7, title 4, ch. 1 of part 2 of R. S.) I have showti. that a common law tenancy at will, does not exist between the parties, and as the defendant was lawfully in possession, and was not wrongfully holding over his term on the 11th day of March, it follows that there was no tenancy at sufferance, at that time; and if not then, there is not now ; for the statute notice of a month, is provided to terminate, not to create a tenancy at will or by sufferance."], "id": "79621b20-d091-4a41-b15f-ca047a01457d", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*475Section 2236 of the Code of Civil Procedure provides that \u201c where the person removed is a tenant at will * * * the petition must state the facts showing that the tenancy has been terminated, by giving notice, as required by law.\u201d The \u201c notice required by law \u201d is specified in section 228 of the Beal Property Law, which provides in substance that a may be terminated by a written notice of not less than thirty days given in behalf of the landlord to the tenant, requiring the tenant to remove from the premises."], "id": "cc1ff8f4-4acb-4133-9010-8bc5caa752c4", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The respondent tenant herein occupies under a .. There is no leasehold interest involved. This tenancy has properly been terminated by this petitioner by the notice to quit served and effective March 30, 1962. The rights to possession of the respondent must surely make way for the paramount rights to possession of the petitioner co-owner. The petitioner has properly brought a summary proceeding. This is a remedy to which he is entitled and by which he may assert his right to possession."], "id": "b36e7b6e-33c6-4cc1-a97f-52097a3e7f50", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["A construction proceeding was brought by respondent in the Surrogate\u2019s Court, Nassau County, before Judge C. Raymond Radigan. The Surrogate construed article third of the decedent\u2019s will as devising fee title to the premises to petitioner and construed article fourth as creating a . (Decision dated May 16, 1994; decree dated June 27, 1994.) Essentially the tenancy was cancellable on 30 days\u2019 notice (Real Property Law \u00a7 228)."], "id": "1faeeadb-49c1-415f-a7d4-5bdb8a9a94f1", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Where one takes possession under an invalid or void lease, his tenancy at its inception is at will. (Carman v. Fox, 86 Misc. 197; Altschuler v. Lipschitz, 113 N. Y. Supp. 1058.) So, too, a tenancy without any term prescribed or rent reserved, or one expressly during the will of the lessor, or a simple permission to occupy, creates a unless there are circumstances to show an intention to create a tenancy from year to year. (1 Gerard N. Y. Real Prop. [6th ed.] \u00a7 441.)"], "id": "4f4a12b7-201d-44f5-88fd-bd12a67dc102", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["In the case of Hand v. Knaul (116 Misc. 714) the court held: \u201c The tenancy from month to month is where the tenant\u2019s term is indefinite and uncertain although the rent is paid monthly and is described in some of the cases as an ' indefinite tenancy from month to month.\u2019 * * , * Such a tenancy requires a notice of thirty days for its termination. This is not under any statute but is probably due to its analogy to a or by sufferance which is for an indefinite term * * * and requires a notice of thirty days to terminate. * * * Likewise, it is somewhat analogous to the common law tenancy from month to month, which required a month\u2019s notice to terminate. * * * Where there is an obligation to give notice, other than statutory, it is binding on both parties, their rights and duties being correlative and reciprocal.\u201d"], "id": "de8fddb4-8b69-4be0-b8f6-dfd29ba7fe64", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The first thing to be considered is whether a notice of thirty days is necessary to terminate such a tenancy. Upon this proposition the cases are not entirely in harmony and there is at least a seeming conflict of authority. Usually a distinction is made between a \u201c monthly \u201d hiring and a hiring \u201cfrom month to month. \u2019 \u2019 Schneider v. Amendola, 113 N. Y. Supp. 517; Mandel v. Koerner, 152 id. 847, 850. In some of the cases hereafter cited, it will be seen that this distinction in terms was not recognized, which may account for some of the apparent disagreement in the opinions. Where the distinction is recognized, a monthly hiring or tenancy is where the premises are actually or by necessary implication hired for the single term of one month and the tenancy automatically expires at the end of each month, and is renewed for another month whenever the tenant holds over into the next month. Such a tenancy requires no notice for its termination. The tenant may remove during that month without notice to the landlord and is not liable for rent for the *717ensuing month. Or the landlord may, at the end of the month, without previous notice, treat the tenancy as terminated and, if necessary, may have summary proceedings against the tenant as one holding over at the expiration of his term. The tenancy from month to month is where the tenant\u2019s term is indefinite and uncertain although the rent is paid monthly and is described in some of the cases as an \u201c indefinite tenancy from month to month.\u201d Witherbee, S. & Co. v. Wykes, 159 App. Div. 24, 26. Such a tenancy requires a notice of thirty days for its termination. This is' not under any statute but is probably due to its analogy to a or by sufferance which is for an indefinite term (Banks v. Carter, 7 Daly, 417), and requires a notice of thirty days to terminate. Real Prop. Law, \u00a7 228. Likewise, it is somewhat analogous to the common law tenancy from month to month, which required a month\u2019s notice to terminate. Anderson v. Prindle, 23 Wend. 616. Where there is an obligation to give notice, other than statutory, it is binding on both parties, their rights and duties being correlative and reciprocal. Adams v. City of Cohoes, 127 N. Y. 175, 184."], "id": "c23f75a4-14b5-4e89-8722-d890a0008153", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Suppose the deed of 1818 to have been 'valid, then the occupation by Philip Smedes would be deemed to have been under and in subordination to the legal title. (Code Civil Pro., \u00a7 368.) Such subordinate possession, in the absence of explanation, will be deemed a . (Jackson v. Sternbergh, 1 Johns. Cas., 153; Russell v. Doty, 4 Cow., 576; Jackson v. Graham, 3 Caines, 188.) There was no written lease and no rent reserved or paid. Peter Smedes and those holding under him would, therefore, be deemed to be such tenants at will for twenty years after the date of the deed of 1818. (Code Civil Pro., \u00a7 373; Whiting v. Edmunds, 94 N. Y., 314.)"], "id": "e637c0fb-1923-4f2a-8a46-e6c25858f18c", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["I have satisfied myself that- an ordinary life tenancy is not within the scope of said section 2231, for clearly it is not a , by sufferance, for part of a year, or for one or more, years. It has long been settled by respectable authority that- this statute, since it furnishes a quick and drastic remedy, must be strictly construed. This lease contains no \u201climitation\u201d\u2014an expression well known to the law of landlord and tenant \u2014 so that by virtue of the happening of a prescribed event the term set in the lease would expire. Therefore, since section 2231 does not in terms cover ordinary leases for life and the lease contains nothing-whereby its term could be limited to less than the *547lives mentioned therein, the petitioner has mistaken his remedy."], "id": "24480e54-cfa2-401b-a2cc-1039d7bc0b29", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["\u201cA or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.\u201d This court holds that a tenancy by sufferance was created by the laches of petitioner in commencing the summary proceedings because over a year elapsed between the end of the lease and the time summary proceedings were started. Under these circumstances, the petition is hereby dismissed without prejudice to renew upon the proper service of a notice of termination as required by Real Property Law \u00a7 228."], "id": "5bbdecfc-8fa5-44ea-a405-54e7dd849aa6", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But does the statute make any provision for summary proceedings against a tenant who is strictly a tenant from year to year ? It provides thus: \u201c Any tenant or lessee at will, or at sufferance, or for any \u00a1Dart of a year, or for one or more years, &c., may be removed,\u201d &e, (Laws 1849, ch. 193, \u00a7 1.) The words, \u201c for any part of a year, or for one or more years,\u201d mean the same as \u201c for years,\u201d as I have shown above. The statute, therefore, authorizes these proceedings against three classes of tenants, namely: tenants at will, at sufferance, and for years; but does not seem to include those who are strictly tenants from year to year. Is the defendant, however, if a tenant at all, technically a tenant from year to year, and nothing else? In Post agt. Post, (14 Barb. 257,) Hand, Justice, says: \u201c A tenancy from year to year, so long as both parties shall respectively please, is in one sense, a ; but must\"- be terminated at the end of the year by proper notice. What notice is requisite to terminate an estate from year to year, at the will of the parties, it is not now necessary to deeide.\u201d (See also Prouty agt. Prouty, 5 How. P. Rep. 81.)"], "id": "be674900-913f-4186-bdf2-ebbe18a3f854", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["On the other hand, the landlord herein cites a case which seems closer in point. (Peer v. O\u2019Leary, 8 Misc. 350.) This was a summary proceeding by a landlord to recover possession of property occupied by a tenant. It appeared that the landlord had allowed the tenant to occupy a portion of his house after the tenant\u2019s house had burned. No agreement was made as to the length of the term or as to the payment of any rent. The Municipal Court dismissed the petition. The General Term of the Superior Court reversed and held that the circumstances spelled out a , citing Post v. Post (14 Barb. 253, 255) and Sarsfield v. Healy (50 Barb. 245). In that case no express agreement whatever was shown, merely a permission to occupy the premises. It is not necessary to show any agreement to pay rent to prove the conventional relationship of landlord and tenant. (Peer v. O\u2019Leary, supra; Burns v. Bryant, 31 N. Y. 453; Larned v. Hudson, 60 id. 102.)"], "id": "890c663c-c0ea-45b6-b6b3-a774c2c246f4", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Where one enters upon land by permission of the owner, without reservation of rent or designation of tenure, he is by implication of law, a tenant at will, and the conventional relationship of landlord and tenant exists between the parties (Larned v. Hudson, 60 N. Y. 102, 104; Powers v. Ingraham, 3 Barb. 576, 578; Sarsfield v. Healy, 50 Barb. 245, 246; Post v. Post, 14 Barb. 253, 258). A confers an estate in land (Matter of Rourke v. Metz, 139 App. Div. 155,157, affd. 202 N. Y. 604)."], "id": "c975ddf0-f542-4e2f-a0ff-50719574bb9f", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["But in order further to consider the case, I will assume that the agreement is a lease, and creates the relation of landlord and tenant. The question then arises, what is the nature of the tenancy ? Is it a tenancy for years ? a ? a tenancy at sufferance ? or a tenancy from year to year ? It will be well very briefly to consider the nature of these different kinds of tenancies."], "id": "d9f6092d-f152-400a-81a6-f41a97c64cc5", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["However, an occupancy by a squatter or trespasser can ripen into a as, for instance, where there is an express agreement of the parties or an acceptance of rent (Kassover v Gordon Family Assocs., 120 Misc 2d 196; see, 51 CJS, Landlord and Tenant, \u00a7 158). A tenancy at will may also arise by implication, and an obligation to pay rent is not a necessary incident of such a tenancy (Harris v Frink, 49 NY 24, 32). In order for a tenancy at will to arise, however, the occupancy must be subordinate, not adverse, to the title of the true owner (Biglow v Biglow, 75 App Div 98; In re Wilson\u2019s Estate, 349 Pa 646, 37 A2d 709). The Court of Appeals has stated that an owner\u2019s acquiescence in a continued occupancy (where the occupancy is subordinate to the title of the owner) may, where the facts so warrant, jiistify an inference that a tenancy at will has been created (Kerrains v People, 60 NY 221, 225)."], "id": "c7595bac-ea91-4ca0-91f9-5cded5ffccdf", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["The section 228 notice requires no such additional caveat. It merely sets forth the necessity of a written notice cancelling a or at sufferance and sets forth the manner of service. This statutory section further states landlord\u2019s options as options and not as mandates, in the event tenant has not vacated the premises. (Real Property Law \u00a7 228.)"], "id": "6d0d3786-3f8a-41f1-ad19-fadf6d8849e5", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["If the petitioner be correct in his contention that the relation of landlord and tenant commenced when he declared the contract void, and demanded possession of the premises, he could only bring- himself'within the. statute, or institute this proceeding at the expiration of the month\u2019s notice to his tenants to vacate and surrender such possession (\u00a7 2236, Code Oiv. Pro.) for the provisions of the Revised Statutes in reference to terminating a or by sufferance are still in force."], "id": "8c5221de-9570-4183-891b-fd656c287551", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Having elected to proceed under RPAPL 713 (subd 3), the petitioner is limited to the relief authorized thereunder. There is no indication in the papers whether all or part of the premises were conveyed. Thus, alternatively, either a of a portion of the entire premises was created and may terminate pursuant to RPAPL 711, or, a tenancy in common was created for the entire premises which may be limited to nonexclusive use pursuant to RPAPL 713 (subd 3). Petitioner is thereby limited to the afore-mentioned relief under RPAPL 713 (subd 3). As can be seen, summary relief is of limited scope herein. The better procedure for all the parties, including respondent, is to move for partition (RPAPL 901)."], "id": "f69cb20e-b918-4323-9f44-3d1a8ed7085b", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["*618The sections of the Real Property Law which expressly relate to the termination of a tenancy by notice are sections 228, 230, 232-a and 232-b. Section 228, relating to a or by sufferance, requires a written notice, which must be served as therein provided. Section 230, which relates to the renewal of a lease, provides for a written notice, which must be served personally or by registered mail. Section 232-a, relating to tenancies in the city of New York, requires a written notice, and that it be served in the same manner as a precept. All three Sections expressly require a written notice and expressly provide how it shall be served."], "id": "635dabd9-0fdf-4caa-8c9b-04f0d26d1f95", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["This court finds that Aponte is correctly decided, and that it is not in fact inconsistent with the rule enunciated in Gerolemou. It was stated in Alleyne v Townsley (110 AD2d 674, 675 [2d Dept 1985]) that, \u201cNo statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (see, 13 Carmody-Wait 2d, NY Prac \u00a7 89:118).\u201d (Emphasis added.) Similarly, in one treatise it is reported that, \u201cNotice to quit the premises is required when the tenancy is a month-to-month, a or at sufferance, or for an indefinite period. After the tenant is given a 30 day notice to terminate a month-to-month tenancy, further no*152tice is unnecessary to maintain an ejectment proceeding.\u201d (5 Warren\u2019s Weed, New York Real Property, Ejectment \u00a7 3.02 [2001] [Demand; Notice to Quit].) The correct rule of law would appear to require that when there exists a subsisting landlord-tenant relationship, a notice to terminate is required, as was the case in Gerolemou, which involved a month-to-month tenant. In those cases in which there is a holding over after the expiration and no new landlord-tenant relationship is created (such as when the landlord does not accept rent after the expiration of the lease),3 as appeared to be the case in Aponte, no notice to terminate is required."], "id": "4177616c-870a-4e91-8e8c-cb6e9a5445d4", "sub_label": "US_Terminology"} {"obj_label": "tenancy at will", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["When an employee remains in possession for a considerable time after the employee-employer relationship has terminated, a is created. The classic case of Kerrains v People (60 NY 221) advanced this principle in 1875 and the ruling is still valid. Such a tenancy will then require the service of a preliminary notice to quit before the former employee-tenant can be dispossessed by a summary proceeding. (See Rasch, NY Landlord and Tenant [2d ed], \u00a7 1072.) Though Stiles was no longer an employee of Kolping at the time of his eviction, he was clearly a tenant, and the defendants were obligated to institute a summary proceeding to remove him."], "id": "269d57fc-2414-47c3-a050-cc9b95a269b3", "sub_label": "US_Terminology"} {"obj_label": "commercial reasonability", "legal_topic": "Landlord-Tenant Law", "masked_sentences": ["Therefore, it seems preferable to establish a rule of law of to measure a bank\u2019s timeliness obligation as garnishee when it acts in good faith in fact, as it did here. Under the circumstances herein the court believes that allowing the bank until the close of business the day after receipt of the restraining notice is appropriate. Accordingly, the petition is dismissed without costs and disbursements."], "id": "ee76da4a-8a8b-4680-b560-4304659d7828", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["To assure compliance with today\u2019s order, respondent is hereby ordered to post, by 10:00 a.m. on May 2, 1950, a cash in the sum of $300, or in a default of furnishing such surety to stand committed to the warden or keeper of the City Prison or Jail, or Workhouse of the City of New York for a period of four months from date of commitment, or pending further order of the court (see N. Y. City Dom. Rel. Ct. Act, \u00a7 92, subd. [11]; \u00a7 151, \u00a7 154, and Monroe v. Monroe, 45 N. Y. S. 2d 589; also Family Court Rule XXXVI; Bender\u2019s Court Rules [1st ed.], p. 374). Such deposit shall stand as security for all payments accruing on today\u2019s order until May 1, 1951; and if sooner exhausted by drafts thereon in consequence of respondent\u2019s default, a further bond may be requested under section 159 of the Domestic Relations Court Act."], "id": "1d9b7a9a-4e24-4f50-96dd-135947afed06", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is plaintiff\u2019s contention that section 137 of the State Finance Law should be read in conjunction with section 2 of the Lien Law. The latter section, at subdivision 10, denominates a subcontractor as one who \u201c enters into a contract with a contractor and/or with a subcontractor for the improvement of such real property or such public improvement or with a person who has contracted with or through such contractor for the performance of his contract or any part thereof. \u2019 \u2019 Plaintiff urges that since it entered into a contract for the sale and delivery of the material to a subcontractor of the contractor, it, too, is a subcontractor and entitled to the longer statutory period within which to bring an action on the ."], "id": "68fb8e17-54f2-445a-98aa-d3e8e9f9ce0c", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We must first address the preliminary issue of whether this appeal involves a final, appealable order. When the order appealed from is not final, this court will not decide the merits of the appeal. Kines v. McBride , 2017 Ark. App. 40, at 3, 511 S.W.3d 352, 354. The finality of an order is a jurisdictional question that we have the right and duty to raise to avoid piecemeal litigation. Toney v. White , 31 Ark. App. 34, 787 S.W.2d 246 (1990). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. For an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Toney, supra. Rule 2(a)(12) also provides that an order is appealable if it is entered pursuant to Arkansas Code Annotated section 28-1-116 (Repl. 2012), which sets forth that all orders in probate cases, except an order removing a fiduciary for failure to give a new or render an accounting required by the court or an order appointing a special administrator, are appealable."], "id": "715ee7d8-4735-4578-b98f-f4034097d76a", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On April 19, 1967, the confession of judgment was filed in the Erie County Clerk\u2019s office and judgment was entered in the amount of $55,340 against all of the debtors. The following day, an execution was issued to the Sheriff of Erie County to levy on certain funds in the hands of the City of Buffalo, purportedly owing to Josanco on the contract for which \u00bfEtna had issued the performance and payment bonds. Subsequently, Josanco obtained an order of this court directing the judgment creditor to .show cause \u201c why an order should not be granted discharging any and all executions, levies, or any other enforcement proceedings against Josanco Construction Corp. or any of its officers and employees, and permitting it to file a in lieu thereof.\u201d"], "id": "b34e0b7d-671f-4aac-8d96-d996c8f8efa4", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I do not think the statute discloses any such intention. It is merely a provision appropriating money, which makes available the proceeds of the issue for the specified uses including such awards against the state as might be made by the Court of Claims for compensation or damages or both according to existing principles of law properly applicable to the claims on which the awards might be made."], "id": "7c6a7094-fa2a-4c14-bef4-4f01085be145", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It follows, therefore, that the payment made to Jenkinson by Mrs. Schwing was, to the extent of sixteen dollars and twenty-five cents, a payment for and on behalf of the plaintiff, and the plaintiff not having reimbursed the defendants therefor, the defendants were entitled to have that amount credited to them upon their and mortgage to plaintiff. I am satisfied from the evidence that the defendants considered the advance made by them for and on behalf of the plaintiff was to be taken as a payment on the bond and mortgage. In any event, in equity, it should be so applied. No court would adjudge the foreclosure of this mortgage upon an alleged default of an installment of principal and accrued interest amounting to less than the amount owing by the mortgagee to the mortgagors."], "id": "106b52e3-8163-4754-94c0-dacbeb92d514", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The second, third, and fourth sections are inapplicable, so far as they relate to the parties to apply for a guardian ad litem, and the time and mode of applying. They contemplate an application previous to the presentation of the petition. But as sections 128, 129, 130, 133, and the second subdivision of section 134, of the Code, are applicable to a partition case, the action will have been commenced, and then section 116 will regulate the form of applying, and the parties to apply; while the substantial and consistent provisions as to the undertaking or of the guardian are also to be observed."], "id": "3670df88-1777-42eb-a4f1-00fcf8f118fd", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Ismalon International Products, Ltd. (Ismalon), a defendant in default, secured from International Fidelity Insurance Company (International) a labor and material pursuant to section 137 of the State Finance Law in connection with work performed on a New York State project. In the usual language of such bonds, it was conditioned upon the prompt payment by Ismalon of \u20181 all moneys due to all persons furnishing labor or materials * * * in the prosecution of the work \u201d. In addi,*177tion, it was provided \u2018 \u2018 that all rights and remedies on this bond * * * shall be determined in accordance with the provisions of said section \u201d (\u00a7 137)."], "id": "47ac7f5b-9cc0-483b-b18a-a6a12f98d4a2", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Stumpf v. Hallahan (101 App. Div. 383; affd., 185 N. Y. 550) the action was based upon a , to recover for a deficiency arising from the foreclosure of a mortgage on land in New Jersey \u201c given to secure the bond.\u201d The New Jersey statute, among other things, provided that in all cases where a bond and mortgage were given for the same indebtedness, the proceedings to collect the debt shall be: First, to foreclose the mortgage, but no deficiency judgment can be obtained in the foreclosure action; second, if the property does not sell for enough to satisfy the debt, interest and costs, an action may be brought on the bond for the deficiency within six months after the sale; third, if the mortgagee recovers a judgment for the deficiency in an action on the bond, the foreclosure is opened and the mortgagor may redeem within six months after the entry of judgment. The plaintiff had waited almost three years after the *1024foreclosure before bringing an action upon the bond. The justice who tried the case decided that the short New Jersey Statute of Limitations was binding and a bar to the maintenance of the action. The Appellate Division, First Department, in an opinion by Justice O\u2019Brien, affirmed the court below. It held that the New Jersey Statute of Limitations was applicable, and since the action was not brought within six months it was barred."], "id": "d95055b9-bd78-47d2-8266-d9ec4dc864e4", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The said referee reported a balance in the hands of the executor belonging to Miss Mary E. Baker of $9,551.59, consisting in part of a and mortgage described, and the residue, \u201c or most of it,\u201d, on deposit in the executor\u2019s name in some of the banks of the city of Oswego, and that \u201c the said Mary E. Baker, residuary legatee under the provisions of the will of the testatrix, is entitled to a judgment directing that the balance should be paid over to her, * * * and requiring and adjudging that the executor, Charles N. Baker, deliver over to the said legatee the said mortgage and the accompanying bond, if there is one, mentioned in the inventory of the estate, * * * and that said executor pay over to the said legatee Mary E. Baker, the sum of $8,051.59, balance of the legacy found due on this accounting to the said legatee Mary E. Baker, and such further sums as he may have received, or shall hereafter receive, for interest on two government bonds of $500 each, .after deducting therefrom one per cent commissions, and adjudging that all moneys received from collections of securities belonging to the estate, which have come into the hands of the said executor and which remain subject- to his order or control, be deemed and declared to be held by him in trust for the said residuary legatee Mary E. Baker, until the full amount found due her upon this accounting be fully paid and satisfied.\u201d"], "id": "0c2e3e47-b19c-4cf0-9bc1-c419bed6c2ba", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["because S.D. was incarcerated with a release date of September 2, 2019. Mother and S.D. did not appear at the September 17, 2019 dispositional hearing, at which the parties submitted on disposition. The Agency advised the court that the paternity results excluded S.D. as the biological father of the minor, and he was dismissed from the dependency proceeding. At the December 3, 2019 hearing on paternity issues, the Agency informed the court that mother named L.B. as the father of the minor. L.B. stated he believed he was the biological father, so the court ordered DNA testing for him. DNA testing excluded L.B. as the minor\u2019s biological father and he also was dismissed from the dependency case on January 21, 2020. During this hearing, with all parties present, the court inquired, \u201cAnd do we have any other candidates as possible father?\u201d The Agency responded, \u201cNot that the mother has told us at this time.\u201d On February 28, 2020, S.D.\u2019s sister and her husband, who had been caring for the minor during the proceedings, filed a request to be appointed as the minor\u2019s de facto parents. The Agency\u2019s March 5, 2020 status review report reflected that mother gave father J.E.\u2019s name as another alleged father of the minor in March 2020 but did not provide any identifying or contact information to assist the Agency in locating him. The minor was stable in placement and shared a strong with her caregivers, who were willing to adopt the minor if mother failed to reunify. Mother was not present at the March 10, 2020 hearing and the court ordered her reunification services terminated and granted de facto parent status to the minor\u2019s caregivers. On May 11, 2020, the Agency filed a declaration naming father as the alleged father of the minor, stating that reasonable diligence was exercised in attempts to locate father, as demonstrated in the absent parent locator report dated March 26, 2020, and requesting that service to father and any unknown father of the minor be made by publication in the newspaper. An order for publication was signed by the court on"], "id": "575f5f06-fabe-4fba-8b76-583b071c4f5c", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["To bring the case within the statute of frauds, it is necessary to prove that the judgment was in fact fraudulent and without a valid consideration in its concoction, (4 East, 1, 14,) for such are the express provisions of the statute by which the penealty sued for is given, (1 R. L. 76, \u00a7 4.) The evidence produced and offered does not pretend to shew that the judgment was without a good and bona fide consideration ; on the contrary, it proves and offered to prove nothing more than the proceedings of the deputy sheriff under the defendant\u2019s execution at Geneva, while the defendant's were in the city of Albany; for the plaintiffs have neither proved or attempted to prove that the defendants were cognizant of those proceedings. How, then, does this evidence prove fraud in entering up a judgment on a and warrant executed three years previous ? Can the proceedings of the deputy sheriff under the execution, without the interference of the defendants, involve them in fraud, and subject them to a grevious penalty 1 or can those proceedings, if irregular, relate back to the execution of the bond and warrant and entering up of the judgment ? Suppose the whole were bona fide and for good consideration; would any irregularity of the sheriff or his deputy in relation to the proceedings under the execution impugn either the bona fides or consideration of the judgment ? This would indeed be a novel doctrine applicable to penal statutes, and repugnant to the settled rules of law in such cases. I wish not however to be understood that I consider the proceedings of the deputy sheriff as irregular, *108for that, in my judgment, is not a point before the court.: wpaj- j mean to say is, that the defendants cannot be subjected to the penalty of the statutue for his misconduct."], "id": "c3043894-f6b4-43a4-96ab-de8e17a7b2e6", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Municipal Housing Auth. v. Hatfield Elec. Corp. (264 App. Div. 99) is also distinguishable, because there the contract contained a provision whereby the Authority could withhold money earned under the contract for the purpose of paying laborers and materialmen. In that case there was no payment but only a performance bond and a default on the part of the contractor. The contracts involved in these cases contain no such provision and there has been no default in performance."], "id": "edd6aff4-d977-4a0a-b9a6-7d1a2398c1b7", "sub_label": "US_Terminology"} {"obj_label": "Bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Article VII of the MCFFA Resolution, which relates to the trustee\u2019s duty of care, provides in relevant part that the trustee shall not be liable \"except for its own negligence or default,\u201d and that \"no implied covenants or obligations shall be read into this Resolution.\u201d (Art VII, \u00a7 703 [1].) The Resolution further provides that the trustee will not be held liable \"for any action taken or omitted by it in good faith and believed to be * * * within the discretion or rights conferred upon it\u201d (\u00a7 703 [3]), and provides that the trustee shall be indemnified \"against any liabilities which it may incur in the exercise * * * of its powers * * * and which are not due to its negligence or default\u201d (\u00a7 703)."], "id": "cf534d9a-45c7-4630-80ff-2b42f9ed5f03", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Mother testified at the February 16, 2018 hearing that she had not been given an opportunity to provide information to the Tribe regarding her progress with her services. She explained that she wanted the Tribe to know that she had completed domestic violence classes and therapy, and that she had healed. She also testified that she opposed the tribal customary adoption because she wanted to raise her children herself. She told the court that she was living on her own and maintained that she had learned \"red flags\" and other warning signs from participating in therapy and *30completing domestic violence classes. She testified that she had left four messages for the Tribe after she received the tribal customary adoption proposal, but had not been *142contacted by anyone from the Tribe. On cross-examination, Mother denied that she had spoken about A.S. and E.S. with the tribal social worker in October 2017. The court concluded that testimony about visitation, Mother's progress in services, and her with the children was not relevant to the issues to be determined at the hearing."], "id": "9f9c488f-1eef-4944-8192-55136d51293b", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The infant plaintiff attained his majority on April 20, 1938, and thereafter and on or about July 12, 1938, the successor of the chamberlain of the city of New York, the city treasurer of the city, of New York, issued a certificate to the plaintiff, wherein he stated that there was on deposit with him as of July 12,1938, to the credit of the plaintiff, the sum of $532.46 in cash, and the aforementioned $1,400 participating interest. Said certificate further stated that the said sum of $1,400 credited to plaintiff\u2019s account was invested in said and mortgage on February 20, 1929, by the then city chamberlain, the defendant Charles A. Buckley."], "id": "d20ec007-892f-4509-aef9-dba8a472cec9", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This disposition of the case we think erroneous. If this doctrine were to be adopted into the body of the law, it would be only necessary for the holder of a liquor tax certificate to absent himself for a few hours a day from his place of business, to avoid the penalty following a violation of tliis provision of the Liquor Tax Law during his absence; or, in the event of one person holding two liquor tax certificates, his continued absence from one would be a sufficient defense to any revocation proceeding that might be instituted against him for the violation of section 23 of the Liquor Tax Law by his agent at such place of business. We cannot believe that the Legislature intended that the words \u201c suffer or permit\u201d should receive the interpretation given to them by the learned Special Term. It has been held that where a liquor tax certificate has been issued or transferred to a person upon his application and filing of a , he is the principal, whom the law will look to during the conduct of the business, and will hold responsible for compliance with the statutory provisions. (Lyman, v. Kurtz, 166 N. Y. 274.)"], "id": "5f91704f-9fe9-488e-a412-406034861211", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It further appears that on the eleventh day of May following, Bailie, Dale and Roberts met at the office of Davies & Work, the attorneys for the Mutual Life Insurance Company, who were to make a loan on the property, and the contracts to which reference has been made were carried out in the following way: Bailie, it appears, had not at that time given any deed to Dale, and at the request of the latter the conveyance was made directly to Roberts of the fifty feet and ten inches on the First avenue, and for the consideration already expressed, to wit, $41,000. To this course, Roberts assented, and secured the consideration for the transfer by executing and delivering to the Mutual Life Insurance Company a and mortgage for $16,000, and a second bond and mortgage to Bailie, which is the one in suit, for $9,000, and by these instruments the sum of $25,000 which he was to assume was made up ; and he further executed and delivered in escrow a deed to Dale of the Second avenue and Ninety-fourth street lots for the consideration of $16,000. By this arrangement it further appears that Bailie was paid the $15,000 to which he was entitled, as a consideration for the sale of the premises originally made to Dale, and was reimbursed the $5,000 which he advanced according to the agreement between the latter and himself, part payment of it being made by the $9,000 bond and mortgage, which was declared in the mortgage to secure a portion of the consideration or purchase-money expressed in the deed from Bailie."], "id": "3a623851-948f-4a9b-afd9-292c4305073a", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court, therefore, had jurisdiction of the subject-matter of the action, and the sued upon complies with the-statute. It is further claimed that the execution is void for the reason that it is directed to any constable of the county of Erie. The constable who received the execution in this case *533answers this description; he is a constable of the county of Erie, and his appointment by the judges of the Municipal \u25a0Court does not deprive him of this status. Besides, the Municipal Court Act is silent as to whom the execution shall be directed. It provides, section 458, for the issuance of an execution; we are, therefore, relegated to the practice of Justices\u2019 Courts for the proper direction of it."], "id": "ef10eae0-f003-49c3-8247-adc2c5f948a0", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendants gave plaintiff a which recited that the latter had loaned the former substantially her entire possessions upon which she was compelled to rely for support; its condition was that interest on the principal sum should be paid her quarterly and also, such principal sums of $100 on ten days\u2019 notice, \u201c as the said Nancy may need and shall require to be paid for her comfortable *651support and maintenance.\u201d On her death any remaining principal was to be paid to specified persons."], "id": "7dc8ab5e-4543-414a-92a6-1524ae35dea9", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*896In May 2017, the trial court granted McMains's motion to extend time pursuant to Penal Code section 1305.4.3 In November 2017, Accredited moved to vacate the forfeiture and exonerate the . Accredited argued the bond was exonerated when the trial court released defendant on his *666own recognizance. In supplemental briefing, Accredited argued the bond was exonerated when the trial court increased the bail amount to $ 290,000 but released defendant on the $ 215,000 bond, and the two bonds combined were void as they exceeded the limitation of their power of attorney. After ordering the transcript of the June 30, 2016, hearing, the trial court denied Accredited's motion. The trial court entered summary judgment for $ 290,000 on January 29, 2018."], "id": "a3420283-e44e-40c2-bab1-211c7a668e92", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The distinction is plain between such cases as the present and those arising upon proceedings in invitum against a party, where he is compelled to. give a or other obligation to procure the release of his person or estate from process or other claims sought to be enforced against him under proceedings void for want of jurisdiction in the officer who assumes to exercise it, and where the power under which a wrong is attempted to be enforced only originates in such void jurisdiction. The voluntary presentation of such a bond as that sued on in this case, for the purpose of acquiring rights not previously possessed by the party offering it, brings the case within the principle of both legal and equitable estoppel, by which a party is precluded in a court of justice from denying his own acts and admissions, where they were designed to influence the conduct of another, and did so influence it, and when such denial would operate to the injury of the latter (Dezell v. Odell, 3 Hill, 215; Herm. on Estop. \u00a7\u00a7 320, 321), or has bound himself by a written instrument for the fidelity or good conduct of another in a private trust , or public duty, for acts done in that capacity (Herm. on Estop. \u00a7\u00a7 250, 251). The authorities of our own courts fully sustain the liability of the defendants as sureties upon the bond in suit for the assets that came into the hands of the principal, the administrator, without right of question as to the jurisdiction of the surrogate by whom he was appointed to office."], "id": "ab05e327-b3d8-4657-9228-50a365553511", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["However, the force of the Taylor case as an authority has been weakened, if not overthrown, by Philadelphia & Reading R. R. Co.\u2019s Appeal, 4 Am. & Eng. R. R. Cases, 118. The same , the issue of which was declared in the Taylor case as being beyond the power of the railroad company, was in the year following the decision of the Federal court held by the Supreme Court of Pennsylvania to be legally issued as an incident of the company\u2019s power to borrow money, notwithstanding that it took away the right of redemption. The reasoning of the court in upholding the legality of the bonds is strikingly applicable to this case. I therefore give the following extensive quotations from page 122, et seq.: \u201cIt is urged however, that this transaction is not a borrowing of money within the implied powers of jhp. company; that the meaning of the word \u2018 borrow \u2019 as applied to moneyed transactions involves an obligation to return the sum or thing borrowed. This is a narrow view of the subject. It is true we often use this word in the sense of returning a thing borrowed, not specie, as to borrow a horse. But it is not limited to this sense.\u201d"], "id": "a995aee2-02dd-4b81-af85-195d798a4842", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In contrast to the strict construction of the statute urged herein by defendant, plaintiffs, in pragmatic fashion, point to the reality of the situation, by which defendant was permitted to use the initial down payment for its own purposes during the period after the was filed. While plaintiffs concede that the statute does not expressly address the issue, they argue that they are entitled to interest during the period since defendant had the use of their money."], "id": "f14f4de5-3d23-47d6-bb15-d92bc2e80143", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Now in the ease before us, as heretofore stated, the plaintiff by affidavits showed a voluntary destruction of the notes, and then gave in evidence the which describes the notes as having been executed. *225This is the entire testimony upon this branch of the case. The affidavits being addressed only to the court, solely upon the question of the destruction of the primary evidence, there was no evidence before the jury but the bond,- which only tends to prove the execution, not ft\u00a9 delivery, of the notes described therein."], "id": "1e67a503-7ef8-4549-b20a-87c832aa1363", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Prior to the institution of the instant proceedings, the petitioners sought injunctive relief in the Supreme Court of this county without success and the determination of the lower court was affirmed on appeal. (Prime v. Nichols, 252 App. Div. 446.) Thereafter a notice of claim on the , demanding immediate payment thereof with interest, was served on the executrix and was formally rejected."], "id": "e9f0e81f-92fb-4276-9758-c5220acdd747", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["6. Development. The agreement was made by and among Panterra GP, as the sole general partner, and multiple limited partners, under Texas law. The agreement states that \u201c[t]he purpose of the Partnership shall be to engage in any lawful act or activity for which limited partnerships may now or hereafter be organized under the laws of the State of Texas, including the business of providing real property development services.\u201d Exhibit K consisted of documents pertaining to a to release mechanics lien recorded by Movie Grill and its surety company. The bond to release mechanic\u2019s lien was executed by Movie Grill on October 18, 2018. The bond references the lien in the name of Panterra Development dba Panterra Construction. On May 20, 2019, the trial court sustained the defendants\u2019 demurrer. The court observed that Panterra GP had filed an \u201cex parte request seeking leave to file an amended complaint to allege an additional cause of action to reform the Agreement due to unilateral or mutual mistake.\u201d However, the court noted: \u201cAs counsel for Panterra [GP] conceded at oral argument on the demurrer, the theory of reforming the Agreement based on mistake and thereby putting Panterra [GP] in the position of being the Contractor does not save the cause of action to enforce the mechanic\u2019s lien recorded in the name of Panterra Development as the lien claimant. For that reason, the demurrer to the First Cause of Action is sustained without leave to amend.\u201d The court granted leave to amend the remaining causes of action so that plaintiff could raise its \u201cnew theory of mistake with respect to the contract.\u201d Panterra GP\u2019s Third Amended Complaint Panterra GP, filed a third amended complaint, as summarized above. Movie Grill filed a demurrer to the third amended complaint; to which Rosedale joined. The court held a hearing on the demurrer to the third amended complaint on July 26, 2019. The court issued a written ruling on the defendants\u2019 demurrer to the third amended complaint"], "id": "0a337f16-14f0-4326-ab14-d1469f331237", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The referee was right in holding that plaintiff was not chargeable with fraud in telling, at or before they signed the , that the patent-right notes were not a valid claim against the firm. He *663declared to tbem tbe facts relating to tbe notes, and tbe action brought to enforce tbem, and gaye it as bis opinion that tbe firm was not liable on tbe notes."], "id": "2f4d068f-1c4f-4d39-b2b4-769ad262c3de", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff is the holder of a issued by the defendant company in the sum of $1,000, payable by the terms of the bond, to the holder thereof on January 25, 1932. The plaintiff claims to be entitled to judgment on this bond, apparently ignoring other provisions therein contained. From the third paragraph of the bond, it appears that the bond of the plaintiff is one of a series of 790 bonds maturing on different dates. By the fourth paragraph of the bond it is provided that \u201c The payment of all of said bonds * * * is equally and ratably and without priority or preference of any bond over any other * * * secured by mortgage or deed of trust bearing even date herewith, duly made, executed, acknowledged and delivered by the Company to Herbert S. Martin as Trustee.\u201d The fifth paragraph of the bond provides: \u201c For a more particular description of the covenants of the Company, as well as a description of the mortgaged property, the nature and extent of the security, the rights of the holders of the bonds, the terms and conditions upon which the bonds are issued and secured and the method of payment thereof, reference is made to the said mortgage or deed of trust.\u201d"], "id": "de5dc27a-74b8-4d7c-a75d-45ccb69ec92f", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The EDJA's current version includes a general definition of \"public security authorization\": \"an action or proceeding by an issuer taken, made, or proposed to be taken or made in connection with or affecting a public security.\"31 Additionally, Section 1201.021 itself enumerates six categories of \"public security authorizations\" that are \"includ[ed]\" within that class.32 SJRA has urged that the subject matter of its claims-the GRP Contracts, the 2017 Rate *667Order, and the rates charged thereunder-implicate two of the enumerated categories of \"public security authorizations\"-\"the execution or proposed execution of a contract\" and \"the imposition of a rate, fee, charge, or toll or the enforcement of a remedy relating to the imposition of that rate, fee, charge, or toll\"33 -or at least come within the general definition, the latter being so because each is an \"action\" or \"proceeding\" that SJRA took or made \"in connection with\" or \"affecting\" its GRP revenue bonds. SJRA elaborates that \"the [GRP Contract] revenues are pledged as the sole security for the bonds; SJRA's covenants require rates set in compliance with the GRP Contracts; and the GRP Contracts require SJRA to impose a rate at a level that enables payment of the bonds, operation of the plant, and funding reserves.\""], "id": "7fe834e5-2461-4228-90b0-b9c643e68673", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Objections eleven and eighteen relate to the actions of the executors in the litigation relating to the automobile. The eleventh objection asks the surcharge of the executors in the sum of $10 paid for an appeal and $169 paid for the minutes of the trial of the discovery proceeding. The eighteenth objection is to the continuance of the appeal in the discovery proceeding. The general guardians of six of the eight infant residuary legatees demand that the appeal be discontinued and that the executors be surcharged in a sum equal to the costs, expenses and fees involved in that proceeding. In addition, the respondent in the discovery proceeding, who is also an unpaid legatee, objects to the actions of the executors in continuing the appeal. At the instance of the residuary legatees, the appeal has been stayed pending the judicial settlement of the executors\u2019 accounts by this court. (9 A D 2d 614.)"], "id": "02f0a8b1-8c5d-4815-b93d-2e32ff49fad6", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This is the testimony of the plaintiff\u2019s own witness, and it is not contradicted. Two or three days afterwards the plaintiff commenced this action. The plaintiff, therefore, when he paid the and mortgage, knew (or believed) that he was paying more than was owing. The very fact on which he now seeks to recover was known to him and insisted upon by him at that time, and he made the payment with the intention of suing to recover part of it back again. What he has since discovered (as he claims) is not the fact that $200 more than was credited had been paid, but only the means of proving that fact."], "id": "b40a6917-d31f-4724-9eda-2f6903aac77d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["AMCC attempts to distinguish Dutchess Quarry & Supply Co., in which the Appellate Division expressly found that the contractual reduction of the time period to assert a claim against *211a payment is void as against the public policy enunciated in State Finance Law \u00a7 137, by the fact that the clause at issue there was a notice provision contained in the payment bond itself, rather than being set forth in the subcontract. However, AMCC\u2019s attempt to apply conditions precedent to suit set forth in the subcontract and not contained in the statute is equally offensive to the policy expressed in the statute regardless of which party created the conditions. See Windsor Metal Fabrications v General Acc. Ins. Co. of Am. (94 NY2d 124, 134 [1999]), in which the Court \u201crefuse[d] to look beyond the face and terms of the bond to the contract provisions\u201d in order to subvert the policy expressly reflected in State Finance Law \u00a7 137. Consistent with State Finance Law \u00a7 137, the payment bond creates an independent obligation, not contingent upon the terms of the subcontract, to pay for labor and materials provided under the subcontract, subject only to defeasance upon payment by the contractor.5 See Blandford Land Clearing Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa. (260 AD2d 86, 95 [1st Dept 1999]), in which it is noted that where a subcontractor\u2019s right to recover under the contract fails, the subcontractor retains the right to seek compensation from the contractor based upon unjust enrichment, consistent with public policy as expressed in the Lien Law. See also Tri-City Elec. Co. v People (96 AD2d 146, 149-150 [4th Dept 1983], affd 63 NY2d 969 [1984]). Thus, although proof of a right to compensation due is a necessary prerequisite to recovery upon foreclosure of a mechanic\u2019s lien, since foreclosure is itself an equitable remedy, the failure to comply with contract provisions may not preclude proof of an entitlement to recover in quantum meruit or unjust enrichment."], "id": "0d6ac26f-7bf4-4e5b-a6ad-4b71408ac269", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Again, it is claimed that no demand or request for the payment of the balance wras ever made, either to Baker or to Baker\u2019s executors, after his death, and for this reason no recovery can be had. Baker was a public officer. He should have had on hand upwards of $36,000 in cash. As treasurer of the county he had no right to invest the same in individual property of his own. If it was not on hand, it was because he had wrongfully converted it, for which he would be liable criminally. In such cases no demand is necessary before action is brought to recover the same. The condition of the does not require it. The condition is that he shall pay according to law, not wpon demand, all moneys which shall come to his hands ; that he shall render a just and true account thereof, etc. His last report rendered was not a just and true account. He did not pay according to law these moneys, nor account for the same. On his death his executor did not pay over the moneys on oath, as he was required to by law, and for the very good reason that they were not found on hand."], "id": "f8f451d5-1f26-485f-8271-0f872bc652e6", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is, however, claimed by the defendant that the in question is not a contract of insurance. It maintains that it insures the *158United States government against the failure or default or improper acts of plaintiff, but does not agree to pay plaintiff any sum under any circumstances, either as indemnity or otherwise. It is true that the contract in this case is in the form of a bond of indemnity, but that does not alter the fact that it is essentially a contract of insurance and governed by the rules of law applicable thereto. Speaking of fidelity insurance it is said in 25 C. J. 1089: \u201c It is well established that guaranteeing the fidelity of employees and persons holding positions of trust is a form of insurance, and that such a contract is subject to the rules applicable to insurance contracts generally, and not to the rules applied to ordinary sureties for accommodation.\u201d"], "id": "b2149a78-225e-4336-9a0a-dc9c5ddd203e", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although the life tenant is not specifically named as a trustee in so many words, he nevertheless becomes trustee for the remainder-man, and if it should be claimed that he should give a as being on the basis of a testamentary trustee, under section 169 of the Surrogate\u2019s Court Act, it must be remembered that that section does not require the giving of a bond by the trustee where *22the will was executed prior to September 1, 1914. See Matter of Michel\u2019s Estate, 160 N. Y. Supp. 520."], "id": "49e05ce0-7351-4ae9-869e-c9f5b2bbbdeb", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["None of the authorities with which the court is familiar has indicated the number of instances of wrongdoing which must be shown to have occurred in order to establish that such a habit of mind exists. This court is unprepared to make the dogmatic *101assertion that two or three deviations from, the path of rectitude such as have here been demonstrated to have occurred would inevitably establish this requisite mental attitude, nor would it asseverate the contrary. Whichever answer to this question were to be adopted, however, it would be the height of folly to intrust the affairs of the estate to the unrestrained disposition \u201c without \u201d of one who has prima facie demonstrated to the satisfaction of this court his untrustworthiness in estate affairs. The determination in a competent court of the actual existence or non-existence of such unworthiness cannot be long delayed and is conceivably capable of acceleration by the applicant himself, if he so elects. If appointed at the present time and convicted, his removal would inevitably follow on the motion of the court itself. (Surr. Ct. Act, \u00a7 104, subd. 6.) If acquitted, the granting of an application for subsequent appointment would follow on the record as presently constituted. The slight attendant delay would not greatly prejudice his rights, whereas a present appointment might conceivably be attended by serious consequences to the estate. The court accordingly determines that on the record as it stands, Isidore is incompetent to receive letters within the inhibition of subdivision 5 of section 94 of the Surrogate's Court Act."], "id": "eefb8749-090a-45d2-9dd0-56bc19ec1654", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff, in its motion for summary judgment, refers to paragraphs 1, 2 and 3 of the complaint alleging the execution of the , an acceleration clause in case of default. It also refers to paragraph 4 which alleges an extension agreement and paragraph 5 citing certain provisions of the mortgage. None of these instruments or documents have been submitted to the court on plaintiff\u2019s motion. A motion for summary *280judgment requires the submission of evidence, not mere referral to recorded instruments."], "id": "ecceaab0-387c-47bd-94b1-8c4ad970b7c2", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The case of Duncan v. Lyon, 3 Johns. Ch. R. 351, is an important one on this subject, and decides expressly, that unliquidated damages are not the subject of set off. A suit at law had been brought to recover damages from the defendant, for his refusal to perform his part of a contract in furnishing timber, provisions, &c.; the defendant wished to set off damages *122which he claimed out of the same contract, Chancellor Kent says, the demand at law was in the nature of redress for a wrong-or injury committed, and not for a debt due; it rested entirely in uncertain and unliquidated damages. There cannot be a set off, even of a debt against the demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant, if it existed in him. There must be mutual debts. This is the settled doctrine in the courts of law. The case of Howlet, &c. v. Strickland, 1 Cowp. 56, determines the same point. It was an action of covenant; the defendant pleaded that he had sustained greater damages by reason-of the breaches committed on the part of the plaintiff than the value of the damages sustained by the plaintiff, on occasion of the breach alleged in the declaration. There was a demurrer to the plea, because these damages could not be pleaded by way of set off. Lord Mansfield said, the act of parliament and the reason of the thing, relate to mutual debts only; these damages are no debts. Aston, justice, said an unliquidated demand, or uncertain damages, cannot be set off. Weigall v. Waters, 6 T. R. 488, was covenant for rent, by the landlord; the tenant was not permitted to set off uncertain damages arising from a breach of the covenants b; the landlord in the lease on which the action for the rent was founded. Montague on Set-off, 20, 21. There must be mutual debts to be set off. The demand of the plaintiff and the demand of the defendant must be a debt. A set off cannot be pleaded to a debt on , conditioned for the performance of covenants, where damages are to be assessed by a jury, nor to an action for general damages in covenant or assumpsit. Bornman v. Tooke, 1 Esp. N. P. 278, was an action of assumpsit, for freight upon a cargo of timber. The freighter agreed to load his ship with the greatest expedition, and sail with the first fair wind, direct to Portsmouth: the ship arrived, and the cargo was delivered. The plaintiff brought his suit for the specific freight agreed. upon. The defendant claimed damages, because the ship had not sailed direct to Portsmouth. It was held, that as there was a specific agreement for specific freight, the defendant should bring his cross action for any damages he might have sustained by the default of the plaintiff. In Gordon v. *123Bowne, 2 Johns. R. 155, it is determined that a set off cannot be permitted to a count on an open policy of insurance. A promissory note on the part of the defendant cannot be set off against a demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant if it existed in him; to be set off, the demands must be mutual. In Livingston v\u201e Livingston, 4 Johns. Ch. R. 292, it is said to be well understood that uncertain damages are not the subject of set off. In Sherman v. Ballou, 8 Cowen, 310, Chief Justice, Savage, speaking of a set off, says, the rule in a court of law is, that the cross demand to be set off must be liquidated, founded on contract, and one for which an action can be sustained at law. In Watts v. Coffin, 11 Johns. R. 494, it was held, that the violation of the covenant on the part of the grantor, to allow common of pasture, and of estovers, was no defence to an action for rent; and it was there said, that there never was a case of set off in equity where the damages proposed to be set off against a clear and certain debt were unliquidated, and depended upon an unsettled legal right of doubtful aspect"], "id": "fe7ebed1-f21d-4348-bffc-da138f86870d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The agreement was thus, in effect, incorporated in and formed a part of the ; and the condition of the bond was the payment of the sum of five hundred dollars, if, according to the provisions of the agreement, that sum should become payable to the plaintiff. Both the bond and the agreement contemplate the performance of the covenants contained in the agreement on the part of De Forest, and the payment to the plaintiff of five hundred dollars, in- case he should fail to keep, or should break the agreement."], "id": "2e8fefd2-4c0d-4805-914b-7c510ab30ed7", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Dominic R. Massaro, J. Huwe Burton was arrested on January 6, 1989, and charged with the murder of his mother. Indicted for this and related crimes, the then 16-year-old tenth grader was arraigned on February 8th; bail was set in the amount of $150,000 cash or surety (Hecht, J.). Thereafter, Mr. Burton\u2019s case was referred to this court for all purposes. On February 23, 1989, on application, the bail amount was reduced to $100,000. In order to gain his liberty pending trial, and in accord with the New York bail statutes, Mr. Burton attempted to post a bond secured by real property."], "id": "64fd133f-8cb6-4822-903f-807a19eab26d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The participation in the mortgage in question was mentioned in several schedules of the 1930 account. It is first mentioned in Schedule C, Part II, showing investments by the trustees, as follows: \u201c 1929 Nov. 25 Purchased $123,000 Participation interest in $650,000 and mortgage of Nathaniel W. Keane covering premises 1186 Lexington Avenue and 112-4 Bast 81st Street, Borough of Manhattan, City of New York; interest at 5%% payable May and Nov. 25th $123,000.00 \u201d. Other references to this investment in said account were in substantially the same language."], "id": "9d2e50cb-9001-4a56-bc58-8aafc2e3a2fd", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The action is on a , conditioned tliat the defendant Giles S.. Brisbin should faithfully discharge the trust reposed in him as executor arid trustee under the will of Catharine S. Bailey, deceased. The complaint contains two counts. The demurrer is to the entire-pleading on the ground that it does not state facts sufficient to constitute a cause of action. If therefore either be good the demurrer was properly overruled. The point of the demurrer is this : that the liability of the sureties (the parties demurring) is not shown in and by the complaint, inasmuch as it contains no averment that the default of the executor had been established against him by the order or decree of the Surrogate\u2019s Court, and we are cited to section 2607 of the Code of Civil Procedure, and to Hood v. Hood (85 N. Y., 561) in support of this objection to the pleading. The answer of the plaintiffs counsel to this objection is that the first count in the complaint charges a breach of the bond in this; that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds-thereof as directed and required in and by the will, and that over such breach and as to such ground of action the Surrogate\u2019s Court had no jurisdiction. Undoubtedly, the counsel is right in lii-s position that the surrogate had no jurisdiction over this subject. If so, the plaintiff is pursuing the only remedy available, or that can be made available to her. The case of Hood v. Hood does not determine the point against the plaintiff. There the action was-brought to compel an aaooimting by the executrix and executor, and to charge the executor with funds of the estate alleged to-have been misapplied and converted by him to his own use, and to compel his sureties to pay the sum or amount with which he should properly be charged. That was a matter over which the surrogate had jurisdiction. Not so here. This suit is-for damages, not to recover a balance to be found due on an accounting. How much may be recovered, or whether the recovery can be more than nominal, is not a question here before us. That will become matter of proof on the trial. Here it was impossible to obtain a judgment or decree in the Surrogate\u2019s Court for *581the breach of the bond counted on. In such case an action may be maintained for such breach by the injured party without attempting an impossibility. (Williams v. Kiernan, 25 Hun, 355; Haines v. Meyer, Id., 414, and cases there cited.) The doctrine of these cases is not impugned by the decision in Hood v. Hood. That case holds this, and this only, that where the remedies required to be pursued may be pursued, they must be resorted to. But the rule is there recognized that where special circumstances exist showing a necessity for the interposition of the court in order to the attainment of a right, and those circumstances are stated, the court will not hold that which is impossible to be a bar to an action for relief."], "id": "1a7c954a-4178-4120-a76d-4e314f48a9d7", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The case of People v. Jayne (27 Barb., 58) holds that a conditioned to appear on a certain day and not depart without leave, is valid ; and also that such a bond is broken, it tire accused person departs during that day and before the final decision. It decides nothing on the question whether^ if the justices make another adjoui\u2019nment to a day some three weeks distant, the sureties are bound to produce the accused at that time. So the case of People v. McCoy (39 Barb., 73) decides that a recognizance to a term of the Oyer and Terminer requires the party to be present at any time during that term before his case is disposed of. Such a recognizance, unlike the present bond, requires him to abide the decision of the Court. But the case does not decide-that such recognizance binds him to appear at another term. (People v. Greens, 5 Hill, 647.)"], "id": "9281e5a5-1b8d-4701-bc48-1a3a02dd3219", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It has been contended, that if the appellant took nothing as assignee of the mortgage, by reason of the merger, then he is entitled to the premises, under the words granting the same to him, his heirs and assigns forever. This ground, I think, would be tenable, if the granting words were not restricted in their operation; but the habendum is, \u201c to hold the same as fully as the mortgagee might hold and enjoy the same by virtue of the mortgage and accompanying the same.\u201d These expressions unequivocally show that no right or title was granted, but such as might be acquired by the assignment of a subsisting mortgage."], "id": "39545fa5-8c53-4ede-bfe9-601d968f1b51", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["See Andrade v. N.A.A.C.P. , 345 S.W.3d 1, 7 (Tex. 2011) (recognizing general rule in Texas that \"a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts\"); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555-56 (Tex. 2000) (explaining that \"[u]nless standing is conferred by statute\" or claimant can show \"a particularized injury distinct from that suffered by the general public\" with respect to \"challeng[ing] a governmental action or ... assert[ing] a public right,\" the claimant must come within \"long-established exception to this general rule\" by which \"a [property] taxpayer has standing to sue in equity to enjoin the illegal expenditure of public funds, event without showing a distinct injury\"); see also Williams v. Huff , 52 S.W.3d 171, 180 (Tex. 2001) (holding, \"for prudential reasons, that paying sales tax does not confer taxpayer standing on a party\" while acknowledging that status as property taxpayer would suffice); Alejos , 433 S.W.3d at 122-24 (observing that EDJA would facially permit \"interested party\" to intervene, subject to the security- requirement, despite lacking either a particularized interest or taxpayer standing)."], "id": "1bcd01b0-6fa4-4628-867a-1406c96249be", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the 17th of August, 1866, whilst the vessel was held under the first attachment, a second attachment was issued in the Circuit Court of Norfolk, which was served by a delivery of a copy of the writ to the general agent in charge of the steamer, the vessel then being in the possession of an officer of the court under the first attachment. On the 3d of September, 1866, the steamer was released from the first attachment by the giving of a , upon which day, the plaintiff in the second attachment, to enable him to take and hold possession of her, gave the requisite bond under the Virginia statute; but when the officer of the court proceeded to the wharf, she had been cast loose, and was moving down the river on her way to Baltimore, to be delivered to the plaintiff, so that the officer could not take possession of her. The second attachment was in a suit brought against the defendant. The plaintiff in that suit pro*255ceeded against the defendant hy the publication of a summons, and at the expiration of the period of publication, the defendant not having appeared in the action, judgment was recovered against him on the 25th of June, 1868, by default, for $53,879 35. The plaintiff, after the recovery of this judgment, instituted proceedings in the same court for the sale of the steamer, and the plaintiff in the present action, upon receiving-notice of the motion for the sale of the steamer, at once took steps to defend its title, and, as it was authorized to do under the Virginia Code, it, on the 29th of January, 1869, presented a petition to the court, disputing the validity of the attachment, claiming title to the steamboat as the owner of it, and simultaneous with this petition it tendered a plea to the jurisdiction of the court, and moved to quash the attachment."], "id": "51f54c6a-9e10-4149-8052-d50059bda13f", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The bank contends that until it sees fit to institute some positive action in the premises, to foreclose either on the land or on the collateralized stocks, or to begin action on the , it cannot be forced to change its original position, nor to surrender any of its security, or any property lodged with it under a pledge of such general scope as Exhibit 8 expresses."], "id": "5c47e041-2f1d-4088-9aab-c2e8fca0a19c", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The evidence shows that the properly thus conveyed to Mesick is worth about one million ($1,000,000) dollars, for which he paid at the time the conveyance was executed, $500. He has since paid the further sum of $900, He also executed to Sutter, Jr., a in the penal sum of $25,000, the conditions of which as testified to by the witness are \u201c very singular.\u201d The bond was probably given to secure the payment of a certain portion of the proceeds that Mesick might realize from sales. Mesick\u2019s object in connecting himself with the Recorder\u2019s office was to engage in a gigantic speculation\u2014having devoted from one to two years to an examination of the records, having ascertained each and every flaw and defect, he takes counsel and proceeds to Acar pulco to accomplish his ends; although he was well aware that the property that he was thus seeking to obtain had been previously sold and purchased in good faith; that a valuable consideration had been paid for it\u2014that it embraced a large portion of the real estate in this city\u2014that valuable buildings had been erected upon it, and large sums of money expended in improvements. Although he was well aware that it was held by innocent parties, and who, for years, (so far as the gutter title was concerned,) had been in the undisputed possession of it. Although he well knew that from many he was endeavoring to take their homesteads, acquired, perhaps, after many years of hard toil and *35labor. Although he was well aware that he was seeking to take from Ms neighbors that which rightfully and justly belonged to them; that he was throwing a cloud upon titles in this city, and thereby impairing and retarding its prosperity and growth; notwithstanding all this, he asks the Court to aid'and assist him in carrying out his gross speculation, I should regret to learn that in any civilized country such a fraud could be successfully perpetrated,"], "id": "91adb77b-6df7-4e6e-824a-88ab8bc95ad2", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is immaterial in this case, whether the statute begins to run from the date of the and notes on which the plaintiff ivas bound for M., or from the forfeiture of them, or from tlie earliest payment in 1800, or the latest *293payment in 1810; because, in the last case, the statute had closed upon the demands before the death of M. But I should think the plaintiff had a cause of action when the notes and bonds became payable, and were not paid by M.; and he certainly had, upon the first payment. The breach of the contract existed then, and the statute ought to be computed to have run from 1800, or twenty years and more before the death of M. In Battley v. Faulkner, (3 Barnw. & Ald. 288.) A. delivered to B. wheat, but not of a quality according to contract. B. was compelled by a suit in Scotland, which lasted many years, to pay damages to his vendee, and he then brought assumpsit against A., for breach of contract, alleging, as special damage, the damages so recovered. And it was held, that though such special damages occurred within six years, yet the breach of contract, the gist of the action, was known to B. more than six years before, and the plea of the statute of limitations was held good."], "id": "e0473d4e-b5d8-4bfe-962d-687e0aa1fb1e", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["For some time, it has been the public policy of this State \u201cto give the court in which the foreclosure of the mortgage was had, full jurisdiction over the whole subject * * * and to allow one court to dispose of the whole subject The policy \u201c is applicable to every case where the owner of the mortgage has any personal security for the mortgage debt, whether it be the ' df the mortgagor or the covenant of another person\u201d and its purpose is \u201cto confine all the proceedings to recover a mortgage debt to one court \u201d. (Scofield v. Doscher, 72 N. Y. 491, 493-494.) Accordingly, pursuant to section 1313 of the Real Property Actions and Proceedings Law, the bank, if it had elected to do so, could have joined Amak in the farm mortgage foreclosure action (Weinstein v. Sinel, 133 App. Div. 441, 442) and, pursuant to subdivision 1 of section 1371 of the Real Property Actions and Proceedings Law, could have sought a deficiency judgment against Amak as one \u201c severally liable \u201d (Kerhonkson Nat. Bank v. Granite Sunshine Hotel, 26 A D 2d 713, 714)."], "id": "cf702fac-306d-476f-a506-b4eb1fe5da3f", "sub_label": "US_Terminology"} {"obj_label": "Bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In declaring the statute at issue unconstitutional, Judge Delahanty took it upon himself to decide whether the statute was in the public's interest. He also questioned the timing and wisdom of the *509General Assembly's decision to allow county attorneys to operate traffic safety programs. \"This is precisely the type of intrusion our separation-of-powers provisions were enacted to prevent.\" Appalachian Racing, LLC., 504 S.W.3d at 6. While Judge Delahanty may personally believe that state traffic school is superior to any program established by the county attorney, the General Assembly clearly thought otherwise. \"[T]he Legislature by its statutory declarations is supreme in the adoption of what may be the state's public policy on a particular question.\" Bankers Co. v. Buckingham , 265 Ky. 712, 97 S.W.2d 596, 600 (1936). \"It is beyond the province of a court to vitiate an act of the legislature on the ground that the public policy therein promulgated is contrary to what the court considers to be in the public interest.\" Owens v. Clemons , 408 S.W.2d 642, 645 (Ky. 1966)."], "id": "ab9ec886-907e-43f0-a01c-646f32cb44c9", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Dance and Girdler, 1 New Rep. 34, which was an action on a payable to the plaintiffs and others, as \u201c Governors of the Society of Musicians,\u201d and their successors, conditioned for the accounting to them and their successors for all money received by one Jesse Harwood, upon order of plaintiffs or their successors, the obligees being then an unincorporated voluntary society. The society being afterwards incorporated, it was held that the defendant was not liable for the not ac*374counting for moneys of the society received after the act of incorporation. In all these cases it will he perceived that the doctrine was, that the defendant could only be held liable for the very breach described in the condition of the bonds respectively, and only to the very persons to whom he became bound when he entered into the obligation, i. e., to the persons in whom the legal interest in the contract was vested, and who alone would have had a cause of action had the breach occurred immediately after the execution of the bond or covenant."], "id": "f30edef1-515b-4d84-999d-e78080a78d26", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["that it could infer a likelihood of success from the breach of the restrictive covenant. But, crediting the testimony of Elegance\u2019s chief executive officer, the district court found that \u201cthere [was] ab- solutely no evidence that Alfieri or LaRocca took any information with them from [Vital] to Elegance\u201d or that Elegance had seen any of Vital\u2019s confidential information. So, Vital could not \u201cmake a prima facie showing that Alfieri or LaRocca breached their [agree- ments].\u201d The district court also determined that Vital had satisfied the other elements necessary to secure a preliminary injunction against Maros. Under Florida law, the district court explained, Vital was entitled to a \u201cpresumption of irreparable injury\u201d because it had proved \u201c[t]he violation of an enforceable restrictive covenant,\u201d id. \u00a7 542.335(1)(j), and Maros had not rebutted the presumption. The balancing of harms favored Vital because the district court was un- able to \u201cconsider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.\u201d See id. \u00a7 542.335(1)(g)(1). The public interest favored the enforcement of the restrictive covenants. And Maros\u2019s defenses to enforcement failed. The preliminary injunction contained five operative provi- sions. First, Maros was \u201cenjoined for a period of twelve . . . months,\u201d \u201ccalculated from\u201d the date Vital posted a , \u201cfrom working for Elegance\u201d or other competitors of Vital. Second, Ele- gance was also prohibited during the same period from employing Maros or using any of Vital\u2019s confidential information. Third, USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 7 of 34"], "id": "7c21d67c-d90d-4cff-ba36-1248fd9de0c3", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This court is convinced that where a foreign judgment debtor raises grounds for a stay which would warrant a court in granting relief to a New York judgment debtor, the fact that the foreign jurisdiction requires a should not preclude relief under CPLE 5404 (subd [b]). In the case of Everson v Everson (494 Pa 348) the appellant was appealing an Arizona judgment and was denied a stay under the Pennsylvania Uniform Enforcement of Foreign *232Judgments Act, because he failed to post the necessary bond in Arizona. Nevertheless, the Supreme Court of Pennsylvania reversed the lower court and ordered a stay without the necessity of posting any security. Thus that court held (pp 359-360) that \u201c[wjhile enforcement of the Arizona judgment was technically permitted by the Uniform Enforcement of Foreign Judgments Act, general principles of law relating to the enforcement of judgments suggest that execution on the January 25, 1977 judgment be stayed on equitable grounds due to the proceedings in Arizona subsequent to appellee\u2019s transfer of the judgment to Pennsylvania.\u201d"], "id": "ec5a80b5-c1c4-4358-9576-b1bc10315886", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thomas A. Stander, J. Plaintiffs commenced the instant action by filing a complaint seeking recovery of sums allegedly owed to them by Industrial Contracting, Inc. (Industrial). The basis of this action is a written surety payment executed by defendant Washington International Insurance Company (Washington), dated September 1, 1995 (Bond), naming defendant D. R. Chamberlain Corporation (Chamberlain) as principal. The Bond relates to a project undertaken by Chamberlain as general contractor for Niagara University. Chamberlain, in turn, subcontracted a portion of its work to Industrial."], "id": "0060b4dd-56c3-4488-8a50-f4f00064a5dd", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*430A voluntary conveyance is defined to be a deed without any valuable consideration. [1] In this the books all agree; and I do not understand the counsel in this case to differ resPectinS & TIie adequacy of the consideration does not enter into the question, and only becomes material4o ascera fraudulent intent. But the character of purchase or voluntary is determined by the fact, whether any thing va^ua^e passed between the parties. The execution of a to pay the purchase money, made in good faith, and inten<\u00ede in the sum of $2,500 or deposit a like sum of money to indemnify the defendants for any and all damages that may be incurred if the notice of pendency is not cancelled. In the event of the failure of plaintiff to file such bond or deposit such money, defendants may have the notice of pendency can-celled by filing a bond in the sum of $5,000 or depositing a like sum to hold the plaintiff harmless for any damages he may sustain. Further, in accordance with the quoted section, either party may move to increase or decrease the amount of the bond or deposit."], "id": "67741020-cce7-4bee-9119-58521afc2a62", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although it could be argued that SCPA 801 (1) only permits the court to dispense with the or to reduce the amount of the bond when specifically authorized to do so by another provision of law (see, SCPA 805), this argument runs contrary to the principle that different statutes should, where possible, be read in a manner which is harmonious and carries out the over-all legislative intent. It does not make sense to conclude that the Legislature wanted to give the court more discretion in fixing the amount of the bond of a testamentary trustee as opposed to an administrator, as evidenced by the express provisions of SCPA 801 (1), while at the same time giving the court authority to dispense with a bond for an administrator under SCPA 805 and withholding that authority from the court with regard to a testamentary trustee. Instead, the provisions of SCPA 806 as read in conjunction with the provision of SCPA 801 (1) (c) should be interpreted as requiring a testamentary trustee to file a bond where the will does not exempt the trustee from this requirement unless clear and convincing reasons are presented to dispense with the bond or to fix it at a reduced amount. Such clear and convincing reasons are presented to dispense with the bond or to fix it at *548a reduced amount. Such clear and convincing reasons might be the consents provided for by SCPA 805 or a showing that the filing of a bond is not economically feasible."], "id": "f2d2bb89-0136-44fc-b624-dffb5f737885", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If there had been no such provision in the statute, one who was-about to lend money to the town, through the commissioner, might-well have inquired how he could be certain that the majority of tax-payers had consented. And, even if he should examine for himself (had this been possible), and should become satisfied that a majority had consented, he might fear that, when the bonding of towns should become unpopular, a jury might come to a different, conclusion. Therefore, to enable the town to borrow, and to protect the lender, the legislature authorized him to ascertain from the town clerk\u2019s office, or the county clerk\u2019s office, whether or not the fact that a majority had been obtained had been proved. To that proof he was justified in trusting. To permit the fact thus proved to be now re-examined by another tribunal, as against a. fide holder, would be a great injustice."], "id": "7d6245c7-4e39-4b11-9f31-82a68f4e6b4e", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The executed by the administratrix c. t. a. herein is dated June 23, 1926, and was conditioned upon the faithful performance of the duties of the administratrix c. t. a. and that she will \u201c obey all lawful decrees and orders of the Surrogate\u2019s Court of the County of Westchester touching the administration of the estate \u201d (Surrogate\u2019s Ct. Act, \u00a7\u00a7 121, 135)."], "id": "58f40bef-30b3-4a37-970b-e6211e0492ad", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*497In the attempted transference, into the Code, of the well considered scheme of the Revised Statutes in regard to non-resident executors, an important provision seems to have been overlooked. I refer to the provision which permitted an executor whose letters were sought to be revoked on account of his removal or intended removal from the State, to prevent such revocation by the interposition of a (R. S., part 2, ch. 6, tit. 2, \u00a7\u2022\u00a7 20, 21; 3 Banks, 6th ed., 75). As the law now stands, this is impossible. If it is shown that after the grant of letters an executor has abandoned his residence within the State, or is about to abandon it the Surrogate must (except in certain cases which will hereafter be noted) decree revocation."], "id": "eb857a31-39af-4d0e-9b60-74fed811f0c1", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Johnson v. Meyer (242 App. Div. 798; affd. without opinion, 268 N. Y. 701) the complaint alleged the making of the and mortgage and the agreement therein by the defendant to pay interest semi-annually and to pay taxes as they accrue. The action was not brought to recover the principal of the bond or to foreclose the principal of the mortgage but was brought only to recover unpaid installments of interest and, also, unpaid taxes which had been paid by the plaintiff. The defendant, by answer, alleged that the market value of the property exceeded in amount \u201c all sums due the plaintiff under the bond \u201d and that, therefore, under section 1083-b of the Civil Practice Act, the plaintiff may not have judgment if the fair and reasonable market value of the property equals or exceeds the amount which might be claimed as a deficiency and that the fair and reasonable value of the premises there in question was not less than the amount recoverable as a deficiency. The Appellate Division held that sections 1077-a, 1077-b and 1083-b of the Civil Practice Act do not prevent the plaintiff from suing for interest which had accrued and was unpaid and for taxes which *689had become due, were unpaid and had been paid by the plaintiff, Mr. Justice Hagartt concurring as to the taxes but dissenting as to the interest. The Court of Appeals affirmed the Appellate Division without opinion. (Johnson v. Meyer, supra.) Hence, it was definitely determined in that case, with respect to a bond and mortgage subject to the Moratorium Acts, that the owner of the bond and mortgage might sue and recover unpaid interest and taxes and that the market value of the premises was no defense to such an action. Section 1083-b of the Civil Practice Act provides that in an action upon the bond to recover a judgment \u201c for any indebtedness secured by a mortgage,\u201d \u00e1ny party against whom a money judgment is demanded may set off the fair and reasonable market value of the mortgaged property."], "id": "c6e58946-fde3-4b4c-bb63-20ec467d1b36", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We are at a loss to understand how, upon a trial before a court of special sessions, the defendant can raise the question as to the regularity of the official of the presiding magistrate here suggested. It would be somewhat extraordinary for a judicial officer gravely to take evidence regarding the validity of his own title to the office which he fills, and to then determine, from the weight of that evidence, whether or not he was qualified to act. The embarrassment which would result from such a procedure is so apparent as to make comment or citation of authority unnecessary. If, in fact, the justice is not legally qualified, the law affords an adequate and speedy method of ousting him from the office which he usurps; but our system of jurisprudence hardly goes to the extent of authorizing a proceeding so abounding with possibilities for making the administration of justice ridiculous as to permit him to act as a judge in determining whether or not he is one. It does not sufficiently appear from the record transmitted to us that there was any transgression by counsel for the prosecution of the statute forbidding a reference to the failure of the defendant to testify in his own behalf; nor can we see any reason for disturbing the conviction. Judgment and conviction affirmed."], "id": "aaac34f4-e541-4eae-be1f-1664203757ba", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The 1999 will provides that the decedent\u2019s residuary estate shall be distributed 50% to Audrey Sandler and 50% to Bruce Gillman and his wife, Francine Gillman. The 1998 will, however, provides that 50% of the residuary estate will be distributed to Audrey Sandler, 25% to Audrey Sandler\u2019s son, Brent Sandler, and his wife, Susan Sandler, and 25% to Bruce Gillman and his wife, Francine Gillman. All of the wills contain an in terrorem clause and dispense with the filing of a ."], "id": "a11b1162-764a-46c3-88d9-9a1daf84e789", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The application for the issuance of ancillary letters of administration is granted. The fact that the respondents did not voluntarily seek ancillary administration prior to the commencement of this proceeding does not disqualify them from obtaining such letters. If respondents wish to qualify as ancillary administrators, letters will be granted to them upon their filing a in the amount sufficient to protect the petitioner who appears to be the only New York creditor (Matter of Gibson, supra). If the respondents-domiciliary executors fail to qualify within 10 days of the service upon their counsel of the decree to be entered hereon, ancillary letters of administration will be issued to the Public Administrator."], "id": "006bbc70-58c9-46d6-ad05-451d3e0dfd95", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The 42d rule of the court of chancery in our state, adopted in 1806, provided for a similar deposit, in such a case. The Revised Statutes of 1830, directed security to be given in various stages of proceedings at law, which the injunction was to restrain. The 31st rule of 1829, provided, that where no special provision was made by law as to security, the officer allowing an injunction might require of the complainant or his agent, a with security, or his own bond only, to the party enjoined, in such sum as might be deemed reasonable, conditioned to pay such party all damages he might sustain by reason of the injunction. The reasons for adopting this rule, will be found stated in Edwards agt. Bodine, (4 Edwards' Reports, 192.) On the revision of the rules in 1837, this part of the rule was retained, with some modifications. One was, that the security should not be less than $500; and this clause was added: \u201c Such damages to be ascertained by a reference to a *325master or otherwise, as the chancellor or vice-chancellor having jurisdiction of the cause should direct.\u201d {Rule 31.)"], "id": "f24085aa-58de-42b5-8f22-01ec398c91a8", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["PER CURIAM: As part of an agreement resolving felony and misdemeanor drug charges against Defendant Horacio Padilla-Loza, the State joined in recommending a personal recognizance for him in exchange for his no-contest plea to the felony. The Clark County District Court accepted the plea, found Padilla guilty, and granted the bond request, allowing Padilla to get out of jail. After changing lawyers, Padilla filed a motion to withdraw his plea on the grounds the State's agreement to the bond modification amounted to an impermissibly coercive inducement, rendering the plea improper. The district court denied the motion. Padilla has appealed that ruling."], "id": "8104711a-0d29-4236-97e3-9d04720dae80", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Upon an examination of the Metropolitan Commuter Transportation Act and especially subdivision 13 of section 1261 and subdivision 1 of section 1264 of the Public Authorities Law, its legislative history, and the cases interpreting CPLR 5519 (subd [a], par 1) it is evident that the MTA qualifies as a \"state agency\u201d and \"political subdivision of the state\u201d under such section. Finally, all of the rationale for exempting the State, its other agencies, and subdivisions from this requirement of posting a on appeal applies equally to the two defendants involved herein."], "id": "5aebf170-4df9-4019-ad6d-bc75d6e14263", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I fail to find any decisions construing the penal statute in question, but there are numerous opinions in connection with civil actions for forfeiture of bail which hold that lack of notice either to the defendant or to the surety is not a defense for the failure to appear as required under the terms of the , and that there is no obligation on the part of the district attorney to give the defendant notice of the particular day on which he proposes to move the *515case of the People against the defendant. Nor is there anything in the statute which requires the giving of notice to the defendant. . The People, however, must show that the failure to appear was wilful. \u201c Wilful \u201d in this case means \u201c intentional,\u201d \u201c deliberate,\u201d that it was not an accident, that the failure to appear was through some act of commission or omission on the part of the defendant."], "id": "49a75781-3a40-45da-9481-09f3aab9a04a", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the instant case, the administrator died prior to actually receiving the proceeds. Fortunately, no apparent harm was done by his having incorrectly represented to the Supreme Court that he as the decedent\u2019s spouse was her sole distributee and his having failed to give notice of the application to any of decedent\u2019s five children, as well as to any possible creditors. Accordingly, the instant application now being accompanied by duly acknowledged renunciations and consents of those parties having equal rights to letters, to the issuance of letters to petitioner, letters of administration d.b.n. shall issue to petitioner in place and stead of Fulgencio Franco upon his duly qualifying according to law and filing a surety in the penal sum of $31,000. This sum represents the net sum available for distribution after deducting the counsel fees and disbursements fixed and allowed in the order of the Supreme Court, entered August 1, 1980. Of course, had all issues of collection and distribution been initially presented to the Surrogate\u2019s Court in the usual manner, there would have been no collection without an appropriate order for direct distribution and the need for a bond would not be present."], "id": "506a09d4-8b36-4c01-9b74-5e2c764c6fad", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The surrogate in awarding\u2019 distribution of the estate and acting under the authority conferred by section 2744 of the Code of Civil Procedure as it read on August 5, 1914, the date of the decree, directed the aforesaid stocks to be distributed and paid over in kind at the valuations fixed by the said appraiser. In respect to the appellants, having ascertained the amounts, due under the respective deeds of trust and bonds secured thereby, he directed that that sum be paid to them mainly in the stock belonging to the estate, in; kind, at the valuation fixed by the appraiser as aforesaid. In other words, the decree provided for the payment of each set of trustees of a certain amount of cash, and the delivery of certain securities which at their appraised value, as ascertained by the surrogate, *94together with cash, would have equalled the amount due in bonds outstanding and interest to the date of the decree in full satisfaction of the claims of said trustees against the estate."], "id": "8c70f3aa-ef3a-4b54-b180-0efd90d74fb2", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The also contained the following clause: \u201cWe hereby expressly waiving notice of any suit, action or proceeding, of whatever name or nature, against said Conner, for or by reason of any such neglect, omission, non-feasance, misfeasance or malconduct, and\u00bf expressly stipulating and agreeing that the recovery against said Conner of any judgment, or the order imposing any fine, costs, \u2022 charge or liability upon said Conner, for or by reason of any of the matters aforesaid, shall be conclusive evidence of our liability to him under this bond for the full amount which he may, by the terms of such judgment or order, be adjudged or required to pay, together with lawful interest thereon, and all costs, counsel fees and expenses incurred by him in the defense of any such suit, action or proceeding.\u201d"], "id": "54a7125d-0298-4cac-a7aa-e7da7768a1ea", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*865On April 18, 1969, Hudson through M-L Servicing, Inc., advised Kennedy that the assumption of the mortgage by Stith was approved, provided the terms relating to interest were modified from the stated 6% to 7%% per annum. In the actions before me, both Kennedy and Stith seek a declaration that Kennedy has the 1 \u2018 right \u2019 \u2019 to sell and Stith has the \u2018 \u2018 right \u2019 \u2019 to purchase the security and assume the payment of the and mortgage on its present terms, and that Hudson has no \u201c right \u201d to withhold its approval upon the condition that a higher rate of interest be paid."], "id": "4c3b5c61-33c0-44fb-9867-4f93e36043fe", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At pages 455-456 of the same article speaking of the distinction between a marriage and a \"reputed marriage\u201d he states: \"And it may be said that the idea underlying this distinction is that cohabitation between a man and woman who have not married may afford the parties certain rights with respect to third parties, but they do not, per se, create mutual rights between the couple themselves. In other words, the legislative *425protection of reputed couples differs both externally and internally. The cohabitational does not obligate the parties, who may terminate it whenever they wish and just as the bond between them is created as a result of cohabitation so it is severed as a result of separation. Only if the common life actually continued until the relevant occurrence, and in particular until the death of one of the partners, it confers certain rights against a third party: these rights derive from the idea that the parties expressed their desire to see themselves as a couple in fact, even though they were not a couple by law.\u201d"], "id": "4674c850-d191-43e2-8681-3f73b8cad5c5", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is also contended that, even if the penal sum be treated as liquidated damages, such damages are satisfied by the payment of the civil or criminal fines prescribed in the act. What we have already pointed out is also an answer to this contention. There is, hoAvever, another ansAver. As the law read prior to the amendment of 1897, there were no civil penalties. (Laws of 1896, chap. 112, \u00a7 34.) There were provisions only for criminal fines and for the recovery thereof upon the . It is evident that, under this original act of 1896, it was not intended to limit the *80surety\u2019s liability to these flues, even treating them as liquidated damages. If that had been the intention, liability would have been dependent, first, upon proof of the principal\u2019s guilt, not by a preponderance of evidence, but beyond a reasonable doubt; and, second, upon the discretion of the trial court in awarding punishment. If imprisonment without fine were awarded, there would be no liability at all. The principal would first have to be found guilty beyond a reasonable doubt, and then fined. The bond on this construction would have been a sham and a farce. If, however, the main penal sum were treated as liquidated damages, the act was harmonious and the bond efficacious. If the official entitled to bring an action upon the bond chose to sue for the criminal fine and for that alone, he could do so, and in that case he might rest upon the conviction and sentence. Upon the. docketing of the judgment for the fine as provided in section 36, the official was authorized by the last paragraph of that section to proceed to collect the amount of such judgment, together with the costs of collection, from the sureties on the bond. The sureties having in effect contracted to pay any such judgment, the official in the action against them was not bound to go behind it and prove the offense which resulted in the judgment. Upon the other hand, if the official sued for the full penal sum specified in the bond, as for a. breach of one or more of the prescribed conditions, he had to prove the. breach by independent evidence. The bond was clearly intended to cover the two contingencies and the two remedies. Civil penalties are now prescribed. (Laws of 1896, chap. 112, \u00a7 42, as amd. by Laws of 1897, chap. 312.) The act of 1896 was thereby amended to harmonize with this additional feature. To the original conditions of the bond, as prescribed in section 18, was added by the act of 1897 the further condition \u201cthat- all fines and penalties which shall accrue during the time the certificate applied for is held and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed,\u201d thus plainly covering these new civil penalties. This is emphasized by the amendment embraced in the last paragraph of the section. That paragraph authorizes the State Commissioner of Excise, \u201cwithout previous prosecution or conviction for violation of any provision of the Liquor Tax Law, or for the breach of any condition of said bond, commence and maintain an action, in his name, as such commissioner * * * for the recovery of the penalty for the breach of any condition of any *81howl, or for^any penalty or penalties incurred or imposed for a violation of the Liquor Tax Law.\u201d Coupling this with section 42 (supra) the scheme of the act as amended becomes entirely clear. All questions as to the proper plaintiff in actions upon bonds given under the act, or in actions for penalties incurred, are set at rest. The State Commissioner of Excise is authorized to sue the principal for the civil penalties. He is also authorized to sue both principal and surety for the breach of any condition of the bond. These suits are independent. In the action for the civil penalties he may recover from the principal more or less than the penal sum specified in the bond, dependent upon the number of violations proved. Having thus secured his judgment against the principal, he may recover the amount thereof (to the extent of $1,600) from the surety in an action upon the bond. In such an action against the surety he need only prove the judgment against the principal. He may, however, recover upon the bond, independently, the full penal sum upon proof of the breach of any one of its conditions. The prescribed bond, plus the prescribed civil and criminal penalties, constitute the totality of legislative precaution. From the moment the tax is paid there is no trace anywhere of pecuniary interest in the People. Bond and penalties alike are then aimed at one definite end, obedience to the law and decent and orderly conduct of the business authorized by it. We think it clear that the plaintiff was, therefore, entitled to, recover the penal sum of $1,600 according to the true intent and meaning of the contract."], "id": "2f75fbbc-5ba4-4dd5-973c-1505b0841a81", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiffs\u2019 motion for summary judgment declaring the plaintiff contractors \u2019 bid effectively withdrawn is granted. The defendant shall return the bid to the plaintiff contractors as required by section 105 of the General Municipal Law. In view of this decision, there is no necessity to rule upon the other aspects of the plaintiffs\u2019 motion. The cross motion of the defendant for summary judgment is denied. No costs shall be allowed to either party."], "id": "49268845-a3d3-4a4c-aefe-0d3f140a25c8", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["That the plaintiffs applied to one Frederick A. Snow, of the city of New York, for said loan and he granted the same, and the plaintiffs informed defendants of that fact and introduced them to said Snow, and that they obtained said loan on and mortgage of the defendant Albert O. Morris, to whom the title of the land was given with the knowledge and consent of the other defendants; that the defendants promised and agreed to pay the plaintiffs .as their commissions and compensation for services in procuring the loan the sum of three hundred and twenty-five dollars ($825)."], "id": "2eeb6d00-f20d-4400-bb66-634450682235", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In New York State, the sealing of adoption records has been mandated for more than 60 years, although courts had the discretionary power to seal these records even before then (Matter of Linda F. M., 52 NY2d 236, 239 [1981], appeal dismissed 454 US 806 [1981]). Currently, adoption records are sealed pursuant to Domestic Relations Law \u00a7 114, to protect and ensure confidentiality which is \u201cvital to the adoption process\u201d (Matter of Hayden, 106 Misc 2d 849, 850 [Sup Ct, Albany County 1981]). As expressed by the Court of Appeals, the purpose is to provide anonymity to the natural parents, enable the adoptive parents to form a close with their adopted child, protect the adopted child from possibly disturbing information that might be found in his records, and allow the state to foster an orderly and supervised adoption system (Matter of Linda F.M., 52 NY2d 236, 239 [1981]). There have been challenges to the power of New York State to seal adoption records, but the courts have determined that these statutes are not in violation of the Equal Protection Clause of the 14th Amendment and are constitutional (Matter of Linda F. M., 52 NY2d 236 [1981]; Matter of Romano, 109 Misc 2d 99 [Sur Ct, Kings County 1981]). Petitioner is correct in noting that legislation is pending which would impact upon these statutes and policies; however, currently they remain in place."], "id": "775b1d15-0982-486f-af17-b8ab7db7817c", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Surrogate, however, has power to: \u201c direct and enforce for the protection of the surviving spouse an equitable distribution, allocation or valuation of the assets, and to enforce the lawful liability of a fiduciary, and * * * to make such other direction consistent with the provisions and purposes of this section as the court may deem necessary for the protection of the surviving spouse.\u201d (Decedent Estate Law, \u00a7 18, subd. 1, par. [h].) This provision, which was enacted in 1936, states that the grant by a decedent to his representative of power to act without , to invest in nonlegals, to allocate and value assets, etc. is not to be deemed \u2018\u2018 either singly or in the aggregate to give to a surviving spouse an absolute right of election \u201d. (Cf. Decedent Estate Law, \u00a7 125, concerning limitations on powers and immunities of estate representatives generally.) The provision was: \u201c designed to vest in the surrogate\u2019s court having jurisdiction of the estate a supervisory power which will assure fair treatment to the surviving spouse but which will leave undisturbed provisions found commonly in wills for dispensing with a bond, for enlarging the field of securities and investments, and for the retention of investments already owned by the testator at his death. * * * It is felt that this supervision of the surrogate\u2019s court will operate to prevent any real injustice to the surviving spouse and will assure testators a reasonable flexibility in their testamentary provisions. Any actual fraud attempted upon the surviving spouse by the tenor of the will confers an absolute right of election despite this amendment. The bill, in effect, will allow a testator to do what otherwise he might lawfully do at present with his property but protects the rights of the surviving spouse by granting to the surrogate a supervisory power to assure the spouse of fair participation in the distribution of the estate.\u201d This is not a trust which \u201c will yield little or no income or otherwise ingeniously * * * deprive the widow of her intestate \u201d share within the meaning of Matter of Clark (275 N. Y. 1, 5). The power of this court is not limited to those powers specifically enumerated in paragraph (h) of subdivision 1 of section 18 of the Decedent Estate Law; it is one of general equitable supervision to assure both the testamentary scheme proposed by the decedent and fair participation of the spouse (Matter of Herts, 165 Misc. 738; Matter of Wardi, 129 N. Y. S. 2d 279, affd. 284 App. Div. 978; cf. Matter of Curley, 245 App. Div. 255, affd. 269 N. Y. 548)."], "id": "5c8f0712-44cc-4385-b567-0030c2fec477", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is against this background that we must read the plaintiff\u2019s complaint that, having sold his property in 1931 subject to a mortgage securing his , he has been called upon to pay a deficiency judgment because of the \u201c negligence \u201d of the defendants in failing to promptly complete foreclosure against plaintiff\u2019s grantee. We might note parenthetically that plaintiff has received the benefits of section 1083-a of the Civil Practice Act, in that the value of the property has been offset against the mortgage indebtedness without regard to the amount of the bid at the referee\u2019s sale and he has also received the benefit of section 1083-b of the Civil Practice Act, without which an action might have been maintained against him for his full indebtedness on the bond without resort to foreclosure. Now, having unsuccessfully attempted to stay a deficiency judgment against him in favor of the certificate *424holders as assignees of the bond and mortgage, plaintiff in this law suit demands an indemnity for the amount he has been called upon to pay from those who were charged with the enforcement of the certificate holders\u2019 rights under that mortgage. It would seem that even if properly pleaded as a defense in the foreclosure action, plaintiff could not have there defeated a deficiency judgment against him in the absence of a request to foreclose or an offer to pay. (Glacius v. Fogel, 88 N. Y. 434, 442; Kings County Trust Co. v. Derx, 237 App. Div. 548; Schenectady Savings Bank v. Ashton, 120 Misc. 268.) Aside from that, however, this complaint does not set forth a cause of action in negligence against defendants Van Schaick and Pink. They cannot be charged with failure to act more promptly in the unprecedented situation which occurred during those economically tempestuous years. Furthermore, even assuming negligence to have existed, it is not actionable except by one to whom the duty of due care was owed. \u201c Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. \u2018 Proof of negligence in the air, so to speak, will not do.\u2019 * * * \u2018 Negligence is the absence of care, according to the circumstances.\u2019 \u201d (Cardozo, Ch. J., in Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 341.)"], "id": "7e297fd5-37a5-4c7c-94c2-ab23dfb70ab6", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The petition alleges, among other things, that: On February JO, 1961, the premises were sold and conveyed to the petitioner for $12,000, $2,000 in cash and the remainder by purchase-money and mortgage. Due notice to quit ivas served upon the vendor and his wife, who have failed to comply therewith and continue in possession without permission of the petitioner."], "id": "97f4b541-645d-4eb6-8ae8-06aab3e9fcad", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In anticipation of this national generous assumption of the funding of highway programs, the defendant State was revising its own financial plans to enable it to receive the billions of dollars being made available for it through this medium. By chapter 761 of the Laws of 1956, the State Legislature passed and Governor Harriman approved a proposition for a $500,-000,000 issue for such eventuality. In the 1956 general election, that bond issue was approved by the voters of our State. This five hundred million dollars was required as the anticipated requisite 10% to \u2018 \u2018 match \u2019 \u2019 the awaited four and a half billion dollars from future national budgets."], "id": "b6e0cbde-395f-41d1-9bbd-3f5c70b6872d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cIf any franchised motor vehicle dealer who receives a written notice of modification institutes an action *763within one hundred twenty days of receipt of such notice as provided in section four hundred sixty-nine of this article to have a review of the threatened modification, such action shall serve to stay, without , the proposed modification until a final judgment has been rendered in an adjudicatoiy proceeding or action as provided in section four hundred sixty-nine of this article. A modification is deemed unfair if it is not undertaken in good faith; is not undertaken for good cause; or would adversely and substantially alter the rights, obligations, investment or return on investment of the franchised motor vehicle dealer under an existing franchise agreement. In any action brought by the dealer, the franchisor shall have the burden of proving that such modification is fair and not prohibited\u201d (Vehicle and Traffic Law \u00a7 463 [2] [ft] [3]). \u201cPrivate actions."], "id": "2a3be05a-431f-4d05-8274-42a59a2d83ca", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 74 (1) (b) of the General Business Law provides that private investigators and guard and patrol agencies are required to file a $10,000 \"conditioned for the faithful and honest conduct of such business\u201d. This section further provides that: \"any person injured * * * by the wilful, malicious and wrongful act of the principal or employee may bring an action against such principal, employee or both on said bond in his own name to recover damages suffered by reason of such wilful, malicious and wrongful act. In each and every suit, or prosecution arising out of this article, the agency of any employee as to the employment and as to acting in the course of his employment, shall be presumed\u201d. (Emphasis added.)"], "id": "869408f5-16b4-4c6c-b6a0-2c6cd5454456", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The refinancing also gave \u201cthe Authority * * * a first mortgage lien\u201d on its real property to \u201csecure all obligations and liabilities\u201d under the loan agreement. This was a \u201ccondition precedent\u201d to the issuance of the bonds. In its written consent, the Board stated that \u201cthe equity represented by such reserves can be more effectively utilized in connection with a prepayment of the mortgage * * * to give the Hospital greater flexibility and options in dealing with its financial needs.\u201d This leads to the conclusion that the bonds were defeased as part of the plan to sell the real estate and is evidence that the emphasis was on sale, since if the Board was seeking means to preserve MEETH, defeasance may not have been desirable."], "id": "a6183a2c-914b-4bf7-ac6d-6012e3c70096", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With respect to the last-mentioned relief sought; it appears that prior to the completion of the reference the defendant was arrested pursuant to an order of arrest and released upon the filing of a surety in the sum of $15,000 requiring him, according to its terms, to \u201c obey the direction of the court * * * or, in default of his so doing, that at all times he will render himself amenable to proceeding to punish him for the omission \u201d."], "id": "53aa260b-d681-4849-a73a-0827ecf66918", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Provided that Owner is in compliance with the payment provisions of this Contract, Contractor shall save and keep Owner and Owner's property free from all mechanics' and materialmen's liens and all other liens and claims arising out of the Contractor's Work hereunder. In the event any such lien or claim is filed by anyone claiming by, through or under Contractor, Contractor shall, upon request by Owner and not as a Cost of the Work, remove and discharge same or provide a . Finally, the Construction Contract contained a provision regarding conditions precedent:"], "id": "0700eecd-418b-4157-a67d-34bc81067f1a", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The rule of law which is applicable to the state of facts in the present case is briefly but very correctly stated by the late Judge Story, in his valuable treatise on the law of agency, at the commencement of the 210th section. He says it is a rule of general application in regard to the duties of agents, that in matters touching the agency they cannot act so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal, bargains in the employment, for the exercise of the disinterested skill, diligence and zeal of the agent, for his exclusive benefit. It is a confidence necessarily reposed in the agent that he will act with a sole regard to the interests of his principal, as far as he lawfully may ; and even if impartiality could possibly be presumed on the part of the agent where his own interests were concerned, th\u00e1t is not what the principal bargains for; and in many cases it is the very last thing which would advance his interests. The late Chief Justice Marshall acted upon this principle in the case of Short v. Skipwith, (1 Brock. Rep. 116,) where the defendant had made an investment for the plaintiff by the purchase of a for the delivery of certificates, partly upon his own credit, when he had the cash funds of his principal, with directions to invest them in such certificates. It is true the learned chief justice thought the defendant, by his instructions strictly considered, was not authorized to invest in certificates in this indirect way, by the purchase of a bond for their delivery, yet he puts his decision upon the express ground of the purchase upon credit; and the probability *580that he might have been induced to take this bond, instead of trying to purchase certificates directly, for the sake of the credit he got upon the purchase. The right of the principal to repudiate a transaction where the agent acts without express authority in such a manner that his interests may have conflicted with his duty to his principal, does not depend upon the question whether the principal has in fact been injured thereby. But the general interests of justice require that the principal shall have the right to repudiate the transaction without reference to that question. For it would, in the greater number of cases, be absolutely impossible to ascertain what influence the personal interest of the agent has had upon his acts. It is sufficient to say the act was unauthorized; and has not been ratified by the principal with a knowledge of the facts which would entitle him to repudiate it."], "id": "a67859c3-eed3-4333-8d2b-fc0f3d726c8c", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A custodial parent\u2019s conduct may warrant a change of custody if it reaches \u201cthe level of deliberately frustrating, denying or interfering with\u201d the parental rights of the noncustodial parent so as to raise doubts about the custodial parent\u2019s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child\u2019s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [\u201cWhile one parent\u2019s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children\u2019s to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention\u201d (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded sole custody, notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness."], "id": "dae81909-4787-424e-892d-cd94238fa7d1", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["An undertaking \"shall be for double the amount of the judgment ... unless given by an admitted surety insurer in which event it shall be for one and one-half times the amount of the judgment ....\" ( Code Civ. Proc., \u00a7 917.1, subd. (b).) Even using an admitted surety insurer, as Sabella did, would require a in an amount exceeding $77 million."], "id": "bbd7112b-2940-4146-a656-ce2e2e56ea64", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The heart of this dispute is whether Western, as surety, must pay on three performance bonds3 it issued guaranteeing Central Rock would \"faithfully perform\" a contract negotiated with real estate developer James A. Hughes, operating under the name JAH Nicholasville Investment, LLC (\"JAH\").4 Central Rock acknowledges halting work, but only after JAH ceased paying Central Rock for work it *105had already completed, leaving City with an unfinished, deteriorating residential-commercial subdivision. Western argues JAH's failure to pay Central Rock excused further performance under the contract by Central Rock."], "id": "bb2536e9-0a36-4e25-a844-f74ea6cfbcf5", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The right of the plaintiff to succeed was resisted upon the ground that there was no cause of action in favor of the plaintiff, as assignee. And this broad proposition rests upon the assumption that it: was-an action in which the principal was suing her own surety, upon a executed by herself, for the wrongful acts of her co-principal, essaying in effect to make the surety liable to his own principal, which is an unheard of proceeding, and if successful would reverse the whole theory of the relation of principal and surety."], "id": "5c51bc0a-92da-4f8c-912d-eda58d813755", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The contention of the appellant\u2019s counsel rests upon the general principle that the assignor of a chose in action not negotiable, can only transfer the interest he has in the instrument, and the purchaser only takes such interest as his assignor had to part with, and in support of his views of the case the counsel places much reliance on the cases of Bush v. Lathrop (22 N. Y., 535), Greene v. *346Warnick (64 N. Y., 220), and Trustees of Union College v. Wheeler (61 N. Y., 86.) But the case of Bush v. LatJvrop is overruled upon tlie point under consideration \u2014 the effect of tlie doctrine of estoppel. Judge Earl says, in delivering tbe opinion of the court, in Greene v. Warnick (supra), page 225; \u201c Under the authority of the case of Moore v. Metropolitan Bank, Noble ought to have been held estopped from asserting his title to the and mortgage in consequence of his absolute assignment of the same, by which he conferred the apparent ownership upon Preston and apparent authority to sell, and so, for the decision of that case (Bush v. Lathrop), must now be considered to have been erroneous.\u201d"], "id": "f9f25ce3-c5a0-435a-ab0a-ae15c17050f0", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If this statute is to be applied, it is very clear that the plaintiff can have no relief because of the large expenditure made by her for improvements, etc. There is no pretense of an agreement to reimburse her for such outlays and expenditures. She knew all about the title; that it was held by Harper, and her expenditures, etc., were as owner of the property, and not because she was to be compensated. (Porter v. Porter, General Term decision, 2d department, affirmed in Court of Appeals; Kassel v. Becker, 25 How., 377, 378.) But, assume for a moment that this statute does not apply, for the reason.that the plaintiff did not pay the purchase money, or any part thereof, at the time of such purchase, but that Harper paid what was paid, and secured the balance by his own and mortgage. What interest has the plaintiff in this surplus which ean be enforced? There is no evidence of any agreement to reconvey. There has been no writing of any kind creating or declaring any trust. True, she paid the mortgage *284which had been given, but she subsequently received a large sum on the mortgage given to Lamoraux, and from the foreclosure of which this surplus was produced."], "id": "01db0492-fd7d-4621-87e1-8bf7e8c0c070", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As the residue of the estate is bequeathed to the widow, and as it is necessary that the executors should protect not only her but also the cestuis que trustent *645and those who take at' the expiration of the trust, distribution to the widow should be made only upon the execution by her of an agreement with the executors to deliver to them sufficient securities to make it possible for them to make a substitution if the yield of the securities mentioned in the will falls below the amount there stated. For the faithful performance of such agreement, a should be given which I will fix at the sum of $8,000. Matter of McDougall, 141 N. Y. 21."], "id": "18428c4f-b41f-4d43-89ad-861622df335d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The and mortgage must stand as a security for the amount due on the execution, with interest to the time of tender. It is scarcely necessary to cite authorities to prove, that where advantage is taken of the party\u2019s circumstances, *\u201c\u25a0' xv y so that he acts not voluntarily but under necessity; where a deed is obtained by undue influence, and the process of law abused, a contract resting on such a basis cannot receive the countenance of a Court of justice. (Nichols v. Nichols, 1 Atk. 409. Thornhill v. Evans, 2 Atk. 330. 1 Mad. 243. Gould v. Oxenden, 3 Bro. P. C. 560. Thornhill v. Evans, 6 Bro. P. C. 614. Lamplugh v. Lamplugh, 1 Dick. 411.)"], "id": "f7a9806e-4ca2-4a8d-8603-3d66de6e0f07", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Finally. I find nothing in the case to warrant any claim by the defendant to any commission, or to any lien upon the and mortgage in question, for services or expenses rendered or paid as the agent or attorney of the late executor. Such former executor could give no such lien if any such services were rendered or expenses incurred. I do not, therefore, perceive that there is any occasion for ordering an account between the parties. I can only regard the defendant, however sincere he may have been in believing that he was not bound to deliver the property, as a wrong doer. The decree should therefore award to the plaintiff the bond and mortgage, and direct its delivery to him by the receiver, and award to the' plaintiff his costs, with an allowance of two hundred and fifty dollars."], "id": "b0685e10-1cae-48c0-87c0-5c7f14f09f4d", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Kevin Goosey was sentenced in an unrelated case to probation, one of the conditions of which was that his residence was to remain open to a warrantless search by law enforcement officers at any time to verify that he was complying with other conditions of his probation. So, on the evening of May 25, 2014, City of Memphis Police Officer Jason Ketchum enlisted the assistance of Missouri State Highway Patrol Sergeant Michael Kaugh and Trooper Brett Tappendorf to conduct a compliance search of Goosey's residence. None of the law enforcement officers had reason to know that McElroy would be at Goosey's residence."], "id": "97411342-2811-43b7-bab8-1942c345f196", "sub_label": "US_Terminology"} {"obj_label": "bond", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In opposition, plaintiff trustee in bankruptcy for Isaac-son Steel Erectors, Inc., bankrupt (Isaacson), contends that the complaint in Action No. 1 initially pleads a cause of action for work, labor and services performed by Isaacson. The complaint then goes on to assert that Isaacson filed a notice of mechanic\u2019s lien against Steelco which was later canceled and discharged of record by the posting of a on which Travelers was the surety. The complaint concludes that plaintiff has performed all of the terms and conditions of the bond oh its part to be performed and demands a money judgment in the sum of $109,375."], "id": "6eef7e80-5d2f-4942-a70d-e86d2ffa5812", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The testimony that such an agreement was made being inadmissible and incompetent, there is not sufficient evidence of an intent on the part of Mrs. Rowell that a merger should take place. The defendants urge that because no payments of principal oi interest were made upon this from the time Mrs. Rowell acquired it until she assigned it to the bank is evidence of such an intent. Mrs. Rowell was the owner of the mortgage and she and her husband were owners of the property upon which it was a lien as tenants by the entirety. It is nothing unusual that no payments were made upon the mortgage under these circumstances. Mrs. Rowell took an assignment of the mortgage and not a satisfaction of it; she never executed a satisfaction of the mortgage during the time she was the owner of it nor did she execute a subordination agreement or an agreement that the mortgage should merge with the title. Under these circumstances the failure of Mr. and Mrs. Rowell to make payments is no evidence of an intent that the mortgage should merge."], "id": "9c292f1c-d5d0-4d83-b011-75227f2ec698", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Here, however, Rosetta alleges Citi did more than merely receive or review her loan modification applications. She alleges CitiMortgage refused to consider her for a loan modification unless she was three months behind in her mortgage payments, required her to submit duplicate or nonexistent documents, lost or mishandled her documents, and misstated the status of her applications, causing her damages. Under the circumstances, Rossetta states a cause of action for negligence."], "id": "67c024b6-d594-4594-88b4-286802bd8613", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"\u00a7 339-z. Lien for common charges; priority; exoneration or grantor and grantee \"The board of managers, on behalf of the unit owners, shall have a lien on each unit for the unpaid common charges thereof, together with interest thereon, prior to all other liens except only (i) liens for taxes on the unit in favor of any assessing unit, school district, special district, county or other taxing unit, and (ii) all sums unpaid on a first of record or on a subordinate mortgage of record held by the New York job development authority or held by the New York state urban development corporation. Upon the sale or conveyance of a unit, such unpaid common charges shall be paid out of the sale proceeds or by the grantee. Any grantor or grantee of a unit shall be entitled to a statement from the manager or board of managers, setting forth the amount of the unpaid common charges accrued against the unit, and neither such grantor nor grantee shall be liable for, nor shall the unit conveyed be subject to a lien for, any unpaid common charges against such unit accrued prior to such conveyance in excess of the amount therein set forth. Notwithstanding the above, the declaration of an exclusive non-residential condominium may provide that the lien for common charges will be superior to any mortgage liens of record.\u201d (Italics supplied.) Thus, the first sentence of the statute clearly recognizes the priority of the first mortgagee\u2019s lien over that of the condominium. If the second sentence, providing that \"unpaid common charges shall be paid out of the sale proceeds or by the grantee\u201d is read to include a first mortgagee-purchaser, this interpretation utterly contradicts the priority so clearly set forth one sentence earlier. On the other hand, if the provision in question is read to apply only to nonparty purchasers, the meaning and purpose statute remain and no self-defeating contradiction is presented."], "id": "ef17758e-d495-4f49-9423-72e7387c726f", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Here, the court found: \"The facts in this case involving Mr. Cole and [the child] are unique because it is absolutely clear that Mr. Cole wanted a child with Ms. [Tsuchimoto]. He was not a mere bystander and donor. He underwent a medical procedure for the specific purpose of retrieving viable semen in order to impregnate Ms. [Tsuchimoto]. This had been discussed thoroughly between the two of them. ... [\u00b6] Mr. Cole strongly contends that his real home was with his wife. The evidence is consistent with him having two residences: one with his wife and one with Ms. [Tsuchimoto]. As a pilot Mr. Cole was able to spend 2 to 4 days every week with Ms. [Tsuchimoto] and [the child][3 ] and some of the rest of the time with his wife. The court must look at the reality of the relationship. For the 2 \u00bd year time there is not any question that a relationship existed between [the child] and Mr. Cole. During part of the time for whatever reason he paid the payments for Ms. [Tsuchimoto]. As stated above he was involved with [the child] in his life holding him out as his child in that aspect of his life. For the court to impose an artificial barrier that merely because he was not married to this woman but was married to another woman under the circumstances of this case would be improper. Had these two parties succeeded in having a natural child there would not be any question of parentage and financial responsibility. Mr. Cole was interested in avoiding financial responsibility. But it is undeniable that Mr. Cole encouraged his relationship with [the child] and his mother. The parties openly spoke of marriage; Mr. Cole at one time had separated from his wife for a period of months and then returned to her. But Ms. [Tsuchimoto] always held out the hope of a permanent relationship with Mr. Cole, which he encouraged. The court cannot turn a blind eye that the relationship must be in the best interest of the child .... The factors listed above convince this court that for the first 2 \u00bd years of [the child]'s life Mr. Cole was his active parent.\""], "id": "4a95c6f4-ce16-41b0-a9af-a2e9d3d45437", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*537The Attorney-General states that Judge Collins of the Court of General Sessions recently made the minutes of a New York county grand jury, in its investigation of the State Title and Company, available to the Federal authorities; that Judge Knox, a United States District Judge for the Southern District of New Ytirk, permitted the district attorney of New York county to inspect the minutes of a Federal grand jury."], "id": "431379c9-e4bb-42a4-935e-46cc18672415", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["During the months of October and \u00a1November, 1914, the decedent, who was then the owner of certain bonds and mortgages aggregating $11,500, transferred to her husband \u201cin consideration of one dollar and other good and valuable consideration \u201d an undivided one-half interest in the various bonds and mortgages, so that they should hold the same as joint tenants and not as tenants in common, and so that the survivor should have the absolute title to and ownership in the bonds and mortgages. On November 5, 1914, James Holder, the decedent\u2019s husband, being then the owner of a bond and in the sum of $16,000, assigned and transferred to the decedent, for good and valuable consideration, an undivided one-half interest therein, and provided in the assignment that he and the decedent should hold it as joint tenants and not as tenants in common, with absolute title to the survivor. The appraiser included the entire value of these bonds and mort*120gages in the- taxable assets of decedent\u2019s estate. I am inclined to think that this was error, as the right of the husband to the bonds and mortgages was derived from the instruments executed by him and the decedent, which transferred their respective interests in the bonds and mortgages for a valuable consideration to themselves as joint tenants. The right of the survivor to the bonds and mortgages being derived from a contract entered into for a valuable consideration, it is not subject to a transfer tax. (Matter of Heiser, supra, and cases there cited.)"], "id": "cae59627-3c4c-4ce8-a4a1-c92fb9a1212c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Examination of the law of this State fails to disclose any case in which the courts have held that the surrogate has power to direct the representative of the estate to presently pay in a lump *529sum the present value of a continuing contractual obligation, as requested by her here. The authority of the court to grant relief here must be found in the Surrogate\u2019s Court Act. In certain other States the probate courts are given by statute the power to set aside a fund sufficient to pay the periodic payments due under the contract, or to pay presently a lump sum which, in this case, would be measured by the present fife expectancy of the promisee. There is no- statutory' authority to pay the lump sum in New York. Section 212 of the Surrogate\u2019s Court Act, in my opinion, applies only to the present payment of liquidated claims not yet due, \u201c after deducting a rebate of legal interest.\u201d It does not contemplate or authorize the commutation of future periodic payments or the payment over of the present value based on the life expectancy of the promisee. Section 244 of the Surrogate\u2019s Court Act has no application here since it is limited to the specific purposes of a sale, or lease of real property under article XIII in which it is contained."], "id": "f499e5bb-e0e7-4f7a-a1fd-a927f93e9a17", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court feels, however, that the investments in the bonds of the Chicago, Bock Island and Pacific Railway Company and of the Cleveland Union Terminal Company stand on a different basis. Whereas it is entirely true that the maturity of these bonds postdated by considerable periods the time when the beneficiary was entitled to receive payment of the accumulated income in cash, they were securities of an entirely different nature from the shares in the private mortgages hereinbefore considered. For securities of this type, a ready open market is maintained which enables a holder to realize upon them without difficulty or sacrifice of their intrinsic value. In this respect they resemble United States government bonds which are substantially equivalent to currency. In participations in mortgages on the other hand, it is a matter of common knowledge that the market is almost wholly confined to the *780particular concerns by which such securities are issued, with the result that if the latter so elect, their salability may be either wholly destroyed or the price depressed out of all proportion to intrinsic value. Assuming, therefore, that the particular securities, at the time of their purchase, were legally authorized investments for trust funds, which has not been questioned, the court determines that the open market which was available for their disposal placed these securities in an entirely different situation from the participations and furnished every reason for the trustee to assume that they were capable of the ready liquidation which would be required to enable it to meet its obligations to the cestui que trust on January 20, 1932. The objection in this connection is, therefore, overruled."], "id": "d3740592-e42c-408c-a865-4083aabac366", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I have already stated, that I consider the appellant\u2019s assignment operative as to one-fourth of the premises, and as to the other three-fourths, it must be placed upon the footing of an unregistered . The respondent\u2019s morto-gn-g Was recorded as an absolute deed, but was- never re- \u00b0 \u00b0 * gistered as a mortgage. They are both, therefore, unregistered mortgages. (Dey v. Dunham, 2 John. Ch. Rep. 189.) The second mortgage does not necessarily gain a- ' . . ? , , .. , preference unless registered; and not even then, if the second mortgagee has notice of the first mortgage. The rule, \u201cqui prior est tempore, potior est jure\u201d applies, unless the appellant has been guilty of fraud or culpable negligence, by leaving Wattles in possession of the mortgaged premises. Fraud is not imputed, and in point of negligence, the parties are equal, \u201c it is a common rule, (say the books) that when of two persons equally innocent, or equally blameable, one must suffer, the loss shall be left with him on whom it has fallen; and here comes in the other rule, that the equities being otherwise equal, the priority of time must determine the right.\u201d (Berry v. Mutual Insurance Company, 2 John. Ch. Rep. 603.) It seems to me, therefore, that the appellant is entitled to preference as to the unregis tered mortgage upon the three-fourths of the property purchased by Wattles at the Sheriff\u2019s sale."], "id": "9dc41c02-b062-4801-bafd-5b2b1ce86df1", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Petitioners do not offer any good reason for not having sought leave of the appointing court before beginning the instant proceeding. They cannot, and do not, claim ignorance of that action for one of the petitioners herein is a defendant therein. Also, this proceeding was brought pursuant to RPAPL article 7; the legislature provided that proceedings such as this were to be summary. This court would ill serve that purpose were it to mark this proceeding off-calendar so that petitioners might move in the foreclosure for leave to proceed here nunc pro tunc and then, if and when petitioners were successful, wait for petitioners to move herein to restore this proceeding to this court\u2019s calendar. Accordingly, and instead, this court dismisses the proceeding, but without prejudice to commencement of another proceeding upon securing the appropriate leave."], "id": "9eede596-f748-45b8-be35-49c3e56b4976", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the trial the attorney for the mortgagor produced an instrument that purported to release the personal property from the lien of the . The release was signed by the president of the mortgagee bank, was duly acknowledged by him and was later recorded. \u2018 \u2018 A written release, in order to be effective, must be executed and delivered.\u201d (49 N. Y. Jur., Release and Discharge, \u00a7 10.) The defendant bank admitted the execution of the release, but denied delivery."], "id": "1bfee4be-18f3-45ef-a8ee-82e6800370dc", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*321If the trustee shall satisfy, sell or enforce the to serve the trust which requires liquidation, he ill serves the other trusts by disturbing their funds. He is divided in duty, and Ms fidelity to one relation is disloyalty to the other. There is then \u2022a day of wrath, either for the trust which cannot be satisfied or for the other trusts which would suffer from a wasteful change of investment."], "id": "00c7e367-d415-4d36-b52f-70be7a49b7e3", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["But even more significant is the fact that the proof that the defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, did not act officiously because the revocation of the power of attorney was ineffective against them, which is an argument in support of the defendants\u2019, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, equitable subrogation theory, is also proof which supports the validity of the held by the defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill. Thus, if the revocation of the power of attorney is ineffective against these defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, there is no basis upon which to question the validity of the mortgage which they hold and it is unnecessary to resort to equitable subrogation to protect their rights."], "id": "827d99c7-5352-45aa-b964-ccc1c7dd8b40", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff, a building contractor, contracted to build a house for the defendant upon defendant\u2019s land, and the plaintiff took from the defendant a conveyance of the land by way of security and began construction. All of this was pursuant to a written contract. A building loan was secured by the plaintiff from the third-party defendant (bank) from which a \u201cfirst draw \u201d had been received, part of which was admittedly demanded by and paid to the defendant by the plaintiff. A dispute arose 'between plaintiff and defendant as to proper performance after construction was partially completed. The plaintiff brings this action in the nature of a foreclosure which seeks a *589judgment declaring the validity of the bank\u2019s building loan mortgage and a foreclosure sale of the equity in the land to satisfy an alleged balance due from the defendant to the plaintiff. Defendant interposed an amended answer and counterclaims substantially denying that he owed any money to the plaintiff and affirmatively seeking damages against the plaintiff for poor workmanship and deliberate deviation from the contract plans and specifications and for wrongfully obtaining a building loan advance (first draw); also, recovery for alleged damages to trees in and about the premises."], "id": "9bc77b11-d240-49a4-b686-a1c9e23e9849", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff and the defendant Ruth Rosenblum entered into a contract dated June 28, 1974 whereby plaintiff was to purchase defendant\u2019s house in the City of Cohoes for the agreed price of $45,000. The closing was to take place on or about October 1, 1974, but the contract was contingent upon the purchaser obtaining a of $35,000. The closing did not take place because of the purchaser\u2019s inability to obtain financing. On December 28, 1974 the plaintiff was served with a summons and complaint commencing an action by the seller, Ruth Rosenblum, for specific performance. Thereafter, negotiations were undertaken to attempt to find a satisfactory solution to the problem. When no apparent progress had been made, Mrs. Rosenblum was able to find another buyer and on May 13, 1975 she signed a contract for the sale of her home with Mr. and Mrs. Murphy for a price of $42,500. It is undisputed that at the time they signed the contract, the Murphys had no knowledge of Mr. La Marche\u2019s contract or of his interest in the property."], "id": "eddaf054-5fcb-4536-883b-a2c169e02705", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*The opinion of the court of chancery in favor of this right, seems to proceed upon the ground that the effect of the judgment against Storrs & Co. was to bind all their rights over the mortgaged premises as they existed at that time, and to substitute the judgment creditors in their place; and as Storrs & Co. then had a right to set off the $3000 on the , this right became vested in the judgment creditors of Storrs & Co. by virtue of the judgment."], "id": "7be93701-9eed-4cf6-8143-f5cb9b84a11a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We summarily dispose of two of these arguments, namely that the was prohibited by the Trust Code and ethical rules. Both arguments were raised for the first time in a posttrial motion to reconsider. An issue must be presented to the circuit court at the earliest opportunity to preserve it for appeal. LaFont v. Mooney Mixon , 2010 Ark. 450, at 15, 374 S.W.3d 668, 676. And it is well settled that our court will not consider an argument made for the first time in a posttrial motion. See Lee v. Daniel , 350 Ark. 466, 91 S.W.3d 464 (2002)."], "id": "93e2cf40-d40f-4376-8249-0769b58e617c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The true and only issue presented by the pleadings was his breach of obligation to file the and the damages legally resulting from any neglect to do so. Yet the case, as presented to the jury, assumed to try the question of his fraud in advising the giving of the satisfaction piece of the mortgage after a full settlement of the mortgage debt between plaintiff and Patterson, in which defendant was not shown to have had any agency, and in presenting for the consideration of the jury his responsibility for some fraud or breach of promise of Patterson in failing to pay his note for $2,600 in such collateral manner as he had engaged when he gave it."], "id": "e4f68eb3-d28b-42e1-86b4-426135f7b225", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Surrogate\u2019s Court has full and complete jurisdiction in law as well as in equity to administer justice in all matters properly before it. (SCPA 201; see also Matter of Sturmer, 277 App Div 503 [1950]; Matter of McCoy, 100 Misc 2d 301 [1979].) The equity powers of the surrogate are broad, and can be invoked without limitation to do full and complete justice between the parties. (Id.; see also Matter of Baby Boy C., 84 NY2d 91 [1994]; Matter of Lonas, 197 Misc 678 [1949]; Matter of Beall, 184 Misc 881 [1945]; Matter of Grieco, 172 Misc 723 [1939].) Justice requires the court to apply principles of equity in this case and \u201cnot countenance a ritualistic invocation of the Statute of Frauds, especially where the party claiming its protection has acquiesced in and profited [or benefitted] from the very agreement it now seeks to abjure.\u201d (Brockport Devs. v 47 Ely Corp., 82 Misc 2d 310, 315 [1975].) The respondent should be estopped from using the statute of frauds as a shield, or as a sword for that matter, to escape the decedent\u2019s unequivocal promise to pay off the from the assets of his estate. The petitioners relied upon this promise to their detriment by performing all of the management responsibilities with respect to the subject property. This performance by the petitioners was fully accepted by the decedent for a full four years prior to his *560death. The decedent should be held to his end of the bargain, and thus the petitioners are entitled to specific performance of the decedent\u2019s promise by his estate.*"], "id": "4de6d067-2340-4deb-811e-027d5b692f02", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 138 of the Tax Law, another of the sections excepted from the portion of the Tax Law not made applicable to Oneida county by section 15 of the special act, provides as follows: \u201c The lien of a , duly recorded or registered at the \"time of the sale of any lands for nonpayment of any tax or assessment thereon, shall not be destroyed, or in any manner affected except as provided in this section. The purchaser at any such sale shall give to the mortgagee a written notice of such sale within one year from the expiration of the time to redeem.\u201d"], "id": "affd3626-d388-474a-b9c7-78f42945edb6", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Crane agt. Turner (67 N. Y., 437) Pierce had executed a upon premises of which he had possession under a contract of sale, and, after receipt of a deed, he conveyed the-premises and received from the grantee who had notice of the prior mortgage, a mortgage for a part of the purchase-money. Pierce then assigned his mortgage to the defendant' Turner, assuring him that the mortgage was the first lien.' In an action to foreclose the first mortgage, Turner claimed that his mortgage was entitled to priority. Both mortgages having been duly recorded, it was held upon the authority of the preceding two cases above referred to (1), that as Pierce would be estopped from claiming a priority if he had retained the mortgage, his assignee had no superior right and was also estopped; and (2), that the recording act did not aid the defendant."], "id": "c6c7b071-0fe5-4940-b67f-95c400aab9ed", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Under such a statute, if the mortgagee permits possession to remain in the mortgagor, it is incumbent upon him to record his *638 to protect Ms lien as against the three classes specified in the statute. Recordation permits any such person, who seeks security in connection with an extension of credit or transfer of funds, to check whether the chattel is subject to any incumbrance. The rationale underlying the statute is that, as between the classes specified and a prior mortgagee who has failed to record his mortgage, the loss should fall on the latter, who placed the mortgagor in a position of apparently unrestricted ownership and thus enabled him to perpetrate a fraud."], "id": "71b28480-9ae5-47f6-aa6f-b2b183b61d3f", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cIf I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be *365true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the on the Property, and (2) the Note secured by the Mortgage.\u201d The llardos thus contend that under HAMP and principles of contract law and the law governing waiver and estoppel, the court should mandate that the plaintiff permanently modify the loan by reinstating the terms of the TPE In opposition to these arguments, the plaintiff contends that it was not required to permanently modify the mortgage loan if it determined during the trial period that the borrower did not meet the requirements under HAMP for a modification. In support of these contentions, the plaintiff cites the following language from the Trial Period Plan:"], "id": "46acabcc-2cf7-4979-a606-68f819e0624b", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*41tended by the learned counsel for the appellant, the words, \u201cany remedy at law or in equity for obtaining possession of, or procuring a sale of, the trust property hereby transferred,\u201d qualify and govern all the other words of the first paragraph of the eighth article. The contention of the defendant would, in effect, exempt all of the property of the corporation, not covered by the , from liability to be taken in satisfaction of its bonded debt. It is not so stipulated in the trust deed, nor in the bonds, nor in the coupons. But, on broader grounds, we think the contention of the defendant ought not to prevail. As before stated, we concede that the bonds and trust deed are to be construed together, as forming the contract, in case they can be harmonized, but, in case the bonds and deed contain wholly inconsistent provisions, those contained in the bond must prevail over those contained in the deed. The provisions of the bond meet the eye of the purchaser, and are designed by the corporation to influence their sale, and they cannot be nullified by an inconsistent provision contained in the trust deed. As before stated, these bonds and coupons contain an absolute promise to pay definite sums on specific dates, which implies a right of action in case of failure; and, if the eighth article is capable of the construction contended for by the corporation, it is utterly inconsistent with the bond, which in that case must prevail. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur."], "id": "f1282785-7306-4f08-88ca-560227f0e22a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendant, who lives in a suburb in the Albany area, was seeking to refinance the house she lived in with her husband. (Although it seems that he was intended to be a party to the as well, he did not participate in the negotiations and initial document exchanges and thus is not involved in this lawsuit.) She dealt with the plaintiff firm, some 200 miles away, by telephone and fax. The record contains documents signed by the defendant showing receipt of a preapplication disclosure of a $100 application fee and a few other fees, for appraisals and similar charges. She also signed and faxed back a lock-in agreement in full compliance with 3 NYCRR 38.6. This document secures an offer of a fixed rate mortgage at 5.75% with no points, good for one month, in consideration of a payment of $1,100 (one percent of the loan principal). As the regulations require, this payment would be refunded at the closing of the loan, or if the loan were rejected because of the results of an appraisal, the failure of a third-party lender to cooperate, or the credit worthiness of the applicant. The defendant also signed a credit card authorization for these fees."], "id": "0dff6bc5-4cab-454e-b992-68d352acbd2c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In construing this agreement, it is axiomatic that should there be any ambiguity in the construction of the term \u201csecondary financing\u201d, the ambiguity should be construed strictly against the draftsman of the agreement, in this case TASCO. (Chase Manhattan Bank, N. A. v Mehlman, 59 AD2d 694; James Berardi, Inc. v Callanan Inds., 63 AD2d 804; Rentways, Inc. v O\u2019Neill Milk & Cream Co., 308 NY 342, 348.) Absent further description, the court can only conclude that the term \u201cfinancing\u201d or \u201csecondary financing\u201d as stated in the first relates to the borrowing of money or the receipt of credit for some purpose, the repayment of which would be secured by a mortgage. There is nothing in the papers to suggest that the plaintiff while in possession as owner, borrowed additional moneys and gave as security therefor any subordinate mortgages."], "id": "222c8a2f-cae6-485a-b1d7-bf2292d11923", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff claims that she is entitled to summary judgment by reason of the fact that the original bill of sale was filed in the incorrect place on January 18, 1957, and for the further reason that the filing of August 8,1960 was later than the filing of plaintiff\u2019s . Defendant claims that the 1957 filing was correct and, furthermore, that plaintiff\u2019s assignor had full knowledge of defendant\u2019s interest under the conditional bill of sale prior to the filing of the second mortgage."], "id": "11166f84-a868-456f-8d92-3197e020f85c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As to the compensation to be paid to petitioner, it was stated in Matter of Hurst (supra, p. 462): \u201c In 11 American and English Encyclopedia of Law (2d ed. p. 1287) it is written: \u2018 The fact that the authority of an executor has been terminated *200by the revocation of his letters or of the probate of the will does not affect his right to compensation for services previously rendered while acting in good faith. \u2019 The principle is stated by Marshall, Ch. J., in Wood\u2019s Adm\u2019r v. Nelson\u2019s Ex\u2019r. (10 B. Mon. [Ky.] 231), as follows: \u2018 So far as he collected and disbursed the fund for the benefit of the estate and in a manner available to it, his services were as beneficial as those of a rightful executor would have been and he is entitled to the usual compensation. \u2019 The record in this case shows that the administrator collected $125 interest on a . I think that he is entitled to have commissions upon that sum. In McAlpine v. Potter (126 N. Y. 285, 290) and Matter of Mason (98 id. 527, 536) such a division is approved. He is not entitled to full commissions on this sum for the reason that he has not paid it out within the meaning of the statute, for he has but transferred it to a representative in succession.\u201d"], "id": "b131f662-0119-4f43-8e49-713a1ebc8400", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Apparently someone has taken the advice of Dick the butcher in Shakespeare\u2019s Henry VI, part 2 and \u201ckill[ed] all the lawyers.\u201d1 Nowhere in this transaction does there appear to be the participation of any lawyers. No attorney represented the claimants as borrowers. No attorney represented the lender Citibank. No attorney represented the settlement agent United. No attorney represented the prior lender MCU. The only persons present were the borrowers and a representative of United whose function was to take signatures and collect the documents. At one time a real estate transaction consisted of a deed, a note and a , took about 15 minutes to complete, and had the participation of an attorney for all parties to the transaction. The last time the court checked, we were still in the city of New York where people do not even verify the score of the Yankees game without consulting counsel, and yet, lawyers have effectively been eliminated from real estate closings involving the refinance of mortgages and secondary loans, including home equity lines of credit. One could conclude therefore that these transactions have no legal implications. That, however, would be far from the truth. The borrowing of money secured by a mortgage is often a complex transaction with serious legal implications for all of the parties involved, especially the borrowers who are pledging their home as security."], "id": "07ee7f1f-ed55-40ed-b9e1-c3c68bdb61f6", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It must be admitted that the language of this will by which it is sought to limit the benefaction of the testator to a mode of discharge is not as clear and express as the words containing the gift. If such language be confined to a direction that the bequest shall be discharged by the payment of a upon the house, owned by the sister-in-law and situate in Herkimer street, it then is senseless and inefficient for any purpose. We have then a plain intention to secure the sister-in-law the benefit of $1,100, and, indeed, a bequest to her of that amount. Can this be cut down or impaired by a direction which, upon parol explana*614tion, appears as a mere confusion of words incapable of any application to the testator\u2019s intent?"], "id": "2ce061bf-a733-4832-a103-55046f0b8dbb", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cThe effective interest rate of the advance, if it is treated as a loan, is 15.46%. That interest rate is more than two and a half times the current low interest rate of 4.8% on a 20-year mortgage and approximates the interest rates on unsecured loans and credit card debt . . . Settlement L.L.C. attempts to justify the 15.46% interest rate by declaring that it is entitled to determine the rate at which it will lend money, its interest rate on this transaction falls within the range of what is pres*458ently being charged in the \u2018market\u2019 for structured settlement transfers, and Cunningham deems the interest rate acceptable. Assuming for the purposes of the argument that all three points are true, none of them is relevant to the question of whether 15.46% is \u2018fair and reasonable.\u2019 \u201d The court continued (at 724):"], "id": "a559edc0-5edc-4551-b0b1-d2698fd4ea85", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff commenced this action in March of 1991 to foreclose on a executed by the defendants John and Marie Mione, who are husband and wife. A notice of appearance and verified answer, which included an affirmative defense of lack of proper service, was served on behalf of the defendants by Joel Silberman, Esq. Thereafter, the plaintiff moved for summary judgment and for the appointment of a Referee to compute the amount due. No opposition was interposed on behalf of the defendants. The plaintiff\u2019s motion was granted upon default in an order dated April 21, 1992. On November 30, 1992, the Referee\u2019s computation was confirmed and the plaintiff was granted a judgment of foreclosure and sale."], "id": "d4f17528-e163-47a0-a13c-b6d865f118e7", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is obvious, therefore, that the ordinary income of the corporation, the stock of which comprises the sole asset of the trusts, is $90,000 plus the additional rentals received from the Four to Ten *681Dutch street properties, and its ordinary disbursements are the $32,000 ground rent plus the interest and amortization on the . It is also apparent that, aside from the natural current depreciation on the buildings, which would affect their value even if the landlord should purchase them in 1950 or 1971, or the subtenant were to exercise its option in this regard in 1950, the stock of the company is also subject to depreciation due to the fact that if none of these possible purchases become actualities, the total value of the improvements and the sole assets of the corporations will be destroyed by 1992 in any event."], "id": "a5a0e3df-e2a0-4330-a441-7b26c5a3d480", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendant Estco, Inc., contends, however, that the conceded service upon Beatrice E. Doyle, the then committee of the incompetent and occupant of the premises, of a copy of the summons and complaint in the foreclosure action on March 29, 1951, which was admittedly less than six years after the last payment of principal and interest on April 20, 1945, tolled the Statute of Limitations and consequently the may not be discharged."], "id": "310cc1d7-c7a6-4acd-b63a-e1f9cb6a2581", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["1 cannot suppose that the Legislature intended to favour, much less to give priority to, a purchaser who buys with notice of a prior unregistered , and with intention to defeat it, by taking advantage of the loches or inadvertence of the prior mortgagee. Notice supersedes registry, because it effects the same object, which is to apprize *569the purchaser of the prior incumbrance. An unregistered mortgage is valid between the mortgagor and mortgagee; and whoever takes a conveyance with intent to invalidate such security, is not a bona fide purchaser, but voluntarily aids in.defrauding the mortgagee."], "id": "152bc68a-3d95-4778-8c09-b839c5f5304a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On June 26, 2007, Matthew Naaze executed a note secured by a on the subject premises. RMS subsequently took assignment of the mortgage and on January 4, 2008 filed a notice of pendency and commenced a foreclosure proceeding. A final judgment was granted in favor of RMS and against Matthew Naaze on September 2, 2008. A foreclosure sale was held on July 28, 2009 by which RMS took title to the property; a referee\u2019s deed was executed on July 30, 2009."], "id": "071fde58-6015-42d9-8d63-e3a28de906d6", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*318The first care of the law is the safety of the trust fund. Upon this truism depends every rule which has been made for the conduct of trustees. It has produced the obvious requirement that if trust funds be loaned on , the loan shall be secured by property sufficient under prescribed standards to secure repayment of the loan. It regards the personal wealth or character of the borrower as a secondary basis of safety only. It then proceeds to requirements which touch the forms and evidences of the investment and the legal safeguards by which it may be surrounded."], "id": "59efa922-bb69-4729-b834-57b00faa7f4f", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Re\u00edda Realty Corporation was organized by deceased some years prior to his death for the purpose of acquiring title to and undertaking the erection of a twelve-story loft building on premises 423-439 West Fifty-fifth street, borough of Manhattan, city of New York. At deceased\u2019s death the land and building were valued at $865,000 and were subject to a first of $325,000. Deceased was the owner of the entire capital stock. At his death the books of the corporation carried an account in his name in which at that time was a credit balance in his favor of $128,507.75. This is the item which the executors and trustees have treated as a capital asset of the estate. By reason of their ownership of the *548entire stock of the corporation the executors and trustees controlled the board of directors of the corporation. The directors of the corporation authorized the corporation to discharge the debt by payment thereof to the executors and trustees. Payments agree-gating $103,507.75 and interest are shown in the account. Admittedly the payments in reduction of the debt were made wholly from income earned by the corporation which it derived from net rents of the building owned by it. Subsequent to the decree in the accounting the corporation paid to the trustees from the same source the sum of $25,000 remaining due on the debt when the account was settled by decree^ The total sum of $128,507.75 so paid is conceded to have been invested by the trustees and the investments carried as principal assets of the trusts. The shares of the corporation are likewise so carried."], "id": "cd253621-aacb-4c5e-abe0-0dde5e72781c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The testimony taken in this case shows most conclusively, that there was no declared intention on the part of Watties, that the should continue. All his acts and declarations before, at, and after the sale, manifest, most unequivocally, an intention on his part to unite the titles and to extinguish the mortgage; such as purchasing of Johnson the equity of redemption; his silence at the sale, and, after sale, representing himself as absolute owner of the premises, and offering to sell them in fee. The fact of his silence at the sale, is supported by every witness who has testified, with the single exception of West, who says that he attended the sale, and after the property was put up by the Sheriff, heard Wattles publicly say, that he had a mortgage on the property executed by Johnson, for $12,000. But the testimony of West is contradicted, and I think perfectly destroyed by the witnesses examined, who were present at the time; all unimpeached, and ten in number. And how could the declaration of Wattles, in relation to this mortgage, be deemed public, even if it were made to West, when the Sheriff, and every other person present, who has been examined, heard nothing of it. In fact, it is not to be presumed, that Wattles should have made such a declaration in the presence and hearing of those witnesses, as he had before that time declared to most of them, that he had purchased the equity of redemption of Johnson."], "id": "2b31c246-3f22-4257-b91b-509c015ab634", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["But it is urged that unless this motion be granted the petitioners are remediless. By no means. The administrator and administratrix may disaffirm and treat as void this . (Laws 1858, chap. 314; Southard v. Benner, ut supra.) A neglect to discharge their duty in this respect may render them liable to account for the loss and liable to removal."], "id": "d4c7e5e4-f923-42a8-b1f1-a3ed6f5f1bc2", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In 2003, Kennedy executed a Second Amended Declaration of Trust. That Amendment repeated most of the above language, with the exception of the sentence in Article II-B(2) stating what financial responsibilities Senez would have while living in the Residence. The revised language removed any obligation to pay payments and required Senez to pay only for \"ordinary maintenance expenses\" (as opposed to \"any other expenses which may be incurred\")."], "id": "4c3ec466-5206-47cc-9e49-33ce05a7d5dc", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Keas v. Yewell (2 Dana, 249), where the action was on a bond to have two slaves forthcoming to answer any decree in a foreclosure of a upon them, it was set up in defense that one of the slaves had run away. Plaintiff had judgment, but it was reversed, the court saying: \u201c The casualty by which the slave was lost is a peril incident to the very nature of such property, and therefore in contracts and covenants concerning such property that peril should never be presumed to have been intended to be guarded against unless so expressly stipulated.\u201d"], "id": "1de5509c-ee5d-42c1-8841-19af8a5e2262", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The purchase price was $16,700, of which $1,670 was paid as a deposit and the balance of $15,030 was to be paid upon the *190delivery of the deed at the closing. The contract contained the following special provision: \u201c The performance of the terms and conditions to be performed on the part of the purchaser are conditioned upon the purchaser securing a &. I. in the sum of $12,700.00. If the purchaser shall be unable to receive a mortgage commitment for this amount within a period of six weeks then at his option this contract may be declared null and void by giving notice in writing to the attorney for the seller, in which event the moneys deposited hereunder shall be returned to the purchaser and the rights of both parties as against the other shall be terminated and neither shall have any further right against the other \u201d (emphasis supplied)."], "id": "63ffd2e9-4480-4a67-bd76-84e96d51eea0", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["B. Applicable Law \u201c \u2018Where one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use.\u2019 [Citation.] The right to such compensation is commonly known as a \u2018Watts charge.\u2019 [Citation.] Where the Watts rule applies, the court is \u2018obligated either to order reimbursement to the community or to offer an explanation for not doing so.\u2019 \u201d (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978.) \u201cThe trial court determines what is due the community \u2018after taking into account all the circumstances\u2019 relevant to the exclusive possession by one spouse.\u201d (Id. at p. 979.) The trial court has broad discretion, based on equitable considerations, as to whether to impose Watts charges and in what amount. (See In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 318 [Epstein credits]; In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201 [review of orders dividing marital property].) C. Analysis Carol contends the court abused its discretion by imposing the full amount of Watts charges. In reaching its decision, the court considered all the circumstances: Paul incurred a monthly obligation of $12,000 based on the expectation that he would receive $20,000 per month from the community\u2019s passive income; during the relevant time period Paul received only $40,215 from the passive income while Carol used $839,712 of community rental income to pay for her exclusive use of the community residence; and the fair market value of the community residence was based on its condition as calculated by Carol\u2019s expert."], "id": "a1679e14-10ba-46c2-bdd9-449d18d37d0c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Neptune further argues that it is entitled to $199,633.39 in interest payments between January 5, 2010 and June 7, 2010 (exhibit 49) .21 Neptune reached its calculation in its posttrial brief by taking the interest it paid in 2010, $399,266.78 and dividing that amount by two for, \u201c6 Months 2010 . . . January 5, 2010 - June 7, 2010.\u201d The court agrees that Neptune is entitled to the interest payments it incurred while the project was stalled as a result of the wrongful filing of the lien. However, upon review of the mortgage interest payments included in the general ledger and the form 1098, the court finds Neptune\u2019s calculation to be incorrect. It is noted, that the time period between January 5 and June 7 is five months, not six. Further, averaging the amount of interest by month is an inaccurate method of establishing damages as Neptune\u2019s actual interest *664payments are included in the ledger for January through May of 2010 and they total $146,401.01 (exhibit 49). Accordingly plaintiff is entitled to recovery of $146,401.01 for mortgage interest."], "id": "c920d8ea-edb1-41ef-afb0-478679402611", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first question which arises is, Would the bank or Mr. Levy *826be bound by any order or decree made by this court in a proceeding to which they had not been made parties and of which they did not have proper and legal notice. It seems fundamental and elementary that they would not. This held by Mr. Levy as security for this indorsement was satisfied and canceled over two years ago, and he might reasonably object at this time to the substitution of another to the position of the bank in the latter part of September, 1931, as to this note upon which he was then liable. He could have had the note collected at that time or since then, :if he believed he should in order to protect himself, and could have enforced his rights against the other parties on this note and the security he held. Other questions may arise. At any rate he is not a party to this proceeding. At least he has the right to be heard if he so desires."], "id": "5443e16b-5013-4743-b5cf-c2beb119db13", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Motion granted to the extent of directing payment of the claimed balance plus interest thereon at the rate of 4%% from April 1, 1960 to the date of vesting of title and at the rate of 4% from the date of vesting of title to December 24, 1960, on so much of the advance payment as is in the ratio of the claimed mortgage balance to the whole award and to September 24, 1962 on so much of the remainder of the award, not available in advance, as is in the ratio of the mortgage balance to the whole award. Settle order, approved as to form by the Corporation Counsel, in terms of the specific amounts of principal and interest computed according to the foregoing ratios."], "id": "6551fcaf-c3a7-40d6-a9fa-082e87a584c1", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cPrepayment Fee. \u201c(a) Any tender of payment by Borrower or any other person or entity of the Secured Indebtedness, other than as expressly provided in the Loan Documents, shall constitute a prohibited prepayment. If a prepayment of all or any part of the Secured Indebtedness is made following (i) an Event of Default and an acceleration of the Maturity Date, (ii) the application of money to the principal of the Loan after a casualty or condemnation, or (iii) in connection with a purchase of the Property or a repayment of the Secured Indebtedness at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property, then to compensate Holder for the loss of the investment, Borrower shall pay an amount equal to the Prepayment Fee.\u201d (Current Issues Concerning Prepayment, 478 PLI/Real 871, 923-924, Appendix D [emphasis supplied].) This clause is included in its entirety as an example drafted to clearly state the parties\u2019 intent that liquidated damages in an amount equal to the prepayment fee are enforceable in connection with premature payment by anyone and at any time after acceleration. Notable is the use of language indicating \u201crepayment\u201d rather than \u201cprepayment\u201d of the secured indebtedness \u201cat any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property.\u201d Such clause is clearly *989intended to be enforced in a foreclosure proceeding and is not limited to \u201cprepayment\u201d situations after acceleration, as is the one at issue."], "id": "ecf66bca-c29d-48a9-94bc-025055f906fa", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the interim, the adjuster ascertained that one, Mary Raimundo, had an interest in the property. He communicated that information to Messrs. Fenner and Gravitz. Several talks were had between them which resulted in an agreement to settle the loss for $6,000 upon the receipt of appropriate documents. These documents, namely, a proof of loss, a fire policy, copy of a , letters of administration, and a request that \u2018 \u2018 check be made out to mortgagee only\u201d were forwarded to the defendant on May 5,1960."], "id": "c2fe59a3-ec85-4e64-92cf-3c0f5247c594", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The next point of the defendants is, that the trustees had no right to sell the building without authority from the court. The building which was sold was an old church which had been removed from its foundation and placed on rollers in order that it might be taken from the lot. A new edifice had been built upon the old foundation. The old building had thus been .severed from the *444realty, and might, like other personal property, be sold by the trustees. The next objection is, that the agreement on which the action is brought is void by the statute of frauds, because it is an agreement by the defendant to buy the land of the plaintiffs, and they did not sign it. This is not the meaning of the agreement. The plaintiffs did not own or agree to sell the land in question. There was a good consideration for the agreement; and for this good consideration the defendant agreed that, in a certain contingency, he would pay for the property a certain sum. The defendant desired the plaintiffs to take a second , which he held on a piece of land, in exchange for their old building. The value of the mortgaged property was, to some extent, in the building upon it. And the plaintiffs washed to be sure that, when the mortgage became due, the property would sell for enough to pay off the mortgage. It might not do so if the building should previously be burned. And, therefore, the defendant, as a consideration of .the exchange, agreed, in ease of such burning, to pay for the property enough to satisfy all liens. This was uot a contract to sell lands. No one assumed to agree to sell the land to defendant. Only he agreed that he would pay so much for it ; and the consideration for this agreement was the acceptance by plaintiffs of the mortgage in exchange for the building. Tbe defendant\u2019s agreement was similar to a guarantee, that on a foreclosure sale a guarantor will bid a certain amount."], "id": "b5a530e5-db7f-4d9c-8b4e-b0919611bca6", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Under all the circumstances of the case, I am unable to divest my mind of the belief that the whole transaction was tainted with fraud towards the creditors of Green; and even viewing the matter in the mqst favorable light, and supposing that the acts of the appellant, Bailey, were not intended to deceive or defraud, there cannot rest a doubt on any mind, as it appears to me, that the acts and intentions of Green were fraudulent, and therefore that the is void as to the respondents. I am therefore of opinion that the decree of the chancellor should be affirmed."], "id": "81fa6e65-02c2-4db8-b199-d08929837a12", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The certificates provide for the payment of the amount for which issued by the Title and Guarantee Company ten years after the date of each certificate, and give to the holder the right to require payment after three years, \u201c out of any moneys received *358by the company in payment of the deposited bonds and mortgages after the receipt of such notice by the Company and after the payment of any certificates of this issue in respect of which the Company shall previously have received notices requiring payment; and the Company agrees to pay such principal and interest accordingly.\u201d \u201c All certificates shall be payable in the order in which such notices shall be received and registered by the Company.\u201d"], "id": "94063f1c-db91-41e1-898a-328f21ded222", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The next decision, in chronological order, is Matter of Marshall (43 Misc. 238), decided by Surrogate Silkman of Westchester county in 1904. Two properties presenting problems of the variety here under consideration were there present. In June, 1872, the executors invested $15,000 in a on unimproved real property. Interest was paid to June 1,1878, when default occurred. In December, 1879, the executors acquired title through foreclosure proceedings, holding the premises until May, 1903, at which time they were sold for a net sum of $54,500. Costs of foreclosure and all carying charges, amounting to an aggregate of $16,174.33, were paid out of principal. The second property was a $3,000 bond secured by mortgage, upon which interest was paid to December 1, 1874, when default was made. The executors took title through foreclosure on February 15, 1875. It was carried by them until June 9, 1899, when it was sold for a net sum of $9,405. Here also the costs of carrying the property, including taxes and foreclosure and other expenses, were paid out of principal."], "id": "a88b458c-994a-415e-ae75-cfebc18a0d7b", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["From this order there is an appeal which presents a very serious obstacle in the way of the plaintiff. It has been seen by the statement already made that the judgment of the Supreme Court was not entirely reversed, but only that portion of it which denied to the plaintiff substitution to the place and rights of Mackin and Yerplank. The Court of Appeals held and decided that as to them the plaintiff was a junior incumbrancer and possessed all the rights incident to that relation; that she was entitled to the securities of the senior incumbrancer, and should be permitted to redeem the and acquire all the rights of the holders. The law of the case, therefore, is settled by the Court of Appeals and cannot be unfixed by any action of this court. The Supreme Court is without power to reverse the judgment of the Court of Appeals. Neither can it nullify the decisions of that court by setting aside its judgments entered on its remittitur in the Supreme Court. Because, if that could be done, then the Supreme Court would be in possession of the power to control all the judgments and decisions of the Court of Appeals. For this, of course, the respondent does\u2019 not contend, and yet the argument put forward in her behalf, if followed to its logical conclusion, leads to that result. Doubtless the judgments of the Court of Appeals, after they become the judgments of the Supreme Court, may be opened and modified by this court in furtherance of justice in many ways, but they cannot be swept entirely aside."], "id": "7cdcf94c-f8ef-49d9-b988-8e341213b425", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*476There is no doubt where the equity lies in this situation. These mechanics\u2019 lienors have put their labor, material and services into the premises which have now been sold in this foreclosure action. Their labors and materials have enhanced the value of the premises and have undoubtedly made it possible for a surplus to exist. Opposing their claims, we find the'United States which has chosen to designate the former owner of the premises as its agent for the collection of income taxes imposed by the Federal Government; it now finds that the agent so chosen was unworthy or incapable of the trust imposed and so seeks to recoup its losses at the expense of these mechanics\u2019 lienors without prior notice to them of its claim."], "id": "2dd61523-e473-4723-a30f-d4740aed1c17", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants contend that the purchase of the said insurance policy was a condition to obtaining the loan; that the monthly premium of $58.50 paid thereon was additional interest and that the whole transaction was, therefore, usurious; that the insurance policy was not taken out on the life of the owner of the property, Madalene T. Kerpel, but on the life of Julius Kerpel, her husband; that they never consented to the purchase of the paid-up term insurance and that it was merely a means by which plaintiff retained the surrender value of the policy as additional interest; that the purchase of the insurance policy was part of a single transaction and that the premiums in payment therefor were included in the terms of the bond and as additional interest and that all these factors are proof that the whole transaction was usurious."], "id": "ee3b5060-2a43-49a7-8558-0f421b054439", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cNinth: I give and bequeath to my brother Roscoe E. Jones, the balance unpaid upon the which I now hold upon the apartment at Lapham Street and Lake Avenue in the City of Rochester, Monroe County, New York. In the event of my brother not making a disposition of this mortgage during his lifetime, then, and in that event, I give and bequeath to my nephew, Irving D. Jones, the balance unpaid upon said mortgage at the time of the death of my brother, Roscoe E. J ones. It is my intention that my brother, Roscoe E. J ones, shall have the right to collect, sell or dispose of said mortgage without limitation and that he shall have the proceeds for his own separate use.\u201d"], "id": "f2ab60e8-f60f-451b-8bb5-1a0716cd44eb", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant has correctly emphasized that the alleged errors in disclosure are of various kinds (e.g., overdisclosure of annual percentage rates and legal fees in some instances and underdisclosure in others as well as improper calculations involving insurance premiums which may be applicable to FHA, VA or conventional mortgages) and that each type of purported error or omission may be subject to a wholly different and complex defense. However, this argument concerns proof to be offered at the time of trial and has no efficacy in displacing the commonality of issues set forth by the plaintiffs. Neither is the fact that a proposed defense is circumstantial or complex sufficient to divest the class action of superiority (Professional Adj. Systems of Amer. v General Adj. Bur., 64 FRD 35)."], "id": "c2236353-e12a-4ae9-b79d-8fe348b3586d", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Following the fire, plaintiff notified defendant insurance company and filed proof of loss dated January 13, 1993. On this proof of loss, plaintiff indicated that, since the time of the issuance of the policy, there had been no change in the use, occupancy, or possession of the property; that the property was maintained at the time of the loss for the uses contemplated by the policy; and that there were no mortgages upon the property. Investigation revealed that plaintiff had not been residing in the premises at the time of the loss and that there was in fact a on the property in the amount of $8,444.26."], "id": "1f4d00a3-dba4-4750-b788-f634194981e3", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is, therefore, apparent that defendant is unable to establish a valid defense to the payment of the note and or to establish its affirmative defense and counterclaim for a declaratory judgment for rescission and damages or to provide evidentiary facts sufficient to raise genuine triable issues of fact herein. (See Chemical Bank v Econ, 87 AD2d 706, appeal dismissed 57 NY2d 604; Frank Corp. v Federal Ins. Co., 70 NY2d 966.) Accordingly, the court dismisses the defendant\u2019s answer with affirmative defense and counterclaim; and summary judgment is granted in favor of the plaintiff against the defendant for the amount demanded in the complaint. The court hereby ratifies and confirms the report of Referee."], "id": "665f4b51-1f75-44f5-a33a-e683ad5d6cdb", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["William Weisman, as an affirmative defepse ;n Action Np. 1 and as a third cause of action in Action No. 2, asserts and seeks to foreclose a lien agaipst the premises, wftiph lien he claims is or may be a prior lien to the first on the premises. The alleged Rep for $5,400 arises opt of a purely gratuitous payment of taxes on the premises. Payment was made to the Treasurer of Ulster County, a defendant ip the second action, who has appeared and answered."], "id": "021d0a7d-36d2-4906-ad61-bbcb3b820e21", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["For the first factor, \"we ask whether the regulation 'unreasonably impair[s] the value or use of [the] property' in view of the owners' general use of their property.\" ( Allegretti, supra , 138 Cal.App.4th at p. 1278, 42 Cal.Rptr.3d 122.) In this case, the evidence suggests that the City Council's decision had an adverse economic *285impact on the Bottinis. For example, the evidence shows that the Bottinis have had to pay a for both their existing home and an empty lot-at an additional cost of several thousand dollars per month-as a result of the construction delay caused by the City Council's erroneous resolution granting the CEQA appeals. Further, it is doubtful that the Bottinis could have made an alternative use of the property during the period in which they sought to overturn the City Council's decision, given that the lot is zoned exclusively for residential purposes. Thus, the economic impact factor weighs in favor of the Bottinis."], "id": "b7d4737c-c21c-480d-b5e0-f72173076627", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Again (at p. 8): \u201c The assignment passed title to the bond and as against Mr. Lilly, his representatives and the mortgagor as well as all other persons who were not affected by reason of an absence of the record of the same. A delivery of the bond and mortgage to defendant was not essential to vest title to the same in defendant. Neither was she required to assert ownership of the same by demanding possession thereof from plaintiffs.\u201d"], "id": "2828a173-cf84-4dfe-9f3b-b6e305d2f720", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thomas F. Whelan, J. Ordered that this motion (No. 001) by the plaintiff for the entry of a default judgment on its complaint seeking a declaration that it owns a certain , that defendants\u2019 rights and interests under the mortgage, if any, are subordinate to those of the plaintiff and for an order and judgment directing the County Clerk to record a copy of said mortgage, nunc pro tunc, as of May 8, 2006, is considered under CPLR 3215 and RPAPL article 15 and is granted to the extent set forth below."], "id": "46cfeda7-f6c6-4e97-8e8b-39705c9eb4a9", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor is it absolutely certain, although, of course, extremely probable, that there would have been a deficiency in case the mortgaged property had been sold under the plaintiff's judgment. Still less certain is it as to the amount of such deficiency. The sale would have taken place at a different time and under different circumstances from the sale on the first . Be that as it may, the plaintiff had an ample opportunity to ascertain the deficiency in the regular and ordinary way and to enter his judgment thereon in the manner provided by law. Having failed to do this, he cannot now come in and on motion ask the court to adjudge that a deficiency of the entire amount of his bond and interest must necessarily have resulted from a sale of the mortgaged property under his judgment. This is asking the court to decree a deficiency which, in fact, does not exist, and which, owing.to.the- course pursued by the plaintiff, cannot now be ascertained in the-manner required by law'. \" \u2022"], "id": "456d1303-6910-4643-bcb2-3e9305088ed2", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With regard to the failure to give \u201c prompt notice \u201d of the making of the participation certificate to the adult life beneficiary as required by section 188, subdivision 7, of the Banking Law, the accountant trustee offered no evidence of giving the notice required. The life beneficiary testified that he never received notice. This court, in Matter of Peene (155 Misc. 155), on a similar lack of prompt notice, decided that prompt notice was one of the elements required by the law to create a legal mortgage participation certificate. This additional ground sustains the surcharge in the amount of $8,000."], "id": "5cc70593-f035-496f-aa7d-9851e44835c8", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is contended by the appellants\u2019 counsel that notwithstanding parol evidence is, in general, admissible to show the actual consideration, although it be different from that expressed in the deed, the rule is limited to cases where the inquiry is material to an action between the parties to the deed. It is not necessary to decide that point in the present case, for the reason that if any error was committed'at the trial in receiving the evidence, it was merely as to the order of proof. The plaintiff offered the evidence before he rested. It was not then material or necessary to his case, and if nothing had occurred subsequently to make it material, the reception of it probably would have been erroneous. The plaintiff having proved his bond and , was entitled prima facie to the relief demanded in his complaint without further proof. The burden of impeaching the consideration expressed in the mortgage and of showing fraud was on the defendant. For that purpose the defendant had a right to give parol proof of a different consideration from that expressed, and in fact he gave evidence to that effect. To that evidence it was competent for the plaintiff to reply, on the issue of fraud, and to give his version of the true consideration. All the evidence given by the plaintiff upon the subject, against the defendants\u2019 objection, was material and admissible for that *560purpose, and if it had been offered after the defendant had opened the door to that inquiry, it would have been entirely unobjectionable. It is obvious that the defendant was not prejudiced by\u2019the reception of the evidence before he took the case, as he was thereby advised of the strength of the plaintiff\u2019s proof on that issue before he entered on his own."], "id": "1df75f82-4c56-45d6-8f45-d59f4a3eef7a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Whatever may have been the rights of the savings bank if it or its attorney had acted on the order and received the bond and within the ten days after the order was made, we think that after knowing that the ten days had expired before it had acted on the order it could not set it up as a valid and existing order, without an application to the court, founded on some good reasons, and a notice to the plaintiffs, to allow the order to be entered nunc pro tunc ; and, therefore, we think that the order appealed from, so far as it preserves the priority of the savings bank mortgage for $1,000 over the plaintiffs\u2019 judgment, was erroneous."], "id": "d2552278-1b2d-4008-8223-36391ef48b69", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cDefendant first argues that plaintiffs\u2019 suit was barred, relying on a provision of the policy which requires \u2018the insured\u2019 to file a proof of loss within 60 days of the loss and another provision barring suit \u2018unless all the requirements of this policy shall have been complied with\u2019. Plaintiffs respond that the contract of sale clause is expressly subject to \u2018any clause forming a part\u2019 of the policy, and that under the \u2018mortgagee interests and obligations\u2019 provision quoted above, the mortgagee is required to give proof of loss only upon notice by the insurer. No such notice was given in the instant case."], "id": "38ae1827-92d0-43e9-b18d-8d94f9106fbb", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The executors of the deceased husband assert a right to be paid from the estate of deceased a sum slightly less than $1,500 which is stipulated to be the amount actually incurred and expended for medical, hospital and nursing expenses during the last illness of deceased\u2019s husband. By paragraph tenth of her will she provides: \u201c If during the lifetime of my beloved husband Wilford Lincoln Rosenstein, my beloved husband shall become ill and require medical attention and care, then my trustees, if the income given to my husband under the trust estate is not sufficient to take care of the medical expenses incurred as well as to maintain and support him, that the trustees shall obtain a in an amount not to exceed Fifteen thousand ($15,000) Dollars upon either and/or both premises 130 and 138 West 74th Street, in the Borough of Manhattan, City of New York, and the amount received from such mortgage shall be part of the corpus of the trust estate created in this Will for the benefit of my beloved husband, Wilford Lincoln Rosenstein, and the income thereof shall be used and applied in *782payment of any medical expenses incurred for .him, and if the income derived from said mortgage money does not amount to twenty-five hundred ($2500) Dollars during any one year, then the trustees shall apply the difference to make up Twenty-five hundred ($2500) Dollars from the principal of the corpus of the trust fund.\u201d"], "id": "26ddff9f-2dae-4c29-adbd-7e808ddf9613", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Neither plaintiff nor Langer dispute the facts as presented by defendant. They argue that defendant should have sought court relief sooner, as he had in the past, and that his attorney should have reached out to plaintiff\u2019s attorneys rather than relying on plaintiff\u2019s representative. Plaintiff acknowledges that defendant has taken all steps required to complete the workout and the reinstatement of the ."], "id": "a9afbde9-9667-439b-a3b5-5df4b71e0c7e", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff Balsam is not a \u201cLender,\u201d pursuant to the statutory definition in Banking Law \u00a7 6-1 (1). According to Banking Law \u00a7 6-1 (1) (i), \u201c \u2018Lender\u2019 means a banker as defined in paragraph (f) of subdivision one of section five hundred ninety of this chapter or an exempt organization as defined in paragraph (e) of subdivision one of section five hundred ninety *365of this chapter.\u201d Banking Law \u00a7 590 (1) (f) defines a \u201cmortgage banker\u201d as \u201ca person or entity who or which is licensed pursuant to section five hundred ninety-one of this chapter to engage in the business of making mortgage loans in this state.\u201d However, plaintiff Balsam, who made only one mortgage loan in his life, the subject loan to Patrick and Zenda, is exempt from being licensed as a \u201cmortgage banker,\u201d pursuant to Banking Law \u00a7 590 (2), which states:"], "id": "42498834-acf8-401f-93c8-2462a6e3696d", "sub_label": "US_Terminology"} {"obj_label": "Mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Finally, it is also concluded that the plaintiffs have not made a case against the defendant Inter-County Title Guaranty & Company, and that the complaint is to be dismissed as against it. The title policy of said company on the face of it purports only to insure against defects of title affecting the premises described in Schedule A attached thereto and made a part thereof. The above-quoted provision in plaintiffs\u2019 deed referring to use of the springs and the right to lay and maintain pipes therefrom is not included as a part of the description of the lands as set forth in Schedule A. Said schedule merely describes plaintiffs\u2019 lot by setting out the boundaries thereof and there is no reference whatever in the said schedule or in the policy to the easement claimed by plaintiffs. And said policy, by clause 10 thereof, expressly provides that, \u201c No rights of the insured in any premises beyond the lines of the premises *697as described in Schedule A * * * are insured by this policy unless such rights are specifically expressed as being insured \u201d."], "id": "6c3bfe56-82f0-4bcd-be6d-9a376b8d7e97", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants urge, too, that Fennelly may have forged some part of the assignment to the plaintiff and that the Flails had knowledge that the Anthonys desired to pay off their and had furnished Fennelly with the money for that purpose. There is no proof of any forging and whatever the Halls may have done or known cannot be attributed to this plaintiff, or be of any value now to the Anthonys,"], "id": "a0c8e96e-0e09-4cb5-b6da-e13ec275c55a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The learned justice in his opinion said on that subject: \u201cThe only remaining difficulty is as to bringing in the United States. That seems, however, to have been settled by the order of the District Court, and the willingness expressed by the United States district attorney to submit to the jurisdiction. The motion should, therefore, be granted upon the money being brought into court and upon the United States district attorney appearing for the United States herein, and stipulating that the United States submits to the jurisdiction and consents that the title to the debt may be determined herein upon the merits, and that it will abide by the judgment.\u201d"], "id": "8840798c-57b4-4726-9c1b-98c0f36cb100", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the foreclosure action, a stipulation was entered by the parties, providing for entry of a judgment of foreclosure on and after April 1, 1964, and the withdrawal of defendant\u2019s answer, providing defendant made payments of interest monthly on the unpaid principal of the mortgage. This stipulation contained further conditions which were to become effective upon the then pending condemnation of the property. Since then this condemnation has been indefinitely postponed, and it appears that defendant has made default in payment of taxes, sewer and meter charges, and in maintaining the necessary insurance upon the mortgaged premises, all as required under the mortgage. Defendant claims that as the stipulation did not require these payments to be made, it is under no obligations with respect thereto. Plaintiffs claim that it is clear that what was intended by the stipulation was that all terms and conditions of the mortgage survive, save that defendant was given additional time to pay the principal and the accrued interest. It is palpably incredible that the parties intended, by the stipulation to dispense with defendant\u2019s compliance with all other terms of the mortgage, and readily apparent that plaintiffs\u2019 interpretation of the agreement must prevail, and was that intended by the parties."], "id": "68e8ede4-06a1-4d09-bab2-b7d112b13139", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is a sufficient delivery to constitute a valid gift \u25a0Lo a married woman of household furniture in the possession and use of herself and family, where one who has just purchased under a chattel made by her husband, pointing out certain articles to the wife, says to her: \u201c I give you these and all the property I have purchased this day.\u201d Allen v. Cowan, 23 N. Y. 502."], "id": "be0c9edf-3373-4550-9f16-454cbc5d0438", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The extreme importance of a careful analysis of the language of the particular gift is emphasized by the diverse results attained in Gardner v. Printup (2 Barb. 83) and in Beck v. McGillis (9 id. 35). In the former, in which the bequest was of \u201c the proceeds of a bond and I hold against Aaron Briggs,\u201d it was held that another bond and mortgage received by the testator upon a resale of the securing property after it had been retaken by him because of default in compliance with the terms of the mortgage, would be delivered to the legatee in satisfaction of the specific gift. In the latter, the gift was of a specified bond and mortgage made by one Buel. The testator foreclosed the mortgage and the property was sold to another, who gave the testator a new purchase-money mortgage. In determining that the specific legatee was not entitled to receive the new mortgage, and that the legacy had *278wholly abated, the yourt said (at p. 58): \u201c The bequest is of that peculiar debt, and not of a sum of money to be paid out of that debt. Had the testator received payments upon the bond and mortgage, such payments would have constituted an ademption pro tanto. The balance, if he had still retained the bond and mortgage, when he died, would have passed to the legatee. But the debt bequeathed was, in fact, fully paid to the testator. The bond and mortgage were satisfied by the foreclosure sale. The thing bequeathed was gone, and the legacy was adeemed. The fact that the same money which satisfied Buel\u2019s debt has been invested in a new security upon the same property, cannot operate to save the legacy. Whether the testator was paid in money or a new security, or whether such payment was invested in another bond and mortgage, upon the same or other premises, cannot affect the right of the parties. In either case, the thing described in the will, and for which the legacy calls, no longer exists. The legacy is therefore adeemed.\u201d"], "id": "330f1751-cf10-47f8-9cda-2ba405f48b00", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*34In a separate transaction, plaintiff sold defendant certain real property known as 153-24 88th Avenue, Jamaica, New York. Plaintiff loaned defendant the money with which to purchase this property and took a on the property. It appeared that defendant did not or could not pay for this property. Plaintiff and defendant then agreed that plaintiff would take back the property in satisfaction of the mortgage, with defendant agreeing to pay plaintiff $545 for real estate taxes which had apparently accrued on the property and were unpaid. Defendant signed the following statement which was written upon the bottom of the agreement dated June 9,1976: \u201cJuly 25,1977 \u2014 In consideration of Bernard Feldbau releasing his lein (sic) of mtge. on premises 153-24 88th Ave I agree to pay an additional sum of $545.00 due and payable in addition to the above sum.\u201d"], "id": "d2828e5f-47ac-4dfc-a533-5a21bb6d2315", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Further, it appears that petitioner has conveyed a purchase-money to the predecessor landlord at the time title was transferred as evidenced by a mortgage agreement dated March 4, 1987, annexed as exhibit A of respondent\u2019s motion papers, which respondent mistakenly identified as the deed of the property. Since petitioner owes a debt to its predecessor, it, in effect, became a garnishee and respondent may seek to enforce the judgment against petitioner as such."], "id": "b35cb7ec-29b2-459c-8f9b-fd4420974cd9", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["These transactions were in the ordinary course of business, and the additional $75,000 was fair consideration for that portion of the . Fair consideration has been defined as that \"which is honest or free from suspicion, or one actually valuable, but not necessarily adequate or a full equivalent\u201d and includes payment of an antecedent debt (Black\u2019s Law Dictionary 479 [2d ed 1910], and cases cited therein). We need not evaluate with hindsight but merely determine whether what was received was of value and that the transaction was bona fide. Since the existing debt of $200,000 was closed out and a new arrangement entered into, it can be said that an antecedent debt was paid. However, the reality is that payment was postponed via a mutually acceptable schedule of installments. The decedent was and is still on the hook to guarantee payment of the $200,000 loaned to Empire Cruise Lines, Inc. and the $20,000 to Empire Resorts, Inc. The mortgages gave the corporations time to repay these loans with their earnings and postponed the decedent\u2019s repayment on their behalf. This is fair consideration. Nothing was lost and gain was possible."], "id": "ab09cc0a-c4e4-4059-a75c-6812fb2a3b02", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*720The court cannot spell out such acknowledgment and promise from the mere statement in the deed and contract that title would be taken subject to mortgages of record without specifically mentioning the involved in this action and unconditionally promising to pay it. Such a conveyance cannot have the effect of assuming or reviving a mortgage on real property already outlawed by the Statute of Limitations (Civ. Prac. Act, \u00a7 47-a)."], "id": "8efe2fa7-1c1a-432b-8365-916ee97f5997", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is clear that U. M. & M. acquired these instruments, regular and complete on their face, in the ordinary course of its business, for value, and without notice of the prior or knowledge of any infirmity or defect relating to the transaction. Its good faith is therefore established. Indeed, its good faith is less vulnerable to attack than that of Pettibone Mulliken, which purportedly secured the execution of a floor-plan mortgage more than 5 months after sale and delivery and about 10 days before the execution of this subsequent mortgage, and proceeded to make arrangements to secure repossession promptly upon default date 30 days later."], "id": "10a056a4-22b1-4768-b648-d7a8a3fd6815", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["2 Crooked Creek, LLC (2CC) and Russian Ferro Alloys, Inc. (RFA) filed an action in the Court of Claims against the Cass County Treasurer, seeking to recover monetary damages under MCL 211.78l of the General Property Tax Act (the GPTA), MCL 211.1 et seq., in connection with defendant\u2019s foreclosure of certain property. In 2010, 2CC purchased property for development in Cass County. 2CC failed to pay the 2011 real-property taxes and, in 2013, forfeited the property to defendant. From January through May 2013, defendant\u2019s agent, Title Check, LLC (Title Check), mailed via first-class and certified mail a series of notices to the address listed in the deed. These notices apprised 2CC of the unpaid property taxes, forfeiture, and possibility of foreclosure. The certified mail was returned as \u201cUnclaimed\u2014Unable to Forward,\u201d but the first-class mail was not returned. Meanwhile, 2CC constructed a home on the property, obtaining a for the construction from RFA. On June 18, 2013, Katelin MaKay, a land examiner working for Title Check, visited the property; determined it to be occupied; and being unable to personally meet with any occupant, posted notice of the show-cause hearing and judicial-foreclosure hearing on a window next to the front door of the newly constructed home. Title Check continued its notice efforts through the rest of 2013 and into 2014, mailing various notices as well as publishing notice in a local newspaper for three consecutive weeks. After no one appeared on 2CC\u2019s behalf at the January 15, 2014 show-cause hearing or the February 18, 2014 judicial-foreclosure hearing, the Cass Circuit Court, Michael E. Dodge, J., entered the judgment of foreclosure. The property was not redeemed by the March 31, 2014 deadline, and fee simple title vested with defendant. 2CC learned of the foreclosure a few weeks later. In July 2014, 2CC moved to set aside the foreclosure judgment on due-process grounds. These efforts failed, however, because the circuit court concluded that defendant\u2019s combined efforts of mailing, posting, and publishing notice under the GPTA provided 2CC with notice sufficient to satisfy the requirements of due process. 2CC appealed. In an unpublished per curiam opinion issued on March 8, 2016 (Docket No. 324519), the Court of Appeals, METER, P.J., and BOONSTRA and RIORDAN, JJ., affirmed. At the same time 2CC moved to set aside the foreclosure judgment, it filed a separate action in the Court of Claims for monetary damages under MCL 211.78l(1), alleging that it had not received any notice required under the GPTA. Defendant moved for summary disposition under MCR 2.116(C)(7). The Court of Claims, MICHAEL J. TALBOT, J., denied the motion and held a bench trial. At the close of 2CC\u2019s proofs, the court granted an involuntary dismissal in favor of defendant, holding, in relevant part, that 2CC had received at least constructive notice of the foreclosure proceedings when MaKay posted notice on the home at a time when 2CC \u201cwas exercising dominion and control over the property by contracting for the construction of a home on the property.\u201d 2CC appealed as of right, and the Court of Appeals, SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ., affirmed. 329 Mich App 22 (2019). 2CC sought leave to appeal in the Supreme Court, and the Supreme Court ordered oral argument on the application limited to 2CC\u2019s claim for monetary damages under MCL 211.78l(1). 505 Mich 865 (2019)."], "id": "36aa4d31-0c34-427a-98fe-4c971516bb80", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is still another point raised by the committee, which is that even if the is held to be not outlawed, the *80instalments of interest 'which accrued over six years ago must be regarded as barred by the statute. I think, upon the authority of the Quackenbush v. Mapes case, supra, I must reward the industry of this committee in his client\u2019s behalf by holding with him, -that all the instalments of interest which accrued upon the mortgage in suit more that six years prior to the commencement of this action are barred by the statute."], "id": "9386cd18-a8f8-4ffd-9251-07b3843a40b4", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On October 20, 1970, a referee was appointed to compute the amount due on the second . Thereafter, on August 3, 1971, the judgment of foreclosure and sale was entered and it provided, inter alia, that the notice of sale contain a statement \u201c that the property is sold subject to a first mortgage in the sum of $23,183.53 and a junior mortgage held by Allen Lempert in the sum of $7,500.00.\u201d It may be here noted that the notice of sale did not contain the quoted statement but there was this reference: \u201c For more complete details see filed judgment Index No. 1034/70 \u201d. Further, from this court\u2019s examination of the voluminous filed papers it does not appear that the judgment of foreclosure and sale was served upon the attorney for Diaz. On November 12, 1971, the property was sold to plaintiff, the second mortgagee, for the sum of $12,000:"], "id": "059b668a-9513-427e-970e-97fdcd718520", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As the houses neared completion Niebuhr made attempts to effect sales, and by October, 1878, he had sold eight of them with the land upon which each stood, respectively. Among them was one which was sold to the defendants, Woodruff, Conklin & Bayer, by deed recorded August 23, 1878, and upon conditions which will be specially noticed hereafter. As to the other seven, each house and lot was sold subject to a first of $4,000, held by the New York Life Insurance Company, and the purchaser in each case, as a part of the consideration paid, executed a second mortgage for $1,770, which was turned over to Kendall. Upon each of the three houses and lots remaining unsold, Niebuhr executed and delivered to Kendall a second mortgage for the same amount."], "id": "f83696d2-33af-4ac2-976e-a9234cc02bab", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The old case of Colt v. Woollaston (2 P. Wms., 154), is an example of this character. The plaintiff sought by his bill to be repaid two sums of money advanced to the defendants as managers and projectors of a bubble called the Land Security and Oil Patent, for the purpose of extracting oil out of radishes. There were two plaintiffs, and they purchased six shares each. The company was to have a capital of \u00a3100,000. The shares to be 5000, at \u00a320 each. Woollaston bought an estate for \u00a331,800, which was under for \u00a328,000, and he was to be paid \u00a357,200 out of the fund. It was represented by the defendants to be a most advantageous project. The master of the rolls said: \u201c This is an imposition, to propose the surplus of the value of an estate (which cost but \u00a331,800), after \u00a385,000 charged upon it\u2014 more than double its value\u2014as a security to the contributors who laid out their money upon this project; it is giving them moonshine instead of any thing real."], "id": "f7ff7c19-c12f-4468-a594-99c80f3bc0d7", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["But, if we assume that the to the plaintiff gave him ' the title to the horses after June 1, 1875, even in Canada, yet we find that the horses were in the possession of De Lisle, as proprie*84tor; that is, as one claiming to own them. And he was a trader, dealing in horses. Bromly bought from him in good faith. And, by article 1489, the plaintiff could not reclaim the horses, without paying Bromly the price he had paid."], "id": "83d30b3e-6bce-47b9-b53c-c24fb00a7d14", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["And the here, in plain language, provides that a receiver may be appointed without notice: \"16. That Mortgagee, in any action to foreclose this Mortgage, shall be entitled, *831without notice or demand and without regard to the adequacy of any security for the indebtedness secured hereby or the solvency or insolvency of any person liable for the payment thereof, to the appointment of a receiver of the rents, issues and profits of the Mortgaged Premises\u201d (cf. Mandel v Nero, 52 Misc 2d 604, where an ex parte order was upheld although the mortgage merely provided for the appointment of a receiver, omitting the words, \"without notice\u201d). In light of the language of the mortgage agreement, the ex parte order is valid under the New York law applicable to this case."], "id": "33e42db0-cb77-47a3-bfef-d22d5415807c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Appellant James Ogle is the owner of a building which has within it a real estate office and two apartments. As security for a loan of $170,000, Ogle gave petitioner a on the property. As further security for the loan, Ogle gave petitioner an \"Assignment of Leases and Rents.\u201d By the terms of this instrument, Ogle assigned to petitioner \"all of the rents, revenue, issues and profits\u201d and \"also all leases, sub-leases and rental agreements now hereafter affecting said premises.\u201d The assignment was to be held by petitioner but was not to be \"applied\u201d except upon a default under the mortgage. The assignment further provided that petitioner is granted \"full power and authority as principal\u201d to, inter alla, take possession of the premises from persons liable for the rents and to institute legal proceedings, including summary proceedings for the removal of tenants."], "id": "108e2fa8-0c49-43ef-8782-8ca32d016c57", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The same may be said of the conveyance to Hannah, and of her conveyance to Conway. Conway, then, who was the owner of the land when the statutory foreclosure was commenced, was bound to pay the , and the mortgage was a lien on the premises in his hands. O\u2019Brien, the plaintiff, was not then in any way liable as guarantor, or otherwise, on the bond, and he had no interest in the land. He was not the original obligor, and he had assumed no liability. When, therefore, he took a conveyance from Conway he stood in no better position than Conway stood in respect to the premises."], "id": "4af69932-b412-43d4-af19-6bd2bb03042c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Eor another reason we think the order under review should be .affirmed. It appears by the case that the trial court, at the request of the plaintiff\u2019s counsel, charged the jury that the burden of proof was on the defendant to establish the good faith of the ; which was excepted to. Also, that the defendant\u2019s counsel asked the court to charge that the burden of proof was on the plaintiff to establish the alleged fraud, which the court declined, and the defendant excepted. Immediately after the refusal above stated .the court said: \u201c I have instructed the jury sufficiently in reference to that. I give you the benefit of possession of the property to \u00abtart with, in charging that the jury must find a better right to the property in the creditors than the defendant, before the plaintiff can recover.\u201d In view of the evidence, we think the charge and refusal were erroneous, and the error was not cured by the reference made by the judge to what he had previously charged. The evidence showed that the mortgage was duly filed. There was evidence tending to show that it was given for a good and sufficient consideration, and also that the subsequent possession of Chase, one of the mortgagors, was by the authority of the defendant, as his agent for that purpose, though upon the latter points the testimony was conflicting, and the judge submitted it to the jury to find whether the defendant put Chase in possession in good faith or as a mere cover. Under those *634circumstances the onus of showing good faith was not upon the-defendant, unless the jury should find that there was no change of possession. But the rulings of the court put that burden upon the-defendant, irrespective of the question whether the possession of the property was changed. That was error prejudicial to the-defendant."], "id": "03bee3b3-6acf-41c7-a4c2-456fcc142d19", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["By letter, dated November 17, 1954, plaintiffs\u2019 attorney confirmed an adjournment of two weeks \u201c under the contract for the purposes of the FHA commitment.\u201d He stated, also, that the F. H. A. inspector who had been shown the premises had indicated that they were acceptable for mortgage purposes. The letter concluded: \u201cNeedless to say if you require more time it will be forthcoming \u2019\u2019. On December 14, 1954, the attorneys exchanged letters confirming an arrangement by which the defendants were permitted to move certain office furniture into the garage of the premises pending the closing. The defendants gave the plaintiffs a check for $200, the proceeds of which were to be credited to the purchase price if title closed as planned; otherwise, the money was to be returned less the necessary cost to restore the garage to its original condition and remove the furniture therefrom and place it in a public warehouse, if not removed by defendants. In plaintiffs\u2019 letter of December 14,1954, acknowledging receipt of the check for $200, it was, in part, stated: \u201cIn fairness to my clients who have waited long and patiently in this deal, please *825arrange to close title before Christmas, 1954. \u2019\u2019 Receipt of that letter was acknowledged by the attorney for the defendants on December 18, 1954, with the assurance that \u2018\u2018 we are doing everything within our power to close this matter by Christmas.\u201d"], "id": "26571a2f-759f-4346-832d-35c043b7dcd6", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I think, therefore, it is both just and equitable that this same course should be pursued, and that the estate of Douglas Sloane should be adjudged the owner of the bond and which was assigned to the .administratrix in this proceeding as against the property in Rye; but, as she has already satisfied it, that the *184same, together with the interest paid thereon, should be deducted from her share of said estate."], "id": "fb0a7e28-56cf-4ff5-bb91-51bfd54be094", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It was objected that the transfer by Samuel Blaisdell, Jr., & Co. to the plaintiff was not well proved, because executed by one of the firm only. The instrument purported to be a sale and transfer by the firm. It was so stated in the body of the instrument. But for anything appearing to the contrary, the sale and transfer by one of the firm of firm property, not being real property, was good and effectual to carry title to the vendee. It was also objected that the , under which the plaintiff claimed, was not well proved. The paper put in evidence was certified in due form of law by the town clerk, in whose office it was filed. It purported to be a copy of the mortgage, and was with a certificate of acknowledgment of its due execution, filed in the town clerk\u2019s office as a copy. It was a paper authorized by law to be there filed as a record. The certificate of the town clerk, however, went only to the filing of the paper. (Code Civil Pro., \u00a7 934.) It did not prove the existence and execution of the original. (Sunderlin v. Wyman, 10 Hun, 493; Fellows v. Van Hyring, 23 How., 230; Bissell v. Pearce, 28 N. Y., 252.) The admission here in evidence of the mortgage, against objection and exception, without such proof, was error, because of which there must be a new trial."], "id": "bcfe752f-b6db-4bca-901e-e9b109f8ff0a", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Two suits for an injunction have been instituted against Seaboard and Douglas \u2014 one by Canadair and the other by Irving Trust Company. There are four basic agreements between Canadair and Irving Trust on one side and Seaboard on the other, which are the bases of these suits. Essentially, the agreements constitute chattel and equipment trust agreements. It is charged that by reason of its agreement with Douglas, Seaboard has violated various restrictive provisions of its agreements with Canadair and Irving Trust. These restrictive provisions are identical in the agreements of both plaintiffs. By these motions temporary injunctive relief is sought against both defendants, restraining the continuance of the alleged violations."], "id": "9ecf8d29-d398-4dd0-ab01-dd4c93746fac", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*990The action is brought upon a bond secured by a covering real estate situated in the State of New Jersey. The mortgage was foreclosed under a decree entered in a court of that State, but it appears from the complaint that the foreclosure sale left a deficiency of $2,728.45. By this action it is sought to recover such deficiency."], "id": "81e4bf6f-bf8a-4bd2-9e92-78f4c3babe3c", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants rely on these and the other cases that involve slightly different issues to support their assertion that the \"majority\" of federal courts have \"excluded servicing from the definition of debt collectors.\" We are unconvinced of this proposition. A number of other federal authorities have concluded that mortgage servicers and/or mortgage lenders can and do fall within the definition of \"debt collector\" under the Rosenthal Act. (See, e.g., *454Sau King Chan , supra , 2017 WL 1807947, at *3 [\" 'courts have reasoned that a mortgage servicer may be a debt collector under the Rosenthal Act' \"]; Sudhir v. PHH Mortgage Corporation (N.D.Cal., Jan. 19, 2017, No. C 16-06088 WHA) 2017 WL 219681, at *2-3 ( Sudhir ) [Rosenthal Act's definition of \"debt collector\" is not \"as restrictive as its counterpart in the FDCPA,\" and concluding that a mortgage servicing company may be a debt collector under the Rosenthal Act]; Castillo v. Nationstar Mortgage LLC (N.D.Cal., Nov. 22, 2016, No. 15-CV-01743-BLF) 2016 WL 6873526, at *5 [plaintiffs had established that Nationstar was a \" 'debt collector' under the [Rosenthal Act]\" by showing that Nationstar \"regularly billed them and collected payments on their mortgage loan debt\"]; Cavender v. Wells Fargo Bank (N.D.Cal., Sept. 6, 2016, No. 16-CV-00703-KAW) 2016 WL 4608234, at *8 [in the course of dismissing plaintiff's Rosenthal Act claim on different grounds, acknowledging that \" 'a mortgage servicer may be a \"debt collector\" under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act' \"]; Wilkins v. Bank of America, N.A . (E.D.Cal., Aug. 19, 2016, No. 2:15-CV-02341-KJM-EFB) 2016 WL 5940082, at *7 [\"A mortgage servicer and an original lender may be 'debt collector' under the Rosenthal Act\"]; Reyes v. Wells Fargo Bank, N.A . (N.D.Cal. Jan. 3, 2011, No. C-10-01667 JCS) 2011 WL 30759, at *19 [\"[a]s a number of courts have recognized, the definition of 'debt collector' is broader under the Rosenthal Act than it is under the FDCPA,\" and \"a mortgage servicer may be a 'debt collector' under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act\"]; Walters v. Fidelity Mortg. of CA (E.D.Cal. 2010) 730 F.Supp.2d 1185, 1203 *303[mortgage servicer that regularly billed plaintiff and collected payments on her mortgage debt was a \"debt collector\" under the Rosenthal Act]; Herrera v. LCS Fin. Services Corp ., (N.D.Cal., Dec. 22, 2009, No. C09-02843 TEH) 2009 WL 5062192, at *2.)"], "id": "b69444a4-2b6f-4eb5-95b0-16377bd46822", "sub_label": "US_Terminology"} {"obj_label": "mortgage", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Second, while the enforcement of the September 18, 2012 judgment and warrant of eviction are stayed pending appeal by respondent, respondent shall post an undertaking, in one lump sum, in the amount of $135,683.88. This sum is comprised of the following: the money judgment of $49,837.93; , taxes and insurance for 12 months of $52,642.69; incidental operating costs associated with maintenance for 12 months of $12,000; diminution in value of the personal property used for the business but not attached to the real property for 12 months of $10,000; and 9% per annum ($124,480.62 plus 9%)."], "id": "dad4770e-f65d-41eb-80cf-0cb968ead976", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Fraudulent practice in transactions, injurious both to consumers and the general business community, is a matter not of merely private concern, subject to the action or inaction of litigants, but is one of vast public importance. That the defenses alleged in the petition were not raised by defaulting consumers will not estop the court, faced with an arguably pervasive pattern of illegality and fraud, from itself raising these issues in the legitimate exercise of its inalienable power to supervise its own processes (see Matter of Vigilant Protective Systems, 333 F Supp 1029; All-State Credit Corp. v 669 Defendants, 61 Misc 2d 677). The statute being, in essence, declaratory of the common law, there is no impediment to its application to judgments entered prior to its effective date (Sutherland, Statutes and Statutory Construction [4th ed], \u00a7 26.07; see, also, Givens, Practice Commentary, McKinney\u2019s Cons Laws of NY, Book 29, Judiciary Law, \u00a7 217-a, 1975-1976 Cumulative Annual Pocket Part, pp 79-80)."], "id": "c0fa6f6b-51d9-4061-a14b-383757965e4f", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The discussion of credit terms on February 7, 1987 was limited to the amount to be financed. No further discussion was had until February 21, 1987 when defendant tendered delivery of the vehicle. Without examining the auto, plaintiff asked for and was given the retail installment contract which was to be assigned to Marine Midland Bank or Marine Midland Corporation. The agreement provided for the financing of $5,285.02 at 10.5% interest annually to be paid in 48 equal monthly installments."], "id": "67db641c-aba1-49e6-a2c4-f6f748238653", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Rosenthal Act is silent with respect to whether it applies to persons or entities attempting to collect mortgage debt; the definitions of \"debt collector,\" \"consumer debt,\" and \" transaction\" make no reference to mortgage lenders and/or servicers or to mortgage debt. Given that mortgage debt is neither expressly included nor excluded from the definition of \"consumer debt,\" and that a mortgage transaction is neither expressly included nor excluded from the definition of \"consumer credit transaction,\" we look to the words of the statute to determine whether they can be understood to either include or exclude from the statute's purview mortgage debt or mortgage lenders and/or servicers, keeping in mind that the Rosenthal Act \" 'should be interpreted broadly in order to effectuate its purpose.' \" ( Komarova , supra , 175 Cal.App.4th at p. 340, 95 Cal.Rptr.3d 880.)"], "id": "a8224662-51b0-4961-8231-e75523617dd0", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant\u2019s argument that the complaint should be dismissed based upon plaintiffs failure to comply with TILA\u2019s notice requirement is also without merit. \u201cTILA applies only to transactions and, therefore, does not apply to credit extended for business, commercial, or agricultural purposes\u201d (Mauro v Countrywide Home Loans, Inc., 727 F Supp 2d 145, 153 [ED NY 2010] [internal quotation marks omitted]). Here, defendant has failed to demonstrate that the underlying loan constituted a consumer credit transaction and, as previously set forth, .the documentation submitted by plaintiff indicates that the loan was for commercial purposes."], "id": "a7511585-e64a-46f2-8d79-89ff04f18e3e", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We also reject defendants' contention that Veros cannot be liable for the attorney fees, costs and prejudgment interest awarded Medina as a result of it being merely the \"holder\" of the RISC at issue in this case. As relevant to this issue, the RISC provided in all capital letters: \"Notice: Any holder [i.e., Veros] of this contract is subject to all *577claims and defenses which the debtor [i.e., Medina] could assert against the seller of goods or services [i.e., SCCC] obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.\""], "id": "ae8180c8-6e65-4531-8818-e4d316bef721", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u00a7 1681(b). Among other things, it restricts the circumstances in which consumer reporting agencies may disclose reports, id. \u00a7 1681b; specifies what information may be contained in those reports, id. \u00a7 1681c; and imposes civil, administrative, and sometimes criminal liabil- ity for failure to comply with its requirements, id. \u00a7\u00a7 1681n\u20131681s. In 1996, Congress amended FCRA to add a new basis for disclosure of consumer credit information. See Intelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93, sec. 601(a), \u00a7 624, 109 Stat. 961, 974 (codified at 15 U.S.C. \u00a7 1681u). The new provision, now FCRA section 626, authorizes the FBI to present a consumer credit reporting agency with a written request, signed by the Director of the FBI or his designee, certifying that the FBI seeks certain information \u201cfor the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities.\u201d 15 U.S.C. \u00a7 1681u(a). Upon receipt of such a National Security Letter (\u201cNSL\u201d), a credit agency must disclose to the FBI the \u201cnames and addresses of all financial institutions . . . at which a consumer maintains or has maintained an account,\u201d id., and \u201cidentifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment,\u201d id. \u00a7 1681u(b). Section 626(f ) bars further dissemination of this information except in limited circumstances. It provides: The Federal Bureau of Investigation may not disseminate infor- mation obtained pursuant to this section outside of the Federal Bu- reau of Investigation, except to other Federal agencies as may be necessary for the approval or conduct of a foreign counterintelli- gence investigation, or, where the information concerns a person subject to the Uniform Code of Military Justice, to appropriate in- vestigative authorities within the military department concerned as may be necessary for the conduct of a joint foreign counterintelli- gence investigation. Id. \u00a7 1681u(f ).* FCRA makes any violation of this section by a federal agency or officer grounds for civil damages or disciplinary action. Id. \u00a7 1681u(i)\u2013( j)."], "id": "a40f9b65-95b2-4a0e-93b6-d2df9f573e86", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The complaint is verified by a \u201cScott Morris, Esq.\u201d He states in the verification that he is the attorney for the plaintiff but does not set forth beneath his signature any address or other information set forth in the above rule by which the court, or a defendant, might communicate with him. The attorney registration records list only one attorney with that name in New York, but he is practicing law at a different address in New York City and is doing so as a member of law firm. Other debt collectors list their \u201cin-house\u201d legal counsel or department as the attorney of record, but always have the name of an attorney designated on the pleadings. This procedure is not being utilized by the plaintiff. Plaintiff is not even seeking to avail itself of the device literary utilized by Agatha Christie in \u201cAnd Then There Were None\u201d of using the pseudonym \u201cU.N. Owen\u201d for an \u201cunknown\u201d person, in that story, the host of the weekend party."], "id": "ec1bc28b-8e78-4524-ba8f-f7e8a627a2e9", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While this definition on its face appears broad enough to encompass the services in question, this court has serious doubts as to whether the rendition of medical services by a licensed physician constitutes a transaction as defined by the CCA. (See, Ratner v Drucker, 79 Misc 2d 216 [Civ Ct 1974] [consumer credit transaction as defined by CCA 2101 (g) was not meant to apply to members of the medical profession who traditionally do not extend credit to patients as a business or medical practice]; cf., State of New York v Monteleone, 138 AD2d 821 [3d Dept 1988].)"], "id": "a473c0cc-52b0-476d-9a51-216a6484b7e0", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": [". Such a modification would be in the same vein as CPLR 503 (f) and CPLR 513. The former requires transactions to be brought either in the county where the defendant resides or the county where the transaction took place. The latter authorizes the clerk to refuse to accept a consumer credit transaction summons for filing if it appears that venue is improper in that county."], "id": "61096088-fdba-4d0a-8d7c-f70d4e0480c4", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is no rationale to a result in which a consumer who finances a purchase from Sears Roebuck is treated more advantageously than one who finances the same purchase from Chemical Bank; or the converse, that Chemical Bank should be treated more advantageously than Sears Roebuck. There is no evidence either in the legislative history of both statutes, the literature on the subject of or the cases to justify such a result. The mere fact that the 1957 Legislature used different language than the 1937 Legislature does not necessarily mean that it did not intend to achieve the same result. In my opinion, by expressly stating in subdivision 5 of section 413 of the Personal Property Law that, \u201c(t)he credit agreement may provide for the payment of attorney\u2019s fees * * * if it is referred to an attorney not a salaried employee of the seller or holder for collection\u201d (emphasis supplied), the 1957 Legislature clearly indicated what it understood the 1937 statute (Banking Law, \u00a7 108, subds 4, 5) to mean and more artfully delineated the limitations upon the collection of attorney\u2019s fees in accordance with existing laws and ethical standards."], "id": "4f15f627-0fcf-4aab-a4d3-e0e9d27f5565", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The background for this case was set forth in Lafferty I , where we recounted that \"[o]n November 1, 2005, the Laffertys bought a motor home manufactured by Fleetwood Motor Homes (Fleetwood) from Geweke. Pursuant to the terms of the installment contract, the Laffertys agreed to pay a total of $389,929 for the motor home over the course of 239 months. ... [\u00b6] Geweke assigned the installment contract to Wells Fargo in accordance with the terms of a dealer agreement entered into between Wells Fargo and Geweke.\" ( Lafferty I, supra , 213 Cal.App.4th at p. 551, 153 Cal.Rptr.3d 240, fns. omitted.) The Laffertys experienced repeated problems with electrical and mechanical failures in their motor home. ( Id. at p. 552, 153 Cal.Rptr.3d 240.) After repeated failed attempts by *406Geweke to repair the motor home, the Laffertys left the motor home with Geweke and stopped making payments on the installment contract. ( Id. at p. 552, 153 Cal.Rptr.3d 240.) \"Wells Fargo took possession of the motor home in accordance with the terms of the installment contract, but took no action to collect any amount of money from the Laffertys. Wells Fargo did report to various reporting agencies that the Laffertys had defaulted on their agreement to pay for the motor home.\" ( Ibid. )"], "id": "3fbb9652-1333-4248-a3c1-c87c0e3b8f6f", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thereafter, plaintiff moved to amend the judgment to name First Management Corp. (FCCM) as the judgment debtor instead of Class, in order to reflect what he alleged was the true name of this defendant. Plaintiff claimed that he had been unable to enforce the judgment against Class because it had gone out of business and transferred its assets to FCCM. The court granted plaintiffs motion to the extent of ordering a hearing to determine the true name of defendant Class, or any name in which this defendant may have conducted business at the time of the occurrence upon which the judgment was based (see UDCA 1814; CPLR 5019), with a direction that plaintiff be prepared to present evidentiary proof that FCCM was liable to him for the unpaid wages which were the subject of the instant small claims action. Following the hearing, the court denied plaintiffs motion to amend, and this appeal ensued."], "id": "0735a421-3488-4a4f-8dc8-df81048238d1", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court finds that plaintiff is covered by these disclosure requirements in that plaintiff regularly extends or arranges for the extension of in the ordinary course of its business, and in that it regularly allows for repayment pursuant to agreement in more than four *219installments, assessing a finance charge. The court further finds that plaintiff has failed to comply with the Truth in Lending Act and regulation Z in several ways. The purpose of the Truth in Lending Act is to \u201cassure a meaningful disclosure of credit terms so that the consumer [can] compare * * * credit terms * * * and avoid the uniformed use of credit\u201d (US Code, tit 15, \u00a7 1601). Regulation Z (12 CFR 226.6 [a]) mandates that the disclosures required by Federal law be clear, conspicuous, and \u201cin meaningful sequence.\u201d \u201c[I]f understandable credit disclosure is to be achieved, disclosure statements must use clear language arranged in an order which provides ease of comprehension. This is meaningful sequence\u201d (Allen v Beneficial Fin. Co. of Gary, 531d 797, 801). The language in the disclosure statement used by plaintiff fails to meet this standard. \u201c[T]he phrase \u2018in meaningful sequence\u2019 has been interpreted to mean that items which are arithmetically related should be placed \u2018within a reasonable proximity to each other, not mixed with items which are irrelevant to a progression of arithmetical computations or thought * * * so that the customer will not be required to search for any arithmetical items which should logically follow a previous one.\u2019 (Federal Reserve Board Public Position Letter No. 780, 5 CCH Consumer Credit Guide, par 31,102 [April 10, 1974].)\u201d (Conrad v Beneficial Fin. Co. of N.Y., 57 AD2d 91, 95)."], "id": "4100a365-5fdf-47d4-aa34-688c32679762", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["My conclusion, reluctantly reached, is that section 1635 does not cover this transaction. That section deals with a * \u2018 transaction \u201d, and incorporates, by reference, the definition of \u201c creditor \u201d contained in subdivision (f) of section 1602. A 1 \u2018 creditor \u2019 \u2019 is there defined to refer only to those \u2018 \u2018 who regularly extend * * * credit for which the payment of a finance charge is required \u2019 \u2019. The presence of a finance charge is, therefore, an essential element required for a transaction to fall within the scope of the act. This is the clear holding of Mourning v. Family Pub. Serv. (449 F. 2d 235 [5th Cir., 1971]) which,1 incidentally, holds that the Federal Reserve Board had overstepped its statutory authority under the act in enacting the four-installment rule, thereby regulating transactions not involving the imposition of a finance charge. My decision is that, since the instant transaction carried with it no finance charge, or cost of credit, it was without the scope of the act, leaving aside the matter of subdivision (k) of section 226.2 of said Regulation Z."], "id": "573edcf8-6856-49c6-be96-3c3701efa9d7", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court will first consider defendant\u2019s attempt .to cancel the contract by sending a letter to the plaintiff on the same day she executed the contract. Article KkA. of the Personal Property Law, the \u201cHome Solicitation Sales Act,\u201d provides, in section 427, that a buyer or any other person obligated for any part of the purchase price has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signed the agreement. The act singles out for special treatment sales in which the transaction is negotiated face-to-face at the residence of the buyer. However, the act specifically limits the right of cancellation to consumer contracts executed in the buyer\u2019s home. Although high pressure salesmanship can be practiced elsewhere, the underlying theory of the act is that the buyer is more susceptible to making a bad bargain in. his home than he *142is elsewhere. Therefore, if the contract is executed at the office of the seller or some place other than the buyer\u2019s residence the act does not apply. The court also Potes that a much more liberal Consumer Protection Law, the Federal Consumer Credit Code (section 2.501), makes the same distinction. In the case at bar the negotiations took place at the plaintiff\u2019s place of business and therefore the defendant cannot avail herself of the cancellation rights stated in section 427 of the Act."], "id": "3be34c21-15d4-4a10-a27f-056566f2eee2", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Despite the significant due process implication of CPLR 308, compliance has been sporadic at best. In this case plaintiff American Express commenced a action by alleged service of a summons and complaint on November 26, 1979. Defendant failed to appear and on September 1, 1983, American Express moved for a default judgment for in excess of $6,500 on the retail credit installment agreement alleged in the complaint. However, plaintiff ignored the additional notice requirements of CPLR 308 and, not surprisingly, defendant defaulted."], "id": "4926a432-835c-44f3-bd6b-d756113994f1", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The retail installment obligation has a notice in bold print, which reads: \"any holder of this contract IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED *529amounts paid by the debtor hereunder.\u201d The Federal Trade Commission has mandated that this identical notice appear in consumer credit contracts (16 CFR 433.2; 40 Fed Reg No 233, 53506, Nov. 18, 1975). New York passed an amendment in 1970 to the Personal Property Law prior to the promulgation of the Federal Trade Commission rule (see L 1970, ch 299, \u00a7 2). Subdivision 5 of section 403 of the Personal Property law presently reads as follows: \"the assignee of a retail installment contract or obligation shall be subject to all claims and defenses of the buyer against the seller arising from the sale notwithstanding any agreement to the contrary, but the assignee\u2019s liability under this subdivision shall not exceed the amount owing to the assignee at the time the claim or defense is asserted against the assignee.\u201d The purpose of this subdivision of the Personal Property Law is to eliminate the holder in due course defense in retail installment sales contracts (see Governor\u2019s Memorandum of Approval, NY Legis Ann, 1970, p 490; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 487)."], "id": "e93dc216-cee4-42cd-89d7-631019579abd", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The key words in the definition of \u201c transaction\u201d for our purposes are \u201c a transaction wherein credit is extended to an individual \u201d (OCA, \u00a7 2101, subd. [g]). Obviously, this was not meant to apply to members of the medical profession and related arts, who traditionally do not extend credit as such to patients as a business or medical practice. That a physican might permit payment, or even time payments, after the rendition of his total bill for services performed, for the convenience of his patients, instead of demanding cash payment immediately, cannot serve to transform an original cash basis transaction into one denominated as a \u201c consumer credit transaction \u201d."], "id": "e6e375ff-6bc7-409b-a6fa-62231f785721", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is, indeed, little New York law in this area. The bulk of New York cases address billing errors respecting a cardholder\u2019s rights under the Protection Act appearing at 15 USC \u00a7 1601 et seq., and the Truth in Lending Regulations, Regulation Z (see, Plutchok v European Am. Bank, 143 Misc 2d 149 [Dist Ct, Nassau County 1989]; National Commercial Bank & Trust Co. v Malik, 72 Misc 2d 865 [Sup Ct, Albany County 1973]), which apply to individual credit card customer transactions under open-ended credit plans, commonly known as credit card or charge card accounts (Jacobs v Marine Midland Bank, 124 Misc 2d 162 [Sup Ct, Orange County 1984]). Possibly because a consumer may only be charged $50 on any item properly protested, few cases have addressed the nature of the credit card obligation (see, Chase Manhattan Bank v Hobbs, 94 Misc 2d 780 [Civ Ct, Kings County 1978] [explaining the lack of damages])."], "id": "428548e6-1130-4a33-b321-a7e80c95ea61", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cThe summons in an action arising out of a transaction shall prominently display at the top of the summons the words \u2018consumer credit transaction\u2019 and, where a purchaser, borrower or debtor is a defendant, shall specify the county of residence of [the] defendant, if one resides within the state, and the county where the consumer credit transaction took place, if it is within the state . . . .\u201d (CPLR 305 [a].) The pleadings prepared and served by the plaintiff in the civil action do not comply with CPLR 305. They lack the statutory notice."], "id": "701e651a-a370-4fc8-a90b-d312b0cac17e", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Second, the right-to-cure notice has the same consumer-protective purpose as a pre-sale notice, and the requirement of a right-to-cure notice should accordingly be enforced as rigorously as the requirement for pre-sale notice. The official comments *861to \u00a7 5.110 of the Uniform Code (1974), on which \u00a7 408.554 is based, make clear that the purpose of the right-to-cure notice is \"to give the consumer enough information to understand his predicament and to encourage him to take appropriate steps to alleviate it\"; it \"gives the average consumer the opportunity to rehabilitate his account, bring a billing error to the attention of or present a breach of warranty claim to the creditor, or negotiate a refinancing or deferral arrangement that may be required by a change in his financial circumstances.\" 7 Pt. III UNIFORM LAWS ANNOTATED at 237, 238 (2002). Similarly,"], "id": "e529ff9a-40c5-4923-804f-fb7f8c768c8d", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The typical plaintiff\u2019s complaint in these transactions routinely only pleads an amount due and owing which, upon the default of the defendant, the plaintiff is asserting is a \u201csum certain.\u201d In reality, the amount due pleaded in the complaint is a compilation of many things including items purchased by the consumer or cash advances taken along with a fluctuating interest rate calculated on a per diem basis and tied into some index presumably set forth in the agreement with the debtor but never specified or disclosed in the pleading or subsequent documents submitted to the court in an attempt to obtain a default judgment. It is the practice of the consumer credit industry for the interest rate to change to a higher default rate once the defendant is late with or fails to make a scheduled payment. The agreement also may have had an introductory artificially low \u201cteaser\u201d rate to induce the debtor to use the credit card, which after a set period of time automatically increased. Added to this alleged amount claimed due are late and over-the-limit fees which may also fluctuate. None of these facts are pleaded in the complaint, making it impossible for anyone to determine if the amount being sued for is in fact correct. Thereby, the very nature of the obligation allegedly incurred cannot by computation be made certain."], "id": "6eb7059f-98e6-48c1-a437-a4eb7f73d799", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At first blush, the definition of transaction (CCA, \u2022\u00a7 2101, subd. [g]) (which now has been added verbatim State-wide [CPLR 105, subd. (f)3), as a part of the legislation limiting the places where a creditor can bring suit based on a consumer credit transaction (L. 1973, ch. 238, \u00a7 1, eff. Sept. 1, 1973), appears broad enough to encompass the local physician or dentist, etc., who allows a patient time to pay his bill. With maturity, however, first blushes can ripen into \u201c red faces \u201d and would, if such a view as defendants propose were adopted by this court."], "id": "45c6737d-6ed9-4279-8fde-b02e586e0d8b", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs have also moved for summary judgment on their fourth cause of action which alleges that the defendant in its agreement failed to identify clearly the property to which its security interest relates as required by the Truth in Lending Act and the regulations promulgated thereunder (see US Code, tit 15, \u00a7 1639, subd [a], par [8]; 12 CFR 226.8 [b] [5]). Defendant\u2019s disclosure statement and security agreement on their face appear to violate the Truth in Lending Act and regulations. In the upper right-hand corner of Beneficial\u2019s disclosure statement, a box is checked stating that the security interest for the loan consists of \"Furniture\u201d. *647Beneath that area appears the following statement: \"[i]f the box alongside the word 'Furniture\u2019 is checked, the Security Agreement covers all of the consumer goods of every kind then owned by the Borrowers and located at the Borrowers\u2019 place of residence set forth hereon.\u201d The regulation requires \"a clear identification of the property to which the security interest relates\u201d. \"Clear identification\u201d should provide enough information to preclude any reasonable questions regarding the goods to which the security interest attaches. The document\u2019s language and form create confusion and make it nearly impossible to determine what goods are covered by the security interest. \"Furniture, household contents, and consumer goods of every kind are hardly synonymous\u201d. (Woods v Beneficial Fin. Co. of Eugene, 395 F Supp 9, 14; and, see, Sneed v Beneficial Fin. Co. of Hawaii, 410 F Supp 1135, 1144.) Defendant has failed to provide a clear identification of the property."], "id": "d73d6047-06df-4e7b-8c0f-0f7eaa96d530", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["____________________________________ SUMMARY The Federal Trade Commission\u2019s \u201cholder rule\u201d makes the holder of a contract subject to all claims the debtor could assert against the seller of the goods or services obtained under the contract (or its proceeds). The holder rule also caps the debtor\u2019s recovery from the holder to the amount paid by the debtor under the contract. The question in this and several recent or pending cases is whether this limitation on recovery precludes the debtor from recovering attorney fees the debtor incurs in obtaining redress from the holder. We hold, agreeing with Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, review granted April 28, 2021, S267576 (Pulliam), that the limitation does not preclude recovery of attorney fees. We further hold the limitation does not preclude recovery of costs, nonstatutory costs, or prejudgment interest. We affirm the trial court\u2019s judgment. FACTS In March 2018, plaintiff Jonathan Alejandro Melendez purchased a used 2015 Toyota Camry from Southgate Auto, Inc., doing business as Express Auto Lending, under a retail installment sales contract. Southgate assigned the contract to defendant Westlake Services, LLC, doing business as Westlake Financial Services. In September 2018, plaintiff sent defendant a notice alleging Southgate violated the Consumer Legal Remedies Act (CLRA; Civ. Code, \u00a7 1750 et seq.) and demanding rescission, restitution and an injunction. Plaintiff later sued both Southgate and defendant. Plaintiff alleged violations of the CLRA, the Song-Beverly Consumer Warranty Act (Civ. Code, \u00a7 1790 et seq.), Civil Code section 1632 (requiring translation of contracts negotiated primarily in Spanish), and the unfair competition law (Bus. & Prof. Code,"], "id": "d9de49ab-a8d8-4e94-af65-d942f9f678da", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Her asset portfolio, as reflected on the statement of net worth, demonstrates that she has minimal amounts in her bank accounts, lives in a home (with her second husband) that has no equity (fair market value of $174,000 is offset by a $171,000 mortgage) and has $108,000 in her employment-related retirement and investment accounts. She carries more than $28,000 in personal debt."], "id": "c0744b79-ccb5-46fe-9b28-88ba5cdfe2f4", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["After hearings on a variety of motions, the trial court issued its Judgment (1) granting Father's motion to register the New York Hernandez order in Missouri for purposes of enforcement, but (2) denying Father's request to modify the Hernandez order noting that Georgia has current jurisdiction over the Hernandez order, and (3) denying Father's request to declare that Missouri has continuing, exclusive jurisdiction over all three orders, noting (a) while Missouri has controlling jurisdiction over the Tamul order and the Schaeffer order, it does not have authority to issue a controlling order over the Hernandez order, (b) each separate support case must be addressed individually, and (c) both Missouri and Georgia already follow the Protection Act (CCPA), which sets guidelines for income withholding orders. Father moved for an amended judgment or a new trial, which the trial court denied. This appeal follows."], "id": "fd128ce7-0002-4170-9ab2-9ba76c2afaa5", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Current retail credit practices have been subjected to substantial criticism (Curran, Legislative Controls as a Response to Programs, 8 B.C. Ind. and Com. L.R. 409 [1967] ; Caplovitz, Consumer Credit in the Affluent Society, 33 Law and Contemp. Probl. 64 [1968] ; Benfield ; Money, Mortgages and Migraine, 19 Case Wes. Res. L. Rev. 819 [1968] ; Report of the National Advisory Comm. on Civil Disorders [1967], pp. 274-276) and the method of computing charges which is under attack in this case had been disavowed (Op. No. 4706, dated August 11, 1970, Michigan Retail Installment Sales Act; letters of Hon. Persia Campbell, Consumer Counsel to Gov. A. Harriman, in Bill Jacket, dated March 15, 1957, concerning enactment Art. 10, Retail Installment Sales Act ; Montgomery Ward & Co. v. O\u2019Neil, Minn. Dist. Ct., 2d Jud. Dist. decided April 1, 1971 ; Troelstrup, The Consumer in American Society [4th Ed. 1969])."], "id": "7926291f-c3a8-4334-b08c-65e31cd85915", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Where a mortgage loan is a \u201cmortgage\u201d under the definition set forth in 15 USC \u00a7 1602 (aa) (1), it is subject to the requirements and restrictions of the HOEPA (15 USC \u00a7 1639). To qualify as a \u201cmortgage\u201d within the definition of 15 USC \u00a7 1602 (aa) (1), a mortgage loan must be a \u201c transaction\u201d (see, 15 USC \u00a7 1602 [h]) with a \u201ccreditor\u201d (see, 15 USC \u00a7 1602 [f\u00a1), secured by the \u201cconsumer\u2019s principal dwelling\u201d (see, 15 USC \u00a7 1602 [v]), and must be a second or subordinate residential mortgage as opposed to a \u201cresidential mortgage transaction\u201d (see, 15 USC \u00a7 1602 [w]), a \u201creverse mortgage transaction\u201d (see, 15 USC \u00a7 1602 [bb]), or a transaction under an \u201copen end credit plan\u201d (see, 15 USC \u00a7 1602 [i]). Additionally, either the annual percentage rate of interest at consummation for the loan transaction must exceed certain levels (see, 15 USC \u00a7 1602 [aa] [1] [A]) or \u201cthe total points and fees\u201d payable by the borrower at or before closing must exceed the greater of 8% of the total loan amount or $400 (see, 15 USC \u00a7 1602 [aa] [1] [B])."], "id": "7414563c-93c9-45f8-9dc3-2fbfd4754fcc", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the present case, by claiming that process was served on an individual who understood little English, defendants are raising questions as to the sufficiency of the content of the notice and the character of the recipient. However, most courts have held that due process does not require bilingual notice where the recipient of such notice is not fluent in English (Kuri v Edelman, 491d 684; Guerrero v Carleson, 9 Cal 3d 808, cert den 414 US 1137 [welfare termination notices]; Commonwealth v Olivo, 369 Mass 62 [city housing department orders to vacate apartments]; Da Lomba v Director of Div. of Employment Security, 369 Mass 92 [notices to request unemployment compensation hearings]; cf. Castro v State of California, 2 Cal 3d 223 [no constitutional bilingual requirements for a voting ballot]; Jara v Municipal Ct. for San Antonio Judicial Dist. of Los Angeles County, 21 Cal 3d 181, *405cert den 439 US 1067, [no constitutional right to an interpreter at public expense for indigent litigants in civil proceedings];3 United States v Colon, 415 F Supp 459 [procedure satisfactory requiring prospective jurors to read, write, and understand English]; but cf. Consolidated Edison Co. of N. Y. v Vezcanino, 77 Misc 2d 475 [due process requires bilingual notice of application for replevin order in New York City]; CCA, \u00a7 401, subd [d] [bilingual summons arising from transaction]; Ratner v Drucker, 79 Misc 2d 216; cf. Judiciary Law, \u00a7 387 [court has discretion to appoint an interpreter in all court proceedings]; People v Ramos, 26 NY2d 272 [constitutional right to an interpreter in criminal proceedings]; Matter of Chatoff v Public Serv. Comm. of State of N. Y, 60 AD2d 700 [statutory right to an interpreter for deaf individual in all legal proceedings]; Kropiwka v Department of Ind., Labor & Human Relations, 87 Wis 2d 709 [hearing examiner has discretion to appoint interpreter in discrimination hearing]; 88 CJS, Trial, \u00a7 42, pp 101-102; Lau v Nichols, 414 US 563 [English language instruction required for Chinese students under Civil Rights Act of 1964]; Puerto Rican Organization for Political Action v Kusper, 490d 575 [bilingual ballot required under Voting Rights Act of 1965])."], "id": "c6cb1bb4-85c4-400b-b3b9-9b59af6dd546", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cThe United States Public Interest Research Group estimated that in 1995 banks lost approximately $90 million due to identity theft. That number continues to grow. The \u2018big three\u2019 reporting agencies report that they receive hundreds of calls every day from identity theft victims. Some courts view the banks and other entities that issue credit as the only victims in these cases. Unfortunately, consumers who have been left with damaged reputations, bad credit reports and the resource-*875consuming task of trying to correct the false credit record information, are also victims. \u201cThis bill would remove . . . significant obstacles to prosecuting identity theft in New York [S]tate. Under current law, the credit card company, not the individual, is legally considered to be the victim in financial crimes of this nature . . . This bill would declare that consumers are, in fact, victims of identity theft and would entitle them to compensation for the consequences of \u2018adverse actions\u2019 against them\u201d (Assembly Mem in Support, reprinted in 2002 McKinney\u2019s Session Laws of NY at 2094; see also Budget Report on Bills at 2, Bill Jacket, L 2002, ch 619 at 5 [\u201cThis bill redefines victims of identity theft as those innocent people whose identity and information is actually stolen, and provides that defendants be required to make restitution to victims for any cost or loss incurred by the crime\u201d]). Thus, in requiring that a defendant prosecuted for identity theft have assumed the identity of \u201canother person,\u201d the legislature plainly contemplated criminal conduct committed against an actual victim \u2014 that is, an innocent person whose identity or information is actually stolen (efi CJI2d [NY] Penal Law \u00a7 190.78 [1], [2] [advising that jury be instructed as to name of specific person whose identity was allegedly assumed])."], "id": "ccf1ec52-f916-49f9-af9a-211d91982652", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*1013Thereafter, the Department of Mental Hygiene presented its claim to Father Whitney as the executor in the same amount of $14,401.51. The executor asked for an itemization of the claim with credits for amounts received from the Veteran\u2019s Administration, Social Security and Medicare. The Department of Mental Hygiene refused to substantiate and document its claim and upon refusal of the executor to pay the claim, instituted an action in the Supreme Court of Albany County. A motion was made by the estate, in the Supreme Court of Cattaraugus County, for a change of venue on the ground that the State\u2019s claim was based upon a transaction under CPLR 105 (subd [f]). The motion was granted but reversed by the Appellate Division on procedural grounds without discussing whether or not in fact the complaint alleged a consumer credit transaction. (State of New York v Whitney, 66 AD 2d 1029.)"], "id": "7f4ee9d4-474c-4c9f-9a50-eb2bf2def6db", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*98In view of the decision which has been reached, it is not necessary to determine the constitutionality of section 9-503 under the provisions of the Federal Constitution. Further, it is not necessary to decide the additional question of whether there have been separate and different violations of the purchaser\u2019s rights arising under treaties between the United States and the Seneca Nation by dint of the fact that the subject repossession took place on the lands of the Seneca Nation of Indians and from a purchaser who was a member of that Indian Nation. Neither is it necessary to determine whether or not the creditor bank violated provisions concerning protection under the Truth in Lending Act codified in section 1601 et seq. of title 15 of the United States Code."], "id": "41c6d351-f933-4a5b-8e23-a56929097d5a", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Attorney-General also notes that section 396-r is adopted from section 6.111 (subd [1], par [a]) of the Uniform Code which empowers the \u201cAdministrator\u201d to bring an action for injunction to restrain a creditor from \u201cmaking or enforcing unconscionable terms or provisions of consumer credit sales, consumer leases, or consumer loans\u201d and provides that the court should consider \u201c(c) in the case of consumer credit sales or consumer leases, gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in credit transaction by like buyers or lessees\u201d (Uniform Consumer Credit Code, \u00a7 6.111, subd [3], par [c] ; italics supplied)."], "id": "acb3cf07-dffa-40ae-a3b1-9ef792ee1c4e", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the instant case, defendant asserts, generally, that he was an unsophisticated consumer lacking in comparable education to plaintiff\u2019s representatives, who regularly arrange for the extension of . The court finds this argument, essentially one of inequality of bargaining power, to be unpersuasive, particularly in view of defendant\u2019s failure to specifically allege any facts concerning the subject transaction which would indicate the existence of any procedural or substantive unconscionability. Similarly, this court finds defendant\u2019s conclusory assertion that the agreement was \u201cconfusing\u201d to be insufficient to establish unconscionability."], "id": "bf1e1df7-e111-4e80-81a9-c4f27538cb20", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The issue of whether unpaid rent is a transaction has been decided (Romea v Heiberger & Assoc., 163d 111 [1998]). The obligation to pay rent has been deemed a debt under the Federal Fair Debt Collection Practices Act (FDCPA) (15 USC \u00a7 1692 et seq.). The statute defines \u201cdebt\u201d as \u201cany obligation or alleged obligation of a consumer to pay money arising out of a transaction in which money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to a judgment.\u201d (15 USC \u00a7 1692a [5].)"], "id": "3b779fe3-558f-4847-bd82-8e7fd83a352c", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Both the Beneficial Discount Co, and Manufacturers Hanover Trust Co. cases are transaction cases in which default judgments have been entered and the plaintiffs now move to amend the captions by using alleged aliases of the defendants. The granting of such motions would prejudice the rights of the defendants as enforcement, e.g., by income execution on the judgments, would be expedited. Both plaintiffs affirm that the defendants are employed under different names than appear on the captions."], "id": "97c5e243-43a3-46a1-9d70-c2d73fe32b75", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first part of this argument is easily answered. Subdivision (b) of section 226.818 of regulation Z flatly states that \"Section 226.8(b)(6) relates only to charges assessed in connection with obligations which do not involve precomputed finance charges included in the obligation.\u201d Thus, the section further explains, the difference between rebates computed by the actuarial method and the \"Rule of 78\u2019s\u201d method is not a penalty under 12 CFR 226.8 (b)(6). Likewise, the difference *232between the \"Rule of 78\u2019s\u201d method and the New York version of that method is not a penalty. (See, generally, Hunt, The Rule of 78: Hidden Penalty for Prepayment in Transactions, 55 B U L Rev 331.)"], "id": "271049d2-c410-415b-9911-c0e2c5ce105f", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": [". Requirements governing the appearance of a summons for Civil Court cases arise from both statute and court rule (see generally, 1 West\u2019s McKinney\u2019s Forms, CPLR \u00a7 2:203 [\u201cContents of Summons and Summons with Notice\u201d] [2005]; 86 NY Jur 2d, Process and Papers \u00a7 27 [2005] [noting substantially similar statutes and rules apply to the Civil Court, City Courts, District Courts, and Justice Courts]). The summons in transactions (CPLR 105 [f] [\u201ca transaction wherein credit is extended to an individual . . . primarily for personal, family or household purposes\u201d]), must be printed legibly in both English and Spanish (CCA 401 [d]), and must contain: (1) the words \u201cconsumer credit transaction\u201d at the top; (2) a specifically worded warning in 12-point bold uppercase typeface; (3) the same warning and additional text in Spanish; and (4) a statement of defendant\u2019s residence address and, if a New York resident, \u201cthe county where the consumer credit transaction took place, if it is within the State\u201d (22 NYCRR part 208; see, as to point size, CPLR 105 [t]). Entry of a default judgment is precluded absent proof of the required warnings (22 NYCRR part 208)."], "id": "b466f485-0a7b-4176-8fa6-f04a7ab026a3", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The language of the New York definition for a \u201c transaction\u201d is almost the same as the definition of \u201cdebt\u201d in the FDCPA. Further, when the plaintiff let the defendant vacate the apartment without paying the rent an extension of credit occurred. Especially, when the plaintiff had the opportunity to obtain payment from the defendant or in the *841alternative both a money judgment and possession in the Housing Court proceeding but instead voluntarily discontinued that litigation without resolving the money issue. This created a consumer debt and an extension of consumer credit under the statutes."], "id": "ec55e6e6-7116-4ff3-bf54-b3ea08ee493d", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff\u2019s second ground is based on section 1666i of title 15 of the United States Code which reads in pertinent part, \"a card issuer who has issued a credit card to a cardholder pursuant to an open end plan shall be subject to all claims (other than tort claims) and defenses arising out of any transaction in which the credit card is used as a method of payment or extension of credit if * * * (3) the place where the initial transaction occurred was in the same State as the mailing address previously provided by the cardholder *470or was within 100 miles from such address\u201d. The bank maintains that since Cleveland is out of New York State and more than 100 miles from Jamestown, New York, the defendant is precluded from asserting any defense in the present action."], "id": "601c75f0-50f8-4bed-90de-b01ba6a176f9", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants concede that the FDCPA and the Rosenthal Act are not entirely coextensive. However, they nevertheless argue that even though the Rosenthal Act \"uses a different definition of debt collector than the [FDCPA],\" this does not mean that the Rosenthal Act \"regulates mortgage servicers\" but the \"FDCPA does not.\" They insist, instead, that the \"[t]he FDCPA and the Rosenthal Act, though using slightly different language, both exclude mortgage servicers.\" However, it is clear that the Legislature intended for the Rosenthal Act to provide a broader definition of \"debt collector\" than that provided in the FDCPA, and, as we have explained, the Rosenthal Act's reference to an entity that attempts to collect money that is due as a result of a transaction, by its express terms, would not exclude a mortgage servicer. There is no other provision in the Rosenthal Act that *456would indicate that mortgage servicers are otherwise exempt from the Act's coverage."], "id": "fd6f9d51-c0d1-41ac-9e0a-e46631cb28b0", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c(2) (a) . . . a creditor may change any written term of an open-end contract at any time while the open-end consumer credit contract is in effect and apply the new term to the unpaid balance in the account if: \u201c(i) the creditor mails or delivers written notice of the change. . . and \u201c(ii) the open-end consumer credit contract expressly provides that the creditor may change terms of the open-end consumer credit contract from time to time . . . \u201c(4) Notice under this section is not required when: \u201c(a) the change involves: \u201c(i) late payment charges; \u201c(ii) charges for documentary evidence; \u201c(iii) over-the-limit charges; \u201c(iv) a reduction of any component of a finance or other charge; \u201c(v) suspension of future credit privileges; or \u201c(vi) termination of an account or plan.\u201d Is it any wonder that credit card issuers, such as plaintiff, make their agreements subject to Utah law? An interest rate is not usurious so long as the parties \u201cagree upon any rate of interest\u201d (Utah Code Ann \u00a7 15-1-1 [a]). It does not even appear that the agreement has to be written. If Damon Runyon\u2019s Nathan Detroit had known he could make loans charging 100% interest a day by reducing them to writing, and having them signed and subject to Utah law, he would not have had to seek a living running the \u201coldest, established, permanent floating crap game in New York.\u201d3 The Utah law appears to limit the amount of delinquency charges a creditor may charge, but then exempts agreements made, renewed, executed or modified after May 3, 1999 from the application of the limitation. Utah law also *1025requires written notice of changes to the consumer credit contract but eliminates the need for any notice of a change of late, over-the-limit and other similar fees. Incredibly, courts are expected to enforce these agreements against unsophisticated, unrepresented consumers who reside in states such as New York which do not have similar statutes, and who have no idea that their agreement is subject to Utah law."], "id": "68c8676c-0da1-47e1-a082-456149d7e1ae", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On appeal by both parties, the Appellate Division, Fourth Department, in Conrad v Beneficial Fin. Co. of N. Y. (57 AD2d 91), unanimously modified the decision of Special Term. The Appellate Division held that plaintiffs were not entitled to summary judgment on their first cause of action and pointed out (p 94) that it was \"unnecessary to have further proceedings thereon * * * in view of our determination with respect to plaintiffs\u2019 third cause of action\u201d. The court granted plaintiffs\u2019 motion for summary judgment on the third cause of action holding that required disclosures were not made clearly and conspicuously, or in the meaningful sequence. For this violation of the act, plaintiffs were awarded a statutory penalty of $1,000 together with reasonable counsel fees. The court further stated (p 95) that \"multiple failures to disclose would not increase plaintiffs\u2019 recovery (see US Code, tit 15, \u00a7 1640, subd [g])\u201d. Moreover, the court concluded that the statutory penalty is not multiplied by the number of obligors in a single transaction, and that a creditor failing to disclose required information would be subject to a maximum penalty of $1,000 on any individual transaction. Although the court concluded that section 358 of the Banking Law operates to render this loan void, it affirmed the Special Term\u2019s order denying summary judgment on plaintiffs\u2019 fourth cause of action and dismissed so much of the fourth cause of action as seeks recovery of payments voluntarily made upon the loan. *645The court maintained, however, that plaintiffs\u2019 claim for payments made under a reservation of rights remains viable."], "id": "fb69927f-0228-44fb-84ba-71d877eefb0c", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["See generally Claudia Wilner et al., The Legal Aid Society et al., Debt Deception: How Debt Buyers Abuse the Legal System to Prey on Lower-Income New Yorkers (May 2010); Rick Jurgens & Robert J. Hobbs, National Consumer Law Center, The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts (July 2010); Anika Singh, The Urban Justice *950Center, Debt Weight: The Crisis in New York City and its Impact on the Working Poor (Oct. 2007)."], "id": "b41b58c7-53ad-4bf3-b029-568c9cca5859", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*99claim or defense is asserted\u201d. Thus, not only is the holder-in-due-course doctrine eliminated from the field of sales (see Gramatan Home Investors Corp. v Lopez, 46 NY2d 481), plaintiff may be answerable in damages on the counterclaim. (Personal Property Law, \u00a7 403, subd 4; Energy Law, \u00a7 12-110.) Although there is a conflict between the contract and the Personal Property Law as to the limit of plaintiff\u2019s potential liability, the higher limit provided for in the statute is controlling. (Cf. Saporita v Delco Corp., 104 Misc 2d 527.) Since defendants raise issues of fact with respect to the defenses and counterclaim, plaintiff\u2019s motion must be denied."], "id": "39ca0bf3-2812-4509-a436-b214e0cc1596", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Reference to dictionary definitions further convinces this court that section 401 does not apply to a lease of an apartment but rather to the purchase or transfer of ownership of goods and services. Webster\u2019s New World Dictionary of the American Language (2d ed, p 306) defines as \"credit extended for buying goods and services for ones personal use through installment plans; charge accounts, short-term loans, etc.\u201d (emphasis added). Webster\u2019s New International Dictionary (2d ed, p 573) defines consumer credit as \"installment selling\u201d (emphasis added). The only exception *919wherein a lease transaction falls within the parameters of a consumer transaction is when the lessee is bound to become, or has the option of becoming the owner of the subject of the transaction. (See 8 NY Jur, Installment Sales, \u00a7 130 et seq.)"], "id": "c30950aa-c729-43f1-a01c-4f6e2bae9688", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As we construe title III of the Protection Act (US Code, tit 15, \u00a7\u00a7 1671-1677), the maximum amount which may be garnished from the earnings of an individual for any workweek is 25% of his \"disposable earnings\u201d (i.e., after-tax earnings [see US Code, tit 15, \u00a7 1672, subd [b]), except in the case of an order for support, in which event the maximum is 50% of disposable earnings, and up to 60% where the individual receiving support is a spouse or dependent child (US Code, tit 15, \u00a7 1673). In the case before us, a payroll deduction order for support issuing out of the Family Court was served upon respondent (employer of petitioner\u2019s judgment debtor) long before the service of petitioner\u2019s 10% income execution (CPLR 5231, subd [b]). Since the order of support takes priority over the income execution (Personal Property Law, \u00a7 49-b), no amount may be withheld pursuant to that execution under the formula set forth in the Consumer Credit Protection Act unless, and except to the extent that, the support order does not absorb the 25% of the debtor\u2019s disposable earnings which is susceptible to garnishment (US Code, tit 15, \u00a7 1673, subd [a]; Marshall v District Ct. for Forty-First-b Judicial Dist. of Mich., 44 F Supp 1110)."], "id": "fa79827e-d39b-41c4-abed-559fc48389f4", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Based on the experience in this court that creditors, especially third-party debt purchasers, often cannot prevail on summary judgment motions owing to a lack of evidence coupled with their failure to either proceed to trial on cases or be successful at trial owing to a lack of admissible evidence, the court can no longer tolerate a system of entering default and \u201cinquest clerk\u201d judgments without requiring substantially greater documentation from plaintiffs claiming the amount due and owing is a \u201csum certain.\u201d The amount being sought in these consumer credit transactions can no longer be determined from the \u201cfour corners of the instrument.\u201d Neither the debtor, the court clerk nor a judge can verify the validity of the amount claimed due based solely on unsubstantiated numbers in a complaint or affidavit of facts. The documentation submitted in this case, and in almost all applications for a default judgment in consumer credit cases, fails to provide the necessary \u201crequisite proof\u2019 to support entry of judgment pursuant to CPLR 3215 (a)."], "id": "22bb64c3-e88c-4322-aea2-9b9d333d3087", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant claims that the requirements under section 1666 of title 15, however, are inapplicable to the facts and circumstances of this case. The sole ground for this argument is that section 1666 of title 15 is strictly limited to open-end plans and does not establish procedures for billing disputes that may arise in any or all consumer debtor-creditor situations. Consequently, since the instant credit transaction is concededly not an open-end consumer credit plan transaction, defendant argues that it had no obligation to comply with section 1666 of title 15 of the United States Code, and, thus, as a matter of law, cannot be cast in damages by reason of section 1640 of title 15. The court agrees."], "id": "c14ac929-aa35-4aaf-8368-47fa51b30e0d", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The issue of whether exemption from levy or execution applies when the judgment debtor is not the recipient of welfare benefits appears to be one of first impression. It is further noted that the HRA has represented to the court that plaintiffs service of the execution with notice to garnishee upon the former is \u201cunprecedented.\u201d The case law on the subject appears to deal exclusively with circumstances in which the judgment debtor himself or herself is the recipient of welfare benefits, in which case it is clear that such benefits are exempt (see Matter of Rose v Moody, 83 NY2d 65 [1993]; Prior v Cunningham, 27 NY2d 502 [1970]; Evans v Sturdivant, 99 Misc 2d 1058 [1979]; Corp. v Lewis, 63 Misc 2d 928 [1970]). However, it is noted that those cases all state (citing Social Services Law \u00a7 137) that it is the monies which are exempt from execution. Indeed, the court must give effect to the plain meaning of the statute, and where the statute is clear and unambiguous, the court should construe same to give effect to the plain meaning of the words (see Buchbinder Tunick & Co. v Tax Appeals Trib. of City of N.Y., 100 NY2d 389 [2003]; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 [2001])."], "id": "48d8e541-21ae-490d-a984-8943f910a094", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cA defendant\u2019s default does not, however, give rise to a \u2018mandatory ministerial duty to enter a default judgment against it\u2019 (Gagen v Kipany Prods., 289 AD2d 844, 846 [2001]). Rather, a plaintiff must support its motion for a default judgment with \u2018enough facts to enable [the clerk or the] court to determine that a viable cause of action exists\u2019 (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). Moreover, where application is made to the clerk, i.e., in cases where the claim is \u2018for a sum certain or for a sum which can by computation be made certain,\u2019 entry of a judgment by the clerk is authorized only where there can be no reasonable question about the amount of the judgment (see Weinstein-KornMiller, NY Civ Prac \u00b6 3215.04 [2d ed]), such as actions upon money judgments or negotiable instruments (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [1978]). Even where a viable cause of action exists, if the damages sought cannot be readily ascertained without resort to extrinsic proof, entry of judgment by the clerk is improper (id. at 573) . . . Accordingly, the damages *913sought by the plaintiff were not readily ascertainable with resort to extrinsic evident, and it was therefore error for the clerk to enter a default judgment.\u201d (PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94, 96-97 [2008].) As set forth above, CPLR 3215 (a) only permits such a practice when the \u201cclaim is for a sum certain or for a sum which can by computation be made certain.\u201d The statute goes on to permit the entry of a judgment by the clerk \u201cupon the submission of the requisite proof.\u201d What is to be included in the \u201crequisite proof\u2019 is set forth in CPLR 3215 (f). There is little guidance as to what documentation is to be included in the affidavit of a party so that there is sufficient \u201cproof of the facts constituting the claim\u201d to support entry of such a judgment. (Id.) The current practice is to accept the entry of these judgments based on an \u201caffidavit of facts\u201d from a person having \u201cpersonal knowledge\u201d of the facts. There is no specification of the documentation required to support the allegations in the affidavit of facts or to verify how the amount due and owing is calculated. This practice and procedure may have made sense when default judgments were sought to be entered for a failure to pay on a promissory note or other negotiable instrument or for breach of contract where the pleadings and the affidavit of facts would permit the defendant or the clerk examining the file to calculate the amount due. Such a system is not tolerable in regard to credit card and other debt cases where items such as the interest rate, late payment charge, and over-the-limit fees may change several times over the course of the consumer credit agreement. The modifications are often triggered by the card issuer allegedly mailing a notice of the alteration of the terms and the card holder using the credit card after the notice date."], "id": "16ccf424-5260-4726-b52c-d21325c0806a", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While no reported cases have been discovered that deal squarely with the issue here presented, the question of the vulnerability of a \u201c holder-in-due-course \u2019 \u2019 to defenses available against the payee-vendor in transactions has been exhaustively considered by the Superior Court of New Jersey in the case of Westfield Investment Co. v. Fellers (supra). The reasoning of the learned Judge Hopkins is deemed particularly apposite to the case at bar because the decision there turned on the question of whether the relationship between the alleged holder-in-due-course (the endorsee-finance company) and its transferor (the payee-vendor) was such as would support a finding that the finance company was so directly interested and involved in the transaction of purchase that it could not escape the legal imputation that it stands in the shoes of the vendor."], "id": "7f83def6-ec30-4b2b-bbf6-52820165962a", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff instituted this action to recover under the Federal Fair Credit Reporting Act (15 USC \u00a7 1681n) and the New York *461Fair Credit Reporting Act (General Business Law, art 25, \u00a7\u00a7 380 \u2014 380-j). He relies on defendant Shapiro\u2019s alleged improper procurement of plaintiff\u2019s profile report from TRW and use of it in a Surrogate\u2019s Court action in which plaintiff was the attorney for the coexecutrices of the estate of Marcia M. Besaine. Plaintiff alleges that defendants employed the TRW consumer credit report in the probate action to impugn his personal and professional reputation in violation of the statutorily authorized purposes of credit reports. Plaintiff contends defendants ignored \u2014 either with actual malice or in reckless disregard of their duty to know \u2014 the prohibitions in both the Federal and New York acts against use of a consumer credit report in a judicial proceeding."], "id": "bf587810-fc73-44f8-9464-8c001f55199f", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A review of the complaint and the documents submitted to obtain the default judgment disclose that under the new *325Uniform Rules for New York City Civil Court (22 NYCRR 208.14-a) governing transactions, this litigation would have to be dismissed. (See also CACH of Colorado, LLC v Lazarovwsky, 46 Misc 3d 1201[A], 2014 NY Slip Op 51759[U] [2014]; Matter of Pinpoint Tech. LLC, 45 Misc 3d 1223[A], 2014 NY Slip Op 51695[U] [2014].)"], "id": "4c6daac1-17fb-4fc6-9db5-9a3e59ffd961", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consumer Protection Law \u00a7 20-701 (c) defines \"Consumer goods, services, credit and debts\u201d as \"goods, services, credit and debts which are primarily for personal, household or family purposes.\u201d Subdivision (d) defines \"Consumer\u201d as a \"purchaser or lessee or prospective purchaser or lessee of the consumer goods or services or , including a co*867obligor or surety.\u201d The consumer essentially is defined vis-\u00e1vis a \"Merchant\u201d, who is defined in subdivision (e) as a \"seller, lessor, or creditor or any other person who makes available either directly or indirectly, goods, services or credit, to consumers.\u201d Merchants are further defined to include \"manufacturers, wholesalers and others who are responsible for any act or practice prohibited by this subchapter.\u201d"], "id": "35e46019-29f3-440e-9adc-c5b79a8980dd", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The right of rescission arises in the case of \"any transaction * * * in which a security interest * * * is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended\u201d (15 USC \u00a7 1635 [a]). There are certain exceptions which are not relevant to the case at bar. The borrower is entitled to rescind the transaction \"until midnight of the third business day following the consummation of the transaction or *538the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this title * * * whichever is later\u201d (15 USC \u00a7 1635 [a]). The consumer can opt to rescind for any reason, or for no reason (National Consumer Law Center, Truth in Lending [3d ed 1995])."], "id": "28d92b9a-6d58-49ac-b268-45e2332dd93e", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*728On approving chapter 883 of the Laws of 1980, the Governor stated (NY Legis Ann, 1980, p 390) in part: \u201cCurrently, State statutes prescribe the maximum rates which can be charged on most types of consumer loans. These rates are inflexible; they are, in most cases, substantially below prevailing market rates; and they are below the rates allowed in most other states. Faced with the high cost of funds, increased overhead, and low consumer interest rate ceilings, many banks and other lenders in New York have been led to restrict sharply the availability of , adversely affecting the broad spectrum of New Yorkers who rely on credit.\u201d"], "id": "323b6049-7883-40fd-92da-7b6ee9ea0600", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This problem was considered in Weathersby v Fireside Thrift Co. (CCH, Guide, par 98,640), wherein class certification was denied upon plaintiff\u2019s request that the court provide in the order certifying the class that individual recovery would not be affected by certification. It was there concluded that because the plaintiff might receive money that would otherwise go to unnamed class members they could not fairly and adequately protect the interests of the class. This analysis was cited with approval in Agostine v Sidcon Corp. (69 FRD 437, supra) but rejected in Postow v Oriental Bldg. Assn. (390 F Supp 1130, 1140-1141, supra)."], "id": "8a6d47e9-f21b-43c4-99bf-62344ca80463", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Together with its answer, defendant Allstate Insurance served a demand for a change of venue. Soon thereafter, defendant moved for a change of venue claiming that each instant action is governed by CCA 301 because medical services is a transaction. Alternatively, defendant seeks a change of venue on each instant action based on CPLR 510 (3), which provides a court the discretion to change the venue upon motion for the convenience of the witnesses and in the interest of justice. On each motion, defendant submits identical affirmations which state that, \u201c[s]ince the Plaintiff and Plaintiff\u2019s assignor, and the claim representative from [Allstate Insurance], all of whom are material witnesses, reside in Kings County\u201d the venue should be changed to that County."], "id": "947d72cb-133e-4537-ad16-3b5026d5dbf0", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs and appellants, Robert A. Brown (\"Brown\"), and his two then-minor daughters, Kirsten Brown and Kayla Brown (collectively, \"the Browns\"), were patients of a dentist named Dr. Rolf Reinholds. In July 2000, Dr. Reinholds billed Brown $600 in connection with a dental *70crown. After Brown paid only a portion of the bill, Reinholds referred the debt to a collection agency called Credit Bureau Services, owned by defendant and respondent Stewart Mortensen. *936The Browns brought suit in 2003, contending an employee of Mortensen transmitted confidential medical (i.e., dental) information received from Dr. Reinholds to the three major national reporting agencies, Experian, Equifax, and Trans Union, in violation of the CMIA.3"], "id": "69ab60fe-be00-40d2-a93d-d251fb97abaf", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Allstar\u2019s position is correct: Installment payments and income execution are two different means of enforcement under CPLR article 52. Unlike CPLR 5231, CPLR 5226 does not contain a limit on the amount of an installment payment order (see Craig v Klein, 2004 WL 5487913 [Sup Ct, NY County 2004], affd 8 AD3d 55 [1st Dept 2004]). The purpose of CPLR 5226 is to \u201ccompel payment of judgments by debtors who are in a position to do so\u201d (Bergman v Buechler, 249 App Div 553, 555 [1st Dept 1937]). In differentiating the CCPA and income execution from all other forms of postjudgment enforcement, the United States Court of Appeals for the Second Circuit held that \u201c[CPLR] Article 52 provides a variety of means for the enforcement of money judgments. The Protection Act merely prohibits . . . the garnishment of [defendant\u2019s] wages\u201d (Long Is. Trust Co. v United States Postal Serv., 647d 336, 342 [1981]). Historically, New York courts have granted installment payment orders where the debtor\u2019s wages were subject to garnishment under CPLR 5231 (see Matter of Widder Bros. v Kaffee, 19 AD2d 817 [1st Dept 1963]). Accordingly, that Curry\u2019s wages are garnished does not prevent Allstar from seeking installment payments."], "id": "9e108f77-e3d2-4f25-b084-2a7f54aa412a", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Assuming the requisite conditions are met, the more expeditious approach to remedy the alleged wrongs perpetrated upon those persons described by plaintiffs would dictate certification of one class to be all persons who have received loans from the defendant and who have entered into contractual relations with the defendant by way of mortgages on their property between July 15, 1974 and July 17, 1975 and who were not provided with the disclosures required by the Protection Act (US Code, tit 15, \u00a7 1601 et seq.). In so defining the class, the plaintiffs may complete their pretrial discovery procedures and thereafter ascertain the nature and extent of all purported violations of T-I-L upon which it is intended that proof will be offered. Only at such later time and upon a determination that the complexity of the issues so require, may a meaningful and appropriate subdivision of the classes be described."], "id": "c3c1bdcd-b2b6-4c3c-b800-16cd705e9eca", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 125 of the act provides, in part: \"(a) Except as otherwise provided in this section, in the case of any transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction\u201d. And \"(b) When an obligor exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.\u201d (Emphasis supplied.)"], "id": "61a4fcbe-e4da-405a-85ab-081d2a6efbfa", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Venue in a transitory action is normally laid in the county where one of the parties resides at the time the action is commenced. (CPLR 503; CCA 301.) In \u201can action arising out of a transaction where a purchaser, borrower or debtor is a defendant\u201d, venue must be laid in a county where the defendant resides or where the transaction took place. (CPLR 503, subd [f]; CCA 301, subd [a].) The term \u201cconsumer credit transaction\u201d means a transaction where credit is extended to an individual and the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes. (CPLR 105, subd [f].)"], "id": "f637bbb4-9388-44d3-8c27-a096c6fef7a0", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Allowing the assignee to give notice would enable dishonest debt collectors to search the court records, obtain the names of judgment debtors and send the debtor a letter stating they have purchased the debt from credit card issuers such as Chase and the debtor should make all payments to the third party. Requiring the assignor-credit card issuer to serve the notice would reduce the incidents of fraud in this regard. The Federal Fair Debt Collection Practices Act lists 16 \u201cfalse, deceptive or misleading\u201d practices, some of which would not be available by requiring a notice of assignment to be given by the assignor to the debtor. The trend in consumer protection law is to require such notice (see Uniform Code 1974 \u00a7 3.204, ULA Cons Credit \u00a7 3.204 [2009]), especially in dealing with consumer credit debt where the vast majority of defendants are unrepresented, unsophisticated individuals. As the Court of Appeals stated in Tri City Roofers v Northeastern Indus. Park (61 NY2d 779, 781 [1984]): \u201cA judgment debtor is not called upon to search the county\u2019s records every time he is served with an execution or desires to make a payment on his debt.\u201d The failure to establish that notice of the assignment was given to the debtor makes the assignment ineffective."], "id": "78102a33-0d22-42d2-bd6e-87e7a0b39d56", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On May 16, 1983, plaintiff (Ayanru) purchased a new 1983 Buick Skylark from Pepper and Potter Buick. The car was manufactured by Buick Division of General Motors. The sales receipt lists GMAC as lien holder and the amount financed to be $8,500. The receipt also states that the seller disclaims all express or implied warranties as to merchantability or fitness. The car came with a 12,000-mile/12-month (whichever sooner) limited warranty, of four printed pages, provided by defendant General Motors (GM). The warranty states in part, \"It is our intent to repair under the warranty, without charge, anything that goes wrong during the warranty period that is our fault\u201d. At time of purchase, Ayanru executed a retail installment contract for $8,500 with Pepper and Potter, which was duly assigned to defendant General Motors Acceptance Corporation (GMAC). The retail installment agreement states in part, \"Any holder of the contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.\u201d"], "id": "8edeca3c-2003-4f7b-8c71-65b49e36be17", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Curry argues that Allstar\u2019s motion for installment payments should be denied because it violates 15 USC \u00a7 1673, the *515 Protection Act (CCPA). The CCPA prohibits the garnishment of wages in excess of 25% of a debtor\u2019s disposable earnings. Curry contends that his wages are already being garnished by more than 25%, and Allstar\u2019s motion is an improper attempt to bypass the CCPA\u2019s restrictions. Allstar counters that wage garnishment, also known as income execution (CPLR 5231), and installment payments (CPLR 5226) are separate remedies."], "id": "56756e03-127b-494e-8358-dd814488ab37", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c(1) (a) The parties to any agreement may contract for a delinquency charge on any installment not paid in full by its scheduled date in an amount not exceeding the greater of: \u201c(i) $30; or \u201c(ii) 5% of the delinquent unpaid amount of the installment. \u201c(b) Notwithstanding Subsection (1) (a), in a contract, renewed, executed, or modified on or after May 3, 1999, a depository institution as defined in Section 7-1-103 may contract for and collect a delinquency charge on an installment not paid in full by *1024its scheduled due date in excess of the limitation imposed under Subsection (1) (a).\u201d The Utah statute controlling the change of terms of open-end consumer credit contracts (Utah Code Ann \u00a7 70C-4-102) provides:"], "id": "ae5ac87b-8497-444c-a542-73675468b72c", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first obstacle is section 1301 of the Bankruptcy Act (11 USC \u00a7 1301) which provides a stay in any action to collect a consumer debt from the bankrupt\u2019s codebtor. Consumer debt is defined in 11 USC \u00a7 101 (7) as a \u201cdebt incurred by an *603individual primarily for a personal, family, or household purpose\u201d (see, CPLR 105 [f]; and General Obligations Law \u00a7 5-327, for similar definitions of transaction and consumer contract). This definition, however, does not cover a lease which conveys an interest in real property and for which the Bankruptcy Act specially provides in 11 USC \u00a7 365."], "id": "cee65dda-94df-4946-8f24-556d2c8fdb4c", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is a case from the Court of Appeals of Michigan which, although factually very different from the case at bar, *539concludes that where a transaction was never \"consummated\u201d under Michigan law, the three-day right to rescind under TILA never began to run, and the consumer\u2019s rescission rights were effective even against an assignee who was a holder in due course (Thomas v Leja, 187 Mich App 418, 468 NW2d 58 [1991]). In that case, the consumer had executed a promissory note along with a mortgage on residential property, and then canceled orally, rather than in writing, as required by TILA. The mortgage company seemingly honored the cancellation, never distributed the funds, and circulated an internal company memorandum indicating that the transaction had been canceled. However, it recorded the mortgage and assigned the note and mortgage to a holder in due course. Michigan\u2019s Court of Appeals held that since the funds were never distributed to the consumer, he cannot be said to have been contractually obligated as a result of a credit transaction, and under Michigan law, a consummation never occurred. The court concluded that the consumer\u2019s right to rescind the transaction, under TILA and Regulation Z remained effective, since the three-day period never began to run (supra, 187 Mich App, at 422-423, 468 NW2d, at 60-61). Thomas, therefore, allowed implementation of the right of a rescission even without the closing."], "id": "2461f6f7-7f21-42f9-8763-7bebe2b62308", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although the court has found no authority that assignment of the right to health insurance benefits in exchange for medical services is a secured transaction within the scope of UCC article 9, that right could be construed as collateral for the services rendered. The law does recognize circumstances where medical services may be transactions, which may be secured by an interest in insurance benefits. (State of New York v Monteleone, 138 AD2d 821, 822 [3d Dept 1988]; Neurological Servs. v Allstate Ins. Co., 181 Misc 2d 98 [Civ Ct, Bronx County].) An assignment intended to grant a security interest in insurance benefits thus may constitute a secured transaction governed by UCC article 9. (See, UCC 9-102; Wonsey v Life Ins. Co., 32 F Supp 2d, supra, at 941, n 4.)"], "id": "7e407833-1fbc-4515-97ed-5996098b257e", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cLicense to do business. Where the plaintiffs cause of action against a consumer arises from the plaintiffs conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York . . . the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license; provided, however, that where the plaintiff does not have a license at the commencement of the action the plaintiff may, subject to the provisions of rule thirty hundred twenty-five of this article, amend the complaint with the name and number of an after-acquired license and the name of the governmental agency which issued such license or move for leave to amend the complaint in accordance with such provisions. The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter.\u201d (Emphasis added.) While CPLR 3015 (e) does not define \u201cconsumer,\u201d it is noted that CPLR 105 (f) provides that \u201c[t]he term \u2018 transaction\u2019 means a transaction wherein credit is extended to an individual and the money, property, or service which is the subject of the transaction is primarily for personal, family or household purposes.\u201d Thus, a \u201cconsumer credit transaction\u201d is *233a transaction that involves a purchase or loan for \u201cpersonal, family or household purposes\u201d (Patrick M. Connors, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B, CPLR C3015:6, citing Matter of Migdal Plumbing & Heating Corp. (Dakar Devs.), 232 AD2d 62, 65-66 [1st Dept 1997] [noting that while the term \u201cconsumer\u201d is undefined in the statute, it \u201cmay reasonably be construed to apply to a person, family or household\u201d]; Bayonne Block Co. v Porco, 171 Misc 2d 684 [Civ Ct, Bronx County 1996] [declining to permit another contractor to invoke CPLR 3015 (e)]). The contract herein is not between a debt collection agency and a consumer as that term is contemplated under CPLR 3015 (e). It is between the debt collection agency and a merchant. Therefore, as the agreement at issue does not constitute a consumer credit transaction, dismissal based on CPLR 3015 (e) is unwarranted."], "id": "ad2df0ea-d53d-4dac-a188-f8de3679d771", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff argues that the said subdivision (a) of section 1635 and the recovery rights provided by subdivision (b) of section 1635 are applicable to this transaction. Defendants\u2019 contention is that the \u201c more than four installments \u201d rule (Regulation Z) duly promulgated by the Board of Governors of the Federal Reserve System (Code of Fed. Reg., tit. 12, \u00a7 226.2, subd. [k]) brings this transaction without the act. Subdivision (a) of section 1635 provides, in pertinent part: \u201c in the case of any transaction in which a security interest is retained or acquired in any real property which is used or is *110expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section # * * whichever is later,- by notifying the creditor, in accordance with regulations of the Board, of his intention to do so.\u201d"], "id": "947add63-9a3a-4cb9-9a72-acf8c0085994", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In opposition, plaintiff does not dispute that a bilingual summons was not served. Contrariwise, plaintiff asserts that no credit of any kind was ever afforded to defendant\u2019s deceased.; that subject medical services were rendered on a cash basis only; that it was anticipated that full payment of the bill would be *217made upon the completion of services; and that the medical services were normally rendered and not in connection with any transaction."], "id": "075c8bee-e4b6-44ac-9b1e-f88d43160b37", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In First Nat. City Bank v Drake (N.Y.L.J., Sept. 27, 1973, p 17, col 6) the plaintiff bank sued in New York City Civil Court for the balance of a note and the defendant cross-moved to interpose a counterclaim for statutory civil TIL penalties. Although it was held that the causes of action in the counterclaim were time-barred by the TIL Statute of Limitations, the interposed counterclaim was permitted under CPLR 203 (subd [c]) as a setoff against the plaintiff\u2019s claim. The same result was found in a New Mexico case, Collectors v Atrisco Assn. (4 CCH Guide, par 98779 [N.M. Dist. Ct., Jan. 31, 1974] and under an Illinois statute in Wood Acceptance Co. v King (18 Ill App 3d 149). A contrary result was arrived at in a Georgia case (Hodges v Community Loan and Inv. Corp., 133 Ga App 336) apparently because no set-off statute similar to CPLR 203 (subd [c]) was there in effect."], "id": "8cdf5460-766a-4cab-8454-492c238ae66c", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While the house itself may not be strictly exempt from execution pursuant to section 137-a of the Social Services Law which applies only to \u201c wages, salary, commissions or other compensation paid or payable by an employer to a person while he is in receipt of public assistance,\u201d it is nonetheless true that the *488sought-after home here is not merely a peripheral asset, but is a basic necessity integrally related to the meeting of daily needs of this family of six. Therefore, while the Holmes \u2019 equity in the property is not the equivalent of the current basic shelter grant and is not exempt from execution under section 137 of the Social Services Law (see Corp. v. Lewis, 63 Misc 2d 928; 22 Syracuse L. Rev. 334), the home nonetheless represents a current vital resource presently enjoyed by virtue of prior public assistance grants, the loss of which might fairly be described as catastrophic to the family welfare. In principle then, under these circumstances, an equitable priority exists in the continued use of the property to house the needy family."], "id": "3f00288a-f984-4c72-8fd9-510746d3eb2d", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["According to the complaint, the plaintiff is a national bank currently engaged in the banking business in Nassau, Queens, Kings and New York Counties through 55 branch offices, 45 of which are situate in Nassau County. Since 1949, it has carried on business under the trade-mark or trade name \u2018 \u2018 Meadow Brook\u201d. Its services and facilities include savings and checking accounts; commercial and industrial loans; loans; mortgage loans; foreign banking services and trust and estate services. The plaintiff also alleges that many of its services and facilities are closely connected with the securities market, i.e., it buys and sells securities in its capacity as an executor and trustee; it maintains a security clearance department for handling the receipt and delivery of securities for *113various securities brokers; it performs services as a transfer agent and registrar for the common stock of numerous publicly held corporations; it bids on municipal bond issues on its own account and for the account of others. In addition, Meadow Brook National Bank stock is now issued and sold to the public and is actively traded on the over-the-counter market."], "id": "354f5c32-c3e4-4c03-9027-39d181295207", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We also reject the conclusory argument in defendants' briefing that a real estate transaction simply cannot be considered to be a \"consumer\" transaction. The defendants contend, in essence, that a \"real estate transaction\" is an \"economic transaction for a fixed and permanent asset,\" and usually involves \"relative complexity\" and a \"mountain of paperwork, only some of it related to the actual funding of the transaction.\" According to the defendants, these facts somehow mean that such a transaction cannot be considered to be a \"consumer transaction.\" As we have explained, however, the Legislature provided a specific definition of a \" transaction,\" and that definition is sufficiently broad to include transactions that involve real property; there is no indication in the text of the provision that it is intended to exclude transactions that involve real property or the use of real property as security for the debt, nor is there any indication that the statute excludes transactions that are complex or involve \"a mountain of paperwork.\""], "id": "aefb5989-1630-4ebb-8e09-fd731eea74f6", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The FCRPA defines the term \"debt\" in a manner similar to the way in which the Rosenthal Act defines a \" transaction.\" \"[D]ebt\" under the FCRPA \"means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes , whether or not such obligation has been reduced to judgment.\" (15 U.S.C.A. \u00a7 1692a, subd. (5), italics added.)"], "id": "41eb53e4-e9f1-4e70-a389-03628cb90bde", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On May 27, 2014, Lang filed a complaint against Watkins on behalf of Cavalry. The complaint alleged breach of contract and common counts and sought damages in the amount of $1,603.22, plus attorney fees according to proof. It did not seek interest on the alleged damages. In response, Watkins filed a cross-complaint, and later a first amended cross-complaint, alleging that Cavalry and CPS violated the Rosenthal Act, the Reporting Act (CCRA; \u00a7 1785.25, subd. (a)), and the Fair Debt Buying Practices Act (FDBPA; \u00a7 1788.50 et seq.)3 by, among other things, \"falsely representing the character, amount, or legal status of the alleged debt,\" \"failing to verify that the amount demanded was accurate,\" and \"failing to provide an accurate accounting of the alleged debt.\""], "id": "d6b486eb-f36f-4b3b-b7b3-129605e75535", "sub_label": "US_Terminology"} {"obj_label": "CONSUMER CREDIT", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cnotice: ANY HOLDER OF THIS CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF\u201d Further, as a matter of policy, plaintiff should not be permitted to recover on an obligation upon which the unlicensed contractor cannot recover. It would make little sense to preclude an unlicensed contractor from recovering but permit his assignee to recover. This would allow wholesale evasions of the licensing law. If the public is to be protected from unlicensed contractors, this protection must extend to those who acquire obligations from unlicensed contractors. That plaintiff has paid the unlicensed contractor in this case is immaterial. Plaintiff had the opportunity to make a simple inquiry in order to determine whether the contractor was licensed. Having failed to do so, any loss which plaintiff may sustain is a result of its own carelessness in failing to make this inquiry. Moreover, in this particular case, plaintiff is not a party who just happened to purchase this one obligation. As already noted, the printed form used by the unlicensed contractor indicates that it was contemplated that plaintiff would be the assignee of the contract. Thus, plaintiff here should have been particularly careful to assure itself that the contractor with whom it was doing business and from whom it was purchasing home improvement obligations was licensed (cf. Star Credit Corp. v Molina, 59 Misc 2d 290, 293-294)."], "id": "a19f1cd5-0906-40e0-b988-d6560a071066", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["ECKER, J. This appeal arises out of a dispute between the plaintiff, Meribear Productions, Inc., doing business as Meridith Baer and Associates, and the defendants, Joan E. Frank and George A. Frank, in connection with a contract for the design, decoration, and staging for sale of the defendants\u2019 residence at 3 Cooper Lane in Westport. After the plaintiff staged the defendants\u2019 home by installing rental furniture, antiques, art, and home de\u0301cor for the purpose of enhancing its appearance and, thereby, its prospects for sale, the defendants defaulted on their contractual payment obligations to the plaintiff. The plaintiff, a California company, obtained a default judgment against the defendants in its home state and thereafter filed an action in the Superior Court in Connecticut seeking to enforce the California judgment or, alternatively, to recover under the theories of breach of contract or quantum meruit. The trial court rendered judgment in favor of the plain- tiff against George Frank on the count seeking to enforce the California judgment and in favor of the plaintiff against Joan Frank on the breach of contract count.1 On appeal, the defendants claim that (1) the California judgment is unenforceable for lack of per- sonal jurisdiction, (2) the contract is unenforceable under the Home Solicitation Sales Act (HSSA), General Statutes \u00a7 42-134a et seq., and (3) the amount of dam- ages awarded by the trial court was improper. We affirm the judgment of the trial court. The relevant facts either are undisputed or were found by the trial court following a bench trial. The plaintiff is a California corporation that provides resi- dential design and decoration services, including the delivery, staging and leasing of home furnishings and de\u0301cor. The defendants are a married couple who resided in a home owned by Joan Frank at 3 Cooper Lane in Westport. In an effort to sell their home and make it more attractive to potential purchasers, Joan Frank, as the homeowner, entered into a \u2018\u2018[s]taging [s]ervices and []l]ease [a]greement\u2019\u2019 (agreement) with the plaintiff on March 13, 2011. Under the terms of the agreement, Joan Frank agreed to pay the plaintiff a \u2018\u2018 \u2018[s]taging [f]ee\u2019 \u2019\u2019 in the amount of $19,000, which represented a nonre- fundable \u2018\u2018 \u2018[i]nitial [p]ayment\u2019 \u2019\u2019 due \u2018\u2018prior to [the] deliv- ery and installation\u2019\u2019 of the furnishings. After the deliv- ery and installation of the furnishings, the agreement provided that Joan Frank would make monthly rental payments in the amount of $1900 beginning on July 23, 2011. The initial term of the agreement was for four months \u2018\u2018or until the buyer\u2019s contingencies are either satisfied or waived with respect to the purchase of the [p]roperty, whichever comes first.\u2019\u2019 If the property did not sell after four months, then the agreement would continue on a monthly basis, subject to the right of either party to terminate the agreement by providing written notice. Joan Frank was the sole signatory to the agreement. Although George Frank did not sign the agreement and was not a party to it, he participated in its negotiation. Indeed, in negotiating the agreement, the plaintiff dealt exclusively with George Frank, his office assistant, and the defendants\u2019 realtor. The plaintiff had no meaningful dealings with Joan Frank other than her execution of the agreement. In addition to negotiating the agreement, George Frank signed an addendum to the agreement, adden- dum B, which is a credit card authorization expressly made \u2018\u2018a part of [the] [a]greement . . . .\u2019\u2019 Pursuant to the credit card authorization, George Frank \u2018\u2018authorized the plaintiff to charge his Visa credit card a \u2018total amount\u2019 of $19,000.\u2019\u2019 George Frank crossed out lan- guage in the addendum providing that he agreed to personally guarantee \u2018\u2018any obligations that may become due.\u2019\u20192 Although George Frank was not a party to the agree- ment, he made substantive modifications to its terms. Paragraph 19 of the agreement contains a choice of law provision, which provides that \u2018\u2018[t]his [a]greement and the rights of the parties hereunder shall be determined, governed by and construed in accordance with the inter- nal laws of the [s]tate of California without regard to conflicts of laws principles.\u2019\u2019 Paragraph 19 also contains a forum selection clause, which provides that \u2018\u2018[a]ny dispute under that [a]greement shall only be litigated in any court having its situs within the [c]ity of Los Angeles, California, and the parties consent and submit to the jurisdiction of any court located within such venue.\u2019\u2019 Despite the choice of law provision, George Frank unilaterally added the following language at the end of paragraph 19: \u2018\u2018Since this is a contract for an agreement taking place in the state of Connecticut, Con- necticut laws will [supersede] those of California.\u2019\u2019 (Emphasis omitted.) After George Frank made the initial payment of $19,000, the plaintiff delivered and installed the rental furnishings and de\u0301cor pursuant to the terms of the agreement. Thereafter, the defendants defaulted on their rental obligation. The plaintiff hired a crew of movers to remove the rental furnishings and de\u0301cor from the defendants\u2019 residence, but the defendants denied the movers access to the premises. The defendants demanded that the plaintiff provide a written release of all claims, but the plaintiff refused. The inventory remained in the home.3 The litigation began in California. On February 15, 2012, the plaintiff filed suit against the defendants in the Superior Court of California, county of Los Angeles, claiming, inter alia, breach of contract and conversion. That action resulted in a default judgment against the defendants in the amount of $259,746.10. When the default judgment remained unsatisfied, the plaintiff brought an action against the defendants in the Superior Court for the judicial district of Fairfield, seeking to enforce the foreign judgment. Alternatively, the plaintiff sought recovery against the defendants for breach of contract and quantum meruit under counts two and three of the complaint, respectively. The defendants raised various special defenses. In particular, the defen- dants claimed that (1) the California judgment was unenforceable for lack of personal jurisdiction, (2) the agreement was unenforceable under the HSSA because the plaintiff failed to advise the defendants of their cancellation rights, and (3) the plaintiff failed to miti- gate its damages and breached the covenant of good faith and fair dealing. On count one of the plaintiff\u2019s complaint, seeking enforcement of the California judgment, the trial court found that the California court lacked personal jurisdic- tion over Joan Frank due to insufficient service of pro- cess but that \u2018\u2018the substituted service of process on George Frank [was] valid.\u2019\u20194 \u2018\u2018To the extent that George Frank claim[ed] that the California court lacked suffi- cient minimum contacts over him\u2019\u2019 to satisfy the due process clause of the federal constitution, the trial court \u2018\u2018disagree[d].\u2019\u2019 The trial court reasoned that \u2018\u2018George Frank admit[ted] that he signed a guarantee of the stag- ing agreement with a company that has a principal place of business in California and that [the agreement] provides that [the city of] Los Angeles is the appropriate forum. He disputes only the extent of the guarantee. The California court possessed personal jurisdiction over George Frank, and its judgment is entitled to full faith and credit as to him.\u2019\u2019 Therefore, the trial court rendered judgment \u2018\u2018in favor of the plaintiff and against George Frank on the first count of the complaint for common-law enforcement of a foreign judgment.\u2019\u2019 The trial court proceeded to address counts two and three of the plaintiff\u2019s complaint against Joan Frank for breach of contract and quantum meruit, respectively. In connection with count two, the trial court found that \u2018\u2018the plaintiff\u2019s evidence relevant to the claimed breach [was] credible,\u2019\u2019 that \u2018\u2018[t]he furnishings were delivered to, and installed in, the residence in March, 2011,\u2019\u2019 and that \u2018\u2018Joan Frank failed to make the July rent payment, and the rent payments and other charges due there- after.\u2019\u2019 Moreover, the trial court found that, following Joan Frank\u2019s default on the rental payments, the plain- tiff attempted to remove the inventory from the defen- dants\u2019 residence, but the defendants wrongfully \u2018\u2018denied the movers access to their home unless the plaintiff provided them with a full release of all claims,\u2019\u2019 which the plaintiff \u2018\u2018reasonably refused . . . .\u2019\u2019 The trial court therefore concluded that Joan Frank had breached the agreement. The trial court rejected Joan Frank\u2019s claim that the agreement was unenforceable under the HSSA because the plaintiff had not provided her with notice of her cancellation rights, concluding that the \u2018\u2018plain and unambiguous\u2019\u2019 language of the statute exempts from the definition of a \u2018\u2018 \u2018home solicitation sale\u2019 \u2019\u2019 transactions \u2018\u2018 \u2018pertaining to the sale or rental of real property.\u2019 \u2019\u2019 Accord General Statutes \u00a7 42-134a (a) (5) (\u2018\u2018[t]he term \u2018home solicitation sale\u2019 does not include a transaction . . . pertaining to the sale or rental of real property\u2019\u2019). The trial court determined that \u2018\u2018[a]n agreement con- cerning the staging of a residential home for sale in the real estate marketplace\u2019\u2019 pertains to the sale of real property and, therefore, is excluded from the purview of the HSSA. The trial court also rejected Joan Frank\u2019s claim that the plaintiff had failed to mitigate its dam- ages, finding that it was Joan Frank who had \u2018\u2018wrong- fully prevented\u2019\u2019 the removal of the home furnishings and de\u0301cor. Furthermore, because \u2018\u2018Joan Frank . . . wrongfully withheld payments under the agreement, and wrongfully refused the plaintiff\u2019s attempts to reclaim the inventory,\u2019\u2019 the trial court found that she had breached the covenant of good faith and fair dealing by \u2018\u2018injur[ing] the rights of the plaintiff to receive the benefits of the staging agreement.\u2019\u2019 The trial court there- fore rendered judgment in favor of the plaintiff and against Joan Frank on the plaintiff\u2019s breach of contract claim. Having determined that \u2018\u2018[t]he plaintiff [proved] that Joan Frank breached the contract,\u2019\u2019 the trial court stated that it \u2018\u2018need not consider the alternative claim for quantum meruit.\u2019\u2019 Finally, the trial court addressed the issue of dam- ages. On the first count of the complaint, enforcement of the California judgment against George Frank, the trial court awarded the plaintiff the full amount of the California judgment: $259,746.10. On the second count of the complaint, breach of contract against Joan Frank, the trial court awarded the plaintiff damages for the loss of the home furnishings and de\u0301cor in the amount of $235,598 and an additional $47,508.45 for \u2018\u2018the rental loss and related late fees,\u2019\u2019 for a total of $283,106.45. The defendants jointly appealed from the trial court\u2019s judgment to the Appellate Court, claiming that (1) the California judgment was unenforceable against George Frank for lack of personal jurisdiction, (2) the agree- ment was unenforceable because it did not provide the defendants with notice of their cancellation rights under the HSSA, and (3) the damages award was improper because (a) the trial court awarded double damages against George Frank and Joan Frank for the same loss, and (b) the trial court incorrectly included damages for conversion of the home furnishings in the breach of contract award against Joan Frank. See Meribear Pro- ductions, Inc. v. Frank, 165 Conn. App. 305, 311, 316, 321\u201322, 140 A.3d 993 (2016), rev\u2019d, 328 Conn. 709, 183 A.3d 1164 (2018). The Appellate Court affirmed the trial court\u2019s judgment, holding that (1) the California judg- ment was enforceable as to George Frank because he consented to personal jurisdiction in California by sign- ing addendum B, which was incorporated into the agreement; see id., 315; (2) the agreement was not sub- ject to the provisions of the HSSA because it fell within the statutory exemption for transactions pertaining to the sale or rental of real property under \u00a7 42-134a (a) (5); see id., 316, 321; and (3) the measure of damages was proper because (a) the plaintiff may recover the full amount of damages under either count one or count two of the complaint but may not recover twice for the same loss; see id., 322; and (b) the amount of damages on the breach of contract claim was not clearly errone- ous in light of the trial court\u2019s factual findings \u2018\u2018that Joan Frank had breached the staging services agreement by failing to pay the rent due, by wrongfully using the furniture in the defendants\u2019 personal residence for approximately three years, and by thwarting the plain- tiff\u2019s efforts to retrieve its inventory, thereby resulting in the total loss of that inventory to the plaintiff.\u2019\u2019 Id., 323. This court granted the defendants\u2019 joint petition for certification to appeal.5 See Meribear Productions, Inc. v. Frank, 322 Conn. 903, 138 A.3d 288 (2016). During the adjudication of that appeal, a question arose \u2018\u2018whether George Frank\u2019s appeal had been taken from a final judgment when the trial court\u2019s ruling had not disposed of all counts against him,\u2019\u2019 namely, the plaintiff\u2019s alterna- tive theories of recovery in counts two and three of the complaint, breach of contract and quantum meruit. Meribear Productions, Inc. v. Frank, 328 Conn. 709, 715, 183 A.3d 1164 (2018). Following oral argument and supplemental briefing from the parties, we determined that the trial court\u2019s judgment was not final given that counts two and three \u2018\u2018remain[ed] unadjudicated\u2019\u2019 as to George Frank and \u2018\u2018present[ed] the possibility that [he] could be found liable for additional damages.\u2019\u2019 Id., 726. Accordingly, we reversed the judgment of the Appellate Court and remanded to that court with direction to dismiss the defendants\u2019 joint appeal. See id. On remand to the trial court, the plaintiff withdrew counts two and three as to George Frank.6 The defen- dants thereafter filed a joint appeal with the Appellate Court, which we transferred to this court pursuant to General Statutes \u00a7 51-199 (c) and Practice Book \u00a7 65-2. I The defendants first claim that the foreign judgment against George Frank is unenforceable for lack of per- sonal jurisdiction because George Frank\u2019s sole contact with California was \u2018\u2018sign[ing] a single credit authoriza- tion in Connecticut, and every relevant action the plain- tiff took with regard to George Frank was taken in Connecticut. \u2018\u2018The defendants contend that, under these circumstances, George Frank lacked sufficient mini- mum contacts with California and that the assertion of personal jurisdiction over him in that state offended traditional notions of fair play and substantial justice in violation of the due process clause of the United States constitution. See, e.g., Burger King Corp. v. Rud- zewicz, 471 U.S. 462, 478, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (\u2018\u2018an individual\u2019s contract with an out-of-state party alone [cannot] automatically establish sufficient minimum contacts in the other party\u2019s home forum\u2019\u2019 (emphasis in original)). The defendants further argue that George Frank did not consent to jurisdiction in California because he was not a party to the agreement, and, therefore, the forum selection clause in the agree- ment \u2018\u2018cannot form a proper basis for jurisdiction.\u2019\u2019 The full faith and credit clause of the United States constitution governs an action to enforce a foreign judg- ment.7 \u2018\u2018[T]he full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it. . . . This rule includes the proposition that lack of jurisdiction renders a foreign judgment void. . . . A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue.\u2019\u2019 (Citations omitted.) Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990). The party raising a jurisdictional claim as a defense against the enforce- ment of a foreign judgment bears the burden of proving, \u2018\u2018by a preponderance of the evidence, facts that demon- strate that the foreign court lacked jurisdiction.\u2019\u2019 Maltas v. Maltas, 298 Conn. 354, 364 n.11, 2 A.3d 902 (2010). On appeal, we defer to the trial court\u2019s factual find- ings but exercise plenary review over the ultimate ques- tion of personal jurisdiction. See Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007). \u2018\u2018The question of whether another state\u2019s court properly exercised per- sonal jurisdiction is determined with reference to the law of that state.\u2019\u2019 Maltas v. Maltas, supra, 298 Conn. 367; see, e.g., Smith v. Smith, 174 Conn. 434, 438\u201339, 389 A.2d 756 (1978); J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn. App. 518, 524, 911 A.2d 309 (2006).8 In California, \u2018\u2018a civil court gains jurisdiction over a person through one of four methods. There is the old- fashioned method\u2014residence or presence within the state\u2019s territorial boundaries. . . . There is minimum contacts\u2014activities conducted or effects generated within the state\u2019s boundaries sufficient to establish a \u2018presence\u2019 in the state so that exercising jurisdiction is consistent with \u2018 \u2018\u2018traditional notions of fair play and substantial justice.\u2019 \u2019\u2019 . . . A court also acquires juris- diction when a person participates in a lawsuit in the courthouse where it sits, either as the plaintiff initiating the suit . . . or as the defendant making a general appearance . . . . Finally, a party can consent to per- sonal jurisdiction, when it would not otherwise be avail- able.\u2019\u2019 (Citations omitted; footnote omitted.) Global Packaging, Inc. v. Superior Court, 196 Cal. App. 4th 1623, 1629, 127 Cal. Rptr. 3d 813 (2011). We need not address the defendants\u2019 minimum con- tacts argument because we conclude that George Frank consented to personal jurisdiction in California.9 \u2018\u2018[D]ue process permits the exercise of personal jurisdiction over a nonresident defendant . . . when the defendant consents to jurisdiction. . . . A party, even one who has no minimum contacts with [a] state, may consent to jurisdiction in a particular case. . . . Agreeing to resolve a particular dispute in a specific jurisdiction, for example, is one means of expressing consent to [the] personal jurisdiction of courts in the forum state for purposes of that dispute. . . . [Although] subject matter jurisdiction cannot be conferred by consent, per- sonal jurisdiction can be so conferred, and consent may be given by a contract provision.\u2019\u2019 (Citation omitted; internal quotation marks omitted.) Rockefeller Technol- ogy Investments (Asia) VII v. Changzhou SinoType Techonology Co., Ltd., 9 Cal. 5th 125, 140, 460 P.3d 764, 260 Cal. Rptr. 3d 442, cert. denied, U.S. , 141 S. Ct. 374, 208 L. Ed. 2d 98 (2020); see also Burger King Corp. v. Rudzewicz, supra, 471 U.S. 472 n.14 (\u2018\u2018[B]ecause the personal jurisdiction requirement is a waivable right, there are a variety of legal arrangements by which a litigant may give express or implied consent to the personal jurisdiction of the court. . . . For example, particularly in the commercial context, parties fre- quently stipulate in advance to submit their controver- sies for resolution within a particular jurisdiction. . . . [When] such [forum selection] provisions have been obtained through freely negotiated agreements and are not unreasonable and unjust . . . their enforcement does not offend due process.\u2019\u2019 (Citations omitted; inter- nal quotation marks omitted.)). In the present case, the agreement expressly provided in relevant part that \u2018\u2018[a]ny dispute under [the] agree- ment shall only be litigated in any court having its situs within the [c]ity of Los Angeles, California, and the parties consent and submit to the jurisdiction of any court located within such venue.\u2019\u2019 (Emphasis added.) The defendants do not dispute that the forum selection clause in the agreement is valid and enforceable10 and, therefore, that its \u2018\u2018enforcement does not offend due process.\u2019\u2019 Burger King Corp. v. Rudzewicz, supra, 471 U.S. 472 n.14. Instead, they contend that George Frank is not bound by the forum selection clause because he did not sign the agreement. We disagree. Generally, a nonsignatory to a contract is not bound by a forum selection clause contained therein. See, e.g., Berclain America Latina S.A., de C.V. v. Baan Co. N.V., 74 Cal. App. 4th 401, 404\u2013405, 409, 87 Cal. Rptr. 2d 745 (1999) (holding that nonsignatory to contract lacked standing to enforce forum selection clause). An exception to this general rule exists, however, for non- signatories who are \u2018\u2018so closely involved in the agree- ment or associated with a party to the transaction as to be functionally equivalent to that party.\u2019\u2019 Id., 403; see Net2Phone, Inc. v. Superior Court, 109 Cal. App. 4th 583, 589, 135 Cal. Rptr. 2d 149 (holding that forum selection clause was enforceable against nonsignatory on ground that it was \u2018\u2018 \u2018closely related\u2019 to the contrac- tual relationship because it stands in the shoes of those whom it purports to represent\u2019\u2019), review denied, Docket No. S117411 (Cal. August 27, 2003); Bancomer, S. A. v. Superior Court, 44 Cal. App. 4th 1450, 1461, 52 Cal. Rptr. 435 (1996) (to demonstrate that nonsignatory is \u2018\u2018 \u2018so closely related to the contractual relationship\u2019 that it is entitled to enforce the forum selection clause, it must show by specific conduct or express agreement that (1) it agreed to be bound by the terms of the . . . agreement, (2) the contracting parties intended the [nonsignatory] to benefit from the . . . agreement, or (3) there was sufficient evidence of a defined and intertwining business relationship with a contracting party\u2019\u2019); Lu v. Dryclean-U.S.A. of California, Inc., 11 Cal. App. 4th 1490, 1494, 14 Cal. Rptr. 2d 906 (1992) (holding that nonsignatories were bound by forum selection clause because they were \u2018\u2018closely related to the contractual relationship\u2019\u2019 in that they allegedly \u2018\u2018par- ticipated in the fraudulent representations [that] induced [the] plaintiffs to enter into the [a]greement\u2019\u2019). Under the \u2018\u2018closely related\u2019\u2019 doctrine, a nonsignatory to a contract may be bound by a forum selection clause if the nonsignatory was so intimately involved in the negotiation, formation, execution, or ratification of the contract that it was reasonably foreseeable that he or she would be bound by the forum selection clause. See, e.g., Carlyle Investment Management, LLC v. Moon- mouth Co. SA, 779 F.3d 214, 219 (3d Cir. 2015) (\u2018\u2018even if [the] defendants are not parties to the agreement or third-party beneficiaries of it, they may be bound by the forum selection clause if they are closely related to the agreement in such a way that it would be foreseeable that they would be bound\u2019\u2019); Lipcon v. Underwriters at Lloyd\u2019s, London, 148 F.3d 1285, 1299 (11th Cir. 1998) (nonsignatories who signed letters of credit to provide collateral for signatories were bound by forum selection clause because their \u2018\u2018interests . . . in [the] dispute are completely derivative of those of [the signatories]\u2014and thus \u2018directly related to, if not predicated upon\u2019 the interests of the [signatories]\u2019\u2019), cert. denied, 525 U.S. 1093, 119 S. Ct. 851, 142 L. Ed. 2d 704 (1999); Hugel v. Corp. of Lloyd\u2019s, 999 F.2d 206, 209 (7th Cir. 1993) (\u2018\u2018[i]n order to bind a [nonparty] to a forum selection clause, the party must be \u2018closely related\u2019 to the dispute such that it becomes \u2018foreseeable\u2019 that it will be bound\u2019\u2019); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988) (nonsignatories were bound by forum selection clause because they were \u2018\u2018so closely related to the contractual relationship\u2019\u2019). In determining whether a nonsignatory may be bound by a forum selec- tion clause, \u2018\u2018courts consider the [nonsignatory\u2019s] . . . relationship [to the signatory] and whether the [nonsig- natory] received a direct benefit from the agreement.\u2019\u201911 Carlyle Investment Management, LLC v. Moonmouth Co. SA, supra, 219. Applying these factors, we conclude that George Frank was so closely related to the agreement that he is bound by the forum selection clause explicitly providing that the \u2018\u2018the parties consent and submit to the jurisdiction of any court located within\u2019\u2019 the city of Los Angeles, California. First, the record reflects that George Frank participated in the negotiation of the agreement prior to its execution. Indeed, even though Joan Frank was \u2018\u2018the sole signatory [to] the agreement,\u2019\u2019 she had no \u2018\u2018meaningful dealings concerning the matter\u2019\u2019 and \u2018\u2018was not involved in the process other than signing the agreement.\u2019\u2019 Instead, George Frank negotiated the agreement, \u2018\u2018took charge of the project and dealt with the plaintiff.\u2019\u2019 George Frank was a party to the agree- ment in all but name. Second, George Frank made substantive changes to the agreement prior to its execution. Specifically, \u2018\u2018George Frank unilaterally added the following language to the end of paragraph 19,\u2019\u2019 which is the portion of the agree- ment that contains the forum selection clause and the choice of law provision: \u2018\u2018Since this is a contract for an agreement taking place in the state of Connecticut, Connecticut laws will [supersede] those of California.\u2019\u2019 Notably, George Frank made no amendments to the forum selection clause. Third, in addition to negotiating and amending the agreement, George Frank executed addendum B, which is a credit card authorization that expressly was made \u2018\u2018a part of [the] [a]greement . . . .\u2019\u2019 Pursuant to adden- dum B, George Frank authorized a onetime credit card payment in the amount of $19,000, which represented the \u2018\u2018[i]nitial [p]ayment\u2019\u2019 or \u2018\u2018[s]taging [f]ee\u2019\u2019 due under the agreement. By doing so, George Frank authorized the sole payment made to the plaintiff and prompted the plaintiff\u2019s full performance of its contractual obligations under the terms of the agreement. Lastly, we consider George Frank\u2019s relationship with the parties and whether he benefited from the agree- ment. As we previously explained, George Frank is mar- ried to Joan Frank and resided with her at 3 Cooper Lane\u2014where the home furnishings and de\u0301cor were installed and remained for years. See footnote 3 of this opinion. Given that George Frank plainly enjoyed the use and benefit of the home furnishings and de\u0301cor and shared his wife\u2019s desire to enter into the agreement for the purpose of selling their marital residence, we have no trouble concluding that he received a direct benefit under the agreement. For the foregoing reasons, we conclude that George Frank consented to personal jurisdiction in California. Accordingly, the trial court properly found that the Cali- fornia judgment is enforceable against George Frank under the full faith and credit clause. The concurring and dissenting opinion objects to our reliance on the closely related doctrine to affirm the trial court\u2019s enforcement of the foreign judgment against George Frank, arguing that \u2018\u2018the plaintiff did not advance [this theory], either in the trial court or before this court,\u2019\u2019 and that the plaintiff did not raise it as an alterna- tive ground for affirmance under Practice Book \u00a7 63-4 (a). It is true that the plaintiff did not frame its jurisdic- tional argument using the line of cases discussed in this opinion. In all but name, however, the gravamen of the plaintiff\u2019s argument throughout this litigation has been that George Frank was so closely related to the transac- tion that he should be bound by the forum selection clause in the agreement signed by his wife, Joan Frank. The record reveals that the plaintiff consistently has maintained that George Frank consented to personal jurisdiction in California via the forum selection clause, even though he was not a signatory to the agreement.12 In support of this argument, the plaintiff always has emphasized George Frank\u2019s close involvement in the negotiation and execution of the agreement, pointing out that he signed addendum B and \u2018\u2018made specific, handwritten changes to the [agreement] in certain places, including to the forum selection clause, which . . . expressly included the selection of California for litigation arising under the [agreement], yet did not alter or delete his consent to California jurisdiction.\u2019\u201913 (Emphasis omitted.) The plaintiff\u2019s failure to cite the applicable, governing case law is not fatal to its claim because it is well established that \u2018\u2018[w]e may . . . review legal argu- ments that differ from those raised\u2019\u2019 by the parties \u2018\u2018if they are subsumed within or intertwined with argu- ments related to the legal claim before the court.\u2019\u201914 (Internal quotation marks omitted.) Jobe v. Commis- sioner of Correction, 334 Conn. 636, 644 n.2, 224 A.3d 147 (2020); see State v. Santiago, 318 Conn. 1, 124, 122 A.3d 1 (2015) (\u2018\u2018[W]e generally do not consider claims or issues that the parties themselves have not raised . . . [but] in cases too numerous to mention, we have considered arguments or factors pertaining to those claims or issues that were not expressly identified by the parties.\u2019\u2019 (Citation omitted; emphasis in original.)). This is because, \u2018\u2018when [a case] is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law . . . .\u2019\u2019 (Internal quota- tion marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 148, 84 A.3d 840 (2014); see In re David B., 167 Conn. App. 428, 448 n.10, 142 A.3d 1277 (2016) (\u2018\u2018[i]n resolving a claim raised by the parties, we are not required to constrain our analysis to the law relied on by the parties\u2019\u2019). Our independent power to identify and apply the proper construction of the governing law is particularly important in a case such as the present one, given our constitutional obligation to afford full faith and credit to the California judgment. See, e.g., State v. Santiago, supra, 124 (emphasizing importance of our power to identify and apply proper construction of governing law \u2018\u2018when plenary consideration is neces- sary to thoroughly address and accurately decide con- stitutional claims and other matters of substantial pub- lic importance\u2019\u2019). In light of the clear applicability of the closely related doctrine to the facts marshaled by the parties and found by the trial court,15 we affirm the trial court\u2019s judgment enforcing the California judgment against George Frank. II The defendants next claim that the agreement is unenforceable under the HSSA because it did not include a notice of their cancellation rights in accor- dance with General Statutes \u00a7 42-135a (2).16 The plaintiff responds that it was not required to provide a notice of cancellation rights because the agreement falls out- side the purview of the HSSA. Specifically, the plaintiff contends that the transaction at issue was not a \u2018\u2018home solicitation sale,\u2019\u2019 as defined by the HSSA, because it \u2018\u2018pertain[ed] to the sale or rental of real property\u2019\u2019 under \u00a7 42-134a (a) (5).17 The scope and meaning of the phrase \u2018\u2018home solicita- tion sale\u2019\u2019 in the HSSA presents a question of statutory construction, over which we exercise plenary review. See, e.g., Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 422, 941 A.2d 868 (2008). \u2018\u2018When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.\u2019\u2019 (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532 (2012). General Statutes \u00a7 1-2z guides this analysis and \u2018\u2018directs us first to consider the text of the statute itself and its relationship to other statutes.\u2019\u2019 (Internal quotation marks omitted.) Id. Section 42-135a provides in relevant part that \u2018\u2018[n]o agreement in a home solicitation sale shall be effective against the buyer\u2019\u2019 if the seller \u2018\u2018[f]ail[s] to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned \u2018NOTICE OF CANCELLATION\u2019, which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type\u2019\u2019 certain specified information regarding the buyer\u2019s right to cancel the transaction. General Stat- utes \u00a7 42-135a (2). A \u2018\u2018home solicitation sale\u2019\u2019 is defined in relevant part as \u2018\u2018a sale, lease, or rental of consumer goods or services, whether under single or multiple contracts, in which the seller or his representative per- sonally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer\u2019s agreement or offer to purchase is made at a place other than the place of business of the seller. . . .\u2019\u2019 General Statutes \u00a7 42-134a (a). \u2018\u2018The term \u2018home solicitation sale\u2019 does not include\u2019\u2019 various types of transactions, only one of which is pertinent to the present appeal, namely, transactions \u2018\u2018pertaining to the sale or rental of real property, to the sale of insurance, to the sale of newspa- pers or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission . . . .\u2019\u2019 (Emphasis added.) General Stat- utes \u00a7 42-134a (a) (5). The parties dispute whether their contractual agree- ment for the design, staging, and leasing of home goods and services \u2018\u2018pertain[ed] to the sale or rental of real property\u2019\u2019 under \u00a7 42-134a (a) (5). The defendants con- tend that this exception to the definition of a \u2018\u2018home solicitation sale\u2019\u2019 should be construed narrowly to apply only to contracts for the sale or rental of real property, rather than to goods or services used to facilitate the sale or rental of real property. The plaintiff responds that the defendants\u2019 proposed construction of the stat- ute ignores the expansive prefatory phrase \u2018\u2018pertaining to,\u2019\u2019 which, the plaintiff points out, Black\u2019s Law Diction- ary defines as \u2018\u2018 \u2018[t]o relate to; to concern.\u2019 \u2019\u2019 See Black\u2019s Law Dictionary (9th Ed. 2009) p. 1260 (defining \u2018\u2018per- tain\u2019\u2019). The plaintiff argues that the agreement plainly \u2018\u2018pertain[ed] to the sale . . . of real property\u2019\u2019 within the meaning of \u00a7 42-134a (a) (5) because the contractual language \u2018\u2018clearly and repeatedly states that the sole, whole and entire purpose of the contract was to facili- tate the sale of the property.\u2019\u2019 We begin our analysis with the dictionary definition of the phrase \u2018\u2018pertaining to.\u2019\u2019 See, e.g., Maturo v. State Employees Retirement Commission, 326 Conn. 160, 176, 162 A.3d 706 (2017) (\u2018\u2018[w]hen a term is not defined in a statute, we begin with the assumption that the legislature intended the word to carry its ordinary mean- ing, as evidenced in dictionaries in print at the time the statute was enacted\u2019\u2019). The word \u2018\u2018pertain\u2019\u2019 means \u2018\u2018[t]o have reference; relate\u2019\u2019 or \u2018\u2018[t]o belong as an adjunct or accessory . . . .\u2019\u2019 American Heritage Dictionary of the English Language (New College Ed. 1979) p. 979; see also Webster\u2019s Third New International Dictionary (1976) p. 1688 (defining \u2018\u2018pertain\u2019\u2019 as \u2018\u2018to belong to some- thing as a part or member or accessory or product\u2019\u2019). Thus, a transaction is one \u2018\u2018pertaining to\u2019\u2019 the sale or rental of real property if the transaction refers or relates to the sale or rental, or if the transaction is an adjunct or accessory to the sale or rental. Under the former definition, any transaction for goods or services that is associated with or connected to the sale or rental of real property is exempted from the HSSA, whereas, under the latter definition, any transaction for goods or services that facilitates or aids the convenience or effectiveness of the sale or rental would be exempt. See American Heritage Dictionary of the English Language, supra, p. 1097 (defining \u2018\u2018relate\u2019\u2019 as \u2018\u2018[t]o bring into logi- cal or natural association\u2019\u2019 and \u2018\u2018[t]o have connection, relation, or reference\u2019\u2019); Webster\u2019s Third New Interna- tional Dictionary, supra, p. 11 (defining \u2018\u2018accessory\u2019\u2019 as \u2018\u2018an object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else\u2019\u2019). The defendants contend that it would yield absurd and unworkable results to construe the real property exception to apply to all transactions for goods and services that relate to, or are an adjunct or accessory to, the sale or rental of real property and urge us to adopt a limiting principle to ensure that the exception does not operate beyond its intended scope.18 By way of example, the defendants point out that homeowners who purchase new windows from a door-to-door seller with the subjective purpose of making their home more attractive to potential buyers or renters, and thereby aiding or facilitating the sale or rental of the home, would not be afforded the consumer protections of the HSSA, whereas homeowners who purchase the same windows from the same seller for their own benefit (i.e., with no immediate intention of selling or renting the home) would receive the protections of the statu- tory scheme. The defendants argue that a limiting con- struction is necessary because such a random result would defeat the remedial purpose of the HSSA, con- trary to the intent of the legislature. The HSSA is a remedial statue that \u2018\u2018must be afforded a liberal construction in favor of those whom the legisla- ture intended to benefit.\u2019\u2019 Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 678, 657 A.2d 1087 (1995). As a corollary, we have recognized that exceptions to such statues \u2018\u2018should be construed narrowly.\u2019\u2019 Fairchild Heights, Inc. v. Dickal, 305 Conn. 488, 502, 45 A.3d 627 (2012). In construing the scope of the real property exception to the HSSA, we are mindful that we must intrepret the \u2018\u2018statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.\u2019\u2019 (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010). We agree with the defendants that it would defeat the remedial purpose of the HSSA if the consumer protections it provided were dependent on the subjective purpose for which a homeowner purchases consumer goods and services. See Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 785, 105 A.3d 103 (2014) (examining legisla- tive history, even though language of statute was \u2018\u2018plain and unambiguous,\u2019\u2019 because \u2018\u2018a literal application of the statutory language would lead to a bizarre result\u2019\u2019); Goldstar Medical Services, Inc. v. Dept. of Social Ser- vices, 288 Conn. 790, 803, 955 A.2d 15 (2008) (\u2018\u2018[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended\u2019\u2019 (internal quotation marks omit- ted)). We therefore turn to extratextual sources of legis- lative intent to aid our interpretation. See Tuxis Ohr\u2019s Fuel, Inc. v. Administrator, Unemployment Compen- sation Act, 309 Conn. 412, 422, 72 A.3d 13 (2013) (\u2018\u2018[w]hen a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [com- mon-law] principles governing the same general subject matter\u2019\u2019 (internal quotation marks omitted)). The real property exception to the definition of a \u2018\u2018home solicitation sale\u2019\u2019 was added to the HSSA in 1976 \u2018\u2018[i]n order to conform to\u2019\u2019 the regulations promulgated by the Federal Trade Commission (FTC). 19 S. Proc., Pt. 3, 1976 Sess., p. 1241, remarks of Senator Louis Ciccarello; see Public Acts 1976, No. 76-165, \u00a7 1; see also Federal Trade Commission, Cooling Off Period for Door-to-Door Sales, 35 Fed. Reg. 15,164 (September 29, 1970). The FTC rule, which was codified in 1974 at 16 C.F.R. \u00a7 429.0 et seq., was enacted to protect consumers from the deceptive sales practices and high-pressure tactics used by some door-to-door sellers of consumer goods and services. See Federal Trade Commission, Cooling-Off Period for Door-to-Door Sales, 37 Fed. Reg. 22,934, 22,937 (October 26, 1972). Under the FTC rule, like the HSSA, door-to-door sellers are required to fur- nish buyers, in a specified format, notice and explana- tion of their right to cancel the transaction within three business days. See 16 C.F.R. \u00a7 429.1 (b) (2020). The three day \u2018\u2018cooling-off period\u2019\u2019 provides \u2018\u2018the consumer with an opportunity to discuss his purchase with others, to reflect upon the provisions of the contract, and per- haps to do a little comparative shopping. This will give him some opportunity to discover misrepresentations made by the salesman, or to realize either that he is paying too high a price for the product or that he simply didn\u2019t know when he agreed to buy what he was being asked to pay.\u2019\u2019 Federal Trade Commission, supra, 37 Fed. Reg. 22,942. Similar to the HSSA, the FTC rule defines a \u2018\u2018door- to-door sale\u2019\u2019 in relevant part as \u2018\u2018[a] sale, lease, or rental of consumer goods or services in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer\u2019s agreement or offer to purchase is made at a place other than the place of business of the seller (e.g., sales at the buyer\u2019s residence or at facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fair- grounds and restaurants, or sales at the buyer\u2019s work- place or in dormitory lounges), and which has a pur- chase price of $25 or more if the sale is made at the buyer\u2019s residence or a purchase price of $130 or more if the sale is made at locations other than the buyer\u2019s residence, whether under single or multiple contracts. . . .\u2019\u2019 16 C.F.R. \u00a7 429.0 (a) (2020). \u2018\u2018The term door-to- door sale does not include a transaction . . . [p]er- taining to the sale or rental of real property, to the sale of insurance, or to the sale of securities or commod- ities by a broker-dealer registered with the Securities and Exchange Commission.\u2019\u2019 (Emphasis altered.) 16 C.F.R. \u00a7 429.0 (a) (6) (2020). The real property excep- tion added to the HSSA in 1976, in other words, uses the exact words contained in the real property exception contained in the FTC rule promulgated in 1974. The real property exception was adopted by the FTC to alleviate concerns expressed by the National Associa- tion of Real Estate Boards. See Federal Trade Commis- sion, supra, 37 Fed. Reg. 22,948 and n.132. The FTC explained that, \u2018\u2018[i]nsofar as the sale of real estate itself is concerned, neither the [FTC] nor members of the real estate sales industry believe that such sales would be subject to the rule as land would not fall within the scope of the definition of consumer goods or services. However, transactions in which a consumer engaged a real estate broker to sell his home or to rent and manage his residence during a temporary period of absence may fall within the class of transactions to which the rule would apply.\u2019\u2019 Id., 22,948. In light of this concern, the FTC explicitly excluded transactions \u2018\u2018pertaining to the sale or rental of real property\u2019\u2019 from the definition of a \u2018\u2018door-to-door sale . . . .\u2019\u2019 (Internal quotation marks omitted.) Id., 22,948\u201349. In doing so, the FTC \u2018\u2018empha- sized that it is not intended to apply to the sale of goods or services such as siding, home improvements, and driveway and roof repairs.\u2019\u2019 Id., 22,949. It is clear that the real property exception to the FTC rule and analogous state statutes adopted in conformity therewith do not encompass routine transactions for home improvement goods and services, regardless of the purpose for which these goods and services are purchased.19 See, e.g., Crystal v. West & Callahan, Inc., 328 Md. 318, 333, 614 A.2d 560 (1992) (holding that \u2018\u2018home improvement transactions are not excluded from the Maryland Door-to-Door Sales Act\u2019\u2019 because \u2018\u2018the General Assembly necessarily intended the exemp- tion for real estate to be construed in the same manner as the comparable federal language is construed\u2019\u2019). It is less clear, however, whether the real property excep- tion excludes from the scope of the statute the purchase of goods and services that are inextricably related to, or an integral adjunct or accessory to, the sale or rental of real property, such as the engagement of a real estate broker. Stated another way, the FTC commentary fails to explain whether the real property exception was intended simply to codify the understanding that real property transactions are not goods and services under the rule, or whether it was intended to go farther and also exclude from the scope of the rule transactions for some goods and services that pertain to the sale or rental of real property. There is a dearth of case law and scholarly commen- tary to aid us in answering this question, but what little authority exists indicates that the real property excep- tion is not limited to transactions for the sale or rental of real estate per se but, instead, encompasses a narrow category of transactions involving goods and services that relate to the sale or rental of real property. See, e.g., Busch v. Model Corp., 708 N.W.2d 546, 551 (Minn. App. 2006) (holding \u2018\u2018that the [contract for the] con- struction . . . of a new permanent garage . . . [fell] within the \u2018sales of real property\u2019 exception to the home solicitation sale statute\u2019\u2019 and that \u2018\u2018[the] respondent [therefore] was not required to comply with the home solicitation statute\u2019s notification requirements\u2019\u2019); Doyle v. Chihoski, 443 A.2d 1243, 1244 (R.I. 1982) (real prop- erty exception to staturory definition of \u2018\u2018home-solicita- tion sale\u2019\u2019 exempts from Home Solicitation Sales Act \u2018\u2018any agreement calling for the payment of a commission to a real estate broker who produces the requisite ready, willing, and able buyer\u2019\u2019); McDaniel v. Pettigrew, 536 S.W.2d 611, 615 (Tex. Civ. App. 1976, writ ref\u2019d n.r.e.) (rejecting claim that contract for sale of unimproved lot and new home construction \u2018\u2018was not a realty con- tract but an agreement for services to be performed\u2019\u2019 under real property exception because \u2018\u2018the parties intended that the house to be built [on] the lot was to become a part of the realty\u2019\u2019). See generally D. Pridgen et al., and the Law (April, 2021) \u00a7 14:14 (noting that real property exceptions to state cooling off statutes are \u2018\u2018quite specific\u2019\u2019 but encompass some goods and services). Consistent with these authorities, we are persuaded that the real property exception to the definition of a \u2018\u2018home solicitation sale\u2019\u2019 in \u00a7 42-134a (a) (5) is not strictly limited to the sale or rental of real property.20 First, a \u2018\u2018home solicitation sale\u2019\u2019 under the HSSA, which is the equivalent of a \u2018\u2018door-to-door sale\u2019\u2019 under the FTC rule, is limited to the \u2018\u2018sale, lease, or rental of consumer goods or services . . . .\u2019\u2019 (Emphasis added.) General Statutes \u00a7 42-134a (a); accord 16 C.F.R. \u00a7 429.0 (a) (2020). Thus, the real property exception, by defini- tion, must apply to \u2018\u2018consumer goods or services.\u2019\u2019 See General Statutes \u00a7 42-134a (b) (\u2018\u2018 \u2018[c]onsumer goods or services\u2019 means goods or services purchased, leased, or rented primarily for personal, family, or household purposes, including courses of instruction or training regardless of the purpose for which they are taken\u2019\u2019); see also 16 C.F.R. \u00a7 429.0 (b) (2020) (defining \u2018\u2018con- sumer goods or services\u2019\u2019 as \u2018\u2018[g]oods or services pur- chased, leased, or rented primarily for personal, family, or household purposes, including courses of instruction or training regardless of the purpose for which they are taken\u2019\u2019). If the real property exception was intended simply to codify the prevalent understanding that the sale or rental of real property does not \u2018\u2018fall within the scope of the definition of consumer goods or services\u2019\u2019; Federal Trade Commission, supra, 37 Fed. Reg. 22,948; then the exemption would have been included in the definition of \u2018\u2018consumer goods or services,\u2019\u2019 rather than the definition of a \u2018\u2018door-to-door sale\u2019\u2019 under the FTC rule or a \u2018\u2018home solicitation sale\u2019\u2019 under the HSSA. Second, as we previously explained, the plain lan- guage of the real property exception is not limited to transactions for the sale or rental of real property. Instead, the exception extends to transactions \u2018\u2018per- taining to the sale or rental of real property . . . .\u2019\u2019 (Emphasis added.) General Statutes \u00a7 42-134a (a) (5); see also 16 C.F.R. \u00a7 429.0 (a) (2020). It is axiomatic that \u2018\u2018[e]ach word used by the legislature should be given effect and, as far as possible, the entire enactment is to be harmonized. . . . Words and and phrases of a statute are to be construed according to the commonly approved usage of the language.\u2019\u2019 (Citations omitted; internal quotation marks omitted.) Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). Construing the language of the statute in conformance with the FTC rule, as the legislature intended, and consistent with the remedial purpose of the HSSA, we conclude that a transaction is one \u2018\u2018pertaining to the sale or rental of real property\u2019\u2019 if it is inextricably related to, or an integral adjunct or accessory to, the sale or rental. Accordingly, the sale, lease, or rental of such consumers goods or services are excluded from the definition of a \u2018\u2018home solicitation sale\u2019\u2019 under \u00a7 42-134a (a) (5).21 Having determined that a limited category of con- sumer goods and services may be excluded from the HSSA under the real property exception, we next con- sider whether the agreement at issue in the present case was inexctricably related to, or an integral adjunct or accessory to, the sale of the defendants\u2019 residence at 3 Cooper Lane. We begin and end our analysis with the language of the agreement, which definitively settles the question. The agreement provides that \u2018\u2018[i]t is under- stood that 3 Cooper Lane . . . is for sale and that Joan E. Frank . . . has entered into this agreement with [the plaintiff] to stage the [p]roperty for the purpose of sell- ing the [p]roperty.\u2019\u2019 The initial term of the lease was for four months or \u2018\u2018until the buyer\u2019s contingencies are either satisfied or waived with respect to the purchase of the [p]roperty, whichever comes first. If, after the expiration of the four . . . months, [t]he [p]roperty is not in escrow, the lease shall continue on a month to month basis provided that either party may terminate upon [fifteen] business day prior written notice . . . .\u2019\u2019 Joan Frank was required to \u2018\u2018inform [the plaintiff] when the [p]roperty goes into escrow, the date the contingen- cies are expected to be satisfied, and the date escrow is expected to close. [The plaintiff] may remove the [i]nventory once all of the buyer\u2019s contingencies have been met, expired or have been waived,\u2019\u2019 or \u2018\u2018[i]f the [p]roperty is not listed on the [multiple listing services] within [sixty] days of the completion of staging . . . .\u2019\u2019 Joan Frank was further required to \u2018\u2018notify the prospec- tive buyer of the [p]roperty that the [i]nventory is the subject of th[e] [a]greement and that [the plaintiff] has the absolute right hereunder to remove the [i]nventory from the [p]roperty before the close of escrow. [Joan Frank] shall provide [the plaintiff] with at least [ten] business days prior written notice . . . of the antici- pated date of the close of escrow or other sale or trans- fer of the [p]roperty. . . . [The plaintiff] shall have not less than [three] business days (following the expiration of the time period pursuant to the [n]otice of [c]losing [d]ate or the [n]otice of [t]ermination) within which to complete its removal of all [i]nventory . . . .\u2019\u2019 The sale of the defendants\u2019 residence was the stated purpose of the agreement, defined the duration of the agreement, and delimited its various terms. Under the agreement, for example, the plaintiff could remove the home furnishings and de\u0301cor if the defendants\u2019 residence was not listed for sale within a prescribed period of time or if, after listing, a buyer had been found and the buyer\u2019s contingencies had been met, expired, or waived. Additionally, the initial lease term was delineated by the procurement of a buyer for the residence and auto- matically continued on a monthly basis, so long as the defendants\u2019 residence was not in escrow or the lease was not terminated. Given that the terms of the agree- ment were intertwined with the sale of the property, we conclude that the agreement was inextricably related to, or an integral adjunct or accessory to, the sale of the defendants\u2019 residence and, therefore, excluded from the definition of a \u2018\u2018home solicitation sale\u2019\u2019 pursuant to \u00a7 42-134a (a) (5). Accordingly, the trial court correctly determined that the agreement was not subject to the notice of cancellation provisions in the HSSA. III Lastly, we address the defendants\u2019 claim that the trial court\u2019s award of damages was improper. The defen- dants contend that the trial court awarded the plaintiff \u2018\u2018double damages\u2019\u2019 by rendering judgment against both George Frank and Joan Frank for the same loss and incorrectly calculated the amount of damages for which Joan Frank was liable on the breach of contract count by including the conversion value of the home furnish- ings and de\u0301cor. The plaintiff acknowledges that it \u2018\u2018may collect only once for the same injury\u2019\u2019 but argues that the trial court \u2018\u2018properly awarded the appropriate amount as to each count representing recovery for each wrong complained of.\u2019\u2019 The plaintiff further argues that the trial court properly included the value of the home furnishings and de\u0301cor in its award of damages on the breach of contract count because Joan Frank\u2019s wrong- ful conduct resulted \u2018\u2018in the total loss of that inventory to the plaintiff.\u2019\u2019 We begin our analysis with the defendants\u2019 double recovery claim. \u2018\u2018Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint [or suc- cessive] tortfeasors.\u2019\u2019 (Footnote omitted; internal quota- tion marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 111\u201312, 952 A.2d 1 (2008). \u2018\u2018This rule is based on the sound policy that seeks to ensure that parties will recover for their damages.\u2019\u2019 Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989). \u2018\u2018The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. . . . Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.\u2019\u2019 (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 71\u201372; see Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 29 n.14, 699 A.2d 964 (1997) (\u2018\u2018the principle against double recovery for the same loss applies in both tort and contract law\u2019\u2019); 2 Restatement (Second), Judgments \u00a7 49, comment (b), p. 36 (1982) (\u2018\u2018[a] judgment against one obligor under a contract does not terminate the claim against another obligor under the contract\u2019\u2019). In general, a loss is satisfied when a judgment of economic damages rendered in favor of the plaintiff in compensa- tion for the loss has been paid in full. See Gionfriddo v. Gartenhaus Cafe, supra, 69, 75\u201376 (plaintiff was pre- cluded from suing joint tortfeasor for wrongful death of decedent under double recovery doctrine because \u2018\u2018the plaintiff received compensatory, exemplary and treble damages in the amount of $1,187,763\u2019\u2019 for his loss in prior action, which \u2018\u2018the defendants . . . satisfied . . . in full\u2019\u2019); see also Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 807, 695 A.2d 1010 (1997) (\u2018\u2018The satisfac- tion of a judgment refers to compliance with or fulfill- ment of the mandate thereof. . . . There is realistically no substantial difference between the words paid and satisfied in the judgment context.\u2019\u2019 (Citation omitted; internal quotation marks omitted.)). The trial court\u2019s judgment on count one of the com- plaint against George Frank and count two of the com- plaint against Joan Frank awarded money damages in different amounts for the same underlying loss. George Frank is personally liable for the damages awarded on count one; Joan Frank is personally liable for the damages awarded on count two.22 Any payments made by George Frank in satisfaction of the judgment against him reduces the amount owed by Joan Frank, and any payments made by Joan Frank in satisfaction of the judgment against her reduces the amount owed by George Frank. See Gionfriddo v. Gartenhaus Cafe, supra, 211 Conn. 72 n.5 (\u2018\u2018 \u2018When a judgment has been rendered against one of several persons each of whom is liable for a loss claimed in the action on which the judgment is based . . . [a]ny consideration received by the judgment creditor in payment of the judgment debtor\u2019s obligation discharges, to the extent of the amount of value received, the liability to the judgment creditor of all other persons liable for the loss.\u2019 Thus, \u2018[a] payment by one person liable for a loss reduces pro tanto the amount that the injured person is entitled to receive from other persons liable for the loss.\u2019 \u2019\u2019), quoting 2 Restatement (Second), supra, \u00a7 50 and com- ment (c), pp. 40\u201342. It is undisputed that the plaintiff\u2019s loss was wholly unsatisfied when the trial court rendered judgment in favor of the plaintiff on counts one (enforcement of the California judgment against George Frank) and two (breach of contract against Joan Frank). Although the plaintiff may recover only once for its loss, the trial court was \u2018\u2018not foreclosed\u2019\u2019 from rendering judgment in favor of the plaintiff against both defendants \u2018\u2018jointly or separately, for injuries for which each is liable . . . to ensure that [the plaintiff] will recover for [its] dam- ages.\u2019\u2019 (Ciations omitted; emphasis added; footnotes omitted.) Gionfriddo v. Gartenhaus Cafe, supra, 211 Conn. 71. We therefore reject the defendants\u2019 double recovery claim. Lastly, the defendants contend that the amount of damages awarded to the plaintiff on its breach of con- tract claim against Joan Frank was incorrect because it included the value of the home furnishings and de\u0301cor installed at 3 Cooper Lane. The following additional facts are relevant to this claim. The agreement provided that, at the conclusion of the lease term for the rental of the home furnishings and de\u0301cor, the plaintiff \u2018\u2018shall have not less than [three] business days . . . within which to complete its removal of all [i]nventory, with [Joan Frank\u2019s] permission, which will not be unreason- ably withheld.\u2019\u2019 (Emphasis in original.) Furthermore, the agreement required Joan Frank to acquire, prior to installation of the home furnishings and de\u0301cor, a $200,000 \u2018\u2018insurance policy insuring the value of the [i]nventory and a [g]eneral [l]iability policy of insur- ance, each naming [the plaintiff] as an additional insured.\u2019\u2019 Following installation, the plaintiff was required to provide Joan Frank \u2018\u2018with a list of the [i]nventory and values. If [i]nventory is damaged, lost, stolen or destroyed, [Joan Frank] will immediately notify [the plaintiff] in writing, and file all necessary reports, including those required by [the] insurer or by law. . . . [Joan Frank] shall be primarily liable to [the plaintiff] for any loss or liability related to the [i]mprove- ments and shall pay to [the plaintiff] any \u2018[s]tipulated [l]oss [v]alue\u2019 or other damages not covered by insur- ance.\u2019\u2019 At trial, the plaintiff admitted into evidence a list of the home furnishings and de\u0301cor installed at 3 Cooper Lane pursuant to the parties\u2019 agreement, as well as documentation of their value and photographs depicting their quality and appearance after installation. On the basis of this evidence, the trial court found that the home furnishings and de\u0301cor were \u2018\u2018appropriate\u2019\u2019 for the defendants\u2019 \u2018\u2018luxury home in an affluent community . . . .\u2019\u2019 The trial court also found \u2018\u2018credible the plaintiff\u2019s uncontested evidence [namely] the schedule of values of the inventory based on standard industry pricing for used furniture of the quality provided to the defendants. The plaintiff has lost the use of the inventory, and, moreover, the defendants have been wrongfully using the furniture in their personal residence for approxi- mately three years. The inventory was . . . supposed to be there [only] for a period of months. Consequently, the plaintiff had to replace the inventory. The essence of the staging agreement was to give the defendants\u2019 residence a showroom quality appearance, and, as noted, the inventory is reflective of that quality. There- fore, the court awards damages related to the inventory loss for the plaintiff and against Joan Frank on the first count in the amount of $235,598. Additionally, the evidence establishes that Joan Frank is responsible to the plaintiff for the rental loss and related late fees in the amount of $47,508.45. In view of the foregoing, the court awards damages on the second count for the plaintiff and against . . . Joan Frank . . . in the amount of $283,106.45.\u2019\u2019 It is well established that \u2018\u2018[t]he trial court has broad discretion in determining damages. . . . The determi- nation of damages involves a question of fact that will not be overturned unless it is clearly erroneous.\u2019\u2019 (Cita- tions omitted; internal quotation marks omitted.) Bev- erly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998). \u2018\u2018In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable con- struction in support of the verdict to which it is entitled. . . . A factual finding may be rejected by this court only if it is clearly erroneous. . . . A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We are, therefore, constrained to accord substantial deference to the fact finder on the issue of damages. In deciding whether damages properly have been awarded, however, we are guided by the well established principle that such damages must be proved with reasonable certainty.\u2019\u2019 (Citation omitted; internal quotation marks omitted.) Id., 68\u201369. \u2018\u2018The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. . . . It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be consid- ered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.\u2019\u2019 (Internal quotation marks omitted.) Torosyan v. Boeh- ringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995). Thus, in a breach of contract action, the plaintiff\u2019s damages are limited to those that \u2018\u2018the defendant had reason to foresee as the probable result of the breach at the time when the contract was made.\u2019\u2019 Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 689 n.3, 508 A.2d 438 (1986); see also 3 Restatement (Second), Contracts \u00a7 351 (1) and (2), p. 135 (1981) (\u2018\u2018Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made. . . . Loss may be foreseeable as a probable result of a breach because it follows from the breach . . . in the ordinary course of events . . . .\u2019\u2019). \u2018\u2018[T]he question whether a particular element of loss was rea- sonably foreseeable is a question of fact . . . .\u2019\u2019 (Inter- nal quotation marks omitted.) Ambrogio v. Beaver Road Associates, 267 Conn. 148, 162, 836 A.2d 1183 (2003). We conclude that the trial court\u2019s award of damages for the plaintiff\u2019s loss of the home furnishings and de\u0301cor was not clearly erroneous.23 The agreement required Joan Frank to permit the plaintiff to remove the home furnishings and de\u0301cor at the conclusion of the lease term, to insure them for $200,000, and to pay the plaintiff \u2018\u2018damages not covered by insurance\u2019\u2019 if they were \u2018\u2018dam- aged, lost, stolen or destroyed . . . .\u2019\u2019 The trial court found that Joan Frank breached the agreement and \u2018\u2018wrongfully us[ed] the furniture in [the defendants\u2019] personal residence for approximately three years,\u2019\u2019 thus causing the plaintiff\u2019s total loss of the inventory valued at $235,598. In light of these facts, which the defendants do not challenge on appeal, we perceive no error in the trial court\u2019s finding that the plaintiff\u2019s loss of the home furnishings and de\u0301cor was a reasonably foreseeable consequence of Joan Frank\u2019s breach of the agreement. We therefore uphold the trial court\u2019s award of damages in favor of the plaintiff. The judgment is affirmed. In this opinion ROBINSON, C. J., and McDONALD and KAHN, Js., concurred. * September 22, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. The trial court determined that there was no need to adjudicate the quantum meruit claim against Joan Frank after finding her liable for breach of contract. The plaintiff subsequently withdrew the breach of contract and quantum meruit claims against George Frank. Addendum B is a preprinted form that, in its original format, provided in relevant part: \u2018\u2018I authorize [the plaintiff] to charge my credit card for any due amount resulting from this staging/design agreement. I agree by signing below to personally guarantee to [the plaintiff], any obligations that may become due. \u2018\u2018Upon acceptance of this application, the client agrees to the payment terms stated by the creditor, [the plaintiff]. A 10 [percent] finance charge will apply on any open balances beyond terms. I understand that I am fully responsible for all balances on my account, and I am liable for additional charges that may be incurred by [the plaintiff] as a result of collection and/ or legal proceedings. . . .\u2019\u2019 George Frank crossed out the term \u2018\u2018any\u2019\u2019 in the first sentence and inserted the sum of \u2018\u201819,000\u2019\u2019 in its place. George Frank also crossed out the phrase, \u2018\u2018any obligations that may become due,\u2019\u2019 in the second sentence. Finally, the last sentence of the second paragraph is crossed out entirely. Sometime during the pendency of the present appeal, the defendants sold their residence at 3 Cooper Lane. See Meribear Productions, Inc. v. Frank, 165 Conn. App. 305, 309, 140 A.3d 993 (2016), rev\u2019d, 328 Conn. 709, 183 A.3d 1164 (2018). The plaintiff\u2019s counsel stated at oral argument before the Appellate Court that the current whereabouts of the home furnishings and de\u0301cor are unknown. See id. The plaintiff \u2018\u2018attempted constructive service on the defendants\u2019\u2019 at the office of LCP Homes, Inc., \u2018\u2018located at 1175 Post Road East in Westport.\u2019\u2019 LCP Homes, Inc., \u2018\u2018is a corporation owned by George Frank, and in which he and Joan Frank are corporate officers.\u2019\u2019 The trial court determined that service of process on Joan Frank was insufficient under \u00a7 415.20 (b) of the California Code of Civil Procedure because \u2018\u2018Joan Frank is not an owner or operator of the company, and, moreover, there is no evidence that she was ever present at the office.\u2019\u2019 See Cal. Civ. Proc. Code \u00a7 415.20 (b) (Deering Supp. 2020) (providing that, in lieu of personal service, \u2018\u2018a summons may be served by leaving a copy of the summons and complaint at the person\u2019s . . . usual place of business\u2019\u2019). With respect to George Frank, the trial court found that substituted service of process was sufficient on the ground that \u2018\u2018he is an owner of LCP Homes [Inc.] and Andy Frank Builders, which shared the [office at] 1175 Post Road East,\u2019\u2019 and \u2018\u2018he had a presence at the office at the time of service . . . .\u2019\u2019 We granted the defendants\u2019 petition for certification to appeal, limited to the following issues: \u2018\u2018Did the Appellate Court correctly determine that the trial court properly determined that: (1) the foreign judgment against [George Frank] was enforceable after concluding that he had minimum contacts with California that warranted the exercise of its jurisdiction; (2) the contract signed by [Joan Frank] was enforceable notwithstanding the provisions of the [HSSA]; and (3) an award of double damages to the plaintiff was appropriate.\u2019\u2019 Meribear Productions, Inc. v. Frank, 322 Conn. 903, 138 A.3d 288 (2016). On remand, the plaintiff moved for an award of postjudgment interest pursuant to General Statutes \u00a7 37-3a (a) on the breach of contract claim against Joan Frank. The trial court concluded that the plaintiff was entitled to postjudgment interest in the amount of \u2018\u20185 percent per annum from the date of the final judgment until the date the judgment is paid\u2019\u2019 because Joan Frank had \u2018\u2018deprived [the plaintiff] of the use of its money and furniture\u2019\u2019 since 2011. The full faith and credit clause of the United States constitution provides in relevant part that \u2018\u2018Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State. . . .\u2019\u2019 U.S. Const., art. IV, \u00a7 1. Of course, the due process clause sets the outer limits of a state court\u2019s exercise of personal jurisdiction. See, e.g., Goodyear Dunlop Tires Opera- tions, S.A. v. Brown, 564 U.S. 915, 923, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011) (\u2018\u2018[t]he [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment sets the outer boundaries of a state tribunal\u2019s authority\u2019\u2019 to exercise personal jurisdiction over defendant); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (\u2018\u2018[a] judgment rendered in violation of due process is void in the rendering [s]tate and is not entitled to full faith and credit elsewhere\u2019\u2019). Consistent with the requirements of the full faith and credit clause, however, we first must determine whether the exercise of jurisdiction comports with the applicable law of the foreign state. Under some circumstances\u2014including the present case, as we shall see\u2014we need go no further than an examination of state law because, if jurisdiction is established under state law, then the due process clause is satisfied. The concurring and dissenting opinion presumes that, by resting our jurisdictional holding on the closely related doctrine, we implicitly have concluded that George Frank lacks minimum contacts with California. That presumption is incorrect. The plaintiff\u2019s primary argument throughout this litigation has been that George Frank consented to personal jurisdiction in California. The closely related doctrine on which we base our holding falls within \u2018\u2018one of four traditional bases for the exercise of personal jurisdiction over a nonresident defendant\u2019\u2019 in California, namely, consent, which is \u2018\u2018sepa- rate from the \u2018minimum contacts\u2019 analysis.\u2019\u2019 Nobel Farms, Inc. v. Pasero, 106 Cal. App. 4th 654, 658, 130 Cal. Rptr. 2d 881 (2003). Because consent is an alternative basis for personal jurisdiction, we need not conduct a minimum contacts analysis, and we express no opinion on the merits of the parties\u2019 minimum contacts arguments. To the extent the defendants contend that the forum selection clause is unenforceable under the HSSA because the plaintiff failed to provide them with notice of their cancellation rights as required by \u00a7 42-135a (2), we reject this claim for the reasons explained in part II of this opinion. In the context of parent-subsidiary corporate relationships, courts also consider \u2018\u2018the [nonsignatory\u2019s] ownership of the signatory . . . .\u2019\u2019 Carlyle Investment Management, LLC v. Moonmouth Co. SA, supra, 779 F.3d 219. Indeed, the plaintiff\u2019s primary argument on appeal is that \u2018\u2018George Frank expressly consented to the jurisdiction of the California courts by knowingly signing a contract that contained a forum selection clause, thereby making the California judgment fully enforceable against him in [Connecticut].\u2019\u2019 Although the concurring and dissenting opinion correctly observes that \u2018\u2018George Frank has consistently argued that he lacked sufficient minimum contacts with California,\u2019\u2019 the plaintiff also consistently has argued that George Frank consented to personal jurisdiction in California by virtue of his involvement in the negotiation and execution of the agreement and addendum B. Although the plaintiff did not file notice of its intention to raise George Frank\u2019s consent to jurisdiction in California as an alternative ground on which to affirm the judgment of the trial court pursuant to Practice Book \u00a7 63-4 (a) (1), this procedural irregularity does not preclude our review of the plaintiff\u2019s claim. See, e.g., Gerardi v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010) (reviewing alternative ground for affirmance, even though defendants did not file notice under \u00a7 63-4 (a) (1), because there was no prejudice to the plaintiffs given that \u2018\u2018the defendants . . . raised the claim in their briefs . . . and the plaintiffs had an adequate opportunity to respond, and did so, in their reply briefs\u2019\u2019). The concurring and dissenting opinion is concerned that \u2018\u2018we might be going beyond the confines of our adversarial system in our discovery of an additional doctrine that supports the plaintiff . . . .\u2019\u2019 As a general admoni- tion, the concern is valid. The issue arises because we will occasionally rest our decision on a legal doctrine or theory that is not identical to the one argued and briefed by the parties. We agree with the concurring and dis- senting opinion that, ordinarily, we must desist from deciding cases on grounds that the parties have not raised. In our view, however, the distinction in our case law between claims and arguments, as outlined in the text accompanying this footnote, accurately and adequately delineates the \u2018\u2018limits of th[e] latitude\u2019\u2019 that govern our appellate review. For the reasons set forth herein, we are confident that we have not exceeded those limits under the circumstances of this case. We do not share the concern of the concurring and dissenting opinion regarding the factual findings of the trial court. The trial court expressly found that both of the defendants resided at 3 Cooper Lane and \u2018\u2018have been wrongfully using the furniture in their personal residence for . . . years.\u2019\u2019 There is no question that George Frank received a direct benefit under the agreement. General Statutes \u00a7 42-135a provides: \u2018\u2018No agreement in a home solicita- tion sale shall be effective against the buyer if it is not signed and dated by the buyer or if the seller shall: \u2018\u2018(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form: \u2018\u2018YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLA- TION FORM FOR AN EXPLANATION OF THIS RIGHT. \u2018\u2018(2) Fail to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned \u2018NOTICE OF CANCELLATION\u2019, which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract: \u2018\u2018NOTICE OF CANCELLATION \u2018\u2018. . . . (Date of Transaction) \u2018\u2018YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE. \u2018\u2018IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CAN- CELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED. \u2018\u2018IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUC- TIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER\u2019S EXPENSE AND RISK. \u2018\u2018IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT. \u2018\u2018TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRIT- TEN NOTICE, OR SEND A TELEGRAM TO . . . . (Name of Seller) AT . . . . (Address of Seller\u2019s Place of Business) NOT LATER THAN MIDNIGHT OF . . . . (Date) \u2018\u2018I HEREBY CANCEL THIS TRANSACTION. \u2018\u2018. . . . (Date) \u2018\u2018. . . . (Buyer\u2019s Signature) \u2018\u2018(3) Fail, before furnishing copies of the \u2018Notice of Cancellation\u2019 to the buyer, to complete both copies by entering the name of the seller, the address of the seller\u2019s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation. \u2018\u2018(4) Include in any home solicitation sale contract or receipt any confes- sion of judgment or any waiver of any of the rights to which the buyer is entitled under this chapter, including specifically such buyer\u2019s right to cancel the sale in accordance with the provisions of this section. \u2018\u2018(5) Fail to inform each buyer, orally, at the time such buyer signs the contract or purchases the goods or services, of such buyer\u2019s right to cancel. \u2018\u2018(6) Misrepresent in any manner the buyer\u2019s right to cancel. \u2018\u2018(7) Fail or refuse to honor any valid notice of cancellation by a buyer and within ten business days after the receipt of such notice, to (A) refund all payments made under the contract or sale; (B) return any goods or property traded in, in substantially as good condition as when received by the seller; (C) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction; and (D) cancel and return any contract executed by the buyer in connection with the transaction. \u2018\u2018(8) Negotiate, transfer, sell, or assign any note or other evidence of indebtedness to a finance company or other third party prior to midnight of the fifth business day following the date the contract was signed or the goods or services purchased. \u2018\u2018(9) Fail, within ten business days of receipt of the buyer\u2019s notice of cancellation, to notify such buyer whether the seller intends to repossess or to abandon any shipped or delivered goods.\u2019\u2019 General Statutes \u00a7 42-134a (a) provides in relevant part that \u2018\u2018 \u2018[h]ome solicitation sale\u2019 means a sale, lease, or rental of consumer goods or services, whether under single or multiple contracts, in which the seller or his repre- sentative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer\u2019s agreement or offer to purchase is made at a place other than the place of business of the seller. The term \u2018home solicitation sale\u2019 does not include a transaction . . . (5) pertaining to the sale or rental of real property, to the sale of insurance, to the sale of newspapers or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission . . . .\u2019\u2019 In the words of Justice Antonin Scalia, applying the phrase \u2018\u2018 \u2018relate[s] to\u2019 . . . according to its terms [is] a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to every- thing else.\u2019\u2019 California Division of Labor Standards Enforcement v. Dillin- gham Construction, N.A., Inc., 519 U.S. 316, 335, 117 S. Ct. 832, 136 L. Ed. 2d 791 (1997) (Scalia, J., concurring). Accordingly, when the application requires as a practical matter that some limitation be used to cabin such an unbounded phrase, the underlying doctrinal purpose or legislative inten- tion will set those boundaries. See Ford Motor Co. v. Montana Eighth Judicial District Court, U.S. , 141 S. Ct. 1017, 1033, 209 L. Ed. 2d 225 (2021) (Alito, J., concurring in the judgment) (\u2018\u2018[t]o rein in th[e] phrase [\u2018relate to\u2019], limits must be found\u2019\u2019). We note that, under the Home Improvement Act (HIA), General Statutes \u00a7 20-418 et seq., home improvement contracts \u2018\u2018shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the require- ments of said chapter regardless of the location of the transaction or of the signing of the contract.\u2019\u2019 General Statutes \u00a7 20-429 (e). Thus, home improvement contractors must provide purchasers with notice of their can- cellation rights. See generally Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998) (\u2018\u2018The HIA is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. . . .The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services.\u2019\u2019 (Citation omitted.)). The defendants argue that the real property exception to the HSSA should be construed narrowly consistent with the statute of frauds, which does not apply to listing agreements or broker contracts. See, e.g., Location Realty, Inc. v. Colaccino, 287 Conn. 706, 722, 949 A.2d 1189 (2008) (broker \u2018\u2018listing agreements are governed exclusively by [General Statutes] \u00a7 20-325a [and] such contracts do not fall within our statute of frauds\u2019\u2019 (internal quotation marks omitted)); Brazo v. Real Estate Commission, 177 Conn. 515, 522, 418 A.2d 883 (1979) (\u2018\u2018in this state, a contract employing a broker to sell land is not within the [s]tatute of [f]rauds\u2019\u2019). The language and purpose of the HSSA is fundamentally different from that of the statute of frauds, however, and the defendants\u2019 reliance on our case law construing the statute of frauds is therefore misplaced. Compare General Statutes \u00a7 52-550 (a) (\u2018\u2018[n]o civil action may be maintained in the following cases unless the agreement . . . is made in writing and signed by the party . . . to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property\u2019\u2019), with General Statutes \u00a7 42-134a (a) (5) (\u2018\u2018[t]he term \u2018home solicitation sale\u2019 does not include a transaction . . . pertaining to the sale or rental of real property\u2019\u2019); see also Heyman v. CBS, Inc., 178 Conn. 215, 221, 423 A.2d 887 (1979) (\u2018\u2018the primary purpose of the statute [of frauds] is to provide reliable evidence of the existence and the terms of the contract\u2019\u2019). In arriving at this conclusion, we recognize that, in 2013, the FTC clarified the scope of the real property exception as applied to mortgage assistance relief services. See Federal Trade Commission, Rule Concerning Cooling- Off Period for Sales Made at Homes or at Certain Other Locations, 78 Fed. Reg. 3855, 3857 (January 17, 2013). The FTC determined that the real property exception did not apply \u2018\u2018to services related to real property, such as mort- gage modification, mortgage loan brokerage, and foreclosure rescue ser- vices\u2019\u2019 because, \u2018\u2018[a]s determined by the [FTC] when it promulgated the [cooling-off] [r]ule, this exclusion, which renders the [r]ule inapplicable to the sale of real estate, does not necessarily reach so far as to exempt service- related transactions in which a consumer engages a real estate broker to sell his or her home or to rent and manage his or her residence during a temporary period of absence. Similarly, the exclusion does not necessarily reach so far as to exempt the . . . mortgage assistance relief services . . . .\u2019\u2019 (Footnote omitted.) Id., 3857 and n.24, citing Federal Trade Commis- sion, supra, 37 Fed. Reg. 22,948. In the view of the FTC, \u2018\u2018the [c]ooling-[o]ff [r]ule\u2019s right to cancel should extend to door-to-door sales of [mortgage assistance relief services]\u2019\u2019 because sellers \u2018\u2018direct their claims to financially distressed consumers who often are desperate for any solution to their mortgage problems and thus are vulnerable to the providers\u2019 purported solutions.\u2019\u2019 Federal Trade Commission, supra, 78 Fed. Reg. 3857. These concerns are \u2018\u2018exacerbated in situations in which sellers exercise undue influence over susceptible classes of purchasers\u2019\u2019 in the context of door-to- door sales. Id. The FTC\u2019s 2013 statement does not undermine our conclusion that the real property exception in the HSSA encompasses a limited category of consumer goods or services. The 2013 statement was released more than thirty years after the promulgation of the FTC\u2019s cooling-off rule and, there- fore, is \u2018\u2018a hazardous basis for inferring the intent of [the] earlier\u2019\u2019 FTC. (Internal quotation marks omitted.) State v. Nixon, 231 Conn. 545, 560, 651 A.2d 1264 (1995); see also 2A N. Singer & S. Singer, Statutes and Statutory Construction (7th Ed. 2014) \u00a7 48:20, p. 641 (\u2018\u2018a subsequent legislature may change an act to achieve whatever prospective meaning or effect it desires, but courts generally give little or no weight to the views of members of subsequent legislatures about the meaning of acts passed by previous legisla- tures\u2019\u2019). Even if this postenactment statement could be deemed useful in illuminating the purpose and intent animating the 1974 FTC exception to the cooling-off rule, it was not available to the Connecticut legislature in 1976, when the real property exception to the HSSA was adopted, and, therefore, is not indicative of our own legislature\u2019s intent. In addition, we cannot ignore the fact that the 2013 statement relates to special concerns stemming from the fallout of the 2008 financial crisis, which specifically involved the mortgage lending industry. This context plainly informs the FTC\u2019s statement expressing the view that certain transactions pertaining to the sale or rental of real property may fall outside the scope of the real property exception if a seller targets vulnerable and desperate consumers who are not in a position to make \u2018\u2018informed purchasing decisions . . . .\u2019\u2019 Federal Trade Commission, supra, 78 Fed. Reg. 3857. The agreement at issue in this case is far removed from such concerns. The California default judgment compensated the plaintiff for George Frank\u2019s breach of the agreement, just as the trial court\u2019s judgment on count two compensated the plaintiff for Joan Frank\u2019s breach of the agreement. The trial court\u2019s award of damages against George Frank on count one, enforcement of the California default judgment, was the same as the amount awarded by the California court: $259,746.10. The trial court\u2019s award of damages against Joan Frank on count two, breach of contract, was for $283,106.45. The award of damages against Joan Frank was not calculated on the basis of the California judgment but, instead, was determined by the trial court on the basis of evidence presented at trial regarding the damages sustained by the plaintiff as a result of Joan Frank\u2019s breach of the agreement. On appeal, the defendants do not challenge the discrepancy between the damages awarded against George Frank and Joan Frank. Joan Frank does not challenge the trial court\u2019s award of $47,508.45 for the lost rental value of the home furnishings and de\u0301cor and related late fees; nor does she claim that the award of damages for both rental loss and inventory loss for the home furnishings was improper."], "id": "8edb6981-3c9b-4e50-87ef-6e8df7b87d00", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Rosenthal Act defines \"consumer debt\" and \"consumer credit\" as \"money, property or their equivalent, due or owing or alleged to be due or owing from a natural person by reason of a transaction.\" (\u00a7 1788.2, subdivision (f).) The Rosenthal Act further defines the phrase \"consumer credit transaction\" as \"a transaction between a natural person and another person in which property, services, or money is acquired on credit by that natural person from such other person primarily for personal, family, or household purposes.\" (\u00a7 1788.2, subd. (e).)"], "id": "67516410-9fc5-4fda-acd3-98741408f7d4", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs contend, in the alternative, that the transaction is governed by Regulation Z pursuant to the Federal Truth in Lending Act. The plaintiffs, relying on Regulation Z, claim that the fact that payments were required in more than four installments brings the transaction within the purview of Regulation Z, requiring a three-day cooling-off period which was, concededly, not contained in the contract in dispute. Subdivision (a) of section 1635 of title 15 of the United States Code provides, as it applies to this dispute: \"[I]n the case of any transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight the third business day following the consummation of the transaction or the delivery of the disclosures required under this part, whichever is later\u201d."], "id": "8ce3774a-0a90-457a-92e0-e690250b331d", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the operative complaint, Plaintiff brought state law claims under California\u2019s Investigative Consumer Reporting Agencies Act and California\u2019s Unfair Competition Law. In briefing, Plaintiff suggests that Defendant\u2019s reporting of dismissed charges violated California\u2019s Reporting Agencies Act (\u201cCCRAA\u201d). These state law allegations are not the subject of this appeal, and we do not reach them. We also reject Plaintiff\u2019s argument that Defendant\u2019s violation of \u00a7 1681c(a) was somehow willful because Defendant had a written policy designed to comply with the CCRAA. Even if Defendant willfully violated the CCRAA, or its own policy designed to comply with 16 MORAN V. THE SCREENING PROS"], "id": "c549af73-9515-46c1-9803-76360457df61", "sub_label": "US_Terminology"} {"obj_label": "Consumer Credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor may the defendant bank rely upon section 1641 contained in the original act. That section provides in substance that in an action against any subsequent assignee of the original creditor, the written acknowledgment of receipt by a consumer of the disclosure statements shall be conclusive proof of the delivery of that statement and \"unless the violation is apparent on the face of the statement, of compliance with\u201d the provisions of the Truth- in-Lending Act. Where the bank uses the seller as a conduit for its financing arrangements, the bank is considered, for the purposes of the Truth-in-Lending Act, not merely an assignee but as the \"true creditor\u201d. Security Trust\u2019s argument here is the same as that made by Chrysler Credit Corporation in the case of Meyers v Clearview Dodge Sales (384 F Supp 722, 728-729, supra) where the court stated: \"Chrysler Credit strenuously argues that it is merely a 'subsequent assignee\u2019 of the plaintiff\u2019s note and, as such, entitled to the limited protection of 15 U.S.C. \u00a7 1641. Several courts have relied upon a 'conduit\u2019 theory to reject Chrysler Credit\u2019s argument. Under the 'conduit\u2019 theory, a finance company such as Chrysler Credit will be considered a creditor 'when the seller merely serves as a \"conduit\u201d for placing the finance companies\u2019 contracts with consumers and then regularly assigns the contracts to the finance companies.\u2019 (Philbeck v. Timmers Chevrolet, Inc., 361 F. Supp. 1255, 1260 (N.D. Ga. 1973), rev\u2019d on other grounds, 499 F. 2d 971 (5th Cir. 1974); Garza v. Chicago Health Club, 347 F. Supp. 955; Starks v. Orleans Motors, Inc., 372 F. Supp. 928, affd. 500 F. 2d 1182; Owens v. Modern Loan Co., CCH Guide, Para. 99,099 (W.D. Ky. 1972). In construing a piece of remedial legislation such as the Truth-in-Lending Act, designed to protect consumers, courts must focus on the substance of a transaction rather than its mere form. The 'conduit\u2019 theory seeks to accomplish just that. All three parties to this transaction were fully aware at the time of the purchase that Chrysler Credit was the true creditor. The forms used by Clearview were prepared by Chrysler Credit. Further, it was necessary for Clearview to obtain credit approval for the plaintiff from *619Chrysler Credit or one of the other lenders with whom it regularly dealt before agreeing to the sale. In such a situation, where the seller works so closely with the finance company, the latter must be considered a 'creditor\u2019 within the definition of the Act.\u201d"], "id": "23274b31-8c18-407a-b513-7b2d23adbbf5", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the complaint, plaintiff alleges that \u201c[t]he subject transaction took place in Nassau County.\u201d However, according to defendant\u2019s affidavit in support of her preanswer motion, she \u201cnever set foot in Hicksville [Nassau County] nor agreed to be sued in another county, in violation of the provisions.\u201d Plaintiff\u2019s vice-president attempts to refute this contention in an affidavit which states that plaintiff purchased the subject vehicle from a Bronx dealership and leased it to defendant. Plaintiff conducted the credit investigation of defendant in Nassau County, and approved the lease transaction. Moreover, the lease documents were prepared by plaintiff at its place of business in Hicksville, New York, and sent to the dealership along with plaintiff\u2019s check for the vehicle. The defendant signed the documents which were returned to plaintiff in Nassau County, together with the title to the vehicle. Plaintiff then countersigned the lease and returned the executed counterpart to defendant. Further, throughout the 36 months of the lease, all payments were mailed to plaintiff in Hicksville, and proof of insurance and registration were also processed in Hicksville."], "id": "da4d87b8-995f-46ff-a073-09e00e4cc3b8", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["These provisions were originally enacted as an additional protection for defendants in transactions though they are not so narrowly worded (see, Siegel, 1986 Supp Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 7B [1990 Supp Pamph], CPLR C3215:18, at 591-592). Neither, however, does the relevant language \u2014 \"an action based upon nonpayment of a contractual obligation\u201d \u2014 limit applicability to actions founded solely in express contract. The court holds that actions sounding generally in contract (see, e.g., 50 NY Jur, Restitution, \u00a773; 22 NY Jur 2d, Contracts, \u00a7 511), and this is such a one, are within the ambit of CPLR 3215 (f) (3). Additional notice of the default judgment sought was therefore required but never given."], "id": "bf79788d-1a7d-4d9c-86bd-7b0907766d62", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["ries of the records the systems contain and the agency\u2019s procedures gov- erning their use. See id. \u00a7 552a(e)(4). As a general matter, the Privacy Act prohibits agencies from disclos- ing any record contained in a system of records absent the written request or written consent of the person to whom the record pertains. See id. \u00a7 552a(b). There are exceptions to this general rule, including an exception permitting disclosures for a \u201croutine use.\u201d Id. \u00a7 552a(b)(3). \u201cRoutine use\u201d of a record is defined as \u201cthe use of such record for a purpose which is compatible with the purpose for which it was collect- ed.\u201d Id. \u00a7 552(a)(7). To employ the \u201croutine use\u201d exception, an agency must describe all routine uses under which the agency will disclose records in the relevant system-of-records notice. See id. \u00a7 552a(e)(4)(D). The requirement that a published routine use be compatible with the purpose for which the record was collected is known as the Privacy Act\u2019s \u201ccompatibility requirement.\u201d To fulfill its obligations under the Privacy Act, DOL has published a system-of-records notice covering FECA records. This notice, entitled \u201cDOL/GOVT-1, Office of Workers\u2019 Compensation Programs, Federal Employees\u2019 Compensation Act File\u201d (\u201cDOL/GOVT-1\u201d), describes the records DOL/GOVT-1 covers and the routine uses for which they may be disclosed. Records covered by DOL/GOVT-1 may include, for example, DOL forms filed in connection with a FECA claim, underlying medical records, payment records, hearing transcripts, demographic information, investigative material, and reports. See Publication of Five New Systems of Records; Amendments to Five Existing Systems of Records, 77 Fed. Reg. 1728, 1738 (Jan. 11, 2012) (republishing DOL/ GOVT-1 with amendment providing for an additional routine use). The DOL/GOVT-1 system-of-records notice expressly states that DOL/ GOVT-1 includes FECA records in the possession of other agencies. See id. at 1738 (DOL/GOVT-1 includes \u201c[c]opies of claim forms and other documents\u201d and in some instances \u201coriginal forms\u201d related to FECA claims that are \u201cmaintained by the employing agency\u201d); see also Publica- tion in Full of All Notices of Systems of Records Including Several New Systems, 67 Fed. Reg. 16,816, 16,823 (April 8, 2002) (\u201cIt is presumed that most, if not all, federal agencies maintain systems of records compris- ing a portion of [DOL/GOVT-1].\u201d); Use and Disclosure of Federal Em- ployees\u2019 Compensation Act Claims File Material, 63 Fed. Reg. 56,752, 56,753 (Oct. 22, 1998) (\u201cWhen . . . claim forms are submitted to the"], "id": "d1aaf307-6058-44e2-b3a5-4dea5504ddc6", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["According to each of the plaintiffs, defendant has failed to meet its burden to change venue under either CCA 301 or CPLR 510 (3). First, each plaintiff argues that medical services does not fall within the definition of transactions. Second, each plaintiff argues that the defendant has failed to present sufficient evidentiary proof to be entitled to change of venue as a matter of discretion."], "id": "628523c8-c841-4216-8321-c92cfbf6f4d5", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Collins does not support the denial of plaintiffs motion in this case. The debt at issue in this case is not a agreement, such as the one described in Collins. (30 Misc 3d at 909.) Also, plaintiff has done more than \u201c[mjerely plead[ ] an amount due and owing without reference to how that number was calculated!,] [which] is a failure of proof that the alleged damages qualify as a \u2018sum certain.\u2019 \u201d (Collins Fin. Servs., 30 Misc 3d at 914.) Rather, plaintiff has submitted with its moving papers a copy of the certificate which sets forth the method by which interest accruals under the certificate are calculated."], "id": "31aee67c-d03d-4f57-b585-e752779e1e83", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Subdivision b of section 2203d-2.0 of title A of chapter 64 of the Administrative Code of the City of New York (the 'Consumer Protection Law of 1969; Local Laws, 1969, No. 83 of the City of New York) defines the following as an unconscionable trade practice covered by its provisions: \u2018 \u2018 Any act or practice in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease, rental or loan of any consumer goods or services, or in the extension of , or in the collection of consumer debts which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer \u201d. Section 2203d-3.0 provides that the Commissioner may adopt such rules and regulations as may be necessary to effectuate the purposes of the law, which \u201cmay supplement but shall not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission and the Federal courts in interpreting the provisions of Section 5 (a) (1), or the Federal Trade Commission Act 15 IT. S. C. 45 (a) (1), or the decisions of the courts interpreting General Business Law \u00a7 350 and Uniform 'Commercial Code \u00a7 2-302. \u2019 \u2019"], "id": "228f0d95-03a9-4bae-a9c3-6510d48c6a96", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Form of Affidavit. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. In this case, the contract states that it is assigned to Ford Motor Credit. The contract *21bears the signature of Tony Jones. The affidavit states that the attached contract is maintained by Ford Motor Credit and is associated with Tony Jones's account number. Jones states in his counterclaim that he \"signed a contract for the purchase of a motor vehicle.\" Moreover, the trial court held a hearing and then made a factual finding that the attached contract was the contract at issue. This court defers to those factual findings. See Greene v. All. Auto., Inc. , 435 S.W.3d 646, 648-49 (Mo. App. W.D. 2014) (finding that even when the case is submitted solely on documentary evidence, the trial court is the finder of fact and appellate courts defer to those findings.)"], "id": "abe71f27-cbf5-4e07-901b-e3aa2657dc62", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The fact that the pleadings do not conform to the statutory requirements for pleading a transaction means that the clerk of the court has not placed the action on the calendar in Part 11C, the part designated for consumer credit cases. The result is that the defendant is not afforded the opportunity to be represented by the Volunteer Lawyer for the Day, consult with representatives from the Civil Legal Advice and Resource Office program, or take advantage of other resources available in consumer credit litigation."], "id": "ebb9d7d4-bc0d-4e3c-8cc9-37582748ffd4", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff, a State guarantee agency, commenced the instant \u201c transaction\u201d, to recover on a promissory note for guaranteed student loans, in the principal sum of $2,250, executed by defendant on September 22, 1976. Defendant asserted several affirmative defenses including the fifth affirmative defense, wherein defendant alleged that the suit was barred by Banking Law \u00a7\u00a7 352 (formerly \u00a7 353) and 358, in that \u201cplaintiff or its assignor failed to comply with applicable [disclosure] provisions of Federal and New York State Truth-in-Lending\u2019 statutes, rules and regulations governing said loan at the time said loan was made.\u201d The court below granted so much of plaintiff\u2019s motion for summary judgment as sought dismissal of the seventh affirmative defense but denied so much of the motion as sought dismissal of the fifth affirmative defense. It also denied defendant\u2019s cross motion for summary judgment in his favor dismissing the complaint based on the fifth affirmative defense, and the seventh affirmative defense which alleged noncompliance with 8 NYCRR part 2107. Plaintiff argues for the first time on appeal that defendant\u2019s fifth affirmative defense should have been dismissed on the ground that the defense is barred under section 1603 of the Federal Truth in Lending Act (15 USC). We agree, and note initially that contrary to defendant\u2019s contention, plaintiff is not precluded from presenting an issue of law for the first time on appeal since the question of law is one which could not have been avoided by defendant if raised in the court below (see, Block v Magee, 146 AD2d 730, 732). Moreover, this court may search the record and grant summary judgment to the nonappealing party (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyards, 61 NY2d 106, 110-111). Accordingly, this court may consider plaintiff\u2019s argument."], "id": "a65ba8d3-fd26-41e6-8916-d2f04c3b82b8", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Advocacy groups have raised the issue concerning these rent arrearage matters that the failure to classify them as transactions deprives defendants of the assistance of legal services programs. They point out that had the landlord plaintiff been forced to proceed in the Housing Part, legal services programs would provide counselling or actual representation. If the action is deemed a consumer credit transaction, programs such as the Volunteer Lawyer for the Day would be available to defendants. It is argued that discontinuing the summary proceeding and then bringing a civil proceeding for rent due and owing that could have been resolved in the Housing Part is prejudicial to the tenant defendant not only because of the lack of legal services in the civil parts, but also the passage of time may deprive the tenant of certain defenses which were available in the Housing Part."], "id": "e390a065-fcc7-45e6-bb0c-23ebb20be6ff", "sub_label": "US_Terminology"} {"obj_label": "Consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The only statutory definition of a \u201csum certain\u201d appears in article 3 of the Uniform Commercial Code in regard to \u201ccommercial paper.\u201d debt does not qualify as \u201ccommercial paper\u201d under that statute (Smith v Palasades Collections LLC, 2007 WL 1039198, 2007 US Dist LEXIS 28348 [ND Ohio 2007]; Citibank [SD] N.A. v C & S Wholesale Grocers, Inc., 2009 WL 688991, 2009 US Dist LEXIS 20195 [D Vt 2009]), but UCC 3-106 does set forth standards to be applied in determining whether an amount claimed due is a \u201csum certain\u201d for the purpose of determining whether an \u201cinstrument\u201d is a \u201cnegotiable instrument\u201d (UCC 3-102)."], "id": "ea991e04-68e8-47ae-9dfa-dc38b5682c16", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": [". Recently, the court rules relating to proof on default judgments in matters were amended, \u201cto ensure a fair legal process in the more than 100,000 credit collection lawsuits brought annually in the state courts ... to combat deceptive debt collection practices and protect consumers,\u201d including the granting of default judgments based upon \u201c \u2018robosigned\u2019 affidavits containing hearsay allegations and few if any facts pertaining to the history of the debt at issue.\u201d (New York State Unified Court System, Press *86Release, Chief Judge Announces Comprehensive Reforms to Promote Equal Justice for New York Consumers in Debt Cases [Apr. 30, 2014], available at https://www.nycourts.gov/press/PDFs/PR14_03.pdf [accessed Aug. 13, 2015]; Administrative Order of Chief Admin Judge of Cts AO/185/14.)"], "id": "2b1e4cc2-f4e2-435b-9c30-1804d4cc6a70", "sub_label": "US_Terminology"} {"obj_label": "consumer credit", "legal_topic": "Money And Financial Problems", "masked_sentences": ["CPLR 503 (subd [f]) mandates that actions based upon transactions must be brought in the county of the defendant\u2019s residence, if he resides in the State, or in the county where the transaction took place, if it took place in the State. The foregoing statute was enacted to curb the serious abuses to which individuals were frequently subjected under existing traditional venue provisions (see 2 Weinstein-Korn-Miller, NY Civ Prac, par 503.20; Memorandum of State Executive Department, McKinney\u2019s 1973 Session Laws, vol 2, pp 2171-2172)."], "id": "d235fd25-d319-4193-b050-973bc0673697", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff asserts causes of action against Saar for negligence, negligent misrepresentation, fraudulent misrepresentation, constructive fraud, violation of General Business Law \u00a7 349 and breach of contract. In each of the causes of action, plaintiff alleges that the of Saar in producing the appraisal \u201ccaused plaintiff to approve the Galdi Loans and sustain monetary injury well in excess of $100,000.\u201d"], "id": "a936b4a5-54ef-469d-8d33-61ec6e9589f1", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In an action of tort for negligence, evidence that the acts or omissions of the plaintiffs contributed to the injury, is admissible under a general denial that the injury complained of was occasioned by the defendant. The right of recovery depends on plaintiffs\u2019 establishing, at least b y prima facie proof, that he in no respect by his own negligence contributed to the injury, but that it was occasioned solely by the defendant\u2019s acts (Button v. Hudson R. R. Co. 18 N. Y. 248; McDonell v. Buffum, 31 How. Pr. 154; Deyo v. N. Y. Central R. R. Co. 34 N. Y. 9 ; Grippen v. Same, 40 N. Y. 34).' Such exemption from liability was equally available to this defendant, if the injury complained of was in any way attributable to plaintiffs\u2019 neglect in turning off the water by the main stop-cock on their own premises. Whether regarded as a primary duty arising from having the entire control, or as one they had gratuitously assumed and were in its ordinary performance for the accommodation of the defendant (Ed. on Bail. 94). One assuming the voluntary performance of an act or duty for another, engages for such skill and attention as it ordinarily requires, and if it be in respect to a matter for which the defendant is under contract or obligation with himself, he cannot make claim for any or neglect to which he has himself been a party or contributed. In an action of tort for negligence in performance of such duty, the fact that plaintiff contributed to the injury would be available under a general denial that it was caused by the defendant\u2019s neglect, and without special defense of such secondary intervention of the plaintiff in aid of the primary duty or obligation the defendant had assumed. Such a general denial does not confess and avoid the cause of action, but presents the principal fact or transaction upon which an action for negligence is founded as evidence that the injury com*332plained of was not occasioned solely by the default of the defendant and without plaintiff having in any respect contributed to it."], "id": "ec97b802-b5c2-4474-81cd-26113c97c1e8", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Since the plaintiff\u2019s motion searches the record, the defendant contends that the amended complaint fails to state facts sufficient to constitute a cause of action. His position is clearly untenable. The plaintiff alleges that the defendant, who was then Conservation Commissioner of the State of New York, in a speech delivered at a dinner at the Hotel Woodruff in the city of Watertown, New York on May 31, 1956 falsely stated in the presence of over 150 persons that the plaintiff, a public official employed by the State of New York in the capacity of chief of the Bureau of Game, Division of Fish and Game, in the New York State Conservation Department, was guilty of in office in that his deliberate sabotage or gross neglect \u201c sunk \u201d an experimental wild life project conducted by the department at Grenadier Island. He also alleges that the defendant\u2019s remarks were uttered with malice and a deliberate intent to injure him in his office and employment and to subject him to ridicule, suspicion and contempt over a wide area. Proof of these allegations makes out a *991cause of action in slander per se and no allegation or proof of special damages is necessary. (Toomey v. Farley, 2 N Y 2d 71, 85; Macy v. New York World-Telegram Corp., 2 N Y 2d 416, 420; Mencher v. Chesley, 297 N. Y. 94; Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208; Abell v. Cornwall Ind. Corp., 241 N. Y. 327, 335; Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87, 622; Moore v. Francis, 121 N. Y. 199, 204; More v. Bennett, 48 N. Y. 472, 476; Sanderson v. Caldwell, 45 N. Y. 398, 403; Shakun v. Sadinoff, 272 App. Div. 721; Julian v. American Business Consultants, supra; see Hoeppner v. Dunkirk Print. Co., supra.)"], "id": "4a9ede87-d10b-4fd3-bbb8-70a77044b047", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff has failed to adduce evidence adequate to raise a triable issue as to the existence of any affirmative or negligence in the performance or nonperformance of any duty extended to the benefit of the plaintiff herein. The defendant is therefore entitled to summary judgment on this ground (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Freedman v Chemical Constr. Corp., 43 NY2d 260)."], "id": "13231def-5ef1-4d43-b7b6-db6b6b8dddb5", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Armstrong sued four Nevada state officials in their individual capacities under 42 U.S.C. \u00a7 1983, alleging that the officials violated her substantive and procedural due process rights and further alleging violations of both state and federal statutes and regulations. She also brought Nevada state law claims for civil conspiracy, intentional and negligent infliction of emotional distress, fraud, and , misfeasance, or nonfeasance in office. The district court dismissed all the claims."], "id": "4c992e66-a707-48ca-b288-b712c15a9f43", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The rule is that corporate officers or agents are personally liable for those torts they personally commit or participate in even though performed in the name of an artificial body, but that corporate officers are not liable for nonfeasance; they are liable only for misfeasance or . (See Michaels v. Lispenard Holding Gorp., 11 A D 2d 12; 12 N. Y. Jur., Corporations, \u00a7 810.) The charges against the third-party defendant Benson are charges of nonfeasance. Moreover, Benson had no independent duty owing to the plaintiff; his breach of duty, if any, was a breach of duty owing by him to his principal only."], "id": "0fa1cb95-5214-4f5b-b461-491cbbb66531", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The alleged by Chastain arises from Geary's actions in his official capacity as City Attorney relating to the advancement of the Light Rail Committee's proposed ordinance. Chastain's complaint focuses on Geary's advice regarding the legality of the Light Rail Committee's proposed ordinance, Geary's request that the Light Rail Committee's attorney not attend the hearing before the City Council's Transportation and Infrastructure Committee, and Geary's statement at that hearing that the proposed ordinance was illegal and could be repealed by the Council if approved by voters (while failing to mention the advice he had previously provided regarding the legality of the petition)."], "id": "a23ae0e8-dbf9-48d3-9b54-e6f4d3337cc0", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court certainly recognizes the sacred right of the people to choose their elected officials. Section 36 of the Public Officers Law is in no way intended to interfere with this vital aspect of democratic society. Rather, this section has been enacted to protect the citizens from an elected official who by his misconduct, , maladministration or malversation, abuses his public trust, harms the public interest and violates his oath of office."], "id": "cc54a7f2-5254-4e7f-81d3-3b367bf063d9", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At common law, misconduct in office was defined as \u201ccorrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.\u201d An officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, , (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance."], "id": "0e91dcad-cdfb-4a60-a25f-ab8059c59fe0", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Most critical, the written consent judgment on its face was made \u201cwithout admitting the allegations of the complaint\u201d. Therefore, there are no prior factual findings, either way, which could ip any way affect or bind the current administrative *221proceeding. . The Department of State has a continuing responsibility to set standards of broker practice, and to review broker compliance with those standards whenever need for it is indicated, particularly when specific comes to its attention. (See Real Property Law, art. 12-A, \u00a7 441 et seq.)"], "id": "80a7d98a-9396-4c4d-9322-899567085ffa", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is nothing whatever in the bond that would preclude a deputy sheriff from showing, in answer to an action of this kind, that he was specially directed by the sheriff to make the return in the form and manner in which it was made, for which the sheriff was afterwards held liable in an action. That would be neither nor non-feasance, nor would it be any omission of duty. As between himself and the sheriff it would be no act of the deputy, but the sheriff\u2019s own act, for which neither the deputy nor his sureties would be held responsible. \u00a5e think the exclusion of the evidence tending\\to establish such directions was error, for which a new trial must be had."], "id": "a1788c67-5ded-4c64-815e-317811ede30d", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The cases cited on behalf of the plaintiff relate to the liability of public officers for nonfeasance or in respect to the performance of ministerial duties. They have no application to a case of this kind. The rule of law which we have now laid down is well established in this State, although some contrariety of decision on the subject exists in other States."], "id": "7607ad23-8d8b-4985-a96b-b2b733f01978", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 46 of the Highway Law provides that a town superintendent may be removed for or misfeasance in oEce. Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner; while malfeasance is doing an act which is positively unlawful or wrongful. Bouvier Law Dict. 421. A misfeasance is a default in not doing a lawful act in a proper manner, or omitting to do it as it should be done; while a malfeasance is the doing of an act wholly wrong and unlawful; and non-feasance is omission to perform the required duty at all, \u00f3r a total neglect of duty. Cott v. Lynes, 33 Conn. 109. The acts alleged to have been committed,, if proven, would constitute both malfeasance and misfeasance in oEce."], "id": "efcca8b6-5b95-4dbb-ad42-b1f53b753bf2", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is well settled that the court has no power to remove a public officer for acts done prior to his present term of office (People v. Ahearn, 131 App. Div. 30; affd., 196 N. Y. 221; Conant v. Grogan, 6 N. Y. St. Repr. 322; State ex rel. Tyrrell v. Jersey City, 25 N. J. L. 536), so that the respondent\u2019s term of office to which he was elected last spring could not be affected by a determination adjudging him guilty of or misfeasance in his present term. The respondent\u2019s re-election, however, cannot, as a matter of law, have any controlling influence or effect upon the determination of this matter. The fact that the people have the right to nominate and re-elect a man to an office from which he has been removed does not affect the binding force of the express provision enacted by the people themselves that an official who has violated the mandate of a statute which has been expressly enacted to govern and control his official acts shall be removed from office and prevented from continuing to exercise the trusts, powers and duties of *290the office during the term in which he has been found guilty of official misconduct. Any other construction would completely nullify the act of the legislature and would in effect repeal the statute or at least make it inoperative in a special case. The people themselves have placed limitations upon their own power and are forced to give obedience collectively as well as individually to the lawful enactments of their legislature. It follows, therefore, that no matter how inconsistent it would seem to be to remove a man from office for the remainder of a term when he has been reelected by the people for the same office for the succeeding term with full knowledge of bis official misconduct, the plain mandate of the statute makes it imperative upon the court to order Ms removal if his violation of the statute has been' established. Any other disposition of the matter would be judicial legislation."], "id": "5171d6dc-e293-4534-8240-086218b98b02", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Additionally, there are no facts set forth in the misdemeanor information, or the accompanying documents, which could support any allegation that the defendant engaged in intimidation, physical force or interference. It clearly is not alleged that the defendant intimidated, or even attempted to intimidate anyone. To the contrary, it is alleged that the defendant\u2019s was a passive one, failing to take some action. Similarly, it is not alleged that the defendant resorted to the use of physical force or physical interference, which are necessary if force or interference are alleged to be the manner in which the administration of law was obstructed. (People v Case, 42 NY2d 98 [1977].)"], "id": "94c4ed7f-6044-40bc-8bcf-76cc014f7456", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With respect to the existence of a physician-patient relationship under the facts herein, this court is controlled by the decision of the Fourth Department in Twitchell v MacKay (78 AD2d 125 [1980]). In that case, the plaintiff went to defendant for an examination at the request of the disability insurance carrier. During the examination, defendant therein purportedly injured plaintiff. In holding that the claim presented sounded in malpractice and not simple negligence, the court held: \"The plaintiff knew that he was seeing a doctor and must have been aware of the fact that the doctor, after the examination, would express his medical judgment to John Hancock. Defendant was acting as a doctor and in doing so he agreed to perform his common-law duty to use reasonable care and his best judgment in exercising his skill, and the law implies that he represented his skill to be such as is ordinarily possessed by physicians in the community. Thus, if he carried out his function in a negligent or improper fashion the fact remains that the legal concept for any or misfeasance by defendant would quite properly fall under the label *306of medical malpractice\u201d (78 AD2d, at pp 128-129). Twitchell conclusively establishes that under the circumstances herein defendant was acting as a physician, and consequently owed plaintiff a duty to exercise due care in his examination, diagnosis and treatment of her, to the extent he was to perform these functions. That defendant was not engaged to treat plaintiff, under Twitchell, does not negate the physician-patient relationship. On the other hand, however, defendant can only be liable for breach of duty with respect to those functions he was required to undertake. That is, plaintiff could not maintain an action against defendant on the basis of any failure to provide her with treatment for her back, since there was no question that defendant was not to treat plaintiff."], "id": "92e6d6e5-cb7e-4e89-8a1b-37954715cfbe", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["because any alleged by the State was cured by the inevitable discovery doctrine, in that the State presented substantial evidence that any contraband in Defendant\u2019s backpack would have inevitably been discovered when he entered the jail, as it was standard procedure to go through every pocket and bag inside of a backpack upon [Defendant]\u2019s entry into the jail, and [Corporal] Fannen testified at the suppression hearing that if there were narcotics in a backpack they would have been discovered in this search."], "id": "80ac69e8-90ad-4226-ab97-c7d9edf205dd", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The alleged facts are as follows: The defendant Grossman was an employee of the board of education in the capacity of a clerk. *782Some time prior to June, 1931, there were rumblings of corruption and in the said department. In order to determine whether such corruption really existed, a subpoena was issued to the defendant Grossman by the president of the board of education to appear before a special committee designated to make the investigation. Grossman, upon being sworn as a witness, refused to answer, claiming his constitutional rights on the ground that the answers given might tend to incriminate and degrade him."], "id": "8d326a60-94b6-42cd-b8fa-ce492b5d5807", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is, however, urged on the part of the defendants that the complaint contains no allegations of fact to charge them with liability for embezzlement of the funds of the institution. There is no -charge of against them. The theory of the action is that the trustees, bv their failure to perform the duties which they by their relation to the bank assumed or undertook to exer-cise, were chargeable with negligence, and its consequences. When the statute nlaced the management and direction of the business of the bank under the control of the board of trustees, it imposed upon them some duties in respect to it. All of those duties are not specificallv defined by the statute. They are such as the nature of the sunervision fairly requires. Negligence is depend-ent upon failure to exercise the care which persons are, by their relation, called unon to exercise, and that is more or less dependent upon circumstances. In Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 924. which was an action against the directors of a national bank, it was held that they were required to exercise ordinary care and prudence, and, if they did that, they were not chargeable with . negligence. And Mr. Chief Justice Fuller, in the prevailing opinion, said substantially that the degree of care which the defendants were bound to exercise is that which ordinarily diligent and prudent men would exercise under similar circumstances. \u201cWhat may be negligence in one case may not be want of ordinary care in another, and the question of negligence is therefore ultimately a question of fact to be determined under all the circumstances.\u201d In Hun v. Cary, 82 N. Y. 65, in considering the subject of the measure of diligence required of trustees of a savings bank, Judge Earl, spealdng for the court, said that they are not bound to exercise the highest degree of diligence, nor is their duty discharged by slight care, but that they are to \u201cexercise ordinary care and prudence in the trusts committed to them; the same degree of care an by me,\" \"implied or insinuated that I committed\" violations of the penal code, \"caused me enormous harm\" including the loss of his job, \"extreme mental anguish\" and \"over $1 million in lost income,\" and were false. Carter stated that he had a telephone conversation with Birmingham in which Birmingham \"threatened\" him by saying: \"[D]on't mess with the man who buys ink by the barrel.\""], "id": "55239082-a424-4735-a110-08dba28c0e6a", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consistent with public policy, Beverly drafted the Trust to protect the beneficiaries from on the part of a trustee. Both in order to prevent such malfeasance and to maintain the effective and consistent operation of the Trust, *656paragraph 10.11 must be interpreted in a manner that does not permit Thomas to withhold from the Hitchmans-or any other interim or successor trustee-materials covered by the attorney-client privilege and which reflect Thomas's communications with the Trust's legal counsel while he was serving as trustee. As we have explained, there is no contention in this case that Thomas, as trustee, distinguished his own interests from those of the beneficiaries or retained separate counsel for this purpose."], "id": "dacffc12-a0ca-4a6d-818c-636e4ce14092", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The for which claimant is suing is the release of the confidential information and he did not learn of that release until after the expiration of the 90-day period. Such lack of knowledge constitutes a reasonable excuse. (See Callanan v State of New York, 42 Misc 2d 740, affd 23 AD2d 937; 47-Albany Troy Road Corp. v State of New York, 17 AD2d 892; Gielski v State of New York, 3 Misc 2d 578.)"], "id": "bc1aecd2-5845-4cb3-bf03-7b235f109287", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In addition, the cases cited by the Appellate Division in support of its decision are also distinguishable. Pizarro v City of New York (188 AD2d 591 [2d Dept 1992], supra) involved a one-car accident where plaintiff, a passenger who sustained injuries, sued, inter alia, the operator of the vehicle, the vehicle\u2019s owner, the City of New York and Mansfield Contracting Company (Mansfield), the contractor responsible for the maintenance and repair of the street lighting at the accident site. The City of New York and Mansfield moved for summary judgment on the ground that the testimony of the vehicle\u2019s operator failed to establish that any negligence on their part was a proximate cause of the accident. The Court affirmed the granting of summary judgment in favor of both defendants. In finding that Mansfield was entitled to judgment as matter of law, the Court stated (at 593-594) that \"[e]ven assuming, arguendo, that Mansfield breached a contractual duty to the City by failing to discover and repair deficiencies in the lighting at the scene of the accident, Mansfield did not owe any duty to plaintiff, a member of the public [citations omitted]. In any event, we note that in view of [the vehicle operator\u2019s] admissions, and the absence of any evidence indicating that defective street lights were a proximate cause of the accident, Mansfield was entitled to judgment as a matter of law [citation omitted].\u201d Similarly, the relevant analogy in Francois v New York City (161 AD2d 319 [1st Dept 1990], supra) concerns a defendant which had a contract with the City to maintain its traffic lights. Plaintiff was injured in a car accident when he eased his vehicle into an intersection where the traffic signal was not functioning properly; the light was stuck on red. Plaintiff sued, inter alia, the City, who interpleaded the contractor. The contractor, Acolyte, moved for summary judgment on the ground that the sole proximate cause of the accident was plaintiff\u2019s negligence in driving past the red light into the intersection. The Supreme Court granted summary *847judgment on the ground that there was no contractual privity between Acolyte and defendants (sic). In affirming the granting of summary judgment in favor of Acolyte, the First Department held (at 320): \"This case is governed by our recent decision in Thompson v City of New York (157 AD2d 634). In Thompson, the plaintiff, a pedestrian, was hit by an automobile in an area ordinarily illuminated by a streetlight, which was unlit at the time of the accident. We affirmed an order granting summary judgment to Acolyte, applying the principle that, in this State, ' \"a duty directly assumed to benefit one person does not extend to third parties who are not intended beneficiaries of the undertaking to perform, even if it is foreseeable that someone else might be damaged by the nonfeasance\u201d \u2019 [citation omitted] Oathout v Johnson, 88 AD2d 1010). In the instant case, although a negligent signal light repair is alleged to have occurred on December 31, 1983, there is no evidence of any negligence despite the completion of discovery. In any event, '[e]ven when the negligence consists of in the promised performance, rather than nonfeasance, there is no liability for injuries thereby sustained by members of the general public, at large or of an indeterminate class\u2019 (Oathout v Johnson, supra, at 1010). Accordingly, summary judgment was properly granted.\u201d It appears to this court that the contractual relationship with the City and the contractor responsible for street lighting in Pizarro, Francois and Thompson, and the relationship between the City and American Golf in this instance is quite different. The illumination of streets is a governmental function (Thompson v City of New York, 164 AD2d 773 [1st Dept 1990]), whereas the license agreement herein is between the City and a private commercial company for the promotion of a recreational function. It must also be noted that the contract in Thomspon between Acolyte and the City explicitly stated that the contract \"was intended to benefit the city, and not the general public.\u201d (Thompson v City of New York, 157 AD2d, at 635.) In addition, users of the golf course pay a fee to American Golf, unlike members of the general public who benefit from the provision of street lighting without payment of a fee. A further distinction between the lighting contractors in Pizarro, Francois and Thompson and the instant action is that movant herein is a concessionaire obligated to pay the City ongoing annual license fees as a percentage of the gross revenue, and submit quarterly statements to the City. (Art VI.)"], "id": "f7dd4d3d-d63f-4ba9-941e-963c247afa84", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Accordingly, the court finds that Garibaldi\u2019s application of the credit/cash ratio to all of the credit card deposit records of the corporation, in order to estimate the total amount of undisclosed cash that was diverted to the individual defendants, was warranted, given the defendants\u2019 misfeasance and in providing adequate records. Accordingly, this court finds the application of the credit/cash ratio of 45.6% credit card payments to 54.4% cash payments to be reliably based upon the available records and such method of calculating the amount of cash diverted to be appropriate. Based upon Garibaldi\u2019s calcula*694tions, the court finds that $3,719,407 of the $11,246,703 in projected gross revenue for the period 2003 to the filing of the complaint on June 13, 2011, was diverted by defendants."], "id": "75d97753-fe31-4871-81d5-fa13fe97bd7f", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Disclosure has been made to those investigating the of a public official (see, e.g., People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156, 170-171; Matter of Quinn, 293 NY 787, affg 267 App Div 913); a police commissioner investigating police corruption (e.g., Matter of City of New Rochelle, 35 Misc 2d 254; Matter of Scro, 200 Misc 688); to the Governor\u2019s special investigating counsel (Matter of Crain, 139 Misc 799); and to grievance committees of the various Appellate Divisions."], "id": "d9515c8a-a42a-4285-9228-d2e6aec6bb14", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*990It is directory and ministerial only and has as its purpose the giving of sufficient time to the Board of Elections for the preparation of ballots and voting machinery. Here the board was given sufficient notice. To hold otherwise, would give to the Secretary of State or his agents or to a County Clerk or his agents the power to thwart the Constitution of the State of New York either by nonfeasance or by merely delaying the notice of receiving and filing of resignation or the certification of vacancy until later than three months before the general election. Her certification was legally and properly made in compliance with section 67 of the Election Law which is directory and ministerial only. (See Election Law, \u00a7 67; NY Const, art VI \u00a7 21, subd a.)"], "id": "35cde8b3-c079-49ce-a4f1-d7089ce8ddc9", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This court recognizes that much of the criticism of imputed contributory negligence arose before the advent of comparative negligence, when contributory negligence was a complete bar to recovery. Indeed Kalechman was decided before New York adopted comparative negligence. Nevertheless, comparative negligence does not dictate a different ruling as plaintiff is not guilty of any , misfeasance, or nonfeasance. Moreover, this court is bound by legislative intent. In its 1975 report to the Legislature, the Judicial Conference, referring to comparative negligence, stated: \"However, this article is not intended to create vicarious liability or to expand the doctrine of imputed contributory negligence, and should be interpreted in harmony with recent decisional law which severely restricts, if it does not entirely eliminate, the doctrine of imputed or vicarious contributory negligence. Kalechman v. Drew Auto Rental, Inc., 33 N.Y.2d 397 (1973).\u201d (Twenty-First Ann Report of NY Judicial Conference, 1976, p 242; see, also, Avis Rent-a-Car System v Johnson, 90 Misc 2d 263.)"], "id": "e04aefbc-9b91-4037-b4be-336d63aa1449", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As to the third cause which purports to allege misappropriation and conversion, it is not contended that the right of the defendant to take possession of the assets of her husband\u2019s estate as her own is in any way restricted, except as it is charged with a lien by the statute aforesaid. The fact that the defendant possessed herself of the estate, though by the laws of Israel it is burdened with the lien for unpaid debts, does not in and of itself raise any inference of wrongdoing. The third cause must therefore fall as conversion implies an act of such as misappropriation, destruction or alteration of the property of another. The motion is granted as to the third cause but denied as to the first and second causes pleaded in the amended complaint."], "id": "d4367e72-93f3-494e-87c9-57f733e6825b", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus, due to claimant\u2019s failure to prove that defendant City had prior written notice pursuant to the Pothole Law, this action must be dismissed against defendant City, unless defendant City has been affirmatively negligent. (Kelly v City of New York, supra.) Claimant has made no showing that defendant City\u2019s misfeasance or caused his injury. Therefore, this action is dismissed as to defendant City."], "id": "a6a91691-c89c-409f-a498-0bba98d2843b", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant responds that while in the ordinary case the period during which a codefendant is standing trial on another case might not be chargeable to the People under subdivision (4) (d), in the instant case the People \"sent\u201d the codefendant out of the State in disregard of defendant\u2019s speedy trial rights. Having thus prejudiced defendant, they then compounded their by failing to diligently secure Manieri\u2019s return for almost five months."], "id": "8ca4774a-bf86-4774-90fc-965b30321891", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With respect to the other points raised by plaintiff I conclude : first, that, though the alleged violation of the \u20181 Dram Shop Act\u201d by Kilburn must be classified as intentional and wrongful, the ultimate damage to the injured persons in the automobil\u00e9 collision was not intended and therefore the clause excluding intentional acts does not apply, nor should indemnity for violation of the \u201c Dram Shop Act\u201d at least with respect to actual damages be held to be against public policy under the rule of Messersmith v. American Fid. Co. (232 N. Y. 161) and Sperling v. Great Amer. Ind. Co. (7 N Y 2d 442, mot. for lv. to rearg. den. 8 N Y 2d 785); secondly, that, while engaging in a co-venture with another might activate the exclusion in this insurance contract, of liability \u201c assumed by the insured under any contract or agreement\u201d if the injured persons relied solely upon Kilburn\u2019s vicarious responsibility as the driver\u2019s partner, here the main thrust of the injured person\u2019s theory rests upon Kilburn\u2019s own . At this stage, prior to trial of the main action, where it may be found that there is any theory alleged in the complaint which would result in liability of the insured covered by the policy, the insurer should be called upon to defend the action."], "id": "8eee8e9d-8629-41e0-b72c-5b86b69a79e2", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the instant proceedings, petitioner has failed to establish by a preponderance of the evidence submitted to DHCR that it did not know or had no reason to know that the tenant was being overcharged. In that regard, petitioner failed to adduce any evidence of any kind. Instead, as noted above, petitioner explained only his alleged efforts to cure the defect upon receiving the rent overcharge order. It failed, however, to offer any proof of its efforts upon the acquisition of the property, such as any attempt to procure the rent history of the apartment from DHCR or from the prior owner. Significantly, had such inquiry been made, it would have been easily discovered that the rent charged to the current tenant when he took possession was significantly higher (51%) than what the prior tenant had been charged.5 This Draconian increase should have raised serious doubts about its legality, absent an explanation. Nor did petitioner produce any evidence, like a comparison of the rent charged to similar apartments, that would have indicated that the rent that was being charged to the tenant was appropriate. Thus, since upon an inquiry petitioner should have been placed on notice that there was a problem with his tenant regarding his rent, it cannot be considered a blameless successor who should escape liability for the originated from its predecessor and exacerbated by its own nonfeasance."], "id": "013bb734-04e6-41af-99df-a57ba10d8e26", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs second claim is based, not on , but on nonfeasance, namely, Martin\u2019s alleged failure to provide adequate security. Liability for an act of omission rests on the existence of a duty to act. (See, generally, Febesh v Elcejay Inn Corp., 157 AD2d 102.) Martin asserts that the duty to provide security to campers belonged to the camp, Grand Duke and Post, and that he personally had no such duty. He argues, in essence, that he had neither the \u201cspecial relationship\u201d (see, e.g., Reyes v City of New York, 238 AD2d 563) nor landowner status (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507) from which such duty arises."], "id": "f4c42fe5-246a-41ec-a7ed-710bad9ab0ac", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Workman v. Verde Wellness Center, Inc. (Ariz. Ct. App. 2016) 240 Ariz. 597, 382 P.3d 812 ( Workman ) and *373Tenney v. Rosenthal (1959) 6 N.Y.2d 204, 189 N.Y.S.2d 158, 160 N.E.2d 463 ( Tenney ) both concerned whether, under a statute authorizing a director to bring an action on behalf of a corporation to remedy by another director, the plaintiff lost standing to pursue the action if, after filing it, he or she was removed as a director. ( Workman , at pp. 603-605, 382 P.3d 812 ; Tenney , at pp. 207-213, 189 N.Y.S.2d 158, 160 N.E.2d 463.) In each case the court, faced with a statute's silence on the continuous directorship requirement, refused to read one into it. ( *126Workman , at p. 604, 382 P.3d 812 ; Tenney , at pp. 209-210, 189 N.Y.S.2d 158, 160 N.E.2d 463.) Both courts cited policy considerations ( Workman , at p. 604, 382 P.3d 812 ; Tenney , at p. 210, 189 N.Y.S.2d 158, 160 N.E.2d 463 ), with the court in Tenney explaining: \"Strong reasons of policy dictate that, once he properly initiates an action on behalf of the corporation to vindicate its rights, a director should be privileged to see it through to conclusion. Other directors, themselves charged with fraud, misconduct or neglect, should not have the power to terminate the suit by effecting the ouster of the director-plaintiff. It is no answer to say that, if wrongs were committed, others are available to commence a new and appropriate action.\" ( Tenney , at p. 210, 189 N.Y.S.2d 158, 160 N.E.2d 463 ; see Workman , at pp. 604-605, 382 P.3d 812 [\"it is reasonable to infer that the board removed [the plaintiff] in response to her claims, particularly in light of the allegations of wrongdoing she made against the other directors\"].)"], "id": "67b93d73-9c0e-4cbf-ac6e-8ac7047f8662", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The State\u2019s misfeasance or would certainly be a proper excuse for a failure to timely file (cf., e.g., Finster v State of New York, slip opn, at 2 [Ct Cl, C1 No. 79500, mot No. 41404, Dec. 14, 1989, Benza, J.]) and, while we do not believe the Legislature intended superior rights for prisoners, we also think it did not intend to continue obstructions to a prisoner\u2019s right to sue. The State has a legal obligation to allow prisoner suits and that includes the allowance of proper proof of service. In the face of claimant\u2019s evidence of delivery, the burden was on defendant to explain why claimant\u2019s instructions were not complied with. (Cf., 17 NY Jur 2d, Carriers, \u00a7\u00a7 275, 339.) It failed to do so (see, Cole v State of New York, supra) and we believe the duty it breached is of sufficient importance and relevance to a prisoner\u2019s right to sue to warrant the application of estoppel. (See, 57 NY Jur 2d, op. cit.)"], "id": "409bff91-7a6a-4fdd-9228-80752368c83c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the instant case, however, no such conflict exists between General Municipal Law \u00a7 205-b and Vehicle and Traffic Law \u00a7 1104. Section 205-b provides for an immunity for volunteer firefighters for simple negligence, allowing liability only for \u201cwilful negligence or .\u201d This immunity is specifically not extended to fire districts. Indeed, \u201c[t]he statute erased any immunity formerly extended to fire districts, and replaced it with the common-law rule of master and servant, and the doctrine of respondeat superior.\u201d (Nardone v Milton Fire Dist., *485261 App Div 717, 720 [3d Dept 1941], affd 288 NY 654 [1942]; but see, Fuerguson v East Meadow Fire Dist., Sup Ct, Nassau County, Nov. 20, 1998, Bucaria, J., index No. 32787-97; Morris v Stanchio, Sup Ct, Suffolk County, Nov. 5, 1998, Doyle, J., index No. 16276-97.) While General Municipal Law \u00a7 205-b specifically defines the liability of fire districts, there simply is no reference in Vehicle and Traffic Law \u00a7 1104 to fire districts at all. The court will not read such protection for fire districts into Vehicle and Traffic Law \u00a7 1104, as such a reading would bring the statute into direct conflict with the plain language of section 205-b which specifically provides for liability of fire districts."], "id": "43a8c9e8-bd03-4a42-add6-aa84d1385467", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Each county has a county treasurer who is its sole financial officer, and whose powers and duties are specially defined by statute, but who is in no sense the agent of the county. He is elected the same as pH other county and town officers to assist in carrying on the local machinery of the State government, and has assigned to him by law certain independent powers and duties. For lfis conduct as such officer he is amenable to the laws of the land and the judgment of his countrymen, but we have been referred to no case where a county has been held responsible either for the misfeasance or of its county treasurer, and after an extended search we have been unable to find one. It is true the county treasurer stands as the financial agent of his county. He receives the money belonging to it and pays the same out upon proper order, and the receipt of money belonging to the county by its treasurer is a receipt by the county, and an action can be maintained against a county for the recovery of money illegally collected and paid to its treasurer. (Newman v. Supervisors of Livingston, 45 N. Y., 616.) In that case a tax had been illegally levied and collected against the plaintiff and paid into the treasury of the county. The action was not brought to recover for the misfeasance of any of the officers either .town or county, by whose instrumentality the wrong had been perpetrated, but it was brought for the recovery of money in the possession of the defendant which did not belong to it, and did belong to the plaintiff, and the action was maintained on that ground alone."], "id": "84ca737b-2ef7-4fbf-bc64-6bf059172ea1", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Here, Chastain's claims for against Geary were dismissed by the trial court through an Order entered on March 27, 2017, with a corresponding docket entry reading \"Judgment Entered.\" The Order dismissing Chastain's claims was not denominated a \"Judgment\" and the docket entry was not signed by the judge. Thus, the requirements of Rule 74.01(a) were not met, as Missouri courts have routinely held that the separate document and docket entry cannot be considered together to satisfy the rule's requirements. See, e.g. , Amoso Realty, LLC v. Milton , 513 S.W.3d 373, 376 (Mo. App. E.D. 2016) (holding that signed order denying motion to intervene and associated with docket entry stating \"SEE ORDER AND JUDGMENT\" was not a final, appealable judgment); Orf v. Orf , 208 S.W.3d 306, 307 (Mo. App. E.D. 2006) (holding that signed written order not denominated a \"judgment\" and corresponding docket entry stating \"Judgment *846Entered\" but not signed or initialed by the judge is not a final, appealable judgment)."], "id": "7fb04d39-5190-48f7-b2c7-2e1ca6ad2cc4", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While the issue confronting the court in People v Reilly (supra) involved forcible rape, the same court was also faced with the constitutionality of subdivision 3 of section 130.35, the same statutory provision as at bar, in the case of People v Fauntleroy (94 Misc 2d 606). The court again upheld the constitutionality of subdivision 3 of section 130.35 against an equal protection attack incorporating the opinion set forth in People v Reilly (supra). While this court would not go so far as to say that females are physiologically incapable of committing the crime of rape, the touchstone of the governmental justification lies in the social which the statute was originally directed to cure. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. As stated in West Coast Hotel Co. v Parrish (300 US 379, 400), the Legislature is free to recognize degrees of harm and it may confine its restriction to those classes of causes where the need is deemed to be clearest."], "id": "7ac44216-1fc1-4c34-b962-694ae32c39dd", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant moved for summary judgment dismissing the malpractice complaint, asserting plaintiff\u2019s inability to demonstrate that, but for his asserted , she would have prevailed in the arbitration proceeding against her husband\u2019s insurance company (see, Oppenheim & Co. v Bernstein, 198 AD2d 163). Defendant\u2019s principal arguments are that plaintiff has failed to produce the insurance policy issued by the United States Automobile Association, under which she claims a right of recovery and that, in any event, she is not a \"covered person\u201d so as to qualify for protection under the asserted terms of the policy. Whether or not plaintiff is a \"covered person\u201d depends on whether she was a \"family member\u201d residing in the insured\u2019s household at the time of the accident. Finding the various documents submitted by the parties \"insufficient to establish plaintiff\u2019s residency at the time of the claim\u201d, Supreme Court denied defendant\u2019s motion."], "id": "1ae9d601-f55a-4433-afd7-802a62ed0cca", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*219The supposed authority for the objection is found in a dictum by the Appellate Division for the First Department in Mulligan v. Bond & Mortgage Guarantee Co. (193 App. Div. 741, at p. 745) where the court is reported as saying: \u201c The requirement of a bond from a trustee appointed by the court, who is to receive money or property, is to insure the beneficiaries and parties interested in the fund to be administered against loss through a depletion of the fund by misfeasance or .\u201d"], "id": "7b3b2757-511d-4540-9b86-f6fc3778e2ca", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": [" Also unavailing is Ambac's contention that Countrywide should be judicially estopped from asserting that public disclosure of its put Ambac on inquiry notice based on its purportedly contrary position in Footbridge Ltd. v Countrywide Home Loans, Inc. (2010 WL 3790810, 2010 US Dist LEXIS 102134 [SD NY, Sept. 28, 2010, No. 09 Civ 4050 (PKC)]). Significantly, whether the plaintiff's action was timely under New York law was not an issue before the Footbridge court, which decided a motion to dismiss an RMBS fraud claim under federal and New York law. Given that Footbridge involved different parties, different issues, different legal standards, and different investments, the doctrine of judicial estoppel cannot be invoked here (see generally American Motorists Ins. Co. v O'Brien-Kreitzberg & Assoc., 234 AD2d 30 [1st Dept 1996]). THIS CONSTITUTES THE DECISION AND ORDER"], "id": "145c92f3-0069-4c4c-a9c4-e101277680e6", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 1006 of the Optional County Government Law makes provision for the removal of a county manager, as follows: 1\u2018 The county manager shall be removable by the board of supervisors, (1) because he was at the time of his appointment or has since become ineligible to hold such office as herein provided, (2) for or nonfeasance in office, (3) upon conviction of a crime or of a misdemeanor involving moral turpitude, (4) for failure to perform his duties as provided in this act in an honorable, competent and reasonably efficient manner or (5) if he becomes morally, physically or mentally unfit to act in behalf of the county, but if he is to be removed he shall be given, upon demand, a written statement of the reasons alleged for the proposed removal and shall have the right to a hearing thereon at a public meeting of the board of supervisors prior to the date on which his removal is to take effect.3 3"], "id": "dbf2afff-8fcf-40d9-a801-c6e0fc6ec785", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In their original and supplemental memoranda of law,4 counsel for the plaintiff address the element of causation, they implicitly adopt the \u201cbut for\u201d test, and state that but for the negligent advice and opinions of the defendants, the Marks\u2019 schemes would indeed have failed. At one point in the supplemental memorandum, counsel even identify a specific, crucial point where a proper opinion letter would have stopped at least part of the schemes: it is stated that \u201cthe evidence will establish that\u201d the corporation\u2019s register *269and transfer agent would have refused to issue the stock which was the vehicle for the fraud, absent the defendants\u2019 opinion letter. Unfortunately, such unsworn statements cannot remedy deficiencies in pleadings. The complaint itself is devoid of any such allegations of causation with regard to any of the acts of alleged against any of the defendants."], "id": "3ed3e84b-99ba-4d9d-918a-86bf85c428ba", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The annotation this court cited is rather dubious authority for the proposition that statutes for the removal of personal representatives in general, and former section 531 in particular, were designed solely to address administrative . At most, the annotation cites an 1892 intermediate appellate court decision from New York, which affirmed the denial of a request to remove an executor because \"there had been no misconduct on the part of the executors, in the sense of any moral wrong, [so] there was no ground for their removal ....\" (Annot., Remedies in event of executor's or testamentary trustee's delay in exercise of power to sell real estate conferred by will (1941) 132 A.L.R. 1473, 1479, citing Wilcox v. Quinby (1892) 20 N.Y.S. 5, 5.)"], "id": "1d1ef867-0aef-4e5e-9018-f4930b36a2a4", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consequently, reunification services are not meant to be discretionary. ( In re A.G ., supra , 12 Cal.App.5th at pp. 1004-1005, 219 Cal.Rptr.3d 239.) \" 'When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.' \" ( M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174, 83 Cal.Rptr.3d 864, italics added; see also \u00a7 361.5, subd. (a).) From \"roughly the jurisdictional hearing (\u00a7 355) to the six-month review hearing (\u00a7 366.21, subd. (e) ), [reunification] services are afforded essentially as a matter of right ( \u00a7 361.5, subd. (a) ) unless the trial court makes one of a series of statutorily specified findings relating to parental mental disability, abandonment of the child, or other specific ( \u00a7 361.5, subd. (b) ).\" ( Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845, 69 Cal.Rptr.3d 96, 172 P.3d 402, fn. omitted.) Reunification services are thus presumed at the outset of the dependency proceedings. ( Ibid . ; In re Nolan W ., supra , 45 Cal.4th at p. 1228, 91 Cal.Rptr.3d 140, 203 P.3d 454.) For this reason, reunification services are provided even when a parent is institutionalized or incarcerated. (See \u00a7 361.5, subd. (e).) The clear and convincing evidence standard applied in section 361.5, subdivision (b), \"reflects a legislative intent to condition denial of reunification services on a heightened level of proof beyond the preponderance of the evidence standard.\" ( K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1388, 169 Cal.Rptr.3d 571.)"], "id": "be8d543a-dad1-4372-a262-5a00a8167d42", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["To hold under these facts that Election Law \u00a7 6-144 invalidates DiNapoli\u2019s certificate of acceptance as untimely filed is to promote disorder in the progression of events leading to election of public officials. Even those who diligently comply with the Election Law run the risk of having their candidacy vitiated by inadvertence, carelessness, misfeasance, or partisan politics by Board of Elections personnel."], "id": "450333c2-f1f9-4ffd-bd03-ced6c5f9a4f4", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The claimed illegality is dramatized and colored by allegations that the defendants, Ludera and Pordum, together with certain unidentified public officials and other legislators misrepresented the terms of the so-called Tutuska lease, and that the resolution of January 19, 1971 terminating the relationship between the county and Kenford and Dome was adopted as a consequence of their \u2018 \u2018 fraud, collusion and in office \u2019 \u2019 pursuant to \u20181 their alleged activities and conspiracies. \u2019 \u2019 It is also alleged that the defendants named (but presumably not served) as John Doe, Bichard Doe, X Corporation and Y Corporation participated in a conspiracy to block construction of the Dome Stadium \u201c with the intent and purpose of gratifying and enhancing political and financial interests. \u2019 \u2019"], "id": "41ee1f86-8f5f-4f1d-9117-4afc6dd32178", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Argumedo pleaded guilty to misdemeanor obstruction of justice in violation of Penal Code section 148, subdivision (a)(1),4 a crime not specifically enumerated as one disqualifying a person from holding public office. Because article VII, section 8, subdivision (b) of the California Constitution and Government Code section 1021 authorize disqualification from office only upon conviction of the specified offenses, the *134question here is whether the 2010 record of Argumedo's conviction for obstruction of justice unambiguously establishes in office, not whether the City, five and a half years later in a civil trial, established facts showing Argumedo committed malfeasance in office through documents and witness testimony not admitted in the criminal proceedings."], "id": "f2306654-8fe6-49ec-91a8-8d050d5a845a", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In considering petitioner\u2019s application, this court takes cognizance of the fact that the majority of released Grand Jury testimony has been for the purpose of aiding criminal investigations or dealing with possible in public office. However, it is clear that the scope of public interest is quite broad and should not be restricted solely to criminal matters. As was pointed out in Marinelli v State of New York (71 Misc 2d 62, 63), \"an inspection can be had in aid of proceedings other than criminal, but only to protect the rights of the public\u201d. Thus, while the administrative needs of a municipality may be less dramatic than an investigation of crime, both functions are necessary to protect the public."], "id": "d6050c4f-2b98-4e25-adbb-61f582dd7cef", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The provisions of the Highway Law regulating the manner of contracting for the expenditure of the moneys raised for highway purposes were incorporated in the Highway Law by the legislature as a safeguard for the protection of the moneys of the people, and it is the duty of the highway superintendent to conduct his office and perform his duties in the manner prescribed by the act and not according to his own individual notions or judgment. Not only did the express provisions of the law require the respondent to expend the moneys in the manner required by law, but the respondent actually entered into an agreement with the town board fixing and prescribing the manner in which the moneys should be expended. The respondent must have known that having made such an agreement with the town board he was bound by its provisions and could not expend the moneys as he saw fit, and in utter disregard of the provisions of *287said agreement which so minutely described how every cent of the money should be used. It does not appear from the evidence that the respondent misappropriated any of the moneys entrusted to him by the people and I believe that when he spent the money on other town highways than those specified and authorized by said agreement he was acting in good faith and that he honestly believed he was doing the best thing for the interests of the people; nevertheless he knowingly violated one of the most essential and important provisions of the Highway Law and in this respect was guilty of in office and laid himself open to these charges and to removal from office. Upon the uncontradioted evidence in this proceeding, the respondent is subject to removal. The finding of the town board that the charges have not been sustained is not in accordance with the evidence."], "id": "0066aff9-1688-427f-9ad2-3b78f1929f6e", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is difficult to compare parties, such as petitioners, who live in apartments in a time of recognized housing shortage and whose quality of life will be altered by the \u201c co-oping \u201d of their building, to securities traders who have it wholly within their discretion whether to buy or sell any particular security. In the case of the latter, it is, of course, the general rule that nonpurchasers cannot complain of misrepresentations in prospectuses and like publications (see Birnbaum v. Newport Steel Corp., 193 F. 2d 461). But to petitioners herein, a decision not to purchase is itself a step with far-reaching consequences, consequences different in degree and quality from that of deciding whether to buy or not buy a given security on a given day. This was recognized in the Schumann and Pensic cases (supra). As stated in Schumann (65 Misc 2d, at p. 257), \u201c The Attorney-General having approved the prospectus for filing, the only appropriate standard by which this court can review the adequacy of the prospectus is the article 78 standard \u201d and that the Attorney-General\u2019s 1 \u2018 administrative nonfeasance or [is] subject to article 78 review by the courts.\u201d Nor is Tuvim (N. Y. L. J., March 22, 1971, p. 2, col. 6, supra), to the contrary for there the court merely held, pursuant to the general rule, that fraud is not actionable where there is no proof of reliance on the claimed misrepresentation."], "id": "36c34f7d-ac13-42b7-a7de-de467fb72ef0", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Here, the probate court never ruled upon Carol's motion to remove Robert as guardian and conservator; instead, the January 23, 2018 ruling accomplished two things: first, upon the recommendation by the GAL and the probate court's own independent *655review of Robert's during the course of the proceedings, the probate court removed Robert as guardian and conservator for Larry; second, the probate court granted Carol's petition for appointment of successor conservator and guardian, thereby appointing Carol in both successor roles.6 Accordingly, Robert's standing argument on appeal is misplaced."], "id": "6da4dc7e-32df-47fb-b79a-fd7840811ddb", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The executors herein purchased Interborough Rapid Transit five per cent bonds in April, 1916, par value $100,000. These securities did not fall within the class of legal investments as determined by the legislature of this state and the law laid down in King v. Talbot, 40 N. Y. 76; Matter of Wotton, 59 App. Div. 584; affd., 167 N. Y. 629. It will be recalled that, by section 5 of article 12 of the will, the executors were given the right to change as they may see fit any investments left by the decedent, \u201c and to retain the securities representing the same as proper investments; \u201d were not to be holden for any loss under the terms of section 7, article *1412, unless it shall occur through their own gross neglect or willful ; and were authorized by section 8 of article 12 to allot specific securities, and the relative value shall be conclusive upon all persons interested. The trustees purchased these bonds in good faith and in the exercise of prudence. Matter of Vom Saal, 82 Misc. Rep. 531. It is my opinion that they had a right to purchase these securities under the ruling laid down by Mr. Justice Mills, of this department, in Matter of United States Trust Co. (Colgate\u2019s Will), 189 App. Div. 75, decided October 3, 1919. The authority to executors in the Colgate case is indeed quite similar to the authority accorded by the will of the decedent in the instant case."], "id": "151802b8-53d5-467a-ad99-4f4be7c565b3", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Subdivision 13 of said section provides that no revocation order shall be issued if the commissioner shall determine that: \"(a) * * * the person involved was not aware that financial security was not in effect and the failure to have such financial security in effect was caused solely by the negligence or of a person other than such person.\u201d"], "id": "13f0d2e0-c8dc-4ede-b8cc-f202c1a38450", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"(b) He may be removed at any time by the board of supervisors for neglect of duty, or misconduct in office, or other good cause shown, upon written accusation to be filed with the board of supervisors, by a person not a member of the board, and heard by the board and sustained by a three-fifths vote of the board. When an accusation has been so filed with the board, the board may direct the district attorney to investigate and present the accusation or may employ private counsel for that purpose. All testimony before the board shall be under oath or affirmation administered by the board. The board is hereby vested with the power to compel the attendance of witnesses and the production of books, papers and testimony and shall make such processes available to the accused. A copy of the accusation shall be personally served upon the accused and he shall be given not less than 10 days' time in which to file a written answer to the accusation. If, after hearing, it appears to the satisfaction of the board that the accusation has been substantiated, the board shall so notify the accused by mail. Such notice shall specifically state the findings and judgment of the board, and the board shall thereupon forthwith remove the accused from office and shall immediately appoint his successor.\""], "id": "d9451f35-145f-4e1b-a851-f98018697bff", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor is there any inconsistency between the jury finding that the individual defendants were not grossly negligent and its finding of gross negligence on the part of the owner-partnerships. The partnerships themselves, as entities which own property, may be viewed as having acted with gross negligence, regardless of whether its general partners individually are themselves found to have acted with the same degree of culpability. In fact, a partnership may be liable for the of an employee, even without affirmative malfeasance by any partner (see, Caplan v Copian, 268 NY 445; Matter of Peck, 206 NY 55)."], "id": "b0ff3175-29ef-44ec-bef6-4d4e0e20b2a4", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Tt has been repeatedly decided, both in England and in this country, that corporations possess no powers except those which are specifically granted by their charter. No power can be taken by implication; it must be conferred by statute. The power conferred by the 5th section, can only be enforced in the manner pointed out by the act. They are merely of a legislative character; to make, enact, publish and amend by-laws for clearing off and cleaning the streets, alleys and highways, and to prevent, abate, or remove nuisances. \u201c It is,\u201d say the court in Boom v. The City of Utica, (2 Barb. S. C. Rep. 104,109,) \u201c a mere grant of authority to adopt general rules and regulalations respecting the removal of nuisances.\u201d And see Camden and Amboy R. R. and Transportation Co. v. Remer, (4 Barb. 127 ;) Halstead v. Mayor of New-York, (3 Comst. 430;) Hart v. Mayor &c. of Albany, (9 Wend. 571, 588;) Hodges v. City of Buffalo, (2 Denio, 110;) Dunham v. Trustees of Rochester, (5 Cowen, 462.) By these cases it is established that a corporation, when it proceeds to do an act, must show its power, and bring itself within it, by proof. The 16th section of the act declares the village to be a separate road district of the town of Plattsburgh, and transfers the duties of executing the highway laws from the town to the village officers. \u201c They shall have the same powers, and be charged with the same duties over the roads in the said village, as commissioners of highways in towns have or possess.\u201d They are therefore independent officers, so far as their duties as commissioners of highways are concerned, governed and controlled and directed by the several acts of the legislature regulating highways. They are, to be sure, for certain purposes officers of the corporation, and when acting for the benefit of the corporation, it may be liable for their acts; but not when they are acting as independent officers, whose duties arc specifically prescribed by law. In the case of The Mayor &c. of New- York v. Badley, (2 Denio. 433,) it was held that an action on the case for will lie against *436a corporation ; and that a municipal corporation was responsible for the negligence or unskillfulness of its agents and servants-when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. In that case a recovery was had against the corporation of the city of New-York for injuries occasioned to third persons, by the negligent and unskillful construction of a dam on the Croton river ; it appearing that the title to the land upon which the same was erected, was vested in the corporation. The recovery was based upon the express ground that the dam was the property of the corporation, and that such corporation was legally hound to see that its corporate power was not used by any one,so as to become noxious to the occupiers of property on the river below. And the court remarked that although the corporation did not appoint the water commissioners who constructed the dam, and although they had no right to interfere in the appointment or removal of the engineers and others who were employed-in the construction of the work, nor even to withhold the payment of their wages, yet the case was likened to a man who has-work going on upon his own premises and for his own benefit, and who must be civilly answerable for those whom he employs ; that it shall he intended that he has control over those who work upon his premises, and he shall not be allowed to dis-charge himself from that intendment of law, by any act or contract of his own. The court remark u That a municipal corporation, though not liable for acts- requiring the exercise of discretion, when those acts are for the benefit of the public ; or for the acts of independent officers whom it is obliged to appoint,- and whose duties are specifically prescribed by law, yet it is liable for the acts of the agents it voluntarily employs, to do-business for its own private benefit, the same as any other corporation or individual.\u201d (See cases there cited.)"], "id": "87450c71-a767-4c4f-b60e-180d3a35ba83", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Separately, the proof showed that one of the liens satisfied by the 2010 refinancing concerned an additional $80,000 lien against the marital residence, when it was still separate property, incurred to finance defendant\u2019s second business venture with his cousin, Gus Votsis and the third investor. Inasmuch as the 2010-2011 refinancing concerned what had shortly before become marital property, the lien thereby constituted marital funds (in the form of a marital debt, Nidositko, 92 AD3d at 656, citing Loria v Loria, 46 AD3d 768, 770 [2d Dept 2007]). Although defendant might argue that the 2010-2011 series of transactions would be beyond the reach of the court under Mahoney-Buntzman v Buntzman (12 NY3d 415, 420-421 [2009]), the extraordinary history of financial in this case requires consideration of it in determining whether any credit by reason thereof is warranted. (12 NY3d at 421-422, citing Do*658mestic Relations Law \u00a7 236 [B] [5] [d] [11].) The court determines that no credit to defendant arising from the refinancing is appropriate."], "id": "745f4088-bd90-424a-af4a-b936096faa1c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We first examine the question of Federal law: The ERISA exemption has been the subject of two recent decisions by the United States Supreme Court. The first, Guidrey v Sheet Metal Workers Pension Fund (493 US 365), disapproved the judicial creation of generalized equitable exceptions to ERISA\u2019s prohibition on the alienation of pension benefits, even where employee misconduct or may have been involved. The second, Patterson v Shumate (504 US 753), *421reiterated the Court\u2019s position that the creation of equitable exceptions to the ERISA antialienation provision must be left to Congress."], "id": "da45c5b1-b7e9-4c15-8988-4b9607fb75c5", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The thrust of defendant\u2019s contention in support of this application is that his treatment, examination, evaluation, recommendation and opinion are immune from forming the basis of a civil action such as this one inasmuch as they were rendered pursuant to a judicial directive and in relation to judicial proceedings (see, Tolisano v Texon, 144 AD2d 267, revd 75 NY2d 732 for the reasons stated in the dissenting opn of the App Div, 1st Dept, opn of Smith, J.; Schiffman v Kaplan, NYLJ, July 31, 1990, at 20, col 3 [Sup Ct, Nassau County]; Ferguson v Wolkin, 131 Misc 2d 304; Davis v Tirrell, 110 Misc 2d 889). He contends that the sole focus of the services he performed in this case was the postjudgment domestic dispute *281that brought plaintiff and her ex-husband before Justice Francis in June of 1985. With regard to plaintiff\u2019s allegation that he transcended his role in these proceedings by counseling the plaintiff pertaining to her relationship with her daughter, defendant correctly points out that such treatment fell squarely within the realm of Justice Francis\u2019 referral \"ordering the child and both parents to be counseled, examined by Dr. Kenneth Condrell\u201d. Indeed, plaintiff\u2019s own bill of particulars in attempting to lend some substance to the general allegations of , negligence and malpractice made in her complaint, recites that the injury said to have been proximately caused by defendant\u2019s conduct was the order of Justice Francis transferring custody of the daughter which \"made direct reference to the reports and testimony of the defendant\u201d. This is not a situation, therefore, where the malpractice claimed relates to a method of defendant\u2019s treatment but rather from the defendant\u2019s opinion and conclusion with respect to plaintiff\u2019s fitness to be a custodial parent. Plaintiff\u2019s attempt to extend the physician-patient duty expounded in Twitchell v MacKay (supra), must fail by reason of this shortcoming. In short, while plaintiff alleges that defendant was negligent in his counseling of both plaintiff and her daughter, the fact that any such counseling was done under the aegis of and pursuant to the directive of this court in determining the issue of child custody cannot be gainsaid. This court is of the view that the privilege of immunity which usually applies to judicial proceedings also attaches to defendant\u2019s conduct in this case so as to insulate both defendant and his conduct from being the predicate for a subsequent civil action. To the extent that none of the cases previously cited have gone so far as to state that such a privilege extends not only to the examiner\u2019s testimony but also to any reports, recommendations, evaluations, treatment or counseling rendered by him, this appears to be a case of first impression. As was noted by Justice Smith in his dissenting opinion in Tolisano: \"[p]ublic policy requires that a witness\u2019s testimony be privileged in order that those called upon to discharge their public duty freely do so with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation\u201d (144 AD2d, supra, at 271). This court is further persuaded by the approach taken by the District Court of California in a case decided under similar facts which would extend the privilege to an individual such as the defendant herein so long as his or her conduct occurred *282during the course of the judicial proceedings and was reasonably related to them and provided further that it was connected with and logically related to the purpose of the proceeding (Goatee v Lightner, 224 Cal App 3d 387, 274 Cal Rptr 697 [4th Dist 1990])."], "id": "a0aa5752-9b7e-48a9-98c0-344bc37e8b36", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The complaint sets forth that on November 26, 1950 plaintiffs suffered injuries as a result of the negligence of the individual defendant in the operation of his automobile; that an action was commenced against the individual defendant; that said defendant defaulted and a judgment in various amounts was rendered in favor of the plaintiffs against said individual defendant; that that defendant was insured by the defendant insurance companies; that said companies disclaimed liability under the policy and have refused to pay the judgments obtained against the individual defendant. Defendant insurance Companies served an answer containing a general denial and as a separate affirmative defense therein alleged that the individual defendant had breached the terms of the policy by failure to give notice of the accident, co-operate with the insurers or give notice to the insurers that an action had been commenced. The proposed amended complaint contains additional causes of action, in and nonfeasance, against two individual defendants, attorneys at law, alleging that plaintiffs retained such attorneys on or about December 9, 1950 to prosecute the action against the individual defendant, that said attorneys failed to give notice of the accident to the defendant insurers and failed to obtain a copy of defendant\u2019s report to the Bureau of Motor Vehicles, and that by reason of said negligence defendant insurance companies have disclaimed liability."], "id": "b87f0256-3c56-46e8-ac5e-3d36c6b0d7c3", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Practice Plan membership can be terminated \u201cfor cause\u201d when a Practice Plan member\u2019s clinical privileges or medical staff membership have been suspended or terminated in writing by the CEO for reasons described in the paragraph after an internal RPCI hearing, if requested, pursuant to the RPCI medical staff by-laws (10 NYCRR 88-4.3 [b] [4]). For the purpose of the regulations, Practice Plan membership shall be terminated if the suspension was for grave cause, including gross professional incompetence; serious , misfeasance or nonfeasance; serious and protracted medical disability; misconduct in office; and felony or other serious criminal offense. Nowhere in the rules and regulations is there a provision suggesting that a violation of the regulation can result in criminal prosecution."], "id": "39e4af99-f5e1-40c2-a8d6-e92ebd320cb2", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants\u2019 contention that the plaintiffs entire action is barred since the statements and pleadings of Continental and its counsel are immunized under the principle that statements made during the course of litigation are nonactionable is without merit. All the cases cited for authority by the defendants involve claims for defamation based upon statements or views expressed during a prior litigation. The plaintiffs claims here concern, inter alia, alleged acts of fraud, collusion, and perpetrated for self-serving purposes that resulted in legal fees to the plaintiff. These are, as the court has held supra, legally cognizable causes of action and the defendants cite no authority to establish that oral and written statements proffered to support these claims, as opposed to cases involving defamation, are immunized. Indeed, the court\u2019s research indicates that the principle relied upon by the defendants is limited strictly as a defense in defamation actions (see, Toker v Poliak, 44 NY2d 211, 218 [1978]; Matter of Dunn v Ladenburg Thalmann & Co., 259 AD2d 544 [1999]; Barat\u00eda v Hubbard, 136 AD2d 467 [1988]) and, under certain circumstances, the privilege may be lost if it is determined it has been \u201cabused\u201d (see, Halperin v Salvan, 117 AD2d 544, 548 [1986]; Youmans v Smith, 153 NY 214, 220 [1897])."], "id": "cd3facf7-d9a4-4f5e-b423-127d9f390935", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Petitioner contends that the or negligence was on the part of his agent or insurance company. It would seem that this is the most likely circumstance which would lead to an erroneous cancellation. Yet a strict construction of the two subdivisions would lead to an inevitable conclusion. Should a clerk in an insurance office through error or inadvertence send a notice of termination to the commissioner, revocation would follow, and there would be no relief for the owner."], "id": "e990381f-03f3-47cf-ab37-c804bac537db", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We conclude the record of Argumedo's conviction does not unambiguously show his guilty plea to obstruction of justice constitutes a conviction for in office as set forth in article VII, section 8, subdivision (b) of the California Constitution. As set forth above, case law indicates the crime of malfeasance in office evidences moral corruption and dishonesty as do convictions for bribery, perjury and forgery (the other crimes specifically enumerated in article VII, section 8, subdivision (b) of the California Constitution ). (See Otsuka v. Hite , supra , 64 Cal.2d at p. 608, 51 Cal.Rptr. 284, 414 P.2d 412.) A conviction for obstruction of justice does not necessarily imply moral corruption and dishonesty. Further, a conviction for obstruction of justice does not imply conduct that occurred \"in office,\" a necessary element of malfeasance in office. The trial court did not state for *282the record the particular factual basis it found for the plea, and Argumedo did not admit any specific facts."], "id": "b4540dd0-8363-4c48-bb44-37dbbdfe029c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Pamela passed away during the pendency of this case. Elizabeth was appointed after the original administrator was removed for . yearly installments. For the years 1980, 1981 and 1982, Murray was to pay interest only, which was $19,200 per year; thereafter, he was to pay principal and accrued interest, amortized over a period of ten years. The 1980 Agreement provided the indebtedness bore interest of 8% per annum but the failure to make any payments when due would trigger an automatic increased interest rate of 12% per annum for the period of the unpaid installment. In addition, Murray agreed to maintain and pay premiums upon a $385,000 life insurance policy that was previously transferred to Mother's Estate. Murray made six payments on the debt until 1986 and made no further payments. He also stopped paying premiums on the life insurance policy."], "id": "f976eb10-ec53-41b6-906d-b2fc387996c7", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If the Trust purported to absolve Thomas of any liability as successor trustee, we would have to interpret that provision as void as it would be in contravention of clear public policy and contrary to the language of the Trust. (See Tunstall v. Wells (2006) 144 Cal.App.4th 554, 564, 50 Cal.Rptr.3d 468 [before a court may invalidate a trust instrument based on conflict with public policy, that public policy must be \"sufficiently clear\"].) But what if the Trust's terms permit Thomas to prevent a successor trustee from obtaining the documents by which they might establish Thomas's , bad faith, or intentional misconduct? Are Trust provisions that may, in effect, absolve Thomas from liability also void because they are in contravention of public policy or contrary to the terms of the Trust?"], "id": "fb3d5f35-f10f-4549-b3c9-0bff97bc6ed4", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On October 9, 1974 the three individual petitioners and the Clerk of the Board were served with papers in a proceeding commenced before the Commissioner to remove them, pursuant to the provisions of section 306 of the Education Law. The proceeding named the three petitioners individually and collectively, as a majority of the Board. On October 11, 1974 the Board met and directed the Board\u2019s attorney to represent the three petitioners collectively as the Board majority, but took no action to designate counsel for the petitioners individually. Thereafter, several of the petitioners in the removal proceed*866ing appealed to the Commissioner, pursuant to section 310 of the Education Law, seeking to stay and rescind any resolution passed at the Board meeting of October 17, 1974, On November 21, 1974 the Commissioner gave his decision wherein he: (1) affirmed the right of the Board to act; (2) ordered that no district school moneys be paid for defense of the three petitioners, acting collectively as a \"majority\u201d of the Board, until final determination of the removal proceeding and, then, only after certification by the court or Commissioner that the three petitioners appeared to have acted in good faith with respect to the exercise of their duties; and (3) ordered that no district funds be paid at any time for costs of the defense for the three petitioning school Board members \"against charges based on claims of personal , or lack of qualifications to serve, regardless of the determination made in relation to such charges.\u201d1"], "id": "fc7c8fc8-b064-409d-95a8-2304a4e4cadf", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This case presents an example of the responsibilities which plaintiffs seek to shift to this court through a broad reading of the statute. Plaintiffs\u2019 complaint alleges that the negotiators for a teachers\u2019 contract were given a percentage increase up to which the Board of Education would approve a new contract. An agreement was reached which, while ostensibly keeping within the authorized percentage for a salary increase, actually obligated the district to pay substantially greater teacher salaries. While not detailing the actual fraud, the complaint alleges that the negotiators knew or should have known of this disparity between the stated percentage increase and the actual dollar increase but somehow concealed such information from the Board of Education. The method of concealment is nowhere alleged nor apparent. The Superintendent is charged with \"negligence\u201d and the approving Board of Education with either negligence or breach of their fiduciary duty. Plaintiffs have alleged (but not proved) what may be described as a lack of competence on the part of the Board of Education. It has not been alleged or established that it was not possible to understand the economic consequences of the contract from its terms. It has not been alleged or established that the \"fraud\u201d consisted of anything other than one or two individuals\u2019 superior understanding of the negotiated deal which they neglected or refused to share with their employer. Even assuming plaintiffs could prove such employee or contractor misconduct or , it is not clear that there is or should be any other remedy than either discharge or an action by the Board of Education for breach. What plaintiffs really seek to litigate, at best, are rights enforceable by the Board of Education."], "id": "0e96800f-bd0b-49e9-9a08-14d440ea8732", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While such events were taking place some four and one-half years before the arrest of Peter Corso, a scenario had already been created by reason of investigative and nonfeasance which would make it virtually impossible to evaluate the police activity in an effort to determine the significance of the information provided with respect to other persons capable of the murder. Measured against the strength of the People\u2019s case, which was built upon something less than firm ground \u2014 the testimony of an admitted murderer, hijacker, arsonist, robber and liar \u2014 one cannot help but come to the conclusion that the missing evidence would have to affect the outcome of a trial in favor of the defendant. Although it might be argued that this evidence does not bear any direct relation to the second count of the indictment, the actions of the prosecution team, which of necessity includes the investigating detectives with respect to the underlying charge, resulting in the loss of evidence, or lack of evidence, in apparent violation of existing police regulations, casts a negative shadow upon the second charge. But for the growth of the poisonous tree, in the form of the murder charge, the fruit, in the form of the drug charge, would never have blossomed."], "id": "eb471a17-345b-41f8-90d3-f1e91446ec1a", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff has failed to meet her burden to establish the terms of the contract under which she claims a right to recovery of insurance proceeds. She has failed to . demonstrate that a condition of the policy which would extend protection to her was fulfilled at the time of the accident or even to submit an affidavit sufficient to raise a triable issue with respect to her fulfillment of that condition. Accordingly, plaintiff cannot establish that, but . for the asserted of defendant, she would have recovered benefits under her husband\u2019s insurance policy, and the complaint against defendant *91must be dismissed. Concur\u2014Sullivan, J. P., Ross, Asch and Rubin, JJ."], "id": "77faa7fb-0e5e-4098-9ae0-7ca1ee0a877d", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus, where a case, as the one at bar, goes beyond simple negligence at a hospital, e.g., leaving a light bulb under the sheets (Dillon v Rockaway Beach Hosp. & Dispensary, 284 NY 176), or engaging in any of the acts of ordinary negligence, as catalogued in Twitchell (78 AD2d, at p 127), and entails the very essence of a physician\u2019s actions and methods in performing a surgical procedure, a determination of what is or is not appropriate cannot be made in the abstract any more than can the actions of an astronaut or computer technician who selects one computer key rather than another. Accordingly, when defendant doctor was called upon, as alleged in plaintiffs complaint, to act with due skill, care, and judgment, and if as alleged, he \"carried out his function in a negligent or improper fashion * * * the legal concept for any or misfeasance by defendant would quite properly fall under the label of medical malpractice (see Calhoun v Gale, 29 AD2d 766)\u201d (Twitchell v MacKay, 78 AD2d, at p 129)."], "id": "28eb8451-7313-463d-9f4e-1c49bce2b10c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The prior restraint on statements which police officials might make in the future as to the competence of the police classes of 1968 and 1969 represents an intolerable infringement on First Amendment rights. (Nebraska Press Assn. v Stuart, 427 US 539, 559.) \"Prior restraint of publication or censorship in advance of publication is generally forbidden and may be unconstitutional unless the existence of certain conditions necessitate such action for the public safety, public welfare, or the preservation of the social order.\u201d (Rosemont Enterprises v Irving, 49 AD2d 445, 449.) The alleged humiliation or embarrassment of the petitioners hardly rise to the level of protecting public safety, welfare and the social order. The relief requested is so vague as to impose not only a chilling effect, but a freezing effect on the exercise of free speech. The court is asked to restrain future \"broad allegations of misconduct, and incompetence\u201d. In the light of such vague language, how could anyone guide his future conduct? The request to restrain future criticism of the alleged class raises serious policy questions. The decision of the United States Supreme Court in New York Times Co. v Sullivan (376 US 254) and the decisions of other courts, have made it plain that newspapers are to be given the broadest possible scope in commenting upon matters of governmental, administrative and public interest. The question of whether police recruiting standards should be relaxed is not only a *806matter of great interest, but seriously concerns the safety of every citizen of the city. Discussion about standards and the analysis of the effects of the relaxation of such standards is totally appropriate for public discussion despite the pain and embarrassment it might cause to some of the persons comprehended within a group. The newspaper article points out a number of specific examples of misconduct and ineptitude amongst graduates of the classes of 1968 and 1969, and further points out that over 20% of the group has been involved in disciplinary proceedings. While that raises a serious question as to the standards involved in choosing them in the first place, it does not stigmatize everyone in the group. Eighty per cent of the group have never been confronted with a disciplinary charge. If average I.Q.\u2019s were low, it is likewise clear that half the group scored much higher than the average."], "id": "55be25e5-c5cc-4c23-b15c-81e94b2acb89", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Applied contends the fraud claims relate back because, like the contract and conversion claims, they involve \"Thomas's with respect to his stock option agreements.\" Similarly, the dissent refers to \"Thomas's misappropriation of stock options in violation of the stock option agreements and Applied's property interests.\" But we are aware of no authority supporting the proposition the relation-back doctrine applies wherever a plaintiff can define the defendant's misconduct in sufficiently general terms to encompass all of the claims at issue. (See Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 698, 103 Cal.Rptr.3d 209 [amended medical malpractice complaint that alleges different negligent act does not relate back].) Neither appellant nor the dissent has been able to identify any cases applying the relation back doctrine in circumstances similar to those in the present case, where the sets of claims involve different injuries occurring years apart. We conclude Applied has not shown the relation-back doctrine applies."], "id": "a0779bca-fc19-4ae3-9912-cbd582c7b673", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c (4) to such owner or operator if the commissioner shall determine that the failure to have liability coverage as described above was caused solely by the negligence or of a person other than the person whose license or registration has been suspended or is subject to suspension, and that the person .seeking to avoid such suspension was not aware of the lack of such liability coverage. However, with respect to the provisions of (4) above, the burden of proof shall be upon the person seeking to avoid such suspension action. Provided further, that such facts shall be established by clear and convincing evidence, either by the .submission of affidavits or at a hearing called in the discretion of the commissioner. \u2019 \u2019"], "id": "05d9ef27-cbe6-4e75-950b-cef73dacf842", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the cases of Blunt v. Akin, 15 Wend. 522, and Waggoner v. Jermaine, 3 Denio, 306, it is said, that for maintaining a *46nuisance, a grantee in possession is liable as well as the grantor by whom the nuisance is erected, if the latter, by his covenants, is bound to uphold the occupier, or affirms the continuance of the nuisance. But in those cases, there was confessedly a known upholding of the nuisance in question; the question of negligence was in no wise involved; , and not negligence, was the ground of the action. The relation of landlord and tenant was not shown to exist between the occupier and the erector. And the action was not by another tenant hiring a part of the premises after the erection of the nuisance upon another part."], "id": "8ea23535-8fa7-4b9c-b01c-b340fdc6c747", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nothing about the CFPB\u2019s statutory structure changes our analysis. Congress has characterized the CFPB as \u201cindependent,\u201d 12 U.S.C. \u00a7 5491(a), and has purported to make the Director removable only \u201cfor inefficiency, neglect of duty, or in office,\u201d id. \u00a7 5491(c)(3). 4 But those indications of independence do not prevent the President from using the Vacancies Reform Act, because Congress has specified that the CFPB \u201cshall be considered an Executive agency,\u201d id. \u00a7 5491(a), which brings it within section 3347(a), and because the CFPB\u2019s Director does not fall within the category of officers whom Congress has excluded from coverage under the Vacancies Reform Act."], "id": "4534de7c-7c73-461c-a2b1-b74319cecac0", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although the inmate must trigger the UMDDA application by affirmatively requesting final disposition of the pending charges in writing, appellate courts have held that \"substantial compliance\" is sufficient. See Burnett, 297 Kan. at 453; Sweat v. Darr, 235 Kan. 570, 575, 684 P.2d 347 (1984). So at the very least, the inmate must submit a written request. See Burnett, 297 Kan. at 453; State v. Eaton, No. 122,031, 2020 WL 7409961, at *5-7 (Kan. App. 2020) (unpublished opinion) (finding county attorney's actual notice coupled with inmate's written application mailed to district court \"substantial compliance\" under UMDDA); State v. Lomon, No. 116,497, 2017 WL 1535229, at *1 (Kan. App. 2017) (unpublished opinion) (finding inmate substantially complied by mailing handwritten request to county attorney, although he failed to send application to district court because correctional facility's refusal to forward application to county attorney or district court does not count against inmate). \"[A]bsent some claim that prison officials thwarted the inmate's request by misfeasance or ,\" the inmate's burden is \"substantial compliance\" under the UMDDA. Griffin, 312 Kan. at 724."], "id": "cdb409e9-65c2-46b3-b4fb-72cd415bcd55", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I neither condone the defendant\u2019s reprehensible conduct, nor maintain that it was not violative of his professional ethics and Hippocratic oath. If, however, the defendant has committed a crime, let him be brought before the criminal halls of justice. For violation of his Hippocratic oath, if there be any, let him suffer the sanctions of the Medical Ethics Board or other appropriate medical authority. But let him not be convicted of his acts of misfeasance and by *898virtue of an action in malpractice. I might parenthetically add, that if the plaintiff is to succeed I am in total agreement with my colleagues that the plaintiff is not entitled to punitive damages and am likewise in full accord that her recovery should not exceed $25,000."], "id": "c372acb2-c912-465c-b4cb-4a044c78f679", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Moreover, the failings of community school boards cannot be blamed on BOE. The decentralization law gave BOE limited powers to oversee the boards. To the extent that defendants allege that corruption and waste by community school boards had a negative effect on student outcomes, the blame must lie with the State for perpetuating a form of school governance that generated corruption and waste. Though problems with decentralization became clear by the early 1980\u2019s, the State did not diminish the powers of community school boards until 1996. This legislation, however belated, appears to have reduced in the City\u2019s public schools. In addition, BOE is subject to extensive financial reporting rules and regulations. It is also served by an active Special Commissioner for Investigation who is charged with investigating corruption, fraud, conflicts of interest and other forms of unethical conduct. Both of these are checks on widespread illegality."], "id": "dd6f0f13-f2c2-49d0-bb57-0d3f7864d3a9", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff\u2019s theory of liability against the architect is essentially predicated upon the claim that he failed to supervise the work of the general contractor and subcontractors. In addition, the plaintiff further alleges the architect failed to enforce proper safety precautions and detect safety violations to prevent the occurrence of the accident to the plaintiff\u2019s decedent. The plaintiff does not allege that her decedent was the victim of architectural ."], "id": "99969100-183f-44fd-856e-6cb5ba2b3f79", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In revising the Penal Law, effective September 1, 1967, some 30 or more miscellaneous sections of the former Penal Law, specifying as crimes particular misconduct, both omissions and commissions, of public officials, were eliminated. Culpability thereunder had been designated by such terms as \u2018 \u2018 knowingly *513permitted\u201d, \u2018 \u2018 willfully neglects \u201d, \u201c willfull omission\u201d, \u2018 \u2018 neglectfully \u2019 \u2019, etc., which were vague, difficult to define and more difficult to apply. Also, these many and varied offenses of and nonfeasance by public servants which accumulated by additions to the Penal Law down through the years and applied to a great variety of public offices, while they pointed up undesirable conduct by public servants, many of them were of such a general petty nature as to be undeserving of the stigma of criminality."], "id": "8df5f0a2-43f9-458d-900b-bddf33a0c273", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs complaint alleges three causes of action. The first and second causes of action purport to allege claims for professional malpractice against defendant, whereas the remaining cause of action is characterized as one which sounds in fraud. The gravamen of plaintiffs negligence/malpractice claim is that defendant allegedly took the parties\u2019 \"professional relationship beyond the status as a mere court-op-pointed evaluator to a deeper, more significant relationship whereby he counseled the plaintiff vis-a-vis [sic] her relationship with her daughter\u201d. Defendant\u2019s is also said to have consisted of his having taken a \"more active role in the dynamics of the plaintiffs relationship with her daughter\u201d. Plaintiff cites the decision of the Appellate Division, Fourth Department, in Twitchell v MacKay (78 AD2d 125), in support of her contention that a professional relationship existed between the parties notwithstanding its genesis and that a professional malpractice claim might emerge from such a situation where the treatment rendered deviates from accepted standards of care."], "id": "2e0ccd98-b3a9-4312-8fcd-59dc8afd7a9c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u25a0 The defendant was therefore a surety for both Rachel Depew and Bornt P. TYinant, and they were equally bound, so far as he was concerned as surety, to look after the estate; and neither could be permitted as against the sureties to take advantage of any liability growing o.ut of an omission to observe this duty, whatever relations might exist between them and creditors. The relation established between them and their sureties was such that both were equally bound so to administer the estate that the sureties should incur no liability. The undertaking of the sureties was that both principals would administer the estate; and if one of them converted it, it *498must necessarily have been because the other did not unite in the actual administration which appears to have been the case here. And, therefore, whatever loss was occasioned was the result of the negligence of the one who failed -to discharge her duties. The sureties indeed are entitled to indemnity from the principals for any loss resulting from the conduct of the latter, and not at all to be subjected to liability to them occasioned by their own misfeasance or . It was held in Van Horne v. Everson (13 Barb., 526), where it appeared that the principal had neglected to pay, and the land of his sureties was sold for the debt and he purchased it, that he acquired no title against his sureties. He could not take advantage of his own wrong. The ruling was in accordance with the dictates of natural justice and equity. The remedy of the plaintiff herein seems to be against the co-principal or his representatives."], "id": "193c0a11-5303-45d0-8aea-c8a17c28da32", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It appears from the evidence that it was well known to the public prior to respondent\u2019s re-election that his accounts and acts as highway superintendent were under investigation by the state auditors and that these matters and charges of were made public in the local press and discussed by the electors. After a full discussion and consideration of these very charges against the respondent, the electorate of the town returned the respondent to office, re-electing him for a term of two years commencing on the 1st day of November, 1913."], "id": "4159df75-cb6b-4af8-b39c-34dc6c7a646a", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u25a0However, claimant\u2019s contract also provided: \u201c(VI) If pursuant to this agreement, the \u2018Contractor\u2019 is reimbursed by the \u2018State\u2019 for any disbursements made for, or in connection with damages to property or any other damages or losses sustained or for judgments entered in excess of amounts, if any, collected from insurance purchases, or for any disbursements made either in defense or settlement of claims against the \u2018Contractor\u2019 arising out of the performance of the work, or both, and if such disbursements were made necessary because of the negligence, , misfeasance, or nonfeasance, of the \u2018Contractor\u2019 or its officers, agents, or employees, or any of them, such disbursements shall not be included in \u2018 cost to the Contractor \u2019 for the purpose of determining the \u2018Contractor\u2019 fee.\u201d"], "id": "8c6307af-574d-4598-8a5a-b31c66ec5568", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendant\u2019s failure to produce the ticket on proper demand suffices to establish a prima facie case of conversion and thereby renders inapplicable the liability limiting provision. The defendant\u2019s have failed to come forward with sufficient evidence to prove that its failure to return the property is not the result of its conversion of that prop*59erty to its own use. Under the circumstances of this case, to disallow Leavy from claiming her price because of the of the defendants would be completely unconscionable."], "id": "5be83fba-c7fc-40bf-8b71-6c304301d833", "sub_label": "US_Terminology"} {"obj_label": "Malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\" in office\" is not defined in the California Constitution or statutes. In defining \"malfeasance,\" the City quotes Black's Law Dictionary: \"A wrongful, unlawful, or dishonest act; esp., wrongdoing or misconduct by a public official.\" (Black's Law Dict. (10th ed. 2014) p. 1100, col. 2.) Case law indicates the crime of malfeasance in office evidences moral corruption and dishonesty. (See Otsuka v. Hite (1966) 64 Cal.2d 596, 608, 51 Cal.Rptr. 284, 414 P.2d 412.)"], "id": "7ba97ec8-a7a9-4e50-a9c3-91c31d416f86", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Whether speech involves a matter of public concern is determined by its content, form and context (supra, at 147-148). The inquiry focuses on the extent to which the employee speech \"was calculated to disclose wrongdoing or inefficiency or other on the part of governmental officials in the conduct of their official duties\u201d (Koch v City of Hutchinson, 847d 1436, 1445, cert denied 488 US 909), and whether the employee was speaking as \"a concerned public citizen, informing the public that the state institution is not properly discharging its duties * * * or merely as an employee, concerned only with internal policies or practices which are of relevance only to the employees of that institution\u201d (Cox v Dardanelle Pub. School Dist., 790d 668, 672)."], "id": "291f3e40-9868-4d15-acbc-adc2cc83a738", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is no provision of law prohibiting actions being prosecuted in the name of the people on official bonds or limiting the right of recovery thereon, to parties injured by a breach thereof. If funds in the custody of a surrogate are lost or misapplied by his negligence or , the remedy upon his official bond should not be suspended to await the determination of other proceedings, pending or to be instituted with a view of determining the rights of claimants to the fund ; but there should be a prompt and vigilant pursuit of the defaulting officer and his sureties for the benefit of those having an interest in the same. Cases may arise where claimants to the funds are unknown, and it would be a reproach to the laws if' dishonest and corrupt-officials could not be prosecuted and compelled to account for misapplied moneys, until such parties appear and establish their title."], "id": "0a26d96f-08c0-4bbc-92a1-1325e9299c83", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendants are charged with the selling of an undefaulted mortgage of $6,210,000 to the mortgagor or his nominees for the sum of $3,000,000 consisting of $2,500,000 in cash and a second mortgage of $500,000, resulting in a discount of the mortgage at a loss of approximately $3,200,000; and that such discount was not in the interest or benefit of the defendant corporation and its stockholders and that the defendants were either negligent or were guilty of bad faith, and breached their trust as trustees of the defendant corporation. It is further alleged that the rationale given by the defendants for their acts was that the loss could be added to the other losses from previous years and would be carried forward as a credit against future taxes and that the additional cash afforded the opportunity for further diversification."], "id": "73093d78-55d5-4a06-be9d-8ba6ff32737c", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It will not be necessary to follow consecutively the succeeding English cases, for they all conform substantially to the exposition of barratry given in the decisions that have been examined. The last of these, however, is a very important one (Gill v. General Iron Screw Collier Co. Eng. Law Rep. 1; C. P. 600; in error, 3 Id. 476), for there a collision arose from the steersman of a vessel starboarding the helm, contrary to the regulations of the merchants\u2019 shipping act of 17 and 18 Yict. ch. 104, and although the statute declared that if any. damage should arise from the non-observance of the regulations, it should \u201cbe deemed to have been occasioned by the wilful default of the person in charge of the deck of the ship.\u201d The court held that this was not a loss arising from barratry; that it did not appear what was the extent of the defa/alt in improperly star-boarding the helm, which may have been anything from simple negligence to actual ; that there was therefore no proof of barratry but for the statute, and that the statute was not passed to decide such questions, but merely to regulate ships and the rights of ship-owners, as between themselves."], "id": "f78e4e31-931f-43f2-9a17-a3c49c9ec445", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This leaves for determination the propriety of the objection to the premature withdrawal of commissions, the consideration of which was hereinbefore reserved. This objection by the special guardian whose infants share only in corpus might be overruled as a matter of law were it an assured fact that commissions would be awarded to the fiduciaries in any event, since in such case the only loss to the estate would be of the use of the money during the period between the time of actual withdrawal and the date of allowance by the surrogate during which the entire income from use belongs beneficially to others than the wards of the object-ant. There is, however, no positive assurance that commissions may not be denied, in which event such adverse determination would accrue beneficially to the corpus and consequently to the interests of the remaindermen. Allegations of improper conduct by the fiduciaries have been made which present triable issues. Whereas improbable, it is not impossible that the determination on their hearing may show such egregious neglect or as to warrant a complete denial of fiduciary remuneration. In view of the favorable intendment due the pleading attacked, this possibility must control."], "id": "706acc8b-82b7-4bd4-b8da-735a6aee4520", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["However, even if the action of the beneficiary could be considered binding upon the successor trustee in this connection, it is entirely apparent that the New York proceeding having proved abortive, its institution would not be considered to constitute an election of remedy. (Schenck v. State Line Telephone Company, 238 N. Y. 308, 311; Clark v. Kirby, 243 id. 295, 303.) In any case, the principle of election will be applied very sparingly by a court of equity when it involves, as it here would, a partial escape of a wrongdoer from the penalty for his egregious in office."], "id": "8e411af7-a3b3-472d-89fa-5b997cf1aebf", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The People also point to the AFI Act's section entitled \"Local Control Over Demonstration Projects\" (AFI Act, \u00a7 411), and argue it would be \"incongruous to mandate local control but preclude local response to .\" However, the local control referred to in the Act is the control of grantee organizations-not local government-and is expressly subject to HHS's sanction authority provided for in the Act. (AFI Act, \u00a7 411 [\"A qualified entity [grantee] ... shall, subject to the [sanctions provision of the Act], have sole authority over the administration of the project.\"].)"], "id": "b3d56352-e963-4a74-a0d0-c14c7474a3da", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*633As the court explained, \"consolidated financials were offered into evidence,\" and \"[b]oth Trustees were subject to cross-examination, [which] afforded those interested in the Trusts an opportunity to gather additional information about Trust expenditures and demonstrate to the Court any trustee .\" Moreover, the court \"invited\" Brown to point out \"any discrepancy between the Trustees' Final Accountings and evidence presented at trial,\" but \"no discrepancies [were] noted in Brown's response.\""], "id": "64e6e95e-5620-4c11-a8ac-c53171e2be29", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u00b6 11. The court next considered whether the length of defendant\u2019s pre-trial detention was excessive in relation to the two regulatory purposes identified above, public safety and risk of flight. It determined that the portion of the delay that was attributable to the State was not due to or neglect, and that the length of his detention, though not routine, was not excessive in light of the other Briggs factors. Therefore, the court concluded, defendant\u2019s due process rights were not violated."], "id": "ae3315fb-b377-48e3-8a35-c09e0507590d", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cThe present owner is liable to the tenant for rent overcharge collected by the owner\u2019s predecessor in interest where, as here, there was a proceeding pending before the DHCR * * * and a simple search or inquiry would have disclosed the fact. The owner\u2019s reliance upon her predecessor\u2019s representations, if any, subjects the owner to liability. The current owner should be bound by the errors, whether misfeasance or , of its predecessor in interest. A tenant, even one who has vacated the premises, who was not a party to the sale of the subject premises should not suffer the burden of being unable to recover rent overcharges. The current owner also can hardly claim to have been taken by surprise by the Administrator\u2019s order, having been given a thorough chance to respond through notices at least on June 30, 1992 and August 18, 1992. (It appears that her only response was an August 12, 1992 request for an extension of time. The Administrator\u2019s order was not issued until January 18, 1995.)\u201d"], "id": "2c6ae4fe-f4a0-4d42-a844-8740de485266", "sub_label": "US_Terminology"} {"obj_label": "malfeasance", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A motion to dismiss pursuant to CPLR 3211 (a) (1) may only be granted where the \u201cdocumentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law\u201d (see, Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Jaslow v Pep Boys \u2014 Manny, Moe & Jack, 279 AD2d 611 [2001]; Brunot v Eisenberger & Co., 266 AD2d 421 [1999]). In the case at bar, the documentary evidence fails to establish, as a matter of law, a defense to the plaintiff\u2019s claims of tortious allegedly perpetrated by the defendants."], "id": "c9ecd144-3819-4bd8-b0c6-899d30487efe", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The main issue presented here is whether a granted to defendant during the pendency of this divorce action is a defense to the unadjudicated equitable distribution claims where defendant listed her spouse\u2019s potential claim in equitable distribution as an unsecured nonpriority claim. The Supreme Court of this State is given exclusive jurisdiction to determine the nature and extent of property subject to equitable distribution in a matrimonial action while the Bankruptcy Court is given exclusive jurisdiction to adjudicate the impact of the equitable distribution entitlement on property subject to the claims of creditors of the bankruptcy estate. (Matter of Palmer, 78 Bankr 402, 406 [ED NY 1987]; Matter of Levine, 84 Bankr 22, 24 [SD NY 1988].) In other words, although the question of what is property of the bankruptcy estate is a Federal question, the creation and definition of property rights is reserved to State law. (Butner v United States, 440 US 48, 55 [1979]; In re Purpura, 170 Bankr 202, 208 [ED NY 1994]; In re Frederes, 141 Bankr 289, 291 [WD NY 1992]; In re Hilsen, 119 Bankr 435, 438 [SD NY 1990].) Equitable dis*96tribution rights under New York law vest only upon the rendering of a judgment awarding distribution of marital property. (Domestic Relations Law \u00a7236 [B] [5].) There are no vested present or contingent property rights or interests, legal or equitable, in such property solely because it may be categorized as marital property. (Frederes, 141 Bankr at 291-292; Hilsen, 119 Bankr at 438; Palmer, 78 Bankr at 406; In re Hohenberg, 174 Bankr 487 [WD Tenn 1994]; see also In re Berlingeri, 246 Bankr 196 [D NJ 2000] [right to payment on equitable distribution claims arise on granting of divorce judgment, such claims arising after bankruptcy is filed do not constitute prepetition debts subject to discharge]; see, e.g., Sperber v Schwartz, 139 AD2d 640, 642 [2d Dept 1988] [equitable distribution claim precluded when action is abated due to spouse\u2019s death during pendency of divorce action].)"], "id": "6dc4a273-0361-451d-a811-89fb7275256b", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In 1976, Frederick Snyder obtained a and his one-half interest in the real property was sold by the bankruptcy trustee to defendant LaPointe.2 Virginia Snyder obtained a bankruptcy discharge in 1983. Thus, both Frederick Snyder and Virginia Snyder have been relieved of any personal liability for the outstanding judgments. The Adirondack Trust Company commenced a foreclosure action in 1984 which culminated in a judgment of foreclosure and a judicial sale on July 31, 1985. The Referee\u2019s report of the sale was filed on August 31, 1985 reflecting a surplus of $49,777.82 which was deposited with the Saratoga County Treasurer. Shortly thereafter, the State Tax Commission and Virginia *161Snyder filed notices of claim to the surplus. An order confirming the Referee\u2019s report was subsequently entered on January 2, 1986. Virginia Snyder, by notice of motion served February 25, 1986, moved for an order pursuant to RPAPL 1361 for the appointment of a Referee to ascertain the amount due her or any other party and to ascertain the priority of the lienholders to the surplus. The judgment creditors at issue filed notices of claim to the surplus on February 28, 1986. The court thereafter appointed a Referee who, following a hearing, filed his report with the court. The Referee, in essence, concluded that the three judgments filed on behalf of the estate of George Canaday and Margaret Canaday were entitled to priority over the equity of redemption claim of Virginia Snyder. The Referee rejected any claim to the surplus filed on behalf of the State Tax Commission."], "id": "9d569534-65df-4dcc-b441-2d90316b6db6", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trial court's findings begin by confirming, as does the notice of bankruptcy admitted into evidence, that Adeleye filed for bankruptcy prior to the start of the divorce proceedings. The trial court further indicates that the bankruptcy court did not lift the stay to permit the divorce proceedings to take place, and the order indicates that the bankruptcy proceedings did not end until after the trial court entered the divorce decree. It therefore appears that the automatic bankruptcy stay was in place during the entirety of the lower court proceedings in this case and that the trial court therefore had no power to render a judgment dividing the marital estate. See 11 U.S.C. \u00a7\u00a7 362(a)(1) (providing that the filing of a bankruptcy petition automatically stays the commencement or continuation of any action against the debtor), 362(b)(2)(A)(iv) (explaining that the stay applies to divorce proceedings to the extent they seek to divide the marital estate); York v. State , 373 S.W.3d 32, 42 (Tex. 2012) (\"As a matter of Texas law, a state court has no power to render a judgment in violation of the automatic stay under fundamental, constitutional law ....\")."], "id": "f5d7b616-e0cc-46de-8a99-c8808478ef22", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cGiven the critical importance of full and candid disclosure in chapter 11 proceedings, it cannot be that the requirement of adequate disclosure evaporates because a reversion of property is obtained by dismissal, under \u00a7 349 ... To hold otherwise would be to encourage a procedural end-run around the disclosure requirements, thereby rewarding parties that fail to comply with the directive of section 1125. Thus, a is not a prerequisite to a finding that a debtor lacks standing to assert undisclosed claims postbankruptcy.\u201d (236 BR at 54-55.) None of the nine bankruptcy proceedings commenced by the plaintiffs was brought under chapter 11 so the provisions of section 1125 (a) of the Bankruptcy Code mandating that the debtor provide \u201cadequate information\u201d was not applicable to them. It is a distinction without significance. \u201c[T]he integrity of the bankruptcy system depends on full and honest disclosure by *248debtors of all of their assets.\u201d (Rosenshein v Kleban, 918 F Supp 98, 104 [SD NY 1996].) That is true whether a proceeding is brought under chapter 11, chapter 7 or chapter 13. (See Hamilton v State Farm Fire & Cas. Co., 270d 778, 785 [9th Cir 2001]; In re Coastal Plains, Inc., 179d 197, 207-208 [5th Cir 1999], cert denied sub nom. Mims v Browning Mfg., 528 US 1117 [2000].) Obviously, without full disclosure of all of a debtor\u2019s assets, including claims and causes of action against other parties, neither the trustee, nor the creditors, nor the Bankruptcy Court itself can make a rational decision as to what course in bankruptcy is in the best interests of the debtor or the creditors."], "id": "ecc0700d-327e-493c-9ad9-64b886ea7c8a", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Dr. Wong, in opposition, contends that as a \u201ccovered person\u201d entitled to indemnification, he is protected by St. Vincent\u2019s . Dr. Wong asserts that at the time of the alleged malpractice he was an employee of St. Vincent, insured by the hospital \u201cunder the self-insurance fund[, and that he] had no additional medical malpractice insurance coverage other than that provided by [St. Vincent].\u201d"], "id": "e742d60a-fa17-46e7-a688-2fb417a697b5", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Lastly, Bern assumed an obligation of the lease agreement which was signed on March 7, 1997, one month after the bankruptcy order discharged their creditors. By assuming the rights and duties under the predecessor lease, they may have obligated themselves to pay the outstanding brokerage commission of the plaintiff. The plaintiff has argued that this was no \u201carm\u2019s length\u201d transaction between Bern and FBBC. The owners of both corporations are alleged to be the same individuals, who may have \u201cunclean hands.\u201d The plaintiff contends the extension and modification agreement were conveniently made one month after the , as merely a mechanism to defeat the plaintiffs action for the real estate brokerage commission. That is the ultimate issue to be determined at trial."], "id": "dd6301f1-a6ef-4ab7-874b-a35908a143a0", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Loving v Abbruzzese (298 AD2d 749 [3d Dept 2002]), although not a claim under the Human Rights Law, the court *399held that rights in existence at the bankruptcy proceeding, but not addressed therein, remain actionable in state court. In the instant case, the merits of the aiding and abetting claim were similarly not addressed. Neither side, nor the court, has succeeded in finding a of a claim but not on the merits, to bar a subsequent action on the merits. The Loving decision lends credence to the argument that this claim survives the bankruptcy and should not be dismissed, particularly in accordance with the directive to give the Human Rights Law a liberal construction to effectuate its remedial objective. Accordingly, plaintiffs claim of aiding and abetting survives defendants\u2019 motion to dismiss."], "id": "67ba343a-8312-4299-a77a-f66c42ec091d", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The undertaking of the defendants is to pay the amount of any judgment which might be obtained against their principal. Until judgment was recovered and demand of payment made the liability of the defendants was not fixed. Before that it was contingent. It was not essential to the validity of this undertaking that an attachment had been issued or levied. ( Coleman v. Bean, 1 Abb. Ct. of Ap. Dec., 394; Onderdonk v. Voorhis, 36 N. Y., 358; Bildersee v. Aden, 12 Abb. [N. S.], 324.) Besides, it appears that the attachment in this case was discharged upon the giving of this undertaking. McCrillis thereafter had complete control of his property, and, if it was not appropriated otherwise, the property attached went to his assignee in bankruptcy, and was applied in payment of his debts. The attachment after its discharge no longer stood in the way of such proceedings. It made no difference whether McCrillis petition was filed more or less than four months after the attachment was levied. In either case the property attached went alike to the assignee, because there was no other claimant. The plaintiff in the attachment suit did not claim it. He held the defendants\u2019 obligation in lieu of his lien by attachment. The Code had compelled him to yield all claim to specific property of McCrillis, and to take in lieu the defendants\u2019 contract for the payment of any debt he might establish by judgment. The bankrupt law does not apply to such a case, and will not discharge these obligors if the judgment shall be obtained. (Holyoke v. Adams, 1 Hun, 223.) An appeal from this decision was dismissed, on the ground that the order which refused leave to plead the , in answer to an action on the bond, was discretionary. But Judge Folgek, in an admirable opinion, sustains the views taken in the court below. (59 N. Y., 241-242.)"], "id": "558ee7e2-f62a-4be0-ab62-bd0f3804b0a0", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In general, after a discharge in bankruptcy, a creditor must file a notice of claim during the bankruptcy proceedings to maintain its claim against the debtor (see, In re Jet Fla. Sys., Inc., 883d 970 [11th Cir 1989]; In re Frigitemp Corp., 8 BR 284 [SD NY 1981]). If the creditor fails to file such notice, any rights against the bankrupt are said to be waived (In re Jet Fla. Sys., Inc., 883d at 972). The purpose of the and related injunction is to afford the debtor a \u201cfinancial fresh start\u201d (id. at 972 [internal quotation marks omitted], citing Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv L Rev 1393, 1396-1397 [1985]). However, the \u201cdischarge will not act to enjoin a creditor from taking action against another who also might be liable to the creditor\u201d (In re Jet Fla. Sys., Inc., 883d at 973, citing 11 USC \u00a7 524 [e])."], "id": "d876e1ce-7c1a-4411-9f71-98b5bad1797b", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his bankruptcy proceeding, Goldman stated that Richard, G & R and Rio, PLLC were creditors. He stated he had no assets. Goldman takes the opposite position in this action. He claims an entitlement to his equity in G & R and/or his share of legal fees earned by Richard, G & R and Rio, PLLC relating to legal services he provided and legal fees earned prior to his suspension. Judicial estoppel prevents Goldman from making these contradictory claims after having obtained a ."], "id": "a8eccf4a-1576-49c4-b33a-7781cbf6f664", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the case at hand, Dr. Wong seeks to distinguish the Goodman case on the grounds that the Goodmans filed suit following confirmation of the plan, whereas the plaintiff in this case commenced her action prior to confirmation. This argument is without merit. Regardless of whether Dr. Wong is a \u201cCovered Person\u201d entitled to be indemnified by St. Vincent, he is a nondebtor third party and, as such, not subject to St. Vincent\u2019s or injunctive relief (In re Saint Vincents Catholic Med. Ctrs. of N.Y., 417 BR at 696)."], "id": "fc1da5d7-a9b0-495e-b59a-412220fd76ed", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court\u2019s research has also revealed cases where the rule of section 1371 (3) has not been applied to preclude further action by a mortgagee. Again proceeding chronologically, in Robert J. Elser, Inc. v Keeffe (198 AD2d 339 [2d Dept 1993]), the parties had specifically agreed as to the order and timing of the sale of several properties securing the debt and a guaranty, so that the defendant was held to be estopped from asserting section 1371 after the first of those sales. In Bank Leumi Trust Co. of NY. v Andrews (254 AD2d 445 [2d Dept 1998]), the mortgage at issue provided that it secured only a specified part of the debt and the mortgagee received a full recovery of that amount through the foreclosure process, so that there was no deficiency. In Washington Mut. Bank, F.A. v Allstate Ins. Co. (48 AD3d 554 [2d Dept 2008]), the mortgagee was enjoined by the specific terms of the defendant\u2019s from pursuing a deficiency judgment. In Hometown Bank of Hudson Val. v Colucci (127 AD3d 702 [2d Dept 2015]), a foreclosure action was brought to foreclose mortgages securing three loans comprising the financing package for a residential subdivision. By stipulation, the action was discontinued \u201cwithout prejudice\u201d as to one of the mortgage loans. The lender was later allowed to maintain an action against the guarantor of that loan. In each of these cases, the particular factual setting either prevented or obviated the application of section 1371."], "id": "2be2f7ce-7981-4f02-8003-7ae40542cb0e", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In sum, then, the New York rule is threefold: (1) where the assured pays part of the judgment or is solvent enough to do so at the time of the excess judgment, the judgment rule applies and he is entitled to the full amount of the excess as his damages; (2) where he was insolvent before the judgment and obtained a after it, he is not damaged and may not recover for it; and (3) where he was insolvent or nearly insolvent prior to the judgment the jury must consider his past, his prospects, and other economic factors and assess his damages."], "id": "bd98166a-cbc3-431e-88ca-07efd1d53740", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Respondent filed a chapter 7 bankruptcy (96B45722) on or about October 23, 1996. Notwithstanding the bankruptcy filing a warrant was issued on November 12, 1996. This nonpayment proceeding was stayed pending the bankruptcy proceeding. This court has no indication that the petitioner landlord sought to lift the bankruptcy stay. The chapter 7 bankruptcy proceeding resulted in a order dated February 20, 1997 absolving respondent of the petitioner landlord\u2019s money judgment."], "id": "b7fd2315-1b35-49aa-853f-70e3f8eecdcc", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In support of his standing argument, Kinney cites cases where a non-prevailing party had standing to challenge whether the prevailing party technically incurred attorney fees where in-house counsel performed the legal services on behalf of the prevailing party (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 95 Cal.Rptr.2d 198, 997 P.2d 511 ) or the law firm in which the prevailing party was a partner performed the legal services (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 104 Cal.Rptr.2d 461 ). These cases are not germane to Kinney's argument regarding the effect of Clark's on her pre-petition debt to her attorneys and whether he has standing to challenge the December 15, 2008 award of attorney fees and costs based on these bankruptcy concerns."], "id": "6498f315-91d7-4e48-8808-5e83c742ee8d", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With the trustee's sale looming, and left with no other option, Turner filed for chapter 7 bankruptcy. In the months following Turner's , Seterus *534refused to work with plaintiffs on a foreclosure prevention *522solution. Ultimately, on April 29, 2013, Fannie Mae (which at that time held the beneficial interest under the deed of trust) purchased the property at the foreclosure sale."], "id": "f8da8dac-6516-4661-9062-e2bdd92643f0", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs never sought damages from Defendant Children. When Defendant Parents filed bankruptcy, it automatically and broadly stayed any collection case against them or any other act to collect or recover a prepetition claim. 11 U.S.C. \u00a7 362(a) ; 1A Mo. Prac., Transaction Guide \u00a7 26.14 (4th ed., Dec. 2017 update)(\"Transaction Guide\"). The appellate record also indicates that a was granted, which would forever bar any acts to collect or recover discharged debt \"as a personal liability of the debtor.\" 11 U.S.C. \u00a7 524(a)(2) (our emphasis); Transaction Guide \u00a7 26.34. However, despite any personal-liability discharge of Defendant Parents, the bankruptcy court ordered that Plaintiffs could pursue their instant claims \"concerning real estate.\""], "id": "ff5668d2-ba09-410e-93ab-655a602a72c6", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The released the defendant, unless the debt was not provable; and the burden is upon the creditors to bring his debt within the exception. The bankrupt can rest upon his discharge and its effect upon his debts; and the creditor is concluded by it until he shows that, his debt is of a nature not extinguished by it."], "id": "6d64d26c-d08e-4392-baa2-1bbb42748579", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the nonpayment proceeding, when the landlord inadvertently defaulted and then quickly moved to vacate the default and consequent dismissal, the petitioner\u2019s motion is granted to the extent that the original judgment of possession dated October 17, 1996 is reinstated but the warrant is vacated. The original warrant is not valid as it was issued in violation of the original bankruptcy (96B45722) stay. Given that the possessory aspect of the nonpayment judgment was not vacated by the , the warrant may be reissued and execution of the warrant is stayed 10 days after service of a copy of this decision on the respondent with notice of entry."], "id": "6c2c148b-5464-4414-b7c7-af2386ce840e", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Where the insured is judgment proof, however, Henegan is not dispositive and the rule to be applied seems obscure, more jurisprudence on the question being available from the United States Court of Appeals for the Second Circuit than from New York courts. In Harris v Standard Acc. & Ins. Co. (297d 627, cert den 369 US 843), where the insured was insolvent before rendition of the excess judgment, paid none of it and subsequently obtained a of the obligation, it was held that the insured was not harmed by the bad *84faith actions of the insurer and the action was dismissed. Although Harris was followed by the Second Circuit in Bourget v Government Employees Ins. Co. (456d 282 [construing Connecticut law]), in Young v American Cas. Co. (416d 906, cert den 396 US 997) the court distinguished Harris from a situation involving insureds who were solvent before the excess judgment was rendered but who filed a petition in bankruptcy after having paid part of the judgment. In that situation, the measure of damages under New York law was deemed to be the full amount of the excess judgment."], "id": "e6ff2d8f-2aeb-4274-a8f7-b179f7d558a2", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff\u2019s contention that pursuant to 11 USC \u00a7 108 she should have 30 days from the date of notification of the is correct. However, it is undisputed that on November 13, 1996, attorneys for defendant notified counsel for the plaintiff that the bankruptcy had been discharged. Plaintiff\u2019s argument that this notice was insufficient because it did not contain a date of discharge or a copy of the order is unavailing. The fact that the letter did not contain the date of discharge is irrelevant since plaintiff had the additional time in which to commence the action from the time of the notice."], "id": "ae62a9d0-1f11-4a1e-8657-e57137bd0835", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In March 2009, St. Vincent and Dr. Wong moved, pursuant to CPLR 3211, to dismiss the complaint against them due to plaintiffs failure to file proof of claim by the bankruptcy bar date (the underlying motion). The defendants argued that plaintiff had actual notice of the bankruptcy proceeding and failed to seek leave of the Bankruptcy Court to file a late claim. In addition, defendants maintained, Dr. Wong, an employee of the hospital, was covered under its self-insurance fund and therefore is a \u201ccovered person\u201d subject to the protection of its . Defendants pointed out that plaintiff only alleges causes of actions for which the hospital would be vicariously liable for the conduct of employees, such as Dr. Wong, or of attending physicians (see Mduba v Benedictine Hosp., 52 AD2d 450 [1976]) with a right to indemnification. In opposition, plaintiff maintained that Dr. Wong was an active tortfeasor with no right to indemnification by St. Vincent and, moreover, that the defendants waived their right to dismissal (CPLR 3211 [a] [5]) by failing to timely seek this relief (CPLR 3211 [e]). Plaintiff did not dispute that she had not timely filed a proof of claim. By order of August 14, 2009 the defendants\u2019 motion was granted, the complaint against St. Vincent and Dr. Wong dismissed, and the caption of the action amended accordingly."], "id": "b99871c6-494e-4d88-ace5-36fac0811337", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Finally, DeLarco v DeWitt (supra), another case on which defendants heavily rely, also furnishes no support for dismissal here. In DeLarco, plaintiff had sued his former attorney in 1986 for legal malpractice arising, inter alia, out of the 1983 purchase of a piece of real property. Plaintiff\u2019s former attorney had continued to represent plaintiff through August 30, 1985, and plaintiff had consulted other counsel earlier in August 1985 who had advised him that a claim for malpractice could be brought in connection with the 1983 real property transaction. In December 1984, plaintiff had filed a chapter 13 petition in bankruptcy, which was converted to a chapter 7 case in November 1985. Plaintiff received a on *117April 8, 1986, and, a few days later, instituted the malpractice action. The Appellate Division, Third Department, upheld the dismissal of the malpractice action for lack of plaintiffs\u2019 legal capacity to sue, reasoning that,, all bases of the claimed legal malpractice having accrued between 1983 and August 1985, all should have been listed on the original bankruptcy petition (or on a possible amended schedule of assets)."], "id": "f5358010-0434-4351-8deb-a98795461aa2", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In March 2011, Comerica requested the court to issue an abstract of judgment against judgment debtor Gordon only. Comerica stated it had settled with Kissen, Facciuto, and the Facciuto Family Trust, and that Kline had received a . The court granted Comerica's request and ordered the court clerk to issue an abstract of judgment against Gordon only. ( Comerica II, supra, G051972.)"], "id": "f16b0251-b700-4f42-8f4d-08116c2c5120", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*440By notice of motion, dated October 13, 2009, plaintiff seeks reargument. Plaintiff argues that Dr. Wong was an attending sued due to his individual acts of negligence, and that Dr. Wong was not a party to the bankruptcy proceeding, is not a \u201cdebtor\u201d as defined by the Bankruptcy Court and, therefore, is not entitled to the protection of St. Vincent\u2019s . Plaintiff maintains that the right to sue St. Vincent was extinguished by the August 14, 2009 order, and that as an active tortfeasor Dr. Wong, in any event, would be precluded from indemnification by the hospital."], "id": "87a92de3-b7ce-40df-8be4-0494046e6963", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Respondent appears pro se in both proceedings and argues: (1) the voids the money and possessory nonpayment judgments; (2) the lease was \u201cassumed\u201d by rent payments after the filing of the bankruptcy petition and prior to the holdover notice to terminate; (3) there is assurance of future performance under the lease based on payments, made pursuant to court order, which covered March 1997 through October 1997 rents; and (4) bankruptcy is not a breach of the rent-stabilized lease at issue."], "id": "18509fc9-9b75-4e0a-9625-31e3b05ca840", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Neither Federal Rules of Bankruptcy Procedure rule 2002 nor the current Bankruptcy Code were in effect when the Court of Appeals decided Dobie in 1976. Nor was Federal Rules of Bankruptcy Procedure rule 2002 enacted until 1983, after the Appellate Division, Third Department, ruled in 1982. Although Congress\u2019s enactment of the Bankruptcy Code in 1978 did not change the substantive law regarding bankruptcy discharges, Congress\u2019s enactment of Federal Rules of Bankruptcy Procedure rule 2002 in 1983 did change the procedural law governing how the courts are to apply the Bankruptcy Code\u2019s provisions. In 1976, before the relevant rule was in effect, the Court of Appeals gave the statutory predecessor to 11 USC \u00a7 523 a literal reading. Today, however, a court must read 11 USC \u00a7 523 in light of Federal Rules of Bankruptcy Procedure rule 2002, which negates a blanket imposition of 11 USC \u00a7 523\u2019s scheduling requirement in \u201cno asset, no bar date\u201d chapter 7 bankruptcy *608filings. In these cases, all debts other than intentional tort debts are presumptively dischargeable and need not be scheduled in order for the debtor to receive the benefit of a . As much of Dobie as suggests otherwise is no longer viable."], "id": "ee0769ec-b1b6-4485-a73c-67459a1ab6f8", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Saliann Scarpulla, J. Plaintiff Barclays Bank PLC (Barclays) brings this action against defendant Paul Kemsley (Kemsley) for breach of contract in connection with a loan agreement. In motion sequence No. 002, Barclays seeks summary judgment against Kemsley on its breach of contract claim. In motion sequence No. 004, Kemsley seeks summary judgment dismissing the complaint based on the principle of comity and the recognition of a granted in his favor in the United Kingdom. The motions are consolidated for disposition."], "id": "89fd95e2-cefd-4975-866a-93da4d6ffc38", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Susan Van Brackle (hereinafter Van Brackle) raises two arguments in support of her application for dismissal. The first is that CPLR 3211 (a) (5) bars UMEZ from maintaining its breach of contract claim against her, because the September 9, 2004 order of the United States Bankruptcy Court for the Eastern District of New York discharged the debt underlying that claim. (See notice of motion, Axiotis affirmation 11 5 [a].) UMEZ counters that Van Brackle\u2019s does not apply to this claim because she improperly failed to list UMEZ as a creditor on her chapter 7 bankruptcy petition. (See Fleming affirmation in opposition HIT 5-6.) After reviewing the applicable law, the court finds in Van Brackle\u2019s favor and dismisses the complaint."], "id": "a1ce7c7d-53d3-4c29-9c98-7496e19e2726", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff, on the other hand, argues that the was the result of a reorganization of the corporate defendants, resulting in their discharge of any obligation to the plaintiff. However, although their discharge insulates them from liability, there was no finding by the bankruptcy court on the merits of the plaintiffs claims against these defendants. That being so, plaintiff is free to litigate his claim of Wodzenski\u2019s aiding and abetting defendants. This is so, he argues even though the bankruptcy discharge relieves the corporate defendants of any liability without a decision on the merits."], "id": "f040a6ee-5d5e-4fe1-b749-58dcc82345a6", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In New York no recovery may be had for losses which might have been prevented by reasonable effort and expenditure (Wilmot v State of New York, 32 NY2d 164), although there is no duty to take extraordinary measures (Reichert v Spiess, 203 App Div 134; People's Gas & Elec. Co. v State of New York, 189 App Div 421; Salembier, Levin & Co. v North Adams Mfg. Co., 178 NYS 607; O'Connor v New York & Yonkers Land Improvement Co., 8 Misc 243). A plaintiff is not obligated to surrender a right of substantial value in order to minimize loss (Restatement, Torts, \u00a7 918, Comment j) or to institute and prosecute a lawsuit to accomplish the purpose (Lipshie v Lazarus, 235 NYS2d 764). Nor should a plaintiff be required to undergo a bankruptcy in order to benefit the wrongdoer who has caused his financial distress in the first place (see Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv L Rev 1136). To be compelled to seek a under such circumstances may be a significant loss for the sensitive or those who have a reasonable likelihood of ever requiring credit (see dissent in Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, supra, see, e.g., Smoot v State Farm Mut. Auto. Ins. Co., 299d 525, supra [construing Georgia law]; Southern Fire & Cas. Co. v Norris, 35 Tenn App 657, supra) and may constitute legal damage for which recovery may be sought (Anderson v St. Paul Mercury Ind. Co., 340d 406, supra; cf. Colegrove v City of Corning, 54 AD2d 1093). Not only does a discharge in bankruptcy of an insured, solvent when the tort judgment was rendered, not bar recovery (Young v American Cas. Co., 416d 906, supra), but it is common practice for bankruptcy trustees to act as plaintiffs in bad faith actions against insurers (see, e.g., Young v American Cas. Co., supra; Anderson v St. Paul Mercury Ind. Co., supra; Brown v Guarantee Ins. Co., 155 Cal App 2d 679, supra; Smith v State Farm Mut. Auto. Ins. Co., 278 F Supp 405)."], "id": "7c77fd16-55b4-456c-9819-9c9735d64700", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Once \"a is entered, it replaces the automatic stay with a permanent injunction against such judicial proceedings.\" (Weakly-Hoyt v. Foster (2014) 230 Cal.App.4th 928, 931, 179 Cal.Rptr.3d 734, italics added.) That is because a discharge in bankruptcy operates as an injunction against any action to collect a discharged debt. (11 U.S.C. \u00a7 524(a)(2).) Like the automatic stay, \"the postdischarge injunction affect[s] only the personal liability of the debtor \"; the postdischarge injunction \"do[es] not extend to third parties liable for the same debt.\" (Weakly-Hoyt, at pp. 931-932, 179 Cal.Rptr.3d 734 ; italics added.)"], "id": "dcb43d27-184b-4509-aa9e-5705adf9ae07", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is no dispute that the personal liability of defendants as to plaintiff\u2019s claim was extinguished by the discharge in bankruptcy (see, 11 USC \u00a7 524 [a] [1]). The issue presented here, however, is whether the judgment docketed by plaintiff prior to defendants\u2019 petition in bankruptcy survived the . If the judgment did survive the discharge in bankruptcy, defendants are not entitled to remove the judgment of record pursuant to Debtor and Creditor Law \u00a7 150 as previously granted by this court."], "id": "d648a614-00a7-47d6-af3f-a76a0d372525", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant wife cross-moves for an order directing plaintiff husband to comply with the provisions of the stipulation and the judgment of divorce wherein plaintiff husband agreed and was ordered to pay the judgment obtained by the Hebrew Academy of Nassau County against both parents for tuition arrears (the HANC judgment), and defendant wife\u2019s legal fees.2 Plaintiff husband argues that as a result of the order he obtained in his bankruptcy filing these two obligations have been discharged. In fact, plaintiff husband listed as unsecured claims the $25,000 owed to defendant wife\u2019s attorneys, Jaroslawicz & Jaros, Esq., and the $71,875.42 HANC judgment in his bankruptcy filing. Defendant wife argues otherwise."], "id": "f1a1432d-aa8d-4fe8-b54e-f56f283d5e64", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The husband next contends that because the wife never objected in Bankruptcy Court to the discharge of the HANG judgment and the legal fees she cannot now collaterally challenge the discharge of these two obligations pursuant to the discharge order in this court. The husband misses the point. Although the order, which discharged the husband\u2019s debts to third-party creditors, such as HANG and the wife\u2019s counsel, is final as to the relationship between husband and these third-party creditors, the Bankruptcy Court never issued a final determination with respect to relationship *1049between him and his former wife. In fact, nothing in record remotely suggests that the Bankruptcy Court considered the marital relationship and the obligations assumed in the stipulation and divorce judgment when it issued the discharge order. A determination is still needed as to the dischargeability of these obligations pursuant to section 523 (a) (5)."], "id": "e399be80-e079-4a4c-a857-e49d96a6fd49", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant Herman Breuer (Breuer) mortgaged a two-family residence located on Elm Street in Saratoga Springs to plaintiff. In July 1995, plaintiff had the property appraised and *289it was valued at $81,500. In October 1995 Breuer filed for personal bankruptcy naming plaintiff as a secured creditor owed $60,440. In November 1995, defendant had the property appraised in connection with his bankruptcy filing and its market value was given as between $63,000 and $66,000. Defendant was granted a on March 4, 1996 and was then released from having any personal liability to plaintiff for the mortgage debt. In July 1996 defendant alleges that he vacated the property and advised plaintiff of his action. The property was occupied by two tenants at the time."], "id": "c01e8469-9bda-451a-93ca-51d2e81ce330", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The petitioner bank contends: (1) that since the date of the , it may enforce its judgment lien against the real property of the respondents, (2) that the respondents are *692entitled to utilize only their State exemptions in this proceeding since New York State \u201copted out\u201d, (3) that the State exemption is limited to $10,000 and (4) that it is a single exemption per homestead and is not cumulative."], "id": "df2362d1-71d6-4c9e-bef9-4d6ddd4f4f09", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendant Virginia Snyder now objects to the court\u2019s confirmation of the Referee\u2019s report upon the ground that the surplus money should be considered the personal property of the owner of the equity of redemption because the judgment creditors\u2019 liens given priority were not enforceable. The objectant contends that the three judgments lapsed on December 23, 1985, 10 years after they were docketed. The objectant argues that since the judgments were not judicially extended they lost their priority to the surplus moneys since no formal claims to the surplus were filed prior to their 10-year anniversary. The objectant argues that the three judgment liens, by virtue of her , cannot be enforced against her share of the equity of redemption since that asset now constitutes her personal property. No other party has appeared on this motion."], "id": "29404bbd-014c-4d8d-8c69-a7a643652a28", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is no doubt upon the authorities, that if the plaintiff had proved its debt in due form while the sheriff had in his custody the property seized by him upon the execution, it would have been necessary to set forth such facts in the proof of the debt, and the assignee in bankruptcy would be subrogated to the plaintiff\u2019s rights in reference to the property so in the custody of the sheriff. But it is to be borne in mind that what is claimed as proof of the debt in the bankruptcy proceedings was not made until long after the sheriff had parted with the custody of the goods levied on, and they had passed under the control, in fact, of the assignee, and the only security which the plaintiff had, so far as the sheriff was concerned, was the collateral liability of the latter for releasing the goods. It is noticeable that the alleged proof of the plaintiff\u2019s debt wholly omits to state that he has any security therefor other than that offered by the judgment itself, and wholly omits to pursue the statute by negativing the fact that he, or some one in his behalf, has received security. Waiving, for the present, the question of the defective form of the proof, did the proof of the plaintiff\u2019s claim in the right of action against the sheriff? If it did, it so operated by virtue of the provision of the twenty-first section which declares that all unsatisfied judgments shall be deemed to be discharged and surrendered thereby. Upon a careful examination of the provisions of the section it will be seen that the apparent intent of the provisions therein contained are only to prevent future proceedings against the bankrupt, or his estate, and it answers the intent of the *164statute to hold that the judgment is to be deemed discharged and surrendered so far as the bankrupt and his estate are concerned, as to any further proceedings thereon against them. An indorser is not discharged by proof of the debt against the maker in bankruptcy. (Merchants\u2019 Nat. Bank v. Comstock, 55 N. Y., 29.) Nor does it discharge one collaterally liable for the same debt. (Shellington v. Howland, 53 N. Y., 375.) It wnuld hardly be contended that in ease the holder of a note had obtained a judgment against both maker and indorser, proof in bankruptcy as against the maker would discharge or surrender the judgment so far as the indorser was concerned."], "id": "c69be3d8-f593-46b7-8ca0-2ce860cda5ee", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u00b65 PWB then filed a motion in the bankruptcy court seeking a determination that McLauchlan\u2019s did not affect PWB\u2019s interest in the residence secured by its recorded judgment. McLauchlan objected, arguing that under A.R.S. \u00a7 33-964(B), judgment liens do not attach to homestead property. The bankruptcy court then certified this question to us. Agreeing that no prior decision of this Court had addressed this question and that clarification is warranted, we agreed to answer the question. See A.R.S. \u00a7 12-1861; Ariz. R. Sup. Ct. 27."], "id": "1ff29f3f-f4e1-46de-8027-6d1b83736db2", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Petitioner moved by order to show cause, returnable on October 7, 1997, to vacate the dismissal and sought reinstatement of the judgment and warrant. The motion, over respondent\u2019s oral opposition, was granted to the extent that the nonpayment case dismissal was vacated. The case was adjourned for argument on October 21, 1997 as to whether the possessory final judgment in the nonpayment case is viable in light of the chapter 7 . Decision on the motion was reserved pending submission of briefs on November 6."], "id": "8e0a6d7d-963d-4460-b413-268083d40c1a", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Second, even if Kinney's challenge of the December 15, 2008 award of attorney fees and costs were timely, he lacks standing to make the argument regarding the effect of Clark's on her pre-petition debt to her attorneys. Clark has a judgment against Kinney in the amount of the December 15, 2008 award. What Clark owes her attorneys and what she pays them out of the judgment are matters between her and her attorneys. As the bankruptcy court pointed out to Kinney when it granted the motion to abandon Clark's right to recover attorney fees and costs against him, Kinney was not a creditor of Clark's estate and he had no interest in the administration of her estate. Clark's bankruptcy did not benefit Kinney. It did not discharge his debt to her-the December 15, 2008 award. Accordingly, we reject Kinney's argument that allowing Clark to enforce the judgment against him would be inequitable to him and a windfall for her.8"], "id": "ba3ffa04-e23c-4786-a686-0ddf3d80a6a8", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nevertheless, Judge Peck\u2019s observations and interpretation of chapter 15 are highly persuasive, particularly in this *779case of first impression. Judge Peck properly noted that the plain language of chapter 15 applies only to a \u201cforeign representative\u201d such as a trustee. There is no mention of individual debtors in chapter 15, nor any indication that chapter 15 is applicable to foreign orders issued to individual debtors. Accordingly, I adopt the instructive view and opinion of Judge Peck, that chapter 15 of the Bankruptcy Code does not preempt New York common-law principles of international comity as applied to foreign bankruptcy discharge orders issued to individual foreign debtors."], "id": "b4e93da6-e773-41a5-824c-2baed95d751c", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*70Section 14 (snbd. [c], par. [3]) of the Bankruptcy Act (U. S. Code, tit. 11, \u00a7 32, subd. [c], par. [3]) makes it futile for a creditor of a nonbusiness bankrupt to object to the discharge on the grounds of fraudulently claimed credit. In the opinion of this court, it follows that the plaintiff was under no obligation to raise the issue of fraud or false representations during the bankruptcy hearings prior to discharge or at the hearing when defendant\u2019s was granted."], "id": "d81278db-15ce-4000-90d2-e772209423a4", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus, in Burnham v. Pidcock (58 App. Div. 273) the foreign judgment upon which the action was premised disclosed that the trial issues concerned conversion of goods as distinguished from positive fraud; and in Matter of Benoit (124 App. Div. 142, affd. 194 N. Y. 549), and Stevens v. Meyers (72 App. Div. 128) there were appearances by the defendants, detailed pleadings, and finally a consent judgment. Similarly, in Hanan v. Long (150 App. Div. 327, supra) the judgment resulted from the trial of a simple contract issue which had been framed by the pleadings exchanged by the parties. Again, in Tompkins v. Williams (137 App. Div. 521, affd. 206 N. Y. 744), the pleadings and charge of the court at the trial which resulted in the judgment permitted two alternative grounds of recovery, neither of which would exclude that judgment from the operation of the . In both Multiple Trading Corp. v. Saggese (178 Misc. 1077) and Bronx County Trust Co. v. Cassin (170 Misc. 962) the defendants had defaulted after service upon them of complaints confined to nonfraud causes of action that gave rise to the judgments. However, as we have noted, the judgment here resulted from defendants \u2019 default without notice of or demand for any specification of the plaintiff\u2019s cause."], "id": "973cf7d3-03ae-4ae4-bacf-875850ff238d", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Edmundson, this court did not [establish] that of liability on an installment note accelerates the maturity of the note. [It] did not [establish] that the discharge kickstarts the running of the deed of trust\u2019s final statute of limitations period. [It] did not [establish] that discharge is an analog to acceleration and triggers the statute of limitations on the entire obligation."], "id": "31de498c-33fe-45a5-ad4e-489ad5c2d0e5", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["During the course of the trial both the court and INA\u2019s attorney were under the impression that Brannin had not filed a petition to discharge the excess judgment in bankruptcy. Nevertheless, INA argued that it should be permitted to raise the issue of a potential before the jury as relevant to Brannin\u2019s claimed damages. This contention was regarded by the court and the plaintiff as an effort to pose a mitigation question to the jury even though mitigation of damages had not been pleaded as an affirmative defense by INA (see CPLR 3018, subd [b]; Davis v Davis, 49 AD2d 1024). After in camera hearings on the issue, INA\u2019s attorney was forbidden to question Brannin on the subject of bankruptcy or to mention it in summation. Ultimately, the *80jury was charged that if it found INA guilty of bad faith it could consider Brannin\u2019s entire ecomonic situation, past, present and future, in evaluating his damages. The jury rendered a verdict in favor of the receiver against INA in the sum of $176,217.30, representing the amount of the original excess judgment plus accrued interest."], "id": "94b6a41f-7faa-4d7b-ada8-cf268a25e278", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With respect to the dischargeability of defendant wife\u2019s legal fees, the United States Court of Appeals for the Second Circuit, reasoning that a spouse\u2019s agreement to pay the other spouse\u2019s legal fees directly to the attorney in a stipulation and divorce judgment, as here, is essential to a spouse\u2019s ability to sue or defend a matrimonial action, has held that such an obligation is to be treated as a form of maintenance and support, and is not dischargeable in bankruptcy (Pauley v Spong, supra, 661d, at 9-11). Under these circumstances, the $25,000 legal fee set forth in the stipulation and divorce judgment is not dischargeable, and, as such, has not been discharged by the order. Accordingly, plaintiff husband is directed to pay all arrears of the $25,000 to defendant wife\u2019s counsel within 30 days after service upon him of copy of this order with notice of entry. The remaining balance shall be paid in accordance with the terms of the stipulation and divorce judgment."], "id": "f99c11a6-a83a-4ec6-9312-ab51bf58b055", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In August 2015, father filed a motion styled as a request for an order modifying child support. Father's papers, however, asked the trial court to either vacate or reconsider the trial court's March 18, 2013 statement of decision (ordering him to turn over an RKF promissory note to mother) based on his perception of findings he contends the bankruptcy court made when it issued his in 2014.7"], "id": "97bc33eb-e87a-4885-9367-30169cf85b41", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor does the fact that plaintiff\u2019s judgments predate the foreclosure action preclude application of section 1371 (3). Events occurring after the docketing of a judgment can affect the vitality of that judgment. For example, plaintiff freely concedes that John W. Lynn\u2019s receipt of a precludes collection efforts against him personally. Judgments can also lose their res judicata or collateral estoppel effect (see e.g. Citizens of Accord v Twin Tracks Promotions, 236 AD2d 665 [3d Dept 1997]; Hoopes v Bruno, 128 AD2d 991 [3d Dept 1987]). From this court\u2019s research, it appears that section 1371 (3) operates in much the same way that satisfaction of a judgment by one tortfeasor operates to discharge the liability of all joint tortfeasors (see Matter of Benedictine Hosp. v Glessing, 90 AD3d 1383 [3d Dept 2011]). The satisfaction of the mortgage debt effectively eviscerated the judgments against John W. Lynn on which this action is based."], "id": "553db52b-fd56-426c-a594-16b7b092590f", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As the purchaser of a subordinate mortgage, City West purchased subject to the BOA loan. However, Fidelity claims that it cannot foreclose the lien on its own insured. Fidelity contends that it is essentially in the same position as a subordinate lienholder to the foreclosed condo lien. Fidelity *777also contends that it is without another remedy because defendant Rebecca Silva received a ."], "id": "9b9e38dc-d569-45e9-8806-7cd9629e58a3", "sub_label": "US_Terminology"} {"obj_label": "bankruptcy discharge", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Whether or not unpaid contributions of this character are \u201c taxes \u201d within the meaning of section 35 of title 11 of the United States Code is a Federal question. If they are such they are not provable debts and were not discharged by the petitioner\u2019s . Neither counsel has, nor have I, been able to find a controlling precedent."], "id": "8fc71194-d4c4-4dc4-b702-6937e2464b01", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This alternative account of the purpose of the Clause does not, howev- er, favor the \u201csnapshot\u201d interpretation, and thus it does not cast doubt on the constitutional effectiveness of rollback legislation. Even if one under- stands a concern about undue executive pressure on the legislature to have influenced the delegates to the Constitutional Convention in negotiating the Clause, the \u201con net\u201d construction of \u201cshall have been encreased\u201d is still the superior reading. Although there is some support in the history of the Constitutional Convention for the view that the drafters of the Ineligi- bility Clause had a concern about improper executive influence through the appointment power, the text of the Clause shows that this concern was not its overriding and unqualified purpose. By its terms, the Clause does not prohibit the President from appointing a sitting member of Congress to an Executive Branch office. The delegates rejected the Virginia Plan, which would have done so. In that regard, the Clause could not have been designed to root out any possible Executive Branch use of the appoint- ment power to influence members of Congress. Indeed, in forging his compromise, Madison was clear in not seeking to impose such a draconi- an rule. See Van Alstyne Statement at 53 (\u201c[N]ot to recognize the efficacy of [rollback legislation] . . . would itself offend one of the reasons that accounted for the final form of [the Ineligibility Clause]: to assure the eligibility of Members of Congress for appointment to vacancies in exist- ing offices, insofar as neither the office itself nor any prerequisite associ- ated with that office would result to them as a consequence of any act of Congress during [their] term.\u201d). The issue, then, is whether the \u201csnapshot\u201d interpretation of \u201cshall have been encreased\u201d would appreciably guard against the corrupting influence of executive appointments, even though the Clause poses no general bar to the Executive offering them as inducements. We do not see how it would. A construction of the Clause that would permit rollback legislation would seem well-designed to check the Executive from unduly influenc- ing congressional members with the prospect of attractive appointments, given that appointments in general are not prohibited. Any tangential effect that the increase in the pay of an office might otherwise have on the President\u2019s ability to influence Congress by promising appointment to such office would be negated by the expectation of the enactment of rollback legislation. Thus, as with the desire to avoid by the legislature, conceding the efficacy of rollback legislation would comport with this purpose of the Ineligibility Clause. See Dixon Statement at 71"], "id": "32fb4d3d-7a90-41db-9ce1-b893997c08bb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs thereafter filed a complaint against defendant, alleging defendant negligently engaged in and unilaterally changed the terms of the loans contrary to the parties\u2019 agreement. Plaintiffs also alleged defendant breached its fiduciary duty to plaintiffs by failing to properly distribute the Modern loan proceeds to plaintiffs, rather than itself. Further, plaintiffs alleged defendant engaged in constructive fraud and misrepresentation by waiting to disclose unilateral changes to the final loan documents until plaintiffs had no choice but to close on the loans."], "id": "4bb25534-1ffc-4cc7-b4cb-b27f5ad5583f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Regarding the Waystation's arguments about her failure to notify the Attorney General, Summers contended she did not have to allege such notification or notify the Attorney General before filing the complaint. She also submitted evidence she notified the Attorney General of the action in writing shortly after filing the complaint. Summers conceded her cause of action for required her to join the Attorney General as an indispensable party, and she requested leave to amend to do so.4 She also requested that, in the event the trial court sustained the demurrer for failure to notify or join the Attorney General, the court grant her leave to amend to cure those defects."], "id": "93f3b0e4-ebe8-43d8-987c-2925838434e7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The second cause of action alleges that Casciano and Fulham breached their fiduciary duty owed directly to plaintiff through: \u201cthe transactions . . . with 350 Elmwood, LLC, the termination of Billings\u2019 base compensation, as well as the other alleged herein\u201d (amended complaint 11 37). Further, plaintiff alleges he was \u201cdamaged by the unjustified and unanticipated termination of his compensation and employment\u201d (amended complaint H 38). The damage alleged in the second cause of action is that the actions of Casciano and Fulham caused a \u201cdiversion of substantial sums that otherwise would have been contributed in [plaintiff\u2019s] capital account\u201d and seeks \u201can adjustment in [plaintiffs] capital account commensurate with his fair share of the sums diverted by Fulham and Casciano\u201d (amended complaint 1i1i 39, 40)."], "id": "b17c4c86-f49c-425b-b201-157c443dc83c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Insofar as the alleged breach of fiduciary relationship is concerned, it is clear that there was none. Under the mortgage participation agreement between Plantsville and Camala, Plantsville had the right to extend, modify or satisfy the first mortgage, provided that it did not diminish the security of Camala. It was contemplated that the Lincoln first mortgage would be refinanced, and if there was no prohibition on Camala or its sister company taking over the first mortgage, *931there would be no prohibition against the president of those companies doing so individually. It is clear that far from operating through , defendant Stern, by taking over the first mortgage personally at a 13Vi% interest rate, which was well below the going commercial rate at the time, was getting no benefit for himself. Rather, he was preserving the situation and maintaining Camala\u2019s equity position by investing over $1,200,000 of his own money. Even though there was no longer sufficient cash flow from South Pierre to cover payments for both Plantsville and Camala. Camala had a guarantee and continued to receive payments from Plants-ville. There is no basis for any claim of any breach of fiduciary obligation owing by Stern to Camala."], "id": "89893587-3835-4453-bdc2-82ecb57c5443", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A reading of section 3607 of the Act in conjunction with the policy consideration set forth by Congress leads to the conclusion that once \"special developer control\u201d has been terminated by the sponsor under this section it can no longer be revived. To permit a different interpretation and allow the sponsor to revive control of the board could lead to potential abuses which would frustrate the purpose of section 3607 to abate abusive practices pertaining to leases or contracts in cooperative and condominium conversions. A sponsor, if permitted to regain control of the board after expiration of the window period can easily enter into new commercial leases, amend terms of or cause assignment of existing commercial leases, all to its benefit in an attempt to circumvent the proscription of section 3607 of the Act. This was obviously not the intent of Congress."], "id": "3762f3cf-0cea-4697-94a4-d6e4f960d8b5", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his third point on appeal, Finch says the trial court erred in failing to award him 50% of the profits Campbell obtained by using the cash, assets, and collections of the dissolved partnership to fund the Bruce Campbell Law Firm. He states this was done without his consent and that Campbell excluded Finch from information about the winding up process. Finch claims Missouri law requires the trial court to award him 50%. Alternatively, he says the trial court erred in failing to award him prejudgment interest for Campbell's breach of fiduciary duty because he was entitled to either 50% of the profits or prejudgment interest for Campbell's breach of fiduciary duty."], "id": "ab548a65-6dfd-4835-be23-fafe9f1b61ea", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A different conflict of interest claim was, however, raised before the Countrywide trial court. Objecting investors argued that a conflict arose when the trustee, BNYM, following notice by certificateholders of breaches of representations and warranties by the sellers of the loans, agreed to toll a 60-day cure period \u201cwhile it engaged in settlement negotiations, in exchange for an indemnity agreement from Bank of America.\u201d (Matter of Bank of N.Y. Mellon, 42 Misc 3d 171, 180-181 [Sup Ct, NY County 2013] [Countrywide].) The court held that it did \u201cnot find that the issue raised by the movants regarding the trustee\u2019s . . . efforts to obtain broad indemnification for its actions states a colorable claim of conflict or ,\u201d as \u201cBNYM did not obtain indemnification beyond what was provided for under the PSAs.\u201d (Id. at 181 n 3.) The court adhered to that holding in its final decision of the proceeding. (2014 NY Slip Op 50384[U], *18.) The issue was not addressed by the Appellate Division on appeal."], "id": "bbd95fc7-a1a8-4afd-b449-c6c788a5f3e0", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Had such procedure been adopted, the executors would have obtained full legal protection either had the court approved the contracts after notice to the beneficiaries under the will or had the court disapproved the contracts by reason of opposition by such bneficiaries. Unfortunately this precaution was not taken and now the executors find themselves confronted with a charge of ."], "id": "07fd8c9f-a07f-42db-ac03-dfa5bce0977b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There can be no question that the moneys received by this respondent did not belong to him and did not represent a proper repayment of any loan made by him. There is no legal or equitable principle available to justify respondent\u2019s act of divesting his corporation of the money returned under the contract, and converting it to his own personal use to the detriment of the rights of an existing creditor. No court would or should provide any judicial sanction for this respondent\u2019s bold act of *397stripping his corporation of the assets which it required to satisfy an existing creditor by means of acts of with himself which resulted in the diversion of corporate assets to his personal account."], "id": "3eaaf825-5b5c-4635-b736-f3f9e1f82572", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Prior to the amendment to the General Obligations Law, when an agent made gifts to himself, there was a presumption of *946impropriety due to the appearance of impropriety and . (Mantella v Mantella, 268 AD2d 852 [2000].) This presumption could only be overcome with clear and convincing proof that the principal intended to make the gift. (Estate of Dean, NYLJ, Oct. 25, 1996, at 30, col 6 [Sur Ct, Nassau County].) It was also held that a power of attorney prior to the amendment, no matter how broadly drawn, could not be held to encompass an authorization to the agent to make a gift to himself of the principal\u2019s property. (Matter of De Belardino, 77 Misc 2d 253 [1974].)"], "id": "f888fc83-d8b6-4ad6-b14f-df3de348ebda", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s third counterclaim alleges a breach of fiduciary duty by Raymond J. McRory, Esq. However, Raymond J. McRory, Esq. is not a party to this action. While this counterclaim also alleges claims of fraud, , and waste with respect to actions taken by Arthur Burns, Thomas Neary, Salvatore Benevento, and Carmel Salerno have not joined Arthur Burns, as the manager of 363-367 Neptune Avenue, LLC, as a defendant on this counterclaim (see Limited Liability Company Law \u00a7 409 [a]; compare Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1039 [2009]). Thus, this counterclaim must be dismissed."], "id": "1d3afe2d-5b29-4a24-82c1-e8f0f89b25e3", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Brown asserts no legitimate basis upon which to claim that the probate court erred in failing to award him attorneys' fees in this case. Again, the court did not find that the proposed distribution plan \"violated the prohibition against ,\" and its rejection of the proposed plan does not automatically equate to such a finding. Second, Brown does not establish that he is entitled to his attorneys' fees in this case under the 2010 Arbitration Agreement between himself and his sister, as he suggests.20"], "id": "5d377394-e440-4c3d-bbfe-fa47bb5f603c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["ambiguous, we reference its legislative history in this footnote for the limited purpose of supporting our comparison of that provision with the law governing public sales in foreclosures by civil action. The language in 6203-E was proposed to establish a method for determining the deficiency that parallels the method employed for sales in foreclosures by civil action, 14 M.R.S. \u00a7\u00a7 6323-6324 (2021). See An Act Regarding Maine\u2019s Power of Sale Foreclosure Law: Hearing on L.D. 276 Before the J. Standing Comm. on Judiciary, 127th Legis. (2015) (testimony of Ben Marcus on behalf of the Maine Credit Union League). The language of section 6203-E, which tracks the language of section 6324, thus similarly serves as \u201ca protection against a mortgagee.\u201d Peoples Sav. Bank v. Spencer, 482 A.2d 832, 834 (Me. 1984)."], "id": "f6865586-4596-47e6-9915-b77aa7accd9b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Transactions of purchase of whole mortgages which are thus condemned in principle by the court took place during periods covered by the decrees on the earlier accountings. The court has noted briefly its granting of the applications to open such decrees. It may well be that no formal opening of the decrees is required to reach the transactions here criticised (Matter of Denbosky, 245 App. Div. 93, 95) because the schedules in the former accountings did not adequately reveal the facts now established. A typical illustration will suffice to exhibit the defects in the prior accounting schedules. In the 0. J. Ryan trust there was a so-called Curti mortgage for $6,750. According to the stipulation of fact this mortgage was assigned by the corporate trustee to Bond and Mortgage Guarantee Company on November 24, 1925, and on the same date reassigned by the latter company to the trust. The information concerning this mortgage which was reported in the last account is contained in schedule 1-4 of the former account. Therein are reported the investments outstanding at the beginning date of *577the accounting period, October 20, 1921, the investments purchased during the accounting period, the investments collected or sold and the manner in which the balance in the trust was invested at the close of the accounting period. Opposite the date December 8, 1925, in this schedule there is reported the purchase of \u201c Bd. & Mtge.\u201d of a mortgagor named Curti at a cost of $6,750. The later schedule of the investments on hand shows the same entry. It is quite apparent that such an entry made no disclosure of the underlying of the corporate trustee. The court holds the disclosures in the prior schedules inadequate and holds that notwithstanding the former decrees it may make inquiry now as to these purchases."], "id": "9d4099bd-998f-4387-a8e3-e31bb7526a66", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is conceded that the notice given to the income beneficiaries at the time the participation was assigned to this trust was inadequate under the statutory standards. If it were now to be found that the assignment constituted then the defect in notice would automatically require the court to charge the sustained loss to the trustee. On the record the transaction described does not come within the category of prohibited practices (Matter of Schlussel, 284 App. Div. 68; Matter of Hogan, 204 Misc. 662, affd. 283 App. Div. 790). It is quite clear that the mortgage was not acquired by the corporate trustee for its own account. The fact that it remained in the bond and mortgage surplus account for a period of less than two months before being assigned in shares to the various trusts, brings the case, *172within, the ambit of the decision in Matter of Hogan (supra, p. 665) where this court said: \u201c Only by completely ignoring reality could we say that any of these purchases were made for the trust company\u2019s own account. The only fair view of the transactions is that the trust company was engaged in combining trust funds for investment and acquired the mortgages only for the purpose of distributing them among the trusts, estates and funds.\u201d"], "id": "4b994528-6f26-451f-a9ed-4c0aa446ea0a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect. This is a sensitive and \u2018inflexible\u2019 rule of fidelity, barring not only blatant , but also requiring avoidance of situations in which a fiduciary\u2019s personal interest possibly conflicts with the interest of those owed a fiduciary duty\u201d (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989] [citations omitted], rearg denied 74 NY2d 843 [1989]). Thus, there is an obligation of utmost candor (see Alpert, 63 NY2d at 569; Kavanaugh v Kavanaugh Knitting Co., 226 NY 185, 193 [1919]), strictly obligating a fiduciary \u201cto make a full disclosure of any and all material facts within his or her knowledge relating to a contemplated transaction with the other party to the relationship\u201d (60A NY Jur 2d, Fraud and Deceit \u00a7 99). \u201c[W]hen a fiduciary, in furtherance of its individual interests, deals with the beneficiary of the duty in a matter relating to the fiduciary relationship, the fiduciary is strictly obligated to make \u2018full disclosure\u2019 of all material facts\u201d (Blue Chip, 299 AD2d at 279, quoting Birnbaum, 73 NY2d at 466; see Arlinghaus v Ritenour, 622d 629, 636-637 [2d Cir 1980], cert denied 449 US 1013 [1980]; 3A Fletcher, Cyclopedia of the Law of Private Corporations \u00a7 1171 [1931])."], "id": "27021aff-063b-4359-97bf-9a42072e7317", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Both parties have moved for summary judgment on the third cause of action, which alleges that preferred dividends were improperly paid. The applicability of the business judgment rule is defeated, \u201cand judicial inquiry thereby triggered ... by a showing that a breach of a fiduciary duty occurred, which includes bad faith, , or by decisions made by directors demonstrably affected by inherent conflicts of interest.\u201d (Higgins v New York Stock Exch., Inc., 10 Misc 3d 257, 278 [citations omitted].) Where such a showing is made by the party contesting the applicability of the business judgment rule, the burden to prove the fairness of the transaction then shifts. (See discussion above.)"], "id": "9d675ecf-ad41-49e0-8113-1e83431c124d", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Applying the capable-of-ascertaimnent test objectively, the facts alleged by Plaintiffs demonstrate that their damages were capable of ascertainment by May 2011, The parties agree that the BLP collapsed after an FBI investigation in 2010 and that Plaintiffs received notice of their extensive investment losses shortly thereafter. The parties acknowledge that Sigillito's federal indictment was unsealed in May 2011. Sigillito's indictment revealed the charges of money laundering, wire fraud, and mail fraud arising from BLP operations. The federal indictment exposed the wrongful nature of the BLP venture, linking Plaintiffs' investment losses to, and unveiling the damage caused by, the BLP's administration. The federal indictment also established that Sigillito, in managing the BLP, retained numerous unauthorized placement fees before directing the distribution of his clients' assets to overseas borrowers and committed improper in these transfers."], "id": "30dea3c0-33d6-4347-801e-66b283b61a2c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The transaction herein was between a mother-in-law and son-in-law. Although this family tie is unlike that of a parent and child in which acts of may be considered inherently a violation of a fiduciary duty (Wood v. Rabe, 96 N. Y. 414), this relationship coupled with a promise, declaration or understanding could be considered, in my opinion, confidential for which equity would seek a remedy through the imposition of a constructive trust (see, e.g., Foreman v. Foreman, 251 N. Y. 237; Sinclair v. Purdy, 235 N. Y. 245; Pagano v. *594Pagano, 207 Misc. 474, affd. 2 A D 2d 756, motion for leave to appeal denied 2 N Y 2d 708) without proof of damages (3 Bogert, Trust & Trustees, \u00a7 473; see, also, Piper v. Hoard, 107 N. Y. 73)."], "id": "806c452b-18b7-451e-a32f-1665d315a4a1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Counsel for the principal group of objectants have very rigorously argued in their voluminous briefs for a modification of the referee\u2019s report. None of the arguments has any merit in law and the authorities cited in them have no direct application to the facts of the present proceeding. They seek a determination which would form a basis of surcharge not only in this estate, but in other estates, for negligence in the placement of the mortgage loan. The loan aggregated $2,800,000 and was allotted by participations to various trusts, testamentary, inter vivos and personal, and to the custodian accounts of individuals. If negligence did exist the amount of the liability would not deter the enforcement of a surcharge. In the absence of negligence, however, the courts should not be asked to strain to mulct the stockholders of the trustee in an amount of such magnitude. It should be noted that the contention of counsel for the objectants that these participations were bought directly from the corporate trustee is not substantiated by the evidence. There was no in the accepted use of that term. The purchase was from the trustee, not as a bank or trust company, but as a trustee of other estates which held the specific securities purchased for this estate. There is no rule which prohibits a fiduciary of one estate from buying from itself as trustee of another estate, government or State or municipal bonds, or mortgages or other securities at a fair value."], "id": "d7e7b248-3aed-422f-a95e-6b115755ae87", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["1 \u2018 The rule has long been established that a trustee \u2018 should not be allowed to become the purchaser of the trust property, because of the danger, in such a case, that the interests of the beneficiary might be prejudiced. \u2019 (Corbin v. Baker, 167 N. Y. 128,132; see Matter of Hubbell, 302 N. Y. 246; Matter of Fulton, 253 App. Div. 494; Davoue v. Fanning, 2 Johns. Ch. 252; see, also, Meinhard v. Salmon, 249 N. Y. 458, 464.) However, there is little danger of such prejudice if the transaction is subjected to prior judicial scrutiny and given court approval. Accordingly, the rule against has not been applied, and does not apply, to interdict the purchase of trust property by a trustee where, the court, after conducting a full adversary hearing at which; all interested parties are represented, approves and authorizes the sale.\u201d (Matter of Scarborough Props. Corp., 25 N Y 2d 553, 558-559)."], "id": "48960dc7-4aab-4b93-b50f-0dc52cba12b8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A limitations period will be tolled while a defendant \"engaged in fraudulent concealment of the facts necessary to put a plaintiff on notice of the truth.\" ( In re Dean Witter Partnership Litigation , supra , at p. 5, 1998 Del. Ch. Lexis 133, at pp. 20-21.) And \"[u]nder the theory of equitable tolling, the statute of limitations is tolled for claims of wrongful , even in the absence of actual fraudulent concealment, where a plaintiff reasonably relies on the competence and good faith of a fiduciary.\" ( Weiss v. Swanson (Del. 2008) 948 A.2d 433, 451.) \"But any possible tolling exception to the strict application of the statute of limitations tolls the statute 'only until the plaintiff discovers (or [by] exercising reasonable diligence should have discovered) [the] injury.' When plaintiffs are on inquiry notice the statute of limitations begins to run.\" ( Pomeranz v. Museum Partners, L.P. , supra , at p. 3, 2005 Del. Ch. Lexis 10, at p. 11.) \"[E]ven where defendant is a fiduciary, a plaintiff is on inquiry notice when the information underlying plaintiff's claim is readily available.\" ( In re Dean Witter Partnership Litigation , supra , at p. 8, 1998 Del. Ch. Lexis 133, at p. 36.) We have already determined that the information giving rise to plaintiffs' claims was readily available as of the *346time of the Department of Justice antitrust action in 2010. The theories of fraudulent concealment and equitable tolling therefore do not assist plaintiffs."], "id": "21f947f1-4ccd-4534-ad25-d3b412f10a30", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["An effort is made to characterize this situation as not involving , by comparing the position of Reis to that of a small minority corporate shareholder who has no impact upon the functioning of a corporation and comparatively little to gain financially from any particular transaction. It is true that Reis is not shown to be a shareholder in either gallery, but he is an officer and director of Marlborough Gallery, Inc. and in such capacity he has a voice in the management of the corporation and owes an obligation to the corporation to seek financial advantage for it. This obligation to the corporation, coupled with a possibility of enhancing his own position in the corporation structure, could impel a corporate director to seek every advantage for the company and would be in direct conflict with the obligation which a fiduciary owes to obtain the most advantages for the estate he represents."], "id": "b5a0cd0d-0967-489b-b194-615256f46849", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*340The court in Chen, supra , 87 A.3d 648, applied this reasoning in granting summary judgment for several director defendants. The court noted that for enhanced scrutiny review, the fact that the directors were disinterested and independent was \"not dispositive, because '[t]he court must take a nuanced and realistic look at the possibility that personal interests short of *291pure have influenced the board.' \" ( Id . at p. 685, quoting Dollar Thrifty, supra , 14 A.3d at p. 598.) However, \"speculation about motives [wa]s not enough.\" ( Chen, supra , at p. 685.) The court found certain evidence that a director had shared confidential information with a potential acquirer to be \"one of the more troubling aspects of the case\" but concluded that the total mix of evidence did not \"support any inference other than an effort\" by the director to \"maximize the value of his funds' holdings, thereby maximizing value for all common stockholders.\" ( Ibid . ) The court observed that one \"cannot reasonably infer\" that the directors acted against their economic interest, nor had the plaintiffs offered \"any plausible theory\" as to why the directors would have done so. ( Id . at p. 686.)"], "id": "75fbbb9b-4f1d-4eb0-92d4-df37d43b5728", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Somewhat dissociated from the above-exposed links of the chain comprising counsel\u2019s contention, he also has raised the point that the assignment is invalid, in any event, because of the stern and absolute prohibition of to which all fiduciaries are inexorably subjected by courts. (Meinhard v. Salmon, 249 N. Y. 458.) But this case, whatever else it is, is *684not this. The executor of the Beecher estate assigned the mortgage to the executor of the Lonas estate. He acted as two separate entities, as much so as if the Governor of South Carolina were to transact some business with the Governor of North Carolina. But the common executor, as an individual, was not involved. The case is entirely free of any wrongdoing of the particular category known as \u201c self-dealing \u201d. Of course, the former executor would have been, or, as it is now, his estate is, liable to surcharges in both estates. If this were an ample source of reimbursement, quite naturally, there would then have been no such strenuous controversy activated herein as we have presently to deal with in respect to which of the two estates is the rightful and legal owner of the Whaley mortgage."], "id": "c2c1517d-f1e7-4342-bcf6-3cc6a0972df2", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Two interrelated sections (15 USC \u00a7\u00a7 3608, 3607) govern contracts and leases which may be terminated by the purchasers when they gain control of a cooperative or condominium development. Although the sections have been discussed in the Supreme Court injunction action and the Second Circuit decision in West 14th St. Commercial Corp. v 5 W. 14th Owners Corp. (supra), neither case adequately investigated their legislative history. A description of each of those sections is required to put them in context."], "id": "669cd821-1647-4694-bfb1-08e6ad77261f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of fraud, or unconscionability, a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith."], "id": "fe987f3a-fd19-4c05-90a9-fb47cf55fc4d", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Court held that good cause for disclosure of otherwise privileged information had been shown, specifically holding that: (1) plaintiffs may have been directly affected by any decision the trustee made on his attorney\u2019s advice; (2) the information sought was highly relevant to and may be the only evidence available on whether defendant\u2019s actions respecting the relevant transactions and proposals were in furtherance of the interests of the beneficiaries of the trust or primarily for his own interests in preserving and promoting the rewards and security of his position as corporate officer; (3) the communication apparently related to prospective actions by defendant, not advice on past actions; (4) plaintiffs\u2019 claims of defendant\u2019s and conflict of interests were at least colorable; and (5) the information sought was not only relevant, but specific. (Hoopes v Carota, 142 AD2d at 910-911.)"], "id": "039c2592-05b4-41f7-b52b-958a0e43dbe3", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Two years later, Nancy filed a new motion to suspend Thomas as trustee based on his alleged misuse of his powers to further his own litigation goals and strategies to the detriment of the Trust's other beneficiaries. Nancy alleged that Thomas spent Trust funds on his personal attorneys, engaged in as trustee by using Trust funds for his personal benefit, and caused businesses owned by the Trust to engage in undocumented, inter-company, interest-free \"loans\" totaling millions of dollars."], "id": "087facbb-9ff2-469a-9ced-f103f8c7288e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The crux of SDOG's lawsuit here is its assertion the 2012 Agreement and 2015 lease violate prohibitions on and use of public funds for private benefit, and therefore are void. The first cause of action is entitled, \"Illegality of 2012 Agreement.\" SDOG alleges that agreement violated Government Code section 1090 because Hearn was then employed by SDSU and therefore had a financial interest on both sides of the transaction.6 SDOG also alleges the 2012 Agreement should have been subject to a competitive bid process just like a construction contract or other public works project."], "id": "5449888b-472f-4904-8e02-c3ce64ca9ca5", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In this action, plaintiff Jeremy Howard alleges that Kaggle's chief executive officer (CEO), Anthony Goldbloom, three other members of its board of directors (Benjamin Hamner, Ash Fontana, and Curtis Feeny), and three limited partnerships (Zetta Venture Partners I, L.P., Voyager Capital Fund IV, L.P., and Voyager Capital Founders' Fund IV, L.P. (the VC defendants) ) abused their corporate power and breached their fiduciary duty to him by wrongfully diluting his interest in Kaggle's stock, transferring its value to themselves through a transaction."], "id": "3f779a69-acf7-45cf-b579-be3c6cd426af", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["From the viewpoint of trust administration that' idea finds justification in the fact that the existence of a common trust *463fund furnishes a ready means of investing small amounts of money with the same assurance- of safety as can be had from that diversification of risk which a large investment can secure for the investor. To secure that safety for persons interested in estates the Legislature validated the idea of a common trust fund for trust investments. The legislation dealt with the subject of commingling and in relation to such a fund and assured the corporate fiduciary managing such a fund against criticism based solely on the act of investing in such fund moneys held by the fiduciary as such. The Legislature made sure by its provisions that the fund would not be used by the fiduciary for its own corporate investments and that there would be no opportunity to load the fund with securities promoted by the operating bank. It gave to the Banking Board large discretion in the matter of rules and supervision so as to assure the propriety of the administration of such a fund."], "id": "f13b7a6e-5fc3-46b5-80b7-2e9bbf0166fc", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*573Next will be considered the objections to whole mortgages which are based upon alleged by the corporate trustee. Objectants seek from the court a direction that the trustees substitute cash for all whole mortgage investments purchased (as objectants assert) by the trustees from the corporate trustee. This relief is sought irrespective of any merit or lack of merit attaching on other grounds to objections to the same investments. In support of this class of objection the vacatur of the 1922 and 1928 decrees is asked so as to avoid any contention of the trustees that shch decrees bar the prosecution of the attack now made. In the applications for vacatur of the prior decrees objectants assert that the prior accounts wholly failed to reveal the manner in which the mortgages were acquired and so should not stand as a bar to the objections now made. Detailed comment is made hereafter respecting facts which are relevant to the applications to vacate the decrees. It suffices at this time to say that the court grants the applications so far as is necessary to throw open to decision now all of the objections to the purchases of whole mortgages which are now criticised."], "id": "c01e9f7a-6116-4f8d-96c4-fc02e34edb79", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is no doubt that, if proved, the allegations of the petition constitute a basis for relief against the respondents. Certainly there can be no serious challenge that with regard to any charge of on the part of the executors, or one of the executors with the agreement of his coexecutors, jurisdiction lies in this court to examine the conduct of the executors and, if self-dealing is found, to avoid any contract made by them. \u201c When the trustee has a selfish interest which may be served, the law does not stop to inquire whether the trustee\u2019s action or failure to act has been unfairly influenced. It stops the inquiry when the relation is disclosed and sets aside the transaction or refuses to enforce it, and in a proper case, surcharges the trustee as for an unauthorized investment.\u201d (City Bank Farmers Trust Co. v. Cannon, 291 N Y 125, 132 [1943])."], "id": "c940ab27-02cc-427f-844d-d496cd49d79f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first allegation of the objections is directed, among other things, at investments made by the trustee in bonds and mortgages and participations in bonds and mortgages \u20181 herein and heretofore accounted for \u201d on the grounds that such investments were unlawfully, improvidently and negligently made, that proper and timely notice thereof was not given by the trustee, that the trustee failed to comply with subdivision 7 *613of section 188 of the Banking Law then effective, that the previous judicial accountings did not contain adequate and sufficient information as to such investments, that taxes on properties covered by the mortgages were in arrears from time to time, that the principal assets of the trust were unduly and unlawfully concentrated in the aforesaid investments, that the trustee should have accounted more frequently, and that said mortgage investments constituted on the part of the trustee bank."], "id": "ba7227dc-bd17-42ec-bc77-ff5473a822e1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Ira Gammerman, J. This motion is brought to dismiss the consolidated class action complaint brought by individual depositors of defendant East New York Savings Bank (East New York), objecting to the recent conversion of East New York from a mutual savings bank to a stock corporation and its subsequent merger with defendant First Empire State Corporation (First Empire). It is plaintiffs\u2019 contention that they, as depositors of East New York, were entitled to profit from the conversion and that their failure to do so was caused by fraud and on the part of the defendants. In their complaint plaintiffs seek a rescission of the conversion-merger plan, or, alternatively, money damages in an unspecified amount."], "id": "7e6493fa-cca3-4b93-94cb-911671608545", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Applying Hunter, supra, 221 Cal.App.4th 1510, 165 Cal.Rptr.3d 123 here, when determining whether SDOG's action arises from the Defendants' protected acts, we must separate the alleged unlawful motive (self-dealing) from the Defendants' conduct (entering into news gathering and news producing contracts). In Hunter , the court held the plaintiff's claims were based on the defendant's decisions regarding its choice of a weather anchor, which were acts in furtherance of its First Amendment rights, and not based on discrimination, which was the alleged motive for the conduct. ( Hunter, supra, 221 Cal.App.4th at p. 1523, 165 Cal.Rptr.3d 123.) Likewise here, for purposes of applying the anti-SLAPP law, SDOG's claims are based on Defendants' decisions in entering into contracts to partner news gathering, news reporting, and news production on television and other media-and not the alleged unlawful motive for such acts, . Accordingly, SDOG's action is based on acts in *181furtherance of Defendants' *105*505free speech rights, and therefore protected activity under the anti-SLAPP statute.16 ( \u00a7 425.16, subd. (e).)"], "id": "14700fb6-c39b-4ebc-889c-92b87d36f8e7", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["All of the adult competent beneficiaries, both of life interest and of remainder, concur in the petitioning trustee\u2019s request to liquidate Fales\" Estate, Inc., so that each of the seven trusts can be dealt with separately in order to accommodate the different needs of the life beneficiaries as well as the remaindermen of each. Thus, the conflict here which *421was created by the will seems to be among the beneficiaries rather than a problem of the trustee itself. (Cf. Matter of Scarborough Prop. Corp., 25 NY2d 553; Matter of Rothko, 84 Misc 2d 830, affd in part and mod in part 56 AD2d 499, affd 43 NY2d 305.)"], "id": "fd0c0617-f5e4-4a0d-9bc1-06f944caf5e6", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Under the Employment Agreement, Owen was hired to serve a five- year term as Blue Mountain\u2019s chief executive officer. The agreement included restrictive covenants providing that during his employment, and for a period of three years following the date of his termination, Owen would not \u201csolicit for himself or any entity the business of a customer of any of the Blue Mountain Entities,\u201d and would not solicit the services of any Blue Mountain employees. By these provisions, Blue Mountain sought to protect its goodwill and reputation, as well as its relationships with existing customers. At the time, Blue Mountain\u2019s customers included D.R. Horton, KB Homes, Lennar Corporation (Lennar), Pulte Homes, Shea Homes, and Toll Brothers. ii. Owen Is Terminated for Cause and Forms Silvermark In September 2015, Blue Mountain executives began investigating allegations of misconduct against Owen. On April 20, 2016, Owen was terminated for cause. That same day, Acolyte, Polymathic, and a third company filed suit against Owen alleging he had violated his fiduciary duties and engaged in while serving as chief executive of Blue Mountain. The litigation was resolved in a confidential settlement agreement on July 15, 2016. As part of the settlement agreement, Owen agreed to sell his remaining interest in Blue Mountain to Polymathic. The parties further agreed that neither Acolyte nor Polymathic would seek to enforce the noncompetition provisions of Owen\u2019s Employment Agreement with Blue Mountain, but that \u201c[Acolyte] and [Polymathic] make no representations, warranties, or covenants regarding any other surviving provisions contained in the Employment Agreement, including the \u2018Non- Solicitation\u2019 and \u2018Covenant Against Disclosure\u2019 provisions set forth in"], "id": "bc3d157c-b710-4ad2-aed9-866d57c50e4a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In December 2013, the Attorney General petitioned on behalf of the People of the State of California for removal of the trustees, appointment of a receiver, and an accounting.3 The People argued that Shine failed to fulfill his duties as trustee following Eva's death in 2004 and the settlement in 2008 to obtain a valuation of Trust assets for the purpose of dividing them between the Foundation and Trust, create the Foundation, fund the Foundation from Eva's share of the assets, and transfer title to real property assets to the Foundation. The People also alleged Shine engaged in prohibited by employing his own firm as a tax consultant for the Trust; improperly prepared tax returns and falsely reported a $7 million donation to the Foundation on the 2005 return for Eva's estate; failed to accurately account for expenses and income in the Trust or maintain written records of his actions as trustee; and improperly used Trust assets to make loans to business associates and friends, failed to exercise due diligence in doing so, and on some occasions had to foreclose on property securing those loans. The People brought causes of action for breach of fiduciary duty and removal of trustees (\u00a7\u00a7 15642, 16049, 16420, 17200), an accounting (\u00a7\u00a7 16420, 17200), and removal *384of trustees and appointment of a receiver (\u00a7\u00a7 16420, 17200)."], "id": "1f443a22-a076-4efa-a132-d9923e35e779", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["With respect to a board\u2019s conduct, the Pullman court acknowledged that \u201cthe broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decisionmaking or favoritism,\u201d which conduct is \u201cincompatible with good faith and the exercise of honest judgment\u201d (40 W. 67th St. v Pullman, 100 NY2d at 157). To \u201covercome the presumption that the [board members] exercised their honest judgment to promote the lawful and legitimate interests of the corporation\u201d (Horwitz v 1025 Fifth Ave., Inc., 7 AD3d 461, 463 [2004]), a tenant must raise sufficient facts with respect to fraud, , or other misconduct by the board to \u201ctrigger further judicial scrutiny\u201d (40 W. 67th St. v Pullman, 100 NY2d at 155; see also Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 10 [2006]; Walden Woods Homeowners\u2019 Assn. v Friedman, 36 AD3d 691, 692 [2007]). When scrutinizing a cooperative\u2019s conduct in terminating a tenancy, the courts will, inter alia, examine the corporate rules and bylaws to determine whether the action was authorized, whether the cooperative followed its own procedures for terminating a tenancy, and whether the cooperative acted in good faith and in the corporate interest to terminate the tenancy for the reasons alleged (40 W. 67th St. v Pullman, 100 NY2d at 156; 1050 Tenants Corp. v Lapidus, 39 AD3d 379, 383 [2007])."], "id": "f5978ff6-7ae9-43d6-9fdc-1961acdb10d4", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Federal court\u2019s conclusion that the distinction between leases and contracts exalts form over substance and thwarts the congressional purpose assumes that the purpose was to preclude the of sponsors with the cooperative. As previously noted (supra, at 815-816), there is nothing in the legislative history to support such a conclusion or that it was even considered. There is no doubt that a cooperative or condominium conversion is a complex project involving legal decisions as to the form of the project and the subsidiary *819rights involved. Congress did not seek to regulate all of these issues. It is clear that if the sponsor were to create a condominium and retain a fee rather than a leasehold interest in the store, laundry or garage space, the remaining part of the project, whether a cooperative or condominium, would have no claim under the Act; there would be no \"lease\u201d or \"contract\u201d to terminate. Thus the form of the transaction will produce different results even under the Federal court\u2019s analysis. While the circuit is correct that \"a lease, in substance, may be nothing more than a contract of operation\u201d (815d, at 198, supra), the court should reserve for subsequent consideration the question of interpretation presented by such a document. A lease of commercial store space does not present the issue."], "id": "7c298409-5efe-4e35-8365-365194877de0", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["After Mr. Bishop\u2019s death and in the latter part of 1935 Mrs. Berle retained an attorney to investigate charges of mishandling by him as trustee of the assets of this estate. As a result of his investigation a claim was filed against the Bishop estate by Mrs. Berle in an unliquidated amount in December of 1935. The proceeding for the accounting of Mr. Bishop\u2019s acts as trustee was initiated in 1937. Objections were filed by Mrs. Berle shortly afterwards. These objections raised serious charges against Mr. Bishop\u2019s trusteeship. Bad faith, mismanagement of the trust assets, , divided loyalty and breach of trust were charged against him. These accusations have been summarized by the then and present attorney of Mrs. Berle that Mr. Bishop had used the machinery provided by section 116 of the Beal Property Law to transfer the real estate of the trust in this estate to a corporation in exchange for a minority stock interest in that corporation; that he owned personally a majority of the stock; that he had conducted its affairs as if it were a personal corporation of his own; that he mortgaged its property contrary to the provisions of the will of the testatrix here and engaged in an ill-advised and speculative building operation as if he had been freed from all trust restraints; that his acts resulted in the loss of the real estate and that the trust suffered pecuniary damages for which he and his estate were accountable. It was estimated under Mrs. Berle\u2019s claim that the amount of a surcharge would vary between the sum of $875,000 as a minimum, and $1,080,000 as a maximum."], "id": "70f57f53-7146-4cef-ab4e-ffefc9781744", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*583In respect of the individual trustees the court finds no such malfeasance or misfeasance as warrants surcharge of either. They had confidence in the corporate trustee. They could have had no more access to the records of the interrelated companies than the general public. They are not shown to have known of the of the corporate trustee. The difficulties confronting realty managers generally during this accounting period were experienced by these trustees. No deliberate fault of the individual trustees is shown nor any personal gain by them.- No surcharge will be imposed on them. In denying the- request of objectants that the individual trustees be surcharged the court has not passed upon their right to receive commissions nor passed upon the question whether their derelictions or inactivities as trustees warrant denial of commissions to them in whole or in part. All of those questions have been reserved for further hearing when the decree is noticed for settlement."], "id": "2e85907c-5b51-434f-bed6-852fd4914580", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*451The second duty of impartiality which on occasion requires an equitable adjustment as the result of a tax election is, as observed above, foreclosed here by statute (EPTL 11-1.2, subd [B], par [1]). The third duty to refrain from acts (Meinhard v Salmone, 249 NY 458, 464; Matter of Rothko, 84 Misc 2d 830, mod 56 AD2d 499, affd 43 NY2d 305; 2 Scott, Trusts [3d ed], \u00a7 170.25) should bar a fiduciary who is also a beneficiary from making a tax election unfairly favoring his beneficial interest over that of another beneficiary (Carrico & Bondurant, op. cit., p 546). Such a course would prohibit all three children from exercising any discretion on the election, leaving Mr. Harnett, who at least to some extent concedes the magnitude of a problem probably no one, much less the testator, could foresee."], "id": "8ca0d2ca-afe0-4dcd-a4cb-38935b231b45", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The standard of review applied to the actions of a residential cooperative corporation, the common-law business judgment *29rule, requires courts to \u201cdefer to good faith decisions made by-boards of directors in business settings\u201d (40 W. 67th St. v Pullman, 100 NY2d 147, 153 [2003]). The rule applies \u201c[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith\u201d (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990]), that is, consistent with the powers authorized by the bylaws and proprietary leases, where there is \u201ca legitimate relationship between the Board\u2019s action and the welfare of the cooperative\u201d (Pullman, 100 NY2d at 156), and where there is no evidence of \u201cbad faith, arbitrariness, favoritism, discrimination or malice on the cooperative\u2019s part\u201d (id. at 157). Accordingly, it must first be determined whether the cooperative\u2019s action \u201cwas authorized, made in good faith, and in furtherance of the [cooperative\u2019s] legitimate interests,\u201d and then whether the tenants \u201craise [d] a triable issue of fact with respect to fraud, , or other misconduct by the [cooperative] which would trigger further judicial inquiry\u201d (Walden Woods Homeowners\u2019 Assn. v Friedman, 36 AD3d 691, 692 [2007]; see also Oakwood On The Sound, Inc. v David, 63 AD3d 893, 894 [2009]; Levine v Greene, 57 AD3d 627, 628 [2008]; Martino v Board of Mgrs. of Heron Pointe on Beach Condominium, 6 AD3d 505, 506 [2004]; Gillman v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509 [1989]). \u201c \u2018[C]onclusory and speculative allegations of bad faith, self-dealing, and other wrongdoing\u2019 \u201d will not suffice to raise a triable issue of fact (Molander v Pepperidge Lake Homeowners Assn., 82 AD3d 1180, 1183 [2011], quoting Bay Crest Assn., Inc. v Paar, 72 AD3d 713, 714 [2010])."], "id": "b968c892-5cae-463d-ba4c-4de59c69b37c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Very recently I have held in Matter of Rothko (69 Misc 2d 752, affd 40 AD2d 1083) that this court has jurisdiction to set aside contracts made by executors to sell the major substance of estate assets to nonfiduciaries and to adjudicate whether or not restitution ought to be made by the nonfiduciaries if the contracts were found, as alleged, to have been made as a result of or fraud. An injunction pendente lite was also granted forbidding the nonfiduciary contractors from selling or disposing of the property without court permission (Matter of Rothko, 71 Misc 2d 320, affd 40 A D 2d 965)."], "id": "57a09746-eb28-47da-b205-bc08b2c9f14a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Basically the charge of the petition is that this executor, with the knowledge and cooperation of his coexecutors, became involved in a situation with corporations of at least one of which he was an officer and director. The contention in the petition is that the executors and the two respondent corporations entered into a conspiracy to defraud the estate through the execution of contracts which were profitable to the contracting parties but financially injurious to the estate."], "id": "2dacf00f-42bc-4dd3-8822-2a81bb1b89aa", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s first counterclaim demands a judgment directing 363-367 Neptune Avenue, LLC to issue and deliver renewal leases to them in accordance with the Rent Stabilization Law of 1969 (Administrative Code \u00a7 26-501 et seq.). Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s second counterclaim seeks rescission of the Operating Agreement and conveyance of their respective ownership interests in the premises based upon alleged fraudulent inducement. Thomas Neary, Salvatore Benevento, and Carmel Salerno\u2019s third counterclaim requests damages based upon 363-367 Neptune Avenue, LLC\u2019s alleged fraud, deceit, breach of fiduciary duty, , and waste. Thomas *788Neary, Salvatore Benevento, and Carmel Salerno\u2019s fourth counterclaim seeks an accounting. 363-367 Neptune Avenue, LLC has interposed a reply to the counterclaims."], "id": "a1ac8788-d780-41f3-b6eb-14bfac3386c9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The concept of a de facto executor or trustee has long been recognized under New York law (Mills v Mills, 115 NY 80; Matter of King, 194 AD2d 726, affg NYLJ, Feb. 11, 1992, at 26, col 2; Matter of Behr, 191 AD2d 431; Matter of Sakow, 146 Misc 2d 672, supra; Matter of Dakin, 58 Misc 2d 736; Matter of Lewin, 41 Misc 2d 72, 75; Matter of Wohl, 36 NYS 2d 926; Matter of Lasser, NYLJ, June 4, 1986, at 13, col 3). An executor \"de son tort\u201d is defined in Black\u2019s Law Dictionary 403 (5th ed) as a \"person who assumes to act as executor of an estate without any lawful authority, but who, by his intermeddling, makes himself liable as an executor to a certain extent.\u201d The Court of Appeals stated in Katzman v Aetna Life Ins. Co. (309 NY 197, 202) that \"[t]he power of the court to treat a wrongdoer as a trustee de son tort or ex maleficio is *707beyond question.\u201d The result of finding that a person has assumed the mantle of a fiduciary under one of these theories has been broadly stated to be that the de facto fiduciary may be held liable to account and presumably surcharged for on the same basis as any other fiduciary (Matter of King, supra; Matter of Sakow, supra; Matter of Lasser, supra). However, the criteria which must be met to bring a party within the purview of the de facto principle has not been clearly enunciated, probably because most of the decisions on the subject have been rendered in the context of motions for summary judgment or to dismiss, a stage in the proceeding when the party relying on the concept is given every conceivable opportunity to prove that a person has exerted effective control over assets of a trust or estate to an extent which renders him or her as responsible as a de jure fiduciary. If there is any doubt, the motion to dismiss must be denied (Matter of Behr, supra)."], "id": "3be35449-069d-411b-833e-e162129f9d87", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consequently, Mosionzhnik must pay the $500,000 in kickbacks to the Gallery because \u201cfiduciaries must disgorge all wrongful benefits obtained by their disloyalty.\u201d (212 Inv. Corp. v Kaplan, 16 Misc 3d 1125[A], 2007 NY Slip Op 51577[U], *9-10 [Sup Ct, NY County 2007]; see also Excelsior 57th Corp. v Lerner, 160 AD2d 407, 408-409 [1st Dept 1990] [\u201cwhere claims of and divided loyalty are presented, a fiduciary may be required to disgorge any ill-gotten gain even where the (company) has sustained no direct economic loss\u201d], citing Diamond v Oreamuno, 24 NY2d 494 [1969].) Pursuant to CPLR 3212 (e) (2), the execution of the $500,000 judgment is stayed pending the conclusion of the trial because of Mosionzhnik\u2019s potential setoffs (i.e., the claims not at issue on these motions, such as defamation). (See Bartfield v RMTS Assoc., 283 AD2d 240, 241 [1st Dept 2001].)"], "id": "75c3d9cb-ce06-496c-9a92-d9ab4b4fc95f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Much reliance is placed by objectants on Matter of Ryan (supra); Matter of Long Is. Loan & Trust Co. (Garretson) (supra), and Matter of Curtiss (261 App. Div. 964). We make no endeavor to distinguish in detail these decisions from the instant case other than to note that they appear to turn largely on questions of , misrepresentation, obvious inadequacy of information supplied in the account or with special circumstances not herewith presented."], "id": "2eefb797-1a90-4d3b-a3c4-f2b97e11f62a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The board here correctly noted that the receiver is not *271permitted to make payments on the defaulted mortgage. The receiver and mortgagee do not contend that the new \"cash requirements\u201d are insufficient for the receiver to pay for ongoing services at the building. Thus, the court need not deal with the potential of collusive where a board of directors consisting of proprietary lessees reduces the maintenance below a level adequate to pay for essential service. The motion for an injunction to prevent \"modification\u201d of the leases under Real Property Law \u00a7 259-f is denied. The stay in the order to show cause is vacated."], "id": "7f9126b2-61fb-4be5-a5a1-24cadc4898c1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Tenants claim that certain of these representations were false because no part of the assessment charges received was spent on the facade repairs, that the basis of the Board\u2019s rejection of the mortgage alternative was unreasonable and contrary to the *30cooperative\u2019s best interests, that the facade work was premature, and that the special assessment was a pretext to balance the corporation\u2019s operating budget. However, the broad financial management authority granted to the Board in the bylaws and proprietary leases clearly includes the determinations made by the Board, and there is no claim that any part of the funds collected from the special assessment was used for any purpose other than the furtherance of the cooperative\u2019s legitimate interests. Whatever tenants\u2019 claims as to the wisdom of the Board\u2019s decisions, they are clearly authorized by the bylaws and proprietary leases. Even if, as tenants claim, the assessment served only to cure a budgetary shortfall or a depletion of the cooperative\u2019s capital reserves as a result of ongoing facade work expenses throughout 2010, the assessment represents merely an indirect financing of the facade repairs. Absent proof sufficient to establish a triable issue of fraud, , unconscionability, or other action \u201ctaken without notice or consideration of the relevant facts\u201d (Matter of Levandusky, 75 NY2d at 540), the Board\u2019s decisions are insulated from judicial scrutiny by the business judgment rule. Thus, tenants failed to \u201covercome the presumption that the directors exercised their honest judgment to promote the lawful and legitimate interests of the corporation\u201d (Horwitz v 1025 Fifth Ave., Inc., 7 AD3d 461, 462 [2004])."], "id": "07e2edf5-c1e3-4bc7-b854-eb36e2f7c43c", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A fiduciary duty arises from a relationship of higher trust that creates an obligation to act for or give advice to another upon matters within the scope of the relation. (EBC I, Inc. v *829Goldman, Sachs & Co., 5 NY3d 11, 19 [2005].) It is well established that corporate directors have fiduciary duties to the corporation, including the duty of good faith, due care, and loyalty. (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990].) As directors, both Mosionzhnik and Chowaiki had fiduciary duties to the Gallery, which they accuse each other of breaching by committing fraud and engaging in a variety of illegal schemes. These accusations fall into two categories: diversion of corporate opportunities and flat-out illegal activity. The former merits summary judgment for the Gallery. The latter, however, is barred by the doctrine of in pari delicto."], "id": "473f9a0a-34bc-40af-b9d9-d8be3bff27bf", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The distinction between this case and those relied upon by defendant is the presence here of the elements of criminal intent and . Here, defendant had discretion to establish the price for the fabrics. His mere selling them to the jobbers at a price below that which he might have otherwise obtained would not have constituted conversion. However, the evidence reveals that he went further than merely selling Lowenstein\u2019s goods to the jobbers at a price below market value. He did so with criminal intent by diverting a portion of the profits realized from the resale of the goods to himself and others and, as a consequence, deprived Lowenstein of the full market value of its fabrics."], "id": "1e9b4e41-3661-4fb3-9b12-44c13daa4f72", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The petitioner also urges that the trust should be set aside because the trustees specifically violated the terms of the trust. Article third of the trust provides, in pertinent part, that \u201cthe Trustees are prohibited from engaging in any act of (as defined in \u00a7 4941[d])\u201d. It is uncontroverted that by letter dated November 21, 1980, ACN and his wife as cotrustees wrote to themselves and offered to sell the assets listed in the trust agreement at the values specified in the agreement, to wit, $2,000,000. In payment, the purchasers were to give a demand promissory note with interest at 10% per annum payable quarterly to the cotrustees. On the same date, ACN and his wife, as purchasers, accepted the offer of sale and executed their acceptance of the terms of the sale."], "id": "dac9613b-9b0c-4152-86c2-9aeecbc362aa", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Examination of subsequent decisions which have followed Matter of L. I. L. & T. Co. (In re Garretson), (supra) in setting aside decrees settling prior accounts for the purpose of relitigating issues raised by transactions involving discloses that the results were attained because the prior accounts either misdescribed the nature of the property, or misrepresented it, or wholly failed to disclose any fact with respect to the origin of the investment. Thus in Matter of Denbosky (245 App. Div. 93) the prior account purported to show the deposit of an amount in cash in satisfaction of a legacy, when in fact there had been invested in a mortgage certificate an equivalent amount. In Matter of Schmidt (163 Misc. 156) the investment in question was erroneously described in the prior account as an interest in a mortgage whereas the fact was that it was a whole mortgage. In Matter of Curtiss (261 App. Div. 964, affd. 286 N. Y. 716) the trustee had issued certificates of participation in whole mortgages, which it held individually, to the trusts involved. Thereafter it placed a second mortgage upon the same property, against which it issued further participation certificates, some of which it likewise assigned to the trusts. In the prior account the certificates were described as \u201c shares and participations in bonds and .first mortgages * * *, said shares and participations being coordinate in lien with other participations issued therein and subject to no prior interest *849* * The second, mortgage had been placed without the knowledge or consent of the certificate holders and without consolidating the two mortgages into a first lien. It was claimed therefore that the trustee had diminished the security of' the certificate holders in the first mortgage and jeopardized the investment. The certificate holders in the second mortgage contended that they participated in a subordinate mortgage instead of a prior mortgage as required by law. No disclosure of these facts was made by the account and it was properly held that the prior decree was not res judicata as to these investments. In Matter of Ryan (181 Misc. 566, affd. 264 App. Div. 704, affd. 291 N. Y. 376), cited by the respondents herein, the questioned investments in whole mortgages were described in the prior account as: \u201c Bd. & Mtge.\u201d \u2014 name of mortgagor in each instance \u2014 amount of mortgage. In fact each whole mortgage had been purchased by the trustee from itself and the guarantee of its affiliate corporation obtained through the medium of bookkeeping entries, none of which was disclosed by the account, nor was any fact mentioned to put the beneficiaries on notice. Surrogate Delehauty granted vacatur of the prior decrees to the extent required to permit determination of the legality of such investments."], "id": "77e6bf17-af65-40c3-914f-797ce5c1cc92", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Matter of L. I. L. & T. Co. (In re Garretson), (supra) the trustee purportedly assigned to the trust a whole mortgage which it held individually. Subsequently it foreclosed the mortgage through proceedings instituted in its own name and took title to the realty again in its individual name. In an accounting thereafter filed and judicially settled by decree the *848trustee merely charged itself with \u201c Property No. 1458 Fulton Street at foreclosure . - - - $9,106.61.\u2019\u2019 There was therefore not the slightest indication of the source from which the mortgage had been obtained, or from which might he inferred. Upon a subsequent accounting by the trustee the investment was attacked by the life tenant of the trust. The trustee then claimed that the life tenant had ratified the action of the trustee by reason of a report made to her by the trustee, or was estopped by the prior decree. The court in dismissing the claim of ratification held that where ratification is sought to be set up, it must appear that not only did the cestui que trust have knowledge of all the facts, but that she was apprised of her rights under the law. As to the effect of the prior decree, the court merely held that the trustee had failed to sustain the burden of establishing that the question in issue had been litigated and determined in the former proceeding. The result appears to have been reached primarily because ratification had not been established, although the further holding that the prior decree was not res judicata is unquestionably sound."], "id": "838ac72c-ecfb-4122-a7c0-7536c685dd5a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The loan by the fiduciary of the funds of her mother\u2019s estate to herself is an act of and thus a breach of fiduciary duty. (EPTL 11-1.6.) The fiduciary has a duty of undivided loyalty. \u201cNot honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.\u201d (Meinhard v Salmon, 249 NY 458, 464 [1928, Cardozo, Ch. J.]; Parker v Rogerson, 33 AD2d 284 [4th Dept 1970]; Matter of Kinzler, 195 AD2d 464 [2d Dept 1993].)"], "id": "af3def33-92ca-4719-80aa-9a19bf01d5da", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Furthermore, CanWest has demonstrated that severe irreparable harm and the balance of equities are in favor of injunctive relief. The loss of key employees constitutes irreparable harm as a matter of law. Also, respondents are engaged in *860and a fundamental restructuring of business relationships with irreversible consequences, including shutting down the printing plant and transferring the printing business to a company owned by Azour. Independent advertising has declined, and much of the advertising in the Jerusalem Post now promotes business run by Azour. The resulting erosion of the newspaper\u2019s goodwill and reputation also constitutes irreparable harm as a matter of law. Every day that CanWest is denied its right to participate in the ownership and management of the newspaper also constitutes irreparable harm."], "id": "6a5eb8fc-6eb0-44b6-945a-fb807d1e6b67", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A power of attorney, no matter how broadly drawn, cannot be held to encompass an authorization to the attorney in fact to make a gift to himself of the principal\u2019s property. Such a gift carries with it a presumption of impropriety and , a presumption which can be overcome only with the clearest shewing of intent on the part of the principal to make the gift. Not having overcome this presumption, it is evident that respondent breached his fiduciary duty to the decedent when he made a gift to himself of one half of her estate."], "id": "965ff776-b919-428d-b604-9d04e94772f4", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Beyond that, we find that Ferber and Diehl engaged in inexcusable , by deliberately adjusting the preliminary values assigned by Finnegan Associates\u2014the consulting firm retained by the Town to revalue real estate in the Town \u2014so that their own properties, and those of their friends and relatives, were ultimately assessed well below market value, while the properties in petitioner\u2019s development were assessed at a level that was undeniably above market value. This favoritism represents a flagrant abuse of the power conferred upon an Assessor, as well as a reprehensible breach of trust and, without more, constitutes justification for removing an Assessor from office."], "id": "583be8f5-d635-4398-9c07-27a0835bda77", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Objections to said account have been filed by the executrix of the deceased life tenant and by the remaindermen. The objections, thirteen in number, are all directed at the investment by *147the trustees of $123,000 in a $650,000 mortgage on property in the city of New York. The trustees have moved to dismiss all of the objections, except two which allege and failure to disclose the same, on the ground that they are barred by a decree of this court, dated August 5, 1930, rendered in an intermediate accounting herein."], "id": "600ec143-f200-41e2-8c8c-b904fba57885", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["First, the trial court was presented with sufficient evidence from which to conclude that Parks did not engage in . The court heard conflicting evidence concerning the nature of the checks written, whether the checks pertained to personal or partnership interests, and whether appropriate reimbursements were made. The court weighed the conflicting evidence and found that Fudge had failed to prove that these transactions were improper. It is within the sole province of the fact-finder to weigh credibility and resolve disputed facts. Simmons v. Dixon , 96 Ark. App. 260, 267, 240 S.W.3d 608, 613 (2006). To reverse on this basis would be to require this court to act as a super fact-finder or to second-guess the trial court's credibility determination, which is not our function. Based on the evidence presented, *728we are not left with a firm conviction that a mistake was made."], "id": "b9b3a4bb-2bfe-4c4a-87fa-83ec333925f3", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While serving as a director of a nonprofit public benefit corporation called Wildlife Waystation, Margaret Summers filed this action against the Waystation and another director, Martine Colette, alleging and other misconduct by Colette. Colette and the Waystation demurred to the complaint, arguing Summers, who as a director had standing to bring this action when she filed it, lost standing when the Waystation board of directors later removed her as a director. The trial court sustained the demurrers without leave to amend."], "id": "f7df9d5b-3eb1-491d-9905-beff8173e536", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Robert Zirinsky\u2019s whole professional life has been spent in the family\u2019s real estate business, first under the tutelage of his father when Robert was graduated from law school and then on *629his \u201cown\u201d when his father died. A variety of issues are being contested in these accountings that involve allegations of divided loyalty, , usurpation of trust opportunities, etc. There is companion litigation seeking the revocation of letters against Robert premised on his alleged violations of SCPA 711."], "id": "e3a5836f-55c5-4bea-94fc-c7710d52e0b8", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is true that the sale is to be at public auction, that some other group may outbid Webb & Knapp, Inc., and thus bring in a price approaching what the minority claim is a fair price. The granting of a temporary injunction is not intended as an adjudication of the issue of bad faith consisting of alleged or special advantage, but simply and solely as a holding that sufficient has been shown to call for proof at a trial or hearing, which may be had at an early date, without prejudice to any interests involved."], "id": "12806a52-cab4-458b-9e60-bb039a63ccbb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It was this breach of fiduciary duty and the substantial amount of by respondent as fiduciary of the decedent which has created the intolerable conflict of interest for respondent as fiduciary of the estate. An attorney in fact, in exercising the broad powers granted to him should surely be required to turn especially sharp corners in the discharge of his fiduciary responsibilities, particularly when he stands to benefit personally from his acts or dealings. Accordingly, it is the finding of this court that respondent is ineligible to act as administrator of the estate of decedent upon the ground of improvidence under SOPA 707 (subd. 1, par. [e]) and that the letters granted him should be revoked."], "id": "0b36cdcc-fd61-4639-aed7-dbf2740f4b4e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The estates are entitled to an allocation to them of an award representing the underlying value of their proportionate interest in the Phelps Can Company following its liquidation. In order to restore the beneficiaries of the constructive trust to the position they would have enjoyed had there been no , they are entitled to that portion of the Phelps\u2019 net assets which the shares of the Bellinger and Debbie estates bore to the outstanding shares of the company stock on December 31, 1966. (Scott, Trusts [3d ed.], \u00a7 516; Joseph v. Herzig, 198 N. Y. 456; Central Manhattan Props. v. D. A. Schulte, Inc., 91 F. 2d 728; Diamond v. Oreamuno, 24 N Y 2d 494; Matter of Hubbell, 302 N. Y. 246; Ann. 47 ALR 2d 176; Matter of Bolton, 121 Misc. 51; Matter of Dupignac, 123 Misc. 21; People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433.)"], "id": "8dc88836-e2d4-4394-bac0-1e94adca0da5", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*858A portion of the $15,000 fee represents compensation for advice to the trust company regarding charges of wrongful conduct made against it by its cotrustee. It is said that the individual trustee charged the trust company with collusion, and concealment. Expenditures in defense against such accusations would be a proper charge to the trust estate (Matter of Bishop, 277 App. Div. 108). Other services consisted of the representation of the trust company in the action that the widow began but never pressed but the main body of services pertained to the representation of the trust company in the action instituted by the individual cotrustee. That action had not terminated when the bill for services up to September 6, 1951, was rendered and the action was still pending at the time this accounting proceeding was begun. The fact that the bill was rendered in an undetermined action precludes an appraisal of services on the basis of ultimate accomplishment or benefit. Although the trust company was a nominal defendant its interest as fiduciary was in the success of the plaintiff, its cotrustee, inasmuch as the complaint sought damages for the trustees of $96,866. The trust company had no apparent identity of interest with its codefendants. Concededly the company\u2019s approach to the litigation was a cautious one since the company was apprehensive of a claim against it for breach of some fiduciary duty. The memorandum of the corporate trustee states that its attorneys participated in the actual trial only on occasions when it could be anticipated that an attack on the corporal e trustee might be made and at other times a junior attorney attended as an observer only. As noted before, the corporate trustee could properly retain counsel to defend it at the expense of the trust but the legal services must be valued on the basis that they were rendered for the protection of the corporate trustee and not either to augment the trust estate or to protect it from depletion. The affidavit of services covers a period expiring September 6, 1951. The action was still pending in early 1953 when the objections herein were submitted for decision. The court regards the sum of $10,000 as reasonable compensation for the services referred to in the attorneys\u2019 bill of October 10,1951. Their disbursements are held to be proper. One half of such allowed sums is chargeable to the Lele H. Daly trust. The objections are sustained to the extent that a greater charge has been made."], "id": "45a467e9-9a6b-40b0-ad1a-6c9ff8a6019f", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Here, petitioners reason that it would be an \u201cunreasonable or absurd application of the law\u201d to interpret Insurance Law \u00a7 1411 (d) to permit stock repurchases that are not restricted by Insurance Law \u00a7 4105 (a)\u2019s earned surplus test, and urge this court, as did the Santi Court, to look to the legislative intent when applying Insurance Law \u00a7 1411 (d). (Petitioners\u2019 reply brief at 120.) The difference, however, between the instant case and the facts presented in Santi is that in the latter, the Court of Appeals concluded that Corines\u2019 argument was based on a \u201cfair and literal reading of the text,\u201d while here there is nothing in the text of Insurance Law \u00a7 1411 (d) to support the argument that stock redemptions are subject to the provisions of Insurance Law \u00a7 4105 (a). Even if this court were to look to the *209legislative intent which petitioners cite, i.e., that the legislature wanted the Superintendent to have to approve stock redemptions to prevent possible by management and insiders (see petitioners\u2019 reply brief at 120), this intention is not at odds with the plain language of Insurance Law \u00a7 1411 (d), which clearly states that \u201ca plan of stock redemption and retirement [must be] approved by the superintendent as reasonable and equitable.\u201d If the legislature wanted to incorporate any portions of Insurance Law \u00a7 4105 (a) into section 1411 (d), it certainly could have done so, but instead chose not to. Therefore, this court will not impose the standards set out in Insurance Law \u00a7 4105 (a) on Insurance Law \u00a7 1411 (d)."], "id": "590022a4-a5e0-490d-931b-ef7d0eebc09a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*666In each case the trustee gave prompt notice to the income beneficiary and properly earmarked the interest of this estate in the combined investment. The court finds that the trustee was not engaged in making an investment for its own account but was attempting to make an investment for the benefit of a number of estates and funds under its supervision. The court holds that the trustee was not guilty of , and that the investments were not on that ground improper."], "id": "d3f1d70c-48c7-499e-9f49-d1d13c0fbc31", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although the daughters have set forth seven counts in their amended objections, the allegations underlying all of their claims are that their brother, who was a law school graduate at the time of their father\u2019s death, either in collusion with their mother or by controlling her, deceived them by telling them that their father had died intestate, leaving no assets of substantial value and that whatever assets decedent did have had been sold and used for their support and that of their mother. Movant denies that he ever deceived his sisters as to the existence of a will. However, as to the more important question of whether the decedent\u2019s assets were sufficient to fund the daughters\u2019 legacies, movant apparently still maintains that they were not. Objectants further contend that it was not until 1983 that one of them embarked upon an independent search and ascertained that decedent\u2019s will had been admitted to probate. They further allege that their brother or entities or nominees controlled by him acquired many of the parcels of real property that had been owned by *674the decendent or by corporations controlled by decedent in transactions for less than full consideration. With regard to some of the properties, it is their position that movant, rather than the estate, received the proceeds. There appears to have been at least one occasion where movant held himself out to be a duly appointed agent of the estate. Objectants maintain that they have never received anything from the estate, that the decedent\u2019s assets can now be traced to assets having a value in the millions of dollars and that they are together entitled to a four-ninths interest in all of these assets."], "id": "2ccd3ed9-cd80-40f8-96df-62cb2b8c0288", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This action was brought by the Gebbie Foundation, Inc., (\u201c Gebbie \u201d), a New York membership corporation and charitable foundation, which is the legatee of the remainder of the entire residuary estate of one Marion B. Gebbie, deceased (\u201c Marion \u201d) and the legatee of one third of the residuary estate of one Geraldine G. Bellinger, deceased (\u201c Geraldine \u201d) against the defendants (other than Lefkowitz) in individual and fiduciary capacities, for a judgment based upon and profiting; the plaintiffs\u2019 complaint alleging self-dealing and profiting in connection with the sale of 125 shares of stock of the defendant, Phelps Can Company (\u201c Phelps \u201d) from each .of the estates of the aforesaid decedents, and demanding that the defendants be declared constructive trustees, account, and pay over to the estates their proper share and/or the aforesaid shares of stock."], "id": "7313799b-ad75-41ed-a484-479ed6ad561a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Bill Jacket for chapter 648 of the Laws of 1975, which relates to the proposed addition of Public Health Law \u00a7 2803-c, contains a memorandum from its sponsor, Senator Karen Burstein, which summarizes the provisions of that *511statute which requires nursing homes to adopt and make public a statement of the rights and responsibilities of patients in such facilities and to treat those patients in accordance with such statement which \u201cshall include\u201d the patients\u2019 \u201crights to adequate medical care.\u201d The stated purpose of that proposed statute was \u201cto establish for the care of patients in nursing home certain minimum standards\u201d (ibid.) set forth in a patient\u2019s bill of rights. The justification for this proposed legislation was that \u201cno such minimum standards exist for the contract between a nursing home and its patients.\u201d (Ibid.) The memorandum noted that according to an October 10, 1974 New York Times article \u201cinvestigations of private nursing homes revealed widespread instances \u2018of understaffing and underfeeding, padding of bills, kickbacks, safety violations and devices for raising medicaid rates.\u2019 \u201d (Id.) In justifying the bill the memorandum went on to point out that similar legislation had been passed by other states and had been introduced on the federal level by Congressman Cohen who observed that:"], "id": "639a9f43-b111-4d31-a53d-75aea6c05daa", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The petitioner replies that questions of mismanagement, negligence and of value are foreclosed by the decision of this court which rejected all such objections to the accounts for *175periods prior to this accounting, except as to . The petitioner further contends that this method of acquiring mortgages and allocating participations to trusts or the transfer of such participations from one trust to another does not constitute wrongful self-dealing, citing Matter of Union Trust Co. (219 N. Y. 514)."], "id": "9376f1db-ea00-4405-b966-307afe983a22", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The objeetants seek to surcharge the corporate cotrustee alone with the sum of approximately $360,600 and interest, for alleged negligence and even gross negligence in investing the funds of the trusts in participations of a certain mortgage and for failure to give notice to the life beneficiaries required by former section 188, subdivision 7, of the Banking Law. It was further contended that the real estate upon which the total mortgage of $2,800,000 was placed was not worth fifty per cent more than the amount of the loan, that the loan was imprudent and improvident and that it was negligently made, because there was no proper investigation or reliable appraisal of the real estate, and that the income of the *600property was insufficient to meet the carrying charges, including taxes and interest upon the loan. Other grounds of n\u00e9gligence, and lack of prudence in connection with the loan were asserted by the objectants. The cotrustee on the other hand contends that its officers and representatives acted in good faith and with the current exercise of prudence, vigilance and honest judgment."], "id": "1e022766-73c7-4a03-9e32-578e69d5e07b", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The rule of law that a trustee may not deal with himself is an established standard of trust administration. When is discovered the beneficiary has the unqualified right to disaffirm the transaction and to require the return to the trust of the consideration paid. He may require the trustee to make good any damage to the trust after making due allowance for any benefits derived by the beneficiary from the transaction repudiated. The views of the court on transactions of purchase such as are here under attack are stated at length in Matter of Tuttle (162 Misc. 286). The authorities on the point are sufficiently discussed there and will not be further discussed here. The law forbidding this type of purchase being certain, the only open question is one of fact. The record here presents a very full and clear development of all the material and relevant facts."], "id": "c8d5f662-6d99-4a6c-8cae-c50c2e3731e9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The claim that the statute permits , it seems to the court, goes largely to a matter of policy, not of constitutionality, but at any rate it is unfounded in view of subdivision 4 of the statute and the construction placed thereon in Mullane *1014v. Central Hanover Tr. Co. (339 U. S. 306, 309) to wit, \u201c The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate.\u201d (And see Matter of Bank of New York, 189 Misc. 459, 463.) The failure to require so-called \u201c documentary \u201d evidence of investments and transfers (objection 7) and of other notices thereof may affect the opportunity for self-dealing but do not amount to authorization thereof. They are regulatory matters only, and do not render the statute unconstitutional. The claim that self-interest will cause the trustee to pour all funds of small trusts into the common trust fund, so far as possible, may be true. Such seems to be the purpose of the statute. Insofar as operating costs are reduced, it is possible that the trustee may gain by a reduction of its own expenses, but the fund will gain also. If the fund produces a better return, the trustee will gain only insofar as it receives commissions on income in the underlying trusts (subd. 4), and reasonably high income upon diversified investments is certainly not to be condemned. The provision for a stated period of time between a decision to withdraw funds from the common trust fund and the time of actual withdrawal is for the protection of the beneficiaries and deprives no one of substantial rights. It is proper, regulatory legislation. (Veix v. Sixth Ward Assn., 310 U. S. 32.) The same is true with respect to the provisions for triennial accountings."], "id": "3468d17e-8461-46ed-9664-0825c7d95acc", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The following are just two examples of errors that permeate the trial court's judgment that require reversal. First, even if *827we were to credit father's testimony, father did not dispute that the floors of the cabin were unfinished and that son had finished out the cabin. Son testified that he used father's funds to finish the cabin and provided some documentation to support his contention. While the trial court was not required to fully accept and credit son's testimony that he spent all the funds to improve father's cabin, we cannot conclude, as the trial court apparently did, that son spent none of the funds to improve the cabin with the evidence presented at trial. Pictures of a beautiful, fully finished and furnished cabin were introduced at trial, and father admitted that the cabin had been unfinished before his confinement. Thus, at the very least, some of father's disputed funds must have been expended for that purpose and did not constitute or conversion as appellee alleged."], "id": "b3e571cd-6ce1-4774-a43c-3f6176cc59b3", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the fifth cause it is alleged that the estate maintained an office for the administration of the affairs of the estate, at which the defendant, Travis S. Levy, was a tenant between August, 1948, and September, 1954, and used and occupied a portion of said premises with the consent and permission of the plaintiffs as his law office and utilized the services of the secretary employed by the estate and all other facilities of the office with*528out payment' whatever therefor. This additional renders the cause applicable to the 10-year Statute of Limitations and its maintenance is not barred."], "id": "ec160e5f-873f-453e-a4ad-38265b2eff96", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The proposed trusts provide the trustees with full discretion to pay, or apply for the benefit of, any or all income and/or principal to the beneficiary during the trust period. Each trust terminates upon the respective beneficiary attaining the age of 35. Payments of principal are to be made as follows: one third upon the beneficiary attaining the age of 25 years; one half at 30 years; and the balance at 35 years. The beneficiary is granted a power to appoint the principal by a written instrument, and failing to do so, the principal is payable to his/her descendants and, if none, to the surviving sibling. The proposed trustees waive commissions. The trusts would relieve the trustees from filing a bond, establish a nonjudicial procedure for a trustee to resign and for the designation of a successor, relieve the trustees of the duty to account, and exonerate each from any liability for the acts of any other trustee. The administrative powers clauses are very broad and include the right to arbitrate any dispute, to delegate administrative duties, to remove assets outside of New York, and to engage in ."], "id": "4a6fbcf6-18cd-40c8-9c83-6e2efa4feedf", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980 was enacted to remedy certain abuses in conversions of rental housing into cooperative and condominium forms of ownership. Congress found that in cooperative and condominium conversions \"certain long-term leasing arrangements for recreation and other condominium- or cooperative-related facilities which have been used in the formation of cooperative and condominium projects may be unconscionable\u201d (15 USC \u00a7 3601 [a] [3]). Congressional intent under section 3607 of the Act was to protect newly formed cooperatives and condominiums from or \"sweetheart\u201d contracts entered into when the landlord or sponsor is still in control of the property. Section 3607 provides that self-*1068dealing contracts may be terminated by tenant-shareholders when they gain control of a cooperative or condominium development. (Park S. Tenants Corp. v 200 Cent. Park S. Assocs., 748 F Supp 208 [SD NY 1990]; West 14th St. Commercial Corp. v 5 W. 14th St. Owners Corp., 625 F Supp 934 [SD NY 1986].)"], "id": "da855189-5b6c-4c45-94ff-5ec846630e12", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Public Officers Law governs, inter alia, the appointment and qualification of public officers (see, Public Officers Law art 2) and the manner in which resignations may be tendered and *1037vacancies filled (see, Public Officers Law art 3), and it is apparent that the guidelines imposed thereunder are designed not only to establish orderly procedures but to safeguard the public trust placed in such officers. That being the case, we simply cannot accept that the Legislature intended to permit a town clerk to accept his or her own resignation. In this regard, we note that Public Officers Law \u00a7 31 (4) provides that \"[a] resignation delivered or filed pursuant to this section * * * may not be withdrawn, cancelled, or amended except by consent of the officer to whom it is delivered or the body with which it is filed\u201d. Permitting a town clerk to resign to herself under Public Officers Law \u00a7 31 (1) (g), and then vesting her with the discretion to withdraw, cancel or amend her resignation at any time she deems appropriate pursuant to Public Officers Law \u00a7 31 (4), not only leads to the confusion that resulted in this proceeding but opens the door for potential and fraud (see, 1975 Atty Gen [Inf Opns] 339).1"], "id": "63ffe08b-701f-4ae3-bfce-1e26b43484a9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his motion to strike, Glass\u2019 counsel referred to Decker\u2019s estimate as \u201c.\u201d Self-dealing is defined as \u201c[p]articipation in a transaction that benefits oneself instead of another who is owed a fiduciary duty.\u201d Self-dealing, Black\u2019s Law Dictionary (11th ed. 2019). Considering that this case does not involve fiduciaries, this Court interprets \u201cself-dealing\u201d to mean self-serving. B. The Evidence Was Sufficient Because Fair Market Cost of Repair Includes Reasonable Profit"], "id": "c38863c1-60c6-43b9-8194-1c99d7f92d01", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The early suggestion that Bruce Heilman originally intended to open a competing business at the Carter Street location, and purchase the site to lease to the new business, an allegation of some substantial credibility given that Bruce Heilman was shown to have been in deposition less than forthcoming about his Carter Street negotiations with Appelbaum, has been demonstrated to have been fully abandoned by Bruce by the time he executed the Stockwood lease and presented it to Glenn Hellman. On the current state of the negotiations and in view of the lease actually executed, Glenn Heilman offers no admissible evidence of on his brother\u2019s part to defeat defendants\u2019 claimed application of the business judgment rule."], "id": "d77a99e9-6e97-4c0a-8c84-45991947ec3d", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The reference in the Internal Revenue Code to a fiduciary such as the bank herein being a \"disqualified person\u201d and to the \"prohibited transactions\u201d which are detailed in the said Federal statutes (Internal Revenue Code, \u00a7 4975, subd [c]) are to prevent and the commission of other intrinsically wrong acts by the trustees of such retirement funds. A direction from this court to the holder of such funds to pay over the same to a judgment creditor of the settlor cannot be considered a \"prohibited transaction\u201d by the fiduciary bank. The funds represent moneys due and payable to the settlor upon demand and are thus available for attachment by his creditors. (Pafumi v Bowery Sav. Bank, NYLJ, March 9, 1976, p 5, col 3; Lerner v Williamsburgh Sav. Bank, 87 Misc 2d 685, 689-690.)"], "id": "72010ffb-351f-41f6-b2d0-b44e035124f1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Matter of Peck (152 Misc. 315), cited by the objectants, presented for determination an example of by a fiduciary in which the executors sought to establish ratification of the challenged acts of investment by the respondents upon the basis of their execution of an instrument of release to the *850executors in which a formal accounting- was waived. No evidence having been presented indicating that the facts regarding the purchase of the mortgages had been brought to the attention of the parties at the time of the execution of the release, the contention of the executors was overruled. The principles enunciated in Adair et al. v. Brimmer et al. (74 N. Y. 539, 554), that to establish a ratification by a cestui que trust, full knowledge of the material facts, and in an instance of self-dealing by a fiduciary, full knowledge of the legal rights possessed by the cestui gue trust, must be clearly shown, are still unquestionably the law, for the rule there formulated was indirectly approved in City Bank Farmers Trust Co. v. Cannon (supra), and again in Matter of Ryan (supra). Distinction must be drawn, however, between estoppel predicated upon ratification whether through the medium of receipt, release, informal accounting, or knowledge otherwise acquired, and estoppel arising by decree judicially settling an account. If parties who are duly cited upon an accounting do not avail themselves of the rights accorded to them by statute, do not inquire or question acts of the fiduciary which are sufficiently disclosed to them by the account to put them on notice or inquiry, and yet at a later date nlay assert objections to such previously disclosed acts' and proceedings, the benefits of judicial settlement are obliterated. Upon the entry of a decree judicially settling an account, rights of both the fiduciary and the parties in interest .vest. Such vesting of rights should not be lightly disturbed except in a proper ease under subdivision 6 of section 20 of the Surrogate\u2019s Court Act."], "id": "e71cd093-dca6-4e77-a4b2-8d9a713593df", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*731Moreover, in view of the fact that these conversions involve the investment of entrusted assets in the trustees\u2019 affiliated mutual funds, the loss of safeguards under section 100-c of the Banking Law is particularly troubling. In other words, the element of suggests a need for greater, not less, oversight even though the banks are authorized to make such investments. The statute conferring such authority (EPTL 11-2.3 [d]) had a well defined purpose, namely, to enable banks to compete with securities firms by allowing the banks to choose a more easily administered common investment vehicle (the mutual fund) over another available option (the common trust fund) (see Senate and Assembly Sponsors\u2019 Mems in Support, Bill Jacket, L 1994, ch 609). The terms and history of such statute are, however, silent as to the consequence of such statutory largesse where a bank chooses to opt out of a common trust and into direct investment in an affiliated mutual fund, namely, the loss of the periodic judicial accountings that had protected the beneficiaries of the underlying trusts. Simply put, such loss appears to have been an unintended by-product of section 11-2.3 (d) and may be too high a price to pay for the salutary objective that inspired its enactment."], "id": "15a304e6-6ca9-4e88-b26c-f870f92cb658", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff\u2019s appeal to WHCS Real Estate Ltd. Partnership v 33 Greenwich Owners Corp. (168 Misc 2d 721) is also inapposite. That case deals with the Condominium and Cooperative *86Conversion Protection and Abuse Relief Act of 1980 (15 USC \u00a7 3601 et seq.), which permits the shareholders to terminate certain long term leases of condominium and cooperative facilities. The Act is limited to \"[a]ny contract * * * which\u201d \"provides for operation, maintenance, or management of a condominium or cooperative association in a conversion project, or of property serving the condominium or cooperative unit owners in such project\u201d (15 USC \u00a7 3607 [a] [1]). The Act has no application to holders of unsold shares of residential apartment units."], "id": "88af9a0a-86c0-4182-bbbe-aefbaca4e301", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first fundamental objection is that the trustee was guilty of in allocating to this estate a participation in a mortgage acquired by the trustee with its own funds and taken originally in its own name. The whole mortgage in which a participation was allocated to the estate of deceased was acquired by the trustee on June 2, 1931, and six days later the allocation of a share in it was made to the trust. The question is whether such allocation constituted self-dealing. The comments of this court in Matter of Balsimer (160 Misc. 906) are pertinent. There the court said in substance that if a corporate fiduciary temporarily uses its own funds to acquire mortgage investments so as to have on hand mortgages suitable for trust investments it would not be held to be guilty of self-dealing provided the investment was held in a suspense account and provided it was shown that the purpose of it was to have the asset available for the speedy investment of trust funds. That rule for trust administration has been applied in this *816court in other instances. It appears to \u2018 have been called to the attention of the Court of Appeals in Marcellus v. First Trust & Deposit Co. (291 N. Y. 372). The comments of that court (p. 375) indicate that the issue is there still open because the court there said that the question was not presented on the record in the cited case. There seems to the court no reason to depart from the rule in Matter of Dalsimer (supra) and so the objection to the investment which charges self-dealing is overruled on the merits."], "id": "c072c72e-2abb-4495-b515-7b9df3cbd53a", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor is there evidence of motivating petitioner\u2019s actions. It is clear that it was the consensus of the shareholders, based upon the egregious conduct of Gudas and Kagel in commencing illegal construction resulting in Department of Buildings violations to the Corporation and possibly undermining the structural integrity of the building, as well as in frustrating needed repairs and maintenance by restricting access to areas of the building, that the Gudas case needed to proceed in order to secure the ouster of these undesirable occupants. Such purpose was believed to serve the interests of the Corporation. The claim that director DeLille was unaware of the cost of the litigation is belied by the claim she submitted to the Pennsylva*1042nia liquidator containing a recitation of all legal fees as the substance of the insurance claim. (See exhibit 32.) Defendant McGrath also acknowledged filing a similar claim on or about December 31, 2003. These submissions, executed by director DeLille and shareholder McGrath, also preclude the challenge now raised to the reasonableness of the fees as both defendants implicitly endorsed the necessity and reasonableness of the fees paid in submitting the claim. Moreover, despite defendants\u2019 argument that the fees were excessive, the bills from Gallet Dreyer & Berkey, LLP appear to average approximately $300 per hour for legal services, an hourly rate well within the standard rate at the time (exhibit 5). While the law authorizes reimbursement only for those legal fees which are reasonable and which were actually and necessarily incurred, the fact that the fees at issue are conceded to have been paid over the course of nine years of litigation, both by the Corporation and by plaintiff on behalf of the Corporation, without challenge by other directors or shareholders, forecloses the need for further proof at this time."], "id": "c00d1c73-68c2-4d3f-960d-cbca05ffadbf", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Delaware's business judgment rule has procedural and substantive applications. \" ' \"As a rule of evidence, it creates a 'presumption that in making a business decision, the directors of a corporation acted on an informed basis [i.e., with due care], in good faith and in the honest belief that the action taken was in the best interest of the company.' [Citation.] The presumption initially attaches to a director-approved transaction ... in the absence of any evidence of 'fraud, bad faith, or in the usual sense of personal profit or betterment.' \" ' \" (Cede, supra, 634 A.2d at p. 360, quoting Citron v. Fairchild Camera & Instrument(Del. 1989) 569 A.2d 53, 64 (Citron ).) A shareholder plaintiff challenging a board decision has the initial burden to rebut the presumption with evidence that the directors, in reaching the challenged decision, breached any one of the fiduciary duties of good faith, loyalty, or due care. (Cede, supra, at p. 361.) If a plaintiff fails to meet this evidentiary burden, the business judgment rule attaches as a substantive rule of law to protect the directors and their business decisions. (Ibid. ; Citron, supra, at p. 64.) If the business judgment rule is rebutted, the burden shifts to the defendant directors to prove the \" 'entire fairness' \" of the transaction to the shareholders. (Cede, supra, at p. 361.)"], "id": "f1647958-7943-40ca-b1b3-fc9079c43e10", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["All plaintiff\u2019s allegations concerning failures by Vassilakis and O\u2019Neill to convene meetings, elect officers, collect the payments owed by the shareholders, maintain and improve the building, and issue financial statements relate to these individual defendants\u2019 actions on behalf of CASSM Realty and its Board. (E.g. Weinreb v 37 Apts. Corp., 97 AD3d 54, 57 [1st Dept 2012].) Plaintiff has not alleged that Vassilakis or O\u2019Neill, at least in his capacity as a corporate officer of CASSM Realty rather than a shareholder, engaged in or otherwise acted in his own interest and against the corporation\u2019s and its shareholders\u2019 interests. Nor has plaintiff alleged any eviden-tiary facts indicating how Vassilakis or O\u2019Neill, as a CASSM Realty Board member and officer, acted without the Board\u2019s authority or other than on the corporation\u2019s behalf or any particular conduct from which conflict of interest, bias, or discrimination may be inferred. (40 W. 67th St. v Pullman, 100 NY2d 147, 157 [2003]; Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 540 [1990]; Fletcher v Dakota, Inc., 99 AD3d 43, 48 [1st Dept 2012]; see Kassover v PVP-GCC Holdings II, LLC, 73 AD3d 626, 629 [1st Dept 2010].)"], "id": "29bcd68a-f88b-4195-852e-96685a0ff92e", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There are at least two possibilities for allocation of the burden, which would serve, at least in some cases, conflicting policies. There could be a presumption that the construction of the will proposed by the executor is correct, placing the burden on objectant.14 This allocation would, arguably, further the *493decedent\u2019s general intent as demonstrated by her choice of a particular person as her fiduciary. On the other hand, where the executor herself is a beneficiary who would benefit from a particular construction, the burden might be placed on her. This would further the general principle that a fiduciary owes loyalty to all beneficiaries and may not engage in . Or, these allocations could be adopted together (i.e., burden on objectant unless fiduciary is a beneficiary under the ambiguous language; then burden shifts), thus providing greater certainty and decreasing the litigation burden on the courts.15"], "id": "16552373-29a4-4817-9924-67f7b4add1a1", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Barbara R. Kapnick, J. This motion was brought by order to show cause by three members of the steering committee \u2014 the AIG Entities, the Triaxx Entities and the Federal Home Loan Banks of Boston, Chicago and Indianapolis (collectively, the movants) \u2014 with the support of the State Attorneys General of New York and Delaware. The movants seek an order pursuant to CPLR 3124 compelling: (1) The Bank of New York Mellon (BNYM or petitioner or trustee) to produce communications with counsel at the June *17328, 2011 trust committee meeting; (2) BNYM to produce communications with and documents generated by counsel concerning BNYM\u2019s evaluation of the settlement amount, including its decision to retain RRMS Advisors and to forgo a review of loan files; (3) BNYM to produce communications with and documents generated by counsel concerning its own ;1 and (4) BNYM to produce one or more witnesses to testify on the above topics."], "id": "272dea2e-6b62-4e50-9980-f607aa8b52b9", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As noted above, for several generations the business of the Zirinsky family has been real estate development and management in New York City. When Ralph Zirinsky died in 1980, the gross fair market value of his real estate interests was said to amount to $1,044,036 while the net taxable estate was $463,302. At the time of Ralph\u2019s death, Ruth was 48 years old. Robert had recently graduated from law school and had entered the family business. Robert\u2019s entire professional life has been devoted to the family business. Under Robert\u2019s stewardship as cotrustee of the various trusts the value of the family\u2019s real estate interests grew over the next 25 years and today may be worth as much as $100,000,000. It is not disputed that for most of this period Robert was the dominant cotrustee as he made himself expert in the business of real estate development and management. In *628these accountings, however, his sisters allege that Robert breached his fiduciary duties to the trust and to them by longstanding patterns of and usurpation of trust opportunities in order to enrich himself and deprive them of their rightful share of the trusts."], "id": "8647b207-2d5c-4bf5-b3a2-367c9ae3a7bb", "sub_label": "US_Terminology"} {"obj_label": "self-dealing", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is alleged in the first cause of action that in July, 1951, the corporation redeemed from the owners thereof the remaining outstanding capital stock and paid therefor the sum of $268,-887.01. Thereby the estate became the owner of all of the outstanding capital stock of the corporation. On October 1, 1952, the defendant, Travis S. Levy, acquired 25% of the shares of the capital stock of the corporation issued in the name of his wife, the codefendant, at a price alleged to be grossly inadequate and which was $64,318.50 below the price paid by the estate for such interest. In this transaction it is alleged the defendant, Travis S. Levy, acted as the attorney on behalf of all of the parties. By virtue thereof, the defendant obtained financial gain at the expense and to the detriment of the plaintiffs and the estate, and breached his fiduciary obligation. Plaintiffs request that the sale be adjudged fraudulent and void, that retransfer be directed, and that the defendants be directed to account. In such an action charging and breach of fiduciary by a person in the position of a trustee, the 10-year Statute of Limitations is applicable. Since the action was commenced on February 4, 1959, and the transaction occurred in 1952, maintenance of the first cause is not barred."], "id": "343dbf0b-8a53-4171-8d62-e1ad2f8ee60f", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consequently, the Referee concluded, to find the proposed settlement fair, it was necessary that the parties demonstrate to him some favorable relationship between the disproportionately low settlements offered and the chance of plaintiffs\u2019 success'. In doing so, he reached back far beyond the discovery of . the into the peculiar nature of1 the field warehousing business in which the Amexco subsidiaries were engaged."], "id": "d017139e-0ef9-422c-951c-958e8aaab779", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendant certainly had the right to dispute the claim that the plaintiff scored 52 points. If he had done nothing more, an action for slandei would not have been thought of. Adding that the plaintiff was \u201cbluffing, \u201d and had played a \u201cbluff\u201d game before, adds no force to the charge; nor do the additional words that it was \u201ca , \u201d and that the plaintiff had swindled before, make them actionable, wnthout an allegation and proof of special damages. Chase v. Whitlock, 3 Hill, 139; Savile v. Jardine, 2 H. Bl. 531; Odiorne v. Bacon, 6 Cush. 185. The words used had reference to the score of fifty-two claimed by the plaintiff, and, in the sense employed, they were tantamount to saying that the plaintiff had claimed too much, or in other words, that the claim was an imposition. The words used were strong and exaggerated, rude, and vulgar, but not necessarily slanderous. Special damages were not pleaded, and were not proven, and the words, taken either collectively or separately, are not actionable. They did not charge the plaintiff with crime, nor with an attempt to commit crime. The plaintiff had a right to claim any score he honestly believed he was entitled to, and the defendant had the corresponding right to object to any claim he thought was exaggerated or unjust. We think he did this; nothing more. For the reasons stated, the motion to dismiss the complaint ought to have been granted, and the exceptions to the refusal are well taken. The judgment entered on the verdict in favor of the plaintiff must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event."], "id": "fdb73bdc-6e5c-481b-8a68-8606c20b4a6d", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Keeping in mind Kent\u2019s illustration about the sword and the shield, and applying it to this case, it is very clear that the court below has permitted the infant plaintiff here to use his infancy as a sword and not restricted it to use as a shield. In other words, he seems to have approved of the plaintiff perpetrating what seems like a bald by permitting him to deliberately order certain repairs to his car and then deliberately refuse to pay for them. There is nothing defensive about such a situation as that; on the contrary it is decidedly aggressive. I think the justice\u2019s decision was not right."], "id": "64d04571-df6e-4a3b-8d4c-edd1116ce7c2", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["And the referee further finds as follows: \u201c The note was the result of a fraud practiced on the Masons by the plausible stranger who called on them June 19, 1876. They had no idea of signing a note or of authorizing any note to be written over their signatures to what they supposed was an order for a cutter-bar. The stranger was a swindler and the note was a in his hands. But the careless confidence of the Mason brothers in the plausible stranger contributed to the success of the swindle. Whether the written words and figures were inserted in the blanks of the printed form of note before or after the signature of the Masons was appended was immaterial. The note when offered for sale to Crackett bore every appearance of authenticity. The signature was genuine, and Crackett purchased the note without notice of the fraud practiced upon the signers. Before it fell due, Morris S. Miller, Jr., bought it of Crackett and paid full value for it without notice of the fraud. Before it fell due Miller paid it to plaintiff Carey as the equivalent of money, and Carey took it in good faith and parted with value for it before it was due, and as a conclusion of law the referee held that the paper in question, when it was transfen\u2019ed to Carey in payment for the \u00abnare, was in his hands a valid obligation on the part of the Masons to pay the sum of money named in it which he could enforce against them, and the plaintiff has no claim against the *31defendant for the price of the mare, and the referee directed that a judgment be entered that the complaint be dismissed. We think the decision of the referee was correct according to the cases. That providing a promissory note bears the genuine signature of the obligors which has been intrusted to the holder, the obliger is bound in favor of a holder for value who has taken the note before maturity, and with no notice of any fraud in obtaining the signature, provided there was no actual physical inability to ascertain what the tenor and effect of the instrument purporting to be signed in fact was. (See Whitney v. Snyder, 2 Lans., 477.) Though it seems incongruous to hold that an instrument, which is in fact a forgery, should create an obligation against the person upon whom the forgery has been committed. The principle adopted seems to be as stated in McWilliams v. Mason (31 N. Y., 294), that \u201cthe law imposes the loss on the party, who by his misplaced confidence has enabled another, on the faith of his obligation, to obtain money or property from an innocent third party.\u201d Even the fact that the instrument, taken as a whole, is a forgery, for the making of which the party who makes it might be convicted of a felonious forgery, the party whose genuine signature is affixed is nevertheless held liable in favor ef a bona fide holder for value. (Van Duzer v. Howe, 21 N. Y., 531; see also Schultz v. Astley, 29 Eng. Com. L., 655.) The leading features of this case seem to be like the case of Chapman v. Hose, where the defendant entered into a contract with one Miller to act as the agent for the sale of a patent hay fork and pulley, a contract was filled out by Miller and signed by both, also an order which was signed by the defendant for one of the hay forks and two pulleys, for which by the order the defendant agreed to pay nine dollars. These were delivered to the defendant. Another paper was then presented to the defendant for his signature which Miller represented to be but a duplicate of the order. The defendant without reading or examining it, signed it, and delivered it to Miller. The paper so signed was the note in suit for $270. The plaintiff purchased' in good faith before maturity, paying therefor $245. It was held that the plaintiff could recover on the note on the ground that \u201c where one having the opportunity and power to ascertain with certainty the exact obligation be is assuming, yet chooses to rely on the statements of the person with *32whom he is dealing, executes a negotiable instrument without reading or examination as against a bona fide holder for value, he is bound by his act, and is estopped from claiming that he intended to sign an entirely different obligation, and that the statements upon which he relied were false. To avoid liability he must show that he was guilty of no laches or negligence in signing.\u201d"], "id": "1c4f369f-62a2-43c4-95c8-27db6ad7eb31", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Museum, as have many other corporations, apparently found that it was most convenient for it to have employees use a credit card for its business purposes. It thus eliminated the use or abuse by an employee submitting what have in the past frequently been referred to as \u201c sheets \u2019 \u2019. American, on its part was most happy with this arrangement, adding as it admits, to the volume of its business and the size of its profits. American further benefited, as it very bluntly puts it, when it stated in its memorandum of law: \u201c Corporations, particularly small corporations with limited liability and ease of evolution and dissolution, are particularly unstable. The experience of credit companies with individuals, on the other hand, is that in general terms, they respond well and consistently to *286obligations undertaken. They are, in other words, an important and substantial .source of payments for the company,\u201d Translated, this means that American would not issue credit card status to such corporations, but would do so if it had a sacrificial Iamb on the altar so far as liability was concerned."], "id": "1ded8f6c-989d-4fc2-9817-9ef1ee8d06fb", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is perhaps ironic that this web of intrigue should have its genesis in a confidence game. In February of 1978 a 65-year-old widow was bilked of almost her entire life savings of over $50,000 in a classic \"pocketbook drop\u201d by two women who purportedly found a large sum of money and offered to let the victim share in the proceeds by putting up \"good faith\u201d money."], "id": "350938d4-8f5e-471f-b1fd-cb454d1c2791", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"1. A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, or confidence game. \"2. A person who, either at the time he accosts another in a public place or at some subsequent time or at some other place, makes statements to him or engages in conduct with respect to him of a kind commonly made or performed in the perpetration of a known type of confidence game, is presumed to intend to defraud such person of money or other property. Fraudulent accosting is a class A misdemeanor.\u201d Prior to its 1971 amendment, section 165.30 of the Penal Law had read: \"A person is guilty of fraudulent accosting when he accosts a person in a public place and, either at that time and place or subsequently in any place, he makes statements to such person of a sort commonly made or used in the perpetration of a known type of confidence game. Fraudulent accosting is a class A misdemeanor.\u201d In People v Harris (64 Misc 2d 510) this court found the statute, prior to its amendment, to be unconstitutional, lacking, as it did, any requirement of fraudulent intent, and in addition creating the apparent necessity of police expert testimony for the establishment of criminality. The issue before us now is whether the amendment to the statute was cosmetic or curative of those defects previously found."], "id": "ae342559-58d2-4b8b-8240-be5ed5c581dd", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*891The case of Wyatt v. Lortscher (217 App. Div. 224) is cited as \u201c controlling authority in the case at bar,\u201d but I do not agree with that contention and I do not think that a careful analysis of what was therein decided will support the contention. It is true that the right to enforce a real estate mortgage and some mechanics' liens as against a minor was denied, the minor having pleaded infancy, but it was held (p. 227) \u201c upon disaffirmance, as just stated, the reciprocal duty arises to give back the consideration still in the infant's hands,\u201d and it was made clear that the rights of those who had improved the infant\u2019s property must be conserved and adjudicated. It was pointed out that some of the parties involved in that proposition were not before the court (p. 228), and that \u201c in their absence the rights of the defendant cannot be fully adjusted,\u201d and the court continued (p. 228), \u201c were all parties before the court, it may be that an equitable adjustment might be reached \u201d in the manner indicated. The case, decides that \u201c Defendant\u2019s plea of infancy is also effective against the plaintiff\u2019s claim based on mechanic\u2019s liens,\u201d but it does not anywhere say that the defendant, the infant, may hold and have his erstwhile vacant lot upon which a house has been built with the money, labor and material of others, without doing substantial justice and equity by them. What it does say (p. 229) is that \u201c equities may exist in favor of those who furnished materials and their assigns in case they are able to show that the infant has been enriched thereby * * * The evidence to determine the character and amount of such equities does not appear in the present record.\u201d A new trial was, therefore, granted, rather obviously to give those having claims against the property for its improvement a right to have their claims protected. I do not think the case is any authority at all for upholding such a as is attempted to be perpetrated here."], "id": "7991d0e3-91a4-4c04-b45a-142592de1527", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although her letters were revoked because the decedent left a widow who was entitled to administration in preference to all other persons, the former administratrix committed no intentional fraud in applying for letters and has acted honestly and in good faith in the management of the estate. If the dismissed objections to her account had been well founded, she would have been surcharged in the sum of $740.93. She was represented at the trial by an attorney at law. Her successful resistance to the attempted surcharge and the other circumstances above set forth are persuasive arguments for allowing her costs for such contest. There is authority for such exercise of discretion'in somewhat similar situation. (Surr. Ct. Act, \u00a7\u00a7 276, 278; Ellis v. Kelsey, 241 N. Y. 374, 381; Matter of Ducker, 146 Misc. 899.) The cases cited on behalf of the administratrix de bonis non are not now in point, for in the three that have some kinship to the present proceeding there is an element of malfeasance (Matter of Howell, 215 N. Y. 466, 470), or of active and *528willful fraud (Matter of Nouman, N. Y. L. J. Apr. 17, 1933), or of conversion and improvident waste (Matter of Stanton, 2 N. Y. Supp. 342). The fourth case dealt in a somewhat humorous vein with a decree, in some respects \u201c extraordinary \u201d and \u201c void,\u201d entered in a revocation proceeding, where the petitioner also sought appointment in place of the respondents, based upon the charge of a conspiracy to the estate. The charge failed, and the allowance of costs to both parties out of the estate was reversed. The decree met the same fate (Matter of Engelbrecht, 15 App. Div. 541, 547)."], "id": "03ec0f47-10b7-475f-b722-776fc9cdc023", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["What appears to be the crux of the court's decision below to increase Avignone's bail was the concern that Avignone would engage in a fraudulent scheme and others out of money if he was out of custody. Indeed, the court emphasized this fact when it discussed whether Avignone was likely to return for future court appearances if he made bail:"], "id": "ecfcca92-1624-4097-9295-b68b51f91b32", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In this case there was nothing in any documents given by the plaintiff to Grant to indicate that the delivery of the Ford station wagon was conditioned upon any subsequent event. The Ford station wagon was not stolen but obtained by fraud or . It has been consistently held that obtaining goods by false pretenses is not a felony at common law. (Keyser v. Harbeck, 3 Duer 373.) A swindler conveys good title to a purchaser in good faith for value. (Phelps v. McQuade, 220 N. Y. 232; Industrial Bank of Commerce v. Packard Yonkers Corp., 101 N. Y. S. 2d 189.)"], "id": "faa82d1b-dc04-478e-9867-be4b17a3b71e", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The facts alleged in support of the People\u2019s prima facie case are as follows: The defendant in September 1981 acted as intermediary in a sale of diamonds worth in excess of a million dollars from a jeweler to one Whitney Biddle. David Latner, a businessman, allegedly agreed to give the defendant credibility with the sellers by pretending that defendant was his associate, in exchange for a share of the diamonds. The sellers received an *495ostensibly certified check drawn on the account of and indorsed by Whitney Biddle. The certification was false and the account nonexistent. In October 1981 defendant was arrested on a charge of grand larceny. He was indicted in February 1982. In August 1982 the defendant arranged a meeting in a Manhattan restaurant with a casual acquaintance, Charles Benoit. Benoit arrived first. The defendant arrived and was soon followed by two men who joined him and Benoit. During this brief encounter, the defendant introduced one of the men to Benoit as David Latner. This man introduced his companion to Benoit and to the defendant as Whitney Biddle. The defendant then joined these two men and left Benoit. Several months later, the defendant requested Benoit to testify in the upcoming trial about the encounter with Latner and Biddle. Benoit was confused about the date of the meeting, but eventually recalled with the defendant\u2019s assistance. In January 1983 the defendant introduced Benoit and his proposed testimony to defendant\u2019s lawyer. The trial on the grand larceny indictment began in March 1983. Latner testified about his purported assistance to the defendant in the larceny. Latner was asked by defendant\u2019s counsel on cross-examination whether he had ever introduced Whitney Biddle to the defendant. Latner denied that he had done so. The defendant subpoenaed Benoit, who testified that such introduction occurred in September of 1981 [sic].1 For reasons which are not apparent, Benoit never saw Latner at the trial. The defendant\u2019s counsel argued that it was Latner, and not the defendant, who had engineered the with the assistance of Whitney Biddle. The defendant was acquitted."], "id": "81b2ffe9-0ce8-457b-9ed2-f68c4e8b526c", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the late stages of this case, the plaintiffs have concentrated their attack almost exclusively on the compromise of the claims with respect to the forged warehouse receipts. The plaintiffs would have the court enjoin at least this facet of the settlements. However, as the learned Referee correctly reported, settlements of those claims were deemed in the judgment of the directors to be inseparable from the remaining claims. The forged receipts are part and parcel of the underlying . Even if the prospects of recovery by the holders of the forged receipts *767are without legal basis and dim, this court will not interfere with the honest judgment of the directors that claims based upon them should be settled as an indivisible part of the global settlement. (See Levine v. Behn, supra; Market Co. v. Kelly, supra.) Our system of jurisprudence encourages compromise of claims, not only those based on disputed theories of liability, but, at times, even those where the payor is manifestly faultless. Reasons beyond an instant dispute frequently compel a party to pay unjustified claims. Avoidance of litigation expense, peace of mind, advancement of goodwill are some of the reasons which underlie such compromise. Certainly courts should not discourage this practice. It is noteworthy that the tax court agrees with this principle and allows such payments as business deductions (Laurence M. Marks, 27 T. C. 464)."], "id": "13c61977-6255-4bd8-aab3-54c92cd99d53", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The answer of the defendant, Eva Jane Buono, also consists of a general denial and the assertion of separate defenses to the effect that the plaintiff, his attorney, the defendant, Anthony Buono and one Rhodes entered into a corrupt scheme to her of the real estate involved and to subject said property to a usurious mortgage. She also asserts that she executed certain papers while under fear and duress, and without con*791sideration. Further, she asserts that the corporate defendant was formed to conceal a usurious loan and that the stockholders thereof never consented to the execution of the mortgage nor did any officers or directors. Finally, she asserts that the bond given as collateral security by her contained a rider which is allegedly a forgery and that she signed said bond only as a result of fraud and misrepresentation perpetrated upon her and without consideration."], "id": "f8dadfee-b201-4304-ab35-ecbb546dcf1d", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["After a three-year investigation, the Attorney-General on February 14, 1967, served \u2014 but did not file \u2014 a. complaint against Bunge Corporation (Bunge) and -two of its officers \u25a0alleging fraudulent practices with relation to said . The complaint -alleges 12 causes of action, each in considerable detail. The first cause, summarized very briefly, states that in 1962 and 1963 Bunge was the principal \u00a1source of financing for Allied\u2019s purchases and sales of commodities; that -the financing was \u201c collateralized \u201d by public and field warehouse receipts covering actual commodities in the custody -of warehousemen; that Bunge acquired knowledge of certain specific wrongful manipu*327Mi OILS of Allied and De Angelis, including knowledge that certain tanks in Hoboken, New Jersey, represented to contain millions of pounds of oil, in fact contained no oil; that Bunge acquired this knowledge as a consequence of Allied\u2019s alleged offer of a $25,000 bribe to induce an .inspector to conceal the fact that certain tanks were empty; that Bunge knew that Allied was increasing its forged warehouse receipts in the hands of the public from $8,000,000 to $82,600,000; that Bunge was a member \u2014 and the individual defendants were also officers \u2014 of the New Yiork Produce Exchange and owed a duty to the Exchange and to the public to report and reveal such knowledge and failed to do so; that such concealment and suppression constituted \u2018 \u2018 fraudulent practices \u201d under article 23-A."], "id": "7520d334-840f-40d3-aa6e-89937cd3e7b3", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["From the papers and -oral arguments it appears that the interest of the moving parties in the Bunge case arises from the pendency of at least 41 separate actions by victims of the against numerous insurers, claiming damages in excess of $250,000,000; they assert that these claimants are attempting to shift the greater portion, of their losses to the insurance industry.- In fact, certain insurers have already paid judgments in the amount -of $4,500,000. Losses resulted from loans made on the strength of fraudulent warehouse receipts for nonexistent oil. The insurance companies issued policies insuring banks and others that the oil did exist. They contend that Bunge, when it learned in 1962 that Allied was missing $7,000,000 worth of oil, continued to do business with Allied but took steps to insulate its-elf against Allied\u2019s insolvency. Bunge achieved such insulation, it is claimed, by inserting between itself and Allied, unsuspecting third parties. Moreover, it is charged that after taking these protective -steps, Bunge \u20181 delivered the fatal blow \u2019 \u2019 to Allied by selling short, thus driving down the prices of commodity futures, and resulting in margin calls which Allied could not meet. Bunge, it is further charged, not -only extricated itself .from a vulnerable position prior to Allied\u2019s bankruptcy but also profited from the swindle and .should be made to disgorge the fruits -of its fraudulent practices and that the same be returned to the aggrieved public. On the other hand, Bunge vigorously denies any wrongdoing; argues that there is no basis for any *329suit against Bunge and invites the moving parties \u2014 if they really believe they have a good cause \u2014 to bring a lawsuit against them."], "id": "fa4a2bab-d564-4e77-aeb9-0b5d67323bf9", "sub_label": "US_Terminology"} {"obj_label": "Swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Northside Elementary School's principal suspended J.S. for a half-day after J.S. cussed on the playground. The school had previously warned J.S. on two occasions to not use profanity. On this third occasion, the school principal called J.S.'s father and told him to come pick up J.S. because he was suspended for the remainder of the school day. J.S.'s father, Ken , an attorney, refused. Instead, that same afternoon, he filed a complaint in circuit court for a writ of mandamus and writ of prohibition. Since the father did not pick up J.S., J.S. served his half-day suspension in the principal's office. The Rogers School Board later held a hearing and upheld the suspension."], "id": "0e93164a-4e1c-4ef1-a6e4-0cffcdabb8a2", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs, 29 individuals who invested in a real estate development venture, commenced this action in 1992 asserting eight causes of action grounded in fraud, breach of contract, violation of the trust provisions of General Business Law \u00a7 352-h, and violation of RICO. Plaintiffs\u2019 RICO cause of action alleges the \"fraud [of defendants] in the sale of securities, and their use of the mail and telephone wires to perpetrate a fraud and [which was a] part of a pattern of racketeering activities to execute [their continuing] scheme to take money from\u201d plaintiffs."], "id": "27a1f7b0-6b7b-4018-b073-7fd831a82331", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cThe Judicial Conference, which drafted the bill, had two basic goals: (1) to set up a flexible and functional scheme permitting class actions that would heretofore have been dismissed; and (2) to prescribe guidelines for judicial management of class actions . . . \u201cThe heart of the statute is CPLR 901. Borrowing generously from Federal Rule 23, section 901 authorizes a class action whenever the class is sufficiently large to make a representative action the *161fairest and most convenient way to prosecute or defend the suit.\u201d Plaintiffs counsel, in the instant case, attempts to pervert the use of class actions to utilize this court to assist him in increasing the size of his exchequer. Martha Neil, a lawyer and writer on legal affairs, in the July 2003 ABA Journal, New Route for Class Actions (at 48), surveyed class action litigation problems and discerned (at 50), that class actions \u201coften result in minuscule rewards for plaintiffs, according to consumer advocates.\u201d Further, Ms. Neil quotes (at 50) Lawrence W Schonbrun, a California attorney who represents class members challenging class actions outcomes. Mr. Schonbrun observed with respect to class actions that \u201c[i]t\u2019s just another milking of the system by professionals, in this case lawyers . . . It\u2019s a horrible of the American public in the name of trying to help them. And that the courts and the legal system are at the center of this is shocking and depressing, to say the least.\u201d"], "id": "161b8cc4-8e6e-4576-885d-d103d6267e71", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"1. A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, or confidence game. \"2. A person who, either at the time he accosts another in a public place or at some subsequent time or at some other place, makes statements to him or engages in conduct with respect to him of a kind commonly made or performed in the perpetration of a known type of confidence game, is presumed to intend to defraud such person of money or other property.\u201d Defendant contends that the statute is unconstitutional in that it violates the guarantee by the Fourteenth Amendment of due process in that it is vague and does not sufficiently define what is meant by a confidence game so as to inform a person whether his conduct and acts may or may not come within its provisions. Defendant further contends that the present statute (165.30 as amd by L 1971, ch 772) which now includes the element of intent therein does not sufficiently cure its vagueness and indefiniteness. Defendant relies on People v Harris (64 Misc 2d 510), decided before the statute was amended, declaring former section 165.30 of the Penal Law unconstitutional."], "id": "0687fbc2-bc9f-4ace-b1c4-f954ebe1e8a7", "sub_label": "US_Terminology"} {"obj_label": "Swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Swindle's request for relief-that the school remove any reference to J.S.'s suspension and never suspend him again-lacks foundation in any source of law. has not cited a single case that would support such a vast judicial overreach into matters left, rightly so, in the discretion of locally elected school boards. See Fortman v. Texarkana Sch. Dist. No. 7 , 257 Ark. 130, 514 S.W.2d 720 (1974)."], "id": "f457e305-e272-4dd7-9026-54c0bb3e0011", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cWhat the credible evidence shows is that on December 26th 2009, this defendant, right there, tried to David Cushman out of his $35,000 engagement ring . . . Just like the swindle with Mary Nguyen, this defendant just so happened to bring fake jewelry with him on the day when he completed this crime after months of contact with David Cushman. Just like he swindled with [sic] Mary Nguyen, this defendant\u2019s actions were planned, they were calculated, and they were morally . . . bankrupt.\u201d Later, he said:"], "id": "6bb5ccef-8f2b-41aa-9467-817db9dd0589", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We view the general character of the terms of the statute at issue from the perspective that the specified statute is not expected to delineate all statements and actions which might be calculated to a member of the public (see Hechtman, Commentaries, McKinney\u2019s Cons Laws of NY, Book 39, Penal Law, \u00a7 165.30). The crime of fraudulent accosting, nebulous by its very nature, is sufficiently defined by the amended statute so as to give a reasonable man, of average intelligence, sufficient notice of what is proscribed thereby. Accordingly, we find section 165.30 of the Penal Law, as amended, to be constitutional."], "id": "1b561842-df26-4467-a55e-1f762989e28c", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The majority of his prior convictions involve some type of dishonesty. Mr. Jennings\u2019 prior criminal contacts primarily involved his attempts to cheat, con, or steal property that didn\u2019t belong to him. He testified, at great lengths, to some of the individual schemes and con jobs he had previously performed. Mr. Jennings was particularly frank about his efforts to manipulate the criminal justice system."], "id": "9b757032-77c3-4294-a332-38eeef9b9028", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Prosecutor: On behalf of [the complainant's] family, I'm looking for justice as well. I think he deserves a life sentence because he pulled a on all of us including this family. Give us the justice they deserve in the [codefendant's] trial. Defense counsel: Your Honor, I must object to appealing to the expectation of other people as to what your sentence should be. I just want to lodge that objection to that argument. Contrary to Joyner's contention, this objection-which was specific \"to appealing to the expectation of other people\"-does not raise the issue of breach of a plea agreement or prosecutorial misconduct, as required by Rule 33.1. There is no indication in the record of any objection on this basis."], "id": "18d77c35-5181-4488-b27c-8147b9711555", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The article commences with an account of the stock operations of the proprietors of the Daily Times, of whom the plaintiff is alleged in the complaint to be one. From that, and its comments upon it, the article passes to \u201cThe Valley Bank ,\u201d the profits of which are stated to be between $200,000 and $300,000. The article states that the Times proprietors got but about one-fourth \u201cof the plunder.\u201d They furnished theiwhole capital, which was small, for onefowrth of the profits. \u201c The Valley Bank exploded sooner than was intended.\u201d \u201c It was the intention of its originators to get out a circulation of half a million before the collapse, but some of the machinery at work gave way, and brought the concern suddenly to a dead lock.\u201d"], "id": "4b552880-5572-4cb4-a7c6-b8cc84e2e941", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*831Bunge, for a number of years prior to and during 1963, had continuous business dealings with Allied Crude Vegetable Oil Refining Corp. (Allied), not a party to this action and now a bankrupt as a by-product of the infamous salad oil . Both were engaged in various aspects of the vegetable oil business. A substantial portion of their transactions involved the sale or transfer by one to the other of negotiable bills of lading, field warehouse receipts and registered warehouse receipts covering cottonseed oil and soybean oil. The underlying transactions here involved registered warehouse receipts."], "id": "538edc51-9dd4-4ba8-a531-f97ddd035591", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Equally insufficient is the defense that Bunge is barred because the transactions concerning these checks were part and parcel of an alleged continuing series of illegal, fictitious and fraudulent transactions and schemes in which Allied and Bunge were involved as part of the 1 \u2018 salad oil \u2019 \u2019 or conspiracy. The evidence does not support any such conclusion. Although defendant was given every opportunity to plead and prove this defense, it utterly failed to do so. On the opening of trial, after five years of litigation, it was permitted to amend its answer for a third time, to plead such defense in expanded form. It was permitted, over objection, to conduct what may be described fairly as an extensive pretrial discovery proceeding as part of the trial by means of witnesses, depositions and a myriad of *845documents in its attempt to establish such defense. The court is unable to find any such illegality in the transactions between Allied and Bunge as should bar plaintiff\u2019s recovery in this action. Although some of their transactions may neither be commendable nor thought to be in the public interest, there is no clear proof of illegality. Even if illegality were to be found with respect to some other transactions, it has not been shown that any illegality infected or related to the three checks subject of this litigation or to the transactions underlying their issuance. It is found that these transactions were not proven to be illegal. Although the courts will close their doors to a plaintiff who sues to enforce an illegal bargain, it must be shown that the cause of action arises out of or in connection with the illegality asserted. (Seagirt Realty Corp. v. Chazanof, 13 N Y 2d 282; Southwestern Shipping Corp. v. National City Bank of N. Y., 6 N Y 2d 454; Kelly v. Kosuga, 358 U. S. 516; Tenna Corp. v. Rego Radio & Electronics Corp., 270 F. Supp. 31.) The defense of illegality was not proved."], "id": "7d2184d4-2a41-4c59-b209-4912e6a633b8", "sub_label": "US_Terminology"} {"obj_label": "swindle", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Supplementary Practice Commentary to section 165.30 of the Penal Law (as amd.), by Arnold Hechtman, states (McKinney\u2019s Cons. Laws of N.Y., Book 39, Penal Law, 1974-1975 Pocket Part, pp 238-239): \"L 1971, c 772, recasting the crime of Fraudulent Accosting, is an attempt to overcome the constitutional deficiencies of the prior version found by the Appellate Term, First Department, in People v Harris, 1969, 64 Misc 2d 510. The court there pointed to \"an absence on its face of any requirement that the action proscribed be committed with a fraudulent purpose or fraudulent intent.\u201d The amended provision now requires, as an element of the crime, an \"intent to defraud * * * by means of a trick, or confidence game\u201d. To meet the Harris court\u2019s objection to the establishment of criminality by \"the expertise and observations of the officer, based on facts not made part of the crime *151by the statute itself,\u201d subdivision 2 of the amended section only creates a presumption of intent to defraud from the statements made or the conduct engaged in. Proof that the statements and conduct were of a kind commonly used in confidence games will remain a matter for expert testimony\u2014 there being no practical way for a statute to delineate all the statements and conduct that are or can be employed to swindle people.\u201d"], "id": "bc38207e-17b9-4296-81eb-e9a245cf8d1e", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There are two situations where the term \"illusory tenant\u201d has been used: one is to describe a who, as alter ego of the landlord, subleases the apartment to permit the landlord to circumvent or evade his obligations under the rent laws. (Matter of Hiyee Realty Corp. [New York City Conciliation & Appeals Bd.], NYLJ, May 5, 1982, p 6, col 1 [Alexander, J.].) Such an illusory tenancy has been expressly condemned in Yellon v Reiner-Kaiser Assoc. (89 AD2d 561). (Cf. Stutt v Unique Restorations Co., 96 AD2d 1039.) The second type of illusory tenancy involves a prime tenant who is an individual entrepreneur trafficking in stabilized or controlled apartments which he subleases as a business. (Van Seplow v Conciliation & Appeals Bd., Sup Ct, NY County, index No. 100334/75, Asch, J.; Matter of Walsh [Conciliation & Appeals Bd.] NYLJ, Oct 14, 1982, p 7, col 4 [Rettinger, J.]; Rogal v Conciliation & *837Appeals Bd., Sup Ct, NY County, index No. 21713/82, Evans, J.)"], "id": "fc3f19c7-d22b-4aef-959b-165df6121d09", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In arguing the first point, defendant relies upon the enabling legislation \u2014 section 89 of the Village Law. Paragraph (2) of subdivision 63 thereof, entitled \u201cRegulations of vessels\u201d explicitly states that no village ordinance \u201c shall take effect until it shall have been submitted to and approved in writing by the conservation commissioner \u201d (of the State of New York). Concededly, no such approval was ever obtained. But since subdivision 63 deals with boating and sewage regulations, and since it is not the basis of the complaint, the court regards this contention as not in point and somewhat of a argument."], "id": "a9f72ead-770a-4426-b1df-48fd586a4ab3", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["An illusory tenancy is created when a prime tenant subleases an apartment to deprive the subtenant of Rent Stabilization Law (RSL) rights or to profiteer. (Matter of Badem Bldgs. v Abrams, 70 NY2d 45, 52-53 [1987]; Primrose Mgt. Co. v Donahoe, 253 AD2d 404, 405 [1st Dept 1998]; Matter of Avon Furniture Leasing v Popolizio, 116 AD2d 280, 284 [1st Dept 1986], lv denied 68 NY2d 610 [1986].) In the first scenario, a tenant who acts as the landlord\u2019s or alter ego subleases an apartment so that a landlord can circumvent the rent laws. In the second scenario, a tenant is in the business of renting a rent-regulated apartment and then subleases it for profit. Both scenarios exist here. Art Omi, together with Time Equities, deprived respondent of her RSL rights. And Art Omi and Time Equities profited from the arrangement."], "id": "23ecd7d5-f721-444f-b3bd-976f02587ee1", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Alan J. Saks, J. On this motion to vacate a default judgment, it is not disputed that the person to whom the summons and complaint was personally delivered was Pauline Howard, the defendants\u2019 daughter. Such delivery occurred on February 28, 1983. The process server\u2019s affidavit described her as being approximately 16 years old, five feet, five inches in height and weighing 100 pounds. The defendant mother avers that she was only 11 years old. CPLR 308 (subd 2) requires that delivery be made to a person of suitable age and discretion. Plaintiff\u2019s counsel sets up a when it responds by asserting that delivery to a minor does not by itself render service invalid. There are minors and minors. Although the statute does not set a fixed minimum age, the court must strive to find meaning in every word contained in a statute. It must, therefore, presume that the inclusion of the word \u201cage\u201d was not without statutory intention, i.e., that at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deli ver ee."], "id": "7a3fd2ac-f737-4c23-b9c0-c28e97c5ca24", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Furthermore, in the case at bar, the plaintiff did not deal with Wapniak. He gave the check to Karnell, acting as agent for Mindy Auto Collision, Inc. There is no proof that plaintiff knew of Wapniak\u2019s course of dealing; that he knew the car was stolen at the time when he gave the check to Karnell; that he knew Mindy was used merely as a \u201c \u2019 \u2019 for Parts Service. Suspicion is not proof, and without proof plaintiff may not be barred from his right to recover against Boyal. On the contrary, it appears that Wallace Karnell did not own any stock of Mindy Auto Collision, Inc. He testified that he was the \u2018 \u2018 owner \u2019 \u2019 of Mindy Motors, Inc., but not of Mindy Auto Collision, Inc., at the time of this transaction. It also appears that the car was originally a wreck; that one Muller was the original owner and he was indebted to Wapniak for parts used in its repair; and he had asked Wapniak to sell it for him. Thus, this is not a case of plaintiff intending the proceeds of the check to be paid to the person known by plaintiff to be entitled thereto. There is no proof that Simon Wapniak, doing business as Parts Service of America, was intended by plaintiff to be, and was dealt with by plaintiff as \u2018\u2018 the rightful owner of the check,\u201d as defendant claims he was."], "id": "2d030e4e-20c3-4aee-822e-3e876d671d23", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As to the first separate and distinct affirmative defense and counterclaim, it appears that the substance of the defense is an assertion that the plaintiff never loaned any money to the defendant, that the defendant was a \u201c \u201d and that the plaintiff was in fact borrowing the money. The facts alleged are provable at the trial under the defendant\u2019s denials of paragraphs *9083, 4 and 5 of the complaint, and it is unnecessary to allege them as an affirmative defense. However, in Morgan Munitions Co. v. Studebaker Corp. (226 N. Y. 94, 98) the court said: \u201c Matter which would be sufficient under a general denial loses none of its efficacy by being pleaded as a defense. \u2019 \u2019 Therefore, it is sufficient as a defense, and the motion to strike it as a defense is denied."], "id": "fed99df1-d549-4c52-a3f7-eb146efdcc5b", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant's character for violence was not relevant to any legitimate issue at trial, and he did not put his character for peacefulness at issue. In general, evidence of a defendant's character or a trait of his character-that is, his propensity or disposition to engage in a certain type of conduct-is not admissible to prove his conduct on a specific occasion. ( Evid. Code, \u00a7 1101, subd. (a).) However, when a defendant offers evidence of his good character \"to prove his conduct in conformity with such character or trait of character,\" the prosecution may offer evidence to rebut it. ( Evid. Code, \u00a7 1102, subds. (a), (b).) \" 'When a defendant places his character at issue ..., the prosecution is entitled to respond with character evidence of its own.' \" ( People v. Simon (2016) 1 Cal.5th 98, 145, 204 Cal.Rptr.3d 380, 375 P.3d 1, *592quoting People v. Loker (2008) 44 Cal.4th 691, 709, 80 Cal.Rptr.3d 630, 188 P.3d 580.) But in this case, defendant did not introduce evidence putting his character for peacefulness in issue. That evidence was introduced by the prosecution in its case-in-chief by way of defendant's taped statement to police. Evidence Code section 1102\"allows the prosecution to present relevant opinion evidence regarding a defendant's character, but only when the defendant has first offered evidence placing his character in issue.\" ( People v. McFarland (2000) 78 Cal.App.4th 489, 494, 92 Cal.Rptr.2d 884, italics added; see People v. Pangelina (1984) 153 Cal.App.3d 1, 8, 199 Cal.Rptr. 916 ; People v. Terry (1970) 2 Cal.3d 362, 400, 85 Cal.Rptr. 409, 466 P.2d 961.) In other words, Evidence Code section 1102 prevents the prosecution from *878knocking down a of its own making. Moreover, Evidence Code section 1102, subdivision (b) allows the prosecution to introduce character evidence in the form of opinion or reputation evidence only, not specific acts of misconduct such as prior convictions or the facts underlying them. ( People v. Wagner (1975) 13 Cal.3d 612, 619, 119 Cal.Rptr. 457, 532 P.2d 105.) To the extent the trial court here concluded, after mulling it over, that defendant's implied statement to police \"he's a peaceful person allows the District Attorney to get into the facts underlying that particular crime,\" the court abused its discretion under Evidence Code sections 1101 and 1102."], "id": "f7e3544d-495b-410c-98a6-786bd2cebb1f", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Third, Tilly's contends that permitting employees to earn reporting time pay for calling in prior to the start of a shift is unworkable because \"there is no limit to how far in advance of a shift an employee might 'report for work' .... If [an employee] called in two days before, or three days before, or a week before, or two weeks before, in each case she would be performing exactly the same act: ascertaining by phone, in advance of a shift, whether to actually report for it.\" In so urging, Tilly's attacks a because it is the employer , not the employee, who directs how employees report for work.12 As we have said, we do not hold that employees are entitled to reporting time pay whenever they contact their employer to determine what their schedule is. We hold only that if, as plaintiff alleges in this case, the employer requires the employee to call in two hours before the start of a shift, and the employee does so but \"is not put to work or is furnished less than half said employee's usual or scheduled day's work,\" then the employer is liable for reporting time pay."], "id": "c96dd8eb-6260-428b-ac20-edf7eb59143a", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Art Omi contends that if the court were to rule for respondent, the court would confirm the saying that \u201cno good deed goes unpunished.\u201d But Art Omi did no \u201cgood deed.\u201d Respondent did the good deed, not Art Omi. The court finds that Art Omi is an illusory tenant and that respondent is the real tenant. Art Omi, the prime tenant, acted as Time Equities\u2019s when Art Omi subleased the apartment to respondent. Art Omi never occupied or intended to occupy the apartment as its home and had no dominion and control over the apartment. Art Omi, Time Equities, and 346-50 East 20th Street LLC colluded in the scheme. They circumvented the rent laws and profited. They led respondent to believe that she could continue in possession as a rent-regulated tenant. Although she paid the monthly rent during her 11-year tenancy, she was compelled to a large extent to allow Art Omi\u2019s occupants to stay in her apartment for free. When Time Equities received the monthly rent, it would split it in half: Time Equities kept half; Art Omi kept the other half. Everyone profited except respondent. Law and equity dictate that respondent should be the real tenant."], "id": "1d52e24d-14f9-4764-bef4-61919930cddd", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Under circumstances where a civic association counts among its members individuals who own property in the immediate vicinity, these holdings appear to be nothing more than a strained attempt to preserve technical perfection and result in the creation of \u201c \u201d litigants out of individual association members to whom befall the task of seeking a judicial solution to community problems. This destroys the very purpose *688for which such an organization is formed. The property owners of Douglaston have looked to the association as a medium through which their common rights might be preserved equally for all. These members united to attain the political and economic power consonant with one voice speaking the thoughts and protecting the rights of many. It is their way of making themselves heard above the noise of the grinding gears of modern bureaucratic machinery."], "id": "4915fc5e-a25e-48b0-8845-193ff229e5b3", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Judge Kleimax, in his Beltrand decision (p. 1046), constructs a by raising the question \u201c But how does a person innocently standing around, protect himself from the suspicions of officers?\u201d The answer, of course, is completely obvious: he identifies himself and tells the police officer why he is standing around, even if that explanation is that he lives down the block and was getting some fresh air."], "id": "35dc85a7-d19e-41a0-9936-fea8b501e684", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Fred creates a by his repeated references to an asserted duty of continuous updating. The trial court in its detailed statement of decision never mentioned or imposed any such duty. Fred infers the court found a duty of continuous updating because the court \"did not identify at what point this breach of fiduciary duty occurred.\" Absent a specified date or dates on which the breach occurred, Fred apparently supposes the trial court believed the breach occurred every day-indeed every moment-he did not affirmatively disclose to Moira the Ameritrade account's performance in 2012."], "id": "0f0b3f6f-71e2-4958-b6e8-7f60ded613ba", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["But the People\u2019s ostensible rebuttal of the Fifth Amendment analysis\u2014an argument advanced neither by defendant nor relied on by the court\u2014is an attack on a . This is so because the relevant constitutional analysis is provided by the framework found not in the Fifth but in the Fourth Amendment (People v Hall, 10 NY3d 303, 307 [2008] [recognizing a post-Schmerber v California (384 US 757 [1966]) \u201cjudicial consensus . . . that visual body inspections are constitutionally distinct from searches that require the police to intrude beyond the surface of a person\u2019s body and that the two types of searches are therefore subject to different legal standards\u201d]; Schmerber, 384 US at 767 [noting that, \u201cif compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment\u201d]; United States v Dionisio, 410 US 1, 14 [1973] [\u201cThe required disclosure of a person\u2019s voice is thus immeasurably further removed from *501the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber\u201d (emphasis added)]; Smith, 86 AD2d at 253 [\u201cDionisio establishes that seizure of a voice exemplar does not involve the severe, though brief, intrusion upon cherished personal security, or any intrusion into the body, and, therefore, like the seizure of fingerprints or handwriting, does not itself impinge upon any interest protected by the Fourth Amendment\u201d (emphasis added and internal quotation marks omitted)]; Matter of Abe A., 56 NY2d 288, 295, 297 [1982] [applying a \u201cFourth Amendment inquiry . . . focusing on the bodily intrusion itself\u201d])."], "id": "5e360e8e-f34f-422e-9c46-7db2edd1bd2b", "sub_label": "US_Terminology"} {"obj_label": "straw man", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I joined Justice Baker's dissent in Board of Trustees v. Andrews , 2018 Ark. 12, 535 S.W.3d 616 (Baker, J., dissenting). Accordingly, while I should welcome any effort to walk back the unreasonably broad pronouncements in Andrews , I cannot do so in this case. As Justice Wynne noted in the latter half of his concurring opinion, even if the issue had been raised and ruled on by the circuit court-which, as Justice Baker ably notes, it was not-sovereign immunity is not implicated in a tax case where payments are made under protest. I am troubled that the majority saw fit to essentially create this issue, order briefing by the parties only to knock it down like it was a . The majority opinion is a unique example of an advisory opinion; the only legal controversy it resolves is the legal controversy that the majority created. I agree with Justice Baker's assessment that it was improvident to address Andrews in this appeal."], "id": "c545b79c-0d35-4345-8f9a-22daed3fdcf8", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trustee has applied the rule in Matter of Osborne (supra) by starting with the value of the deceased\u2019s investment at the time of his death and deducting from that value the proceeds of sales of rights to subscribe for further stock and a so-called equalizing cash dividend which was paid when the bank whose shares decedent owned was merged with another. This equalizing dividend seems in its nature to have been an adjustment of capital value only. In the case of its own investments in shares the trustee deducted the proceeds of the sales of rights to subscribe for further stock. It took the residue after these deductions as the net of the capital to be kept intact under the rule in Matter of Osborne (supra). The special guardian criticizes these deductions and the court is of opinion that the criticism is sound. The equalizing dividend referred to was accounted for as principal in a previous account. There is nothing to indicate that it should have been deducted from the cost of the investment. It represented an increment in the capital value of the original investment. The cases recognize that such increments increase the capital to be protected. (Pratt v. Ladd, 253 N. Y. 213, 219; Matter of Hagen, 262 id. 301, 305; Thayer v. Burr, 201 id. 155, 158.) The proceeds of the sale of rights equally belong to capital as increment. The value of these rights has no relation to dividends or income. It represents perhaps the value of control or of future speculative possibilities in the stock *911or some other factor unrelated to earnings. The amount realized should be treated as an increment to principal (Robertson v. de Brulatour, 188 N. Y. 301, 315). In Matter of Hagen (supra) the court (p. 306) quoted with approval a statement in United States Trust Co. v. Heye (224 N. Y. 242) as follows: \u201c While the corpus of the fund may not be depleted, yet the corpus may accumulate or increase, and until there is some division in the nature of a dividend payable out of accumulated earnings or profits, there is nothing that can be awarded as income to beneficiaries.\u201d The opinion then states that the profits from the sale of subscription rights are capital of the trust. If then the courts recognize an accumulation or increase of corpus and if they deny dividend participation except out of accumulated earnings or profits the capital to be protected under the rule in Matter of Osborne (supra) is the capital as increased by capital operations. It follows necessarily that the use of the equalizing dividend and of the proceeds of the sale of rights to reduce the amount remaining to be protected was erroneous. The objections of the special guardian in this respect are sustained and the distribution of the will be recomputed in accordance herewith."], "id": "dc4316bc-a837-4ac4-95f1-6d90ab679790", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In May, 1953, the. corporation reduced the par value of its .common stock to. $8.50 per share and issued two shares of .$8.50 par common stock in exchange for each outstanding share of $17 par common. As a result of said transaction, the trustee received 1,000 of $8.50 par common stock, all of which have *899been tentatively allocated to principal. In People ex rel. Adams Elec. Light Co. v. Graves (272 N. Y. 77 [1936]), an analogous situation, the Court of Appeals held unanimously, since there had been no distribution of stock, just a transfer from surplus to the capital stock account, there had been no distribution of anything to the shareholder. Therefore, when the corporation issued shares of stock in exchange for outstanding shares, the distribution was a stock split rather than a ."], "id": "615dafd3-0d82-45df-9e0f-17c08a815883", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Equitable Trust Co. v. Prentice (250 N. Y. 1, 8-9, supra) the court noted that dividends are usually thought of as synonymous with earnings and income, but that stock dividends sometimes embrace corporate assets other than earnings or may be based in whole or in part upon earnings accumulated prior to the beginning of a trust in which a life tenant has an interest (i.e. Matter of Osborne, supra.) Essentially, however, a dividend constitutes a distribution of earnings, and a is made by the issuance and delivery to stockholders of additional stock, supported by assets, usually earnings, transferred to capital. It amounts to a cash dividend and a simultaneous reinvestment thereof with the company by the stockholder, and the stockholder receives additional stock from the company as evidence thereof. A stock split, on the other hand, gives the stockholder no additional stock, but merely divides that which he previously held without altering the amount of the capital and surplus of the company. The latter is the situation in the case at bar."], "id": "8b3fa505-c679-4270-9007-028818e07853", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*290Early in 1955, about eight years after the death of the testatrix, the trustees acquired certain shares of common stock of American Cyanamid Company. In May, 1957, the company declared \u2018 \u2018 a of one share of common stock on each share of common stock * \u00ae * to the holders of record at the close of business June 3, 1957;\u201d that upon the issuance of such stock capital surplus was to be charged about 88.6% of the value of these additional shares and about 11.4% charged to earnings. The trustees have tentatively allocated the stock dividend to income, but have retained the stock pending the instant judicial settlement of their accounts. The income beneficiaries urge that this stock dividend be treated as income in view of the aforesaid provisions of article twenty-eibst of the will; the special guardian representing the remaindermen contends that as a result of this stock dividend there has been a dilution in the principal value of the trust; that the quoted market value of the stock after the effective date of the stock dividend was one half of what it was before that date, and that the action taken by the company was a \u201c stock split.\u201d The higher market value before the stock dividend date and the lower market value after that date are not determinative of the question here (Matter of Tealdi, 16 Misc 2d 685, 688)."], "id": "42179a75-4ed5-4bd6-9c24-057bc8734652", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The balance sheet of Hartford Fire Insurance Company for the year ending December 31, 1960 shows a net gain from operations of $25,615,219. From this account there were paid cash dividends of $11,763,666. In the \u201c Consolidated Statement of Gains and Losses \u201d during 1960 it appears that realized capital losses totaled $3,389,305, and \u201c Sundry Gains and Losses In Surplus \u201d amounted to the sum of $7,452,645 \u201d. Objectants assert that there was no earned surplus from which such could be paid without infringing on capital, and that as appears from Exhibit \u201c E \u201d capital gains in 1959 provided the only apparent basis for the increase in surplus during 1959."], "id": "4ecd472b-7c3c-4604-8ee0-1176eb7a927e", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Matter of Lawrie (119 N. Y. S. 2d 906) the court defined the distinction between a and a stock split; the former being described as a capitalization of earnings or profits together with a distribution of the added shares which evidence the assets transferred to capital, and the latter as representing a mere increase in the number of shares evidencing ownership without altering the amount of capital or surplus. Inasmuch as the resolution described the distribution as a stock dividend, the court is not justified in viewing as a stock split what the directors recognized as a stock dividend (Matter of Strong, 198 Misc. 7, affd. 277 App. Div. 1157; Matter of Lissberger, 189 Misc. 277), especially if the testatrix intended that all dividends were to be regarded as income. Matter of Lawrie (supra) related to *392a dividend of the same type as here involved, which was determined to he a stock dividend rather than a stock split."], "id": "c418c41c-c527-49d4-88a5-6f72039975bf", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It appears, from the account and the testimony submitted in connection with it, that the capital stock of the railroad company mentioned was $700,000, divided into 14,000 shares, each of the par value of $50; of which 13,052 shares had previously been issued, leaving a balance of 948 shares in the treasury of the company unissued. At a meeting of the directors of the company after the death of the testator, held September 17th, 1884, it was resolved to issue said 948 shares as follows: to the stockholders of the company as they that day appeared of record on the books of the company, at the rate of seven and one quarter shares for each 100 shares of stock then *91owned and held by each stockholder, and in like proportion for any larger or smaller amounts of stock so owned or held. In addition, it was also resolved, that, for the purpose of equalizing fractional parts of shares between stockholders, the stock should be rated at $1.50 (it was then in the market at $1.60), and payments should be received from any stockholder whose fraction of a share should amount to a moiety thereof, in the like manner and at the same rate. On October 1st, 1884, the executors received from the Atlantic Avenue Railroad company 22 shares of the capital stock of said company, paying therefor $18.75 for equalization; and on November 22d, 1884, they sold the same at $80 per share, amounting to $1,760. After deducting the sum of $18.75 paid by them for equalization of shares, they now ask to whom they shall credit the balance of said sale of $1,741.25,\u2014whether the same should be paid to the executors and trustees to be held by them as capital, or be paid by them to the life tenants as income. In reference to the question whether an extra shall be deemed capital or income, the English and American decisions are very conflicting, and the question has not been definitely settled by the Court of Appeals of this State."], "id": "63feaa90-abf8-4b5f-8399-f97bc4456808", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A of five per cent was declared by the New York Gas-Light Company, in October, 1853, which was received by the executors. But it appeared by the evidence that the fund out of which this dividend was made formed no part of the earnings of the company, but it was realized by a sale of its real estate on Canal, Centre and Hester streets, in the city of New York. This dividend accordingly was not governed by the legal principle indicating the appropriation-proper to be made of stock dividends declared out of surplus earnings; for it was really made from the proceeds of property constituting a part of the capital of the corporation, and which the directors considered themselves justified in declaring in the then financial condition of the corporation. It was not appropriately income received by the estate, but it was in the nature, so far as it extended, of a change in its capital. It was properly, therefore, so regarded by the executors, and it could not be carried into the accounts as the income of the estate. No other objections requiring further consideration have been taken to the decrees forming the subjects of these appeals, and as those *107which have been considered cannot be sustained, it follows that the decrees themselves should be affirmed."], "id": "a714f31c-fd71-409d-9570-4de2cad96bf8", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*371within the trust. Markle received from the corporation at least $110 per share more than its book value at the time of the sale and this loss was sustained by the minority stockholders including the trustee here. In other words, Markle\u2019s gain over the book value was an impairment of the value of the holdings of the other stockholders. The total impairment in the corporation\u2019s financial position by this purchase must be obtained by multiplying 24,900 shares by $110, the loss per share, or an aggregate of $2,739,000. This transaction is nowhere explained in the account or in the information obtained from the corporation or its accountants, but the necessity for reconciling the loss may perhaps be found in the attempted adjustment sought to be made by the reduction of capital from $5,000,000 to approximately $1,250,000, or a reduction of about $3,750,000. Whatever alleged basis of legal authority may may have been claimed by the corporation officers to justify the transaction, it cannot be held here to authorize the distribution of a fictitious surplus as between the life tenant and remaindermen. We are required by the authorities applicable to the distribution of stock dividends to \u201c look into the facts, circumstances and nature of the transaction and determine the nature of the dividend and the rights of the contending parties according to justice and equity.\u201d (Matter of Osborne, 209 N. Y. 450, at p. 475; Equitable Trust Co. v. Prentice, 250 id. 1; Pratt v. Ladd, 253 id. 213.) In Bourne v. Bourne (240 N. Y. 172) one of the tests is laid down in the following language: \u201c At times a has had for its object merely a change in the number of shares representing the proportional interest of the stockholders in the capital and surplus of the corporation. * * * Here we had little difficulty in allotting such a dividend to the remainderman.\u201d Upon the latter theory the contention of the trustee here, that all the distribution should be retained in capital, seems to be correct. Its counsel contends that all the trustee possessed after the distribution of the Markle stock was two shares in place of the one originally held. That these two shares together represented the same holding in the corporation. He contends that each stockholder had but two shares for each share previously held, but with a large assumed corporate indebtedness against it. He urges that the stockholders owned no larger proportionate interest in the corporation, simply holding two pieces for each piece they previously held in the entity or in the equity after the large indebtedness had been incurred for the purpose of absorbing the Markle stock. .This argument finds further basis for support in Equitable Trust Co. v. Prentice (250 N. Y. 1, at p. 12): \u201c Stock dividends in the true sense, i. e., dividends capitalizing surplus as distinguished from those payable in the stock *372of a subsidiary * * * have predominantly the quality of' an increment to principal, though at times, in furtherance of intention, they have been classified as income. * * * Upon the distribution of a stock dividend, ownership of the assets is precisely as it was. \u2018 A stock dividend does not distribute property, but simply dilutes the shares as they existed before.\u2019 \u201d"], "id": "005aeea6-b0c9-4a75-a3de-57732eb92488", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Since the American Cyanamid distribution is at a rate greater than 6%, it is principal unless the will provides otherwise. In determining whether the will provides otherwise, certain definitions and rules of construction \u201c shall apply Paragraph (a) of subdivision 3 provides that \u2018 \u2018 A or distribution in the shares of the distributing corporation or association shall mean a distribution in the shares of the distributing corporation or association, whether in the form of a stock split or a stock dividend, at the rate of six per cent or less of the shares upon which the distribution is made.\u201d"], "id": "494d9fa0-3d0a-4b51-836e-19b8e003f668", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is to be noted that the testator also gave to his trustees the binding and conclusive power to determine whether any was ordinary or extraordinary and to allocate it accordingly. In connection with this discretionary power, this court indicated in its prior decision (13 Misc 2d 289) that the trustee beneficiary was not precluded from participation in the exercise of discretion as to the allocation of dividends by section 141 of the Real Property Law. Upon reconsideration of the question, the court holds that section 141 of the Real Property Law precludes the trustee beneficiary from any discretion or participation in any decision concerning the allocation of such stock dividends. The Legislature, when it enacted section 141 of the Real Property Law in 1945, codified pre-existinglaw which prohibited a trustee from distributing principal to himself. (Rogers v. Rogers, 111 N. Y. 228; Robertson v. De Brulatour, 188 N. Y. 301; Matter of Lawler, 215 App. Div. 506; Lenzner v. Falk, 68 N. Y. S. 2d 699.) Since its enactment, our courts have broadened its application to include the disqualification of a trustee in the exercise of discretion by him in determining the amount of income to be distributed to *720himself. (Matter of Peabody, 277 App. Div. 905; Matter of Heinrich, 195 Misc. 803; Matter of Bender, 200 Misc. 768.) If, in the ease at bar, the trustee beneficiary were allowed to allocate to herself as income stock dividends which otherwise would go to principal, it would in effect constitute an invasion of principal prohibited by section 141 of the Real Property Law."], "id": "c8a3034e-2b5a-4341-b8b9-eae613969fa6", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If the distribution in fact was either wholly or partly the result of capitalization of corporate surplus earnings or surplus capital legally available for distribution as dividends to stockholders, it must be considered as a true to the extent of the capitalization, and not as a stock split, and is to be allocated to the income account of the trust instead of the principal account (Matter of Davis, 11 Misc 2d 372; Matter of Fosdick, 4 Misc 2d 1003, affd. 3 A D 2d 1000, affd. 4 N Y 2d 646 and cases cited)."], "id": "fe72bdea-f19e-499c-8647-774cbd613e7a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Equitable Trust Co. v. Prentice (250 N. Y. 1, 7-8): \u201cThe rule in this State was settled, until changed in 1926 as to subsequent trusts by an amendment of the statute (L. 1926, ch. 843, amending Pers. Prop. Law, \u00a7 17-a), that as between life *371beneficiary and remainderman a would be reckoned as principal or income according to the origin of the surplus out of which it was declared. To the extent that it distributed a surplus existing at the creation of the trust, it would be allocated to principal; to the extent that it distributed a surplus earned thereafter, it would be allocated to income [cases cited].\u201d (See, also, Matter of Lloyd, 292 N. Y. 280, 285.)"], "id": "824c73a4-c807-4f68-999c-f5fc60873640", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus it appears that there is an agreement as to the method of the apportionment to be adopted should the court hold that there must be an apportionment. The Fifth Avenue Bank was incorporated on July 22, 1875, with a capital stock of the par value of $100,000 and a surplus of another $100,000 so that each stockholder paid $100 for each share of stock and contributed $100 towards the \u201c surplus fund \u201d of the bank. The testator died on April 12, 1902, leaving a will in which he created a trust for the life of Mary Norton Perkins and such trust was properly set up as of the date of his death. Part of the capital of this trust fund consisted of twenty-four shares of stock or twenty-four one-thousandths of all the then outstanding shares of the Fifth Avenue Bank. In 1914 the trust received as a dividend one and eighty one-thousandths shares. All parties concede that this one and eighty one-thousandths shares belongs to the remaindermen for the reason that it was declared out of forty-three shares which were purchased by the bank and carried as part of its capital prior to the institution of the trust and later redistributed among holders of the remaining nine hundred and fifty-seven shares held by the various stockholders. In 1918 the bank increased its capital from $100,000 to $200,000 and issued one thousand additional shares of the par value of $100 each which were distributed as a , the trustees of this trust receiving twenty-five and eighty one-thousandths shares of the stock of the Fifth Avenue Bank as their proportion of the stock dividend so that they then held a total of fifty and one hundred and sixty one-thousandths shares. They sold one hundred and sixty one-thousandths of a share in 1919 and they now hold fifty shares. The trustees originally in their account allocated thirty and twenty-one one-thousandths of these shares to the principal of the trust and twenty and one hundred and thirty-nine one-thousandths to the income thereof *866but on a recalculation these figures have been changed by the stipulation and the correct division, if one is to be made, is to allocate to the principal of the trust thirty-three and one hundred and sixty-five one-thousandths shares and to the income account sixteen and nine hundred and ninety-five one-thousandths shares. The special guardian\u2019s contention as we have already noted, is that all of this stock dividend should be allocated to the principal account. The argument set forth in his learned and exhaustive brief offers many and various considerations in support of his position but the dominant argument is developed out of his premise that the action taken by the stockholders and directors in 1918 determined the nature of the transaction. Expressed in brief terms his argument is that the stock dividend in question was issued against the \u201c Surplus Fund \u201d was \u201c a readjustment of capital, a matter of bookkeeping \u201d and \u201c had nothing whatsoever to do with the accumulated earnings or undivided profits of the bank.\u201d As the chief support of these contentions he points to that part of the resolutions adopted by the stockholders which reads as follows:"], "id": "d29eec93-e876-4919-8040-a7404b7c3a7a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It appears that from the date of decedent\u2019s ieath, 1915, to the date of the distribution, the capital of the General Electric Company had more than doubled. The surplus during that period had trebled. The capital value of each share of stock had increased $21. The accumulated net earnings of the company, after deducting therefrom dividends paid during said period, approximated $204,000,000. Under the circumstances it must be presumed that the purchase of the stock of the Electric Bond and Share Company was from the net earnings of the General Electric Company. (U. S. Trust Co. v. Heye, 224 N. Y. 242, 261; Bourne v. Bourne, 240 id. 172.) So much of the stock, therefore, of the Electric Bond and Securities Company as represents shares of the Electric Bond and Share Company purchased by the General Electric Company subsequent to the decedent\u2019s death should be allocated to income. The 40,007 shares distributed by the Electric Bond and Share Company after decedent\u2019s death as a should also be allocated to income. (Bourne v. Bourne, supra; Matter of Osborne, 209 N. Y. 450.)"], "id": "7e85b965-c6f9-45c5-a8ed-1beedf354f62", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Section 17-a of the Personal Property Law directs that unless otherwise provided for by the will, a must be regarded as principal rather than income. A trustee, however, must obey the command of the testator that a dividend which otherwise would be regarded as principal should be treated as income (Matter of Lloyd, 292 N. Y. 280). There is here a clear direction that all stock dividends as well as ordinary or extraordinary cash dividends be treated as income. That income was to be so favored is also confirmed by the direction in the will that dividends from 4 6 wasting asset corporations \u201d should also be treated as income."], "id": "1de26631-ea62-4dc6-b346-2f6f8e6195fb", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff, Hatch, demanded in his complaint that the defendant, the American Union Telegraph Company, be enjoined from delivering to the Western Union Telegraph Company certain property that it had sold for $15,000,000 to that company, and that the Western Union be enjoined from receiving said property and from paying for it; and also that it be enjoined from paying to its stockholders a certain of $15,526,590, as provided in -the agreements men*307tioned in the complaint, and that said agreements to be adjudged to be invalid, illegal and void. This was also a part of the relief demanded in the Williams case."], "id": "3e9c6214-e640-495c-a52b-1adfa5980d7a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Subsequent to Mr. Tracy\u2019s death and subsequent to the date of execution of Mrs. Tracy\u2019s will a 100% was declared with the result that the said trustee became the holder of 80 shares of the Canandaigua National Bank and Trust Company stock instead of the original 40 received by it. This stock dividend became effective on or about August 7, 1957, approximately three years subsequent to the date of Mrs. Tracy\u2019s will which is in question."], "id": "168c29bc-094f-4f9b-9878-da8beb35b299", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["But the point is that the Osborne case has not been overruled or superseded, and while it remains the law it must be accepted and followed. Merely because the rule in the Osborne case has led to difficulty and has been superseded by legislative action to cover trusts created subsequent to May 17, 1926, this does not afford a substantial reason for a court of law to refuse to construe as such that which in fact amounted to a . As long as the court is under a duty here to find that there was in fact a stock dividend underlying and constituting a part of the exchange of shares involved herein, the court may not accept what is denominated as the \u201c form of the transaction \u201d as controlling. In this case, both substance and form, when all the instruments are read together, clearly show that a stock dividend was intended and was included as part of the transaction."], "id": "2bd03f5e-b06e-40e2-86c4-116d9202b93a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In January, 1945, the trustee purchased 200 shares of the $1 par common stock of Burlington Mills Corp. for $9,244.96. In March, 1945, the said corporation distributed to the trustee another 200 shares of said stock which constituted a split of two for one. This distribution was capitalized by a transfer from capital surplus to the common stock account of $1 per share. The income beneficiary claims the entire 200 new shares as a \u201c \u201d because the company transferred $1 per share from capital surplus to capital stock account."], "id": "16894141-d0e0-4c65-8933-4e5cda246c60", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c Ordinarily where corporate stock is held in trust for a life tenant and a remainderman, and a is thereafter declared representing more than the corporate earnings subsequent to the creation of the trust, such stock dividend is partly income and partly corpus, and has to be apportioned accordingly between the life tenant and the remaindermen. Day v. Faulks, 79 N. J. Eq. 66 (Ch. 1911), affirmed 81 N. J. Eq. 173 (E. & A. 1912) ; McCracken v. Gulick, 92 N. J. Eq. 214 (E. & A. 1920) ; Hagedorn v. Arens, 106 N. J. Eq. 377 (Ch. 1930)."], "id": "8144a6ad-99b8-472e-8ecb-140d358fea97", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The distinction between \u2018 \u2018 stock dividends \u2019 \u2019 and \u2018 \u2018 stock splits \u201d has been defined as follows: \u201c The essential distinction between a and a stock split is that in the former there is a capitalization of earnings or profits together with a distribution of the added shares which evidence the assets transferred to capital, while in the latter there is a mere increase in the number of shares which evidence ownership without altering the amount of capital or surplus.\u201d (Matter of Lawrie, 119 N. Y. S. 2d 906, 911.)"], "id": "eab1229e-7745-4efc-af3b-7e4f86a0a80a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Matter of Payne (Bingham) (supra), the court did not attempt to lay down a new general rule. It noted (p. 9) that the Osborne \u201c intact value \u201d rule 11 was intended as a minimum figure below which the corpus of the trust could not be reduced, not as a jumping-off place above which income could claim everything.\u201d The court then proceeded, by way \"of fuller discussion of the problem, to state the exact situation which now confronts this court and said that the transfer of capital surplus to the capital account (as was done in this case) would not invoke the Osborne rule, saying at page 11: \u201c Frequently, capital surplus is created through the use of earnings to support ordinary stock dividends which the income beneficiary will already have received. A rule of the New York Stock Exchange, required and enforced by the Securities and Exchange Commission, demands that, when a is declared, the earned surplus account of the corporation must be charged with the market value of the stock to be distributed, not merely its par or stated value. (See N. Y. Stock Exchange \u2014 Company Manual, \u00a7 A-13; Rappaport, SEC Accounting Practice and Procedure [1956], p. 312.) Since, ordinarily, only par or stated value goes into the capital stock account, the excess of market value over par or stated value is transferred to capital surplus. The income beneficiary receives the shares thus capitalized. If capital surplus thus derived is subsequently transferred to the capital stock account to support a further issuance of stock, the award of any such stock to income would actually represent a double distribution to the income beneficiary of the identical earnings! Consequently, even if capital surplus is in part made up out of earnings capitalized in years gone by, it is *511generally accepted that the further transfer of such earnings from capital surplus to the capital stock account does not constitute such a capitalization of earnings as will call the Osborne rule into play. \u2019 \u2019"], "id": "25c87290-6e2b-4a1c-ae82-e4b087592cb9", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The effect of the action taken by Standard Oil Company (Indiana) was the issuance of a of new stock and the transferring of $405,746,402.38 to its capital account, being $25 for each additional share issued. The funds transferred from the company\u2019s capital surplus account constituted 43.03% of the entire sum transferred to the capital account, and the funds transferred from the company\u2019s earned surplus account constituted 56.97% of the funds transferred to the company\u2019s capital account. On December 1, 1954, each trust received 100 additional shares of stock."], "id": "51081bf0-c557-4568-929f-ec279a951e01", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["From such the trustee of the Norton estate received thirty-five per cent of 9,000 shares, or 3,150 shares of Continental Can Company, Inc., common stock. These 3,150 *878shares were apportioned as between the life tenant and the remainder-men: to the life tenant as income, 1,948 shares; to principal, and as such added to the trust estate, 1,202 shares. The trust estate Was thereby increased so as to consist of 10,202 shares of par value Continental Can Company, Inc., common stock. These 10,202 shares were adjudged by a decree of this court entered October 6, 1920, to possess a corporate book value of $1,151,213.04, being the same value as before the stock dividend."], "id": "071949ce-c756-4ac4-b93f-9908d4eee3b6", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The stock distribution made by Standard Oil Company of New Jersey in 1956 has been the subject of review by several courts of original jurisdiction under comparable provisions of wills or trust agreements directing that stock dividends were to be treated as income rather than principal. (See Matter of Muller, 5 Misc 2d 83; Matter of Tealdi, 16 Misc 2d 685; Matter of Thoms, 4 Misc 2d 987, appeal dismissed 5 A D 2d 954; Matter of Parsley, 21 Misc 2d 461.) A direction that stock dividends shall be treated as income does not extend to stock splits which have been regarded as distributions of principal, and the courts have *1054generally interpreted such a direction to include as income a supported by capital surplus as well as earned surplus (Matter of Muller, supra; Matter of Chapman, 208 Misc. 390; Matter of Davis, 11 Misc 2d 372)."], "id": "517763bc-c66b-4832-a8ba-1f20c64f65fd", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the hearing of the demurrer in the court below it was adjudged that the answers set up a good and sufficient defense, and judgment overruling the demurrer with costs was given to the defendant. The defendant is alleged in the complaint to have been the holder of 125 shares of the stock of the corporation. The second answer alleges in substance, as to the twenty-five shares, that a certificate thereof was issued by the officers' of the company (of whom defendant was not one) as a , under the pretense that the said company had earned surplus profits to the amount of twenty-five per cent upon its capital stock, and a resolution was passed by the board of directors of the said company declaring that such profits had been earned, and directing that they be divided among the stockholders by means of a stock dividend, in place of cash, to *412the amount of twenty-five per cent of the stock he-ld by such stockholders respectively; but in truth and in fact no such profits had been earned or any part thereof; and the said board of directors, after issuing such certificates, and before any of the notes mentioned in the complaint had been made or indorsed, passed another resolution rescinding their former resolution directing such increase of capital and such stock dividend, thereby, in substance, annulling the certificate for twenty-five shares, which the defendant has befln at all times ready and willing to surrender to the said company."], "id": "7b203f0b-0b66-460a-8c1c-e6f46065d964", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trust was created in 1931 pursuant to the decree in a proceeding before the Surrogate (Surrogate\u2019s Court, N. Y. County, 29 May, 1931, p. #1959/1930, Matter of Vought). The settlor is the life tenant, her two unobjecting sons are the secondary life tenants with contingent remainders depending upon survivorsMp and their infant issue are contingent remain*985dermen. The instrument provides in paragraph 7 that \u201c All stock dividends and extraordinary cash dividends shall be considered as income and be paid to the income beneficiary thereto entitled \u2019 \u2019. The trust is expressly made irrevocable except as to administrative provisions and also provides for invasion of principal in favor of the secondary life tenants. The petitioners seek construction as to allocation and the primary life tenant seeks them as income and also objects to other allocations by the trustees of stock dividends which have been credited to principal. The special guardian for the contingent infant interests seeks a construction that all stock dividends belong to principal. He also asks for a reformation of the trust which is at once overruled as beyond the scope of this proceeding and unwarranted as purely hypothetical (Matter of Mount, 107 App. Div. 1, affd. 185 N. Y. 162). The objections and construction prayed for by the settlor-life tenant are sustained and the objections of the special guardian are overruled. When, as here, by the expressed choice of the settlor of the trust created in 1931 (and controlled by the provisions of Personal Property Law [\u00a7 17-a, eff. in 1926], and as therein authorized), she undertook to take it out of the usual operative effect of that statute as to \u201c all stock dividends \u201d it meant that universally (Matter of Lloyd, 292 N. Y. 280, 285). For the words \u201c stock dividends \u201d in that statute have been held to be all embracing (Matter of Ryan, 294 N. Y. 85) when applied to a trust controlled by the statute. The expression of a choice forecloses a retreat to an allocation as required under the rule in Matter of Osborne (209 N. Y. 450). The choice was the settlor\u2019s (Matter of Lloyd, supra). The guardian\u2019s appointment is extended to include the interest of the newly discovered interest of the infant Craig Vought whose interest is the same as those presently represented by the special guardian (Civ. Prac. Act, \u00a7 1311). Let the accounts otherwise held to be proper be adjusted and recast accordingly and commissions be recomputed. Allowances will be fixed in the final order to be settled with the revision of the account."], "id": "c2001378-28b2-4c72-9d63-129d5047c0cf", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In 1951 the corporation distributed two shares of $15 par capital stock in exchange for each Outstanding share of $25 par capital stock. In Matter of Horrmann (3 A D 2d 5, supra) the court held that 5/6ths of the $15 par shares were distributed as a stock split and the balance as a . However, since of the additional capitalization required on the issue of the $15 par shares, $149,539,527 or 98.75% was obtained by a transfer from capital surplus to the capital stock account, and only $1,888,203, or 1.25% was transferred from the earned surplus account, the trustee has tentatively allocated 399.17 shares to principal and 83/100ths of a share to income."], "id": "7df0f7f2-372a-40bf-878f-22448af2cb02", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I further hold that in this transaction there was no distribution of profits as such and that none of the additional stock received by the trustee can be earmarked as accumulated earnings or surplus distributable to the life tenant. The amended account, filed by stipulation of the parties, confirms this conclusion for the representatives of the company stated in answer to a written inquiry from the attorneys for the trustee that \u201cNo portion of the paid in 1926 was treated as from earned surplus.\u201d Moreover, the condition of the company on December 31, 1929, with any new surplus set up as of that date by r\u00e9ason of a further write-up of assets, cannot affect the issue here which must be determined as of, November 30, 1926 \u2014 the time of distribution of the stock. It is immaterial, of course, as to what may have occurred by reason of subsequent events. The test is to be made as of the exact time of distribution. It does seem, however, that the court cannot ignore *373the recent tremendous shrinkage in the value of commodities \u2014 nationwide and worldwide in its scope. That condition only emphasizes the need of caution in authorizing distributions to life tenants. None should be made unless the right of the life tenant to receive part of the distribution is clearly established. Counsel for the life tenant contends that the assets which were written up in value were purchased out of earnings accumulated after the inception of the trust. A mere revaluation of company assets avails little in the ascertainment of the nature of the distribution. No actual sale of the assets, which might have established actual profits, took place. In the face of the decline of commodity values, the write-ups of a few years ago may be deflated into write-downs in the value of the same assets to-day or a year hence. In the present case all the equities are in favor of the remaindermen and the capital of the trust fund should not be further endangered or impaired by an unjustified distribution. The new shares in their present converted form must all be retained by the trustee as capital."], "id": "5c9b5321-fab3-4793-b86d-88b28ed9ffae", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Insofar as the directors intend to create a out of earned surplus the cases show that such intention will be recognized. If they attempt to create a stock dividend in fact, but seek to disguise it or fail to classify it, the court will determine from their acts what they really intended. (Soles v. Granger, supra; Matter of Norton, supra, and see Matter of Hagen, 262 N. Y. 301, 306, supra.) But if they act in good faith the court ordinarily will not question their decisions (Bourne v. Bourne, 240 N. Y. 172, 177; Matter of Lissberger, 189 Misc. 277, 279, affd. 273 App. Div. 881, leave to appeal denied, 298 N. Y. 934 supra; and see Matter of Hagen, supra, p. 306) nor undertake to make corporate decisions for them which they saw fit not to make themselves. (Matter of Bonbright, 186 Misc. 172, 177 supra.)"], "id": "7909bc76-d092-4fb9-813a-2d6244430f73", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["His codicil, so far as involved here, reads as follows: \u201c Should the Standard Oil Company of Hew Jersey, make a or increase its capitalization then and in that event, I give and bequeath to my said Executor and Trustee upon the trusts created by the Third paragraph of my last Will and Testament for the benefit of my wife, Minnie Megrue, such increase as may arise from the One Hundred shares of the capital stock of the- -Standard Oil Company of Hew Jersey heretofore bequeathed to him, to be held by him as part of the principal of such trust, such increase,, if any, shall follow the original shares as finally disposed of.\u201d"], "id": "30265e51-cb8c-4ccf-952b-851207fd1b3d", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The formula used by the trustee in allocating the stock is correct if it conforms to our holding that in each case of a stock distribution under the instrument under review, the trustee is required to determine whether the stock is charged for corporate purposes in part against capital surplus and in part against earned surplus or is partially a stock split and partially a ."], "id": "6a5793aa-700c-4879-aadc-db8e02f2d185", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The declaration of trust contains the following provision: \u2018 \u2018 In every case of extraordinary cash or , any such dividend is to be distributable wholly as income regardless of the fact that the so doing may result in an encroachment on the principal of the trust \u2019 \u2019. The inclusion of such a provision in the instrument creating the trust was specifically permitted by statutory provision in effect at the time this declaration of trust was executed (Conn. Gen. Stats. [1930 Rev.], \u00a7 4966)."], "id": "a855d6d9-6b58-4ad2-8bb9-f1af9b3937f8", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If after the declaration of a stock \u201c dividend\u201d the original share and the new shares which are received by way of have a total value of less than the original book value then there has been impairment. There is no such diminution here. The value after the declaration exceeds the value of the trust investment at the time of each purchase."], "id": "91280107-80b7-412f-8d7a-cf6f074f490f", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In other paragraphs of the will, the word \u201cExecutor\u201d or the words \u201c Executors and Trustees \u201d were used aptly and in an appropriate manner. Significantly, in paragraph twelve where the testatrix provides that no title in the trust assets or income therefrom shall vest in any beneficiary or be liable for the debts, contracts or engagements of any beneficiary, she used only the word \u201c Trustees \u201d. The court is of the opinion that she intended to vest the power of apportionment of or rights solely in the trustees. The court, therefore, holds that the testatrix not having \u2018 \u2018 otherwise provided \u2019 \u2019 in her will, section 17-a of the Personal Property Law applies and that the act of the executors in allocating the stock dividends to principal was correct. This objection is therefore, overruled."], "id": "39dafc2a-3841-4246-bbca-bfe5f0ac4b2e", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his decision, Mr. Justice Goldman cited the able memorandum of Surrogate Collins in Matter of Davis (128 N. Y. S. 2d 152, 153) in which Surrogate Collins defined the difference between a and a stock split-up as follows: \u2018 \u2018 This court has heretofore pointed out the difference between a stock mvidend and a stock split. See Matter of Lissberger, 189 Misc 277, 71 N. Y. S. 2d 585, affirmed 273 App. Div. 881, 78 N. Y. S. 2d 199; Matter of Lawrie, Sur., 119 N. Y. S. 2d 906, 911. In the former, there is a capitalization of earnings or profits and a distribution of the shares which represent assets transferred to capital, while in the latter there is a mere increase in the number of shares without altering the amount of capital or surplus. The distinguishing feature \u2018 is the permanent retention of earnings in the business through formal transfer of earned surplus, legally available for dividends to capital account. \u2019 \u201d"], "id": "11e93235-dc6c-45d2-922b-e5b109dc410d", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Included in the trust, set apart by direction of the surrogate, were 254 shares of the capital stock of the Western Union Telegraph Company, upon which the trustees received a of 10 per cent. \u00a1November 10j 1892, in the form of twenty-five and four-tenths additional shares of stock. This dividend was declared out of surplus earnings of the company, accumulated for almost ten yeans, or six years before and four years after the death of the testatrix. The question involved was whether this stock dividend was income or capital of the trust estate. The court held it to be income belonging to the life tenants."], "id": "84fc4765-dbba-43be-b8fa-89fde57903d2", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It was determined by a decree of this court made October 6, 1920, that the original trust investment in common stock of this company had a total book value of $1,151,213.04 for 10,202 shares of par value common stock, constituting the corpus of the trust. This was represented at the beginning of this accounting period by 10,202 shares at the par value of $100, there having been originally 9,000 shares in the corpus of the trust, but in the intermediate period a had been declared and apportioned between the fife tenant and the remaindermen, which accounts for such increase. This book value of $1,151,213.04 represents the amount which must not be intrenched upon by1 any apportionment of extraordinary dividends. The estate received 27,205J shares of new stock in place of the 10,202 shares previously held. Of these new shares, 20,404 shares received by the trustee constituted an exchange and were undoubtedly principal. The remaining 6,8011 shares represent the stock dividend to be paid to the fife beneficiary or apportioned between the fife beneficiary and the remaindermen, in accordance with the distributive rule cited. (Matter of Osborne, supra.) It, therefore, becomes essential to ascertain the book value of these 20,404 shares on December 31, 1922, after the payment of the two-thirds share stock dividend."], "id": "49d522f1-89c3-4eb9-a942-f31eeff8d177", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In all the distributions here involved, the capitalization was made simultaneously with the stock distribution and by a transfer to capital from a fund otherwise legally available for the payment of dividends. To the extent, at least, that the distribution was accompanied by a simultaneous capitalization of earned surplus it represents a (Matter of Fosdick, 4 N Y 2d 646). To the extent that the distribution capitalized surplus which would otherwise have been available for payment of dividends, i.e. capital surplus, the overwhelming weight of authority is to the effect that this also constitutes a stock dividend (Matter of Horrmann, 3 A D 2d 5; Matter of Berger [Bankers Trust Co.], 6 Misc 2d 468; Matter of Thoms, 3 Misc 2d 784; Matter of Muller, 5 Misc 2d 83)."], "id": "1c671702-2250-49e4-a569-b98fa2e66045", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The executor of the estate of the widow claims that 7/12 of the new General Electric stock or 175 shares at $50.055466, value $8,759.71, and 56.97 shares of new Standard Oil Company (Indiana) stock at $49.0465, value $2,794.18, should be apportioned to income and be paid to the estate of the widow. He does not raise any question of solvency of her estate and relies on the rule laid down in Matter of Osborne (209 N. Y. 450 [1913]). The court in that case held that as between life beneficiary and remainder-man a would be reckoned as principal or income according to the origin of the surplus out of which it was declared. To the extent that it distributed a surplus existing at the creation of the trust, it would be allotted to principal; to the extent that it distributed a surplus earned thereafter, it would be allocated to income (Equitable Trust Co. v. Prentice, 250 N. Y. 1, 7 [1928]). Market value, good will and like considerations cannot be considered in apportioning a dividend (Matter of Osborne, supra, p. 485). Those who share in the corpus contend this apportionment would be contrary to the testator\u2019s intent."], "id": "59db7e1e-abcd-4013-9cd5-49f6d91d7f2d", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The United States Steel Corporation in May, 1955 split its common stock so that two shares were issued for each share outstanding. There was no change in the capital or surplus account. The new stock can in nowise be deemed a dividend, since stockholders possessed no more assets or no greater interest in the corporation than before the split. The new issue was not a and stock received thereunder must be credited by the trustee to its principal account."], "id": "7c3b6fb7-3b78-4dbd-a1d6-d47314d92c52", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Since the date of execution of the trust instrument herein (1936), corporate practices, financial policies and corporate distributions have changed. Stock splits, as commonly known today, were rare in 1936, and the approach to their understanding and treatment must be understood in the preparation of present day trust instruments. So also the answer as to whether a given stock distribution is a and therefore income, or whether it is a stock split and therefore principal, depends upon *896the means used by the corporation to capitalize its shares and the draftsman must be aware of the possible pitfalls in failing to recognize modern corporate practice,"], "id": "1d48e4fe-58b4-4b2a-8428-2c537ae9d7d9", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The remaindermen contend, second, that in apportioning the , the date of the decree effecting this distribution, November 30, 1920, must be taken as the date upon which the trusts were created, i. e., the date upon which the trusts were actually set up. With this contention I do not agree. The several cestuis que trustent were entitled to the income of the trusts from the date of death. That was the date when the trusts were created. There is nothing in the language of this will to indicate a contrary design, nor any direction to postpone the creation of the trusts beyond this point. I hold that under the will of testator, the trusts were created as of the date of- his death on December 18, 1918, and the apportionment is to be made as of that date. (Matter of Bird, 241 N. Y. 184.)"], "id": "37496ebe-4c9e-40d1-b11c-4cea32bf3872", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Exhibits \u201cG\u201d and \u201c N \u201d, although they do not constitute official financial records of the respective insurance companies, reflect the source of the respective stock distributions. In both cases, it appears that distributions were paid from surplus. In the case of Insurance Company of North America, the distribution is stated to have been paid from \u201c Accumulated Earnings \u201d, In the case of Hartford Fire Insurance Company, the distribution is stated to have been made from earned surplus. In both cases the distribution was treated by the companies as a rather than a stock split."], "id": "b95f6e2a-df88-458e-b0cf-99befdedc3c5", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus Matter of Fosdick was principally concerned with the state of the law as it existed at the time of the creation of the trust and is of rather limited authority because it involved the interpretation of a rather unusual clause in a particular trust instrument. The court did not pass upon the precise question of whether or not a can be capitalized by a transfer from capital surplus and it was not until Matter of Payne (7 N Y 2d 1, supra) was decided that the term \u201c stock dividends \u2019\u2019has been further clarified and defined as used in trust instruments."], "id": "3f056141-499b-4067-af1a-1ef3821e88a4", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Answers to said petition have been filed herein both by said Ivory C. Lawton, as executor and trustee under said will, and by said Harry D. Lawton, Ivory C. Lawton and Ruth Barker, individually, they contending, among other things, and alleging *822that the mentioned and referred to in said petition was payable by said Northville bank in the stock of said corporation declaring the same after the enactment of chapter 843 of the Laws of 1926, and after said law became effective; and because of the said mentioned amendment to section 17-a of the Personal Property Law (added by Laws of 1922, chap. 452) of the State of New York all of the stock dividend declared by said bank in respect of the stock of such corporation composing the principal of the trust created under decedent\u2019s will should be treated by the executor and trustee as principal only, and not income of such trust, said respondents denying that said petitioner is entitled to receive any of. said twenty shares of stock dividend so declared and distributed by said bank to its stockholders of record on January 11,. 1927."], "id": "d46b6b71-db4b-47c8-bcf3-822dee6db64a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It appears that in effecting the \" split-up \u201d the corporation transferred from earned surplus $25,451,052.77. The balance required to make up the necessary amount at $10 par value per share was transferred from \u201c Capital in Excess of Par Value \u201d in the amount of $15,995,877.23. If the total of $41,446,930 had been transferred from the earned surplus account learned counsel for the trustee would agree that the additional stock issued under the \u2018 \u2018 split-up \u2019 \u2019 would be considered a and would, under the terms of the agreements, be distributable to the beneficiary as income. The problem arises by reason of the transfer to stated capital from \u201c Capital in Excess of Par Value \u201d. At first blush the court might well believe that some division should be made between income and principal and that 16/41 of the new stock should be transferred to principal and 25/41 to income. Such an easy solution would however be a disservice to the already complicated condition of the law on this subject."], "id": "2ed705ed-9ab6-4077-92af-34b27c97d603", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The paragraph to be construed reads as follows: \u201c Eighth : I direct that the trustees hereunder, whenever they shall receive any shares of stock of a corporation, by way of a upon any shares of stock of the same corporation held by the trustees as part of the trust estate hereunder, or shares of stock of other corporations distributed by way of extraordinary dividends by any corporation whose shares of stock are held by the trustees as a part of the corpus of the trust estate created hereunder, to retain in the corpus of such trust estate all such stock dividends or extraordinary dividends. However, any such stock dividends paid in lieu of recoupment of dividends defaulted or accumulated while the shares of stock are held in my estate or in the trust estate, shall be deemed income. \u2019 \u2019"], "id": "a860ccd1-137b-443b-8a8b-e26e792486e0", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Corporate enterprise in the United States has undergone many revolutionary changes since 1913 when the Osborne case was decided. The growth and complexity of our giant corporations and the means devised by these corporations to effect tax savings and improved share marketability could hardly have been contemplated or foreseen by our courts at a time when income taxes were unknown. The plain fact is that an equitable rule devised by our courts at that time no longer remains equitable, because of many varied and unforeseen factors. These factors have caused the repudiation of the rule in the State of Pennsylvania (Matter of Cunningham, 395 Pa. 1) and have elicited adverse comment by legal editorial writers (60 Col. Law Rev. 557) but as yet no change has been made in the rule insofar as the State of N\u00e9w York is co'ne\u00e9r\u00f1\u00e9d. There is no doubt that this difficult and perplexing problem should be restudied with a *39view towards arriving at an equitable solution to the problem not quite so arbitrary as section 17-a of the Personal Property Law. Perhaps the solution lies in crediting income beneficiaries with exactly the amount, in cash, or stock at the fair market value thereof, that it transferred from earnings or earned surplus to capital when an extraordinary is declared, regardless of the number of shares issued for each share held and regardless of the designation or name given to the dividend by the issuing corporation."], "id": "56e0a4d5-0dbb-4f04-976c-97816f803670", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nor may defendants avail themselves of the doctrine of ratification by their citation to Blake v Blake (225 AD2d 337 [1st Dept 1996]). As shown by the resolution concerning the preferred (see infra), there were only two directors, James Lippman and Shaffer. Shaffer\u2019s deposition testimony revealed an informal corporate governance relating to the salary and the severance matters, with board meetings occurring by happenstance whenever he, James, Linder and Sherman Levey convened on the telephone or got together. No resolution of the hoard is referred to in connection with the so-called severance distributions, nor does it appear that the requirements of Business Corporation Law \u00a7 713 (a) were adhered to, either by virtue of board action alone or by shareholder ratification. Accordingly, the presumption of waste remains for this case. (See generally, Cohen v Ayers, 596d 733, 741 [7th Cir 1979] [applying New York law], cited with approval in Aronoff v Albanese, 85 AD2d at 5-6.)"], "id": "f3752c68-7f2e-46de-902f-fb5bc60e27a1", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A residuary clause does not ex necessitate rei dispose of the rents and income within the meaning of section 63 of the Real Property Law. \u2022 If we deem the \"trust\"funds to be fixed amounts, all the accumulations thereof would not pass into the residuary estate, on the ground that the residuary clause amounted to a disposition of the rents and profits within the meaning of section 63 of the Real Property Law; That statutory provision *314refers to a specific disposition of rents and profits, to take effect pending the vesting in possession of an expectant estate. In every case where there is a fixed specific trust fund and an expectant estate created therein, the residuary clause would operate, as contended by counsel for the residuary legatees, to prevent the holder of t'he next eventual estate from taking the income under section 63. Then in no case where the rents, pending the vesting in possession of the expectant estate, are disposed of could the holder of an expectant estate be entitled to such rents so long as a residuary clause could be found in the will. Matter, of Harteau (supra,) is a distinct authority to the contrary. In that case, under the will, the executors were directed to make annual payments out of the residuary estate to the testator\u2019s wife during her life, and other payments to two nieces during the lifetime of the widow, and upon her death the executors were directed to appropriate from the general fund $35,000, to be expended in the erection of a statue of General La Fayette; the remaining estate was to be paid to certain named institutions. The only annuitant surviving was the widow. The assets of the estate consisted of 160 shares of corporate stock in the Metropolitan Plate Glass Insurance Company. By reason of , surplus income amounting to $17,722.39 was in the hands of the trustees at the time of the filing of their account. The Court of Appeals, modifying the decision of the Appellate Division, held that \u2022 such surplus income belonged to the La Fayette fund and not to the corporations entitled to the residuary estate. The case may therefore be deemed an authority for holding that the persons presumptively entitled to the next eventual estate are the persons entitled to take presumptively at the time the income is to be distributed. In that case there was a residuary estate which was broad enough to carry the undisposed of' income. . The decision is authority for the rule that the disposition referred to in section 63 of the Real Property Law is a specific and particular dis*315position of the rents and profits. Apparently even a broader holding was made, and the residuary estate was held not to include the income earned by the excess of the corpus over the $35,000 necessary for the trust fund. Although' the fund amounted to only $35,000 out of the entire estate of $41,000, the entire surplus income, upon an examination of the record on appeal, appears to have been earned on a particular portion of the estate, amounting to less than $35,000, namely, $32,000. The court deemed that the fund of $35,000 had been constituted out of that portion of the estate on which the accumulated income had been earned. To the same effect are Meldon v. Devlin (31 App. Div. 146; affd., 167 N. Y. 573; Craig v. Craig, supra,, 93.)"], "id": "abfdcfe0-d51e-4028-b0f0-b644f2e26337", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On September 23, 1954, and prior thereto the trustees held 200 shares of capital stock of Standard Oil Company of Indiana. On this date a resolution was adopted by such corporation authorizing the increase of capital stock from 20,000 to 40,000 shares of the same par value per share. Following a recital that surplus was sufficient to pay a cash dividend and a , the resolution provided for a \u201c dividend \u201d of sixty-two and one-half cents per share on the capital stock of such company payable out of earned surplus and a \u201c stock dividend \u201d of 100% on the capital stock of such company payable first out of capital surplus and the remainder out of earned surplus on December 1, 1954."], "id": "b17b0f4d-a80d-4a80-965e-5127ad4a2c43", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is clear that this sentence creates the possibility, remote though it be, that the widow might be deprived of some share of trust income. As an example, if the trust included as a capital \u00a1 asset shares of \u201cA\u201d Corporation, and \u201cA\u201d Corporation declared a dividend payable in the shares of \u201c B \u201d Corporation, this dividend would, by the direction of the testator, be treated as principal and not income. Yet a dividend payable by a cor- ' poration in the stock of another corporation is not a of the declarant corporation but is the same as a divi- 1 dend of cash (City Bank Farmers Trust Co. v. Ernst, 263 N. Y. 342, 346 [1934]; Matter of Rogers, 22 App. Div. 428, 432, affd. 161 N. Y. 108 [1899]; Matter of Matthews, 280 App. Div. 23, ] 29, affd. 305 N. Y. 605 [1953])."], "id": "3fafc693-273e-4bad-ae15-424333e0eb90", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*493As stated in the petition (p. 6): \u201c In order to provide for the additional shares to be distributed as to holders of its capital stock of record on October 25, 1954, the Standard Oil Company (Indiana) transferred the sum of $405,746,402.38 to its capital account being $25 for each additional share issued. Of this sum $174,612,824.62 was transferred from capital surplus, being the entire balance in the capital surplus account of the company on that date. The balance of $231,133,577.76 was transferred from earned surplus.\u201d"], "id": "0e561611-9bdd-4042-bd21-64acb7386908", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the case of Lowry v. Farmers\u2019 Loan and Trust Company, 172 N. Y. 137, the court lays down the rule: \u201c The transae*198tion, through which the property of the corporation is being distributed in the extraordinary form of a , is to be looked into; in order that its true nature may appear and-that a determination may be reached, whether capital, or an' accumulation of profits on the capital, is being divided among the stockholders. While the corporate action may not be necessarily conclusive upon the court, with reference to the question, if it is based upon facts, and is not purely arbitrary, it will, and should, be controlling.\u201d Row, was the action of this company arbitrary in declaring this dividend ? It would hardly seem so from the statement which they issued. It had a surplus ; it had a very large surplus. It stated that it believed that the common-stock holders were equitably entitled to a portion of this surplus, and it actually paid it in cash."], "id": "10e16e60-c3ef-4d9f-bf7e-2f8a61dbd0c9", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The grantor said \u201cregularly\u201d (2) \u201cpursuant to a settled policy \u2019 \u2019. The minutes of the meetings of the board of directors of Eastman Kodak Company when these stock dividends were declared show that the matter of was considered de novo on each occasion that one was declared. In 1948 the preamble to the resolutions authorizing the stock dividend mentioned \u201c the advisability of declaring a stock dividend on the common stock at this time.\u201d (Emphasis added.) In 1949 such preamble repeated \u2018 \u2018 at this time \u2019 \u2019 and stated that the management \u201c had come to the conclusion that such action would be advisable for substantially the same reasons that the stock dividend was declared in 1948 \u2019 \u2019. In 1950 such preamble mentioned a \u201c further stock dividend \u201d and stated that the \u201c management had come to the conclusion that such a dividend should be declared at this time, and that the amount of it should be 10% of the stock held \u201d. (Emphasis added.) No mention was made of an established intention or policy, and the language used shows that each year was considered on its own earnings record. It may well be inferred that the directors had in the back of their collective minds the thought that the financial needs of the company presently and prospectively were such that earnings should be retained for use in the business, and that so far as reasonably possible without impairment of fair cash dividends, earnings should be capitalized by payment of stock dividends. But they did not resolve to pay a stock dividend in a stated percentage amount or under any circumstances or conditions henceforth. In five of the thirteen years from 1948 through 1960 they declared 5% stock dividends, in two of such years they declared 10% stock dividends, in one year *257(1959) they declared a 100% stock distribution, and in five of such years they declared no stock dividend or stock distribution. If any policy were in the minds of the directors, it was at most to declare a stock dividend for some amount in those years in which the earnings justified it, consistent with the payment of reasonable cash dividends. At best the court could only speculate that such had become a settled policy. No announcement was made by the company in or after 1956 that its dividend policy was to be changed. Yet since the year 1956 such stock dividends have not been declared. This fact tends to confirm the conclusion that the company had established no settled stock dividend policy, and that it would be mere speculation to anticipate the action of the board of directors. A review of the history of the stock market with respect to Eastman Kodak Company stock shows that in the years after 1948 near the time for the consideration of the annual corporate dividend the market usually rose on hopes of a stock dividend, and in many years when such hopes did not materialize the market fell on the disappointing news. This action tends to show that the matter of stock dividends was one of hope and speculation and not of established policy."], "id": "cbb4833f-b3dc-4943-a6dd-e7e459cd7e80", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At the time this agreement was made and thereafter the three individual defendants (the parties of the third part) were in sole control of the corporation and were officers, directors and stockholders thereof. At that time the capital stock of the corporation consisted of 200 shares of common stock each of the par value of $100, of which 100 shares were outstanding. Pursuant to the agreement, the plaintiff entered into the employment of the corporation and also purchased the fifteen shares of stock at the price of $2,500, receiving a certificate therefor on May 5, 1931. The plaintiff was also elected as a director. The plaintiff continued in the employ of the corporation until December 31, 1933, when the agreement in question came to an end. On January 2, 1934, written demands were made upon the defendants by the plaintiff to purchase the stock for the minimum price of $2,500, as provided in the agreement. These demands were rejected. On December 31, 1931, while the agreement was in effect the plaintiff received a of fifteen shares of the Grum-Ko Silk Corporation. During the term of the plaintiff\u2019s employment and while he remained the owner cf the fifteen shares of stock certain changes in the structure of the corporation took place."], "id": "e361db56-61f9-4a2a-abe0-d4dc9b3e606f", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Inasmuch as the decedent died prior to the enactment of section 17-a of the Personal Property Law, and his will contains no provision in respect to the allocation of stock dividends as between principal and income we must determine his \u201c presumable intention \u201d by resort to general principles of construction. (Equitable Trust Co. v. Prentice, supra, p. 9.) Obviously as the law stood prior to 1926 a transfer of earned surplus to capital for the purpose of declaring a and the declaration and issuance of such stock dividend to a trustee stockholder required the allocation of such stock to a life tenant of the trust within the limits of the Osborne case. (Matter of Strong, supra, p. 15.)"], "id": "81dee6b2-a6f5-481b-974e-59d6de159863", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trustees originally received 103 shares of capital stock of Security Trust Company of Eochester. In 1941 the directors of Security Trust Company declared an 100% and transferred earnings to capital. The trustees of the trust herein thereupon received an additional 103 shares of stock of Security Trust Company as the result of such dividend. They apportioned it hy allocating 26 shares thereof to principal and 77 shares to income, using the date of death of the testator as the basis for determining the intact value in the computation of the allocation."], "id": "3772ded4-0af2-4b93-b0ea-bea2b7f2904a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["An examination of Exhibit C reflecting the \u201c Surplus and Reserves \u2019 \u2019 for the period from December 31, 1956, through December 31, 1960, shows a balance in the \u201c surplus \u201d account of $150,000,000, a balance which remained constant from the years 1956 through 1960. To provide for such 100% stock distribution, objectants contend that the transfer to capital of some $27,046,435 to support what was described as a 100% came from an increase in the market value of securities in the sum of $12,023,427, the transfer from voluntary reserves of $11,954,721, on item of \u201c Surplus Paid In \u201d of $4,357,331, and several miscellaneous accounts. If such transfers were found to be transfers from capital surplus and not from earned surplus, the stock dividend would be allocable to principal and not to income."], "id": "3d1e74b2-1cb8-4d03-9527-1c6c27133a22", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Subsequent to the execution of the will and in July, 1960 the said bank declared and paid a 20% , thereby increasing testatrix\u2019 stock ownership from 171 shares to 205, which she owned at her death. Shortly prior to her death, however, the stockholders of the bank had approved of a merger with the First National Bank of Glens Falls, by which the Hudson Falls stockholders would receive 1.8 shares of Glens Falls for each share of Hudson Falls. This merger, however, was not approved by the appropriate banking authorities and did not become effective until July 12, 1963, some two weeks after Mrs. Sheldon\u2019s death. The question thus is, who owns the resulting 369 shares of First National Bank of Glens Falls and the dividends declared thereon since the death of testatrix."], "id": "2ca73ad2-f743-4210-a746-6c08accd265a", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["By the provisions of section 17-a of the Personal Property Law, unless otherwise provided in the will, a must be regarded as principal rather than income. However, the trustee must obey a command that a dividend which otherwise would be regarded as principal shall be treated as income. (Matter of Lloyd, 292 N. Y. 280.) The intention is here emphatic that all stock dividends shall be payable as income. The testatrix expressly directed that \u201c all dividends \u201d be treated as income \u201c any provision of law to the contrary notwithstanding.\u201d The intention therefore is clear that dividends were not to be subjected to the rule of the statute or to an allocation based upon principles of equity, but to the testamentary direction to treat all dividends as income. The phrase \u201c all dividends \u201d is all-inclusive and embraces the distribution here involved so as to render the entire stock distributed to be delivered to the income beneficiary."], "id": "2c8bc07f-7255-4ed2-8057-cf2fe48cd1a3", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The respondent, James Cannon Lambeth, objects to the action of the executors in allocating stock dividends to principal. He contends that the executors\u2019 powers to apportion stock dividends were derived from paragraph eighth of the will which reads as follows: \u201c and my said Trustees are further authorized and empowered to apportion any or rights which may be declared on any shares held by any of said trust funds between the corpus of said funds and the income, and their determination of the amount to be apportioned between principal and income shall be final and binding upon all concerned. \u2019 \u2019 The accountants argue that the powers granted under the above-quoted provision applied to them only as trustees and not as executors and that as executors they were required under section 17-a of the Personal Property Law to allocate all stock dividends to principal. That section provides that \u2018 \u2018 Unless otherwise provided in a will * * * any dividend which shall be payable in the stock of the corporation or association declaring or authorizing such dividend * * * shall be principal and not income of such trust.\u201d The court agrees with that contention."], "id": "800d0b70-4d87-43a8-ab46-13679d8d091c", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Arguing, though without absolute assurance from the record, that the quoted portion of the will was the product of the testator\u2019s own draftsmanship and hence is to be governed by the rules applicable to instruments drawn by laymen, the life beneficiaries insist that: \u201c While the testator used the words \u2018 dividend in the stock of the issuing company,\u2019 and \u2018 dividend stock, \u2019 it is clear from his memorandum (Objectants\u2019 Exhibits 7A and 7B) that in the use of those terms he was thinking of both stock dividends and stock splits in the sense of \u2018 return It is hardly to be believed that when the testator referred to dividends of 10% or less, knowing that during the 15 years he had held I.B.M. stock there has never been a of more than 5%, he was thinking of the possibility at some future time of there being a stock dividend of 10% or more.\u201d"], "id": "2c4667fb-2f11-4bc5-8250-47a6de5be807", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Within the authorities cited, the corporate action taken sufficiently *885indicated that the two-thirds of a share issued was in the nature of a . It was so issued by unanimous vote of the stockholders through proxies given pursuant to a letter which indicated that there was to be such a stock dividend. It becomes unnecessary in this case to go behind the official action of the stockholders and directors or to violate those acts in any way. It is a mere matter of interpretation of what they intended and did, based upon specific evidence which clearly and completely establishes what they did and which is not inconsistent with what they said."], "id": "a4c3a0cc-91f8-4fc5-bbe8-9f90e4a1f44e", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The special guardian, however, in effect asserts that in the interval there had been an increment to principal amounting to $5,513.50 and, therefore, increasing the principal value of the stock holdings to $52,422.50, wherefore, under the enumerated principle second, principal is entitled to receive a pro tanto distribution of the present , which he calculates to be 147.123 shares."], "id": "b3222339-0ca5-4506-808e-1155dbe90838", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At the time of his death, the testator was the owner of 875 shares of stock of the State Bank of Ontario of a par value of $20 each. He had received these shares by virtue of the stock split and dividend in exchange for the original 35 shares of stock of a par value of $100 each. At the time of the execution of the will, the 35 shares liad a tolal book value of $44,006.20; at the time just prior to the stock split the 35 shares had a book value of $1,383.54 per share or a total book value of $47,423.90. After the stock split and the declaration of the , the 875 shares owned by the testator had a book value of $55.34 per share or a total book value of $48,422.50."], "id": "1d18e75d-15ec-458e-8167-ee6407c327e3", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The distinction between a and a split-up of shares has been ably defined (Matter of Laurie, 119 N. Y. S. 2d 906). The distinction drawn is that shares issued to represent capitalization of earnings or profits constitute a dividend while a mere increase in the number of shares is a split-up. This distinction, however well recognized in financial parlance, is purely one of accounting. It might and possibly does have some purpose in clarifying changes in corporate financial structure, but basically in fact it is without meaning. A dividend is a distribution of corporate assets, generally money resulting from earnings. Neither in a stock 11 dividend\u201d nor a split-up is there any distribution of assets. The stockholder has exactly what he had before, though the symbols of his ownership undergo a change. The fact that there is a simultaneous change in the label of corporate accounts is equally illusory. Whether the account is designed as capital or surplus or undistributed earnings or whatever may be, it was and remains an asset of the corporation. The stockholder upon dissolution becomes entitled to his proportionate share of the account regardless of its label on the corporate books. A change in the name of the account is absolutely without effect on this right. It follows that there is no such thing as a stock dividend when that term is used to describe a distribution by a corporation of its own common stock to its shareholders. (A dividend may, of course, be paid in the stock of another *158corporation or in securities of the paying corporation other than common stock.)"], "id": "1348ee63-550c-4bef-ac5a-69c4f39e18de", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The capitalization of surplus capital and earnings, as in this case, results in a and not a stock split. (Matter of Fletcher, 20 Misc 2d 686.) A stock split increases the number of shares without altering the amount of capital or surplus (Matter of Davis, 11 Misc 2d 372). Moreover since the resolution described the distribution as a stock dividend, the court is not justified in viewing as a stock split what the directors regard as a stock dividend (Matter of Strong, 198 Misc. 7, affd. 277 App. Div. 1157; Matter of Lissberger, 189 Misc. 277)."], "id": "959f80de-4883-4c40-8a7d-0f9bf8e4275d", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I hold further that the dividend of four per cent on the common stock must be a cash dividend. Where a will authorizes investments in other than legal securities, the language of such authorization should be strictly construed. (Matter of Herriman, 142 Misc. 164; Matter of Franklin Trust Co., 84 id. 686.) The word \u201c dividend \u201d in the ninth paragraph of the will is, therefore, construed to mean a cash dividend and not to include a . Such a construction is in conformity with the testator\u2019s intention to insure the safety and soundness of the non-legal investments authorized by the will."], "id": "06ad2687-a29a-4550-837d-6ad09f9db90e", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*118A distribution in shares, on the other hand, is a stock split when there has been a watering down of stock without the use of surplus, while a transfer of surplus to the capital account will produce income in whatever form the distribution takes (Matter of Lissberger, supra). Again, a has been declared when there has been a capitalization of earnings from profits together with the distribution of added shares which evidence the assets thus transferred to capital (Matter of Lawrie, 119 N. Y. S. 2d 906). Stated otherwise, a distribution without infringement upon the capital of the corporation is a distribution of income and the rule of apportionment gives to the life tenant the earnings thus distributed. Those earnings, accrued after the establishment of the trust, are always an incident of stock ownership although inchoate until there is a distribution by capitalization in whatever form (United States Trust Co. v. Heye, supra). The test is whether, by the particular transaction, the earnings have been permanently retained by the corporation, as distinguished from a division occurring where the capital and surplus accounts remain unaffected (Matter of Davis, supra). The life tenant\u2019s benefit from income capitalization cannot be defeated by the device of destroying potential income by turning surplus into capital (Equitable Trust Co. v. Prentice, 250 N. Y. 1, supra). Nor is the market value of the stock at the time of the transaction relevant (Matter of Osborne, 209 N. Y. 450, supra)."], "id": "f2fbd349-6c4a-459f-b984-10aacdeab65b", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trustees made no election and the court, in its opinion, said (p. 792): \u201cIt seems to me quite clear that this dividend was not a \u2018 \u2019 as that term is used in law. If all of the stockholders had elected to receive their dividends in *972cash, and consequently no stock had been issued, it would occur to no one to call this payment a stock dividend. A stock dividend is declared only by the directors, and, therefore, it cannot be that the character of a dividend is to be determined by the actions of the stockholders. In this particular case most of the stockholders received their dividends in stock, but some elected to receive cash. That surely cannot make the same dividend a cash dividend in some instances and a stock dividend in others. Moreover, this dividend ivas paid not out of surplus but out of profits made during the current year, and it has none of the other usual attributes of a stock dividend. It \"was not simply a dilution of the existing shares, but it was an actual distribution of the property of the corporation to those who elected to take cash. After its payment the stockholders did not continue to own the same proportionate share of the assets of the corporation.\u201d"], "id": "196da6a2-ae7c-4a7f-b4be-0452befe8bcf", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The capitalization of current earnings or actual earned surplus is a necessary prerequisite to the distribution to income of a ; and in the absence of evidence of the capitalization of such current earnings were earned surplus, the distribution represents a stock split rather than a stock dividend to which the Osborne rule has no application. Therefore, the entire stock distribution must be credited wholly to principal (Matter of Payne [Bingham), supra; Matter of Lissberger, supra) unless it appears that earned surplus or accumulated earnings was the source of the distribution."], "id": "9f80415c-5043-4499-b63a-ca38e60db72c", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Ademption of a disposition unless ademption by extinction {Matter of Wright, 7 N V 2d 365) depends more on the intention of testator than the labelling of the disposition. (See Matter of Kotcher, N. Y. L. J., Jan. 19,1970, p. 15, col. 8.) Mrs. Volckening clearly intended that the Volck-Nu-Matic stock be included in the paragraph 9th trust. In that case, the liquidating dividend should be so included. The family corporation was liquidated during Mrs. Volckening\u2019s lifetime. After her death the liquidating dividend was received by the estate executors. If there had been a stock split or the paragraph 9th trust would have been entitled to the benefit irrespective of whether the disposition was general or specific. A liquidating dividend is a partial return of capital. It should be treated as a reverse stock split, the dividend substituting for the stock. (Matter of Schimenti, 42 Misc 2d 983; Matter of Bradley, 38 Misc 2d 945; Matter of Howard, 46 Misc. 204; Matter of Morris, 36 Misc 2d 1094.) This conclusion is reached without consideration of the tax treatment of the corporate dissolution by the decedent or on her behalf by the estate."], "id": "90c2684f-4ab6-4810-8cc2-729d767d70d1", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On December 10,1954, the stockholders approved a proposal to declare a and on the same date, the board of directors adopted the following resolution: 1 \u2018 Further Resolved, that simultaneously with said amendment\u2019s becoming effective the officers are authorized and directed to transfer from the corporation\u2019s capital surplus account (designated on the books as \u2018 Capital in excess of par value \u2019) to stated capital the total amount of capital surplus, including all paid-in surplus, shown on the books of the corporation as of December 31, 1954 and as verified by the audit of Peat, Marwick, Mitchell & Co., and to transfer from earned surplus (designated on the books as \u2018 Earnings retained for use in the business \u2019) to stated capital the balance necessary to increase the stated capital by an amount equal to $5 times the number by which the issued common shares are increased as a result of the reclassification of shares.\u201d"], "id": "e9aac382-8f0b-4eb0-8723-cc523f1198ca", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On May 22, 1961 certain securities were transferred to the trustee having an agreed market value on May 21, 1961 pursuant to the settlement agreement of $397,210. On May 22, 1961 the trustee should have received property valued at $400,000. In other words a shortage of $2,790 then existed. Thereafter on June 15, 1961 the trustee received a check for $372.37 further reducing the shortage to $2,417.63. All the stock delivered to the trustee had gone ex-dividend prior to the transfer of ownership except the Kennecott Copper stock, but the dividends thereon had not yet been paid. Therefore the transferors were entitled to all the dividends except on the Kennecott Copper stock. Under the circumstances it was proper to credit the trustees with the dividends to be paid on the stock and accrued bond interest, except for the Kennecott *256Copper . In that instance the trustees having owned the stock prior to the ex-dividend date were entitled to the dividend therefrom."], "id": "2d7d1f16-ec04-4ba6-bae1-6afb3cd0fcc2", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*689Here, the settlor\u2019s direction, that \u201c all dividends payable in the stock \u201d of a corporation were to be treated as income, is to be given effect. (Matter of Fosdick, 4 N Y 2d 646, 655.) \u201c Dividends \u201d, as the term is ordinarily understood, refers to such portion of the profits and surplus funds of a corporation as are validly set apart and distributed to stockholders (see 18 C. J. S., Corporations, \u00a7 457; Matter of Fosdick, supra, p. 653); and the term is to be so construed when used in a trust indenture unless otherwise indicated by context. The distribution of corporate surplus may be in cash, or by way of stock representing the surplus (see Matter of Fosdick, supra). Where distribution of surplus is in stock, and is carried out by segregating as capital that part of the surplus it represents, it is nevertheless in the category of a \u201c dividend \u2019 \u2019, and is known as a \u201c \u2019 \u2019 (see Matter of Fosdick, supra)."], "id": "47db16ef-ec27-41e0-b628-c8495c99b9a7", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his report to the stockholders for the year 1922 President Grailwell refers to the transfer of this $4,500,000 from surplus to capital account, showing that it was part of the stated capital behind the issue of new shares of no par value. Inasmuch as the old stock represented 135,000 shares and the two for one referred to in the letter of December 7, 1922, equals 270,000 shares and accordingly represents the exchange, the mathematical total of capital necessarily explains the rest of the transaction. The 90,000 shares would represent two-thirds of a share against the old outstanding capitalization, and these 90,000 shares, being exactly one-quarter of the new stock, represent the $4,500,000 drawn from surplus and set up in the new stated capital behind the common stock. These mathematical results show complete compliance with the letter of December seventh. The transfer of surplus to capital immediately upon the completion of the corporate acts performed at the meeting of the stockholders, shows the entire thing was a part of one transaction carried out step by step as it was required to be in accordance with the law and in accordance with the plan, and must be interpreted as it was stated to be in the letter, an exchange in part and a in part. Unless we are to impute dishonesty and fraud to the holders of the proxies and a purpose and intent not to carry out the plan described in the letter, we must int\u00e9rpret the word \u201c exchange \u201d in the resolution to mean compliance with the plan, and while new shares were exchanged for old, part .of the transaction was, strictly speaking, an exchange and the other part was, in fact, a stock dividend. It was not necessary that the dividend be called a stock dividend in order to make it such. The mere creation and issue of new shares of stock upon the basis of surplus assets which thus became converted into stated capital, amounts to a stock dividend without denominating it as such. (2 Cook Corp. [8th ed.] \u00a7 536; Alsop v. De Koven, 107 Ill. App. 190.)"], "id": "fd166d6b-e2b1-4c6b-b9e4-0ddcd045cdee", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trustee contends that the petition is insufficient in that it fails to set forth allegations which would support a conclusion of intent that in giving to the petitioner the trust 1 \u2018 income \u2019 \u2019, the settlors intended to include extraordinary stock dividends, that at least part of each distribution described in the petition constituted a , and that petitioner is entitled to the number of shares she has claimed as representing that part. It is conceded, however, that if petitioner has established a right to anything, even though it may be less than she has claimed, the petition affords a basis for fixing the extent of that right. The trustee argues further that the petition is deficient in failing to allege that the directors of the issuing corporations either described the distributions in question as stock dividends or intended to effect stock dividends in making those distributions."], "id": "a12ba953-a62a-4eee-ba97-4068e7db82cb", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["I have used tables prepared by the attorney for the executors to show: (1) The value of investment at the time of the creation of the trust in the several Standard Oil companies; (2) the value of the investment as represented by the original shares after payment of ; (3) impairment of the corpus of the trust, and the number of shares required to make good the impairment; (4) number of shares which the life tenants are entitled to receive."], "id": "2ecb81b1-3a1c-4a27-a5b1-bdc8d1bc29d3", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c Whereas, this Company has accumulated and is in possession of a fund equalling thirty per cent (30%) of its unearned premiums, in addition to the amount of its capital stock and all outstanding liabilities, including the amount of all unearned premiums on unexpired risks and policies, * * * \u201c Now, Therefore, be it Resolved, that the Board of Directors of this Company, by at least three-fourths thereof, hereby authorizes an increase of capital stock of this Company from Ten Million Dollars ($10,000,000) to Fifteen Million Dollars ($15,000,000), such increase *901to be made from the above described fund and to be distributed pro rata to the stockholders of this Company as hereinafter provided, * * * It Is Further Resolved, that provided an increase in the capital of this Company from $10,000,000 to $15,000,000 be duly authorized at the special meeting of stockholders hereby directed to be called for the purpose, and duly approved by the Superintendent of Insurance, this Board, on behalf of this Company, hereby declares a , payable December 30,1927, to stockholders of record December 12, 1927, of $5,000,000, which shall consist of 500,000 shares of the capital stock of this Company of the par value of $10 each, if the number of shares of the capital stock of the Company shall then (namely on December 30, 1927) have been increased and the par value thereof changed, as herein provided, but shall consist of 200,000 shares of the par value of $25 each if no change shall then have been made in the number of shares into which the capital of this Company is divided and in the par value thereof; and this Board further directs that such shares be distributed pro rata to stockholders of this Company of record December 12, 1927, such distribution to be made where and when necessary in fractional share certificates of stock, and for that purpose the officers of this Company are directed to transfer on the books of the Company $5,000,000 from surplus account to capital account * * *.\u201d The action of the board of directors was approved at a meeting of the stockholders held on December 1, 1927. The increase in capital stock was subject, however, under the Insurance Law, to the approval of the Superintendent of Insurance (Ins. Law, \u00a7\u00a7 52, 117, as amd.),* and the payment of the stock dividend was, by the terms of the resolution declaring it, subject to this approval being subsequently obtained. The certificate approving the increased capital stock was issued by the Superintendent of Insurance on December 14, 1927."], "id": "d786f1ea-998a-463d-bdc3-941a17639e41", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trust instrument refers solely to stock dividends and is completely silent as to stock splits. Therefore, shares received on a stock split are principal while those received as a are income. (Matter of Horrmann, 3 A D 2d 5 [1956]; Matter of Fosdick, 4 N Y 2d 646 [1958].) The income beneficiary and the trustee are agreed on this, but they are not in agreement as to the nature of the distinction between a stock dividend and a stock split."], "id": "8a2c90b9-76b8-4eff-8d6b-0ad7f97345f3", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Thus it seems immaterial in the instant case that the resolutions adopted by the stockholders and directors of the Canandaigua National Bank on August 7, 1957, referred to the action taken as a 100% . The number of shares were increased from 2,500 to 5,000 and the par value remained the same at 100. The officers were authorized to transfer $100,000 from surplus and $150,000 from undivided profits thereby increasing the common stock by $250,000. Those learned in the law may see a monumental difference between a two for one stock split and a 100% stock dividend, but to the average investor there is no such marked difference. Proportionate ownership in the business remained the same and the aggregate book value of shares held remained the same. Under such circumstances how could Mrs. Tracy, a woman of advanced age and poor health, and who had by her will stated she intended to dispose of all \u201c unexpended and unused principal \u201d in the trust, now be held not to have intended disposition of the additional shares?"], "id": "00268475-bf7c-420e-a5d7-9a84f88e2fa7", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is not necessary to analyze the statutory construction urged in behalf of respondent since the court does not construe the testamentary provision as distinguishing between ordinary and extraordinary stock dividends. The testator referred to an ' \u2018 extraordinary cash or \u2019 At the time the will was executed, former section 17-a of the Personal Property Law was in effect. The section provided that in the absence of a contrary provision in the will, any dividend payable in stock shall be principal and not income of the trust. The section made no distinction between ordinary and extraordinary stock dividends. It would be unreasonable to hold that the testator intended to make such a distinction with the effect that extraordinary stock dividends would be income pursuant to the will, but ordinary stock dividends would be principal as directed by the statute."], "id": "109d0c9b-3d00-4461-9047-92302ea21ed9", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In view of the obvious fact that the was taken from surplus accumulated prior to the execution of the will and was part of a plan by the representatives of the State Bank of Ontario to devalue the stock, and does not represent profits earned between the date of the execution of the will and the date of the decedent\u2019s death, it seems that these circumstances must differ from the facts existing in the case of Matter of Jaynes (supra) and are more in line with the situation set forth in the case of Matter of Adams (supra)."], "id": "91e5a6da-08eb-45c1-9f81-127ff740d18b", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The income beneficiaries also contend that they are entitled to receive the income from the additional and/or changed stock until the death of the survivor of each trust and that then and only then should there be a distribution of the additional or changed stock together with the other parts of the corpus or trust to the Museum. The income beneficiaries do not contend that the aforesaid dividends be construed as ordinary income and thus be turned over to them as such. They, however, do contend, in addition to the foregoing, that in the event the court deems the stock, capitalized from earned surplus, as a under this trust, under no circumstances may that part of Standard Oil Company (Indiana) stock, capitalized from surplus capital (to wit, 43.03%), be deemed a stock divi*1008dend under the trust, but should in effect be considered a stock split, and as to that part of the stock it should be added to the corpus of the trust and they should receive the income therefrom accordingly."], "id": "555d32a4-29e6-4c53-8c65-9795c1894279", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c To alter this conclusion the evidence must show more than that their judgment has proved to be erroneous or that the question was debatable. He who criticises their action must prove that it resulted from ignorance or mistake or error as to fact or law. The burden is upon him as to any items which he disputes. But [p. 178] investigation to this 'extent of the action of directors is always permissible. If in their balance sheet of a certain date they have included among the items of capital and surplus assets in truth previously destroyed, claims previously lost, in making *245our comparison we take account of that fact. Their delay in charging off such losses should not control us in apportioning the . But 'we say again this does not permit a review by us of the exercise by the directors of their discretion and judgment. If they believe, in view of the facts before them, that a loss will be escaped or if they charge off a part of such loss believing that the balance sheet represents the salvage value of any claims or demands which the corporation may possess, we will not review their action. No subsequent train of events showing that their judgment was mistaken or their hopes vain will alter this result.\u201d"], "id": "146a3b1f-ac9b-4119-acd3-d8eb5e3a1736", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court cannot act for the directors, but may only interpret their acts and determine whether they in fact made a distribution of earnings. In this case they made transfers of earnings to capital and increased the stated value of the company\u2019s stock instead of declaring and paying a dividend by payment of cash or issuance of stock. These acts, fortuitous as they were, clearly gave no right of apportionment to the life tenants. The later stock split was made for legitimate corporation reasons, long after the transfers of 1937 and 1945, and was not intended as a . No stock dividend was declared at the time of the stock split and no transfers of earnings to capital were then made. The directors intended and made no distribution or division of the earned surplus previously transferred to capital. The new shares, as a whole, merely replaced the old shares as a whole. It was merely an exchange as the company stated. In 1948 the directors showed that they knew how to declare a stock dividend when they expressly did so, and they then stated that it was the first stock dividend in the company\u2019s history."], "id": "56b964a0-cb04-4ac9-84fa-c6f56c2f7448", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Both parties refer to page 513 of Ballantine, Corporations: \u201c There is danger that the shares subject to an option may be altered or changed in value, and elaborate provisions are usually made for the protection of the conversion privilege to prevent dilution by amendments reducing par value or by stock split-ups or the issue of additional shares as stock dividends.\u201d Protec*857tion of a conversion privilege to prevent dilution by reason of declaration of stock dividends was not provided in the stock option plan under review, and its provisions above quoted may not be presumed, as a matter of law, to encompass a . Nor is the fact that surplus is capitalized on the declaration of a stock dividend to be equated with 61 any change in the common stock capitalization \u201d. The motion is denied."], "id": "925777cd-e9f1-457b-a0c7-8b246e57bf1c", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Between the date of the execution of the will and the date of the death of the testator and at a stockholders\u2019 meeting of the State Bank of Ontario held on January 8, 1952, a resolution was adopted that the number of shares of stock be increased from 300 to 7,500, that the par value be decreased from $100 to $20 per share, that the authorized capital be increased from $30,000 to $150,000, and that the bank officers file the necessary certificate of amendment to the original certificate of incorporation. On January 10, 1952, the board of directors caused the sum of $200,000 to be transferred from undivided profits to the surplus account and $120,000 to be transferred from the surplus account to the capital account on the bank\u2019s records. The certificate of amendment was duly filed, and on March 1, 1952, the testator exchanged his 35 shares of stock in the State Bank of Ontario, having a par value of $100 per share, for 175 shares of stock, having a par value of $20 per share. Thereafter, at a directors\u2019 meeting held on or about March 6,1952, a resolution was adopted that a of 4 shares on each of the outstanding shares having a par value of $20 be declared. Pursuant to this resolution and on March 10, 1952 an additional certificate was issued by the bank to the testator for 700 shares of stock of a par value of $20 each."], "id": "e67cb43d-8b44-497b-9f4f-cee58ff600f5", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The objectant herein is the special guardian for the infant child, one of the remaindermen. It is the contention of the special guardian that it was incumbent upon the trustee to add the to the corpus of the trust, pursuant to section 17-a of the Personal Property Law, in effect May 17, 1926. Is this contention valid? That is the question."], "id": "2c89464e-5599-4e10-ae85-eca3a20bddff", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In 1947 Eastman Kodak Company split its common stock five shares for one. The additional shares were allocated to principal by the trustee; and no claim is made herein that any of such new shares constituted income. (See Matter of Strong, 198 Misc. 7, affd. 277 App. Div. 1157, arising under a testamentary trust established before the enactment of section 17-a of the Personal Property Law.) In each of the years 1948, 1949, 1952, 1954 and 1956 a of 5% was declared, and in the years 1950 and 1951 a stock dividend of 10% was declared. The trustee allocated such shares to principal. In 1959 Eastman Kodak Company made a 100% stock distribution."], "id": "c438ac62-db09-4265-bf94-cf3d89d31e59", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["After due deliberation I have reached the conclusion that my decision must be, and is, against the respondents on the issue thus raised. The right of said life beneficiary to receive during her life the income from the twenty shares of stock forming such trust, whether such income was distributed in cash or by , was a property right, and as such had become vested prior to the enactment of the statute above referred to. Said section 17-a provides: \u201c Unless otherwise provided in a will, deed or other instrument, which shall hereafter be executed and shall create or declare a trust, any dividend which shall be payable in the stock of the corporation or association declaring or authorizing such dividend and which shall be declared or authorized hereafter in respect of any stock of such corporation composing, in whole or in part, the principal of such trust, shall be principal and not income of such trust. * * * \u201d This section I feel should not, under the language employed, \u25a0 be deemed as intended by the Legislature to be retroactive in its scope or effect, and is applicable only to trusts created subsequent to May 17, 1926. (Matter of Norton, 129 Misc. 875, 887.) For reasons stated in the decision in said Matter of Norton, I have reached the conclusion that the rule of law which controls the trust created by the will of Charles B. Lawton, and which should here be followed, is that announced in Matter of Osborne (209 N. Y. 450, 484, 485)."], "id": "6f5d0f25-a2f7-4e1e-adb4-4188925ff1cf", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The will therefore evidences a clear intention that stock dividends were not to be subjected to the rule of the statute, or to an allocation based upon equitable principles, but that such *291dividends were to be controlled by the testamentary direction for the treatment of all stock dividends as income. (See Matter of Chapman, 208 Misc. 390.) The facts are distinguishable from Matter of Clark (29 Misc 2d 253) where the grantor of a trust specified that stock dividends be principal and not income. The entire proceeds of the must accordingly be treated as income."], "id": "3cb146b7-c7c8-49e6-b8ec-4612baa7d748", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In an argument carefully confined to an assumption without a concession that the special guardian and other respondents are correct in their interpretation of the will, the trustee urges that securities received by him in the form of dividends based on transfers by the issuing corporations to capital stock accounts from capital surplus, as distinguished from earned surplus, are allocable to the account of Mrs. De Bemer. In each instance the dividend was declared from a surplus which was available for distribution prior to the acquisition of the stock by the testatrix or the trustee but in no case did it represent \u201c earnings accumulated prior to (my) decease or prior to the purchase \u201d. It is permissible corporate practice in this and other States to distribute capital surplus in such a manner and the distribution may take the form of a . (Randall v. Bailey, 288 N. Y. 280; Matter of Lloyd, 292 N. Y. 280, supra; Matter of Whitacre, 208 Minn. 286.) However, dividends derived from such sources are uniformly held to constitute a return of capital and hence to be allocable to principal in *455accordance with well-settled rules of trust accounting (3 Page, Wills [3d ed.], pp. 457-458 ; 2 Scott, Trusts, \u00a7 236.14). No departure from this rule is permissible under the present will because the dividends clearly do not represent accumulated earnings (Matter of Lissberger, 189 Misc. 277, affd. 273 App. Div. 881, motion for leave to appeal denied 298 N. Y. 934; Matter of Strong, 198 Misc. 7, affd. 277 App. Div. 1157). As a consequence all securities received by the trustee as dividends declared from capital surplus as distinguished from earned surplus accounts are held to be additions to corpus and not income payable to Mrs. De Berner. Matter of Lloyd (292 N. Y. 280, supra) relied upon by the trustee is clearly not in point, for in that case the will directed the allocation of \u201c all dividends \u201d to income."], "id": "92d70941-18f0-4afe-8a9b-89422eb42ced", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In all the cases cited by the counsel of the respective parties 'that it has been practicable to examine, there seems to be only -one case where there has been an attempted departure from the elementary rule as laid down in Perry on Trusts, supra, and as uniformly held in numerous cases. In Lowry v. Farmers\u2019 Loan & Trust Co., 30 Misc. Rep. 334, is was held at Special Term that \u201c Stock dividends must be added to the corpus, and cannot be paid to the life beneficiary.\u201d That decision was reversed by the Appellate Division, reported in 56 App. Div. 408, and *44the reversal was unanimously sustained by the Court of Appeals in 172 N. Y. 137-142. In that case it appeared that the Pullman Palace Oar Company \u201c by a capitalization of accumulated earnings made and retained in its hands, from time to time, increased its capital stock from $86,200,000 to $100,-000,000 and, predicated thereon, made a of ten per cent, to its stockholders,\u201d and the distribution was made in the form of stock certificates instead of money. The court held \u201c that the stock certificates belonged to the life tenant, and not to the remaindermen.\u201d"], "id": "3ac2f63b-b840-4001-87c2-2aa9ae03db97", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Petitioner Malcolm E. Wren requests the allocation to him of the entire 100 shares of General Foods Corporation common stock received by the trust as a 100% or 2 for 1 stock split in 1956.. In 1951 that corporation had transferred $50,000,000 from earned surplus to its capital stock account. In 1956, at the time of the declaration of the stock dividend, a further sum of $20,587,210 was similarly transferred from earned surplus to capital stock."], "id": "32f0b7af-5bb0-4cd7-b812-e1d226fa90d8", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Decedent died on July 9,1934. In her will, which was executed on July 5, 1927, she directed: \u201c The Trustees of the trusts hereinabove created shall pay over to the respective beneficiaries of the income hereunder, the entire income from any bonds held as a part of any trust fund without amortizing any premium at which they may have been taken over or purchased, as well as any and all stock or special dividends.\u201d In the absence of such direction section 17-a of the Personal Property Law would apply and any. would be considered wholly principal. Here the testatrix has provided otherwise and her testa*794mentary direction is controlling (Matter of Hilliard, 254 App. Div. 879, motion for leave to appeal denied 279 N. Y. 811; Matter of Heinrich, 195 Misc. 803) and, as to the distributions made by the corporations in their own shares, the issue is whether the additional stock thus issued constituted a stock dividend or a stock split-up. The distinctions between these two methods of issuing corporate shares has been stated in Matter of Lawrie (119 N. Y. S. 2d 906, 911) and has been followed in other decisions with which this court is in accord. (Cf. Matter of Berger [Bankers Trust Co.], 6 Misc 2d 468; Matter of Davis, 128 N. Y. S. 2d 152.)"], "id": "0884b9e7-3cdd-428b-8922-1f6bc3b4afef", "sub_label": "US_Terminology"} {"obj_label": "stock dividend", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In Trust Number Three there were 200 shares of a different corporation. In January, 1946, this corporation distributed the additional share for each two shares then held. The corporation in its resolution termed the additional shares a . It transferred from paid-in surplus to capital account $5 for each newly issued share. It could have declared a cash dividend out of the paid-in surplus. By reason of the corporation\u2019s own declaration and its own treatment of the transaction this issue of shares is clearly a stock dividend which comes within the text already quoted from article ninth of the will. Accordingly such additional shares are deliverable to the income beneficiary as income."], "id": "7341a93a-21b7-4941-a408-1de22b090db1", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This is an appeal from an order appointing a receiver. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge. Appellant SureFunding, LLC, an investment firm, lost millions of dollars it invested into a foreign company that was later discovered to be a . Respondents are a subset of SureFunding's noteholders who are granted a senior secured priority interest with respect to their"], "id": "515707a7-6a63-4914-9224-3b5451be1f29", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In 2010, the BLP collapsed and Plaintiffs lost their investments. An FBI investigation revealed that Sigillito operated the BLP as a . Unsealing the indictment in May 2011, the United States charged Sigillito with money laundering, wire fraud, and mail fraud. The federal indictment asserted that, inter alia , Sigillito and Brown retained unauthorized placement fees after transferring their clients' assets. A jury found Sigillito guilty, and the federal district court sentenced him to forty years in prison. Sigillito's convictions and sentences were affirmed. United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014)."], "id": "ceac7e7a-ba34-4a04-9dec-8e38f216753e", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Williamson is significantly distinguishable from this action. In Williamson, the court determined that there was sufficient evidence to raise a triable issue that Strafaci was acting purely to benefit himself, insofar as he received unwarranted compensation from the inflated values of the fund\u2019s portfolio, and that his valuation scheme did not benefit the fund, because it operated like a ('Williamson slip op at 16). Further, in response to questioning as to whether he intentionally overstated values for the purpose of obtaining increased personal compensation, Strafaci pleaded the Fifth Amendment defense (id.). On this basis, the court found that it could not determine as a matter of law that the adverse interest exception to imputation was inapplicable (id)."], "id": "73a82efb-28d3-4496-b0c8-6b5c438ce686", "sub_label": "US_Terminology"} {"obj_label": "Ponzi Scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"1. You must represent and warrant (and provide full disclosure that) no monies moved illegally from one entity to another, they still do not understand how much money you pulled out of Boulevard or why that investment entirely failed (and full disclosure means turn over 100% of everything) and if this is a non-starter, it will confirm for them the they NOW believe exists here and has existed for perhaps as long as Bernie Madoff got away with it. But that was discovered and eventually they all are so the day of reckoning is really at hand and if you feel 100% innocent you should disclose and disclose fully (and should have months ago)."], "id": "3b55e5fd-0752-4acf-b4a7-56c6f3bfd6a0", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["collateral per the Third Amendment to the Note Purchasing Agreement (TNPA). Respondents sued SureFunding, alleging a breach of the TNPA due to SureFunding improperly investing funds in the . Respondents thereafter moved for appointment of a receiver, alleging that SureFunding was not acting in the best interest of the creditors. The district court granted respondents motion and appointed a receiver of respondents' choice. Sure-Funding moved to vacate the receivership order, and the district court denied the motion. This appeal followed. Respondents lacked standing to bring their claim, SureFunding contends that respondents lack standing to bring their breach of contract claim, and therefore lack standing to pursue the appointment of a receiver. because the TNPA bars an action brought without the consent of all Key Purchasers, and one Key Purchaser has not joined the suit against SureFunding. Whether a party has standing is a question of law we review de novo. Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011). And, we review a district court's interpretation of a contract de novo. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). A plaintiff has the burden of proving that it has standing to assert its claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). \"[S]tanding requires that a plaintiff have suffered an 'injury in face that is not merely conjectural or hypothetical.\" Miller v. Ignacio, 112 Nev. 930, 936 n.4, 921 P.2d 882, 885 n.4 (1996) (citing to Lujan, 504 U.S. at 560.); Anya Bernstein, The Hidden Costs of Terrorist Watch Lists, 61 Buff. L. Rev. 461, 510 (2013) (standing requires \"an actual or imminent concrete harm.\"). However, this court will enforce a contract as written if the language of the contract is clear and unambiguous. Am. First Fed. Credit Union v. Soro, SUPREME COURT OF NEVADA"], "id": "88bafa0f-d847-460b-87e8-c6c442e5544a", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u00b613 In April 2012, Twyman sent Fortitude an email detailing his past legal difficulties after Fortitude learned about what he characterized as \u201clargely incomplete and erroneous\u201d information about him available on the internet. His email explained he realized \u201csome of [Fortitude\u2019s] prospective investors\u201d may also choose to undertake their due diligence, so he believed it prudent to \u201cmitigate any possible misunderstanding by providing a totally candid and transparent rendering of the facts.\u201d The email provided explanations and context for several past issues, including the SEC judgment arising out of Twyman\u2019s involvement with BeneFund, a judgment against Twyman in the mid-1980s for a breach of fiduciary duty involving the embezzlement of $150,000, and a civil action against Wycliffe to recover some of the $850,000 Wycliffe received as proceeds of a after he invested over $2.3 million from clients, friends, and relatives."], "id": "41d88ce1-96f5-4c96-8a6f-039fbf6114a8", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Donn\u00e9r\u2019s situation would have been far more parlous had he not won the race to the District Attorney\u2019s office. He has confessed to stealing $4.8 million from his former clients, in many instances inducing elderly people and close personal friends to deplete their hard-earned (and modest) life\u2019s savings by misleading them about the nature of the \"investment\u201d they were making. He was also close to the seat of power at Oxford. He worked in the same room as the firm\u2019s founder and criminal mastermind, Samuel Forson, and his closest associates, where he helped run the that Oxford allegedly became. If the three third-tier defendants were convicted of all the counts they face (and, at this moment, they are presumed innocent of every accusation), they would be guilty of but a fraction of Donner\u2019s admitted misdeeds."], "id": "4fabf9ac-205b-4e06-a199-6c979041c8ea", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant\u2019s assertion that this case involves allegations of criminal conduct \"of a particularly scandalous nature\u201d is no more than hyperbole. There is nothing particularly scandalous about participation in a chain mail or , nor is the element of criminality a significant consideration. Clearly if criminal trials are subject to audio-visual coverage, a fortiori, so are civil trials which may involve some degree of criminal conduct. That defendant does not feel comfortable with press coverage of the trial is of no moment because, as the Uniform Rules for Trial Courts make clear, her consent is not required (22 NYCRR 131.4 [b]). This office must therefore agree with the finding of the trial court that the nature of the proceeding is not such that media coverage would interfere with the fair administration of justice or operate to the prejudice of any party (22 NYCRR 131.4; Matter of People v Chambers, NYLJ, Jan. 4, 1988, at 6, col 4)."], "id": "424ea91c-5866-4277-ad59-5b90c6a6d6c7", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Additional prior conduct is also relevant to our sanctions determination, including defendants' repeated attempts to arbitrate this matter, together with a tardy appeal to this court of one of the trial court's orders denying their motion to arbitrate, despite their failure to appeal the denial of their initial motion to arbitrate. ( J.B.B. Investment Partners II , supra , A145221.) In addition, the trial court granted plaintiffs' special motion to strike a cross-complaint filed by defendants, after finding that defendants' claims did not constitute protected speech and defendants were not *384likely to prevail on the merits because all of the claims in the cross-complaint were protected by the litigation privilege. ( Civ. Code, \u00a7 47, subd. (b)(2).) We affirmed the court's order on appeal. ( J.B.B. Investment Partners III , supra , A152143.) As we stated in our 2018 opinion affirming the grant of the anti-SLAPP motion, defendants \"offered misleading quotes, taken out of context from the demand letter,\" to argue that plaintiffs' attorney was threatening criminal prosecution for Fair's alleged if Fair did not agree to pay plaintiffs $350,000, whereas he in fact \"threatened no such thing.\" ( Ibid. ) Defendants raised a similar argument in their opposition to the motion for summary adjudication and in this appeal, which provides further evidence of frivolousness. (See Bucur v. Ahmad , supra , 244 Cal.App.4th at p. 192, 198 Cal.Rptr.3d 127.)"], "id": "77d3adfa-da79-40e0-89a3-86623780c6f2", "sub_label": "US_Terminology"} {"obj_label": "Ponzi scheme", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*229Appellant's deceptive practices were circumstantially corroborated by other evidence discovered at JFM on July 15, namely the five empty cremains boxes, the one almost-empty cremains box, and the unidentified box of cremains. The court of appeals' only mention of this physical evidence was a reference to \"ashes\" found by authorities on July 15. Johnson , 513 S.W.3d at 193. This evidence, in combination with Appellant's lies to his customers, suggested that he was engaged in a kind of in which he delivered earlier ashes for later bodies."], "id": "8e610527-fde0-4747-9bf1-6de5f8d6cfb0", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Applying these tests to the three counts of the indictment (which contain the requisite specificity), petitioner has not come forward with any law from the State of Alabama indicating that the acts are not criminal.* Count I, which alleges that Lewis diverted the proceeds of securities to his own use, clearly describes actions which suggest intent to perpetrate ."], "id": "5993f551-8463-4c84-bd27-42cca344ddfe", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": [". The federal courts continue to maintain that the New York common-law fraud standard for claims arising from the sale of securities, including RMBS, includes the element of loss causation. (See Bank of Am,., N.A. v Bear Stearns Asset Mgt., \u2014 F Supp 2d \u2014, \u2014, 2013 WL 4734495, *5, 2013 US Dist LEXIS 125700, *14-15 [SD NY, Sept. 3, 2013, No. 08-Civ-9265 (AJN)].) It is important to note that \u201cwarranty fraud\u201d cases, where a fraud claim is allowed to proceed with a breach of contract claim, is not the same as a garden variety claim. Fraud based on breach of a warranty, as in monoline cases (e.g. MBIA Ins. Corp. v Countrywide Home Loans, Inc., 39 Misc 3d 1220[A], 2013 NY Slip Op 50677[U] [Sup Ct, NY County 2013]), have separate legal considerations, such as insurance law, and are guided by unique principles *865that do not affect the normal loss causation standard. (See generally Merrill Lynch & Co. Inc. v Allegheny Energy, Inc., 500d 171, 183-184 [2d Cir 2007]; DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147 [2010].) As this court has explained, it has long been the law that \u201cthe analysis of reliance in a tort action based on fraud or misrepresentation (tort reliance) differs from the analysis of reliance in actions for breach of express contractual warranties (warranty reliance).\u201d (Project Gamma Acquisition Corp. v PPG Indus., Inc., 34 Misc 3d 771, 778 [Sup Ct, NY County 2011]; accord CBS Inc. v Ziff-Davis Publ. Co., 75 NY2d 496 [1990].)"], "id": "b9370f19-3864-43b4-8b7e-8198ec0ca5df", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Shortly before the Phase I trial, the trial court signed an order aligning Choudhri as the plaintiff and Latif and Mokaram (collectively the \"Latif Parties\") as the defendants for the Phase I trial. The Phase I trial lasted over two weeks. The trial court submitted questions to the jury concerning Choudhri's claim that Mokaram converted Choudhri's interest in the Lamborghini, and Mokaram's claim that Choudhri committed in the 2008 transaction, upon which Mokaram sought rescission of the 2008 transaction. The court also submitted the following question concerning the 2010 transaction:"], "id": "b40ddb6d-ea6d-42c4-a1a9-1e60af85f750", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c[a]lmost all complaints will allege that the defendants did what they did in order to benefit themselves in some way. If such an allegation were sufficient to invoke the protections of 4(a) [the personal profit exclusion], the broad coverage for \u2018Securities Claims\u2019 provided by the National Union Policy would be rendered valueless by this exclusion . . . and would swallow up the very securities coverage that the National Union policy purports to grant\u201d (see also In re Donald Sheldon & Co., Inc., 186 BR 364). Similarly, accepting the Insurers\u2019 construction that any profit or advantage gained by an insured is sufficient to trigger the exclusion essentially renders the coverage afforded by the policies illusory, as it would exclude most coverage for securities violations that the policies are intended to grant."], "id": "6a0c180c-54ea-4846-8f9e-0c107ffe51f3", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On April 20, 2015, plaintiffs filed a first amended complaint, alleging causes of action for in violation of the California Corporations Code, fraud, breach of fiduciary duty, constructive fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, declaratory relief, promissory estoppel, rescission for fraud in the inducement, and legal malpractice. They also filed a motion for summary judgment. Also on April 20, defendants filed a second motion to stay the action and compel arbitration, based on the same arbitration provisions in the applicable operating agreements *375they relied on in the first motion to compel arbitration."], "id": "5fbeb7e8-3d85-42e5-b184-355388127e52", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A black box warning is an FDA warning to alert consumers about serious or life-threatening side effects the drug may have. It is the most serious warning given by the FDA. The black box warning here stated that Xyosted \u201ccan cause blood pressure increases that can increase the risk for major adverse cardiovascular events (MACE), including non-fatal myocardial infarction, non-fatal stroke and cardiovascular death, with greater risk for MACE in patients with cardiovascular risk factors or established cardiovascular disease.\u201d App. 171. Plaintiff\u2019s first two complaints were similarly dismissed by the District Court for failure to adequality plead . Each time, Plaintiff was granted leave to file an amended complaint. These statements were made in (1) a press release dated December 21, 2016; and (2) a press release dated February 27, 2017. App. 159\u201361."], "id": "23c1ed00-b823-42bd-a831-9d7c6daa41ba", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["While the three Levines were still stockholders, while the plaintiff was still director and subsequent to the commencement of this action, the individual defendants procured the merger of Biddle Sawyer into another Delaware corporation; and, as the Levines held less than 10% of Biddle Sawyer stock, the defendants were enabled to and did divest the Levines of their shares in both the old and new corporations (Delaware Corporation Law, \u00a7 253) making the Levines creditors to be paid out at the appraised value of their former shares. (The Levines, as stockholders, have pending in the United States District Court for the Southern District of New York a action seeking among other relief their reinstatement as stockholders of Biddle Sawyer. An attack on that complaint has been successfully withstood.)"], "id": "3087f235-9710-43f7-906e-02702cf0e096", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["been paid in full by the Company more than 60 days previously. In April 2018, plaintiffs commenced an action in federal district court, where, in due course, plaintiffs\u2019 claims were eventually dismissed on the merits, and plaintiffs\u2019 remaining state law claims were dismissed without prejudice. See Iafrate v Angelo Iafrate, Inc, 827 F Appx 543, 547 (CA 6, 2020). In July 2019, plaintiffs filed their complaint underlying this appeal which primarily concerned defendants\u2019 refusal to honor the expired Warrants. Plaintiffs raised four claims: (1) breach of contract, (2) reformation, (3) unjust enrichment, and (4) fraud."], "id": "b3450b0a-2fe3-4ede-8269-172d335a7f06", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cBY SIGNING THIS AGREEMENT YOU AND BEAR STEARNS AGREE, THAT CONTROVERSIES ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY ACTIVITY BETWEEN YOU AND BEAR STEARNS, . . . SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD ONLY AT THE FACILITIES OF, BEFORE AN ARBITRATION PANEL APPOINTED BY, AND PURSUANT TO THE RULES OF THE NEW YORK STOCK EXCHANGE, INC., OR THE NATIONAL ASSOCIATION FOR SECURITIES DEALERS, INC.\u201d (Petition 11 3, quoting \u00a7 25 [a] of Customer Agreement, annexed as exhibit A thereto.) *609The underlying arbitration arises out of ICMC\u2019s claims that petitioners committed common-law and in connection with the hedge fund, and that Bear Stearns failed to process and revoked ICMC\u2019s alleged irrevocable redemption of its investment in the hedge fund in October 2006 (see petition 1i 6, exhibit B annexed thereto). In the statement of claim, filed on July 25, 2008, ICMC sought recovery for breach of contract, negligence, promissory estoppel, fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and negligent misrepresentation. It sought, in addition to other damages, reasonable attorneys\u2019 fees, and other costs and expenses (exhibit B to petition, statement of claim 1f 106). Petitioners filed a statement of answer in which they denied all claims and any liability, asserted affirmative defenses, and requested that ICMC be directed to pay costs, fees and expenses, including reasonable attorneys\u2019 fees (exhibit C to petition, statement of answer at 24)."], "id": "c15c1253-b5b0-46a2-b028-02499b2ac490", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The general purpose of the CSL is to protect the public against the imposition of unsubstantial, unlawful and fraudulent stock and investment schemes and the securities based thereon. ( People v. Rankin (1958) 160 Cal.App.2d 93, 96, 325 P.2d 10 ; see also People v. Martinson (1986) 188 Cal.App.3d 894, 899, 233 Cal.Rptr. 617 [intent behind Corp. Code, \u00a7 25530 was to create governmental cause of action to protect investing public].) In its complaint against Investco M&D, the promoters, and the Investco AV LLCs, the DBO stated that it was bringing the action \"in the public interest in the name of the People of the State of California.\" The scheme at issue targeted the investing public in California and reached hundreds of individual investors, raising approximately $22,725,000. Thus, the statutory rights under the CSL enforced here were important and affected the public interest."], "id": "c9614fda-3f32-4f4a-8209-2bbff84160e7", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*585By letter dated October 18, 2004, counsel for Wyly wrote to Barry Weprin, Esq. of respondent Milberg Weiss Bershad & Schulman, LLP to request that a motion be filed pursuant to rule 60 (b) of the Federal Rules of Civil Procedure to relieve the settlement class from the final judgment approving the settlement. The request was based on (i) a guilty plea by Steven Woghin, CA\u2019s former general counsel, who admitted that he had impeded the governmental investigation of CA\u2019s accounting practices in 2002, and (ii) the revelation in a September 24, 2004 Wall Street Journal article that CA\u2019s outside counsel had in its possession 23 boxes of previously undisclosed documents that purportedly indicated that CA engaged in , and that its employees made false statements to lawyers and governmental investigators. The letter also noted that Mr. Weprin had represented that he knew nothing about the 23 boxes of documents until the publication of the Wall Street Journal article."], "id": "0c1cb626-59d8-4a4f-82d0-9597455abd8c", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In this instance, that is even more clear as Kinder Morgan, like Comforce, could have purchased errors and omissions coverage but declined to do so. (See, e.g. Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1276-1277, 10 Cal.Rptr.2d 538, 833 P.2d 545 [rejecting broad interpretation of \" 'advertising injury' \" because insureds only reasonably expect such broad coverage by purchasing additional, e.g., errors and omissions, liability coverage]; Allstate Ins. Co. v. Interbank Fin. Servs. (1989) 215 Cal.App.3d 825, 831, 264 Cal.Rptr. 25 [explaining that it was unreasonable for insured to expect CGL policy to cover and noting that if such coverage had been desired a professional liability policy could have been obtained].) It can be reasonably inferred that, at the outset, Comforce understood that the ACE commercial umbrella policy provided no coverage for claims arising out of its professional services. Just as Comforce did not expect that its policy would cover claims of professional errors, Kinder Morgan could not reasonably expect that such claims would be covered under the policy."], "id": "c2c343dc-9eb3-463f-92f8-2479e31844e9", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The first and second causes of action of plaintiff\u2019s complaint assert State securities law violations, specifically alleging violations of subdivisions 1 and 2 of section 352-c and section 339-a of the General Business Law. However, just as the time-deposit accounts herein are not securities within the meaning of the Federal Securities Act of 1933 (US Code, tit 15, \u00a7 77a et seq.) and Securities Exchange Act of 1934 (US Code, tit 15, \u00a7 78a et seq.) (Marine Bank v Weaver, 455 US 551), so they are not securities or commodities as defined in section 352 of the General Business Law or within the meaning of section 339-a of the same statute. (See, generally, Matter of Gardner v Lefkowitz, 97 Misc 2d 806, 812.) Inasmuch as plaintiff\u2019s allegations fail to state a cause of action for , the first and second causes of action of her complaint are insufficient."], "id": "d40f8645-adef-4029-b8f6-0094fc953a08", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Milken and Levine have served time for their convictions of felonies and have been fined substantial sums. Their company, the investment brokerage house of Drexel Burnham Lambert, itself ultimately pleaded guilty to mail and for its part in the crimes on September 1, 1989 and agreed to pay $650 million in criminal and civil penalties. It also settled a complaint filed against it by the Securities and Exchange Commission (SEC)."], "id": "95002a95-603d-4457-bf19-a92fdbce306d", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On April 18, 1991, respondent was convicted, upon a plea of guilty, in the United States District Court for the District of Nevada, of one count of conspiracy to commit , in violation of 18 USC \u00a7 371 and 15 USC \u00a7 77q (a) and \u00a7 77x, a felony under the United States Code. On August 25, 1993, respondent was sentenced to one year of \"administrative\u201d probation and a $5,000 fine. Respondent\u2019s probation has been completed. Respondent\u2019s conviction resulted from filing a registration statement with the Securities and Exchange Commission (SEC) that failed to disclose that the named officers and directors were mere figureheads and that actual control of the corporations was by third parties and that stated falsely that the nominee officers and directors had purchased stock in the corporation."], "id": "424f6275-dfda-4ee9-aa10-700de1f21863", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Charles Edward Ramos, J. This is a declaratory judgment action brought to resolve a controversy regarding insurance coverage for numerous lawsuits brought by individuals, classes of individuals and regulators against the Xerox Corporation and many of its present and former directors and officers based on their alleged fraudulent reporting of Xerox\u2019s finances from 1997 through 2000.1 In this action, plaintiff National Union Fire Insurance Company of Pittsburgh, Pa. contends that the directors and officers insurance policy it issued to Xerox does not afford coverage to defendants with respect to these lawsuits, and/or that the policy should be rescinded based on the failure to satisfy a condition precedent, fraudulent inducement and/or the doctrine of good faith and fair dealing."], "id": "2b80487e-4a31-4fe0-8aae-12559eb0d182", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On August 11, 2004, Strafaci pleaded guilty in the Southern District of New York to one count of criminal , admitting that he knowingly, willfully and intentionally made untrue statements of material fact in connection with his valuation of the securities contained within the portfolios of Lipper Convertibles and the Series II Fund. At his sentencing on May 20, 2005, the District Court (Swain, J.) observed, \u201cHis motive in undertaking this conduct is not clear to me. It was, however, clearly not his motive simply to maximize his own financial gain.\u201d (Transcript at 42.) In 2006, the Securities and Exchange Commission (SEC) charged Lawrence Stoler, the PricewaterhouseCoopers (PwC) partner assigned to the Lipper account, with knowingly, recklessly, and/or negligently ignoring generally accepted auditing standards and generally accepted accounting principles in conducting the 2000 audit. Stoler entered into a consent order in which the SEC found, among other things, that Stoler ignored, discounted, or failed to apprise himself of the substantial audit evidence that Strafaci\u2019s valuations were materially overstated."], "id": "c8580f47-24b1-4213-9495-448b7a7e564c", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"It is settled in this State that there are limits upon the power of public officials authorized to issue subpoenas. In the *171leading case of Carlisle v. Bennett (268 N. Y. 212, 217-218) it was stated that the power of the Attorney-General in investigating alleged , is necessarily limited to a 'proper case\u2019, 'one where the books and papers * * * have some relevancy and materiality to the matter under investigation [citations omitted].\u2019 The court further stated that the statutory authorization to issue subpoenas would not be construed to allow the Attorney-General to embark upon a roving course to pry into the affairs of any person."], "id": "11af98fe-d9e9-4baf-9341-5b4093b3641f", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c[T]he Securities Act of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the Sarbanes-Oxley Act of 2002, the Public Utility Holding Company Act of 1935 (15 U.S.C. 79a *211et seq.) . . the Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), the Investment Advisers Act of 1940 (15 U.S.C. 80b et seq.) . . ., and the Securities Investor Protection Act of 1970 (15 U.S.C. 78aaa et seq.).\u201d (15 USC \u00a7 78c [a] [47].) Additionally, \u201cthe doctrine of equitable tolling does not apply to the statute of limitations in cases.\u201d (De la Fuente v DCI Telecom., Inc., supra, 259 F Supp 2d 250, 263 [2003].) Finally, \u201cin applying the Statute of Limitations [courts] look for the reality, and the essence of the action and not its mere name.\u201d (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264 [1937]; Meyer v Shearson Lehman Bros., 211 AD2d 541 [1st Dept 1995]; see also von Bulow by Auersperg v von Bulow, 657 F Supp 1134, 1140 [SD NY 1987] [\u201c(w)hen applying a statute of limitations, courts look at the essence of the stated claim and not the label by which plaintiff chooses to identify it\u201d (internal quotation marks omitted)].) Petitioner argues that all of respondent\u2019s claims arise from petitioners\u2019 investment of her money, are governed by 28 USC \u00a7 1658 (b), and under CPLR 7502 (b), require the court to permanently stay the arbitration."], "id": "958b494d-0106-4ba5-9148-0f0afc7b0400", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trial court dismissed plaintiffs\u2019 fraud claims on the basis of collateral estoppel, holding that the dismissal of plaintiffs\u2019 claims in federal court precluded plaintiffs\u2019 common law fraud claims. \u201cCollateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding.\u201d Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006). Collateral estoppel may bar subsequent litigation in state courts based on issues determined in a prior federal action. Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380-381; 596 NW2d 153 (1999). The trial court also held that, in any event, plaintiffs failed to plead the necessary elements of fraud."], "id": "5e136989-195d-457c-a8e3-89dabd903ff1", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In contrast, in Matter of Schmidt v Roberts (74 NY2d 513, 522 [1989]), the Court of Appeals held that a defendant convicted of the federal crimes of interstate transportation of stolen property (18 USC \u00a7 2314), and conspiracy to commit that crime (18 USC \u00a7 371), could not be prosecuted in New York for grand larceny in the second degree, former Penal Law \u00a7 155.35, now Penal Law \u00a7 155.40. The Court concluded that the federal and state crimes were not designed to prevent very different kinds of harm or evil, since \u201c[t]he Federal crime of interstate transportation of stolen property and the State crime of larceny are both designed to punish thieves and to protect property owners from thefts.\u201d (Id.) Similarly, the federal wire fraud statute and New York\u2019s scheme to defraud are both designed to protect the unwary from schemes to deprive them of their property by fraud. Thus, scheme to defraud in the first degree and wire fraud are not, as CPL 40.20 (2) (b) requires, designed to prevent very different kinds of harm or evil. (See also Matter of Kaplan v Ritter, 71 NY2d 222, 230-231 [1987] [\u201ccounts in the New York County indictment, which charge petitioners with and grand larceny, cannot be prosecuted (pursuant to exceptions in CPL 40.20 [2] [b] and [e]) in light of the prior Federal prosecution for RICO violations and fraud\u201d].)"], "id": "7d3d3e30-d7dc-4d42-aab3-2d7b07b0b297", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["for further investigation and possible criminal prosecution. Request Letter at 3. SEC staff contemplates that a significant part of the FST\u2019s investigative efforts would involve contacting individuals suspected of conducting criminal schemes through e-mail, mail, or telephone. Id. at 3\u20134. FST investigators would pose as potential investors in the schemes and seek information from the promoters in an attempt to develop evidence to support criminal prosecutions. Id. at 4. A cadre of SEC staff members would be designated to serve on the FST and would be specially trained and separately supervised in connection with their FST activities. Request Letter at 4\u20135. 2 The FST would under- take an investigation only if its staff had a bona fide basis to believe that the targets were engaged in conduct amounting to a criminal violation of one of the securities laws. Id. at 4. The FST would maintain the infor- mation that it collected in its investigations in a separate system of rec- ords, which would not be utilized for other purposes and would not be generally accessible to Commission staff performing non-FST duties. Id. at 5; E-mail for Matthew D. Roberts, Senior Counsel, OLC, from George S. Canellos, Director, New York Regional Office, SEC (Dec. 22, 2011, 5:02 PM) (\u201cFollow-up E-mail\u201d). Limited, summary information in the FST records system\u2014for example, a description of the general nature of the information that prompted the investigation, the persons or entities contacted, and the other investigative steps taken\u2014would, however, subsequently be recompiled into another SEC records system or systems, which would be more broadly available to Commission staff. Request Letter at 5 & n.9; Follow-up E-mail."], "id": "c03775a6-f3cc-4309-a97d-d62dc9d5019d", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Similar issues arose in United States v Metter (860 F Supp 2d 205 [ED NY 2012, Irizarry, J.]), a overseizure case in which the court suppressed computer files recovered from the defendant\u2019s home and business as well as personal email messages which had been obtained from his Internet service providers.19 Fifteen months after the initial seizure, the government had not yet completed its privilege review or determined whether any of the seized material fell outside the scope of the warrants. The court concluded the government\u2019s 15-month delay in isolating responsive communications constituted a search and seizure in violation of the Fourth Amendment because of the unreasonable period of time the government had consumed searching the defendant\u2019s files. The court did not address the third-party doctrine, although part of the materials which were suppressed were email communications seized from ISPs. Thus, the court apparently implicitly recognized that the third-party doctrine was not applicable to those seizures."], "id": "15551592-2e67-4210-b431-5ead1a939323", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Court of Appeals also looked to the legislative intent underlying the Martin Act: \"The majority of this court holds that an implied private action is not consistent with the legislative scheme underlying the Martin Act and, specifically, section 352-c; that the specific purpose of the statute was to create a statutory mechanism in which the Attorney-General would have broad regulatory and remedial powers to prevent fraudulent securities practices by investigating and intervening at the first indication of possible on the public and, thereafter, if appropriate, to commence civil or criminal prosecution; and that consistency of purpose with the *598statute includes consistency with this enforcement mechanism (see, General Business Law \u00a7\u00a7 352, 353, 353-a, 354, 358; Kaufman, Practice Commentaries, McKinney\u2019s Cons Laws of NY, Book 19, General Business Law art 23-A, at 19-20).\u201d (CPC Intl. v McKesson Corp., 70 NY2d 268, 276-277, supra.)"], "id": "abe80dce-5a04-4aec-8df3-346a4a7a3018", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It was stipulated that defendant Norman Forsyth was served with a subpoena issued by the Attorney-General pursuant to article 23-A of the General Business Law (New York\u2019s \u201cBlue Sky\u201d law) requiring his appearance at the office of the Attorney-General on August 31, 1979. It was *235undisputed that defendant was aware that the purpose of the subpoena was to seek the defendant\u2019s testimony in an investigation of of which he was the prime suspect. Defendant had, pursuant to earlier subpoenas and upon adjourned dates requested by him, appeared at the office of the Attorney-General. Following his failure to appear on an adjourned date, the subpoena, which is the subject of this indictment, was served upon him."], "id": "13205942-1b8b-4e9e-bc06-1d9ea5248773", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In April, 1973, Vall became employed as a salesman for a commodities brokerage firm known as Collins and Day. That firm ceased operations some time in June, 1973, with substantial losses to its clients. Thereafter an investigation was commenced by the Attorney-General. That investigation revealed that neither the firm, its principals nor *1001its salespeople were registered and licensed to sell securities in this State and that Collins and Day was what is colloquially known as a \u201cbucket shop\u201d. The loss to investors was estimated to be in excess of $2,000,000. As a result the Attorney-General obtained indictments against the principals of Collins and Day as well as all of its salespeople. Vail was indicted and charged with 35 counts of grand larceny in the second and third degree; the sale of securities without a license; and under the Martin Act. Prior to trial Vail entered a plea of guilty to a violation of section 359-e of the General Business Law (failure to register as a salesman), a misdemeanor, and this plea was accepted to cover the entire indictment. Vail received a sentence of incarceration for four successive weekends and was fined $500. The sentencing Judge thereafter granted Vail a certificate of relief from civil disabilities pursuant to section 702 of article 23 of the Correction Law. A civil proceeding pursuant to the Martin Act was then initiated by the Attorney-General to obtain orders permanently enjoining all the defendants in the Collins and Day operation from participating in the purchase and sale of securities. Vail subsequently consented to the entry of judgment and the permanent injunction which he now seeks to dissolve"], "id": "bd4e79f5-2a20-440a-9b4c-d25d3282b464", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Furthermore, unlike the newspaper's success on the motion to unseal in Savaglio , respondents' success was not \"ancillary\" or \"entirely unrelated to the objective of the lawsuit.\" ( Savaglio , supra , 149 Cal.App.4th at p. 603, 57 Cal.Rptr.3d 215.) The interlocutory judgment and order setting forth the powers and duties of the special master comprised the core relief negotiated in the DBO action. The trial court sharply criticized this settlement structure in several respects, referring to one of the key terms as \"illusory,\" and respondents were successful in causing substantive changes to be made to the settlement. These successes were related to the objective of the DBO action because, *611in the court's reasonable view, they provided better protections to the victims of the ."], "id": "a2b7e557-2776-4305-9156-c7408f9759b5", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In October 1986, the petitioners filed suit in the United States District Court for the Southern District of New York claiming that Drexel, through one of its agents, had engaged in fraudulent transactions in violation of Federal securities laws and the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC \u00a7 1961 et seq.) and in breach of its fiduciary duties to the petitioners.2 At the time there was disagreement among the several circuits concerning the arbitrability of. controversies involving securities transactions. However, since this specific issue was before the United States Supreme Court, the District Court (Conner, J.) stayed the action pending the resolution of that case. In Shearson/American Express v McMahon (482 US 220), the Supreme Court held the provisions of the FAA applicable to RICO and claims. Thereafter, petitioners discontinued the Federal action."], "id": "4574d045-ccc4-448a-a7c9-c83ee8e0e63a", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Movants in their counterclaim allege plaintiffs intentionally and tortiously induced the breach of a settlement agreement entered into on July 12, 1990, of an action then pending in Illinois. Beigel & Sandler, Ltd., the predecessor firm of plaintiffs\u2019 counsel herein, specifically entered into that agreement on its *31clients\u2019 and on its own behalf. The defendants James Haber and Harvey Minors were also defendants in the Illinois action; and the settlement agreement was entered into on their behalf. The claims in the Illinois action which were resolved included claims of and Racketeer Influenced Corrupt Organizations violations unrelated to this action. Movants allege that plaintiffs, by retaining the Beigel firm to represent them in the instant action, caused the Beigel firm to breach paragraph 10 of the settlement agreement which prohibits the Beigel firm from representing or assisting claimants asserting certain claims against Haber, such as the claims asserted herein."], "id": "4451eb77-cb48-46c1-9a2d-7c3f76d8f02b", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": [" Plaintiff Gordon Ostojic seeks to enforce an agreement purporting to settle a federal action that he and 54 other plaintiffs (together, the SDNY plaintiffs) commenced in the United States Court for the Southern District of New York against defendants Life Medical Technologies, Inc. and its former CEO and president Carol Fitzgerald, both of whom are the defendants in the action underlying this appeal. Eventually, the parties to the federal action agreed to settle. As a result of the parties' agreement, the federal court granted an order of discontinuance dismissing the action without prejudice, stating that if the matter were not settled within 30 days of the order, the parties were obliged to make a letter application within the 30-day period, requesting that the matter be reinstated. Ostojic alleges that although the parties orally agreed upon a final written settlement agreement that settled all material terms, defendants never signed the agreement. Furthermore, Ostojic alleges, because no party requested that the matter be reinstated, the SDNY lost jurisdiction over the matter. Ostojic maintains that although he performed all conditions and promises required of him by the proposed settlement agreement, defendants failed to make the monetary payments owed to him under the agreement."], "id": "953db642-2ef1-4b90-965e-801f520917b7", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Furthermore, the dealers recognize that Ehrlich-Bober (supra) is a State court doctrine inapplicable in Federal court. Greater governance over the financial markets in New York is provided by Federal law than by State law. And yet, for example, claims can be brought in any district in the country and, notwithstanding the possibility of nationwide cacophony in judicial rulings, the securities markets function. This suggests that disaster will not befall plaintiffs and the market in Government securities if the Ehrlich-Bober doctrine is not transformed into exclusive New York jurisdiction over cases involving the markets."], "id": "1916ef1f-2e3e-4438-a37c-9f57725df072", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["3 In accord with Dun & Bradstreet, lower courts considering credit rating agencies\u2019 First Amendment defenses to claims for defamation, fraud, and various other business torts (as well as breach of contract in at least one instance) have looked in part to whether the reports were distributed to a public audience or tailored to a discrete group of clients. See, e.g., Compuware Corp. v. Moody\u2019s Investors Servs., Inc., 499 F.3d 520, 525\u201334 (6th Cir. 2007) (affirming grant of summary judgment in favor of credit rating agency defend- ant on defamation and breach of contract claims based on \u201cactual malice\u201d requirement where ratings were made available to the public); Abu Dhabi Commercial Bank v. Morgan Stanley & Co., No. 08-Civ-7508 (SAS), 2009 WL 2828018, *9 (S.D.N.Y. Sept. 2, 2009) (rejecting First Amendment defense to various common law tort claims, including fraud, in part because \u201cplaintiffs have plainly alleged that the . . . ratings were never widely disseminated, but were provided instead in connection with a private placement to a select group of investors\u201d); In re Nat\u2019l Century Fin. Enters., Inc., Inv. Litig., 580 F. Supp. 2d 630, 640 (S.D. Ohio 2008) (rejecting First Amendment defense to and various common law claims in part because ratings disseminated to a \u201cselect class of investors\u201d); In re Enron Corp., 511 F. Supp. 2d 742, 820 (S.D. Tex. 2005) (finding that the First Amendment shielded credit rating agency from negligent misrepresentation claim where the \u201ccredit rating reports regarding Enron by national credit rating agencies were not private or confidential, but distributed \u2018to the world\u2019 and were related to the creditworthiness of a powerful public corporation that operated internationally\u201d). At least one court of appeals has invoked the same consideration as one of its reasons for ruling that a credit rating agency could not avail itself of a statutory state-law journalist\u2019s privilege to refuse to comply with a subpoena. In re Fitch, Inc., 330 F.3d 104, 109 (2d Cir. 2003) (\u201cUnlike a business newspaper or magazine, which would cover any trans- actions deemed newsworthy, Fitch only \u2018covers\u2019 its own clients.\u201d); see also id. at 110 (\u201cFitch\u2019s information-disseminating activity does not seem to be based on a judgment about newsworthiness, but rather on client needs. We believe this weighs against Fitch being able to assert the privilege for the information at issue.\u201d)."], "id": "b6034ca7-1e05-4967-a726-0b3f18651df3", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Consumer Cause and Karuk Tribe are distinguishable in that they involved procedural successes that did not result in any substantive changes. In Karuk Tribe , the fee claimants simply obtained a court order requiring a regional water quality control board to provide an \"augmented explanation\" on the same decision it had previously made. ( Karuk Tribe , supra , 183 Cal.App.4th at p. 369, 108 Cal.Rptr.3d 40.) In Consumer Cause , the fee applicant's successful objection to a class action settlement simply \"[f]ree [d] [the] putative class members from *465the constraints of a proposed settlement agreement they had the right to disregard by exercising their opt-out right.\" ( Consumer Cause , supra , 127 Cal.App.4th at p. 404, 25 Cal.Rptr.3d 514.) In contrast, respondents obtained actual, substantive changes to the interlocutory judgment and special master's powers that, in the trial court's reasonable estimation, better protected hundreds of victims of . The trial court did not abuse its discretion in finding that an important public right was enforced."], "id": "c6f9e01f-22b5-4b70-98ed-5be481dd10ec", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The DBO argues that respondents did not enforce any such rights in relation to the DBO because the only CSL violations at issue were those of the moving defendants. However, as discussed above, the DBO was an \"opposing party\" in this context because it stood on opposite sides of respondents in the context of the motion to modify. During these proceedings, the trial court took seriously the concerns raised by *615respondents about due process, lack of notice to the investors, and \"cutting off their rights to sue,\" and criticized the settlement terms negotiated by the DBO. Even if these matters did not rise to the level of strict constitutional violations, the trial court reasonably concluded that the efforts of respondents strengthened the settlement in ways that were important to hundreds of victims of ."], "id": "924f4e99-43c2-412b-a975-8aa24e92776d", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There is scant decisional precedent to guide the court on this question. In United States v Chiarella (588d 1358 [2d Cir 1978]), the federal Court of Appeals affirmed the District Court\u2019s ruling that in a and insider trading case, as a matter of federal law, the apparent state-court privilege embodied in Labor Law \u00a7 537 yields to federal rules and precedent. The court noted that Federal Rules of Evidence rule 501 and established precedent show a strong federal policy favoring admissibility of the type of statement which Labor Law \u00a7 537 appears to protect. The court specifically declined to decide whether section 537 creates a privilege under New York law, since the court did not need to resolve that question in order to decide its own case."], "id": "1b2460c7-988d-46de-9b76-d8a7d0a613c2", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We conclude the trial court did not abuse its discretion in finding that respondents: were successful parties against the DBO, Investco M&D and the promoters; enforced an important right affecting the public and a large group of victims; and provided necessary, non-duplicative, and significant benefits to this group of investors, while incurring litigation expenses that were out of proportion to their personal interests. Accordingly, we affirm."], "id": "3598eeaa-9179-4680-89d1-ae5f3d22a935", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The complaint further alleges that Boesky also pleaded guilty and settled charges of , implicating Michael Milken, the head of Drexel\u2019s high yield bond division. Michael Milken and other Drexel employees (Lowell Milken, Cary Maultasch, Bruce Newberg, Martin Siegel and Pamela Mouzert) were charged with securities fraud involving the shares of numerous companies from 1984 to 1986 including insider trading, stock parking and manipulation. Milken pleaded guilty in 1990 to six felony counts including conspiracy, securities fraud and mail fraud, agreed to pay $200 million in fines and penalties, and $400 million to defray claims against him."], "id": "570660e8-4089-43fe-9019-7f4b7a981910", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["These consolidated appeals challenge the award of attorney fees to respondents Kim Agasaveeran and Jeffrey Bryant (respondents) under Code of Civil Procedure section 1021.5 ( section 1021.5 ). Respondents specially appeared in an already-settled action brought by the Commissioner of the Department of Business Oversight (DBO) against real estate investment company Investco Management & Development LLC (Investco M&D) and its promoters, Christopher P. Epsha, Steven G. Thompson, Barry D. LeBendig, and Douglas R. Hanson (the promoters). Respondents-victims of the securities fraud-successfully opposed a motion that would have stayed all individual actions by them and other defrauded investors against these defendants. Respondents also raised several issues concerning the fairness of the settlement, resulting in substantive changes to the stipulated interlocutory judgment *602and special master order in the DBO action."], "id": "029bffa3-0372-4d04-a1a7-d237ae74f926", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Charge One alleges that the respondent was convicted of a serious crime within the meaning of Judiciary Law \u00a7 90 (4) (d) and within the meaning of section 691.7 (b) of the Rules Governing the Conduct of Attorneys within this Department (22 NYCRR). On March 21, 1994, the respondent pleaded guilty before the Honorable Jack Mackston of the Nassau County Court, Trial Term, Part VI, to a charge of intentional real estate , in violation of General Business Law \u00a7 352-c (1) (c) (iv), a class A misdemeanor. The crime of which the respondent was convicted involves false swearing, misrepresentation, or fraud."], "id": "281d321e-55ab-4609-af52-29b0e0e4f2ce", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The regulation of the purchase and sale of securities pursuant to the Martin Act is a creation of the Legislature and the primary purpose of the statute is remedial in character (People v Lexington Sixty-First Assoc., supra; People v Federated Radio Corp., 244 NY 33). As such it is the prerogative of the Legislature to establish the availability and applicability of the remedy and in so doing does *1004not infringe upon the jurisdiction of the court (People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429). Section 359-g is penal in operation (People u Federated Radio Corp., supra) and it is within the authority of the Legislature to punish those convicted of fraud in connection with the purchase and sale of securities (Defiance Milk Prods. Co. v Du Mond, 309 NY 537). In the context of the Martin Act, the Legislature has stated that the remedy of dissolution or modification of the injunction is not available to those convicted of (NY Legis Ann, 1963, pp 107-108). This is a clear proscription of the jurisdiction of the court and is binding (Thrasher v United States Liab. Ins. Co., supra; People v Darling, supra)."], "id": "86b68e62-d638-44d9-bb12-7c547fbefa98", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Irving Lang, J. In this habeas corpus proceeding, petitioner contests his rendition to the State of Alabama to answer an indictment for on two unusual grounds. First, he claims that no date is alleged in the indictment, thereby depriving him of the constitutional and statutory right to resist extradition on the ground that he was not in the demanding State at the time of the commission of the alleged offense. Secondly, he claims that the specific acts of which he is accused do not substantially charge him with a crime under Alabama law. Rather, he asserts the demanding State is attempting to use criminal process to enforce what is a civil obligation. He claims that since the indictment does not \"substantially charge the person demanded with having committed a crime under the law\u201d of Alabama, the writ should be granted (CPL 570.08)."], "id": "105d9f23-9748-471f-8d26-221b07275689", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Several months after closing on the loan, respondent and his brother continued to deceive the Bi-Coastal investors concerning Larry\u2019s criminal status. The investors claimed that only after they learned about Larry\u2019s guilty plea did they audit GTI\u2019s books and discover its true state of insolvency and serious tax delinquencies. The Bi-Coastal investors sued respondent and his brother for , inter alia, in Federal District Court in New Jersey in 1988, asserting that misrepresentations and failures to disclose had been material to their making of the loan. During the course of that lawsuit, respondent submitted under oath an allegedly doctored bank statement misrepresenting the status of his account prior to closing on the loan."], "id": "561beaa4-4c09-4a7c-af5b-f08aa372e73e", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The SEC sued Ms. Baylor, the Baylor & Jackson law firm, the Milan Group, Inc., and other individuals as \u201cPrincipal Defendants\u201d for conducting an alleged from which victims suffered losses amounting to millions of dollars. See S.E.C. v. Milan Group, 962 F. Supp. 2d 182 (D.D.C. 2013), aff\u2019d in part, vacated in part, 595 Fed. Appx. 2 (D.C. Cir. 2015). Ms. Jackson was named as a \u201cRelief Defendant,\u201d which the District Court described as a \u201cperson[] who allegedly received money resulting from the fraudulent activities but who [is] not charged with personally engaging in the fraud.\u201d Milan Group, 962 F. Supp. 2d at 186. During the pendency of the case and trial, the SEC required that Ms. Jackson keep the Baylor & Jackson law firm intact as \u201ca going concern\u201d to preserve the law firm\u2019s accounts and assets that would eventually contribute toward the monetary judgment to satisfy the victims\u2019 monetary losses. The District Court entered summary judgment against Ms. Baylor, the Baylor & Jackson law firm, and other defendants jointly and severally liable for over $2.6 million in ill-gotten profits. Id. at 211. The money judgment was affirmed by the United States Court of Appeals for the District of Columbia Circuit in 2015. Milan Group, 595 Fed. Appx. at 2."], "id": "0015e847-a79d-4496-8808-ded75832895c", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There are two California cases which are on point. Bradshaw v Pardee (78 Cal App 3d 567) was cited by the defendant and discussed in his brief but, unfortunately, the opinion was deleted from the reporter on the direction of the California Supreme Court for an unstated reason. According to the defendant\u2019s brief, the case concerned a client who pleaded guilty to a criminal charge on the advice of counsel. The client later brought a malpractice action against the attorney, alleging that he was negligently advised to plead guilty. The court dismissed the complaint on the theory that the client\u2019s prison sentence was caused by his guilt and not the lawyer\u2019s alleged negligence. In Weiner v Mitchell, Silberberg & Knupp (114 Cal App 3d 39), a former client who had been convicted of brought an action charging his former attorneys with malpractice in the criminal case. The California Court of Appeal, Second District, Division 3, noted that the client\u2019s conviction estopped him from relitigating the issue of guilt. The court then unanimously held (p 48) \u201cwe must, therefore, accept as the proximate cause of his indictment, and of all the damages which occurred to him by reason of it, his guilt and his guilt alone. This means that all of the various causes of action alleged in tort against defendants in plaintiff\u2019s second amended com*435plaint founder on the complete lack of proximate causation between the torts alleged therein and the injuries plaintiff allegedly suffered thereby. Stated otherwise, without proximate causation between the torts alleged and the damages allegedly suffered, there can be no cause of action in tort.\u201d"], "id": "6bfd0419-d45e-4a0a-b9e1-36f89f6f06e9", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In determining that a failure by FNIC to exercise reasonable supervision over its securities salespeople in a branch office can be a violation of the Martin Act, this court relies upon the following. When passing securities legislation, Congress has always preserved a role for state \u201cblue sky\u201d laws, which predated the federal securities laws of the 1930s, including the Securities Act of 1933 and the Securities Exchange Act of 1934 (see Mihaly and Kaufmann, Introduction and Commentary *999Overview, Securities, Commodities and Other Investments, McKinney\u2019s Cons Laws of NY, Book 19, General Business Law art 23-A, at 11-12; see also Matter of Gardner v Lefkowitz, 97 Misc 2d 806, 812-813 [Sup Ct, NY County 19783). Further, despite FNIC\u2019s allegation that the Martin Act does not specifically address the issue of broker-dealer supervision, section 353 clearly addresses secondary liability for , providing that the Attorney General may seek relief for fraudulent practices against a perpetrator as well as \u201cany other person or persons theretofore concerned in or in any way participating in or about to participate in such fraudulent practices\u201d (General Business Law \u00a7 353 [1] [emphasis supplied]). Here, FNIC hired certain of the other defendants as its representatives and clothed them with the \u201cgood name\u201d of a national broker-dealer. If, as alleged by plaintiff, FNIC failed to adequately train or supervise the individuals who operated with FNIC\u2019s express authority in selling other products, FNIC was necessarily \u201cconcerned in\u201d the FNIC individual defendants\u2019 fraudulent outside sales practices."], "id": "100c0dab-d90b-44d8-a970-3c1961829124", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["After Howard's employment was terminated in 2013, he signed a \"Separation Agreement and Release\" (the separation agreement). The agreement recited that the parties wished to resolve \"any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that [Howard] may have against the Company and any of the Company Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to [Howard's] employment with or separation from the Company.\" As \"Consideration,\" Kaggle agreed to continue paying Howard's base salary and health benefits for four months, and accelerated the vesting date of some of the restricted shares that had not yet been released under the stock agreement. The parties also agreed on how to determine the number of shares in which he was entitled to be vested. Howard agreed to release Kaggle from all claims \"relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that [Howard] may possess against any of the Company Releasees arising from any omissions, acts, facts, or damages that have occurred up until and including the Effective Date of this Agreement , including, without limitation: [\u00b6] a. any and all claims relating to or arising from [Howard's] employment relationship with the Company and the termination of that relationship; [\u00b6] b. any and all claims relating to, or arising from, [Howard's] right to purchase, or actual purchase of shares of stock of the Company, including, without limitation, any rights under an Equity Arrangement dated October 25, 2011 between [Howard] and Anthony Goldbloom, claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under any applicable state corporate law, and under any state or federal law ...\" (Italics added.)"], "id": "fd2a75cb-9a67-484c-845a-4d0d655c9c2c", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*470Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 119 Cal.Rptr.3d 300 ( Talley ) addresses the nature of \"appropriate proceedings\" to obtain relief from a later judgment. The plaintiff in Talley sued three individual defendants and two corporate defendants in state court for . The plaintiff also initiated a related federal court proceeding. The state trial court sustained, without leave to amend, demurrers in favor of the defendants. In Talley v. Miller & Schroeder (Sept. 12, 2007, D048438) [nonpub. opn.], the Court of Appeal had affirmed the judgments in favor of three individual defendants and reversed and remanded for further proceedings the judgments in favor of the two corporate defendants. (Talley, supra , 191 Cal.App.4th at pp. 136-137, 119 Cal.Rptr.3d 300.) On remand, the trial court again sustained, without leave to amend, demurrers by the corporate defendants, and judgment was entered in their favor. ( Id. at p. 137, 119 Cal.Rptr.3d 300.) The plaintiff neither made a direct attack on that judgment by appeal nor obtained a stay order pending the resolution of his related federal court action. ( Ibid. ) After the Court of Appeal's decision became final and the time for California Supreme Court review had passed, the Ninth Circuit issued its decision \"analyzing, modifying and narrowing the Bar orders\" that had served as the basis for the earlier judgments based on the demurrers. ( Id . at pp. 137, 141, 119 Cal.Rptr.3d 300.)"], "id": "3864a996-db6f-46d0-b73e-3405d1bf914f", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On January 30, 1990, Moore & Schley filed a petition for reorganization under chapter 11 of the Bankruptcy Code. In March 1990, Moore & Schley submitted written proofs of loss to the defendants based upon the dishonest and fraudulent acts of Militano and Sonneberg. In March 1991, after waiving indictment, Militano pleaded guilty to conspiracy to commit and making a false statement to a Federal official, and Sonneberg pleaded guilty to conspiracy to commit securities fraud. In April 1991, defendants disclaimed coverage. The SEC\u2019s civil action against Militano and Sonneberg culminated in a judgment against them enjoining them from engaging in securities fraud and requiring them to disgorge their profits."], "id": "8bfa5ea6-3e7d-4c51-b4cf-4658d4547e0d", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The rules of a private industry self-regulating group cannot deprive a state securities commission of jurisdiction over such an important area of . Instructive on this point is Jones v Securities & Exch. Commn. (115d 1173 [4th Cir 1997], cert denied 523 US 1072 [1998]), a case cited by FNIC. Jones ruled that res judicata did not bar the SEC from prosecuting an individual defendant after he had already been sanctioned by the NASD for the identical conduct (id. at 1180). The Fourth Circuit reviewed the statutory scheme for supervision of securities salespeople, among other issues:"], "id": "c63c82e6-99ce-4010-a4d9-9ce47d0913ae", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Levine was indicted in 1986 for and other crimes to which he pleaded guilty, and he also settled charges against him brought by the SEC, agreeing to disgorge his gains. Drexel notified the insurers on September 4, 1986 that *207Levine had been charged with insider trading and had pleaded guilty to the criminal charges and had settled with the SEC in June, and that as a result claims by third parties against Drexel might thereafter be asserted."], "id": "1accb892-34de-493e-b67d-1121a1da6d25", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Barbara Gunther Zambelli, J. Defendant is charged with three misdemeanor counts of in violation of section 352-c of the General Business Law, also known as the Martin Act. He moves to dismiss the accusatory instrument filed against him on three grounds: (1) the District Attorney lacks authority to prosecute violations of the Martin Act; (2) the District Attorney must be disqualified because of a conflict of interest; and (3) the prosecution is barred by the Statute of Limitations."], "id": "ccf64aa6-259c-4d98-85e3-f316a93cd632", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff was sued in federal court, in the Southern District of New York, in several actions alleging , together entitled In Re Forest Labs., Inc. Sec. Litig. (US Dist Ct, SD NY, No. 05-CV-2827-RMB, Berman, J.). The securities action was settled for $65 million, which was paid by plaintiff. Plaintiff claims that considerable unpaid extra claims and defense costs exist, adding several millions of dollars over the $65 million settlement amount."], "id": "1c559f4c-d3d1-496b-a504-242de35cd337", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A partner at First Investors\u2019 primary outside accounting firm states that FICON was not insolvent at the time of The Contested Transactions; that as of December 31, 1989 FICON had \"reported stockholders\u2019 equity of approximately $83 million\u201d; that as of December 31, 1990 FICON had \"reported stockholders\u2019 equity of approximately $76 million\u201d; that FI-CON was actually worth more than the $83 million book value of its outstanding shares; that contrary to plaintiff\u2019s assertion, and for \"several reasons\u201d (e.g., plaintiff\u2019s calculations omit both \"net investment income earned\u201d and \"gains earned by investors prior to the limited time period 1987 to 1990 used by the State to calculate losses\u201d), First Investors was not liable for a total restitution of $1.6 billion to investors at the time of The Contested Transactions; that at the time of The Contested Transactions as a matter of general accounting practice, no liability attached to First Investors pursuant to the instant suit since (1) it was not \"probable\u201d that there would be a loss, and (2) as an independent ground, the amount of any loss could not reasonably be estimated. Defendants note that plaintiffs damage calculations assume that every investor in First Investors was the victim of fraud, whereas a plaintiff in a suit can only collect net losses which stem from defendant\u2019s fraudulent act(s) (see, Abrahamson v Fleschner, 568d 862, 878 [2d Cir 1977]). Plaintiff rejoins that \"a contingent liability * * * must be reduced to its present, or expected, value before a determination can be made whether the firm\u2019s assets exceed its liabilities.\u201d (Matter *218of Xonics Photochemical, 841d 198, 200 [7th Cir 1988] [\"(t)o value (a) contingent liability it is necessary to discount it by the probability that the contingency will occur\u201d].)"], "id": "00765324-e17c-48af-96bb-a0c4af402a5f", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs\u2019 fraud claim is based in part on the general contention that Adcock undervalued the Company\u2019s performance, which undermined the value of the stock to be redeemed under the Warrants. Having determined that the Company properly regarded all but Angelo Jr.\u2019s warrants as expired, this claim applies only to Angelo Jr.\u2019s Warrant. Plaintiffs\u2019 claim in federal court alleged a violation of the Securities Exchange Act, 15 USC \u00a7 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 CFR \u00a7 240.10b-5, for precisely that reason: that Adcock and the Company had intentionally undervalued the Company\u2019s stock price in an effort to manipulate the value of the Warrants. Iafrate, 827 F Appx at 546-547. Consistent with the allegations in the complaint in this matter, the federal courts observed that Adcock admitted to the undervaluing to Angelo Jr. before Angelo Jr. exercised his Warrant. Id. at 551. In Michigan, as in federal courts, an essential element of fraud is that the plaintiff not only relied on a misrepresentation but did so genuinely and reasonably. Cooper v Auto Club Ins Ass\u2019n, 481 Mich 399, 414-415; 751 NW2d 443 (2008).13 Plaintiffs alleged that Angelo Jr. relied on defendants\u2019 \u201cmaterially false and misleading statements\u201d and upon an earlier presentation regarding the methodology to be used in calculating the fair market value of the stocks. However, as the Sixth Circuit found, Angelo Jr. actually knew that defendants had manipulated the Company\u2019s stock value and, instead of challenging the valuation or suing for breach of contract immediately, he"], "id": "e893ac35-ef13-45d1-b425-f9c2e6086e51", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants have argued that the June 2,1988 extension of the Citron warrant was not based on probable cause because no evidence of was uncovered during the execution of the original warrant. Eavesdropping warrants must meet the \"probable cause\u201d requirements that are applicable to search warrants. (CPL 700.15 [2], [3]; 700.20; People v Tambe, 71 NY2d 492.) A finding of probable cause requires that facts be presented to the issuing officer sufficient to warrant a prudent person to believe that evidence of a crime will be obtained through the use of electronic surveillance. (United States v Fury, 554d, at 530, supra.) Requests for extension of the warrant must, in addition to the requirement of probable cause, contain a statement setting forth the results thus far obtained."], "id": "9dcd8150-4e2f-4ff2-a346-d88e4798c9f9", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*49On or about July 5, 1994 the respondent was found guilty, after a jury trial in the Supreme Court, New York County, of eight counts of scheme to defraud in the first degree, nine counts of real estate , three counts of grand larceny in the second degree, three counts of grand larceny in the third degree and one count of offering a false instrument for filing in the first degree. Respondent\u2019s conviction arose out of his participation in the sale of cooperative interests in several different buildings, in connection with which he made false representations and concealed material facts including necessary information about the financial status of the buildings. The Departmental Disciplinary Committee, by petition dated September 20, 1994, has moved for an order striking the respondent\u2019s name from the roll of attorneys pursuant to Judiciary Law \u00a7 90 (4) (b) on the ground that the respondent was automatically disbarred upon his conviction of a felony as defined by section 90 (4) (e). Pursuant to Judiciary Law \u00a7 90 (4) (a) respondent ceased to be an attorney and counselor-at-law or to be competent to practice as such, upon his conviction of a felony. There is no question that the crimes of scheme to defraud in the first degree, Grand Larceny in the second and third degrees and offering a false instrument for filing in the first degree are all felonies. The facts that the respondent has not yet been sentenced and that there may be a motion to set aside the verdict, do not serve as impediments to the Committee\u2019s petition. For the purposes of disbarment, a conviction occurs at the time of plea or verdict (see, Matter of Kourland, 172 AD2d 77; Matter of David, 145 AD2d 150)."], "id": "24d77f8a-6e51-44b4-8213-14e3db9804b0", "sub_label": "US_Terminology"} {"obj_label": "securities fraud", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The defendants are charged with 85 counts of , scheme to defraud, criminal possession of stolen property and grand larceny. The charges arise out of nine alleged fraudulent \u201cpump and dump\u201d penny stock promotion schemes. Defendant Anthony Thompson moves here to suppress approximately 100,000 of his emails recovered in the execution of two search warrants directed to his Internet service providers in 2012."], "id": "e5aa352e-0945-4e88-ade8-760b75bf3a03", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On Friday, August 7, 1970 an officer of the defendant, one Michael S. Cronin, by telephone conversation with an officer of the plaintiff, one Harold Glenn, advised plaintiff that defendant was returning these 13 checks to the plaintiff unpaid and that he believed they were drawn against uncollected funds, and that if the defendant ended up with a residual balance in Shapiro\u2019s account, after offsetting Shapiro\u2019s obligations to the defendant bank for loans, and after everything settled down, the plaintiff might apply part of the checks being returned against such balance. The two officers on this date and prior during the same week also discussed the suspicion that Harry Shapiro was check- between the two banks and that the defendant\u2019s officer would return to the plaintiff bank all checks not covered by cash on hand."], "id": "a9417cc5-0108-4fff-94bc-d7afd9eb58fb", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendant does not dispute its failure timely to place the various documents in the review file, but it vigorously disputes the significance of the omissions in the context of this inherently risky distressed commercial loan auction/sale between sophisticated investor entities. Concerning the August 31 draft financial statement, defendant points out (without contradiction) that it came into the bank\u2019s possession during the brief period between acceptance of plaintiffs bid on September 23 and the closing on September 29, and contends that the omission to include it in the review file cannot be important because it was \u201ccompletely unreliable\u201d on the subject of inventory valuation and because plaintiff could not have possibly acted differently even if it had bothered to check the Web site and discovered it between bid acceptance and closing. Concerning the check- documents proved to be in defendant\u2019s possession well prior to submission of the bid, defendant contends that the check kiting by CyTech was \u201cunconfirmed\u201d and that there was, in any event, no requirement that its documents evidencing possible check kiting be included in the review files. Defendant also contends that the check-kiting documents only are duplicative of other information in the file establishing that CyTech was suffering from cash flow difficulties."], "id": "72c4956b-4916-4fec-b843-a1432d8a3cc3", "sub_label": "US_Terminology"} {"obj_label": "Kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Claimant testified that Lieutenant Looney, an officer at Bed-ford Hills, opened her mail without authorization from the Bedford Hills Superintendent as required by DOCS regulations; that she was issued a misbehavior report; that a disciplinary hearing was held at which she was found guilty of the charge of \u201c Mail\u201d (see exhibit 1, at 1) and confined to keeplock for a period of five days. Claimant further stated that the decision of the hearing officer was reversed on administrative appeal and the matter was expunged from her record (see exhibit 1, at 3). On cross-examination, claimant stated that the incident occurred on May 23, 2000, the hearing was started on June 1, 2000 and completed on June 7, 2000. She further stated that the five days\u2019 keeplock time was served from June 18 to June 23, 2000."], "id": "b6b4f016-be7e-4f0a-af7f-8c98c74e2e19", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["That leaves for consideration whether defendant\u2019s failure to include in the review files material relating to CyTech\u2019s alleged check in May 2005 independently supports plaintiff\u2019s claim on either a theory of rescission or failure of a condition precedent. Defendant contends that these materials were not even required to be included in the review file by the terms of the asset sale agreement, which excluded \u201cany documents prepared by or for the use of Seller or DebtX regarding the valuation of the loan(s).\u201d (Asset sale agreement, appendix A [definition of review file].) Plaintiff points to a provision of the terms of sale memorandum (111 [a]) which alerted potential bidders that the review files would contain \u201cborrower financials, relevant correspondence and any other material deemed germane to the valuation of the assets being offered\u201d (emphasis supplied). Even if plaintiff could escape the declaration in the terms of sale memorandum that, in the event of conflict, \u201cthe terms and provisions of the Asset Sale Agreement shall govern and control,\u201d a dubious proposition at best, plaintiffs reference to the above-quoted language would only render the entire agreement, for purposes of its current motion for summary judg*365ment, ambiguous on the subject thus requiring a trial. Defendant\u2019s interpretation is a more than plausible reading of the contract, and therefore plaintiff fails to satisfy its initial burden on summary judgment to show that its interpretation \u201cis the only construction that can fairly be placed on it.\u201d (Sullivan v Troser Mgt., Inc., 34 AD3d 1233, 1235 [4th Dept 2006]; Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986].) In any event, defendant raises a triable issue whether the alleged check-kiting correspondence, defendant\u2019s chart thereof, and in particular the nonaccrual forms, all items created by the bank, concerned the bank\u2019s valuation of the loans such that they were exempted from eligibility for inclusion in the review files by the terms of the asset sale agreement, appendix A."], "id": "317d133b-d1d0-4f85-975b-247cb2986d29", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*438New York courts have consistently applied principles derived from the Federal mail fraud statute in construing the similar statutory language of our scheme to defraud statutes. (See, e.g., People v First Meridian Planning Corp., 86 NY2d 608 [1995] [the Court of Appeals stated that Federal case law interpreting the mail fraud statute is highly relevant in construing the scheme to defraud statute and applied Federal precedent to determine whether an investment scheme was a unitary scheme to defraud]; People v White, 101 AD2d 1037, 1039 [2d Dept 1984] [the Court held that the Federal mail fraud statute is highly relevant in evaluating what constitutes a scheme]; People v Kaminsky, 127 Misc 2d 497 [Sup Ct, NY County 1985, Rothwax, J.] [the court adopted Federal interpretations of the mail fraud statute in determining that the term \u201cscheme\u201d means \u201ca plan and a pattern,\u201d as opposed to isolated ad hoc acts, and to suggest that a scheme to defraud may be predicated upon a conscious disregard to the truth of representations made]; People v Lennon, 107 Misc 2d 329 [Broome County Ct 1980] [the court held that check schemes are cognizable under the scheme to defraud statute based in large part on the frequent prosecution of such offenses under the Federal mail fraud statute]; People v Block & Kleaver, 103 Misc 2d 758 [Monroe County Ct 1980] [the court relied on Federal mail fraud case law in determining that a scheme to defraud consists of a pattern of behavior calculated to deceive persons of ordinary prudence and comprehension; involves some connotation of planning and pattern; may affect different people over extended period; may use different means and representations; and that fraudulent intent may be inferred from all the facts and circumstances, from the modus operandi, from the dealings between the parties and from the losses sustained by the victims]; cft, People v Keyes, NYLJ, Sept. 5, 2000, at 27, col 2 [I refused to require a showing of intent to harm, as required by Federal case law interpreting the mail fraud statute, because actual injury is explicitly required under the New York statute].) While there is no question that Federal interpretations of the mail fraud statute are not binding on New York courts, the cases cited above recognize that Federal case law is highly pertinent to the construction of New York\u2019s scheme to defraud statute. Accordingly, I regard the Cleveland decision (supra) to be highly relevant to the question of whether broker-dealer licenses are \u201cproperty\u201d for the purposes of the scheme to defraud statute."], "id": "5a3fa820-33e8-4e97-944f-5c2aa74b0686", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Each year defendant gave a $20,000 bond with plaintiff as surety. Plaintiff made payments on the bonds covering the period July 1,1949 to July 1,1950; July 1, 1950 to July 1, 1951; July 1, 1951 to July 1, 1952 and July 1, 1952 to July 1, 1953. Defendant argues that there is no showing that the proper part of the total shortage of $27,113.53 was allocated to each bond. The annual shortages were computed as the amount due at the end of each year less the amount due at the end of the prior year. It is true that the amount of shortages during a year\u2019s period had a wide variance because the one responsible therefor was robbing Peter to pay Paul and indulging in . Nevertheless, the method used in the segregation with respect to the annual bonds is logical and tenable. In any event, it does not appear that more than a $20,000 shortage appeared in one *576year or that plaintiff paid more than its $20,000 liability for that year."], "id": "34f922c5-0f6c-427f-bede-45579ff3c6bf", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At the same time, Water Tunnel Associates, a joint venture of Transit Mix and Certified Industries, had an account at Marine Midland Bank. A number of defendant Halloran\u2019s other enterprises also had accounts at Marine Midland, and Halloran subscribed to \"Marine Lines\u201d, a computer hookup which permitted him instant access to all information about his accounts. Water Tunnel Associates had ceased active business operations in June 1982, and from at least January 1983, when the check- began, no checks from any source other than the Citibank Transit Mix account were deposited into the Marine Midland Water Tunnel account."], "id": "2dcdc22d-f574-45e8-847f-11c0351ec33b", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Nonetheless, the very fact that the defense arguments have some superficial viability shows a need for legislative attention to the modern problem of check-. When behavior looks, feels, smells, and sounds so thoroughly larcenous as does this elaborate, protracted and enormous scheme of check-kiting, there should be no need even to stop and reflect whether that behavior is indeed against the law."], "id": "9ba2c8ce-1889-4aa9-8716-bb1256340bce", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The dissent also suggests that technological advances might develop a way to make methamphetamine manufacturing less dangerous to human life, invalidating the second degree felony-murder rule under Howard . Yet, there are many obsolete laws and legal maxims that fell by the wayside due to technological evolution. (See, e.g., Ruddell and Decker, Train Robbery: A Retrospective Look at an Obsolete Crime (2017) 42 Crim. Just. Rev. 333, 2 [check as a type of bank fraud less frequent today due to advances in electronic benefit transfers (EBT) and debit cards].) That still did not invalidate a conviction for the law violated at the time of commission. In the case of methamphetamine manufacturing, we could consider a method of production more prevalent today than at the time of petitioner's fatal fire, though not universal. The newer method is called \"shake and bake\" or \"one pot\" methamphetamine laboratories. \"Generally, these laboratories are small-scale, easy to conceal, and produce two ounces or less of methamphetamine per batch. The ingredients, which are common household items (e.g. pseudoephedrine /ephedrine tablets, lithium batteries, camp fuel, starting fluid, cold packs, and drain cleaner), are mixed in a container, such as a plastic soda bottle. This provides a portable method of producing small amounts of methamphetamine. 'One-pot' laboratories are extremely dangerous , and , in many cases , cause fires , which can lead to injury and death .\" (Drug Enforcement Admin., U.S. Dept. of Justice, 2017 National Drug Threat Assessment (Oct. 2017) pp. 74-75, italics added.) Thus, the ingredients remain hazardous: lithium scavenged from batteries, volatile liquids, and caustic lye, subject to fires and explosions when mixed. Absent actual evidence to the contrary, we do not see this particular technological \"advance\" as an improvement to the dangerousness to human life inherent in methamphetamine manufacturing."], "id": "e90fa24c-8764-43bf-a440-0dcc1c65a626", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Contrary to the People\u2019s argument, it proves nothing that the Supreme Court in Williams stated, without the usual exhaustive listing of the law of the various jurisdictions, that bad checks are a subject \"traditionally\u201d regulated by State law. (458 US, at p 290.) While bad checks have long been with us, check- is a modern crime not specifically anticipated by traditional legislation. The People argue that People ex rel. Grillo v Holtzman (91 AD2d 983 [2d Dept], affd on opn below 58 NY2d 934 [1983]) is \"dispositive\u201d because the decision concludes that taking by check-kiting is larceny, but Grillo is also not helpful with the issue before this court. The Grillo opinion (supra) does not describe what kind of larceny was committed and, in any event, there are any number of factual and procedural differences between Grillo and this case."], "id": "c14e0a42-5c17-4576-a775-9cb6c6bf21b4", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["These transactions are variously referred to as accommoda. *191tion checks, currency checks, check items and check , hut both plaintiff and defendant agree that these transactions between them from day to day were balanced and adjusted at once, sometimes by cash, sometimes by check, sometimes by both. See plaintiff\u2019s testimony, fols. 96, 97, and defendant\u2019s testimony, fols. 204, 259, 260, 261, 262 and 266. In addition to these temporary loans, if loans they can be called, and altogether outside them, plaintiff loaned defendant three specific sums of money, upon definite terms of credit, as follows: March 15, 1890 (fols. 5, 6 and 7), $464; March 5, 1890 (fols. 8 and 9), $800; June 24, 1890 (fol. 12), $20; total, $1,284. Upon account of these loans plantiff received payment of the amounts set forth in folios 13 to 15, on page 5, aggregating $756.75, leaving a balance of $527.25, for which suit was brought."], "id": "b0600224-6cf5-4a6e-b360-ba1403e6f819", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In this case there is no question whatever that each petitioner knowingly participated in a substantial and illegal bookmaking operation in New York State. In so doing, they spoke with large numbers of people. Each was prosecuted and convicted in this State for doing so. But there is no evidence that either \u201cknew with whom he was dealing\u201d, as did the petitioner in People ex rel. Grillo v Holtzman (91 AD2d 983, 984). Grillo was employed as a branch manager for a New York bank and one of the victims of his check- scheme was a Pennsylvania corporation. Here, however, was no legitimate business. Where the bookmakers or the bettors came from was as irrelevant to the betting as the location of the horse race or football game on which the bet was placed."], "id": "752b5ff5-81d2-4ae6-bfc1-75d81b898ad6", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["*904The checks, totaling over $9,000,000,000, were drawn and deposited in ever-increasing numbers, and in ever-increasing but varying amounts. This is characteristic of a \"check-kite\u201d, as a large number of transactions serves to delay discovery of the check- scheme. Thus, in January 1983, 57 checks were drawn on the Water Tunnel account; in March 1984, the number was 1,352. The number of deposits also increased in amount and each day\u2019s deposits were made at a number of branches, which also made detection more difficult. For example, in March 1984, 464 deposits were made on 19 business days at varying branches and with different tellers. There was also a correspondence, on a daily basis, of the amounts drawn from one account and those deposited into the other."], "id": "481abfd8-8316-42da-a8ef-5f6ea25df057", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Both on this motion and the prior one, defendant admits that it failed to provide a draft financial statement, dated August 31, 2005, which revealed that the value of collateral securing the two commercial loans in question, oak hardwood, had fallen by some $1.3 million due to adverse market pressures on that commodity over the previous nine months. After discovery, plaintiff establishes on this motion that defendant bank failed to disclose additional material facts pertaining to the loans in its possession: (1) information that CyTech wrote nearly $300,000 in worthless checks over a nine-day period in May 2005; (2) two \u201cNon-Accrual Recommendation Forms\u201d dated June 28, 2005, one for each of the two loans, in which defendant \u201cmove[d]\u201d CyTech\u2019s loans \u201cto non-accrual status,\u201d and in which the value of the collateral oak hardwood was \u201cwritt[en]-down\u201d by more than $1.3 million, and which itself referred to CyTech\u2019s \u201c [o\u00ed] checks\u201d in late May 2005; and (3) bank documents evidencing the bank\u2019s investigation of the check-kiting problem, including an e-mail inquiry to CyTech on May 12, notes of a telephone conversation with a CyTech representative, and a chart prepared by the bank listing the nearly $300,000 in checks allegedly \u201ckited\u201d between May 2-10, 2005. Plaintiff contends that *353these documents should have been disclosed pursuant to the disclosure obligations of the asset sale agreement cited above."], "id": "e5df35d7-c296-4950-a88a-4150a5aec310", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Williams had engaged in a relatively small series of transactions \"seemingly amounting] to a case of 'check .\u2019 \u201d (458 US, at p 281.) The essence of the charges, however, was that the presentation of a single check amounted to a representation that the check was of a value equal to its face amount. (458 US, at p 283, n 3.) The Supreme Court concluded that the \"course of conduct\u201d of depositing \"several checks\u201d unsupported by sufficient funds did not involve the making of a \" 'false statement\u2019 \u201d because \"technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as 'true\u2019 or 'false.\u2019 * * * Each check did not, in terms, make any representation as to the state of petitioner\u2019s bank balance.\u201d (458 US, at pp 284-285.)"], "id": "4c18d927-ecc4-40f5-8e7d-3303d295f039", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Left for consideration is defendant\u2019s motion to amend for the purpose of adding a claim for fraud in the inducement. The parties, both of them, wholly misconceive the reliance interest at issue on this motion. The persistent disclaimers of reliance on the review file documents would serve to preclude reliance on anything actually found in the review files. But these disclaimers, relied on by defendant, do not address the only cognizable reliance claim plaintiff could make in this case, and that is that plaintiff relied on defendant\u2019s representation that all defined documents in defendant\u2019s possession pertaining to the loans were in the review file. Assuming that the nonaccrual forms and alleged check- documents qualified for inclusion in the review files, as I must for purposes of this motion (the August 31 draft financial statement has already been found to qualify for inclusion), plaintiff nevertheless fails to point to any duty independent of the contract documents themselves as a basis for its amended claim. (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987].) While it is true that, under CBS Inc. v Ziff-Davis Publ. Co. (supra), reliance is not an element of plaintiffs breach of contract/warranty claim, the added fact of reliance, if present, cannot support plaintiffs proposed fraud-in-the-inducement claim without reference to such an independent duty."], "id": "1465c26f-5568-47de-9e3b-8ea708f4493e", "sub_label": "US_Terminology"} {"obj_label": "kiting", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiff emphasizes that defendant\u2019s fraud occurred before execution of the asset sale agreement and that, therefore, \u201cPramco is not claiming that the bank fraudulently breached the Asset Sale Agreement[;] [r]ather, the fraud occurred *367beforehand.\u201d (Plaintiffs reply mem at 12.) But this argument ignores the fact that the terms of sale memorandum, upon which plaintiff relies for this argument, was expressly made a part of the contract documents. Accordingly, the duty to disclose the documents referenced arose from the terms of the parties\u2019 agreement only, thus bringing into play the Clark-Fitzpatrick rule. Contrary to plaintiffs arguments, drawn from Deerfield Communications Corp. v Chesebrough-Ponds, Inc. (68 NY2d 954 [1986]) and First Bank of Ams. v Motor Car Funding (257 AD2d 287 [1st Dept 1999]), plaintiff fails to refer to \u201ca breach of duty separate from, or in addition to,\u201d that created by the contract documents. (257 AD2d at 291.) By its very terms, the proposed fifth cause of action refers to a duty having its sole origin in the contract documents. Given the tenor of the transaction, a distressed loan sale at auction, and the terms of the contract, defendant had no other duty to supplement the review files other than the duty prescribed in the contract documents. According to the contract documents, defendant made no representation concerning the absence of check or the absence of a reduction in the collateral inventory valuation. (Cf., J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144 [2007].) That distinguishes defendant\u2019s warranties here from those in First Bank (257 AD2d at 292 [\u201cwarranties certified that as of the date of sale to First Bank, any individual loan would comply with certain underwriting guidelines\u201d]). Accordingly, the only duty at issue sprang from the contract documents themselves."], "id": "be448d9b-6e11-4031-b5cc-badf600b326e", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It was claimed by the counsel for the appellant on the argument that this insurance contract was a gambling contract, and that the plaintiff was in effect betting on the chances of the continuance of her hus*317band\u2019s life beyond tbe period of ten years, and that the company had bet against her. We cannot assent to this view. All insurances are based more or less on the doctrine of chances, but they are by no means gambling contracts, unless they are wager policies, and then they are void in law. But this consideration need not be further pursued, for the plaintiff can obtain no advantage from the position even if it be tenable. Her action is not based on the law against gaming, and she is in pari delicto even if the contract was immoral and void."], "id": "05c4d8e2-288d-41d6-a746-77066753694e", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The word was introduced into this country about' 1797. Before that time houses for the entertainment of travelers in this city were at first called inns, and afterward taverns and coffee-houses. In 1794, an association, organized upon the principle of a , erected in Wall street what was then a very superior house for the accommodation of travelers, called the Ton-tine Coffee-house; the success of which led to the formation of *21another company for the erection of one upon a still more extensive scale in Broadway. This structure, which was called the Tontine Tavern, was built about 1796, upon the site of what had been a famous tavern or coffee-house in colonial times, and from the extensive accommodation it afforded, and the superior character of its appointments, it was then, and for many years afterward, the most celebrated establishment of the kind in the county. There was at that period a rage for every thing French. The city was filled with refugees from France and from the French West India possessions, whose residence among us produced a great change in our social habits, amusements, and tastes (Watson\u2019s Annals, 209), while a fierce party strife prevailed between those who advocated the principles of the French Revolution and those who condemned them. The French national airs were sung in the streets; men mounted the tri-color cockade ; and the proprietors of the new tavern, falling in with the popular current, gave a French name to their establishment, by changing it from the Tontine Tavern to the City Hotel. The new word was afterward adopted by the proprietors of other houses for the entertainment of travelers in this and neighboring cities, and, becoming general, found its way into American dictionaries. Allison, one of the earliest of American lexicographers, 1813, defines it to be \u201can inn of a high grade, a respectable tavern.\u201d Webster calls it \u201ca house for entertaining strangers or travelers,\u201d and says that \u201c it was formerly a house for genteel strangers or lodgers,\u201d but that \u201c the name is now (1840) given to any inn.\u201d Worcester\u2019s definition (1846) is \u201c a superior lodging-house with the accommodations of an inn; a public house; a genteel inn; an inn,\u201d and in the last edition of Webster, 1864, there is given an addition to the previous general definition: \u201c An inn; a public house, especially one of some style or pretensions.\u201d"], "id": "4d581294-6289-4a64-982a-1273ec3097d1", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cWe acknowledge that policy No. on the life of Edmund Hayes has been placed with the Society as security for a loan of $ subject to the conditions of the Society\u2019s loan agreement, duly executed by the applicants for such loan. This loan will become due and upon repayment of same said policy will be returned. \u201c In the event of the death of the insured before the maturity of the loan, any indebtedness to the -Society by reason hereof will be deducted from the amount payable under the policy, the balance being payable to the person or persons legally entitled thereto, in accordance with the terms of the policy. \u201c In the event of the cancellation of the policy owing to default in the repayment of the loan when due, the excess value thereof above the amount of the loan and interest shall be paid on demand to the person or persons legally entitled thereto, should its surrender value exceed the amount of the loan with interest thereon to date of settlement at 5%.\u201d The checks in payment of the loans were made payable to the order of Edmund Hayes and Mary H. Hayes. The amount of the loan in each case was almost exactly the amount of the cash value of the policy on the date of the loan. Thus, on each of three semi- policies, the cash value was $5,518.10, and the loan was $5,515; on one of the paid-up policies the cash value was *810$12,992.61, and the loan was $12,990; on the other paid-up policy the cash value was $4,590, and the loan was $4,590."], "id": "1b1304bd-1d87-4b01-b55c-7765bc9340d9", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the trial it appeared that the application was made to the husband of the plaintiff by an agent of the company who produced a pamphlet issued by the company from which he read portions himself and allowed the husband to read it also. The counsel for the plaintiff read from this pamphlet a description of the principle, and an explanation of its peculiarities and advantages substantially as they were set out in the complaint. The counsel for the plaintiff then asked her husband, who was a witness for her, this question: \"What further representations did he (the agent) make to you at the time in regard to the advantages of this tontine investment plan as compared with other plans of insurance ?"], "id": "a1a8f5ff-1f56-42da-81a0-0c9fdb059efa", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The claims of Shops ($348) and Moyer Electric ($311) are directed to be paid and the balance remaining after proper fees and expenses is to be paid to De Nuccio. The disposition above made leaves insufficient funds to pay the full amount of De Nuccio\u2019s claim for return of the purchase price, and therefore it is unnecessary to determine the rank of his claim for improvements made."], "id": "c3bdd9db-7883-47a1-900f-4805178ac221", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Clark states, that in part payment of the bond of $16,000 executed by him to Stewart as sectirity for the payment of the consideration money of the west half of the CoffeeHouse, he was to procure the discharge of an incumbrance of $7,500 existing on the whole lot at the time of the purchase. This he did in September, 1816, about one year after his purchase, by executing a mortgage of the part of the lot deeded to him for the amount of the former incumbrance, including the interest that had accrued since the purchase, accompanied with his individual bond. Lansing paid to Stewart some time afterwards one half of this incumbrance, which was about $3,750. The bond of $16,000 given by Clark to Stewart for the consideration of the purchase, was delivered up and cancelled without the payment by Clark directly thereon of one dollar, and without Stewart\u2019s having received any thing for. his interest in the Tontine Coffee-House, except one half the amount of the incumbrance from Lansing. Clark had done nothing towards satisfying that bond but a transfer to the half purchased by him the incumbrance due on the whole lot at the time of the sale, and to give his personal obligation to Roberts for the future payment thereof. For the property purchased by Clark for $16,000, he has paid or become liable to pay the incumbrance of $7,500,-which, when it was settled in 1816, amounted to $7,950, and Stewart, who had an interest which was sold for $12,250 beyond \" his proportion of the incumbrance, has received (and that from Lansing) about $3,750, and the balance amounting to $8,500 remains in the hands of Clark, and all legal claim for it is extinguished, and it is contended by the cancel-ling of the bond of $16,000 within twelve months of Stewart\u2019s bankruptcy ; a bankruptcy which leaves him deficient in means to satisfy his creditors to the amount of $70,000. If these transactions are as they appear to be, our system of jurisprudence would merit but little commendation if it was so defective that no relief could be afforded to the' defrauded creditors. But with the amplest means of dispens*642ing relief in such cases, it can only be effectually sought \u00bfn manner established for administering it. Has the appellant shewed a clear right to relief, and is he seeking it \u2122 an all\u00b0wa-ble way ?"], "id": "675a0227-1f7d-488a-a4bc-ca3c932cedc8", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On this policy has been engrafted the system called , under which that surplus, instead of being divided and paid to the policyholder, goes to a fund called the tontine fund, the amount being credited to the particular class to which the policy belongs. When a policy lapses the reserve value becomes profits, and under the scheme such profits are divided among the surviving holders of the various classes. Such in substance is the tontine scheme, and such it was represented to be by the pamphlet issued by the company and read in evidence on the tidal of this action. The annexation of the plan to the policy did not invade nor vary the legal effect of that instrument as a policy of insurance for life. It merely constituted a consent for the retention of the surplus dividend by the company during the tontine period, at the termination of which the accumulations .from all sources are to be divided among the surviving holders of policies of that class in existence. The representations complained of had reference only to the surplus dividends, left *318with the company by consent of the insured for accumulation during the tontine period. The allegation of the complaint, however, is that the fund arising from premiums paid upon policies belonging to the tontine class were to be kept separate and distinct from premiums paid upon other classes and kinds of policies issued by the defendant, and would be separately kept invested and accumulated in trust for the benefit of the surviving members of the tontine class. If such representations were made by the agent to the plaintiff and her husband, they had full information that the tontine scheme contemplated nothing of that kind."], "id": "b976a17e-1089-4a62-9471-7a4dee13e326", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the 17th of November, 1873, Canfield obtained a loan of $3,000 from John W. lerd\u00f3n, and assigned to him the policy as collateral security for that sum, with interest, and notice of such assignment was given to the insurers. Subsequently, and in the year 1877, before the expiration of the period, the policy was assigned by the children named in it and by the insured to the defendant herein, and possession of it given him. On the 19th of August, 1883, the policy became due according to its terms, and. the first assignee, Eerdon, sought to get the amount from the society, and made a demand for it, but payment was refused, and he thereupon commenced an action in this court to compel payment. *573The defendant also commenced an action against the society to compel payment to him, and the society thereupon instituted proceedings to relieve themselves by payment of the sum into court, leaving the disputants to settle their controversy between themselves."], "id": "78f2c1e2-02d9-403b-8b25-a28a3e9f11fe", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the examination of the case on the other theory it is to be remarked at the time of the commencement of this action the ton-tine period of ten years had not expired. So that she had no interest in the fund and it could not appear that she ever would have, for her husband might not survive this tontine period, until the expiration of that period in the lifetime of her husband she had no rights in the funds. Both the expiration of the period and the survival of her husband were conditions precedent to the accruing of any rights to the plaintiff in such fund."], "id": "da7a2ca1-ff61-42fb-bbb4-98696d708b5c", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Again, these representations taken at their worst, related only to the future. No fact was misrepresented, and the sole claim is that in the future the fund was to be invested and handled separately. That at most would constitute a condition subsequent in the contract for the violation of which the plaintiff might obtain appropriate redress. The plaintiff has no interest in the mode of investing and handling these funds. Her interest is subserved if the persons insured on this plan are divided into classes and separate and accurate accounts are kept with each class on the books of the company. It appeared in evidence that this had been done, and that each policy was credited annually with the surplus dividend it would have received each year if had not been a tontine policy. Also that when any policy in the class lapsed for non-payment of premiums or any other cause, or matured by death, the amount of its accrued dividends so credited, augmented by compound interest, was credited to the class. This is in full compliance with the declaration in the pamphlet that the annual surplus arising *319from the policies in each class will be set aside for accumulation. So it appeared that all the legal rights of the plaintiff were properly guarded and secured."], "id": "50f39e3b-501b-471e-ad44-a687a7ae3b0f", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is contended on the part of the appellant that if Stewart was not a joint purchaser with Clark, he subsequently acquired an interest in the premises. It will be necessary to consider whether such was the case, and if so, whether the interest he did acquire was of such a nature as to be available to the appellant in the manner he seeks to make it available. Both Clark and Stewart admit in their answers that t\u00edtere was an agreement subsequent to the purchase by Clark *648that they should be jointly interested in the premises. From ciajrik\u2019s disclosures before Judge Miller, this agreement was entered into about the time the repairs were made, which was the year succeeding the sale. In his answer he states that after the purchase, but at what precise time he cannot tell, Stewart wished to take an interest in the premises, but he denies that he then assented to to any arrangement of that kind. He however says that he offered in September, 1818, to convey to Stewart one half of the lot purchased by him on his paying his proportion of the mortgage to Roberts, and of the \u00e9xpenses and interest: but he says Stewart made no decision until about the time of his failure, when he declined to accept it by reason of the depreciation in value of real estate in Albany, and of his pecuniary embarrassments. This statement, it will be observed, conflicts with that which he made on his examination before Judge Miller; for he then admitted there was an agreement about the time the repairs were made (which was in 1816) for Stewart to become a joint owner with him. It is also inconsistent with what he admits in his further answer; for in that he says Stewart proposed to purchase of him an undivided moiety of the west half of the old ; and that he prepared a conveyance for that purpose, which was to be executed after the adjustment of the expenses of repairs and of the mortgage, which was an incumbrance on the premises ; and that about that time Stewart delivered up the' \u00a716,000 bond, and he cancel-led it. Taking these disclosures of Clark and uniting them with those circumstances which I have just considered, in relation to the question whether there was an agreement coeval with the first purchase that Stewart should have an interest in it, a bargain is clearly established, and the consideration therefor paid by Stewart.- It has not been pretended that the giving up of the bond was not done in fulfilment of this bargain. When it was entered into is quite uncertain. Clark\u2019s statements on this point are contradictory. I am inclined to think it existed earlier than he has admitted in his answer, and as early as he stated in his testimony before Judge Miller. There are several reasons for believing that this arrangement was made about the time the incumbrance *649, was changed, which was in the beginning of September, 1816. On the second of that month Clark endorsed a receipt in full on his deed, which was signed by Stewart. This is stated in the receipt to have been done on a settlement. What settle- \u25a0 ment could this have been ? Not that of the copartnership concerns, for that settlement was not made till 1819. If the . bond was in existence and considered of force when this endorsement was made, it was not according to the fact.. The existence of the arrangement as early as 1816 explains some of the circumstances which were urged upon our consideration as evidence of an agreeement between the respondents at the time of sale. It may account for the company\u2019s being charged with the expenses of the mortgage which Clark gave, and with the $4375 of repairs incurred about this time."], "id": "a43f5b10-fe7b-494e-b514-9ba83e24daca", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Similar interests in land are held in trust, as in the New-York and other old unincorporated associations ; and by the Shakers, [ *158 ] on trusts established before the statute Restraining trusts, and since by means of a private act, merely restoring the common law as respects them, by taking them out of the operation of the statute. Much such an interest in lands was also held by the Albany Exchange Company before its incorporation, in 1837, and the decision of our supreme court, in 19 Wendell, 424, admits its validity."], "id": "e4e1c43f-0c5e-4b82-95cb-59abb603e6fc", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Whether the company has the power to compel the payments necessary to create the fund required, or must depend upon the voluntary action of its members for that purpose, does not change or affect the legal rights of the parties interested in it, if the money is in fact furnished and paid over. The ownership of it is then to be determined according to the established rules of law. Where a party effects an insurance upon his own life for the benefit of his *482wife or his child, and the amount is made payable to them in case of his death, and no power is reserved to the insured by any act of his own to change the policy or divert the disposition of the fund, he has no interest in it, and can do no act in relation to it which shall conflict with the interest of the beneficiary. The rights of such beneficiary under the policy become vested as soon as it is issued, and no persons except those to whom it is thus payable can assign, surrender or otherwise dispose of the policy, and the courts will protect such beneficiaries against all acts interfering with their riglits. (Ruppert v. Union Mutual Ins. Co., 7 Robt., 155; Fitch v. Am. Popular Ins. Co., 59 N. Y., 557; Thompson v. Am. Life and Savings Ins. Co., 46 id., 614; Fowler v. Butterly, 18 id., 68; Barry v. Brume, 11 id., 261.) It follows from these authorities that the insured in such a policy has no property or estate in the amount payable in case of his death; that it belongs to beneficiaries named in it and would not therefore pass under a will of all his estate, for he has none in it. If, however, by the terms of the policy any power of disposition over the money payable at his death is reserved to the insured such power is in the nature of an appointment, and must be executed as such. In the case under consideration the by-laws of the company stand in the place of a policy, as none was ever issued, and by them the power is reserved to the testator by his will to direct the disposition of the money to be paid at his death, and if he had executed this power in a proper manner he would have' effectually diverted the fund from the particular purpose to which it was appropriated by the arrangement under which it became payable. For reasons before stated it would not pass under the residuary clause as part of his estate, and any intention on the part of the testator to divert the fund from the very proper purpose for which it was primarily devoted should be expressed in clear and unmistakable terms. No such intention is expressed in the will which the testator has executed, and in the absence of such proper executioir of the power, the money was properly paid to Mrs. Greeno as widow of the testator, and 'as such she has the right to retain it. In an analogous case it was held in the Kentucky Court of Appeals that it was not in the power of the company, or of the member, or both, to alter the rights of those who by charter are declared to be beneficiaries, *483except in the mode and to the extent therein indicated. (Masonic Insurance Company v. Miller\u2019s Admrs., 13 Bush, 489-494; Duval v. Goodson, in same court, reported in Alb. Law Jour. [Dec. 11, 1880], 479.)"], "id": "22f847b4-550d-4b4d-89bb-1bf639530ace", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Passing on to the question of priorities, as between De Nuccio and the mechanics\u2019 lienors, and Moyer, section 13 of the Lien Law gives the lienors priority over De Nuccio\u2019s unrecorded contract. (Reedy Elevator Co. v. Monok Co., 171 App. Div. 653, appeal dismissed 224 N. Y. 699; Schwartz v. Rappaport, 115 Misc. 227; Greenberg v. Marsh, 101 Misc. 18, affd. 184 App. Div. 890.)"], "id": "b635055c-8cf6-4e19-82eb-5e3efd145463", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201c But while there was a possibility that the money might so remain the bank had no right to require that it should be so left. Neither the charter nor the by-laws create anything in the nature of a , under which, on dissolution of the corporation, the then depositors would receive the money of those absent and unknown. On dissolution, the shares of a depositor who could not be found would be paid over to his legal representative, who might be an administrator in case his death was established, or a guardian, in case of mental incapacity, or a trustee in bankruptcy in case of insolvency, or a representative appointed under statutes applicable to abandoned property. But it is not necessary to wait for the dissolution of the bank. If the facts warrant it, a legal representative can be appointed at any time, with all the rights incident to such appointment, including that of withdrawing the funds- and holding them for the true owner when he shall establish his claim.\u201d"], "id": "cbd0cbed-aa68-43db-8f21-43eb0ff1fe41", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Again, this transferability may be found in many sorts of trusts. A well-known instance of this may be seen in the of New-York, originally built for the purposes of a Merchants\u2019 Exchange. It is a trust of real estate, with transferrable shares as personal property; it was originally settled by the most eminent counsel of this state, and its validity has been attested by nearly fifty years experience, during which, above two hundred shares have passed through courts, assignments, insolvencies, bankrupt commissions, distributions of estates, &c., without their legal transferability having ever been impeached. See printed articles of the Tontine, N. Y., 1798."], "id": "515d2d1f-ca60-4209-8b77-c1bf5fcadc5c", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We cannot discover, what the counsel for the appellant claimed on the argument of this appeal, that the statements of the plan in the policy and in the pamphlet were indefinite or uncertain, for the statement is very plain and very easily understood, and no testimony of experts or witnesses Jof any kind is required for its elucidation or comprehension."], "id": "4c1920ef-366b-40da-ba89-ad31d2e9588b", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["No proof was offered to show that Ferdon, the first assignee, had made or offered to make any payment of any of the nremiums, but the defendant offered to show by one of the children of the insured and assignor that in a conversation she had with him he surrendered to her, for her father, the policy in controversy, stating that it was not of any benefit to him as the premiums were not paid, and would not be if they were not paid. This evidence was objected to because she was one of the assignors, and rejected. Nevertheless it appears, as wo have seen, that the defendant had possession of the policy and paid the premiums for several years and up to its maturity on the plan."], "id": "d8adf5a4-77c6-4dd8-8de2-88b18bed3376", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Second. The old incumbrance On the Coffee House before the sale was, as Clark states, to be discharged by him. This he performed, as we have seen, by transferring the amount of it to the part which he purchased. The payment made by Lansing of his half of the incumbrance should have gone into the hands of Clark, and if paid to Stewart for the benefit of Clark, an endorsement should have been made on the bond. It is admitted that no endorsement either on this account or any other was ever made on it. If this fact sheds any light on the transaction of the sale, it is too uncertain to guide us safely to the result at which the appellant wishes to arrive."], "id": "d97cc3d4-4ef9-40ca-b018-2b3fc55191d2", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In fact the line may be very faint, and depending wholly upon the purely legal and technical character conferred, whether a joint stock association or a trust, freed by law from certain positive restraints imposed by our modern statutes, be a corporation or not. The trust, before mentioned, is managed by directors annually elected by stockholders ; its real estate is held *153by trustees, continuing tbeir trust from hand to hand during the lives of the original nominees and the survivors .of them, with transferable shares, and wholly without personal liability. For the reasons already stated, the eminence of the counsel (the late R. Harrison) who prepared the trust, and the frequency with which its legal character must have passed in review before lawyers and courts, and always without objection, it may well be regarded as sanctioned judicially. It is a valid trust. Add to it a legislative charter, making the associates a body corporate and no more, what then is the effect ? Simply to give a different technical character, an artificial individuality, in Chief Justice Marshall\u2019s phrase, a different mode of standing in courts."], "id": "7abae0db-40f8-47db-b68d-32fcc6c3fc1f", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["This was objected to and excluded and then various other ques*314tions were propounded to the witness with a view of presenting .the same question in various aspects, and all the testimony was excluded. The witness then testified that the agent made statement and explanations of the plan in addition to those contained in the pamphlet, and was asked what those statements were. That testimony was also excluded. This question was also asked and rejected : Q. In accepting this policy did you rely upon the representations made to you touching the advantages of this plan over other plans and touching the manner in which the funds or profits accruing to the assured was to be kept and preserved ? The court decided that the counsel inquire as far as the pamphlet was concerned, and that the inquiry must be so limited. In the application one of the questions asked of the plaintiff was whether the tontine plan had been fully explained to her, and whether she authorized the company to retain the dividends on the policy thereby applied for and to place the same in a reserve fund, in which she was to participate in accordance with the provisions made by the company regarding policies in the class she had selected, and not otherwis\u00e9, and her answer was in the affirmative. It was the claim of the plaintiff\u2019s counsel on the argument of this appeal that this action was for fraud, and that the exclusion of the representations made by the agent of the defendant when he solicited the application was erroneous, because the fraud was then and there perpetrated by him in that way. The answer to this seems to be that the power and authority of the agent to make representations was limited to statements made in writing and presented to the officers of the company in the application. And the plaintiff was made aware of this restriction because it is contained in the policy itself; more than that, the pamphlet containing a full and true description and representation of the tontine plan of insurance was read by the agent to the plaintiff, and there was no concealment or misrepresentation on that subject. If after that the agent made representations respecting the advantages of the plan over other systems and forms, they were quite immaterial and amounted simply to recommendation and opinion. They had no tendency to deceive or mislead the plaintiff or her husband so long as the plan itself was explained to, and understood by them."], "id": "51ecc806-33fb-40a2-992e-a79c3cd7e60c", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["When exploring transactions suspected to be fraudulent, it often becomes necessary to build our conclusions upon an accumulation of circumstances, and such conclusions are strong or weak according to the number and character of the circumstances by which they are sustained. Circumstances which are inconsistent with one state of facts do not, however, necessarily prove another state of facts with which they may be made to harmonize. Combine those with this case presents to us as we may, doubts and difficulties, I apprehend will arise, as to the simple question whether Stewart was a joint purchaser with Clark of the west half of the old Coffee House. Most of the pretences that have been set upin opposition to such a conclusion have been scattered, yet competent proof is still wanting to create in the mind a confident reliance on its truth."], "id": "6ec8c16d-fc5b-47de-9287-d8d60d5bac15", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["On the 20th of September, 1819, Clark and Stewart came1 to a settlement, and on that occasion a 'release was executed by the latter to the former, which, in its language, has no particular reference to any interest \"Stewart might have in the west half of the Coffee House, but by its general terms, would convey to Clark whatever right Stewart had therein. One object of the bill was to set this release aside as fraudulent. This would be done without any hesitation, if it stood in the way of any relief the appellant can claim. It was expressly and repeatedly admitted by the respondents counsel on the argument that this instrument had no relation whatever to the real property in question. It is not, therefore, considered as presenting an obstacle to any claim which the appellant may have to that property."], "id": "5447f3b1-4301-448c-9acc-85e6bac00db8", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Four of the policies were of the so-called \u201c Semi- \u201d type, three of them on th\u00e9 twenty-payment fife plan and one of them on the fifteen-payment fife plan. Upon completion of the tontine dividend period of the said three twenty-year payment policies on April 26, 1906, the insured withdrew in cash the shares of the accumulated surplus apportioned to the same amounting in each case to $2,687.20, and continued each policy in force on the ordinary plan for the sum of $10,000 in each case."], "id": "dff23d70-cc9f-413e-9d78-a25d792cc883", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["If I am not mistaken in the views I have taken of this case Clark and Stewart combined together to withdraw from the creditors of Stewart a large amount of his effects, and the whole scope of their answers has been to cover up or gloss over their fraudulent conduct. This charge, impeaching as it does the integrity of the respondents and imputing to them fraud extensive in amount and odious in character, should not be lightly made; the examination of the facts brings us, *643however unwilling we may be, to this conclusion. A detail of them will not be expected, for it would amount to little less than a repetition of the testimony. Clark\u2019s own books shew that he misrepresented the affairs of the company at the time Tallmadge retired from it; the accounts on which the settlement was made in 1819, after Stewart had become insolvent, are grossly incorrect; and the pretences set forth by him as the true motives for abandoning the contract which he admits was made subsequent to the purchase by him, that Stewart should become a joint owner with him in the west half of the , and on which contract Stewart had paid, by giving up the bond, at the least eight thousand five hundred dollars, are effectually exploded. From answers thus impeached we were urged to withhold all credit; the counsel for the appellant asked us to throw them wholly out of view. He applied to them the maxim, falsus in uno, falsus in omnibus. That they have been in several important particulars seriously impeached, is certainly true; and considering them as evidence, I cannot bring my mind to yield them much consideration."], "id": "e9339cdd-bde7-4b8a-93c8-05130d6251f9", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff commenced this action in the year 1882, while her husband was yet alive, setting out in her complaint the substance of the policy, and a description of the principle, and alleging that at the time of the issuance of the policy the defendant represented to the husband of the plaintiff, who was her agent in that behalf, that the policy about to be issued had many and great advantages over the ordinary form of insurance, and among other things, stated the principle of the tontine plan substantially as it was; that the plaintiff relied solely and entirely on the representation so made and accepted the policy on such reliance; that such representations were false and fraudulent, and that the defendant did not perform the obligation assumed by the policy in many respects, which are specified, and that by reason of the violation of the contract by the defendant, the benefits of the same have been lost to the plaintiff to her damage of $2,500 which she seeks to recover in this action. The complaint was dismissed on the trial and the cause comes here on appeal from that judgment."], "id": "ea685780-64ff-417c-9be2-2a6c94c8f4cf", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Commendation is not misrepresentation; even exaggeration *315differs widely from intentional falsehood; general assertions as to value or advantage cannot be made the basis of an action for deceit; an expression of opinion is not a representation of fact upon which a charge of fraud can be predicated. Even assuming that there was misrepresentation by the agent, the plaintiff was not misled, for the whole of the system was laid before her truly by the reading of the pamphlet. These reasons seem to be a sufficient justification of the ruling which rejected the representations of the defendant\u2019s agent beyond the facts embodied in the pamphlet. If there be no proof of the perpetration of a fraud aside from the declaration of the defendant\u2019s agent, not reduced to writing as contemplated by the policy of insurance, then there should be no recovery on that ground. All the representations made by the company were contained in the pamphlet, and that stated the plan of insurance as carried into practice by the defendant with accuracy; and the plaintiff was notified that the agent was not authorized to make any further or other statements except in a particular manner, which was not pursued."], "id": "76dfee7a-9852-42f7-95c2-63949101cd55", "sub_label": "US_Terminology"} {"obj_label": "tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In addition, as to Mr. Mueller\u2019s objections, Metlife argued that a settlement cannot be assessed based upon the complaints\u2019 alleged damages. Rather, it contended, the court must look at the strength of the plaintiffs\u2019 case. Metlife further argued that plaintiffs, in fact, suffered no monetary damage and that Mr. Mueller\u2019s objection to demutualization is a policy argument rejected by New York State. Finally, Metlife refuted Mr. Wald-man\u2019s claims that Metlife had unfettered discretion in its selection of assets to be contributed to the settlement and the administration of the closed block. Metlife noted that the stipulation of settlement \u201crequires the assets to be valued at their \u2018current market value as calculated by Metlife,\u2019 \u201d that the rules of the New York Insurance Department require that \u201cassets added to the closed block be valued either by established public markets or through arms\u2019 length third-party valuation,\u201d and that the \u201cPlan of Reorganization requires that the majority of the closed block assets be investment grade quality.\u201d (Defend*605ant\u2019s mem at 40.) It then argued that the distribution of the closed block assets is governed by the plan of reorganization and calculated annually with the goals of exhausting the assets with the last claim and avoiding buildup and the effect.5 (Id. at 40-41.)"], "id": "6f282406-a186-4427-902c-5ddb04c5fb06", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The money so received by the defendant, with the exception probably of a balance of $1,868.61, not paid, specially claimed by the receiver, was mostly disbursed and paid out by him in acquiring the title to stock of the Widows and Orphans\u2019 Company, which *524he afterwards transferred to the officers of the Mutual Protection Company for its use and benefit. Of these moneys $3,592.63-were retained by him as the price of thirty-five shares of the stock owned by himself in the \"Widows and Orphans\u2019Company;, but these shares, as well as those otherwise acquired by him,, were transferred in the manner already stated to the officers of the-Mutual Protection Company, and they were afterwards retained and apparently used for the benefit of the Mutual Protection. Company, and continued in that condition until the appointment, of the receiver. Neither before that time, nor at any time since then, were the shares offered, or proposed, to be returned to the defendant, or the persons from whom he had obtained them, in carrying out this arrangement. Previous to the time of the transfer of the shares, other shares in the Widows and Orphans\u2019 Company had been sold in the city of New York at a premium above their .par value, but as a matter of fact that was more than they were-worth, for as the liabilities of the Widows and Orphans\u2019 Company exceeded its assets, and to a very considerable degree would absorb-its capital, the actual value of the shares was much less than their par value. If the liabilities were not to be included in the-liabilities of the company, then the actual value of the stock was shown to be about sixty dollars a share. If such liabilities were to-be added, then the value of each share of $100 would be a fraction over fifty dollars; and at the time of these transactions it was known to the officers of the Mutual Protection Company, who were principally concerned in them, that the capital of the Widows and Orphans\u2019\" Company had been impaired to the extent of about $60,000, while the-defendant himself testified that it was known to him to be impaired to the extent of about double that amount. In that, however, the-evidence tended very decidedly to prove that he was mistaken,, and that the actual deficiency in the capital by reason of liabilities was the amount which has already been mentioned. It was stated in the course of the evidence that this increase in. the liabilities of the. company was occasioned by distributing or dividing its earnings among its policy-holders by crediting proportionate parts of it to-them in their accounts upon the books of the company, and that the deficiency could be corrected or removed by withdrawing these-credits. But as the credits had in fact been made and were at no-*525\u25a0time withdrawn, bnt were assumed to have been proper in the transactions of these parties, the power previously to expunge them in that manner would not change the liabilities of the company. If that had been done, then there would be reason for excluding these credits from consideration, but it was not and they were left to remain upon the books without any change being made as distributions of so much of the accumulations or earnings of the company, and in that manner contributed to produce this deduction in the capital which was shown to exist by the evidence. But it is not probably' very important to determine whether these credits formed irrevocable liabilities on the part of the company or not. If they did, and they had been canceled, then the stock of the company would-be of a correspondingly greater value than it was. But without that change its actual value was shown to have varied from fifty dollars to sixty dollars for each share of $100, and that-rendered the acquisition of the stock so far valuable to the Mutual Protection Company to whose officers it was transferred evidently for its uses, and as no offer was at any time made to return the stock, neither the company nor the receiver himself could rescind this purchase and recover from the defendant the purchase-price. For\u2019 even though the transaction may have been an unauthorized and unlawful one, for the reason that it was not within the power of the Mutual Protection Company to acquire the stock in this manner, it could not be disaffirmed and the money recovered without either returning or offering to return this stock. (Woodruff v. Erie R. R. Co., 93 N. Y., 609.)"], "id": "dc6a4e02-076f-4081-ad05-2359136a7150", "sub_label": "US_Terminology"} {"obj_label": "Tontine", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Under the guidance of these views as to the effect of the answers, I shall now consider the facts relied on by the-appellant to shew that Stewart had a trust estate in the west half of what was formerly the Coffee House in the city of Albany. Clark has a legal title to this property, and claims to be its owner. If a decree is made concerning it, his rights will be thereby affected. The statement of Stewart before Judge Miller, that it was agreed by Clark at the time of the purchase that he was to be jointly interested, cannot affect Clark. The answer of one defendant is not evidence against' another. (1 Caines\u2019 Cas. in Err. 121. 5 Johns. R. 412.) Clark\u2019s account of that transaction Is, that,he purchased the premises for himself only, and gave the bond of Si6,000 for the consideration money; that, shortly after he fitted up the building for stores, and about that tim\u00e9 Stewart verbally agreed to take one h\u00e1lf, and to be at \"one half of the expense of the repairs. It further appears,, from Clark\u2019s examination and answer, that- in 1818 he caus\u00e9d a deed to-be made out to Stewart of the undivided moiety of the premises purchased by him, but Stewart delayed completing the arrangement until his embarrassment, and then refused to-do it principally on the ground of his inability to pay for his part of the repairs. If there had been an agreement at the time of the purchase that Stewart should be interested there*645in to the amount of one half, or in aiiy other proportion, and he had paid a part of the consideration money equal to the proportion he was to have in it, or if a portion of the bond equal to the interest Stewart was to have- in the purchase was not to be paid by Clark, a trust would have resulted in favor of Stewart; but Clark, in his answer, denies such to have been the fact, and his statement before Judge Miller, on the occasion of Stewart\u2019s application for a discharge as an insolvent debtor, is equivocal and inexplicit. His testimony on that occasion, as stated by one witness, is substantially that a short time after the purchase he made the repairs, and about that time Stewart agreed to take one half of the premises: as stated by another witness, it is, that he made the purchase in J uly, and afterwards altered the building and made the repairs, Stewart having agreed to take one half; that this agreement was made about the time of making the repairs. The repairs were made, as appears from other parts of the case, in 1816, nearly or quite a year after the purchase. The fair inference, therefore, to be deduced from the testimony of Clark before Judge Miller, and his answer, is, that the agreement with Stewart to be a joint owner was made subsequent to the purchase in 1815. Do the facts attending the sale and the subsequent conduct of the parties lead to a different conclusion ?"], "id": "9297c34d-7cbe-45f0-a163-f3f2f8cd8664", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In the case at bar the junior mortgagee is not resisting the foreclosure of a , the terms of which have been so modified as to render the junior lien practically valueless. Here the junior lienor is seeking the affirmative right to foreclose on the ground that the security of the junior mortgage has been impaired. Although the evidence adduced at the trial herein indicates that there has been an impairment of a sort, yet the proof fails to establish extent of such impairment. Under the circumstances of this case and in the absence of an acceleration clause the impairment did not ripen into such a default in the terms of the mortgage as to entitle the plaintiff to declare due the unpaid balance of the principal debt before its maturity."], "id": "e9f6140b-82a3-4015-8fc7-84cc10c1c92b", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["A judgment debtor dies. A contest over the priority of two judgment liens ensues. Both liens were established prior to the judgment debtor's death. After the judgment debtor died, plaintiff purchased one judgment lien at the execution sale of the junior lien. Plaintiff then brought this action to quiet title against defendant's . The trial court gave judgment to plaintiff. The court concluded that enforcement of defendant's senior lien was barred by Code of Civil Procedure section 366.2 for failure to enforce the lien within one year of the judgment debtor's death.1"], "id": "00ce1fc8-295d-4b26-a3ec-37e58ee8a382", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court in Cadlerock did not explain how the one form of action rule might be used to achieve the same result as the rule stated in Simon . It suggested that \"[a]rguably, a creditor that owns both the senior and junior lien might be deemed to have rendered the junior lien valueless by its own actions when it conducts a nonjudicial foreclosure on the .\""], "id": "e211a210-9bda-45c6-8be8-b7c702f36fc7", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["To fund the remediation, the receiver proposed borrowing funds from South County Bank (bank), one of very few institutional lenders willing to *655provide such funding. The bank would require, however, its loan to be secured by a receiver's certificate with first priority, i.e., a on the property ahead of all other recorded liens and encumbrances (super-priority lien). The receiver indicated no lender would loan money to the receiver unless it received a super-priority lien. The property as it then existed had no equity in light of the SunTrust lien. And even after remediation, the property value would be insufficient to satisfy the SunTrust lien, the substantial attorney's fees and cost award to the City (approximately $875,000), and the receiver's costs of administration. In other words, according to the receiver, a lender would not be repaid unless it had a super-priority lien on the property."], "id": "e2eeaa79-d59a-47b8-be0a-7da8dffa7782", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Although the lien of the judgment held by Jones extended to all the real estate of the judgment debtor, it was specific as to each portion, and, in that respect, analagous to .a lien created by mortgage. It was said in Spencer v. Harford ( 4 Wend., 381), that if a *146mortgagee of real estate foreclose without sale and enter into possession his debt is paid, if the property is of sufficient value at the time to satisfy it. (Per Savage, Ch. J., p. 385.) And it was held in that case, that the same result follows, if the mortgagee obtains a release of the equity of redemption, the property being then equal in value to the debt for which it was mortgaged. So, when the mortgagee enters, into possession of the mortgaged premises by virtue of a foreclosure, and his title thereto becomes absolute provided the mortgaged premises are equal to the value of the debt. (Morgan v. Plumb, 9 Wend., 287.) The same principle is applicable to mortgages of chattels, and it was held in Case v. Boughton (11 Wend., 106), that taking possession of the chattel after default, is a satisfaction of the debt, provided the chattel be of sufficient \u2022value for the purpose. See, also, Charter v. Stevens (3 Den., 35); Olcott v. Tioga Railroad Company (27 N. Y., 545, per Selden, J. ip. 565). Why does not the same rule apply to a senior creditor whose lien is by judgment instead of mortgage, and who obtains .absolute title and possession through the process of redemption ? His-. hold of the property is- as complete as if he had derived it \u2022through a sale upon -his judgment. Why should he not account for .its value to the extent of his debt % Of course, his accountability is not lessened by the fact that he sells the property to a third -person for less than its value. Having used his prior judgment to .redeem, and having taken a sheriff\u2019s deed, under the junior sale, he is to be regarded as a purchaser, as already suggested, the consideration of his purchase being the amount of the bid and of his , provided the value of the property was equal to that amount. In that view of the case, Jones\u2019 judgment was satisfied and \u00abextinguished. ' \u25a0 \u2022 \u2022 ."], "id": "8bfdc376-a254-4fe0-9a37-ca228e9a3dfe", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Unlike other courts that have vacated default judgments or orders pursuant to CPLR 5015 (a) (see Lane v Lane, 175 AD2d 103 [2d Dept 1991] [holding that it was in the interest of justice to vacate a default that was allegedly obtained through collusion]; Nachman v Nachman, 274 AD2d 313 [1st Dept 2000] *855[vacating a divorce judgment based on sufficient evidence of fraud and misrepresentation]), it is not an injustice for a mortgage to stay on a property against a subsequent purchaser who bought specifically \u201csubject to\u201d the ."], "id": "895e7841-288d-45b7-b854-979432c12940", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Even if East Fork had a legitimate interest, relieving the property of plaintiff\u2019s mortgage would not avoid injustice. Instead, it would create injustice as plaintiff would likely lose its entire investment if the court were to dismiss this case.1 Peters has already lost title to the property and East Fork\u2019s motion would not remedy plaintiff\u2019s improper service on Peters. The purpose of proper service is to give a defendant notice of a litigation so he or she can mount a defense. Because Peters has already lost the property, dismissing this matter would only help East Fork avoid a on a property it purchased with full knowledge of that lien. It would not allow Peters to defend against plaintiff\u2019s claims or reach a settlement. Although Peters would receive a nominal benefit, the expungement of the note, that would appear to be of little practical value to someone serving a life sentence."], "id": "b66f461a-0d0f-48bb-bdf5-956ea0d4b296", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Westwood contends the trial court erred in granting summary adjudication on its causes of action for declaratory relief and enforcement of governing documents. It claims the court\u2019s determination that the Supplemental Declaration was not entitled to priority over the deed of trust, on the ground it was an encumbrance recorded later in time, was in error because Comerica subordinated its priority to the later-recorded Supplemental Declaration by subordinating its deed of trust to the CC&Rs, which authorized Westwood to record the Supplemental Declaration at a later date. \u201cA lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act.\u201d (Civ. Code, \u00a7 2872.) When a property is encumbered with two liens, one lien is senior to, and has priority over, the other lien. When the is foreclosed, the sale of the security extinguishes all junior liens. (4 Miller & Starr, Cal. Real Estate (2021 supp.) \u00a7 10:1.) To determine which lien has priority, \u201cCalifornia follows a first in time, first in right system or rule of lien priorities which is \u2018modified by the recording statutes.\u2019 (First Bank v. East West Bank (2011) 199 Cal.App.4th 1309, 1313; 4 Miller & Starr, Cal. Real Estate (2017 supp.) \u00a7 10:1, pp. 10-9 to 10-10 (4 Miller & Starr).) The rule is expressed in [Civil Code] section 2897, which provides: \u2018Other things being equal, different liens upon the same property have priority according to the time of their creation . . . .\u2019 (Italics"], "id": "875b8c34-b471-4d50-85df-c75135f768ad", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We agree with the trial court that paragraph 18 is central to Chase's complaint. Chase sought an order quieting title to reflect that it had the . Believing Walter would challenge the sufficiency of the legal description, it sought to correct it to reflect the true intent of the parties-i.e., that the property would secure the loan. Although it sought declaratory relief that the DOT in fact secured the loan as a first lien, even that cause of action highlighted the need to \"correct the public records before third persons without knowledge of the errors and mistakes in the public records rely thereon to their detriment.\" The complaint's focus is correcting the mistake alleged in paragraph 18. Chase's contention that the gravamen of its complaint is for restoration of a lost deed under *690Civil Code section 3415, subdivision (a) is unpersuasive; the complaint neither references that statute nor any request to restore a lost deed. Accordingly, the demurrers were properly sustained on statute of limitations grounds.11 , The question becomes whether Chase could cure the defect by amendment."], "id": "01df5f56-2b97-4fcc-998a-d7b735900e07", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We concur with Cadlerock that Roseleaf , supra , 59 Cal.2d 35, 27 Cal.Rptr. 873, 378 P.2d 97, cannot be read to support the rule created by Simon , supra , 4 Cal.App.4th 63, 5 Cal.Rptr.2d 428. Roseleaf 's holding that section 580d does not apply to nonselling junior lienholders cannot be contorted into a rule that section 580d somehow does apply to preclude a lienholder from seeking damages under the junior note if it, in its capacity as the senior lienholder, has exercised its right to conduct a private sale of the property rather than seeking a judicial foreclosure. As the court in Cadlerock notes, \"[c]onspicuously absent\" from Simon and cases following it \"is a close examination of the text of section 580d.\" (Cadlerock , supra , 206 Cal.App.4th at p. 1548, 143 Cal.Rptr.3d 96.) Cadlerock examines the rationale Simon gives for its rule and concludes that it simply is not supported by the text of section 580d or by Roseleaf . Roseleaf , it notes, did not create an equitable exception to section 580d for sold-out junior lienholders. Rather, it is Simon that created an equitable exception to section 580d to expand the statute to preclude what it deems a deficiency judgment in favor of a junior lienholder which has exercised its power of sale under a on the same property. (Cadlerock , at p. 1549, 143 Cal.Rptr.3d 96.)"], "id": "e91b6c31-89fa-48c4-a48c-a6fbf2aa42c5", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The court in Simon also justified its holding by the fact that the bank was not a bona fide sold-out junior because it was the bank itself, rather than a different lienholder, that made the decision to foreclose on the . The bank could have chosen judicial foreclosure to preserve its right to seek a deficiency judgment, and its options were therefore not limited by the whim of another creditor. (Simon , supra , 4 Cal.App.4th at p. 77, 5 Cal.Rptr.2d 428 [bank can be classified as a sold-out junior lienor only because it \"literally 'sold-out' itself by foreclosing on its senior lien, and no third party's foreclosure or purchase affected the security of its junior lien\"].) Section 580d simply does not, however, by its express terms, encompass a lien that has not been foreclosed. (Roseleaf , supra , 59 Cal.2d at p. 43, 27 Cal.Rptr. 873, 378 P.2d 97.) This suggested to the court in Cadlerock that Simon might have conflated section 580d with the \"one form of action rule\" set out in section 726.5 (Cadlerock , supra , 206 Cal.App.4th at p. 1549, 143 Cal.Rptr.3d 96.)"], "id": "08847113-d0ca-4548-ad6b-a7bc42ae8369", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Applying these principles, the court finds that City West purchased the premises subject to the mortgage now owned by Fidelity and that Fidelity\u2019s mortgage was not extinguished by the foreclosure sale. Therefore, Fidelity is not entitled to share in the surplus because the mortgage remains on the premises. Fidelity provided no case law to support its position that as holder of a , it is entitled to surplus money. The case law cited above suggests that surplus money is available to junior lienholders whose liens are extinguished by the foreclosure."], "id": "7eb56c9a-ee04-42fb-9847-2b1e850bc6da", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"The Supreme Court in Roseleaf found [that] the purpose of section 580d is 'to put judicial enforcement on a parity with private enforcement.... The *893junior's right to recover should not be controlled by the whim of the senior [as to whether to hold a private sale or seek judicial foreclosure]....' (Roseleaf Corp. v. Chierighino, supra , 59 Cal.2d at pp. 43-44, 27 Cal.Rptr. 873, 378 P.2d 97, italics [omitted].) [\u00b6] Neither will a parity of creditor's remedies be served if [the bank] here is permitted to make successive loans secured by a senior and junior deed of trust on the same property; utilize its power of sale to foreclose the , thereby eliminating the Simons' right to redeem; and having so terminated that right of redemption, obtain a deficiency judgment against the Simons on the junior obligation whose security Bank, thus, made the choice to eliminate."], "id": "b3db4ae5-924a-42ee-bebb-c5b3c12b76f5", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\"By an inadvertent error and misinformation, despite title being vested in Borrower in his capacity as the trustee of Borrower's Trust, Borrower executed Plaintiff's Deed of Trust in his individual capacity, and the true intent of the parties failed, in that, at the time of executing Plaintiff's Deed of Trust, Borrower did not hold title to the Property in his individual capacity.\" (Hereafter paragraph 18.) The complaint asserted three causes of action. First, Chase sought an order quieting title to the property to ensure that it had the . It next sought reformation of the DOT in two respects. Believing Walter would challenge the level of detail in the DOT's property description, Chase sought to correct it to include \"certain metes and bounds information\" to match the full legal description of the property in the 1999 grant deed. Chase also sought to correct the DOT to reflect the \"true intent of the parties\" that the property would secure the loan. Finally, Chase sought declaratory relief as to the enforceability of the DOT, including a declaration that:"], "id": "83f9b879-c7de-429c-94f6-03c5ed7e055b", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We agree that the policy here is not a \"claims-made\" policy, as it provides coverage for \"loss or damage ... sustained or incurred by the Insured.\" The loss or damage claimed in the underlying action, however, is not a loss or damage covered by the policy. There is no obligation to pay benefits under a title policy unless there is a loss; a secured lender suffers an indemnifiable \"loss\" under a title policy only if the lender fails to recoup the debt because of an undisclosed . ( *435Karl v. Commonwealth Land Title Insurance Co. (1993) 20 Cal.App.4th 972, 978-979, 24 Cal.Rptr.2d 912 ; see Cale v. Transamerica Title Ins. (1990) 225 Cal.App.3d 422, 427, 275 Cal.Rptr. 107.)"], "id": "6f1d8622-5a50-4a2e-8550-8640a8dc4787", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["encumbrances.\u201d (Rourke, supra, 17 Cal.App.4th at p. 885; Little, supra, 234 Cal.App.3d at p. 360.) Allowing a judgment creditor to omit property tax liens from the application would cause trial courts, by virtue of a lack of information, to authorize sales of dwellings where there is insufficient equity to cover those liens\u2014 leading to one of two possible outcomes: (1) the sale would extinguish the real property lien without payment to the taxing authority (thereby leaving that unpaid), or (2) the sale would not extinguish the real property lien and the purchaser would be saddled with that lien (thereby leaving the purchaser with title that is not free and clear of all encumbrances). Either result is at odds with the legislative purpose of section 704.760. Plaintiff urges that the priority of tax liens would ensure that such liens would not go unpaid, but this would still saddle the purchaser with those liens; what is more, a rule allowing creditors to ignore tax liens in applying to enforce a judgment against a dwelling would permit a trial court to authorize a sale of a dwelling even when, had the liens been accounted for, there may be no leftover equity for the judgment creditor to acquire after the sale. Plaintiff responds with two further arguments\u2014one legal, and one factual. In his legal argument, plaintiff asserts that the plain language of section 704.760, subdivision (c) requires a judgment creditor\u2019s disclosure of only those liens and encumbrances that must be recorded. Pointing to the second and third clauses of that subdivision, which requires the judgment creditor to disclose \u201cthe name\u201d and \u201cthe address of such person used by the country recorder for the return of the instrument creating such person\u2019s lien or encumbrance after recording,\u201d plaintiff urges that the"], "id": "af9b35c9-71a5-4f40-aa82-ebd3307bf626", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["PACE granted LIPA permission to finance the LILCO acquisition (Public Authorities Law \u00a7 1020-f) through the issuance and sale of bonds. LIPA adopted bond resolutions dated May 13, 1998 and May 20, 1998 authorizing the issuance of $4.95 billion fixed rate and variable rate bonds. The State Comptroller thereafter approved the terms and conditions of LIPA\u2019s bond proposals. On May 28, 1998, LIPA acquired LILCO by purchasing 99.9% of its stock."], "id": "6e83a8fd-f4c1-4351-9e66-daf6e52311de", "sub_label": "US_Terminology"} {"obj_label": "senior lien", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Defendants, in their motion, also request that damages be awarded to them pursuant to UCC 9-625. Defendants point out *250that plaintiffs UCC-1 financing statement hinders 162 CHHC\u2019s ability to obtain financing which would be secured by a mortgage because plaintiffs UCC-1 financing statement connotes a . Defendants also note that Nicodemo Esposito (who, as noted above, is the present owner of the garden unit) may encounter problems if he seeks additional financing due to the filing of plaintiffs financing statement."], "id": "91fcf0d4-9043-4b0a-841d-971c46213487", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["As persuasive a case for fairness that could be made out for deducting the direct costs of buying the shares, as in United States v Elliott (supra), the case at bar is not a RICO forfeiture case, and most conclusively, the direct costs themselves (the loans) represent part of the proceeds of the bribe. Perhaps, if the stock had been acquired with their own, untainted funds, the defendants would merit a different result. Indeed, the point can be driven home that no deduction for the loans is appropriate at bar by observing that if defendants still held all the shares, their entire value, without diminution for the loans, would be forfeitable. (See, 2A Weinstein-KornMiller, op. cit, |f 1310.02, at 13-A-10, 13-A-16.)"], "id": "59c6b194-c4b2-4115-834c-fbaeeeb4de09", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Since the defendants have not parsed the alleged bribe in an attempt to eliminate as \"proceeds\u201d one or more of these alleged features of the \"benefit,\u201d the entire package must be construed as the \"proceeds of a crime.\u201d Manifestly, this package includes the loans themselves, the stock and the appreciation in value of this stock realized on its resale."], "id": "e4e18ec2-ddaf-461c-8a74-a3beb1e48275", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["At 10:30 p.m. that evening, Bear Stearns\u2019 board held a special meeting at which its senior management and legal and financial advisors discussed the liquidity problem, and the possibility that the company would not be able to meet its operational needs the next day, absent the identification of sufficient funding sources. The board was informed that customers were withdrawing billions of dollars, counterparties were refusing to roll over their repurchase agreement or do business with Bear Stearns, and the company was receiving and meeting margin calls. Following that meeting, representatives of JPMorgan and officials of the Treasury Department, the NY Fed and the Federal Reserve Board held discussions throughout the night. They ultimately agreed to a temporary NY Fed-backed loan facility (the loan facility). Pursuant to that arrangement, for a period of up to 28 days, JPMorgan would fund Bear Stearns on a fully-secured basis, supported by a back-to-back loan facility which permitted JPMorgan to borrow similar funds from the NY Fed through its discount window on a basis."], "id": "7966feb0-7c20-46ac-83db-b3d8a03d5180", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In his efforts to limit the scope of the attachment to $4 million, Mr. Clifford argues that the result is Draconian if the loan, interest and commission, and his capital gains taxes are not recognized. To evaluate this position, it is necessary to focus on just what the statute allows and analyze how the facts of this case fit within these provisions of the law."], "id": "8a863a09-64a3-4865-8758-521cf60192b9", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The Cooperative Corporation also argues that injunctive relief to prevent violation of paragraph 39 is unavailable because there is no showing of irreparable harm. This mortgage is a mortgage and plaintiff\u2019s only security is the property. The Cooperative Corporation contends that plaintiff in this case is not entitled to a money judgment at all. But the \"property\u201d which secures the mortgage includes the rent roll. If the receiver\u2019s account is artificially reduced because the cooperative tenants seek to enrich themselves at the mortgagee\u2019s expense, the mortgagee will not receive the full value of its security and will not be able to recover the shortfall from anyone. Thus, the cases relied on by the Cooperative Corporation which deny injunctive relief because the possibility of money damages preclude irreparable harm (Rosenthal v Rochester Button Co., 148 AD2d 375, 376-377; Haulage Enters. Corp. v Hempstead Resources Recovery Corp., 74 AD2d 863, 864; Kane v Walsh, 295 NY 198, 205-206) are inapposite."], "id": "f43a21b0-2428-4449-9122-29fbb675f516", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Plaintiffs also dispute the existence of the Chanel debt and claim that it had no justifiable business purpose. They believe that defendants operated the partnership as a tax shelter for themselves, opting only for capital infusions that would produce net operating losses for Chanel, and debt for AFI and Chanel\u2019s chief executive officer. Plaintiffs further allege that defendants negligently managed licenses of the partnership\u2019s intellectual property, and that they deposited royalty checks from the licensees to the partnership into Chanel bank accounts."], "id": "f3f14525-258d-4e44-b564-270081ee71f7", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The trustee proposes to create two trusts, one to hold the real property (a Manhattan apartment building) and the other to hold the other assets. The proposed severance will in no way alter the dispositive terms of the trust agreement and will not result in any increase in trustee\u2019s commissions. The building has at all times been self-supporting. The trustee expressly represents that there are no current claims and none threatened or reasonably anticipated. The existing mortgage, representing 70% of the building\u2019s current market value, is debt and specifically authorizes the transfer of the property to other family trusts without the mortgagee\u2019s consent. The building is adequately insured both as to liability and casualty and the same or comparable insurance will continue to be maintained."], "id": "c2ac5c0f-06e3-44bc-bf4e-13f22ff34826", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["We have seen that forfeiture is authorized for crime proceeds or substituted proceeds. (CPLR 1311 [1].) These are defined terms.7 The crime of commercial bribe receiving in the first degree is a felony \"defined in the penal law\u201d (CPLR 1310 [5]) and qualifies as a predicate for forfeiture under the definition of \u201cproceeds.\u201d Included in the corpus of the bribe was the loan. It was through the use of that loan that Clifford acquired his shares. These shares became the substituted proceeds of this crime. The resale of most of these shares, by prearrangement with Abedi and the BCC Group at an inflated price, represents a gain or appreciation in value. This gain is not strictly realized by the sale or exchange of the loan for the stock nor an appreciation in the value of the *342stock. Therefore, in order to capture the full sale proceeds, including the nonrecourse loan amount, the prearrangement for resale at whatever price Clifford wanted must be considered as part of the bribe. The indictment certainly embraces both features of the bribe. It alleges that the benefit defendants agreed to accept was \"the opportunity to purchase [the bank] stock at book value, certain non-recourse loans and the right to sell [this] stock.\u201d"], "id": "928ddc11-4e45-4907-9986-ff0e6e90b30b", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["There would seem to be no reason why an omission in the appropriate circumstances could not be an overt act. Filing a form with crucial information omitted might be such an overt act. But in general simply not doing something would not seem to qualify as an overt act Certainly, since the purpose of requiring pleading and proof of overt acts is to show that a conspiracy has moved beyond the talk stage and is being carried out, alleging failure to act as an overt act seems to be a contradiction in terms. The overt acts alleged in the instant indictment consist of failing to inform an allied attorney over a period of five years of the means by which CCAH stock was purchased; failure by two of the defendants to inform their law partners over the same period of the means by which the stock was purchased; and, when informing an auditor of loans, failing to mention their nature. None of these omissions seem to this court to be overt acts."], "id": "7232b715-443b-41d8-8539-f386ec820887", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["It is undisputed that in 1983, Merrill Lynch, Pierce, Fenner & Smith, as part of the creation of three related real estate tax shelter transactions, established Lynx Properties Corp., which acquired title to 14 properties, located in 10 states, from Kmart Corporation for $35,300,000. Most of the purchase price was borrowed from Kmart, which issued 14 notes, each secured by a mortgage, one for each property. These mortgages constituted a first lien on the properties. The properties were then leased back to Kmart, which assigned the notes and mortgages to defendant Bank One\u2019s predecessor in interest, the National Bank of Detroit, which acted as trustee for investors in trust certificates secured by the original notes and mortgages."], "id": "8a0e8a14-4598-4f9f-a30b-e89df9b1b294", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["In any event, the crime on the basis of which this forfeiture action rests and on which plaintiff founds its calculation, commercial bribe receiving in the first degree, is supported by the nature of the loans, the BCCI source of these loans and the congruence of the structure of their stock acquisition with that of the many other fronts and nominees for BCCI and the BCC Group. Clifford\u2019s explanation that his lawyers at Wachtel, Lipton, Rosen & Katz suggested a nonrecourse loan in view of his advanced age is not persuasive, particularly because such advice in no way explains why his younger prot\u00e9g\u00e9, Mr. Altman, also secured nonrecourse borrowing."], "id": "b9054446-71a1-4b92-8936-07698bd75680", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["Later that Sunday morning, JPMorgan advised Lazard that due to the risks of a merger it could not proceed without some level of financial and other support from the NY Fed. JPMorgan continued to work with Bear Stearns toward a transaction, and also pursued discussions with the NY Fed. The NY Fed ultimately agreed to provide $30 billion of funding secured by a pool of Bear Stearns collateral consisting primarily of mortgage related securities and other mortgage related assets and hedges. According to officials of the Federal Reserve, the governmental intervention was premised on a concern that a sudden and disorderly failure of Bear Stearns would have \u201cunpredictable but likely severe consequences for market functioning and the broader economy\u201d (Markel aff, exhibit DD, at 3). It would also likely pose \u201cthe risk of systemic damage to the financial system\u201d (id., exhibit K, at 5)."], "id": "65da9650-0635-4259-a1e9-25cb5db0d452", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["BCCI had gained its control of these corporations through nominees (BCC Group) who had side agreements with BCCI by which the voting shares of the nominees were controlled. BCCI had extended loans to these individuals to acquire their shares. In July 1986 Clifford obtained a $9.9 million and Altman a $4.9 million nonrecourse loan to purchase shares. Another nonrecourse loan in August 1987 of $2.3 million to Clifford and $1.1 million to Altman was made by the same lenders. The result was that the defendants acquired shares which were pledged as the only security for these loans. At the time defendants acquired these shares, an arrangement was made for resale subject to BCCI consultation whenever defendants would desire."], "id": "4ac63707-791b-40e3-9fef-8ca77334ace4", "sub_label": "US_Terminology"} {"obj_label": "nonrecourse", "legal_topic": "Money And Financial Problems", "masked_sentences": ["\u201cWe generally do not use the term loan ever . . . we call it an advance because in essence according to the language of the contract, what we\u2019re doing is we\u2019re purchasing a portion of your future receivables that don\u2019t exist, which means we are becoming a partner in your business, and when our interest in your business is satisfied, which would be that payback amount, we exit, we\u2019re no longer your partner, you go out on your own, you continue on, *475our interest that we\u2019ve invested in has been satisfied to that amount and we move along ... if you look at the language we\u2019re not allowed to write anywhere a loan. It\u2019s illegal. So we don\u2019t have it written anywhere loan, when we speak to a customer, I mean sometimes there\u2019s a rep there that slips up and will say loan, but they are correct, these are not called loans\u201d (tr at 23-24). However, upon further questioning by the court, it became clear that there was no evidence to support his purchase of receivables argument, or that the parties\u2019 arrangement contemplated that plaintiff was an investor or partner in defendants\u2019 business. While the witness spoke generally of instances, such as a flooded warehouse, under which plaintiff might not be able to collect repayment with interest from a customer, he was unable, when pressed by the court to point to a provision in the Merchant Agreement by which plaintiff assumed the risk that it might not be able to collect payments from the instant defendants\u2019 account receivables. Merely telling the court that risk is contemplated under the terms of the agreement is inadequate, especially where, as here, the agreement provided for court review is illegible, with excessively small print. The court is further troubled by the witness\u2019s testimony to the effect that plaintiff is able to escape an element of risk by deeming a borrower\u2019s failure to pay to be wilful or otherwise unjustified, and entitling it to seek payment in full under the personal guaranty provided by RDN\u2019s owner, Robby Neely. This required guaranty, along with the other facts and circumstances set forth clearly demonstrate that the principal sum advanced was absolutely repayable with calculated interest that exceeds the legal rate (72 NY Jur 2d, Interest and Usury \u00a7 85), and supports a finding that the evidence outweighs the presumption against a finding of usury (Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254, 261 [1984])."], "id": "8e08c46a-70b6-401c-b483-955ea01ecca2", "sub_label": "US_Terminology"} {"obj_label": "Variable Annuity", "legal_topic": "Money And Financial Problems", "masked_sentences": ["616, 629 (7th Cir. 2020), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). When evaluating a decision not to permit an amended pleading, the analysis is not focused on only the district court\u2019s actions. We also consider whether the denial of leave to amend caused prejudice to the appellant. Showing preju- dice ordinarily requires a party to show how she would have amended her pleading. And we expect that showing to be made at an early opportunity\u2014in the district court, unless the court closed that door, and certainly no later than in an open- ing brief to this court. E.g., Webb v. Frawley, 906 F.3d 569, 582\u2013 83 (7th Cir. 2018) (losing plainti\ufb00 was \u201cnot entitled to leave to amend at this stage\u201d after he failed to request leave to amend his complaint until it was too late). Failing to include an amended pleading, for example, \u201c\u2018may indicate a lack of dili- gence and good faith.\u2019\u201d Arlin-Golf, 631 F.3d at 823, quoting Otto v. Life Insurance Co., 814 F.2d 1127, 1139 (7th Cir. 1986). Delay also makes it di\ufb03cult to \u201cmeaningfully assess whether [the plainti\ufb00\u2019s] proposed amendment would have cured the de\ufb01ciencies in the original pleading.\u201d Crestview Village Apartments v. U.S. Dep\u2019t of Housing & Urban Development, 383 F.3d 552, 558 (7th Cir. 2004); see also James Cape & Sons Co. v. PCC Construction Co., 453 F.3d 396, 401 (7th Cir. 2006) (\u201cDistrict judges are not mind readers\u2026. Even as- suming that [plainti\ufb00] properly moved to amend, the district court did not abuse its discretion in dismissing with preju- dice, since it had no way of knowing what the proposed amendment entailed.\u201d). Plainti\ufb00s here never showed the district court how they thought they could amend their complaint to cure its de\ufb01cien- cies. Even in this court, plainti\ufb00s also did not indicate in their 18 No. 18-3216"], "id": "de79e65b-3c30-472b-bec0-42c328c83ace", "sub_label": "US_Terminology"} {"obj_label": "Variable Annuity", "legal_topic": "Money And Financial Problems", "masked_sentences": ["The plaintiff\u2019s argument with regard to the $700,000 insurance policy on her husband\u2019s life is, therefore, rejected and under the laws of both New Jersey and New York, Maccabees was justified on the basis of the material misrepresentations set forth in the application to rescind the policy and disclaim coverage (see, e.g., Daly v Paul Revere Ins. Co., supra, 489 A2d, at 1285; North Atl. Life Ins. Co. v Katz, supra, 163 AD2d, at 285)."], "id": "762a4726-a268-47e1-abb6-81a0db645a03", "sub_label": "US_Terminology"} {"obj_label": "Variable Annuity", "legal_topic": "Money And Financial Problems", "masked_sentences": ["These holdings are consistent with the purpose and intent of statutes like the two involved herein. \"The requirement that a 'copy\u2019 of the application be attached to the issued policy insures that the policyholder is provided with everything that the insurer relies on in issuing the policy, i.e., the entire agreement of the parties\u201d (Ives v INA Life Ins. Co., supra, 101 *998Ore App, at 433, 790 P2d, at 1208 [emphasis supplied]; Evans v United Life & Acc. Ins. Co., 871d 466, 470). The insured is then presented with the opportunity and, in fact, a duty to read it or have it read, and if the application does not contain true answers to the questions asked, it is his further duty to have them correct it (Minsker v John Hancock Mut. Life Ins. Co., 254 NY 333, 338; Gozan v Mutual Life Ins. Co., 40 NY2d 707, 711; North Atl. Life Ins. Co. v Katz, 163 AD2d 283, 284-285; New York Life Ins. Co. v Rigas, supra, 168 A, at 24; Daly v Paul Revere Ins. Co., 199 NJ Super 584, 489 A2d 1279, 1284, affd 206 NJ Super 185, 502 A2d 48; Zachary Trading v Northwestern Mut. Life Ins. Co., 668 F Supp 343, 346 [SD NY]). This is to protect the insured from possible loss of insurance after many years of premium payments by affording him the opportunity at the inception of the coverage to make corrections of information which might nullify the supposed insurance protection (Cutler v Hartford Life Ins. Co., 22 NY2d 245, 250-251; Tannenbaum v Provident Mut. Life Ins. Co., 53 AD2d 86, 105, affd 41 NY2d 1087)."], "id": "cb16297e-4ec1-4939-b5cf-24d96e2bf143", "sub_label": "US_Terminology"}